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  Reply # 879360 16-Aug-2013 10:46
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ajobbins: 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. 



In my view, and hopefully Nickrout can provide information to alter my view, this picture is far worse than you paint.

It is not an issue that happens at the ERA level – it is what happens at the Employer / Employee level.

The test for justification for an employers’ actions is what a fair and reasonable employer could have done at the time. Sensible employers will look at ERA decisions to get a sense of what that standard of fairness and reasonableness is likely to be.

Here we now have the ERA saying it is quite reasonable to test an employee’s honesty by delving into their facebook and banks accounts. It is quite reasonable to discount other information and rely on social media which is not designed with honesty in mind. Indeed Facebook is designed to promote dishonesty and storytelling in whatever manner necessary to gain “friends” yet the ERA is allowing employers to use this as a credible, and reliable source of information. To me, that is just nuts!

It is also shifting the onus of proof in an allegation of lying off the employer to provide evidence and onto the employee to prove innocence.

It is now quite reasonable for an employer to simply say “I think you are lying, hand over your bank accounts to prove you aren’t”. The employer doesn’t even have to do the work and troll through facebook accounts themselves to find the evidence they just need to say “Hand it over”.

This is how employers can run a disciplinary process now:
Employer to employee: “I think you are taking drugs”
Employee. “No I ‘m not”
Employer. “I don’t believe you. Hand over your face book account (so I can see who you are contacting) and hand over your bank accounts so I can see if there are any transactions I might think are related to drugs”
Employee “yes boss, that is quite a reasonable request and I look forward to you looking at my personal information so you can see there is no drug dealing and I am an honest person. I don’t mind at all that you’ll see me spending $500 a week at Calendar Girls, my NAMBLA annual subscription has been paid or that I spent $100 at a petrol station at a time when I was supposed to be at work.

And the result will be:
Employer: “I now believe you aren’t taking drugs so the matter is closed you little perv who likes checking out naked women and young boys. But I need to speak to you about your absence.”

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  Reply # 879377 16-Aug-2013 11:07
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ajobbins: Scenario A: {snip}...


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


minimoke: 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.


The big problem with all of the above is that your and my opinions are based next-to-nothing. All we know is the tiny fraction of what the media wants us to know through its sensationalism. Here's what we don't know:


  • what KENSINGTON actually did on that day

  • what Air New Zealand actually knows (they are bound by privacy laws and can't reveal this to the general public)

  • what the entire course and content of her eventual dismissal entailed

  • what the full case she presented to the Authority is (including arguments)

  • what the full case Air NZ presented to the Authority is (including arguments)



From the exceptionally limited (and heavily biased) amount of information available in the public domain, the only thing I believe I can reasonably surmise from all of this, so far, is that:


  • KENSINGTON was already skating on thin ice prior to her dismissal

  • she took a sickie then posted something incriminating (for want of a better word) to Facebook

  • this 'thing' would have involved her needing to spend at least a particular amount of money

  • Air NZ have in fact raised this with her (but being bound by the Privacy Act cannot make public comment)

  • disclosure of her Facebook and bank account records for the day in question will sink her case faster than a rat going down a drainppipe

  • because of this she's gone screaming to the media with a FUD story in an attempt to embarrass Air NZ into a backdown and sway the ERA through ill-informed public pressure


On looking through the Interim Determination of the Authority, and reading between the lines, it appears to me:

  1. the ERA are struggling a little bit with the truthfulness (veracity) of the applicant (KENSINGTON)

  2. they are also looking at this from a point of view which considers the possibility of financial remedies and possibly even reinstatement [para 7]

In order for them to reasonably assess 1 and 2 (which by their very nature cancel the notion of bias) they want access to her Facebook and Bank records for the day in question. The ERA haven't said she "must" admit they evidence, they refer to it as "evidence sought" and "relevant". They quite plainly lay out their reasoning as to why and they have also quite plainly been pointed in the direction of this evidence. She has a right to refuse to disclose the records requested - but there will be a consequence for that. She can elect to disclose the records but I have a feeling there will be a consequence for that too. I get the impression of a cornered animal.

The biggest question that springs to my mind is why haven't Air NZ presented copies of her Facebook account themselves? A possible answer may be that her account is private. I would speculate a co-worker (maybe more than one) has dobbed her in and during the meeting which culminated in her dismissal the Facebook entries were raised but were unable to be produced. Naturally, she denies any wrongdoing and here we are today. Another possible answer may be that Air NZ *have* produced them but she's claiming they're faked. Who knows? - certainly not us...

EDIT: corrected a spelling mistake, there's probably more! Cleaned up the formatting a little too.

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  Reply # 879387 16-Aug-2013 11:23
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  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 strikes me that Air NZ thought the woman was lying but had no evidence (or not enough) during the disciplinary process and relied on whatever evidence they did have to find she misused her sick leave. AirNZ is quite entitled to prefer their managers story over Kensingtons story. At some point we may see what information each had to support their position.

This ERA decision is at the Telecomference stage which is a stage where the parties get to raise the evidence they are wanting to bring to the investigation meeting. They didn't have the robust proof she was lying - otherwise they would be presenting it to the ERA and the issue wouldn't be contested. They probably didn’t have it at Mediation either – if they had Kensingtons solicitors might have advised her that continuing the pursuit of her PG was fraught with difficulty.

Reading between the lines it strikes me that AirNZ have come across information after their decision and they are wanting this information brought to the table. The ERA has used its powers to seek that information.

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  Reply # 879399 16-Aug-2013 11:28
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Dratsab: The biggest question that springs to my mind is why haven't Air NZ presented copies of her Facebook account themselves? A possible answer may be that her account is private. I would speculate a co-worker (maybe more than one) has dobbed her in and during the meeting which culminated in her dismissal the Facebook entries were raised but were unable to be produced. Naturally, she denies any wrongdoing and here we are today. Another possible answer may be that Air NZ *have* produced them but she's claiming they're faked. Who knows? - certainly not us...


At this is core to the reason I think the determination is wrong.

If her account is private, either A) Air NZ have been given copies of a Facebook post which then could then present as evidence or B) They have been TOLD of the existence of Facebook posts but can't verify them.

In the case of A, all she has to do is simply remove the Facebook post before handing over the details. And then what? In the case that she agrees to present Facebook records and they show nothing, there is NO WAY to prove that that post either did or did not exist at a point in time.

In the case of B, the question then becomes, was it reasonable for Air NZ to sack her on conjecture? I struggle to see (regardless of whether she being bad or not, and regardless of other circumstances.) how that can or should influence the outcome of this hearing.

In ANY circumstance, having to hand over her bank details is dangerous. As I said before, lines and dates on bank statements don't always correlate to the actual date that transaction took place. There is no way the ERA could accurately determine when those transactions really happened.




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  Reply # 879407 16-Aug-2013 11:39
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Dratsab:

The big problem with all of the above is that your and my opinions are based next-to-nothing. All we know is the tiny fraction of what the media wants us to know through its sensationalism.

This discussion ought to be about the reliability of Facebook and bank accounts in a discplinary process. All the other stuff is really a seperate discusson and we can't contribute because we dont know the background.


From the exceptionally limited (and heavily biased) amount of information available in the public domain, the only thing I believe I can reasonably surmise from all of this, so far, is that:

I've steered clear of any of this information - its not really the issue

because of this she's gone screaming to the media with a FUD story in an attempt to embarrass Air NZ into a backdown and sway the ERA through ill-informed public pressure


I'm not sure you are right on this front. She is represtened by two solicitors who ought to be advising her on stragey and chance of success. That approach is doomed to fail!


You're probably right on this one -


On looking through the Interim Determination of the Authority, and reading between the lines, it appears to me:


    1. the ERA are struggling a little bit with the truthfulness (veracity) of the applicant (KENSINGTON)


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  Reply # 879434 16-Aug-2013 11:57
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ajobbins:

In the case of A, all she has to do is simply remove the Facebook post before handing over the details. And then what?

 Just a word of warning. Its not that easy. I've fired a person partly in reliance on a series of facebook posts. It involved me searching her name (maiden and married), which turned up her face book name, which turned up posts in other peoples facebooks accounts and other web pages which showed her comments. It took a while to find but the information was there. She never contested the information so no PG. That’s just me working on a low tech basis. You’d be surprised at what forensics folks (I’ve used them as well) can pull of electronic media. Some say once information is in cyberspace its there forever – I’m inclined to agree.

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  Reply # 879461 16-Aug-2013 12:39
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minimoke:
  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 strikes me that Air NZ thought the woman was lying but had no evidence (or not enough) during the disciplinary process and relied on whatever evidence they did have to find she misused her sick leave. AirNZ is quite entitled to prefer their managers story over Kensingtons story. At some point we may see what information each had to support their position.


But i think this could be the crux. Air NZ claims to have enough evidence to terminate her employment and she claims they don't hence she goes to the ERA. I agree with the above that the ERA are leaning with Air NZ and are giving her the opportunity to provide more evidence. I bet if she didn't want to give it she could just walk out and the ERA would probably find in favour of Air NZ with the current evidence before them.

But who knows. Let's wait for the final decision to be made public and then we will know for sure.

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  Reply # 879463 16-Aug-2013 12:40
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minimoke:  Just a word of warning. Its not that easy. I've fired a person partly in reliance on a series of facebook posts. It involved me searching her name (maiden and married), which turned up her face book name, which turned up posts in other peoples facebooks accounts and other web pages which showed her comments. It took a while to find but the information was there. She never contested the information so no PG. That’s just me working on a low tech basis. You’d be surprised at what forensics folks (I’ve used them as well) can pull of electronic media. Some say once information is in cyberspace its there forever – I’m inclined to agree.


And I don't disagree. But if it's publicly available online, they would have it already.

If it's not, I doubt the ERA could call in forensics.

It's the same with bank details. If you really wanted to PROVE a particular transaction shown on a bank statement occurred on a particular date or time, you would have to have the bank do an investigation into that. I doubt the ERA can order that kind of investigation - particularly if the evidence wasn't available at the time the dismissal happened.




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  Reply # 879469 16-Aug-2013 12:46
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ajobbins:
minimoke:  Just a word of warning. Its not that easy. I've fired a person partly in reliance on a series of facebook posts. It involved me searching her name (maiden and married), which turned up her face book name, which turned up posts in other peoples facebooks accounts and other web pages which showed her comments. It took a while to find but the information was there. She never contested the information so no PG. That’s just me working on a low tech basis. You’d be surprised at what forensics folks (I’ve used them as well) can pull of electronic media. Some say once information is in cyberspace its there forever – I’m inclined to agree.


And I don't disagree. But if it's publicly available online, they would have it already.

If it's not, I doubt the ERA could call in forensics.

It's the same with bank details. If you really wanted to PROVE a particular transaction shown on a bank statement occurred on a particular date or time, you would have to have the bank do an investigation into that. I doubt the ERA can order that kind of investigation - particularly if the evidence wasn't available at the time the dismissal happened.


Maybe it gets taken to the Employment Court then if that's how much it means to her and she can then prove the inadmissible nature of such evidence?

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  Reply # 879474 16-Aug-2013 12:55
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ajobbins:
Dratsab: The biggest question that springs to my mind is why haven't Air NZ presented copies of her Facebook account themselves? A possible answer may be that her account is private. I would speculate a co-worker (maybe more than one) has dobbed her in and during the meeting which culminated in her dismissal the Facebook entries were raised but were unable to be produced. Naturally, she denies any wrongdoing and here we are today. Another possible answer may be that Air NZ *have* produced them but she's claiming they're faked. Who knows? - certainly not us...


At this is core to the reason I think the determination is wrong.

If her account is private, either A) Air NZ have been given copies of a Facebook post which then could then present as evidence or B) They have been TOLD of the existence of Facebook posts but can't verify them.

In the case of A, all she has to do is simply remove the Facebook post before handing over the details. And then what? In the case that she agrees to present Facebook records and they show nothing, there is NO WAY to prove that that post either did or did not exist at a point in time.

In the case of B, the question then becomes, was it reasonable for Air NZ to sack her on conjecture? I struggle to see (regardless of whether she being bad or not, and regardless of other circumstances.) how that can or should influence the outcome of this hearing.

In ANY circumstance, having to hand over her bank details is dangerous. As I said before, lines and dates on bank statements don't always correlate to the actual date that transaction took place. There is no way the ERA could accurately determine when those transactions really happened.


Even if we assume your belief of Air NZ finding out about Facebook posts subsequent to the dismissal is correct, it doesn't diminish the fact of her dismissal and, more importantly, the fact we don't know the reason for this dismissal. Therefore it cannot be called or assumed to be conjecture.

Am I correct in thinking, based on the content of your posts, you are opposed to the concept within our legal system of subsequent discovery?

Are you also suggesting that if a person puts themselves before a tribunal, that the tribunal should not have the ability to test and assess the veracity of the complainant and the complainants allegations?

minimoke: This discussion ought to be about the reliability of Facebook and bank accounts in a discplinary process. All the other stuff is really a seperate discusson and we can't contribute because we dont know the background.


Not sure where you're coming from with this. This entire conversation is predicated on the sensationalism of media commentary. Just look at the title of thread!

The ERA wants the information for conducting it's own assessment (as opposed to your massively incorrect assertion that Air NZ was on a fishing trip). You state looking at this information is wrong - why? She's put herself there and her veracity should, rightly, be objectively tested. If she claims on one hand she was looking after a sick relative, but posts on Facebook "had a fab day at the casino today - won a mint!" [I know, extreme example :-)] then there's clearly a problem with what she's told the tribunal.

BTW - Don't get me wrong; I'm not arguing in favour of Air NZ (even though I've nailed my colours to the mast), I'm arguing in favour of the tribunal being able to do it's job effectively. The records sought are tools (evidence) which will help them achieve this.


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  Reply # 879488 16-Aug-2013 13:17
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Dratsab:Even if we assume your belief of Air NZ finding out about Facebook posts subsequent to the dismissal is correct, it doesn't diminish the fact of her dismissal and, more importantly, the fact we don't know the reason for this dismissal. Therefore it cannot be called or assumed to be conjecture.


I'm just presenting that as one possibility along with the consequences should it be the case.

Am I correct in thinking, based on the content of your posts, you are opposed to the concept within our legal system of subsequent discovery?


No. I'm trying to play devils advocate here. What I am trying to point out is the the primary objective of the ERA is to determine if the Employer was fair and reasonable, based on the information and evidence they had at the time of the dismissal. The validity of the absence is not what is being argued in front of the ERA, it's the validity of the employers response is it not? Which therefore makes the discovery of this evidence irrelevant to what the ERA is being asked to determine.

Are you also suggesting that if a person puts themselves before a tribunal, that the tribunal should not have the ability to test and assess the veracity of the complainant and the complainants allegations?


The allegation in front of the ERA is that Air NZ terminated employment without conclusive evidence that she had done anything wrong.

Furthermore, and this is the main reason I have a problem with this ruling, is the evidence (Facebook and bank records) ordered by the court are not reliable enough (by a long shot, IMO) to prove anything either way - and by allowing them to be obtained sets a dangerous precedent.






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  Reply # 879493 16-Aug-2013 13:25
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Dratsab:

Not sure where you're coming from with this. This entire conversation is predicated on the sensationalism of media commentary. Just look at the title of thread!

The thread is headed "NZ Court (which is patently incorrect) Orders Facebook Disclosure to Employer" - no mention of sick leave there. There is then a bit of a mention of sick leave but the OP concludes with "At least in the U.S., Facebook isn't keen on employers getting access to employees' Facebook account details." So where I'm coming from is the right of employers to explore Facebook and bank account details, not sick leave.

The ERA wants the information for conducting it's own assessment

I agree it. It should be an assessment of the sick leave and apparent abuse. Wrapped up in this is the information Air NZ used to reach its decision and the information Kensington used to defend herself. At this point we should take at face value both parties are being honest.
(as opposed to your massively incorrect assertion that Air NZ was on a fishing trip)
Strikes me that AirNZ didn’t have the information to start with. How did the ERA get to hear about it - probably because AirNZ dropped the bait.

You state looking at this information is wrong - why? She's put herself there and her veracity should, rightly, be objectively tested.
Since when do we subject every party to every issue to objective tests. And please, facebook and bank accounts is objective? Where is the evidence Kensington is being deceitful – she is after all under the watch of two solicitors.

If she claims on one hand she was looking after a sick relative, but posts on Facebook "had a fab day at the casino today - won a mint!" [I know, extreme example :-)] then there's clearly a problem with what she's told the tribunal.
Pure, but understandable speculation. Lets wait to see what her side of the story is and whether we think it is believable. Since she is the one that put her self in this situation (arguably AirnZ did by firing her) then she will be aware the first hurdle she has to pass is giving truthful evidence under oath. There are loads and loads of ERA decisions which have been made on the basis of the credibility of the people concerned – without the orders made here

BTW - Don't get me wrong; I'm not arguing in favour of Air NZ (even though I've nailed my colours to the mast), I'm arguing in favour of the tribunal being able to do it's job effectively. The records sought are tools (evidence) which will help them achieve this.


Also BTW I have no view on AirNZ or Kensington as I simply dont know the sick leave details. But I remain of the view that delving into dodgy facebook and not necessarily reliable bank accounts does not help the ERA in doing its job effectively. The ERA should in the first instance hear the evidence and cross examination and form a view on veracity from there. Strikes me the ERA is saying already that Kensington can’t/may not be believed before even hearing the evidence.

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  Reply # 879545 16-Aug-2013 14:23
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minimoke:
Dratsab:

Not sure where you're coming from with this. This entire conversation is predicated on the sensationalism of media commentary. Just look at the title of thread!

The thread is headed "NZ Court (which is patently incorrect) Orders Facebook Disclosure to Employer" - no mention of sick leave there. There is then a bit of a mention of sick leave but the OP concludes with "At least in the U.S., Facebook isn't keen on employers getting access to employees' Facebook account details." So where I'm coming from is the right of employers to explore Facebook and bank account details, not sick leave.

But that's not what's going on. The ERA wants the information. They're not requesting it in order to pass it on to Air NZ. And it's the ENTIRE thread title which is incorrect. No Court, no order, no Facebook disclosure to the employer.

The ERA wants the information for conducting it's own assessment

I agree it. It should be an assessment of the sick leave and apparent abuse. Wrapped up in this is the information Air NZ used to reach its decision and the information Kensington used to defend herself. At this point we should take at face value both parties are being honest.
(as opposed to your massively incorrect assertion that Air NZ was on a fishing trip)
Strikes me that AirNZ didn’t have the information to start with. How did the ERA get to hear about it - probably because AirNZ dropped the bait.

If they dropped the bait (we agree here) they had the information. In what form we don't know. At what point we don't know. The only way we'll ever know is by seeing the dismissal documentation which'll never happen.

You state looking at this information is wrong - why? She's put herself there and her veracity should, rightly, be objectively tested.
Since when do we subject every party to every issue to objective tests. And please, facebook and bank accounts is objective? Where is the evidence Kensington is being deceitful – she is after all under the watch of two solicitors.

I actually laughed out loud at your last comment here. Where is the evidence KENSINGTON is being deceitful? - it's in the same place as the evidence she's being truthful. Tribunals and Courts subject everyone who appears before them and every issue they raise to objective tests every day. It's part of their function. Some people draw more attention to themselves than others, the levels of veracity are assessed accordingly.

If she claims on one hand she was looking after a sick relative, but posts on Facebook "had a fab day at the casino today - won a mint!" [I know, extreme example :-)] then there's clearly a problem with what she's told the tribunal.
Pure, but understandable speculation. Lets wait to see what her side of the story is and whether we think it is believable. Since she is the one that put her self in this situation (arguably AirnZ did by firing her) then she will be aware the first hurdle she has to pass is giving truthful evidence under oath. There are loads and loads of ERA decisions which have been made on the basis of the credibility of the people concerned – without the orders made here

So there's plainly something going on here that isn't being put into the public domain. That 'thing' has triggered the response from the ERA that so many people are whining about.

BTW - Don't get me wrong; I'm not arguing in favour of Air NZ (even though I've nailed my colours to the mast), I'm arguing in favour of the tribunal being able to do it's job effectively. The records sought are tools (evidence) which will help them achieve this.

Also BTW I have no view on AirNZ or Kensington as I simply dont know the sick leave details. But I remain of the view that delving into dodgy facebook and not necessarily reliable bank accounts does not help the ERA in doing its job effectively. The ERA should in the first instance hear the evidence and cross examination and form a view on veracity from there. Strikes me the ERA is saying already that Kensington can’t/may not be believed before even hearing the evidence.

To add to the don't knows listed earlier, we don't know why she doesn't want to reveal her bank transactions for that day to the ERA, so going on about "not necessarily reliable bank records" etc is, as you say, "pure but understandable speculation". Also to add to the don't knows listed earlier, we don't know why she doesn't want to reveal her Facebook transactions for that day to the ERA, so going on about "dodgy facebook" etc is, once again as you say, "pure but understandable speculation". Documents are purely objective, they either say something or they don't. They are not sentient, they are not capable, in of themselves, of lying. The veracity of the information they contain can be subjectively tested (ie differing opinions as to what they are actually saying) and objectively tested (affirmation of accuracy). I remain of the view that looking at all the evidence available will help the ERA operate more effectively.

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  Reply # 879623 16-Aug-2013 15:56
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Dratsab
But that's not what's going on. The ERA wants the information. They're not requesting it in order to pass it on to Air NZ. And it's the ENTIRE thread title which is incorrect. No Court, no order, no Facebook disclosure to the employer.

Here is what the ERA wants to do: "file with the Authority and serve upon Counsel only copies of her bank accounts and Facebook pages for 8 and 9 March 2013". I interpret that to mean give the facebook and account information to Air NZ, as well as the Authority

If they dropped the bait (we agree here) they had the information. In what form we don't know. At what point we don't know. The only way we'll ever know is by seeing the dismissal documentation which'll never happen.


Aspects of the dismissal information will come out if this problem continues through the investigative process.

I actually laughed out loud at your last comment here. Where is the evidence KENSINGTON is being deceitful? - it's in the same place as the evidence she's being truthful. Tribunals and Courts subject everyone who appears before them and every issue they raise to objective tests every day. It's part of their function. Some people draw more attention to themselves than others, the levels of veracity are assessed accordingly.

Agreed - but how many times do we hear a judge saying "go off and grab that extra information for me as I want to do my own test of your honesty". I can't recall when this has been done in an employment context - I am hoping someone will show me where!. Every day ERA Members are faced with believing one side or the other without this extra step.

So there's plainly something going on here that isn't being put into the public domain. That 'thing' has triggered the response from the ERA that so many people are whining about.


Agreed - but generally the ERA is being asked to decide if the employer was justified in coming to a decision to terminate at the time of the termination. The ERA is allowed to accept slight faults in process, depending on resources available to the employer. I would expect that someone like AirNZ would have a watertight position by the time they arrived at their decision. So this now begs the question - why did they not form a watertight position? Surely AirNZ submitted Kensington to some tests of her honesty at the time of their investigation. I'm perfectly comfortable with there being a "thing", indeed I think it quite probable - there usually is. It is the technique used to resolve this is what I am uncomfortable with. I’d be more comfortable with this argument if AirNZ originally decided not to fire Kensington and subsequently came upon this new evidence and then wanted to reopen their investigation. But that appears not to be the case.

[To add to the don't knows listed earlier, we don't know why she doesn't want to reveal her bank transactions for that day to the ERA, so going on about "not necessarily reliable bank records" etc is, as you say,


We know the broader "why". Its because she thinks the rules of natural justice will be breached and that this is prejudicial to her position. She also submits there are certain legal and privacy issues to be considered. Clearly her counsel weren't successful in securing that view.
I remain of the view that looking at all the evidence available will help the ERA operate more effectively.

Broadly, I don’t disagree. But how do we define "all the available evidence". AirNZ is a large employer with plenty of resource to have generated more than enough evidence to support their position to terminate. But obviously there isn't.

The beauty of the ERA is that it is an investigative body. It is not a court with all the adversarial hoopla that one expects in those environments. Its not supposed to get tangled in technical issues - its a body that is to resolve relationship problems, not pursue to the enth degree rabbit holes of information that may lead to who knows where. It needs to operate in a way that ensures it is accessible to employees and also small employers who do not have the resources to pay substantial fees to lawyers.

If lawyers and ERA members want to be with the big boys and go about setting precedents then let them join the Court circuit. I unaware of any precedent that has given employers access to social network and personal bank account details before. Maybe there is one – but no one has presented it to this discussion yet.

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  Reply # 880881 19-Aug-2013 10:39
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ajobbins: 

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.


While we wait for Nickrouts contribution to point us in the right direction from a qualified perspective I've done a bit more digging.

The employment court has recently said that taking of sick leave will usually be accepted at face value by the employer. Deliberate misuse may constitute serious misconduct which may result in dismissal. So it seems to me that new facebook and bank account information adds nothing to that process. Kensingtons honesty has already been tested and presumably she failed that test because she got fired. Since she doesn’t want to introduce the facebook and bank account details I can’t see the issue here. The ERA may want it – but surely a better test is to ask the sick sister: 1 – “were you sick”, “how sick were you” and 3 – What care did your sister give you”

The other issue which I am sure nickrout can help us on is subsequently discovered information. The Court of Appeal has said documents must show misconduct of a truly significant nature. I don’t know what looking at a person’s bank account details is going to show – its not like looking at emails that say bad things about your employer. We know having four witnesses talking about a caregiver and gardener kissing and cuddling in an old folks home breached company rules. Consequently a PG remedy compo was reduced by 50%. The Court of Appeal said it had to be really really bad behavior to justify a 100% reduction. So on one hand you have four witnesses who saw serious misconduct, on the other you have a facebook posting. I’m still struggling to see how the ERA can see that as relevant and I think it has overstepped the mark.

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