More and more frequently, people are looking to resolve their disputes without resorting to time-consuming, stressful and expensive formal litigation. Employment disputes are no exception, and have a high rate of out-of-court settlement.
Morgan v Whanganui College Board of Trustees
Mr Morgan was a teacher at Wanganui Collegiate School. When breaking up a fight between two students he placed one of them in a headlock. During the disciplinary process that ensued, Mr Morgan admitted that his actions were serious misconduct, but thought that they were at the lower end of seriousness.
The Court of Appeal dismissed all three arguments. Such confidential communications are available if “there exists a serious employment relationship problem that could give rise to litigation the result of which might be affected by an admission made during negotiations”. Naturally this includes situations where misconduct or serious misconduct has been admitted, but disciplinary action not yet decided. The Court also used a contractual basis to support this decision – if the parties agree that the conversation is to be confidential, then that agreement cannot later be withdrawn.
Using without prejudice negotiation
Jackson Russell’s Employment Team regularly uses confidential communications (along with other dispute resolution tools) to swiftly and cost-effectively solve problems between employers and employees without going to court. For employers, it can be an effective way of negotiating the exit of a troublesome employee and avoiding a potential personal grievance. For an employee it can achieve a settlement or reinstatement where an employer has breached their duties to you.
The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.
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Glenn Finnigan, PARTNER
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