The Court has recently clarified the commonly understood maxim that what goes on at mediation stays at mediation. In the case of Jesudhass v Just Hotel the Court found that confidentiality doesn’t stretch quite as far as most expect.
The starting point for confidentiality at mediation is section 148 of the Employment Relations Act 2000 which states:
Except with the consent of the parties or the relevant party, a person who
(b) is a person to whom mediation services are provided
must keep confidential any statement, admission, or document created or made for the purposes of the mediation and any information that, for the purposes of the mediation, is disclosed orally in the course of the mediation.
(3) No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (1), is required to be kept confidential.
Previously the Court had called the combined effects of section 148(1) and (3) ‘clear, absolute and draconian. They would even appear to make inadmissible evidence of the commission of criminal offences by persons in mediation such as attempts to pervert the course of justice, unlawful threats, and other offences that may be committed by one person making a statement to another for the purposes of the mediation’.
In Jesudhass v Just Hotel the Court held that section 148 is intended to allow parties to mediation the freedom to express themselves, including to make ‘vigorous and emphatic statements intending to drive another party to a particular position’. However the Court stated that previous pronouncements of the scope of the confidentiality imposed by section 148 had gone too far. The Court now considers that a line can be drawn between what is acceptable conduct as opposed to unacceptable conduct at mediation, the former attracting the shroud of confidentiality, the latter not. Conduct which involves threats or blackmail is likely to be admissible in evidence as is conduct or statements that can be described generally as ‘going to subsequent events including dismissal or disadvantage in employment’ which are not made for the purposes of the mediation (i.e. for the purpose of settling the dispute between the parties).
As a general rule of thumb a threat which would impinge on the rights of either party, such as a threat by an employee to release confidential company information to the world at large or by an employer to make the employee’s position untenable if settlement is not reached, is not likely to be privileged or confidential.
In the factual circumstances of Jesudhass v Just Hotel the Court found that the employee was able to bring evidence about what happened at mediation to attempt to establish that he had been dismissed during that mediation.
A cautionary note
This case is a cautionary note for all parties undertaking mediation, that what goes on at mediation does not necessarily stay at mediation. Before making any statement which concerns an ongoing employment relationship or an allegation that might be construed as a threat or blackmail the party should consider whether that statement would be seen by the Employment Relations Authority or the Court as made for the purpose of settling the dispute in good faith between the parties or for some other illegitimate purpose.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).