New Zealand Court Orders Facebook Disclosure To Employer

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Klipspringer

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Topic # 127477 12-Aug-2013 08:53

Interesting ...

"Gina Kensington was sacked by Air New Zealand earlier this year following a dispute over sick leave she took to care for her sister. She said she did not misuse sick leave, and went to the Employment Relations Authority (ERA) seeking reinstatement. Air New Zealand responded by demanding to see her Facebook and bank details. Kensington refused, saying it did not have that information when it dismissed her and that 'it is well accepted in New Zealand there are general and legal privacy expectations about people's personal and financial information.'"

At least in the U.S., Facebook isn't keen on employers getting access to employees' Facebook account details.

http://yro.slashdot.org/story/13/08/11/027217/new-zealand-court-orders-facebook-disclosure-to-employer

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Reply # 875592 12-Aug-2013 08:56

More here ...

Facebook pages demanded in employment row

Inphinity

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Reply # 875597 12-Aug-2013 09:09

The ERA is not a court, so there is nothing in this story about a court ordering facebook disclosure. The ERA is asking to see it in relation to the individuals own claims taken to the ERA about her employment termination.

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sbiddle

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Reply # 875600 12-Aug-2013 09:11

I'd heard rumors about this case that Air NZ's lawyers know what was posted on the Facebook page and bank account, hence the request to make these admissible as evidence in the case.

ubergeeknz

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Reply # 875604 12-Aug-2013 09:16

I'm not real comfortable that the court is ordering she hand over these records. It is not for the accused to prove innocence, but for the accuser to prove guilt.

edit: oh I see now, it's not a court ordering it, but the ERA "requesting" it. Nonetheless, this is not a good precedent.

ajobbins

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Reply # 875605 12-Aug-2013 09:17

sbiddle: I'd heard rumors about this case that Air NZ's lawyers know what was posted on the Facebook page and bank account, hence the request to make these admissible as evidence in the case.

How could they know what her bank statement would show? And even if they did somehow, I don't think that's a reason hand it over.

From the 3news article: "However, the ERA - making reference to the Evidence Act which it isn't actually subject to - agreed she should supply copies, saying the details could be relevant."

So they made a ruling they weren't entitled to make?

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

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Klipspringer

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Reply # 875606 12-Aug-2013 09:19

ajobbins:

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

If she is on sick leave - On company pay - Of course its company business.

MikeB4

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Reply # 875607 12-Aug-2013 09:19

Section 160 of the Employment Relations Act 2000 grants the powers for the Authority to make this request.

Mike
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keewee01

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Reply # 875612 12-Aug-2013 09:28

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Klipspringer:
ajobbins:

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

If she is on sick leave - On company pay - Of course its company business.

I completely agree. Too many people think that it is their right to "take a sickie" whenever they please. Sick Leave is a right, but that right is only available for illness of the person and their immediate family. It is not another form of Annual Leave.

If someone is using Sick Leave as Annual Leave, then they are at fault. And if Facebook content and bank account records are required to confirm that, then they should be able to be requested by the employer.

It 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.

Note to self - use only cash on Sick Days!!! ;)

ajobbins

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Reply # 875613 12-Aug-2013 09:29

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Klipspringer:
ajobbins:

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

If she is on sick leave - On company pay - Of course its company business.

No it isn't. Her personal bank account information is private information. Bank statements don't show time of the transaction, only the date, so what about outside of works hours. What if she had a direct debit for her XXX magazine subscription come out that day which she didn't want the world to know about? What about a transaction she made 2 days prior with her debit card offline that was only processed that day.

Her employer has no right to private information such as a bank account record.

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ubergeeknz

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Reply # 875615 12-Aug-2013 09:34

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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.

MikeB4

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Reply # 875616 12-Aug-2013 09:35

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ajobbins:
Klipspringer:
ajobbins:

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

If she is on sick leave - On company pay - Of course its company business.

No it isn't. Her personal bank account information is private information. Bank statements don't show time of the transaction, only the date, so what about outside of works hours. What if she had a direct debit for her XXX magazine subscription come out that day which she didn't want the world to know about? What about a transaction she made 2 days prior with her debit card offline that was only processed that day.

Her employer has no right to private information such as a bank account record.

Under normal circumstances I would agree with you, however she has chosen to take this to the Employment Authority therefore she as is AirNZ subject to what lawful request the Authority will make in order to fully investigate the claim. If she did not wish this sort of examination to occur
she should not have taken the case. She has the right to withdraw her application.

Mike
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Klipspringer

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Reply # 875619 12-Aug-2013 09:38

ajobbins:
Klipspringer:
ajobbins:

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

If she is on sick leave - On company pay - Of course its company business.

No it isn't. Her personal bank account information is private information. Bank statements don't show time of the transaction, only the date, so what about outside of works hours. What if she had a direct debit for her XXX magazine subscription come out that day which she didn't want the world to know about? What about a transaction she made 2 days prior with her debit card offline that was only processed that day.

Her employer has no right to private information such as a bank account record.

I'm saying its companies business to validate that she was genuinely sick, and on sick leave.

I'm not saying they have a right to her private information.

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.

MikeB4

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Reply # 875624 12-Aug-2013 09:43

keewee01:
Klipspringer:
ajobbins:

Regardless if they had suspicions about the content of her Facebook and/or bank account, there is still potential for there to be information contained within that is of a personal nature and frankly none of their business.

If she is on sick leave - On company pay - Of course its company business.

I completely agree. Too many people think that it is their right to "take a sickie" whenever they please. Sick Leave is not a right, it is a privilege - it is not something to be abused.

If someone is using Sick Leave as Annual Leave, then they are at fault. And if Facebook content and bank account records are required to confirm that, then they should be able to be requested by the employer.

It 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.

Note to self - use only cash on Sick Days!!! ;)

The right to Sick leave is granted under Section 68 of the Holidays Act 2003

Mike
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LennonNZ

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Reply # 875626 12-Aug-2013 09:46

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> The right to Sick leave is granted under Section 68 of the Holidays Act 2003

Yes.. but only if you a sick. Too many people use it as a free holiday when they are not sick.

keewee01

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Reply # 875628 12-Aug-2013 09:48

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.

Bad use of words on my part, yes I know Sick Leave is enshrined in law.

I would imagine she has been really stupid and posted on Facebook something along the lines of she "had lunch with Cindy after a morning of shopping"... when she was meant to be caring for her sister. And like everyone else, she has lots of work colleagues connected to her on Facebook, someone has seen this and reported it. As KiwiNZ has already said, Section 160 of the Employment Relations Act 2000 covers this and so Air New Zealand are within their rights to make the request with the ERA.

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