New Zealand Court Orders Facebook Disclosure To Employer

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3892 posts

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#876988 14-Aug-2013 11:19

SaltyNZ:
DonGould:

I was talking with a government worker the other day who has hundreds of hours of leave owning him and he can't get his applications accepted.

Sounds unlawful. Our HR department forces us to take leave if we have more than about 30 days (5 weeks/160 hours) owing, to get back down to 20 days max.

Welcome to health care, have a nice day.

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Inphinity

2780 posts

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#876992 14-Aug-2013 11:23

SaltyNZ:
DonGould:

I was talking with a government worker the other day who has hundreds of hours of leave owning him and he can't get his applications accepted.

Sounds unlawful. Our HR department forces us to take leave if we have more than about 30 days (5 weeks/160 hours) owing, to get back down to 20 days max.

It's not necessarily unlawful - it depends on the circumstances. The employer can certainly refuse to accept a leave application, provided they have a 'reasonable' cause. Typically-accepted reasonable causes would include things like, the requested period being too long (for example, if you want 9 weeks off), or the period requested coinciding with a low staffing period (lets say, 3 other people have already got time off in that week), or the leave period requested is too soon to allow suitable staffing to be put in place (e.g. only giving 2 days notice of when you want to take time off). The employer does have to make a reasonable effort to provide opportunities for leave, though, so if he's consistently getting leave denied, he needs to ask why.

ajobbins

5052 posts

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#876995 14-Aug-2013 11:25

nickrout: Q: Ms X you say you were caring for your sister on sick leave, but you posted on facebook that you were taking the kids to Rainbows End and then getting rat arsed at your favourite bar. Your bank statement shows you paid an amount for entry to Rainbows End that is the amount it would cost for an adult and three kids (no sister) and then 15 entries for purchases at your favourite bar. How does that equate to "caring for your sister" like you told your boss?

A key part of this argument hinges on exactly what information Air NZ actually had, and what action was taken before the termination.

If they had evidence of posts on Facebook that suggested these events then they MAY have had cause to terminate. HOWEVER, if they only SUSPECTED or HEARD that she had posted, then they can't retrospectively use the ERA to try and obtain proof of that. The dead (her sacking) has been done. If they didn't follow due process at the time then they would be liable for unjustified dismissal.

Scenario A:

Employer: We've been shown by x employees that you posted on Facebook during your sick day saying you were doing X. We consider that a breach of trust and not a valid use of sick leave. What say you?
Employee: XYZ excuse. I didn't write that. Those employees are lying, they probably Photoshopped it. They hate me
Employer: Well, the evidence is pretty compelling. Would you be willing to open you Facebook or your bank account for us now to show us that the posts/transactions don't exist?
Employee: No, I don't want to.
Employer: Given the balance of evidence, we have no choice but to consider termination for serious misconduct. Let's meet again in a couple of days to disucss where we can go from here. You may want to seek advice in the mean time, and you are entitled to bring a representative to our next meeting if would like.

Employee still declies to offer counter evidence and is sacked.

Is that a fair dismissal? It probably is. Due process was followed, with an outcome based on the weight of evidence.

Scenario A:

Employer: x employees told us that you posted on Facebook during your sick day saying you were doing X. We consider that a breach of trust and not a valid use of sick leave. What say you?
Employee: That's not true, they are making it up. If it were true they would have shown you proof, not just said it happened.
Employer: Well, we trust their word over yours. Care to open your Facebook and bank accounts to us to prove them wrong?
Employee: No way! Those are my personal things. I have done nothing wrong and I won't consent to your fishing expedition.
Employer: Sorry then, we don't believe you. Pack your things, you're done.

Is that a fair dismissal? Hell no it isn't. There was no compelling evidence to suggest guilt, other than some peoples word. And due process wasn't followed.

My argument against this ruling in the thread is based on the way the article is written. There is no suggestion the evidence Air NZ has when it dismissed her was up to scratch, and the employee is under no obligation to prove her innocence when the burden of proof hasn't been satisfied.

Ultimately however, the decision of this authority is wrong for the following reasons
1) A court or authority should never ORDER disclosure of personal records in order to establish innocence. If the person chooses not to be forthcoming with such evidence, the case should instead be thrown out. Not doing risks setting a bad precedent for future cases that could be exploited by employers by shifting the burden of proof, regardless of circumstances.
2) Even if she chose to comply, she still can't necessarily prove her innocence. (Hard to prove a negative). If there is nothing there, they just then say she must have deleted it. Or just must have used a different bank account etc. That is why our legal system puts the burden of proof on the accuser. There is also the fact she has to also expose a whole bunch of irrelevant, and potentially embarrassing information to satisfy their wants.

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nickrout

219 posts

Master Geek

#877009 14-Aug-2013 11:31

I don't know what guilt or innocence has to do with it, she is not charged with a criminal offence.

And you clearly have little knowledge of the legal system or the process of civil discovery.

DonGould

3892 posts

Uber Geek

#877012 14-Aug-2013 11:34

Inphinity:It's not necessarily unlawful - it depends on the circumstances. The employer can certainly refuse to accept a leave application, provided they have a 'reasonable' cause. Typically-accepted reasonable causes would include things like, the requested period being too long (for example, if you want 9 weeks off), or the period requested coinciding with a low staffing period (lets say, 3 other people have already got time off in that week), or the leave period requested is too soon to allow suitable staffing to be put in place (e.g. only giving 2 days notice of when you want to take time off). The employer does have to make a reasonable effort to provide opportunities for leave, though, so if he's consistently getting leave denied, he needs to ask why.

It should be unlawful.

I accept everything you said above, but it's just unreasonable.

The fact in health care is that there's never enough staff.

2 days notice is not unreasonable. 2 hours I'll give you, but 2 days for a day is perfectly reasonable in my view.

I agree with you about the 9 weeks thing. But why does a staff member have 9 weeks owing? That happens for a bunch of reasons. Staff who don't feel they can take a day here or day there without putting in application 10 weeks in advance?

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DonGould

3892 posts

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#877014 14-Aug-2013 11:35

nickrout: And you clearly have little knowledge of the legal system or the process of civil discovery.

Nick meet AJ, AJ meet Nick ;)

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tilde

44 posts

Geek

#877017 14-Aug-2013 11:39

@ aj : yes it is, but one can't just claim to have mental illness whenever they like. a medical professional confirmation is still needed if that was the excuse used for the sick leave.

Klipspringer

2385 posts

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#877028 14-Aug-2013 11:41

ajobbins:
Klipspringer: This example is already a violation of "sick leave"

Mental Illness is a perfectly valid 'sickness' too

The only valid 'sickness' in this case is one that comes with a medical certificate.

IMO a "medical certificate" overrides anything you doing while you out of the office on sick leave. Just as long as what you doing, does not violate the medical certificate.

ajobbins

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#877059 14-Aug-2013 12:08

nickrout: I don't know what guilt or innocence has to do with it, she is not charged with a criminal offence.

This is true. The point of an ERA hearing is not to determine if the employee was in the right or the wrong, it's to determine if the employer was. The employer is not entitled to sack now, ask questions later.

This makes the concept of discovery, at least in regards to the original accusation by the employer, irrelevant to the hearing. In this case, either Air NZ followed the right process or they did not.

She could be 100% guilty and she still may have been unjustifiably dismissed if the employer didn't follow the right process. Retrospecive discovery seeks only to prove or disprove the original allegation, but that does not have a bearing on weather the employer did the right thing or not.

And you clearly have little knowledge of the legal system or the process of civil discovery.

I am not a lawyer, and do not profess to be a legal expert. I've never studied law or felt any inclination to, however, I have experienced and understand more of the legal system than many, but undoubtedly know only a fraction more than some of the basic concepts.

Twitter: ajobbins

Inphinity

2780 posts

Uber Geek

#877069 14-Aug-2013 12:15

DonGould:
It should be unlawful.

I accept everything you said above, but it's just unreasonable.

The fact in health care is that there's never enough staff.

2 days notice is not unreasonable. 2 hours I'll give you, but 2 days for a day is perfectly reasonable in my view.

I agree with you about the 9 weeks thing. But why does a staff member have 9 weeks owing? That happens for a bunch of reasons. Staff who don't feel they can take a day here or day there without putting in application 10 weeks in advance?

Without any detail of the leave requests, it's impossible to say. Anyway, we're getting quite off-topic. Suffice to say, 2 days notice that you want to take a month off is not necessarily reasonable. 2 days notice of 1 day off may well be. Yes, there are industries where there are 'never enough staff', but that is not a reasonable cause to deny leave - having other staff already on leave during that period is. If you have 30 staff, and need 28 to meet operational requirements, you can only have 2 away at a given time, for example. Basic example, however. As to why someone has 9 weeks owing - I know plenty of people who have lots of leave owing, because they take a week or so off at Christmas/New Year and that's about it, so after 3 years they have 8 - 10 weeks accrued, simply through not really caring about taking time off the rest of the year. But let's not derail too much, this is probably a discussion for a different topic.

ajobbins

5052 posts

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#877082 14-Aug-2013 12:22

tilde: @ aj : yes it is, but one can't just claim to have mental illness whenever they like. a medical professional confirmation is still needed if that was the excuse used for the sick leave.

Absolutely. The article doesn't say one way or the other. If she was asked for one, but refused, then this would be grounds for the employer to cite her for misconduct, and would certainly way against her in any decision to terminate (and the ERA would take that into consideration).

Klipspringer: IMO a "medical certificate" overrides anything you doing while you out of the office on sick leave. Just as long as what you doing, does not violate the medical certificate.

Yep, but complicated by the fact that it's pretty easy to get a medical cert and it's been known to be abused. It would be my expectation that if a valid medical certificate was presented, the employer would be expected to have compelling evidence suggesting the employee was being dishonest before dismissal could be justified.

The other complication with medical certs is the balance between personal privacy, doctor-patient privilege and the right of the employer not to be taken for a ride. Therefore, your employer probably wont know if your certificate is for a sore knee, a headache, or depression - each of which obviously has a different effect on a person and their capabilities while off work.

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nickrout

219 posts

Master Geek

#878080 14-Aug-2013 13:10

ajobbins:
nickrout: I don't know what guilt or innocence has to do with it, she is not charged with a criminal offence.

This is true. The point of an ERA hearing is not to determine if the employee was in the right or the wrong, it's to determine if the employer was. The employer is not entitled to sack now, ask questions later.

This makes the concept of discovery, at least in regards to the original accusation by the employer, irrelevant to the hearing. In this case, either Air NZ followed the right process or they did not.

She could be 100% guilty and she still may have been unjustifiably dismissed if the employer didn't follow the right process. Retrospecive discovery seeks only to prove or disprove the original allegation, but that does not have a bearing on weather the employer did the right thing or not.

And you clearly have little knowledge of the legal system or the process of civil discovery.

I am not a lawyer, and do not profess to be a legal expert. I've never studied law or felt any inclination to, however, I have experienced and understand more of the legal system than many, but undoubtedly know only a fraction more than some of the basic concepts.

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 :)

Klipspringer

2385 posts

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#878089 14-Aug-2013 13:22

ajobbins:
Klipspringer: IMO a "medical certificate" overrides anything you doing while you out of the office on sick leave. Just as long as what you doing, does not violate the medical certificate.

Yep, but complicated by the fact that it's pretty easy to get a medical cert and it's been known to be abused. It would be my expectation that if a valid medical certificate was presented, the employer would be expected to have compelling evidence suggesting the employee was being dishonest before dismissal could be justified.

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.

ajobbins:The other complication with medical certs is the balance between personal privacy, doctor-patient privilege and the right of the employer not to be taken for a ride. Therefore, your employer probably wont know if your certificate is for a sore knee, a headache, or depression - each of which obviously has a different effect on a person and their capabilities while off work.

Jeez, here we go with the privacy issue again.

The conditions of "sick leave" is a valid medical certificate. And if that contains private information so what? The employee has the option to not put it forward, but in most cases that would be a violation of their employment agreement. Therefore the employee has the right in most cases to "leave without pay".

MikeB4

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#878092 14-Aug-2013 13:27

A Doctor does not need to state what the condition is, they need to certify that the patient is unfit for duty for X period of time.

ajobbins

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#878097 14-Aug-2013 13:35

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.

The conditions of "sick leave" is a valid medical certificate. And if that contains personal information so what? The employee has the option to not put it forward, but in most cases that would be a violation of their employment agreement. Therefore the employee has the right in most cases to "leave without pay".

Well, you have a right to privacy. If your doctor has determined you unfit for work that is all that is required, the employer doesn't really need to know the circumstances. It's not up to them to decide if you are fit to work or not, that's the doctors call. If you are sick, you are entitled to sick leave by law. As far as I am aware, there is nothing in the law that says you have to tell your employer details of your illness, therefore they would have no right to make you take other types of leave in you choose to maintain your privacy.

Different roles will have different requirements. If you break your leg you are probably still fit to go to work if you have a desk job (after initial recovery), but if your job requires you to be mobile and walking, perhaps you aren't.

Either you are deemed by a doctor as fit to preform the duties of your role, or your aren't. This requires a certain level on honesty on the employees part (Both in terms of obtaining a medical certificate and their conduct while covered by it).

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