Employment relations specialist Steve Punter, from The People Effect, shares his opinion of the Air New Zealand employment case against long haul flight attendant Gina Kensington.
Kensington was fired after defying her manager’s instructions and took leave to care for her ill sister. She was forced to give bosses access to her Facebook and bank accounts as part of the employment investigation. The Employment Relations Authority has since ruled she had been unjustifiably dismissed.
Punter has based his opinions purely on reading the Authority’s decision.
Firstly, the judgement:
'It isn't over until it's over', we have yet to see whether Air NZ will try to have the case removed to the Employment Court, which would involve a challenge to the way the Authority reached its decision (not the decision itself).
Based only on reading the judgment, I think the Member has called it fairly. Air NZ didn't get it quite right in a procedural sense, bearing in mind that the employee had advice from her Union that she was entitled to take the leave, and Air NZ were aware of that. From the comfort of my office chair and with 20/20 hindsight, considering the amount of uncertainty that existed, Air NZ could have backed off and taken the matter up with the Union. While the Union is not the employer and thus has no authority to say whether or not Kensington could take the leave, it is acting in an advisory position and it is reasonable for Kensington to act on the Union's advice. It would still have been open to Air NZ after that to issue a warning for any offence that clearly had been committed.
The Member has used the expression 'causative and blameworthy' so I would expect any remedy to be adjusted downward to reflect the bad behaviour that has been proved. It may be that Kensington's win is a pyrrhic victory if contributory conduct is set at 50% or more and 'costs to lie where they fall'. Reinstatement will be determined having regard to 'confidence and trust' and we have yet to find out whether Kensington actually lied – which would act against a reinstatement.
As to Facebook:
Facebook isn't private. The whole purpose of Facebook is to interact socially and tell those people who are your friends what you are doing. Friends can re-post to their friends. It's common knowledge that recruiters are searching both Facebook and LinkedIn for information on actual candidates or even prospective ones. If someone is unwise enough to put a post up on their Facebook that they are having a naughty day off work, then they shouldn't be surprised if the Boss somehow finds out about it. If that post turns out to be tangible evidence of wrong-doing then it's hard to argue why it should not be used. The test as to how evidence is obtained is not the same at the Authority as it might be in criminal proceedings. Personally I was far more concerned at the request to view Kensington's bank accounts. Refusal to deny access to private information does not amount to an admission of guilt. Consider this thought - if Kensington was able to show FB posts with photos of her at her sisters bedside or in other circumstances which clearly showed she had been doing exactly what she had told Air NZ, those posts would be supportive of her story.
Opinion – Personally I would not want to rely on access to (or even the content of), Facebook posts. It's way too easy for other people to post things in your name (if you leave your laptop unattended and Facebook running in the background) – ask any group of teenage brothers and sisters and their close friends. I am aware of other instances (some that haven't been publicised) of HR People becoming aware that an employee has bad-mouthed the company on Facebook. If it can be proved beyond doubt as to who actually made the posting, and if you have a standard clause in the Agreement about 'bringing the company into disrepute', then there is a case for it.
With reference to having policies at work regarding the employer's access to an employee's Facebook postings, it would be necessary to have it as part of the Agreement (so that the access is actually signed for) as well as having a Policy for it. Care would need to be given to what circumstances would lead to a demand for such access, and I think one would have to have 'reasonable cause to suspect' from other sources prior to making such a demand.
Note to employees: Never post anything on Facebook that you would not want your employer to see. Consider the 3M test – What would my Mother think of it, what would my Mentor think of it, and what would the Media think of it.
Note to HR: Anything on Facebook is automatically suspect as to (1) who actually posted it and (2) the veracity or integrity of it. It might support other evidence, but I wouldn't want to rely on it.
Read more about the case here
You can read the judgement here.