
The facts
Claims in the Employment and Privacy (Human Rights) jurisdictions
Employment Relations Authority
- Was in an employment relationship with Muma;
- Was unjustifiably dismissed.
Privacy Complaint
The issues for the Human Rights Review Tribunal to determine were:
The Tribunal found that the information provided by the representatives of Katui to Muma informed, instructed, told or made Muma aware of performance concerns, and it was personal information notwithstanding the fact that it contained opinion including suitability for employment/working relationships.
Given the working history between the representatives from Katui and Ms Gin-Cowan (which it was recorded had at times, been difficult), the Tribunal determined that Katui’s contention that it’s representatives believed on reasonable grounds that they were authorised to disclose information about Ms Gin-Cowan was unsustainable.
As to the harm, Ms Gin-Cowan claimed that the disclosure of her personal information caused her pecuniary loss, and resulted in significant humiliation, loss of dignity, or significant injury to her feelings. Ms Gin-Cowan sought $30,000 in compensation and an award of lost wages.
The Tribunal considered that the loss was related to Ms Gin-Cowan’s employment with Muma, and that as the employment agreement was subject to a 90-day trial period, the unlikelihood of Katui providing a written reference, that may have been fatal to her employment in any event. Given that finding, lost wages were not awarded.
The Tribunal also considered that Ms Gin-Cowan contributed to the situation by providing the office number for Katui, and not being explicit about who the representatives from Muma were authorised to speak to.
The Tribunal determined that the significant humiliation, loss of dignity and injury to feelings was largely attributable to her own, and Muma’s actions, rather than Katui’s. Accordingly, Katui was ordered to pay the sum of $3,000 as remedy.
Timing of claims
The employment claim was heard on 22 December 2015, with an oral determination being provided that day. The written determination was provided on 5 January 2016.
The Privacy complaint was first raised with the Office of the Privacy Commissioner on 26 March 2016, with proceedings being filed in the Human Rights Review Tribunal in October 2016. The hearing was held on 26 and 27 March 2019, with a written decision being provided on 19 December 2019.
Summary
These cases show how claims can be traversed in dual for a (albeit in this case against two separate employer parties), and the respective timing involved. They also confirm the importance of having clear pre-employment checks and balances in place, and ensuring the prospective employee is aware of how those may affect any conditional offer of employment.
In terms of privacy matters, employers need to ensure that they are authorised to speak to personal information about an existing or current employee prior to making statements about that employee.
The employment team at DTI Lawyers is happy to provide comprehensive advice on pre-employment checks and privacy matters.
- Was the information disclosed by Katui about Ms Gin-Cowan personal information? If so:
- Did Katui believe, on reasonable grounds, that the disclosure was authorised by Ms Gin-Cowan. If not:
- Did the disclosure cause one of the forms of harm set out in s66, and if so, what remedy should be ordered.
The Tribunal considered that the loss was related to Ms Gin-Cowan’s employment with Muma, and that as the employment agreement was subject to a 90-day trial period, the unlikelihood of Katui providing a written reference, that may have been fatal to her employment in any event. Given that finding, lost wages were not awarded.
Timing of claims
The Privacy complaint was first raised with the Office of the Privacy Commissioner on 26 March 2016, with proceedings being filed in the Human Rights Review Tribunal in October 2016. The hearing was held on 26 and 27 March 2019, with a written decision being provided on 19 December 2019.
Summary
 
[1] Gin-Cowan v Te Whare Wananga O Muma Limited [2016] NZERA Auckland 3
[2] Director of Human Rights Proceedings v Katui Early Childhood Learning Centre Limited [2019] NZHRRT 55