From Chapman Employment Relations latest newsletter:
The Human Rights Tribunal’s decision that NZCU Bayside breached the privacy of their previous employee Karen Hammond was not a surprise. The level of compensation however was staggering. The awarding of $168k compensation, surpassed the previous highest award by an astonishing $128k.
The company admitted to the breach, but their actions were extraordinary. Hammond had posted on her Facebook page a photo of a cake she had baked, iced with the words ‘NZCU F*** YOU’. Only people she had accepted as ‘Facebook friends’ could access the page. NZCU Bayside obtained through coercion, a screen shot of the photo and emailed it to four local recruitment agencies, along with contemporaneous phone calls warning against employing Hammond.
Additionally, the Chief Executive sent an email to staff disclosing information about Hammond. The company also placed severe pressure on Hammond’s new employer to terminate her employment, including stating that continuing to employ her would result in significant financial loss.
Hammond resigned from her new job on the basis it had become untenable for the company to continue with her there. She remained unemployed for 10 months until obtaining a position outside her chosen sector, and in a position considerably below her skill level. Hammond felt unable to apply for any positions that used recruitment agencies for fear of what they would say to prospective employers.
The tribunal determined the company was less than honest in their evidence. The evidence of two of their key witnesses was described as being defensive and in disarray, and the consequences of the breach downplayed by the company. Members of the management team also contradicted each other. In contrast the tribunal found Hammond and her witnesses to ‘be sincere and genuine individuals and their evidence unrehearsed, direct and frank.’ Although the Chief Executive did provide an apology, the tribunal said the apology was ‘delivered without any detectable note of sincerity.’
All of these factors were taken into account when the tribunal considered remedies. The award was made up of $38,350 in lost income, just over $15,500 for legal expenses, $16,177 for the difference in wages from the job she was forced to resign from and her new job, and $98,000 damages for humiliation, loss of dignity and injury to feelings. The tribunal described the breach as at the serious end of the spectrum, with the company’s responses at the hearing as contributing, and hence justifying the large damages award.