Despite the excitable reaction from Tech Liberty, the Employment
Relations Authority (ERA) was acting well within its
powers when it ordered an employee to hand over her Facebook pages
and bank accounts for the period in dispute1.
Rather unremarkable, really. Certainly not an unwarranted
invasion of the employee's privacy.
The employee concerned, Gina, was dismissed after she took sick
leave, purportedly to look after her sister. Gina has challenged
her dismissal. The genuineness of her sick leave is a central issue
to the dispute.
As a defendant, Air NZ has a right to ask for disclosure of all
material that could be relevant. Obviously this would include
information which might shed light on Gina's activities on the
days in question.
If this suggests she was not caring for her sister, then any
remedies to which she might otherwise be entitled - for any
established failure by Air NZ in the manner in which it arrived at
its decision to dismiss her - could be reduced. If the documents
support her story, her claim for redress will be strengthened.
In considering requests for disclosure, the ERA must weigh up
any competing interests to the material, including privacy
That was the basis for the Employment Court's order in
Wrigley for the disclosure of interviews from other candidates in
the selection process as a result of which Mr Wrigley was made
redundant. The Court held that the material was relevant to the
issues in dispute, and that Mr Wrigley's interest in seeing the
material outweighed the other employees' rights to privacy.
It's hard to see how a complainant's own privacy
interests can be said to compete with his or her obligation to
disclose information. In Wrigley, the point was that an
obligation to disclose may even overcome third party privacy
Chapman Tripp comments
The Employment Relations Amendment Bill, now before the select
committee, seeks to remedy the position in Wrigley by amending the
duty of good faith in section 4 of the Employment Relations Act
(ERA) to clarify that employers are not required to
provide an employee with confidential personal information about
another person, or evaluative material about the employee
concerned, where the employer is proposing to make a decision that
will, or is likely to, affect an employee's continued
This will bring the ERA largely back into line with the Privacy
Act 1993 and is a welcome move. But it would do nothing to disturb
the Authority's finding in relation to Gina – and neither
Employees challenging a dismissal must be taken to have waived
their own privacy interests in material relevant to the dispute.
This is a perfectly ordinary and reasonable rule and – indeed
– one that applies to general civil disputes.
If anything, the decision serves not as a cause for concern but
as a reminder for prospective litigants to think strategically of
the benefits and risks of litigation.
1 NZERA Auckland 332 5421308
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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