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  Reply # 876316 13-Aug-2013 10:22
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sdav:
Inphinity: One difference I see in this case, that is imo important, is the *employee* is the one who has raised the case to the ERA. Air NZ aren't taking her to court or anything, she's gone to ERA to contest her dismissal, and it would seem that it has been raised that content on her facebook indicated she was not using her sick leave legitimately. Thus, the ERA have requested she disclose this information for *HER* case to continue. While I don't condone in any way the right of an employer to obtain social media or other personal info, I do think if you're going to try and make this sort of formal complaint (in this case to the ERA) then go "No I can't show you that it'll show I'm lying" (not a quote, of course, but it is heavily implied by the refusal).. you may want to think things through a bit better next time. You're welcome to not disclose it, and by doing so, the ERA can draw their own conclusion (or, in fact, simply decide there's no evidence either way and drop the complaint).


This!

Ah, at last...well put Inphinity. People seem to have been getting a bit bent out of shape (and it's made for some amusing reading!) about how unfair all this is, while losing sight of the fact it's her case and she has to stump up with the evidence.

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  Reply # 876466 13-Aug-2013 13:42
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Dratsab: Ah, at last...well put Inphinity. People seem to have been getting a bit bent out of shape (and it's made for some amusing reading!) about how unfair all this is, while losing sight of the fact it's her case and she has to stump up with the evidence.


If she has been dismissed, should the onus not by on the employer to prove she was not using sick leave appropriately, rather than her to prove her innocence?

If Air NZ had evidence of their own (Maybe they did?) and she wanted to counter that, sure? But the article read to me like Air NZ dismissed her based on speculation rather than hard evidence.

As I've said previously, by having to reveal her Facebook and/or bank records, she may have to reveal irrelevant, but otherwise embarrassing (or damaging) information that she has the right to keep private.




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  Reply # 876502 13-Aug-2013 14:32
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i suspect in the initial dismissal case between AirNZ and the employee, you may be right in that it would have been AirNZ that needed to prove the case that she was dismissed fairly.

however, since that dismissal has occured and the new case brought to the ERA it would then make sense that before going further the ERA would ask for evidence before wasting AirNZ time in making them provide the proof (since it seems likely they had done that during the initial dismissal).

there was an earlier case in the media a while back about an employee being unfairly dismissed by SMS by a small cafe company. from the news article it seemed that the ERA used the proof from the employee that those SMSes existed for the case to be argued, not the other way around.

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  Reply # 876511 13-Aug-2013 14:46
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ajobbins:If she has been dismissed, should the onus not by on the employer to prove she was not using sick leave appropriately, rather than her to prove her innocence?


The ERA is not a criminal court, though it's determinations are legally binding. The disputing party - in this case the employee - must present a case to be heard. You can't just go "I got fired and don't like it". You also shouldn't expect to just be able to go "They're wrong bro" and expect the ERA to uphold your complaint. Yes, there is some requirement of proof on the employer, but it is not the primary focus.

Without details of the case, it's harder to explain, but let's do a hypothetical - Co-worker Dan claims that the disputing employee posted on facebook during her 'sick day' a photo of her and her sister at a theme park and wrote the caption "Pulling a sicky!". Air NZ could present this witness as their evidence. The disputing employee claims this is not correct. How do you prove this? Show us your facebook details from that time period. You refuse to? Well, that makes it rather hard to uphold your claim of falsehood.





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  Reply # 876530 13-Aug-2013 15:15
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Inphinity:

The ERA is not a criminal court, though it's determinations are legally binding. The disputing party - in this case the employee - must present a case to be heard. You can't just go "I got fired and don't like it". You also shouldn't expect to just be able to go "They're wrong bro" and expect the ERA to uphold your complaint. Yes, there is some requirement of proof on the employer, but it is not the primary focus.


I don't agree at all as it goes against the principals of our legal system (Innoncent until proven guilty). If your employer wants to dismiss you, they should be required to be able to back that up. Otherwise, you will get situations where employers dismiss employees for frivolous reasons knowing that it's hard for them to prove otherwise. It's often very difficult to prove a negative.

Without details of the case, it's harder to explain, but let's do a hypothetical - Co-worker Dan claims that the disputing employee posted on facebook during her 'sick day' a photo of her and her sister at a theme park and wrote the caption "Pulling a sicky!". Air NZ could present this witness as their evidence. The disputing employee claims this is not correct. How do you prove this? Show us your facebook details from that time period. You refuse to? Well, that makes it rather hard to uphold your claim of falsehood.


If 'Co-worker Dan' wants to make that claim he should either provide the evidence from his Facebook to back up the claim, or be willing to testify as such. If it's just 'his word', the ERA should take into account the 'value' of that evidence (Ie. how reliable is that person as a witness.) Maybe 'Co-worker Dan' doesn't like the employee so made up the statement? Why should that person then open up their personal records to prove innocence (especially when doing so is likely to expose other irrelevant personal details) - that's not the way it works.

I reaslise the ERA is not a criminal court - but I feel that such hearings should be treated under the same principals where the burden of proof is on the party who allege wrong doing, not the other way around. Now I realise that it was the employee that brought the case to the ERA - but that the way these things works. Essentially the 'Employer' has pre-determined a 'guilty' verdict and the employee has to be the one to challenge that.

If we liken this to a criminal case - let's call it a murder accusation. 'Employee is the alleged murderer, employer is the police'

Police: We allege you killed Garry
Alleged: But I didn't do it.
Police: But Mary said you did. GULITY. Off to jail for you.
Alleged: I want to appeal. I really didn't do it. Mary is bitter because I stole her promotion and she's trying to get rid of me.
Police: Can you prove you didn't commit the murder?
Alledged: Why should I have to? Shouldn't you have to prove I did?
Police: Well if you aren't willing to prove you are innocent. GULITY.






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  Reply # 876538 13-Aug-2013 15:32
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No negative has to be proven.

If the employer failed to produce a medical certificate for her sister (Which I think is very likely in this case), then the employer has every right to dismiss her on those grounds... End of story...

There is no need for the employer to prove anything else. The employee is in breach of her employment contract already.

It falls back to the employee. He/she has to supply that "medical certificate" as proof because that's what I'm pretty sure her employment contract states. (most do). Its up to her employer if they wish to accept anything else as proof.

If she is unable to supply the medical certificate, she can TRY and use whatever other option she wants to as proof. That proof may be Facebook, bank statements, etc ... And its up to her if she wants to use it or not. Its not up to the employer to demand it (she is already fired, and employer needs no more proof). Its not the employees right to be able to submit anything as proof. Its medical certificate or nothing.

You also comparing this to a criminal case (which is wrong). If you enter into a contract with someone that contract can sometimes override certain instances of law. In this case that contract is probably the employment contract. There are other times where this can, and is done, Ie rental agreements, certain sale agreements etc. At the end of the day we have no idea what was in that employment agreement.


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  Reply # 876543 13-Aug-2013 15:38
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ajobbins:
Inphinity:

The ERA is not a criminal court, though it's determinations are legally binding. The disputing party - in this case the employee - must present a case to be heard. You can't just go "I got fired and don't like it". You also shouldn't expect to just be able to go "They're wrong bro" and expect the ERA to uphold your complaint. Yes, there is some requirement of proof on the employer, but it is not the primary focus.


I don't agree at all as it goes against the principals of our legal system (Innoncent until proven guilty). If your employer wants to dismiss you, they should be required to be able to back that up. Otherwise, you will get situations where employers dismiss employees for frivolous reasons knowing that it's hard for them to prove otherwise. It's often very difficult to prove a negative.

Without details of the case, it's harder to explain, but let's do a hypothetical - Co-worker Dan claims that the disputing employee posted on facebook during her 'sick day' a photo of her and her sister at a theme park and wrote the caption "Pulling a sicky!". Air NZ could present this witness as their evidence. The disputing employee claims this is not correct. How do you prove this? Show us your facebook details from that time period. You refuse to? Well, that makes it rather hard to uphold your claim of falsehood.


If 'Co-worker Dan' wants to make that claim he should either provide the evidence from his Facebook to back up the claim, or be willing to testify as such. If it's just 'his word', the ERA should take into account the 'value' of that evidence (Ie. how reliable is that person as a witness.) Maybe 'Co-worker Dan' doesn't like the employee so made up the statement? Why should that person then open up their personal records to prove innocence (especially when doing so is likely to expose other irrelevant personal details) - that's not the way it works.

I reaslise the ERA is not a criminal court - but I feel that such hearings should be treated under the same principals where the burden of proof is on the party who allege wrong doing, not the other way around. Now I realise that it was the employee that brought the case to the ERA - but that the way these things works. Essentially the 'Employer' has pre-determined a 'guilty' verdict and the employee has to be the one to challenge that.

If we liken this to a criminal case - let's call it a murder accusation. 'Employee is the alleged murderer, employer is the police'

Police: We allege you killed Garry
Alleged: But I didn't do it.
Police: But Mary said you did. GULITY. Off to jail for you.
Alleged: I want to appeal. I really didn't do it. Mary is bitter because I stole her promotion and she's trying to get rid of me.
Police: Can you prove you didn't commit the murder?
Alledged: Why should I have to? Shouldn't you have to prove I did?
Police: Well if you aren't willing to prove you are innocent. GULITY.




The dismissed is the one bringing the case for a tribunal hearing therefore the onus on her to present her case as to why the dismissal was unjustified. 




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  Reply # 876549 13-Aug-2013 15:51
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ajobbins:
I feel that such hearings should be treated under the same principals where the burden of proof is on the party who allege wrong doing



That's exactly it. She is alleging wrongdoing in AirNZ's dismissal of her, the burden is on her. If she is choosing not to present evidence because it might be personal or whatever, then that's her decision, but the ERA will have to consider that in their decision. This is not part of the dismissal process. It is distinct. The dismissal has occurred. New situation. She now needs to either provide sufficient information to the ERA to show that AirNZ were unfair in their dismissal, or that their reasons for doing so were untrue.





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  Reply # 876558 13-Aug-2013 16:15
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Klipspringer: No negative has to be proven.

If the employer failed to produce a medical certificate for her sister (Which I think is very likely in this case), then the employer has every right to dismiss her on those grounds... End of story...

There is no need for the employer to prove anything else. The employee is in breach of her employment contract already.

It falls back to the employee. He/she has to supply that "medical certificate" as proof because that's what I'm pretty sure her employment contract states. (most do). Its up to her employer if they wish to accept anything else as proof.


With nothing in the article to suggest there was no certificate, I think we have to assume that she had one. Regardless, not having a medical certificate on it's own is not grounds for dismissal. Perhaps a verbal or written warning. But without suggestion she was on a last warning, we can't assume she way. (And indeed, even if she was, the circumstances of other warnings may mean that a single absence without medical certificate as an isolated even justifies dismissal).

If she is unable to supply the medical certificate, she can TRY and use whatever other option she wants to as proof. That proof may be Facebook, bank statements, etc ... And its up to her if she wants to use it or not. Its not up to the employer to demand it (she is already fired, and employer needs no more proof). Its not the employees right to be able to submit anything as proof. Its medical certificate or nothing.


Again, we can't assume she didn't, but even so - her employer needs to have a good reason (Ie. hard evidence) to suggest she is lying, or history of such behavior before you could justify dismissing someone on such grounds.

You also comparing this to a criminal case (which is wrong).


I realise the comparison with criminal law isn't ideal - the point was to demonstrate burden of proof when it comes to wrongdoing. No one should ever have to prove themselves 'innocent'. It goes against one of the fundamental tenets of our legal system. In her case, she has been pre-determined as 'guilty'. The way the ERA is SUPPOSED to work when an employee is challenged, is to have the employer prove the dismissal was justified. The burden of proof is always on the accuser (In this case, the employer - as the 'original' accuser of wrongdoing.

If you enter into a contract with someone that contract can sometimes override certain instances of law. In this case that contract is probably the employment contract. There are other times where this can, and is done, Ie rental agreements, certain sale agreements etc. At the end of the day we have no idea what was in that employment agreement.


While this is somewhat true, there are may laws, or parts of laws that you CANNOT contract out of. The law sets out basic rights and provisions and minimums. Employment laws (to the best of my understanding) fall into this category. As does the CGA, the RTA and many, many others. You can't simply give an employee a contract that limits their legal entitlements under law. For example, the law says an employer has to pay you a minmum wage. Just becuase you sign something saying you will accept less than that, does not make it legal or binding.






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  Reply # 876564 13-Aug-2013 16:27
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ajobbins:
If we liken this to a criminal case - let's call it a murder accusation. 'Employee is the alleged murderer, employer is the police'

Police: We allege you killed Garry
Alleged: But I didn't do it.
Police: But Mary said you did. GULITY. Off to jail for you.
Alleged: I want to appeal. I really didn't do it. Mary is bitter because I stole her promotion and she's trying to get rid of me.
Police: Can you prove you didn't commit the murder?
Alledged: Why should I have to? Shouldn't you have to prove I did?
Police: Well if you aren't willing to prove you are innocent. GULITY.


as other's have pointed out, they are two distinct cases. a better analogy using your example would be:

First case
Police: We allege you killed Garry
Alleged: But I didn't do it.
Police: But our evidence from Mary said you did. GULITY. Off to jail for you.

Appeals authority
Alleged: I want to appeal. I really didn't do it. Mary is bitter because I stole her promotion and she's trying to get rid of me.
Court: Do you have any new/additional evidence to prove you didn't commit the murder?
Alleged: I do, but I don't want to show it to you
Court: If you do but are not willing to show it, a case cannot be brought to court as current evidence shows you are guilty

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  Reply # 876569 13-Aug-2013 16:30
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Inphinity: That's exactly it. She is alleging wrongdoing in AirNZ's dismissal of her, the burden is on her. If she is choosing not to present evidence because it might be personal or whatever, then that's her decision, but the ERA will have to consider that in their decision. This is not part of the dismissal process. It is distinct. The dismissal has occurred. New situation. She now needs to either provide sufficient information to the ERA to show that AirNZ were unfair in their dismissal, or that their reasons for doing so were untrue.


No, the original 'wrongdoing' was at the allegation of Air NZ. The 'wronging' OF Air NZ that is being challenged, is as a flow on result of the original allegation of wrong doing.

This of an ERA hearing like an appeal trial (which is basically is).

While it's true that making an attempt to prove your innocence is an option, and one you are free to take should you be willing to, this still does not change the fact that the burden of proof of the original allegation is still on the original accuser.
If you can show in an appeal trial the burden of proof was not satisfied, that is very valid grounds to have a charge dismissed.

A criminal parallel to demonstrate the concept. It would be like the police throwing someone in jail based on circumstantial evidence, without a proper trial. They police provided they committed the crime, but are now being told they can only go free if they prove they didn't do it.

'They never proved it did it' is a pretty good basis for an appeal (Well, at least it should be if principals of law are followed. The allegation of 'wrongdoing' here is that police never gave you a fair trial, but that doesn't change the fact that the burden of proof still lies with the police to prove you committed the crime (the original 'allegation' or wrongdoing).

Outcomes like this set bad precedents.




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  Reply # 876587 13-Aug-2013 16:48
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tilde:
as other's have pointed out, they are two distinct cases. a better analogy using your example would be:

First case
Police: We allege you killed Garry
Alleged: But I didn't do it.
Police: But our evidence from Mary said you did. GULITY. Off to jail for you.

Appeals authority
Alleged: I want to appeal. I really didn't do it. Mary is bitter because I stole her promotion and she's trying to get rid of me.
Court: Do you have any new/additional evidence to prove you didn't commit the murder?
Alleged: I do, but I don't want to show it to you
Court: If you do but are not willing to show it, a case cannot be brought to court as current evidence shows you are guilty


But that's not what the article is saying happened. There is nothing to suggest that they proved there was something on Facebook to refute. And if they did, how could showing her Facebook ever prove it didn't happen?

If she hands it over and it proves the evidence they had, she is guilty.
If she hands it over and it's missing, they just say she must have deleted it, and therefore is guilty and committing fraud.

The point is that as best as we can tell, AirNZ's evidence was either hearsay, or inadmissible. They never had evidence that satisfies the burden of proof.

Let's look at a more similar comparison:

A company laptop goes missing from the office one day. Bob tells management that he saw Peter take it.
The company asks Peter if he stole the laptop and he denies he did. The company sacks him anyway.

Peter takes the company to the ERA on grounds of unfair dismissal. He says he never stole the laptop, and there is no proof he did.
The ERA rules that the company can go to his house and search it for the missing laptop. If Peter didn't take it, he has nothing to worry about.

Is that the right course of action on the part of the ERA?




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  Reply # 876590 13-Aug-2013 16:49
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how do you know that AirNZ does not have evidence that the sick leave was not misused, and that this isolated incident was the sole cause of the dismissal? i would prefer to think that being a large corporate AirNZ would be more likely to cross their i's and dot their t's when dismissing an employee, and would not have done so without proper evidence and process being followed.

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  Reply # 876603 13-Aug-2013 17:14
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ajobbins:
Klipspringer: No negative has to be proven.

If the employer failed to produce a medical certificate for her sister (Which I think is very likely in this case), then the employer has every right to dismiss her on those grounds... End of story...

There is no need for the employer to prove anything else. The employee is in breach of her employment contract already.

It falls back to the employee. He/she has to supply that "medical certificate" as proof because that's what I'm pretty sure her employment contract states. (most do). Its up to her employer if they wish to accept anything else as proof.


With nothing in the article to suggest there was no certificate, I think we have to assume that she had one. Regardless, not having a medical certificate on it's own is not grounds for dismissal. Perhaps a verbal or written warning. But without suggestion she was on a last warning, we can't assume she way. (And indeed, even if she was, the circumstances of other warnings may mean that a single absence without medical certificate as an isolated even justifies dismissal).

If she is unable to supply the medical certificate, she can TRY and use whatever other option she wants to as proof. That proof may be Facebook, bank statements, etc ... And its up to her if she wants to use it or not. Its not up to the employer to demand it (she is already fired, and employer needs no more proof). Its not the employees right to be able to submit anything as proof. Its medical certificate or nothing.


Again, we can't assume she didn't, but even so - her employer needs to have a good reason (Ie. hard evidence) to suggest she is lying, or history of such behavior before you could justify dismissing someone on such grounds.

You also comparing this to a criminal case (which is wrong).


I realise the comparison with criminal law isn't ideal - the point was to demonstrate burden of proof when it comes to wrongdoing. No one should ever have to prove themselves 'innocent'. It goes against one of the fundamental tenets of our legal system. In her case, she has been pre-determined as 'guilty'. The way the ERA is SUPPOSED to work when an employee is challenged, is to have the employer prove the dismissal was justified. The burden of proof is always on the accuser (In this case, the employer - as the 'original' accuser of wrongdoing.

If you enter into a contract with someone that contract can sometimes override certain instances of law. In this case that contract is probably the employment contract. There are other times where this can, and is done, Ie rental agreements, certain sale agreements etc. At the end of the day we have no idea what was in that employment agreement.


While this is somewhat true, there are may laws, or parts of laws that you CANNOT contract out of. The law sets out basic rights and provisions and minimums. Employment laws (to the best of my understanding) fall into this category. As does the CGA, the RTA and many, many others. You can't simply give an employee a contract that limits their legal entitlements under law. For example, the law says an employer has to pay you a minmum wage. Just becuase you sign something saying you will accept less than that, does not make it legal or binding.




You are assuming some things and not others.

Reality is we can make no assumptions as we do not have all the facts - in fact we have very, very little information/facts, so no assumptions are possible. It is pure speculation. Nothing more, nothing less.

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  Reply # 876605 13-Aug-2013 17:15
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ajobbins:
tilde:
as other's have pointed out, they are two distinct cases. a better analogy using your example would be:

First case
Police: We allege you killed Garry
Alleged: But I didn't do it.
Police: But our evidence from Mary said you did. GULITY. Off to jail for you.

Appeals authority
Alleged: I want to appeal. I really didn't do it. Mary is bitter because I stole her promotion and she's trying to get rid of me.
Court: Do you have any new/additional evidence to prove you didn't commit the murder?
Alleged: I do, but I don't want to show it to you
Court: If you do but are not willing to show it, a case cannot be brought to court as current evidence shows you are guilty


But that's not what the article is saying happened. There is nothing to suggest that they proved there was something on Facebook to refute. And if they did, how could showing her Facebook ever prove it didn't happen?

If she hands it over and it proves the evidence they had, she is guilty.
If she hands it over and it's missing, they just say she must have deleted it, and therefore is guilty and committing fraud.

The point is that as best as we can tell, AirNZ's evidence was either hearsay, or inadmissible. They never had evidence that satisfies the burden of proof.

Let's look at a more similar comparison:

A company laptop goes missing from the office one day. Bob tells management that he saw Peter take it.
The company asks Peter if he stole the laptop and he denies he did. The company sacks him anyway.

Peter takes the company to the ERA on grounds of unfair dismissal. He says he never stole the laptop, and there is no proof he did.
The ERA rules that the company can go to his house and search it for the missing laptop. If Peter didn't take it, he has nothing to worry about.

Is that the right course of action on the part of the ERA?


Again - speculation. You don't know, I don't know. No one posting on here to date knows.

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