Shania Mackey v Shearing NZ Limited [2026] NZERA 146

This is a settlement enforcement case. The parties settled a personal grievance at mediation and the mediator certified the settlement under s 149 of the Employment Relations Act 2000. After allegations of a confidentiality breach, the employer withheld settlement payments and a certificate of service. The Authority held the settlement could not be cancelled and ordered compliance, with the penalty issue adjourned. The full determination is embedded at the end of this page.

Background

Ms Mackey worked for Shearing NZ from November 2023. Her employment ended in September 2024 and a Personal Grievance (PG) was raised on her behalf. The parties attended mediation on 4 March 2025 and resolved matters the same day. A Ministry of Business, Innovation and Employment mediator certified the record of settlement under s 149.

A s 149 certification gives the settlement finality. The terms become final and binding and can only be brought before the Authority for enforcement.

The settlement terms that mattered

The Authority recorded only the clauses needed to determine the enforcement dispute (the rest of the settlement remained confidential). The key terms were:

• Confidentiality: the terms of settlement and all matters discussed in mediation were to remain confidential (so far as the law allows).
• Payment to Ms Mackey: $3,000 under s 123(1)(c)(i), payable within 14 days by direct credit.
• Payment to the employee representative: $3,500 plus GST payable to the employee's representative within 14 days of receipt of an invoice.
• Certificate of service: to be provided within 14 days, stating the employment ended by resignation and recording roles/duties and duration.

Why Shearing NZ withheld compliance

Shearing NZ accepted it did not make the payments or provide the certificate within the agreed timeframes. It made a deliberate decision not to comply. The managing director said he did so after hearing allegations that Ms Mackey had disclosed the settlement to her friend (and later, after Ms Mackey's Authority statement, by relying on her admission that she told her partner).

Shearing NZ argued, in substance, that Ms Mackey's breach meant the settlement was "cancelled" and Shearing NZ no longer had to perform. It also sought penalties against Ms Mackey and against the employee representative entity (Sacked Kiwi Limited), alleging the advocate aided, abetted and procured a breach of confidentiality.

What the Authority decided

1) Shearing NZ could not cancel the settlement

The Authority held that mediator certification under s 149 makes settlement terms final and binding. The terms cannot be cancelled under ss 36 to 40 of the Contract and Commercial Law Act 2017. The remedy for repudiation or non-performance of a s 149 settlement is compliance (s 151), and penalties may be imposed for breach of settlement terms via s 149(4).

Even if Ms Mackey breached confidentiality, that did not extinguish Shearing NZ's obligations under clauses 2, 3 and 4. The Authority ordered Shearing NZ to comply.

2) Confidentiality: what breaches were proved

The Authority explained that s 148 makes mediation communications inadmissible, so evidence about what was said in mediation had to be put to one side. The confidentiality issue therefore turned on what could be proved from admissible evidence outside of mediation.

The Authority found Ms Mackey breached confidentiality on one occasion by telling her partner about the settlement. However, the Authority was not able to determine whether Ms Mackey told her friend (Ms Smith) about the settlement, because the evidence was in direct conflict and the Authority could not be satisfied one account was more reliable than the other.

3) Penalties

No penalty was imposed against Ms Mackey for telling her partner. The Authority considered the context, the equity and good conscience jurisdiction, and concluded a penalty was not appropriate.

No penalty was imposed against the advocate entity (Sacked Kiwi Limited) or the advocate witness. The Authority found there was no evidence they aided or abetted Ms Mackey's breach.

Shearing NZ's breach was intentional. However, because a compliance order was made, the Authority used s 138(5) to adjourn the proceeding without imposing a penalty immediately, to allow compliance first. The penalty issue against Shearing NZ was adjourned for further submissions after the 28 day compliance period.

Why this case matters

• s 149 settlements are final: a party cannot unilaterally decide the settlement is "cancelled" and withhold performance. The remedy is compliance through the Authority.
• Mediation evidence limits are real: s 148 confidentiality means what was said in mediation generally cannot be used later as evidence.
• Confidentiality clauses still bite: even informal sharing can be a breach. Parties should be careful and clarify any intended exceptions before signing.
• Penalty timing: where compliance is ordered, the Authority can adjourn penalties under s 138(5) to allow compliance first.
• Advocate liability needs proof: aiding and abetting allegations require evidence, not assumptions.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.