Verbal telephone references – be careful not to breach an employee’s privacy

The relationship between references and privacy

In Director of Human Rights Proceedings v Katui Early Childhood Learning Centre Limited the Human Rights Tribunal (Tribunal) found that principle 11 of the Privacy Act 1993 had been breached, resulting in an award of $3,000.00 damages owed to the former employee, Ms Gin-Cowan.

Principle 11 states that any agency that holds personal information about an employee should not disclose it unless it believes the disclosure is authorised by the individual concerned.

Ms Gin-Cowan began working for Katui Early Childhood Centre (Katui ECC) in 2010 as an early childhood teacher. In 2011 she started a de-facto relationship with the directors’ son, which ultimately ended acrimoniously.  Shortly after, serious allegations were made against Ms Gin-Cowan. One meeting was held and attended by Ms Gin-Cowan.

In January 2015, Ms Gin-Cowan learned of a senior job opportunity role at MUMA, a childcare centre in Waatea. She was offered employment the following day with an individual employment agreement which she signed.  The agreement was not signed by anyone on behalf of MUMA.  Ms Gin-Cowan then resigned from her employment with Katui ECC. That evening, she was contacted by MUMA requesting a referee be provided. She named Erana Tahere as her referee at Katui ECC and provided the telephone number of Katui ECC as the contact number for Ms Tahere.

Where did it all go wrong?

MUMA contacted Katui ECC and asked to speak with Ms Tahere, however was informed she was on sick leave. The person who answered the phone, Tania Smith, reiterated that she was the acting centre manager. As such, MUMA’s employee asked if she would provide a reference for Ms Gin-Cowan.  The response was “no, because her and Ms Gin-Cowan did not get on”. The conversation continued where MUMA’s employee asked if Katui ECC would re-employ Ms Gin-Cowan to which the response was “no”. The phone number for Katui ECC’s directors was then given to MUMA. MUMA contacted the directors and evidence was presented that Ms Gin-Cowan was often late to work, was unreliable and had unsatisfactory work habits.

In February 2015, Ms Gin-Cowan travelled to Auckland thinking she would be starting work at MUMA. However, MUMA advised Ms Gin-Cowan that her references had not been favourable, and that MUMA would not be proceeding with her employment offer.

Employment Relations Authority proceedings

In January 2016 the Employment Relations Authority issued a determination in Ms Gin-Cowan’s favour however found that she could not bring a personal grievance claim against MUMA because her employment was subject to a three-month trial. She was awarded four weeks salary in lieu of notice of her dismissal.

Ms Gin-Cowan made a complaint to the Tribunal about an interference with her privacy. The Tribunal found that personal information about Ms Gin-Cowan was provided by Katui ECC to MUMA. While all remedies within the Tribunal are discretionary, Ms Gin-Cowan was entitled to not have personal information about her disclosed without her permission.

The Tribunal ultimately found that only a very minor part of the injury to Ms Gin-Cowan’s feelings is attributable to the breach of Principle 11 by Katui ECC. The remainder is due to confusion and errors in the MUMA employment process, which led to Ms Gin-Cowan’s resignation.

The decision by the Tribunal is a reminder that employers are not permitted to provide references for current or former employees unless they have express permission from the individual.

Workplace Law team

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria Green,  Hannah Martin, Joseph HarropHolly StruckmanAlex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia StrickettKen Huang, Mary Zhou, Shi Sheng Cai (Shoosh)Sarah Kirkwood, Janeske SchutteLingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

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