Employment Relations Act 2000 – New Zealand Bill of Rights Act 1990 – natural justice – confidential documents – novo challenge – destruction order – redactions – personal grievance

Hilford v Board of Trustees of Whangārei Boys’ High School [2023] NZEmpC 36.

Kirsty Hilford was employed as a part-time learning assistant at Whangārei Boys High School, but left after a pay dispute.

On 17 June 2022, Hilford filed witness statements supporting a personal grievance that is still pending.

Annexed to those statements were documents describing the personal circumstances of certain students at the school. This triggered an issue of confidentiality and a query about whether the documents were appropriately in Hilford’s possession since, as a former employee, she had no legitimate reason to retain them. The Employment Relations Authority (ERA) ordered the documents’ destruction, stating compliance must be immediate.

Hilford brought a novo challenge to the Employment Court about the correctness of the ERA’s order, specifically as it related to three documents she held.

She said the destruction order, rather than allowing the redaction of identifying details , was a breach of her right to natural justice under ss 157(2)(a) and 173(1) of the Employment Relations Act 2000 and a breach of her right to justice under s 27 of the New Zealand Bill of Rights Act 1990.

She said the evidence in question was critical to other personal grievances that were before the ERA.

The court overturned the ERA’s ruling and directed that all students’ names should be redacted in any documents placed before the ERA.

For documents placed before the ERA in connection with Hilford’s pending dismissal grievance, the court said once a determination on that matter was issued, and if no challenge was brought by either party, the ERA could then consider the issue of destruction after hearing from the parties.

Applicable principles: whether Hilford was entitled to hold documents containing student information despite no longer employed by Whangārei Boys’ High School – whether Hilford’s right to natural justice was breached through the order.

Held:  The defendant’s application for a sanction was dismissed.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee. 

Hilford v BoT of Whangarei Boys High School [2023] NZEmpC 36