The election campaign is in its final week. The campaign has heated up, and so has the rhetoric. A recent decision of the Employment Court makes it clear that employees should be cautious about using their social media platforms to express their personal views when the posts could negatively impact their employer.

Amanda Turner was employed by the Wairarapa District Health Board (DHB) as a registered palliative care nurse until she was dismissed in April 2021. Ms Turner claimed that in dismissing her the DHB acted in a discriminatory manner and ignored her right to freedom of expression.

Ms Turner had 86 “Facebook friends”. They were accessible to other employees of the DHB and employees of the aged residential care facility where she worked. The DHB became aware that Ms Turner was posting antivaccine information on Facebook. Those posts were causing staff that looked up to Ms Turner to question whether they should be vaccinated against Covid-19.

There were also a substantial number of posts that expressed concern about Muslim immigration; they were derogatory towards Muslims generally, as well as particular Muslim individuals. Other posts not raised by the DHB included posts that were derogatory of a nonbinary person and those attacking the Government and the then Prime Minister.

As part of her employment agreement Ms Turner was required to comply with the DHB’s policies, including the Code of Conduct and the DHB’s social media policy. That policy referred to the risks to the DHB of social media being mismanaged by individuals, including damaging the DHB’s reputation.

In her defence, Ms Turner said that her comments about Muslim immigration were a political belief and that when she was dismissed she was being discriminated against because she is a Christian. Judge Holden rejected that and said that Ms Turner’s anti-Muslim comments were not immune from scrutiny and could be weighed against the DHB’s policy and Code of Conduct she was expected to adhere to.

The Judge said there was nothing to suggest Ms Turner’s Christianity had any bearing on the DHB’s decision. She said that freedom of religion cannot be taken to include the freedom to discriminate against other religions or to make derogatory comment about other religions and the people who practise them without consequences. Ms Turner’s right to hold religious or political beliefs did not prevent the DHB from taking disciplinary action in respect of her posts criticising Muslims, including attacking individual Muslim New Zealanders.

In respect of the posts regarding the vaccine, the Judge said that they were not covered by any protection against discrimination based on political opinion. The posts were directly contrary to the position being taken by the Ministry of Health and the DHB. The posts had the potential to undermine the trust and confidence of the public in the DHB, which was inconsistent with the social media policy and Ms Turner’s obligations to her employer.

It was accepted that Ms Turner’s Facebook posts were made outside her work time and that her Facebook page had certain privacy settings in place. However, the Judge said if the out of work conduct could negatively impact on the employer, for example by bringing it into disrepute, or if it erodes the trust and confidence the employer has in the employee, the employee’s out of work conduct can be the subject of disciplinary action.

The Judge commented that even if the material in the posts had been sent directly to one or only a few other employees or professional contacts, that could have been of concern to the DHB; being posted on a Facebook page with a much wider audience was even more of an issue.

Ms Turner also claimed that she has a right to free speech and that she is protected by New Zealand’s Bill of Rights Act (BORA). The BORA applies to acts done by the state. It does apply to some actions of the DHB. However, the Judge did not accept that the BORA applies to employment decisions.

In any event, the Judge said that the rights under the BORA are not absolute; they are subject to reasonable limits. Even if the BORA applied, the rights do not protect everything that an employee might say, particularly if it is contrary to the interests of the employer. The Judge concluded that Ms Turner could not use the BORA as a shield to protect herself from the consequences of her statements. She held that Ms Turner’s dismissal was justified.

While the judgment is pragmatic, it does highlight that New Zealanders may have to balance their right to freedom of expression and free speech with the obligations they may have to their employer. Where that line may fall is likely to be harder to determine in the heat of a general election. Read more....

The recent Employment Court decision involving Melville High School makes harrowing reading due to the factual circumstances established by the plaintiff’s, Kathleen and Ronald Cronin-Lampe. It also traverses some of the time limitations that apply in relation to bringing claims (and some of the exceptions).

Melville High School suffered an extraordinary number of traumatic events in its student body, staff and wider community over the period of time that Mr and Mrs Cronin-Lampe were employed. There were approximately 32 deaths in the School community, many by suicide, some by other unexpected tragedy, and some from illness. Mr and Mrs Cronin-Lampe were school counsellors and were actively involved in all these tragedies, both in the immediate aftermath and, usually, in relation to ongoing issues. They were also heavily involved in assisting students and staff in relation to a wide range of other very challenging situations.

Mr and Mrs Cronin-Lampe were diagnosed with post-traumatic stress disorder (PTSD). They claimed that they were so affected by their PTSD that they were in effect paralysed during their final year at the School and were effected to such an extent that they were unable to properly consider raising their claims within the 90-day time limit to bring a personal grievance claim in the employment jurisdiction. Because of this, they claimed that there were exceptional circumstances and that it would be just to grant leave to bring their claims out of time.

Generally, the reason we have a limitation law is to protect people against “stale claims”. The law encourages claimants to bring their claim in a timely fashion by setting out the maximum time they can wait before filing a claim.

The Employment Relations Act sets a short 90 day period for an employee to notify their employer of a personal grievance. If the 90 day time period is missed then the employee must make an application for leave to the Employment Relations Authority to raise the personal grievance out of time. This will only be granted where exceptional circumstances are established. Exceptional circumstances include where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period.

The School argued that as Mr and Mrs Cronin-Lampe had consulted an employment lawyer at one point and had sought professional assistance from a clinical-psychologist and that they were able to consider raising a personal grievance but elected not to do so. The Judge disagreed, and said that Mr and Mrs Cronin-Lampe activities must be viewed in the overall context of their being unaware of their pre-existing PTSD and that they were increasingly unable to analyse their complex circumstances with a view to raising grievances.

Judge Corkill has granted leave to Mr and Mrs Cronin-Lampe to bring their claims out of time. The parties have been directed to mediation. If that is not successful, Judge Corkill will give his decision on the merits of Mr and Mrs Cronin-Lampe’s claims.

Mr and Mrs Cronin-Lampe’s journey to this point has been arduous. Besides suffering PTSD they have had to have their claims extensively litigated in the Employment Relations Authority, the Employment Court, and the Court of Appeal; and now back before Judge Corkill in the Employment Court.

Recently, in June this year, the Employment Relations Act was amended to allow employees more time to raise a personal grievance in relation to sexual harassment from 90 days to 12 months. Labour, National, ACT, and the Greens all supported the passing of the bill into law.

The private members Bill was originally sponsored by Labour MP Marja Lubeck. She said "This bill will ensure employees have time to process what has happened to them before deciding to come forward and proceed in a manner which best suits them — and their family". "Coming forward to report sexual harassment can be difficult, and it is common for victims of sexual harassment to wait a long time before coming forward. "Everyone has the right to feel safe at work, and it is important employees have time to consider what has occurred and feel safe to raise it with others."

The same arguments could be made for Mr and Mrs Cronin-Lampe’s case. Sometimes the circumstances are traumatic. Sometimes physical or mental injury can take a while to manifest. Sometimes it simply is more important to focus on regaining one’s health, or establishing new employment, than immediately considering redress. It may be time to revisit the general limitation of 90 days on bringing a personal grievance claim. Read more....

Published - HR Magazine Spring edition 2023

As technology continues to evolve to assist us with our businesses, HR professionals also have to consider the impact of technology and how this may affect the workplace. This may include being involved in restructuring the workplace if work is to be done differently or more efficiently with new technology. It may also involve the implementation of new technology to assist HR systems and monitoring in the workplace.

Technology used

Fingerprints are a unique biological characteristic of a person; they have long been recognised as an effective and accurate way of identifying someone. The recent decision of the Employment Relations Authority in Fonterra v Lanigan involved the introduction of fingerprint scanning technology (FST) for timekeeping and attendance.

By using biometric technology Fonterra wanted to reduce the administration time needed to support the collection of timekeeping and attendance data required by law to be kept, eliminate or reduce the opportunity to falsify or misuse information about timekeeping and attendance, and improve accuracy and consistency generally in computing employees’ pay, leave and other statutory and contractual entitlements.

The protection of encryption offered by Fonterra’s FST system is high. It instantaneously converts raw data (the fingerprints) to a numerical code. Once encrypted, the data cannot be decrypted. The fingerprints are not copied or stored but are converted to a binary code from which a person’s fingerprint cannot be recreated.

Mr Lanigan and about 30 other employees in the Maintenance Team at Fonterra’s Takanini plant were the last employees to resist the introduction of FST in Fonterra’s large workforce of approximately 8,000 employees. Mr Lanigan did not consent to offering his fingerprints to enable his registration for using the FST technology. He considered that by doing so, his privacy would be intruded upon and that Fonterra could not legally require him to do so by way of a direction or instruction.

Considerations

The Authority noted that there is a term implied in law in every employment agreement, requiring an employee to comply with a lawful and reasonable direction of their employer. The term is necessary to give practical effect to the right of an employer to exercise control over an employee. The direction must not be inconsistent with any express term of the employment agreement and must also be reasonable and lawful.

The Authority also considered the Privacy Act and the earlier Employment Court decision of OCS Ltd v SFWU and accepted that finger scanning technology had been approved in other jurisdictions such as Australia, the United Kingdom and Canada and that some principles could be extracted:

• Is the technology compatible with the contractual obligations of the parties?
• There is to be a balance between the need for the technology and the level of personal intrusiveness involved for the individual concerned.
• The employer has the right to introduce different systems of timekeeping technology subject only to reasonable consideration of valid concerns raised by the union and employees.
• The employer must take appropriate steps to inform employees of the new measures and to obtain their consent.

The Court in OCS Ltd noted that in our jurisdiction there is a general requirement to consult under the good faith obligations before implementing changes in workplace practices.

Authority’s decision

In analysing the introduction of FST at Fonterra, the Authority concluded that Fonterra had a lawful purpose connected to its role as an employer in wanting to collect biometric information from Mr Lanigan and the other workers.

In respect of the ability of Fonterra to give a lawful and reasonable instruction about the use of FST by Mr Lanigan, the Authority said that this is limited or qualified by the requirements for consultation and good faith behaviour.

The Authority found that Fonterra did have a discretion when selecting its systems and may exercise its business judgement as to what will best meet its needs. It said that this discretion appears to have been properly applied within the boundaries of the Privacy Act. The Authority also found that Fonterra did genuinely endeavour to balance the interests of Mr Lanigan in preserving his privacy against the benefits of using FST. It said that the level of intrusiveness into the privacy of Fonterra’s employees was at the lower end. The relatively slight intrusion on the privacy of Mr Lanigan and others was weighed up fairly alongside Fonterra’s business needs.

Accordingly, the Authority declared that Fonterra could lawfully and reasonably instruct Mr Lanigan to use the FST system for the purposes of recording time and attendance at work.

Should Mr Lanigan fail to follow such a lawful and reasonable instruction, it will be open to Fonterra to commence a disciplinary process with Mr Lanigan that may result in his dismissal should he continue to refuse to use the FST system.