New Zealand Court Orders Facebook Disclosure To Employer

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#875629 12-Aug-2013 09:49

ubergeeknz:
keewee01: Sick Leave is not a right, it is a privilege

No, it is a right in this country.

http://www.dol.govt.nz/infozone/businessessentials/basics/leave/sick-leave.asp

I don't think Air New Zealand have acted within the law. Unless they have some kind of evidence she was not taking it appropriately, to care for her sister, they should not be allowed to do this.

Section 68 Holidays act does not specify the form in which proof of sickness should take, it does say "may include a certificate from a medical practitioner that—" therefore other proof is not excluded However it does state this under 68(4) (b) "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer.", that does make AirNZ request cloudy, but is it the Authority making the request or AirNZ?

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#875631 12-Aug-2013 09:50

Barbara Streisand effect anyone?

As long as they don't check my Geekzone posts I will be sweet!

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#875639 12-Aug-2013 09:59

KiwiNZ: However it does state this under 68(4) (b) "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer.", that does make AirNZ request cloudy, but is it the Authority making the request or AirNZ?

Believe you'll find this means the employer cannot stipulate which medical professional(s) the certificate must be from, i.e. the employer cannot say "We will only accept medical certificates from ABC Medial Centre". It does not mean that they cannot require proof.

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#875644 12-Aug-2013 10:05

Inphinity:
KiwiNZ: However it does state this under 68(4) (b) "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer.", that does make AirNZ request cloudy, but is it the Authority making the request or AirNZ?

Believe you'll find this means the employer cannot stipulate which medical professional(s) the certificate must be from, i.e. the employer cannot say "We will only accept medical certificates from ABC Medial Centre". It does not mean that they cannot require proof.

The act is not specific in 68 (4) (b), it states "person" not Medical Practitioner.

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#875648 12-Aug-2013 10:11

KiwiNZ:
Inphinity:
KiwiNZ: However it does state this under 68(4) (b) "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer.", that does make AirNZ request cloudy, but is it the Authority making the request or AirNZ?

Believe you'll find this means the employer cannot stipulate which medical professional(s) the certificate must be from, i.e. the employer cannot say "We will only accept medical certificates from ABC Medial Centre". It does not mean that they cannot require proof.

The act is not specific in 68 (4) (b), it states "person" not Medical Practitioner.

68(3) For the purposes of this section, proof of sickness or injury may include a certificate from a medical practitioner that—

68(5) In this section, medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine.

So, the employer may, if they choose, require a medical certificate, which under the act must be from a health practitioner deemed to be registered with the medical council. But the employer may NOT specify *which* practitioner it has to be from - they simply must be registered. It does not mean you can get Uncle Toby to write you a sick note (unless of course Uncle Toby is a registered health practitioner).

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#875656 12-Aug-2013 10:20

Klipspringer: But there are times when an employer has the right to employee private information. Ie. Personal phone calls, personal web browsing activity etc when on company time and when its using company resources. Its even stipulated in most employment contracts these days.

But she isn't using company resources. For example, my employer couldn't compel me to turn over my personal mobile phone records for calls I made on company time. That's my business. They could however check the records of calls I made on my work phones, or my use of the laptop they have issued me.

Just becuase you are on 'company time' doesn't mean your employer has the right to any and all information about your life during those hours. I could also contest that sick leave isn't really 'company time'. Sure, they are paying you, but they are paying you becuase they are required to give you time OFF work if you are sick.

While it is true that some people can and do abuse the system, there has to be a balance to people right to privacy and the employers right not to be taken for a ride. There are several protections in place already for the employer:
1) The number of annual sick days is limited (I think it is 6?).
2) The employer can ask the person to supply a medical certificate if they have reason to suspect the person was not genuinely sick. It is up to the medical professional to determine if they agree that person should need some time of work, and the reason for it should be private between patient and doctor.
3) If the employer has evidence that someone was not sick (Eg. someone saw them post of Facebook) then they can use that as evidence. If they just 'heard' that someone posted on Facebook, that is hearsay as should be treated as such. If that person wishes to provide their Facebook page then they are free to do so, but they should not be compelled to do so by an authority such as the ERA.

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#875658 12-Aug-2013 10:22

Inphinity:
KiwiNZ:
Inphinity:
KiwiNZ: However it does state this under 68(4) (b) "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer.", that does make AirNZ request cloudy, but is it the Authority making the request or AirNZ?

Believe you'll find this means the employer cannot stipulate which medical professional(s) the certificate must be from, i.e. the employer cannot say "We will only accept medical certificates from ABC Medial Centre". It does not mean that they cannot require proof.

The act is not specific in 68 (4) (b), it states "person" not Medical Practitioner.

68(3) For the purposes of this section, proof of sickness or injury may include a certificate from a medical practitioner that—

68(5) In this section, medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine.

So, the employer may, if they choose, require a medical certificate, which under the act must be from a health practitioner deemed to be registered with the medical council. But the employer may NOT specify *which* practitioner it has to be from - they simply must be registered. It does not mean you can get Uncle Toby to write you a sick note (unless of course Uncle Toby is a registered health practitioner).

Again the act does not state " may NOT specify *which* practitioner ", it does state "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer."

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#875665 12-Aug-2013 10:30

KiwiNZ:
Again the act does not state " may NOT specify *which* practitioner ", it does state "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer."

You're ignoring the fact that 68(3) allows the employer to require a medical certificate, which must be issued by a health practitioner. You can't pick and choose which sections of the act you like or don't like.

Once it has been established that an employer has requested a medical certificate as proof of sickness or injury (which an employer does not have to do if they choose not to), it is entirely up to the employee which health practitioner they receive said certificate from. But a medical certificate, to be valid under the Holidays Act, must be issued by a registered health practitioner as above.

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#875667 12-Aug-2013 10:35

Thing is, sick leave can also be used to care for sick family members.

So if she can prove her sister was unwell, and she spent at least part of the day with her sister, then she was entitled to sick leave. There shouldn't be any more to it than that. Asking for facebook and/or bank statements is just ridiculous IMO.

MikeB4

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#875678 12-Aug-2013 10:47

Inphinity:
KiwiNZ:
Again the act does not state " may NOT specify *which* practitioner ", it does state "subsection (1) or subsection (1A) does not give the employer the right to require the employee to obtain the proof from a person specified by the employer."

You're ignoring the fact that 68(3) allows the employer to require a medical certificate, which must be issued by a health practitioner. You can't pick and choose which sections of the act you like or don't like.

Once it has been established that an employer has requested a medical certificate as proof of sickness or injury (which an employer does not have to do if they choose not to), it is entirely up to the employee which health practitioner they receive said certificate from. But a medical certificate, to be valid under the Holidays Act, must be issued by a registered health practitioner as above.

Not ignoring it, it is a separate section to the act, Section 68 (4) (b) does not make "and" statements or "subject to" or "notwithstanding" statements to section 68(3). Therefore it is not definitive that the reference to "person" is a Medical Practitioner as defined to 68(5) it makes no mention or link to 68(5).

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#875695 12-Aug-2013 10:57

ajobbins:
Klipspringer: But there are times when an employer has the right to employee private information. Ie. Personal phone calls, personal web browsing activity etc when on company time and when its using company resources. Its even stipulated in most employment contracts these days.

But she isn't using company resources. For example, my employer couldn't compel me to turn over my personal mobile phone records for calls I made on company time. That's my business. They could however check the records of calls I made on my work phones, or my use of the laptop they have issued me.

Just becuase you are on 'company time' doesn't mean your employer has the right to any and all information about your life during those hours. I could also contest that sick leave isn't really 'company time'. Sure, they are paying you, but they are paying you becuase they are required to give you time OFF work if you are sick.

While it is true that some people can and do abuse the system, there has to be a balance to people right to privacy and the employers right not to be taken for a ride. There are several protections in place already for the employer:
1) The number of annual sick days is limited (I think it is 6?).
2) The employer can ask the person to supply a medical certificate if they have reason to suspect the person was not genuinely sick. It is up to the medical professional to determine if they agree that person should need some time of work, and the reason for it should be private between patient and doctor.
3) If the employer has evidence that someone was not sick (Eg. someone saw them post of Facebook) then they can use that as evidence. If they just 'heard' that someone posted on Facebook, that is hearsay as should be treated as such. If that person wishes to provide their Facebook page then they are free to do so, but they should not be compelled to do so by an authority such as the ERA.

I think you misunderstanding me.

I am just supplying examples as to when a company could be in their full rights to obtain private information. Not at all saying its the case here.

Lets put a spanner in the works. Lets say this women used her work supplied mobile phone to update her facebook. Company has full rights to that information and have full rights to snoop her data connection and record all phone calls too. That data (just like the phone and mobile contract) belongs to the company - Not the employee.

Many companies use web monitoring services these days which report website time and activity to IT departments. Some even go as far as to monitor all wifi connections. (ie personal mobiles/tablets activity on company wifi networks) These reports can be obtained by managers and used as evidence against employees. I have seen a few cases over the years where such data has been used as evidence to issue warnings against employees.

For the record, some of the information collected:

- Time on websites
- Websites visited
- Keyboard keystrokes.

Technofreak

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#875700 12-Aug-2013 11:07

t very much sounds like Gina Kensington was caught out - otherwise the handing over of the records would not incriminate her and she'd be in the clear.

I agree I think she was caught out and probably big time and not the first time she had pulled this stunt. I wouldn't imagine most employers would sack anyone for a first offence for something like this.

However I disagree that refusing to hand over records is an indication of guilt. There can be a multitude of reasons why a person may want to withhold details, some have already been mentioned.

Facebook posts like most stuff on the internet need to be regarded as public information, don't put stuff there you don't want everyone to see. You might have it only accessible to friends but what stops a friend re-posting it in a public fashion? Just like emails, how many private emails have ended up out in public?

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#875719 12-Aug-2013 11:19

But she isn't using company resources. For example, my employer couldn't compel me to turn over my personal mobile phone records for calls I made on company time. That's my business.

Yes, it's your business, BUT, you're being paid to be at work, that's the companies business. You're not being paid to conduct your business in the companies time.

We all conduct personal business in the company time, it's hard not to from time to time, that's the way things are. Some of us probably conduct company business in our own time occasionally. A bit of swings and round-a-bouts.

Very few bosses would complain about the odd bit of personal business in company time, but when the personal business is impacting on the job you're being paid to do, then that's another thing. I can see a case being made for access to personal mobile phone records to prove what has been going on.

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keewee01

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#875735 12-Aug-2013 11:33

ubergeeknz: Thing is, sick leave can also be used to care for sick family members.

So if she can prove her sister was unwell, and she spent at least part of the day with her sister, then she was entitled to sick leave. There shouldn't be any more to it than that. Asking for facebook and/or bank statements is just ridiculous IMO.

If the Sick Leave applied for was a full day, then the expectation was that the full day (or pretty close to it) was spent with the sister (in this case it is 2 days) - whether required or not. If only part of the day was required (be it half-a-day, or three-quarters of a day), then the rest of the day should have been Annual Leave, otherwise she was abusing the Sick Leave entitlements. Most employers would be reasonably lenient with regards to this - so if you spent 6 or 7 hours with the sick family member (and then weren't required) then I would think an employer would not worry about the remainder. Similarly, I doubt the odd Facebook post during the day would raise alarm bells, but constant Facebooking the entire day (or 2 days in this case, if that is way happened) would.

In this case I suspect there is a lot more to it that we don't know - and ultimately none of us can make a call on it with the limited information released so far. Interestingly the Stuff article does not say outright that Air New Zealand's dismissal was upheld, but to me it is inferred.

But, generally, I think ERA is right to request that information if they think there is a valid case being made by the employer.

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#875774 12-Aug-2013 11:57

I want to know what they allege she did on her sick leave which lead to the abuse claim from Air NZ. I think this makes a big difference because if they allege she went to a movie with her sick relative and want bank statements to prove it then no, going to a movie is not that unreasonable. If they claim she flew to Wellington for the weekend for a food festival with her allegedly sick relative then I think that's fair she fronts up with the records as that is an unreasonable thing to do.

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