| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 169 |
| Hearing date | 1 Apr 2014 |
| Determination date | 05 May 2014 |
| Member | R Arthur |
| Representation | R Upton ; J Cockburn (in person) |
| Parties | Product Placement 2011 Ltd v Cockburn |
| Summary | PRACTICE AND PROCEDURE - Whether instant messages between respondent and applicant's former employee (D") on Facebook admissible - Whether applicant's use of instant message conversation with D breach of respondent's privacy - COMPLIANCE ORDER - PENALTY - Applicant sought compliance with respondent's employment agreement ("EA") and penalty for respondent's breach of EA - Whether respondent gave away stock and did not tell truth about what happened - Whether content of respondent's Facebook messages breached duty of good faith - Whether respondent dishonest about reasons for taking sick leave - Whether respondent accessed computer system of related business with purpose of removing confidential information - Whether respondent removed and failed to return confidential files - Whether respondent transferred confidential files to personal "drop box" - BREACH OF CONTRACT - Applicant sought special damages for costs and expenses incurred as result of respondent's breaches of EA - Campaign manager" |
| Abstract | AUTHORITY FOUND -;PRACTICE AND PROCEDURE: Authority ordered non-publication of D's identity. Respondent's Facebook account open on work computer and no password required to open or read messages. Exchanges occurred while respondent employed by applicant and at least some messages most likely exchanged using work laptop. Use of messages within scope of conduct of proceedings" exception in Privacy Act 1993 and within scope of Authority's discretion to take into account evidence in equity and good conscience. Messages between respondent and D in respondent's Facebook account admissible.;COMPLIANCE ORDER - PENALTY: Disciplinary investigation into whether respondent gave away stock not completed and respondent not provided with opportunity to explain. Respondent did not delete e-mails or access copy of certain report as suggested in Facebook messages but comments in messages of themselves breached respondent's duties of good faith and fidelity. Even if respondent obtained medical certificate for sick day, respondent's Facebook messages indicated purpose in not attending work to inconvenience applicant rather than significant incapacity. Respondent's behaviour regarding sick leave deliberately misleading and breach of good faith. Respondent's evidence confirmed accessed information of related business through D but actions not breach of EA as related business different legal entity to applicant. Respondent had legitimate reasons to access all but one file but no apparent reason for respondent to access final file. Evidence not sufficient to show respondent made copies of files accessed. Respondent copied some or all documents identified as accessed by respondent, including contents of respondent's work e-mail account, in breach of duties of fidelity and good faith and breached EA by failing to return copies after respondent's dismissal. Applicant entitled to return of documents. Compliance ordered. $3,000 penalty appropriate.;BREACH OF CONTRACT: Legal costs incurred in attempt to have respondent return documents and costs of forensic analysis reasonably foreseeable as result of respondent's breaches of EA. Respondent to pay applicant $6,215 damages." |
| Result | Applications granted ; Compliance ordered ; Penalty ($3,000)(payable to applicant) ; Damages ($6,215.08) ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA 136(2);ERA s137(3);ERA s160(2);ERA s174;Privacy Act 1993 |
| Number of Pages | 14 |
| PDF File Link: | 2014_NZERA_Auckland_169.pdf [pdf 261 KB] |