New Zealand Court Orders Facebook Disclosure To Employer

Forums › Off topic › New Zealand Court Orders Facebook Disclosure To Employer

1 | ... | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12

750 posts

Ultimate Geek

#878941 15-Aug-2013 16:37

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?

OK, I've got no idea how to imbed a link and I'm going to get in trouble not folowing the instructions but here goes. (anyhting that requires more than a cut and paste is too complex for me!

"http://dol.govt.nz/workplace/determinations/PDF/2013/2013_NZERA_Auckland_332.pdf"

nickrout

219 posts

Master Geek

#878943 15-Aug-2013 16:39

sdav:
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!

http://dol.govt.nz/workplace/determinations/PDF/2013/2013_NZERA_Auckland_332.pdf

nickrout

219 posts

Master Geek

#878948 15-Aug-2013 16:41

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.

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.

Where did you get your law degree?

minimoke

750 posts

Ultimate Geek

#878949 15-Aug-2013 16:45

]Where did you get your law degree?

PAk N Save had a special on Weet Bix and I found it in there.

sdav

846 posts

Ultimate Geek

#878986 15-Aug-2013 17:33

minimoke:
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?

OK, I've got no idea how to imbed a link and I'm going to get in trouble not folowing the instructions but here goes. (anyhting that requires more than a cut and paste is too complex for me!

"http://dol.govt.nz/workplace/determinations/PDF/2013/2013_NZERA_Auckland_332.pdf"

I thought you were saying the ERA had come to a decision in the case and we can now know fully what happened.

minimoke

750 posts

Ultimate Geek

#878998 15-Aug-2013 17:43

sdav:
minimoke:
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?

OK, I've got no idea how to imbed a link and I'm going to get in trouble not folowing the instructions but here goes. (anyhting that requires more than a cut and paste is too complex for me!

"http://dol.govt.nz/workplace/determinations/PDF/2013/2013_NZERA_Auckland_332.pdf"

I thought you were saying the ERA had come to a decision in the case and we can now know fully what happened.

It's only made a decision on the admissibility of the facebook and bank account information. The ERA originally wanted the information handed over, there was some dispute about that, the parties got to put their views and the ERA has made a decision on the issue - so essentially has come to a decision - but only on that point. Who knows what about the sick leave circumstances.

nickrout

219 posts

Master Geek

#879022 15-Aug-2013 18:21

minimoke:
]Where did you get your law degree?

PAk N Save had a special on Weet Bix and I found it in there.

Thought as much.

Equinox IT

Cloud spending continues to surge globally, but most organisations haven’t made the changes necessary to maximise the value and cost-efficiency benefits of their cloud investments. Download the whitepaper From Overspend to Advantage now.

minimoke

750 posts

Ultimate Geek

#879045 15-Aug-2013 18:46

nickrout:
minimoke:
]Where did you get your law degree?

PAk N Save had a special on Weet Bix and I found it in there.
Thought as much.

You haven't disappointed me - just the response I expected. I may not know much but I know where to find ERA determinations, something that perhaps isn't taught in law school.

PaulBags

809 posts

Ultimate Geek
Inactive user

#879090 15-Aug-2013 19:41

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.

That article also states: "Most employers aren't going to want to pay for a doctor's bill every time an employee is sick." Sure, the article didn't bother to elaborate (and it should have), but the law was changed exactly as it was supposed to be.

minimoke

750 posts

Ultimate Geek

#879119 15-Aug-2013 20:26

PaulBags:
That article also states: "Most employers aren't going to want to pay for a doctor's bill every time an employee is sick." Sure, the article didn't bother to elaborate (and it should have), but the law was changed exactly as it was supposed to be.

Employers don't need a med cert every time. You just need to do it once or twice to set an example. If someone pulls a sickie after that they do so at their own risk. No need for med certs any more - just ask for a copy of the bank account details - no cost there!

nickrout

219 posts

Master Geek

#879129 15-Aug-2013 20:46

minimoke:
PaulBags:
That article also states: "Most employers aren't going to want to pay for a doctor's bill every time an employee is sick." Sure, the article didn't bother to elaborate (and it should have), but the law was changed exactly as it was supposed to be.

Employers don't need a med cert every time. You just need to do it once or twice to set an example. If someone pulls a sickie after that they do so at their own risk. No need for med certs any more - just ask for a copy of the bank account details - no cost there!

No, where do you get this from? The parties are in court and are obliged to disclose documents that are within their possession power or control that may impact on the case. This is not the employer asking for an explanation. This is the court enforcing the applicant's obligation to provide disclosure.

ajobbins

5052 posts

Uber Geek

Trusted

#879231 16-Aug-2013 07:52

nickrout: No, where do you get this from? The parties are in court and are obliged to disclose documents that are within their possession power or control that may impact on the case. This is not the employer asking for an explanation. This is the court enforcing the applicant's obligation to provide disclosure.

I think his comments were a bit tounge-in-cheek (That's how I read them anyway).

I think he point was, that it seems like in this particular case, Air NZ may not have had very much evidence at the time they decided to terminate - and are now retrospectively seeking discovery at the ETA hearing. Perhaps (but probably unlikely) this is a strategy they are using to try and weasel themselves out of a bad decision by a manger at Air NZ. "Damn, we shouldn't have fired her. Tell the ERA we 'heard' she was at the movies that day and ask them to have her prove she wasn't. She won't be able to prove she wasn't, so it will make her look bad".

Depending on the actual circumstances that took place up to the time the employee was terminated (which again, we don't know), this could radically change how extreme this response is, but it doesn't change the fact it's a terrible decision by the ERA because even if she does hand over, it can't prove anything.

Twitter: ajobbins

PaulBags

809 posts

Ultimate Geek
Inactive user

#879271 16-Aug-2013 08:55

Oh to be a fly on the wall. So far this:

minimoke: "http://dol.govt.nz/workplace/determinations/PDF/2013/2013_NZERA_Auckland_332.pdf"

is all we have to go on, it makes me pretty curious what has already been said in the case so far. The ruling seems to allude to reasons, but without some transcripts or something who knows?

minimoke

750 posts

Ultimate Geek

#879293 16-Aug-2013 09:31

nickrout:
minimoke:
PaulBags:
That article also states: "Most employers aren't going to want to pay for a doctor's bill every time an employee is sick." Sure, the article didn't bother to elaborate (and it should have), but the law was changed exactly as it was supposed to be.

Employers don't need a med cert every time. You just need to do it once or twice to set an example. If someone pulls a sickie after that they do so at their own risk. No need for med certs any more - just ask for a copy of the bank account details - no cost there!
No, where do you get this from? The parties are in court and are obliged to disclose documents that are within their possession power or control that may impact on the case. This is not the employer asking for an explanation. This is the court enforcing the applicant's obligation to provide disclosure.

Ok, where do I begin.

For a start lets be very clear that the ERA is not a Court. As a layman I might describe it very loosely as a court of appeal but in reality it is simply an investigative tribunal which is specifically directed not to focus on technicalities but rather follow the principles of natural justice. It is not a High Court or District Court or even a civil court where certain rules are applied. The Member has said in this decision the Rules of Evidence do not expressly apply.

Now my understanding of disclosure, and please feel free to correct me, is that one party may ask of another party for certain documents. That does not provide the right to disclose all and sundry information if for no other reason it bogs the judicial process down. A request made by one party can be challenged by the other party. I have seen disclosure work in the Employment Court. For example the employer asked for an employee’s home computer to ascertain if it contained client information obtained by a Sales rep in a restraint of trade situation. In that case the Court ordered the uplifting of the computer – but there were as I recall certain conditions attached.

This is not a situation where Air NZ has sought disclosure – but knowing what happens at these Telecomferences AirNZ will have raised it as an issue. I have never seen disclosure decided at the ERA level – that’s not to say there hasn’t been a decision, its just I haven’t seen it so feel free to point me to one

Reading this ERA decision suggests to me (at 1 (a)) that it is the ERA who initially sought the disclosure of the Facebook and bank accounts. This is within the ERA’s rights to gather evidence and the information doesn’t have to be strictly evidence. This request by the ERA was contested by Kensington and presumably supported by AirNZ

Natural justice and bias suggests a person should not be making a decision where they might not be impartial. So if the ERA wants information filed and a party doesn’t want to, how can it be an unbiased decision? It’s a different story if it had been AirNZ seeking the disclosure.

I would also add that AirNZ is required to do what a fair and reasonable employer could have done at the time of the termination. That is use whatever information it had disclosed and available at the time to make a robust recession. The ERA ought to be able to rely fully, subject to testing, the information used by AirNZ to reach its decision. It also should be able to rely on Kensington’s information, subject to testing.

Disclosure of this nature is on my view a technical matter. Delving into a personal social media account and bank accounts post a termination decision is something that I think has not been decided before in an employment context and I think it is an issue better decided by the Employment Court rather than the ERA. Particularly when the issue at hand is relevance and veracity. If you have a precedent that indicates the contrary please feel free to share.

So now its your opportunity to put on your wig and gown and tear me to bits. Before doing so I’ll share with you what I heard one ERA member say to a Solicitor - words to the effect of “you are not in court now Mr X so pull your head in” so please don’t be too hard on me.

ajobbins

5052 posts

Uber Geek

Trusted

#879312 16-Aug-2013 09:53

I see this as a dangerous precedent for the ERA to set. Regardless of the circumstances of this particular case, future employers brought in front of the ERA may try and obtain personal records on the off chance it incriminates the employee and changes the outcome of the hearing.

As I have pointed out, both Facebook and bank records are poor forms of evidence as Facebook is easily manipulated and Bank record dates cannot be relied upon alone without intense scrutiny (scrutiny that the ERA does not have the time, resources or powers to subject).

Someone with more knowledge that I might be able to answer this (nickrout perhaps). But is the role of the ERA not to decide whether or not the Employer took the right steps AT THE TIME. Is unproven conduct of the employee within the scope of what the ERA should use in its determination? Should the Employer not only be allowed to justifiably dismiss someone based on the evidence they had at the time?

It was mentioned earlier that the empoyee's 'contributory' actions can be factored into the ERA's decision, but again - should this only be things known to/proven by the Employer at the time of termination?

nickrout, You're the lawyer and I am not, but my interpretation of contributory actions by the employee shouldn't include conduct the employer didn't know about because if they didn't know about it (or have proof of it), then they can't reasonably use that against the employee at the time of the dismissal - which is what the ERA is testing.

Twitter: ajobbins

1 | ... | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12