ASG v Hayne, Vice-Chancellor of the University of Otago

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ASG v HARLENE HAYNE, VICE-CHANCELLOR OF THE UNIVERSITY OF OTAGO (CA703/2014) [2016] NZCA

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

The Court of Appeal released a judgment today upholding a decision of the Employment Court that where an order forbidding publication of a person’s name and offending has been made, it is not a “publication” to disclose that person’s name and offending to that person’s employer, provided the employer has a genuine interest in the information.

The appellant, ASG, is a security officer employed by the respondent, the University of Otago. In 2013 ASG pleaded guilty to charges of wilful damage and assaulting a female, but was discharged without conviction and granted name suppression, under s 200 of the Criminal Procedure Act 2011, in the District Court. Section 200 permits a court to prohibit publication of the name and identifying particulars of a person who is charged with, or convicted or acquitted of, an offence. The District Court Judge considered it was highly likely ASG would lose his job if his name were to be published in association with his offending.

A senior member of the University’s staff was seated in the public gallery at the time. After seeking legal advice, that staff member communicated the fact of ASG’s offending to human resources and management personnel at the University. The University commenced an investigation, during which time ASG’s employment was suspended. ASG was given a final written warning as a result of the investigations.

He raised two personal grievances with his employer, claiming that his suspension and the final written warning each constituted an unjustified disadvantage. The Employment Relations Authority held ASG had not been disadvantaged unjustifiably. The Employment Court agreed, finding that it was not a breach of s 200 for the staff member to communicate the suppressed information to the University because the University had a genuine interest in receiving the information.

The Court of Appeal granted ASG leave to appeal on two questions of law:

- In interpreting s 200 of the Criminal Procedure Act 2011, did the Employment Court err in holding that where an order forbidding publication of information has been made, it is not a “publication” to make disclosure of that information to that person’s employer where the employer has a genuine interest in that information?

- If the answer to the first question is yes, was it nonetheless open to the employer to rely on and use the information obtained contrary to the order?

In dealing with the first question the Court found that the word “publication” in s 200 had a flexible meaning depending on the circumstances. While “publication” includes word-of-mouth communications or communications to only one or a few other persons, in general a prohibition on publication is aimed at preventing dissemination to the public at large rather than to persons who have a genuine interest in conveying or receiving the information.

Judgment: 2016NZCA203.pdf

It was of particular relevance in this case that ASG had a duty under the Employment Relations Act 2000 to inform his employer of the charges against him, and that the charges involved violence and property damage — behaviour that clearly could impact on his ability to perform his duties as a security officer. In those circumstances, the University had a genuine interest in knowing about ASG’s offending so it was not a “publication” in breach of s 200 for the staff member to pass it on.

In the light of its conclusion on the first question of law, the Court did not need to address the second. It dismissed ASG’s appeal.

The Court also made several important observations about the role of judges in determining applications for name suppression, particularly in the District Court where such applications are frequently heard. The Court considered the District Court Judge had suppressed ASG’s name primarily to protect him from the University, as his employer, and the possible loss of his job there. It said this was a faulty basis for a name suppression order and endorsed the Employment Court’s comment that, ultimately, the employment consequence of criminal charges that relate to the employment is a decision for the employer.

In this case the District Court Judge had made the decision to suppress ASG’s name without hearing from the University. This was important because the University had responsibilities under the State Sector Act 1988 and the Health and Safety in Employment Act 1992 (which was still in force at the relevant time) to protect its other employees and students. It could not fulfil those obligations if it was not aware of or able to investigate conduct such as ASG’s. The Court urged judges making a s 200 order that may affect a defendant’s employment to stipulate clearly what may be communicated to an employer and between an employer’s responsible staff.

Note: ASG’s name remains suppressed.

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