How much privacy can workers expect in the workplace? Should employers be allowed to demand access to an employee’s social media activities or financial records?

In a recent New Zealand case, an airline demanded to see an employee’s Facebook page and financial records, after she took a day of sick leave to care for her ill sister. The airline doubted the employee’s story, so summoned her to a formal disciplinary meeting on her return to work, where it made the demands, seeking to prove that she had used her sick leave inappropriately.

The employee refused, saying that there was a reasonable expectation within the community that employers were not entitled to delve into their employees’ personal affairs.

The case ended up before New Zealand’s Employment Relations Authority (ERA), which ordered the employee to grant access to her Facebook account and financial activity for the period of her sick leave, on the grounds that it would provide valuable evidence.

The ERA found that, though a full and fair workplace investigation had been conducted, a fair and reasonable employer would not have found the staff member had misused her leave. The ERA concluded that the dismissal was unjustified. It has not yet been decided if the flight attendant will be reinstated.

Social media, particularly Facebook, has featured in a number of recent unfair dismissal cases in Australia and New Zealand, with various results. This goes to show that it is important that organisations have policies covering social media and that these are clearly communicated to staff.

A further point on the issue is that any resultant workplace investigation must be conducted in a fair, impartial manner. The flight attendant’s case demonstrates that employers must ensure that once the evidence has been gathered and a finding made, any action based upon the finding must also be reasonable and fair in the circumstances.

In this case, there appears to be no suggestion that the workplace investigation was flawed; rather, the ERA challenged the appropriateness of the decision made following the investigation. Depending on the complexity of the situation, employers may wish to seek advice when taking action on the findings of an investigation.

Engaging an external organisation to undertake a workplace investigation or to conduct a review of an internal investigation can help demonstrate that a fair process has been followed should an investigation later be called into question.