Dratsab: A bunch of people here clearly know more than him, why would he bother posting anymore?
Well because he has been to university and has a degree whereas others of us are uneducated. Posters on this forum should have the benefit of an educated persons opinion.
That being said, heres another uneducated observation. AirNZ already know about trawling for information. In a recent AirNZ Employment Court decision the judge observed “party may not seek discovery of a document in order to find out whether the document may be relevant. A general trawl through the other party’s documentation is not permitted under the rules.”. In that case the Judge suggested he alone look at the documentation to decide its application. So I’m still having difficulty on figuring out how the bank records are relevant, why the ERA Member allowed Air NZ access to them and why the Member, if nothing else didn’t decide to look at the information herself.
Perhaps also worth observing is that this particular Member already understands that a Facebook “friend” is not really a Friend. Strikes me that this particular member is setting out to be the Facebook employment law go-to person.
And one final note, The Member (Tania Tetiaha) hit controversy when she was appointed to the ERA last year. She is the wife of District Court Judge, Greg Davis, and she has a family law background in Kerirkeri. She does not have an employment law or industrial relations background. So what makes her qualified? Yet despite this, she is now being allowed to open the door which gives employers the opportunity to gain access to employee’s personal information. Geez, even the police and GCSB require a warrant!
This is an interesting case. Just to correct an earlier assertion, all bank statements will contain a time stamp for a transaction. If not actually printed to paper it is stored by the bank.
So, Air NZ have been found to have unjustifiably dismissed Kensington. The only reference to Facebook was her taking photos on a day she was on approved leave. No mention of looking at bank account details.
Facebook postings on an approved leave day have no place in an ERA investigation of this nature. I am at a total loss how the Authority could request this information and not use it. Why would you ask for bank account details and not make reference to their contents in coming to a decision?
The Authority reckons Kensington substantially contributed to her own demise. Blowed if I can see it – she was up front on the day she was already on approved leave. Early in the day she asked her boss to look after a sick sister. There was a follow up call and she even went to her union for advice. This is not a situation where she had a day off and then retrospectively tried to concoct a scenario to suit her leave requests.
There appears to me to be ample evidence that sick leave was sought in order for her to look after a “sick” sister. There is not a dot of evidence indicating that she in fact did not look after her sister.
There is nothing in todays ERA decision that sways in my view that the ERA was wrong to ask for the Facebook and bank account details.
The article on the Herald sheds a lot more light into the background of the incident.
"Concerns were raised after photos of Ms Kensington at Auckland's Takapuna beach appeared online at the time she was trying to organise leave to care for her sister."
So, it seems (based on the information in that article) that Air NZ did not in fact have evidence to show that the employee was actually misusing the sick day, but rather were 'suspicious' she might be as it was immediately following.
If this is true, there is absolutely not way that Facebook records for the Monday should have to be handed over, nor bank account details. If she, for example, used PayWave to buy an Ice Cream at the beach on Sunday, but the transaction didn't post on her bank statement until the following day as it was processed offline (I see this often when I use my MasterCard PayPass) it might have looked very bad for her.
It seems like she has complied with the request to hand over the Facebook and Bank records anyway, which seems to have shown nothing that incriminated her - which, to me, suggests that Air NZ very well may have been on a fishing expedition here.
Of course, we still don't know all of the full details and probably never will, so this is based only on what is in the article.
ajobbins: The article on the Herald sheds a lot more light into the background of the incident.
"Concerns were raised after photos of Ms Kensington at Auckland's Takapuna beach appeared online at the time she was trying to organise leave to care for her sister."
So, it seems (based on the information in that article) that Air NZ did not in fact have evidence to show that the employee was actually misusing the sick day, but rather were 'suspicious' she might be as it was immediately following.
If this is true, there is absolutely not way that Facebook records for the Monday should have to be handed over, nor bank account details. If she, for example, used PayWave to buy an Ice Cream at the beach on Sunday, but the transaction didn't post on her bank statement until the following day as it was processed offline (I see this often when I use my MasterCard PayPass) it might have looked very bad for her.
It seems like she has complied with the request to hand over the Facebook and Bank records anyway, which seems to have shown nothing that incriminated her - which, to me, suggests that Air NZ very well may have been on a fishing expedition here.
Of course, we still don't know all of the full details and probably never will, so this is based only on what is in the article.
Add to that Kensingtons Brother in law said in evidence she was at her sister’s house on 9 March and the Authority believed him. So if the Authority knows the sister was " sick". Kensington had applied for leave the prior day, and on the advice of her Union informed her employer the day before taking leave that she wouldn’t be in why would you need Facebook and Bank Account records.
There is medical evidence and evidence the husband and mother couldn’t look after the sick sister. The Authority has decided Kensington is to be believed – yet goes on to say “” Her behavior was both causative and blameworthy “ WTF?
So now the Authority is damaging Kensington’s reputation despite contrary evidence. Is this one Authority Member who is simply out of her depth?
The authority lists the contributions by Ms Kensington to the situation at [38].
It is simply a finding that there is fault on both sides, and that the financial compensation will be reduced from what would have been given to a faultless empoyee.
I can't get why you think her bank records and facebook records weren't potentially relevant. Ultimately they may not have been terribly conclusive, but they might have been if they showed something different.
Remember the records in the first instance weren't to be shown to Air NZ, only their lawyer and the authority.
nickrout: The authority lists the contributions by Ms Kensington to the situation at [38].
It is simply a finding that there is fault on both sides, and that the financial compensation will be reduced from what would have been given to a faultless empoyee.
I can't get why you think her bank records and facebook records weren't potentially relevant. Ultimately they may not have been terribly conclusive, but they might have been if they showed something different.
Remember the records in the first instance weren't to be shown to Air NZ, only their lawyer and the authority.
So please explain it to me cos I’m far too dense. - She endeavored to get leave while already on an approved day off. She was upfront before the event as far as I can see. - She sent a text that indicated her sister wasn’t dying but still ill. So she gave a clear indication illness was involved before the event. - She didn’t contact her Manager again to “avoid conflict” Fair enough, good faith and all. It wasn’t an attempt to avoid being caught out and she had already been in touch with her Manager. Why did she feel there was a confrontational situation? - She contacted Crew Control on her approved day off and let them know she wouldn’t be in the next day. So AirNZ still had advance notice of absence. How many employees do you know who only ring sometime into a shift – if they ring in at all! - -She kept in communication with AirNZ and called them on the morning of her absence and prior to the beginning of her shift.
So what is it about these behaviors that contributed to her being fired?
What does Facebook and Bank Account records add to this?. Nothign -which is why I see its a problem.
Remember the records in the first instance weren't to be shown to Air NZ, only their lawyer and the authority.
As I recall the records were to be made available to Counsel and the ERA with no suppression conditions attached. If you trust solcitors not to divulge you are for more trusting than me.
nickrout: I can't get why you think her bank records and facebook records weren't potentially relevant. Ultimately they may not have been terribly conclusive, but they might have been if they showed something different.
Perhaps my understanding of the authority and the purpose of the hearing is not correct (And if I so, I appreciate any clarification), but is the point of this ERA hearing not to determine whether Air New Zealand were justified in dismissing the employee at the time, based on the evidence they had at the time?
The ERA is not there to prove or disprove if the employee abused their entitlement to leave, it's job is to ensure that Air New Zealand made the right call. Introducing new evidence (such as Facebook or bank records) may change what WOULD have happened had they had that at the time the decision to dismiss was made, but again, that's not what's being called into question.
In terms of contributory factors which you mentioned previously, again, I can't see how they can be relevant after the fact. If there were factors that contributed to Air NZs decision to dismiss, these must have been known at the time, and shouldn't be able to be retrospectively discovered.
I would also point out that neither bank statements or Facebook records are particularly reliable evidence (short of bringing in forensic computer specialists and/or obtaining more information from the organisations themselves through a warrant). Particularly with Facebook, it's very easy to remove something you don't want to show. (Perhaps the employee did this and part of the reason for the outcome?)
"The fact Ms Kensington was dismissed is accepted. The onus falls upon Air NZ to justify whether its actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. In applying this test, the Authority must consider the matters set out in s103A."
nickrout: I can't get why you think her bank records and facebook records weren't potentially relevant. Ultimately they may not have been terribly conclusive, but they might have been if they showed something different.
Perhaps my understanding of the authority and the purpose of the hearing is not correct (And if I so, I appreciate any clarification), but is the point of this ERA hearing not to determine whether Air New Zealand were justified in dismissing the employee at the time, based on the evidence they had at the time?
Nicroute can probably provide a much more eloquent explanation than I can – but the short answer, which has been covered in earlier posts is that extra evidence can be introduced later in the piece.
Essentially the ERA has three decisions to make.
Firstly was the employer justified in coming to the decision they did.
If the answer is No, then the next question is: did the employee contribute to the situation. And if so by what extent. For example the employee might have been half to blame so 50% contribution.
If the answer is Yes then the ERA finally decide the remedies. These might be reinstatement, lost wages and compo. Reduced by the amount of contribution
Later evidence can be introduced to help in arriving at the second decision which then has a bearing on the third decision.
However lets go back a step. At the initial telephone conference Kensington would have said through her counsel, “I am going to introduce evidence from my phone records, my sick sister, her midwife, her husband and my mum”. It seems unlikely she would have volunteered the photos posted on Facebook on 8 March since this hardly seemed relevant to an activity that occurred the day later. As it turned out the facebook photos were introduced but all this proved was that Kensington was involved in a legitimate activity in her own time. Strikes me that there is loads of information there that will probably point to Kensington telling the truth. What chance is there of getting all these people to lie? So the previous “veracity” test argument fails at this hurdle. The Facebook and bank account details were not going to add anything that may impact the issues.
Air NZ would have said “we will introduce her manager, different operational staff, performance appraisals and absenteeism records. Oh – and we think a peek at extra facebook/ bank account records might prove she was up to something on the 9th.
So to the solicitors out there, how has requiring the disclosure of facebook and bank account details added to this process? And if it has added to the process why is it that the ERA is still not making a decision on contribution and remedies.
The determination of authority is interesting. Finally we have some idea what's going on. Kensington seems to me to have worded herself poorly when seeking leave, but I hardly see how that amounts to her being blameworthy for her situation. Unless disagreeing with her boss and taking her legal entitlements is blame worthy.
lets see what happens after "... a further half day hearing and the attendance of Ms Jeffries and Mr Morpeth, either in person or by telephone."
Kind of an aside but she was so sick she needed a support person but didn't go to hospital, a doctor or mid wife and the husband of the new baby didn't want to look after her either (wtf?) as he just went to work (he refused to be interviewed by Air NZ)... What a mess.
sdav: Kind of an aside but she was so sick she needed a support person but didn't go to hospital, a doctor or mid wife and the husband of the new baby didn't want to look after her either (wtf?) as he just went to work (he refused to be interviewed by Air NZ)... What a mess.
Actually a colleuge of her mdiwife saw her on the 8th of march. Being weak and needing help around the house isn't the same thing as needing to be in hospital. Better to heal at home where mother and baby can heal and relax better. Also better not to take up a hospital bed that someone else might need more. To quote: "[40] ... Ms Jeffries medical opinion was Mrs Morpeth needed to heal possibly from on-going ligamental painand/or a complicated and traumatic labour and birth. She concluded [in] my opinion,it was in Vania’s best interest to have her sister with her in this time of need. ... ".
Her husband 'had to work', the facts seem a little vague as to why. But he had just had several weeks paternity leave. And he didn't refuse to be interviewed, he couldn't make a face to face interview because he had no leave he could take. But he tried to get a phone interview, and Air NZ refused. "[42] It was common ground Mr Morpeth had exhausted his paternity leave. At hearing neither party knew whether Mr Morpeth had any available leave on 8 or 9March 2013. He offered a telephone interview which Air NZ declined. ... "
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