I came across an article this morning that both surprised and alarmed me.
In simple terms it is all about a case of alleged unfair dismissal. Employee takes two days of sick leave to care for a sick relative, but the employer says the employee was doing something else and sacks her. Employee seeks reinstatement. Fairly standard employment dispute ground it’s fair to say.
Now obviously we don’t know all the details of the case such as whether the said employee had abused the sick leave policy in the past or had previous disciplinary form, or on what evidence her employer (Air New Zealand) took the decision to dismiss.
The surprise in all of this is the report that New Zealand’s Employment Relations Authority has told the employee to allow access to both her Facebook account and bank account at the request of her former employer to apparently test the veracity of the sick leave claim.
We have insufficient information to understand the ins and outs of the case and it’s still before the courts but there are two things here that bother me.
Surely, the onus is on the employer to defend their case on the basis of the information on which they made the decision to dismiss? If the clear hard evidence isn’t there, it’s arguable that most employers wouldn’t make a decision to dismiss. If you do make a decision to dismiss as an employer based on the balance of probability rather than hard evidence for example, then that tends to carry a higher risk in my book. From what I can tell, the former employee in this case is arguing that the information now being requested was not part of the original decision and so should not be used.
The Facebook thing I can understand to a degree. We know that has been used successfully in past dismissal cases in this country and elsewhere. As we know, once any of us post something online it is effectively public. And if something relevant can be accessed and obtained by an employer during their investigation then it can be used. That’s well established.
But getting access to a Facebook account long after the event is not going to find anything that has been deleted surely? What the employer will potentially find is lots of personal and private conversations that are absolutely none of their business.
Similarly, being told to surrender bank account information from the dates in question seems to be taking us into dangerous territory. Remember, this case is about the alleged misuse of sick leave not about theft or fraud. Privacy group Tech Liberty has already slammed the decision.
As HR professionals do we really want to be intruding into people’s private lives to justify a dismissal or agree remedies? Do we really want to get into the realm of criminal investigation over every staff misdemeanour? How far is too far in obtaining personal and private information from staff in a disciplinary situation?
We obviously need further context to understand the ins and outs of the case which will no doubt become public in due course. In the meantime, I will be awaiting the detail and the judgement on this case with a lot of interest. The implications are potentially enormous.
Up the Down Escalator 
I completely agree. I was surprised to see the ERA demand that request. If it was used in the initial investigation by AirNZ then I could understand the access being granted for further inspection. But the ERA is supposed to determine if the process used and the decision was justified. I think the bank accounts is definitely a step too far. I don’t think I could bring myself as an HR professional to suggest to a manager to ask to get that information during an investigation. If it was part of the allegation then I could see that, but not in this case. In the Taiapa case where he was dismissed for misuse of sick leave and FB photos were used, is the case more relevant to this one, it was public knowledge and it was used in the initial investigation. FB was not used in the investigation in this case. I can’t wait to read more as it unfolds!
With modern technology these days most apps on smart phones mean that regardless of where you are or what you are doing you can update a status… what I guess this means then if employees are smart about it they will update a status to reflect the reason for a leave of absence. This could include a bank purchase at a chemist! So how will that stack up in a decision?
It appears to be a Nanny state request to me … unless prior history would lead you to believe that this is not an isolated case. It should be looked at in the first instant not after the fact and I would have thought that again there would have been prior history reflecting status updates that were not true.
How do we then determine if a sick employee is not lying in bed/hospital/at chemist? Maybe employers now need to put GPS on all phones to track employee’s… I think that we are only encouraging employees to be even more deceptive if they feel that they are not operating in a culture of transparency and support with their employer.
Tash and Fiona. There seems to be general concern about this from the HR and legal communities. This might be something that will deter employees from raising grievances if they know their private affairs will be open to such scrutiny. That probably wasn’t the ERA’s intention I’m guessing.
There has been healthy debate on my facebook after putting the link to the NBR Article, but i think that you have summed it up well in this article 🙂 It will be interesting to say the least