New Zealand Court Orders Facebook Disclosure To Employer

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#878106 14-Aug-2013 13:51

ajobbins:
Klipspringer:Not many employers would argue a medical certificate unless of course its pretty easy to tell its fake.

An "easily obtained" medical certificate is still valid. But in most cases it still requires a visit to the GP to get one.

Yeah, I meant more that you could go to a doctor, fake a headache, or depression etc and obtain a legitimate certificate, but under false pretences.

I agree with what you saying. But in my experience most people won't go to that extreme (actually go an see a doctor). They just call in sick (runny nose/got the flu), and hardly ever is a medical certificate provided, or even asked for by the employer. Most people don't actually realize that the employer has the right to see a medical certificate, in most cases if it goes pear shaped, well then the employee is already in the wrong. They just don't realize it because they are unfamiliar with the law.

Out of all the times I have taken "sick leave" here in NZ I have never had to prove I was sick and supply a certificate. If I was asked for one after I returned to work, I would in many cases not have been able to produce one.

ajobbins

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#878109 14-Aug-2013 14:01

nickrout: Actually even if the employer got the procedure wrong, if they were substantively justified it can reduce the damages payable - s124 of the ERA "Where the Authority or the court determines that an employee has a personal grievance, the Authority or the court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance,—(a) consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance; and(b) if those actions so require, reduce the remedies that would otherwise have been awarded accordingly."

So yes, what she did during her time off will be relevant.

I am a lawyer, but do not claim to be an expert :)

It's a tough situation to analyse because there is so much information missing from what is reported.

I see your point entirely, and my interpretation is based mostly on what I have heard/read happened in other ERA cases.

I would have throught that the 'extent to which the actions of the employee contributed towards the situation' would apply more to the process that led to dismissal, rather than the alleged conduct itself (plus known facts). Eg. If she had refused to co-operate during an investigation into alledged conduct then that would be a contributory factor.

There is a big difference between being asked to co-operate and refusing vs. not being asked to co-operate but assumed guilty. (We can't tell which it was in this case tho, we simply don't have enough information).

What if Air NZ was wrong tho? (Genuine question) Does the law compel the employee to disprove an allegation against herself? Assuming for a moment she was 100% innocent, is it not an invasion of her privacy to have to hand over personal and financial records when she had done nothing wrong?

In any case, I still think that an ORDER to release those Facebook and financial records to the employer is a step too far. Should the appropriate action of the authority not be to throw her case out if she was unwilling to provide those voluntarily?

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ajobbins

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#878110 14-Aug-2013 14:05

Klipspringer: I agree with what you saying.

I think there is a bit of violent agreement in this thread :)

But in my experience most people won't go to that extreme (actually go an see a doctor).

Yeah I think this is largely true, but more so to the bulk of us who use sick leave honestly and for the genuine purposes it was intended.

I think those who are of a moral persuasion that want to scam the system are more willing and likely to go to greater lengths to 'legitimise' their absence.

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PaulBags

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#878262 14-Aug-2013 18:08

Post gotten eaten by a grue and I'm lazy, to paraphrase:
Medical certs are required only after 3 days absence, if less the employer has to notify the employee that they require it, and the employer has to pay for it. Although absence includes rostered days off, not just sick days applied for.
I thought medical certs could say 'light duty', 'no heavy lifting', etc. It doesn't have to be just 'no work', and then you get out of a desk job for a sprained ankle.

Besides I love telling my boss what's wrong with me. Last time I had bad diarrhoea ringing up and loudly declaring so to my boss was the highlight of my day. I don't get to do that anymore, at my current job you just leave a message with the receptionist. Last time I just told them "hi it's PaulBags, I feel like *&^*, I won't be coming to work today". Chinese whispers turned it into "Hi it's PaulBags, I don't feel like coming into work today". Luckily my boss is pretty cool. I suppose I shouldn't swear to my co-workers :o.

minimoke

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#878772 15-Aug-2013 13:29

I would have throught that the 'extent to which the actions of the employee contributed towards the situation' would apply more to the process that led to dismissal, rather than the alleged conduct itself (plus known facts). Eg. If she had refused to co-operate during an investigation into alledged conduct then that would be a contributory factor.

There is a big difference between being asked to co-operate and refusing vs. not being asked to co-operate but assumed guilty. (We can't tell which it was in this case tho, we simply don't have enough information).

When you are in front of the ERA (which is essentially an investigative body rather than a “court”) your contributory conduct will be looked at. Contributory conduct is what you did that led to your “offence” being put to you by your employer, duly investigated and a decision of termination made from there. So if you are fired for misusing sick leave contributory conduct might be evidence of misusing this entitlement and lying (while you took the sickie) to hide your tracks.

If you “throw a sickie” and then fired for taking a day off for which you are not entitled you have pretty much contributed 100% to your termination on the grounds of lost trust and confidence.

Contributory conduct works both ways. When it comes to the ERA deciding on the award they might say the Employer ran a dodgy, (poor conduct) process and you are entitled to $10,000 compo. But if you contributed 100% to your down fall you will end up with nothing.

You are also required to manage your relationship based on “good faith”. This extends to being helpful during investigations being conducted by your employer. If you pervert or frustrate that process your employment may be terminated on the basis of a failure of “good faith”. Good faith doesn’t apply after termination so you can do what you like – but this may not be helpful when you get to mediation. And mediation is always a step before turning up in front of the ERA.

An employer needs to pick an offence and terminate on the basis of that offence. You can’t fire someone for failing to cooperate if you are investigating a sickie.

What if Air NZ was wrong tho? (Genuine question) Does the law compel the employee to disprove an allegation against herself?

yes.

Assuming for a moment she was 100% innocent, is it not an invasion of her privacy to have to hand over personal and financial records when she had done nothing wrong?

Absolutely. Ordinarily it is for the "prosecution" to come up with the evidence. The decision maker needs to weigh and balance the evidence of both sides before making a decision based. It is both a major breach of privacy and a step too far expecting a person to provide evidence that incriminates themselves. If this had not been in front of the ERA there would, arguably, be a Bill of Rights "right to Silence" for anyone accused of an offence. Also as I recall the ERA only needs to make a decision based on preference of truth of story. There isn't a "beyond reasonable doubt" (criminal) or "Balance of probabilities" (civil) threshold.

In any case, I still think that an ORDER to release those Facebook and financial records to the employer is a step too far. Should the appropriate action of the authority not be to throw her case out if she was unwilling to provide those voluntarily?

Agreed. But this is the problem with the Authority being an investigative body without strict rules of operation. It can ask for whatever it likes and the strict laws of evidence don’t apply. You can of course refuse and if it was me I'd try to run an argument based on privilege against self-incrimination. Probably wouldn't get far and to argue it you would need a good lawyer which costs lots especially if your employer is well armed with legal advisors.

PaulBags

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#878783 15-Aug-2013 13:37

minimoke: You are also required to manage your relationship based on “good faith”. This extends to being helpful during investigations being conducted by your employer. If you pervert or frustrate that process your employment may be terminated on the basis of a failure of “good faith”.

Good faith goes both ways however, and I wouldn't call being accused of something without any evidence good faith.

Klipspringer

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#878807 15-Aug-2013 13:56

PaulBags:
Medical certs are required only after 3 days absence, if less the employer has to notify the employee that they require it, and the employer has to pay for it.

Thats horribly incorrect. After April 1st 2011 an employer can ask for a certificate even on the first day even without having any reason to believe the illness is faked.

But it all depends on your employer. Most are just not that strict about it. But by law, your employer has full right to not grant you sick leave if you can't provide a medical certificate. And its not up to you employers to pay for that either.

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Kyanar

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#878878 15-Aug-2013 14:59

Klipspringer:
PaulBags:
Medical certs are required only after 3 days absence, if less the employer has to notify the employee that they require it, and the employer has to pay for it.

Thats horribly incorrect. After April 1st 2011 an employer can ask for a certificate even on the first day even without having any reason to believe the illness is faked.

But it all depends on your employer. Most are just not that strict about it. But by law, your employer has full right to not grant you sick leave if you can't provide a medical certificate. And its not up to you employers to pay for that either.

Actually, in some cases it is. The Holidays Act 2003, Section 68, Subsection 1A (under the same amendment that you referred to no less) states that where proof of sickness is requested within the first 3 days of sick leave, the employer must meet the employee's reasonable costs of obtaining that proof and must request the proof as early as possible (i.e. the employer can't ask for a medical certificate the day after a single day off, or demand the employee pay for it).

minimoke

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#878887 15-Aug-2013 15:14

PaulBags:
minimoke: You are also required to manage your relationship based on “good faith”. This extends to being helpful during investigations being conducted by your employer. If you pervert or frustrate that process your employment may be terminated on the basis of a failure of “good faith”.

Good faith goes both ways however, and I wouldn't call being accused of something without any evidence good faith.

Absolutely. I'm a little late to this thread so I apologize if the ground has already been covered.

I've now taken the opportunity to look at the Authority's decision and its a total load of cobblers and should be appealed. It is an extraordinarily dangerous one.

For a start it appears Air NZ has made a decision without the full weight of evidence behind it. ANZ is being allowed by the Authority to go on a fishing trip post decision and this is simply wrong. What is there to now stop employers from going off half cocked and then letting the ERA mop up the pieces by trolling for more evidence.

Secondly the Authority thinks that the Facebook page / bank account details will point to the employee’s truthfulness. If there is any question over her credibility it should be for Kensington to provide evidence that supports her position. Using Facebook, which surely has to be the largest repository of crap known to mankind, as a source to test ones honesty is just wrong. Gina Kensingtons evidence given to the ERA has to be sworn on oath – she ought not tell lies but there is little to stop her from doing so. But using Facebook as a test beggars belief.

Thirdly the ERA is basically saying employers are also able to test for veracity by asking employees for their facebook and bank records when an issue is being contested. No need for medical certificates – just bring us in a copy of your bank account! This would be laughable if it were not so tragic. It is bad enough employers are asking employees to piss in pots but bank account details is a step way too far.

Fourthly the Authority cites the Evidence Act as the basis for making this decision . The section mentioned covers evidence that is “offered” to assess veracity. There is nothing “offered” in this decision. It is ordered and taken and that is wrong.

Klipspringer

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#878896 15-Aug-2013 15:17

Kyanar:
Klipspringer:
PaulBags:
Medical certs are required only after 3 days absence, if less the employer has to notify the employee that they require it, and the employer has to pay for it.

Thats horribly incorrect. After April 1st 2011 an employer can ask for a certificate even on the first day even without having any reason to believe the illness is faked.

But it all depends on your employer. Most are just not that strict about it. But by law, your employer has full right to not grant you sick leave if you can't provide a medical certificate. And its not up to you employers to pay for that either.

Actually, in some cases it is. The Holidays Act 2003, Section 68, Subsection 1A (under the same amendment that you referred to no less) states that where proof of sickness is requested within the first 3 days of sick leave, the employer must meet the employee's reasonable costs of obtaining that proof and must request the proof as early as possible (i.e. the employer can't ask for a medical certificate the day after a single day off, or demand the employee pay for it).

I think you right. I'm confused now too.

Anyway here is the article where I read it a while back:

Workers who routinely pull 'sickies' may be dissuaded from doing so by employment law changes that come into effect tomorrow, an employment lawyer says. From tomorrow, employers will be able to request staff provide a medical certificate after only one day off work. Previously a worker had to have had three days off work before employees could be requested to prove they were sick. The law change is one of many made to the Holidays Act 2003 and the Employment Relations Act 2000 last year that will come into effect on April 1.

http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10716166

It seems this law has not been implemented yet. Not sure why? Because last I heard it was all going ahead so not sure what happened. Anyway apologies for any confusion.

Inphinity

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#878908 15-Aug-2013 15:27

Klipspringer: It seems this law has not been implemented yet. Not sure why? Because last I heard it was all going ahead so not sure what happened. Anyway apologies for any confusion.

It has been implemented. An employer may now require a medical certificate for an absence of less than 3 days, but as per holidays act 2003 section 68 (1a) the employer must inform the employee as early as possible that the proof is required; and agrees to meet the employee's reasonable expenses in obtaining the proof.

Prior to this change there was no precedent in the act for an employer to request a medical certificate for an absence of less than 3 days.

minimoke

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#878913 15-Aug-2013 15:35

Klipspringer:
Kyanar:
Klipspringer:
PaulBags:
Medical certs are required only after 3 days absence, if less the employer has to notify the employee that they require it, and the employer has to pay for it.

Thats horribly incorrect. After April 1st 2011 an employer can ask for a certificate even on the first day even without having any reason to believe the illness is faked.

But it all depends on your employer. Most are just not that strict about it. But by law, your employer has full right to not grant you sick leave if you can't provide a medical certificate. And its not up to you employers to pay for that either.

Actually, in some cases it is. The Holidays Act 2003, Section 68, Subsection 1A (under the same amendment that you referred to no less) states that where proof of sickness is requested within the first 3 days of sick leave, the employer must meet the employee's reasonable costs of obtaining that proof and must request the proof as early as possible (i.e. the employer can't ask for a medical certificate the day after a single day off, or demand the employee pay for it).

I think you right. I'm confused now too.

Anyway here is the article where I read it a while back:

Workers who routinely pull 'sickies' may be dissuaded from doing so by employment law changes that come into effect tomorrow, an employment lawyer says. From tomorrow, employers will be able to request staff provide a medical certificate after only one day off work. Previously a worker had to have had three days off work before employees could be requested to prove they were sick. The law change is one of many made to the Holidays Act 2003 and the Employment Relations Act 2000 last year that will come into effect on April 1.

http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10716166

It seems this law has not been implemented yet. Not sure why? Because last I heard it was all going ahead so not sure what happened. Anyway apologies for any confusion.

Its easy really.
The Holidays Amendment Act 2010 provided for a change that allows an employer to seek proof with the initial 3 day period of sickness and the employer has to meet the costs reasonably incurred by the employee. This change became effective 1 April 2011

nickrout

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#878936 15-Aug-2013 16:31

minimoke:
PaulBags:
minimoke: You are also required to manage your relationship based on “good faith”. This extends to being helpful during investigations being conducted by your employer. If you pervert or frustrate that process your employment may be terminated on the basis of a failure of “good faith”.

Good faith goes both ways however, and I wouldn't call being accused of something without any evidence good faith.

Absolutely. I'm a little late to this thread so I apologize if the ground has already been covered.

I've now taken the opportunity to look at the Authority's decision and its a total load of cobblers and should be appealed. It is an extraordinarily dangerous one.

Do you have a link to the decision?

sdav

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#878939 15-Aug-2013 16:36

nickrout:
minimoke:
PaulBags:
minimoke: You are also required to manage your relationship based on “good faith”. This extends to being helpful during investigations being conducted by your employer. If you pervert or frustrate that process your employment may be terminated on the basis of a failure of “good faith”.

Good faith goes both ways however, and I wouldn't call being accused of something without any evidence good faith.

Absolutely. I'm a little late to this thread so I apologize if the ground has already been covered.

I've now taken the opportunity to look at the Authority's decision and its a total load of cobblers and should be appealed. It is an extraordinarily dangerous one.

Do you have a link to the decision?

Yeah I can't find anything on a NZ website for the last 24 hours which mentions Gina Kensington. Either that or my search skills are rubbish!

ajobbins

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#878940 15-Aug-2013 16:36

minimoke:
Absolutely. I'm a little late to this thread so I apologize if the ground has already been covered.

I've now taken the opportunity to look at the Authority's decision and its a total load of cobblers and should be appealed. It is an extraordinarily dangerous one.

For a start it appears Air NZ has made a decision without the full weight of evidence behind it. ANZ is being allowed by the Authority to go on a fishing trip post decision and this is simply wrong. What is there to now stop employers from going off half cocked and then letting the ERA mop up the pieces by trolling for more evidence.

Secondly the Authority thinks that the Facebook page / bank account details will point to the employee’s truthfulness. If there is any question over her credibility it should be for Kensington to provide evidence that supports her position. Using Facebook, which surely has to be the largest repository of crap known to mankind, as a source to test ones honesty is just wrong. Gina Kensingtons evidence given to the ERA has to be sworn on oath – she ought not tell lies but there is little to stop her from doing so. But using Facebook as a test beggars belief.

Thirdly the ERA is basically saying employers are also able to test for veracity by asking employees for their facebook and bank records when an issue is being contested. No need for medical certificates – just bring us in a copy of your bank account! This would be laughable if it were not so tragic. It is bad enough employers are asking employees to piss in pots but bank account details is a step way too far.

Fourthly the Authority cites the Evidence Act as the basis for making this decision . The section mentioned covers evidence that is “offered” to assess veracity. There is nothing “offered” in this decision. It is ordered and taken and that is wrong.

This pretty much summarises my thoughts on the matter.

The thing with Facebook too, is that you can delete things. So if Air NZ are confident you have something there and it turns out not to be (regardless of whether it didn't exist, or you deleted it) where do you go from there? Upon finding nothing, Air NZ would probably argue that you did indeed delete it.

And bank accounts are hardly reliable source of information either. Even with transactional accounts, some transactions can be processed offline and be delayed by days. If you went to the Movies on Sunday and paid with your Visa Debit card, but the transaction didn't process until the day you took the sick leave - you might have trouble convincing them of the facts. Bank statements also only show dates, not times. If you went to the movies at 9pm that evening, would that be considered an abuse of sick leave?

The person at the ERA who made this determination is clearly unaware the dangers of what they have made an order for.

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