Court of Appeal refuses to admit privileged evidence in employment dispute against BNZ

An employee claimed she was unjustifiably dismissed and disadvantaged by the bank

Court of Appeal refuses to admit privileged evidence in employment dispute against BNZ

The Court of Appeal has upheld the privileged nature of material sought to be put in evidence in an employment dispute against the Bank of New Zealand (BNZ).

In Bowen v Bank of New Zealand [2023] NZCA 512, Melissa Bowen complained to the Employment Relations Authority (ERA), alleging that she was unjustifiably dismissed and disadvantaged by the BNZ because she had raised concerns about what she considered was serious wrongdoings by the bank.

Bowen sought to put privileged communications in evidence, including a draft settlement agreement between the parties and a covert recording of a confidential facilitated meeting. The ERA ruled that the material was privileged and inadmissible. The tribunal was not satisfied that there was good reason for admitting any of the disputed material. It was not convinced that the material supported the points that Bowen wanted to make about them or that even if it did, such evidence was material to the substantive dispute.

Bowen then filed an action in the Employment Court challenging the ERA's determination. BNZ protested the court's jurisdiction to hear and determine Bowen's challenge. Before the Employment Court, the issue was whether the ERA's determination that the disputed material was privileged and inadmissible was a substantive determination or a determination relating to a matter of procedure. If it was a matter of procedure, the Employment Court did not have jurisdiction to hear the challenge.

Ultimately, the Employment Court ruled that the ERA's determination was a matter of procedure as it concerned how the ERA would investigate the dispute before it. The court considered that procedure was a matter for the ERA and observed that, in general, the way the ERA investigates a claim should not be interrupted by challenges at the predetermination stage.

Bowen raised the matter to the Court of Appeal, which ultimately dismissed Bowen's claim. The appeal court noted that the ERA's investigative procedures should generally be uninterrupted by challenges.

In the circumstances of the case, the appeal court did not consider that the proposed question of law put forward by Bowen was one which, because of its general or public importance or for any other reason, should be submitted to the court for a decision. The court found that the proposed appeal did not raise a novel question that can any longer be said to be of general or public importance.

Furthermore, the court gave weight to the ERA's view, supported by the Employment Court, that the disputed material was neither relevant nor material to Bowen's claims against the BNZ. As a result, the court could not conclude that the question she sought to put forward could materially affect her substantive proceeding. Accordingly, the court dismissed Bowen's application for leave to appeal the Employment court's ruling.

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