| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 463/10 |
| Determination date | 29 October 2010 |
| Member | R A Monaghan |
| Representation | R Harrison QC ; J Holden |
| Location | Auckland |
| Parties | Zhou v Chief Executive of the Department of Labour |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Applicant required to obtain and retain suitable Government Security Clearance (“GSC”) – Applicant received adverse recommendation that GSC be revoked – Respondent had to decide whether to revoke GSC and advised if revoked applicant’s employment at risk – Applicant went on voluntary leave – Review into adverse recommendation commenced – Adverse recommendation upheld – Respondent advised GSC would be revoked and employment terminated – Applicant claimed unjustified disadvantage in relation to respondent receiving and holding or acting on information adverse to applicant without making information available and effectively suspending applicant – Applicant raised questions of law – Whether applicant’s terms and conditions of employment extended to requirement to hold GSC and what reciprocal duties imposed on respondent – What duties of fairness and disclosure did respondent owe applicant – Whether sufficient for respondent to rely on fact of adverse recommendation – What were parameters of duty to refrain from acting so as to damage respondent’s trust and confidence – What were respondent’s disclosure obligations – Whether special advocate procedure should be followed – Authority found overarching complicating factor was respondent’s possession and use against applicant of possible confidential information – Found two themes underlay questions – Extent to which respondent’s duty of good faith meant it could accept and act on information received and not disclosed to applicant in decisions made about applicant’s employment – Whether information available to respondent but withheld from applicant should be made available in personal grievance proceedings – Found special nature of information in questions meant important questions of law arose – Application for removal granted – Compliance Officer |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s178;Official Information Act 1982;Privacy Act 1993 |
| Number of Pages | 7 |
| PDF File Link: | aa 463_10.pdf [pdf 21 KB] |