Generally speaking, documents provided by the parties to the mediation service, or to each other through the mediation service are subject to confidentiality under s 148 of the Employment Relations Act 2000 (the Act) if they are created or made for the purposes of the mediation. However, a recent decision of the Employment Court demonstrates that this issue is not always clear cut.
The Chief Judge of the Employment Court refused to accept that emails sent by an employee to the employer, copying in the mediation service, were subject to confidentiality under S.148 of the Employment Relations Act 2000 (the Act).
The issue was an important one as the employee sought to rely on the contents of the emails to support a claim that he raised a personal grievance within the 90-day timeframe for doing so. In the course of the mediation service attempting to organise a mediation, the employer requested that Mediation Services ask the employee to provide full details of his further claims. Mediation Services replied, asking the employee to communicate with the employer on the matter and to copy Mediation Services into the reply. The employee then emailed the employer setting out fuller details of his issues concerning the basis on which his employment had been terminated.
The employee copied Mediation Services into the email. The Court observed that the employee was self-represented. The Court also noted that the employee did not have it drawn to his attention that S.148 of the Act might present difficulties for him if he failed to raise his additional grievances by way of direct correspondence with the company and that potential issues might arise if he copied Mediation Services into the correspondence setting out details of his additional concerns. The Court noted the significance of the situation where there is more than one purpose for the communication in question and mediation is only one of those purposes. The Court considered that on one reading of S.148, it creates an all-or-nothing choice between two possibilities — either a document was “created or made for the purposes of the mediation” or it “existed independently of the mediation process”.
The Court observed that while cases may often fall neatly into one or other category, the facts of this particular case reflected the difficulties which can arise when documents are written for dual purposes, only one of which relates to mediation. The emails from the employee were written for two purposes: for mediation and to be used outside of mediation if matters did not resolve.
The Court found that S.148 provides the ability to engage in open dialogue which is conducive to productive settlement discussions because it allows parties to speak more freely without worrying about jeopardizing their case if mediation fails. The Court considered that applying confidentiality to the employee’s two emails would see S.148 operating in reverse to its intended design. The Court also considered it would undermine the purpose of S.114 which required grievances to be raised within 90 days. The Court observed that applying confidentiality to the emails would destroy the employee’s chances of bringing a claim of unjustified dismissal at all, despite the fact that the employer was on notice of his additional grievances before the 90-day period expired. In accordance with S.189 of the Act, the Court found that equity, good conscience and the interests of justice warranted finding that the two emails were admissible in the particular circumstances.
The Court also observed that while S.148 provides that confidentiality cannot be waived “Except with the consent of the parties” it also used the words “or the relevant party”. The Court considered that it might be said that S.148 only requires the consent of a party who prepared the document to waive privilege. Therefore parties should be aware that if a document is provided by one party to the mediation for the purposes of mediation, potentially only that party needs to waive confidentiality if they want to use the document at a later stage.