The Suppression of Evidence by the NZ Court System: Case Study Highmark v Watkins
In New Zealand Employment Law, Constructive Dismissal is defined under the Employment Relations Act 2000 as a situation where an employer's conduct is so deficient that an employee is left with no choice but to resign. Under Section 103(1)(a), this is a personal grievance where the resignation is not a free choice. It often involves a "resign or be fired" ultimatum, a deliberate path of conduct designed to force an exit, or a fundamental breach of the duty of good faith.
While the law provides these protections on paper, their effectiveness depends entirely on the court’s willingness to examine the facts. When the judiciary overlooks the primary documents that prove such an ultimatum was issued, the legal process fails the victim. In this case, the transition from a workplace dispute to a high-court battle hinges on one specific document that the system has refused to reconcile with the truth.
Case Study: The Key Evidence — Exhibit J
For the avoidance of any doubt, the key evidence provided to the Courts is pictured below. It clearly demonstrates the intent of the employer, showing that if the employee did not agree to the terms, they would face a disciplinary meeting that had already been pre-determined to result in dismissal.
Exhibit J is a formal communication from Highmark’s legal counsel dated November 6, 2017. It proves that the "disciplinary process" was not a search for the truth, but a pre-meditated ultimatum: Resign and pay, or face a disciplinary meeting that had already been decided. This ultimatum was issued after the employee had already raised grievances regarding the company's failure to protect staff from security breaches, including being bombarded with offensive material via unsecure, free Philippines-based servers. When a court ignores this context and allows a bankruptcy to proceed based on a debt derived from such a breach of faith, it endorses a miscarriage of justice.
Chronology of Evidence: The Paper Trail
The following timeline shows how many times the New Zealand courts were handed this key evidence and failed to acknowledge it:
| Date | Filing / Action | Court Jurisdiction | Outcome |
| May 2020 | Statement of Problem | Employment Relations Authority | Refused to hear the claim as "out of time," ignoring the bad-faith ultimatum in Exhibit J. |
| July 22, 2024 | Sworn Affidavit | High Court (Auckland) | Filed in opposition to bankruptcy. The court acknowledged the evidence existed but proceeded with the order regardless. |
| Sept 29, 2024 | Notice of Opposition | High Court (Insolvency) | Specifically filed to halt the Oct 3 hearing, arguing Exhibit J proved the debt was based on an illegal employment breach. |
| March 2026 | Recall Application | Court of Appeal | Submitted to correct the record after the court claimed they "never received" the evidence that was clearly in the file. |
A Constitutional Breach
Under Section 27 of the New Zealand Bill of Rights Act 1990, every New Zealander has the right to the observance of the principles of natural justice. Furthermore, the Evidence Act 2006 mandates that all relevant evidence must be admitted to ensure a "just determination."
When the Employment Court and the High Court "tag-team" a defendant—where one court refuses to look at the evidence and the second court claims it must follow the first court's flawed ruling—the system breaks. The High Court’s refusal to stay bankruptcy proceedings in the face of this key evidence is a direct violation of the right to a fair trial.
Formal Correspondence
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