Slashdot Mirror
New Zealand Court Orders Facebook Disclosure To Employer
An anonymous reader writes with a story out of New Zealand: "Gina Kensington was sacked by Air New Zealand earlier this year following a dispute over sick leave she took to care for her sister. She said she did not misuse sick leave, and went to the Employment Relations Authority (ERA) seeking reinstatement. Air New Zealand responded by demanding to see her Facebook and bank details. Kensington refused, saying it did not have that information when it dismissed her and that 'it is well accepted in New Zealand there are general and legal privacy expectations about people's personal and financial information.'"
At least in the U.S., Facebook isn't keen on employers getting access to employees' Facebook account details.
WILL be used against you.
What is surprising here us the court is making a summary judgement as to who is guilty until the prove their innocence. The unbelievable stretch in that allowing the airline access to information they didn't have in making their judgement to fire someone, as now somehow being proof of validity for firing them, is shockingly biased towards the airline and against the individual ie. we didn't know that but that's the reason why we sacked them. All that was required and should have been allowed was the companies policy regarding sick leave and the evidence obtained by the company to determine that she broke that policy, no further court ordered investigation should have been allowed.
Chaos - everything, everywhere, everywhen
... you would want to work for.
now we need to go OSS in diesel cars
"That's fine. However, I suspect the company has ulterior motives behind this decision; therefore I would like to have all emails by the director and finance departments to go through with a lawyer and an accountant to prove their motives. If they have nothing to hide then they shouldn't object, and it's only fair since you believe handing over passwords and examining *MY* private communications with any party to be fair play. I look forward to receiving the company emails. Regards."
Ha!
I can see how an employee could be sacked if his public FB page showed that he lied to this boss about being injured or sick. But an employer demanding access to private pages is very intrusive, that's what you might expect for extraordinary situations such as when the employee has been accused of a felony. Seems that Air NZ needs to tighten up their protocol for granting sick leave, rather than relying on these heavy handed ad hoc methods.
This is why courts are setup in tiers. This is why there are appeals. Because a stupid judge somewhere can't think hard enough to realize why this is dumb and the implications of the precedent they're setting. Luckily, the appeals courts generally sort this thing out before it goes too far off the rails.
What if... What if ... What if...
In an alternate universe where certain facts are known for certain, then sure there may be a problem. Over here, we can make up whatever stories we want about these alternate universes, but they don't affect us.
If the coworker takes off at a critical time without notice (did that actually happen?), then the job will be poorly done and you should raise the issue to management. Point out that the department was understaffed, and it's management's responsibility to have the right talent in-house at the right time.
Or, you take home extra pay pulling overtime picking up the slack, which costs management more than regular time, so they will eventually notice.
Or, you refuse unpaid overtime or have previous commitments that you cannot break and let your boss know this. If your boss can force you to come in to work even though you've got Laker's tickets, find another job.
You shouldn't particularly care if coworkers take time off or not - care about getting the job done on time, under budget, and at good quality. If you can't do this, care about whether it's your fault. Don't let your boss put unreasonable demands on you - that will only shift the blame to you when you can't pull off a miracle. Let them know about problems as they arise, and don't accept blame for things you can't control.
Holding yourself to a high standard of professionalism will work out better in the long run than putting "staying employed" ahead of everything else in your life. It may cost you in the immediate short-term, but the total returns over time far outweigh the immediate costs.
Exactly which is why I automatically think something hinky is going on when we see a case like this, because there are tons of dumbasses fired every day and the reason they don't make headlines is it takes the company 2 seconds to show they fucked up constantly. A bad employee will give you enough rope to hang them several times over, no need to get into FB or anything else as their behavior on site should be enough to get them shitcanned, which makes me want to know what the REST of the story is with this case.
ACs don't waste your time replying, your posts are never seen by me.
Someone tipped them off that she wasn't caring for her sister and was using it like a vacation. To what extent we don't know.
An argument of 'I was smart and there's no way you could have known what I was up to, so you can't have fired me for that' is exceptionally child like.idea.
In civilized society, the burden of proof for any legal action falls on the accuser, not the accused.
If she's accusing the company of wrongful termination, she better damn well be able to prove it.
You can get a lot more information than is needed for the case from those. In particular, I wonder what they'd want her bank details for? To show she's got work on the side? To show she traveled somewhere?
Facebook I could understand more as people post dumb incriminating things on there all the time. However there's still a trove of information that the employer shouldn't have access to, such as things indicating sexual orientation, political lean, and many others.
Don't feel bad - in America we have "at will employment" by default, so your employer doesn't even need a reason to fire you. For any reason or no reason, just not for an illegal reason. On the other hand, for gov't employees it's almost impossible to fire them; procedural due process applies for some reason, somewhere in the Constitution.
Because it's the morally right thing to do and because it's law in civilized countries.
They're not asking for a download of her entire Facebook history, they're asking for records of her activity for specific days when she was out on sick leave, and they believe she misused the time.
This is, despite the moaning in this thread, a completely legitimate legal request - and in fact, it's pretty narrowly focused. They're not saying "We want all of it, since the beginning of time." Believe it or not, you're allowed to subpoena records in court cases, especially if those records are full of facts relevant to the case at hand.
That "Facebook disclosing these records might undermine my complaint" is not a legitimate argument, unless we somehow have reached the point in our social decline where we feel that the truthfulness of complaints now doesn't matter, as long as somebody is accusing a "big bad company" of wrongdoing?
A vindictive boss may make you quit just so he can get your unemployment claim denied and then squeal about it during reference checks.
Never underestimate the damage that can be done by a boss with an axe to grind.
Sadly, it usually doesn't matter.
For a prospective employer doing a reference check, pissing off your prevoius boss is almost always lethal to your career no matter WHAT actually happened.
Even if your previous boss was a big fat liar and set you up on purpose because of something petty and personal, your next boss won't give a shit. All he'll care about is that your last boss hated your guts and that "oh my there must have been some reason".
Especially if there's a bunch of candidates to choose from that don't have any baggage from previous bosses.
Also, your current boss probably knows this and won't have any problems shitcanning you and badmouthing you tacitly to your next boss if they want to put you in your place, or make you pay for something.
Admit it, bosses are in the upper crust of society and get what they want. Us peons on the bottom of the totem pole get all the crap and the bosses get all the glory.
Oddly though, it's the company's time and money being spent on payroll, so unless workers are actually entitled to a job...
This is in New Zealand.
We have legally enshrined sick leave in addition to 3 weeks of annual leave.
Using sick leave when you're not sick is tantamount to fraud.
Been there, done that, and been accused of fuckups that happened five years before I even started working in the place. Bosses with an axe to grind tend to do it a lot so it they start to get a reputation of being liars. Short term pain does happen though.
If she accessed it at work would it be visible in the cache in plain text? I'm not going to go looking through the cache at my workplace to confirm it since I don't use Facebook and it's legally dubious (OK maybe downright illegal) to see if other people's private Facebook stuff is there, so does anyone already have the answer?
Personally I think the airline are being pricks, especially in asking for bank records, but I am curious to know if it is that easy for a workplace to grab people's "private" information from Facebook since I don't know if Facebook have got their shit together enough to use encryption.
Just give a day's notice? And you are old enough to be in the workforce? You've never even seen or thought of an accident?
Sometimes this place amazes me.
In civilized society, the burden of proof for any legal action falls on the accuser, not the accused.
In criminal cases. In civil cases, there is a dispute, not necessarily an accuser and an accused. Like in this case, is the woman accused of faking sickness? Or is she accusing the company for firing her without good reason? If we took your attitude, everyone would act quickly to become the accused, and not the accuser.
We hear this all the time. "You don't want to work for this company!" An entire judgement against a massive company as the result of one news article. Often these one news articles are the result of one stupid HR person in one small part of a small office and in an attempt to save face they took their actions to the extreme.
Funny how we pass judgement based on the experience of 0.01% of the employees of the company.
Funny how we pass judgement when we've heard only an article which covers one side of the story (I'm sure a company doesn't routinely fire all employees who take leave without some thought that it was improper).
Funny how a post like yours always somehow is deemed insightful.
The only thing really certain here is that this IS a company that this person wants to work for, or she wouldn't have taken them to the tribunal to get re-instated.
Same here. Just because they asked it AND it was provided tells me there is more going on.
I have seen employees taking serious advantage of the system.
Employee does not come to work and says he is sick. (Even has found a doctor that confirms this.) next the employee brags on Facebook that he is not sick, but just wanted the extra month payed holiday. (Some countries pay you when you are sick at home. e.g. Belgium, where I live)
You hear about this. Now what would you do as HR?
a) Nice job, which I would have thought of that,
b) Try to get the proof, so you can fire the person without any payment, which would otherwise cost you several months pay.
In Belgium this will start at 3 months and 3 additional months are added every 5 years.
Not wanting to give people that money f they do not deserve it is also a sign to others to not try that bullshit.
So my guess is that this is not so much about a bad employee, but somebody who defrauds the company.
If this is to be understood you need at leas hear both parties AND now the laws that go over this.
If this would happen in Belgium, I would go with the company, because if they take such kind of steps, that means they are on to something. e.g. not the first issue with that person. That will most likely leave people who have to do the work not very happy.
Also in Belgium if it happens in one case does not mean it will happy in any other case.
Don't fight for your country, if your country does not fight for you.
The question is, does the employer have the right to invade the employee's privacy for any reason.
When that employee has chosen to take them to court and the information they request could be extremely relevant to their defence then yes, that employer does have a right to the information. It is the company being sued here and whether they behaved well or not they have a right to the information they need to defend themselves. If she did not want to reveal this information then she should not have sued them or, in fact, but it on a public website like Facebook.
...You need to be on my friends' list to see most of what I post, and you need a FB account to even see my main profile at all.
People who aren't on my list will know that I have a couple radio shows...that's pretty much it.
There's more you don't get. The person you commented on doesn't post a "real" private life on the internet, but a fake one. If anyone were to look him up, they'd find something plausible, non shocking boring information. Probably enough to leave him alone and not bother looking any further. That's the trick, not having a life that isn't worth hiding, but hiding behind a fake life.
I was promised a flying car. Where is my flying car?
Sure. When a judge orders you to disclose information supply it in Braille. Or Swahili. Or kindergarten handwriting. Then say, in a whiny nasal voice, "You didn't say what language or format, you pompous gimmer. Ner na ner na nerr nerrrr!"
He'll be so busy chuckling at how an internet gobshite like you outwitted a highly educated professional like him that he'll totally forget to slap you for contempt.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
My former boss and many of my co-workers are in my friends list. It's an extension of "if you don't want someone to see it, don't put it online". It's difficult to post in a public forum and then try to control who sees it. That's what "public" means.
I've caught a company rep in a lie based on information from the public linkedin profies of two of their employees, and called them on it. See "public"...
(Note that private communication to individuals is an entirely different thing.)
That said, if a company demanded to see my facebook profile, I'd decline on general principles.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
Back to myspace?
I'd rather gouge my eyes out.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
For NOT having a fb account that the government can control. Mine will be pages of death threats against imaginary government officials.
This is not an employer demanding access to the entire facebook account without good reason (which would be slapped down quite hard by a NZ court and a lawyer suggesting it would probably face sanctions)
This is a specific case in employment court where the employer is accusing the employee of "bunking off" during sick leave and the court agreeing that obtaining FB posts for the 2 days in question will help resolve the dispute quickly.
The same logic applies to the demand for bank records for those 2 days - New Zealanders use debit cards a _lot_ and the records for those 2 days will show her approximate location via retail purchases made.
Given that Facebook entries can be deleted, the only reason I can imagine for her resistance up to this point is to ensure the court gets untainted evidence, or that she's been so stressed by their activities that she's naturally uncooperative (this is common in cases of constructive dismissal). Not that it'd help. I use quiet periods in bed when stuck home with flu to update my FB feed as a f'instance.
The alternate (reasonable) explanation is that the employer demanded all records (excessive) and the court has agreed she only needs to provide for the 2 days in question. TFA doesn't give enough detail to explain the background of the order.
That's OK, MySpace will take care of that for you. Or for the deluxe special, we could bring back Geocities.
Sara
Designer, Gamer, Macgrrl in an XP World
Wow. I actually do vaguely remember Geocities. Not in a good way.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.