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.