September 2017

In the decision of ASG v Harlene Hayne, Vice-Chancellor of the University of Otago [2017] NZSC 59, the Supreme Court upheld earlier findings of the Employment Court and the Court of Appeal that section 200 of the Criminal Procedure Act 2011, which allows a court to make a name suppression order forbidding publication of the name and other details of persons charged with or acquitted of an offence, barred distribution to the public at large but did not extend to disclosure to people with a legitimate interest in such information.

In this case, ASG was employed by the University as a campus security guard. Whilst in this employment he pleaded guilty to one count of wilful damage and another of assaulting a female (both charges related to an incident with ASG’s wife). He was ultimately discharged without conviction on both charges and the judge in the District Court made an order under section 200 of the Criminal Procedure Act suppressing ASG’s name and all details relating to ASG and the offending.

The Deputy Proctor of the University was in court while ASG was being sentenced. On legal advice, the Deputy Proctor disclosed ASG’s name and details about the charges to certain personnel in the University, and the University subsequently undertook an investigation.

ASG was suspended until the Vice-Chancellor reached the provisional view that a final written warning was appropriate.

ASG raised a personal grievance against the University arguing that he had been unjustifiably disadvantaged by his suspension and by the decision to issue a final written warning.

The Employment Relations Authority found ASG was unjustifiably disadvantaged in his employment by the decision to give him a final warning but not by his suspension from office. The Authority took the view that the University had breached the name suppression order and its actions were not those of a fair and reasonable employer.

However, the Employment Court concluded that the University’s actions in conducting an investigation, suspension and the issuing of a final warning were all justified. In reaching that view, the Employment Court considered that there was no breach of the name suppression order because the University as employer had ‘a genuine (i.e. legitimate and objectively justifiable) interest’ in the circumstances relating to the charges. The steps undertaken, that is disclosure to a small number of persons within the University all of whom had a genuine interest, and the subsequent actions taken, were steps a fair and reasonable employer could have taken.

The Court of Appeal dismissed the appeal and took the view that ‘publication’ in section 200 meant distribution to the public at large, not dissemination ‘to persons with a genuine interest in conveying or receiving the information’. The Court took the view that ASG had breached his duty of good faith under section 4 of the Employment Relations Act 2000 in not informing the respondent of his offending. That was a relevant circumstance telling against the conclusion that disclosure was in breach of section 200.

The Court of Appeal considered that an employer had such an interest where there was a ‘potential nexus between the circumstances relating to the charges faced by the employee and the obligations of the employee to his/her employer’. Here that nexus was that the employee was a security guard at the University facing charges, from which he was discharged without conviction, of assault against his wife and wilful damage. The Supreme Court agreed that this meant that the University, as employer, had a genuine interest in knowing he had pleaded guilty to the charges.

The Supreme Court dismissed the appeal from the Court of Appeal and noted that name suppression ought not to have been given by the District Court to protect the security guard from the University finding out and possibly terminating his employment. That was not only because of the obvious link between his employment and the nature of his offending but also because it had proceeded on the false assumption that disclosure to the employer would result in dismissal.

This case demonstrates the importance of good faith in an employment context, in particular an employee’s duty to disclose to their employer the details of offending that has occurred during the course of the employment relationship and establishes that an employer may be entitled to information that is subject to a name suppression order if it relates directly to the employment relationship.