| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 441 |
| Hearing date | 17 Oct 2012 |
| Determination date | 06 December 2012 |
| Member | T G Tetitaha |
| Representation | P Blair ; S Turner |
| Location | Auckland |
| Parties | Schwartfeger v The Ministry of Social Development |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed by respondent after accessed records of Facebook acquaintance – Respondent’s code of conduct prohibited applicant from accessing client records of family, friends and acquaintances - Authority found code of conduct’s definition of acquaintance unhelpful and “Facebook friends” could include people not ordinarily considered friend or acquaintance in traditional sense – Found arguable case applicant had been unjustifiably dismissed – Found arguable case applicant should be reinstated – Found difficult to conclude applicant’s reinstatement would cause significant disruption to respondent – Found balance of convenience favoured applicant – Found damages inadequate alternative remedy given applicant’s financial situation – Found overall justice of case favoured applicant - Application for interim reinstatement granted subject to conditions including that applicant disclose all names of “Facebook friends” to respondent – Case Manager |
| Abstract | Applicant employed by respondent as case manager. Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Applicant required access to personal client information to perform role. Respondent’s code of conduct prohibited applicant from accessing client records of family, friends and acquaintances. Applicant previously issued with written warning for accessing client records of friends and family. Respondent conducted systems check and claimed applicant had accessed client records of people applicant friends with on social media website. Investigation commenced. Applicant claimed had not breached code of conduct as “Facebook friends” not friends or acquaintances. Respondent concluded applicant should be dismissed based on applicant’s actions and previous written warning. Code of conduct’s definitions of friend or acquaintance did not include “Facebook friends.” Respondent claimed applicant’s reinstatement not practicable or reasonable as insufficient resources to ensure applicant’s work monitored and had lost trust and confidence in applicant.;AUTHORITY FOUND –;INJUNCTION: Definition of acquaintance in applicant’s written warning as any person applicant had been “familiar with” unhelpful. “Facebook friends” could include people not ordinarily considered friend or acquaintance in traditional sense. Applicant had arguable case had been unjustifiably dismissed. Premature to determine if was contributory conduct preventing applicant’s reinstatement. Whether respondent had sufficient resources to monitor applicant’s work in event of permanent reinstatement could be considered at substantive hearing. Authority noted conditions could be placed on applicant’s reinstatement to mitigate risk applicant continued to breach code of conduct before substantive hearing. Arguable case applicant should be reinstated. Alleged damage to respondent’s public profile and confidence if applicant reinstated speculative at best. Difficult to conclude applicant’s reinstatement would cause significant disruption to respondent. Balance of convenience favoured applicant. Damages inadequate alternative remedy given applicant’s financial situation. Overall justice of case favoured applicant. Application for interim reinstatement granted subject to conditions including that applicant disclose all names of “Facebook friends” to respondent. |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s125(2);ERA s127(4) |
| Cases Cited | Angus v Ports of Auckland (2011) 9 NZELC 94,015;Ansley v P and O Services (NZ) Ltd unreported, Goddard CJ, 3 June 1998, WC34/98;Drader v Chief Executive of the Ministry of Social Development [2012] NZEmpC 179;Kaipara v Carter Holt Harvey Ltd [2012] NZEmpC 40;Lewis v Howick College Board of Trustees [2012] NZCA 320;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414;X v Y Ltd and NZ Stock Exchange [1992] 1 ERNZ 863 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_441.pdf [pdf 250 KB] |