By Claire Mansell - 5 Mar 2015
Former employee Karen Hammond has just had a massive win against
her former employer Credit Union Baywide. After Karen's friend was
"let go" from Credit Union, Karen decided to throw a dinner party
for her. The pièce de résistance of the evening was a cake with the
phrase "F### U Credit Union" iced on the top.
Karen posted a photo of the cake on her Facebook page. Credit
Union found out about this, but couldn't get a copy of the photo as
Karen's privacy settings on her Facebook page meant that only her
friends could see it. Credit Union bullied a young staff member who
was Facebook friends with Karen to give Credit Union access to her
Facebook page. Credit Union then went about a concerted campaign to
discredit Karen.
The Human Rights Review Tribunal's decision stated that the
photo of the infamous cake was Karen's private
information. Karen's privacy settings on her Facebook page
meant that only her friends could access the photo. This was
highlighted by the fact that Credit Union couldn't access Karen's
Facebook page. Instead its HR manager had to bully a young
staff member to grant her access to Karen's Facebook so she could
obtain a copy of the photo.
Once the Tribunal found that the information was private, it was
readily accepted that Credit Union's actions constituted unlawful
disclosure of Karen's private information. Further, the breach
of Karen's privacy caused significant financial loss to her. Credit
Union used the photo to pressure Karen's new employer to terminate
her employment. They even went so far as to offer to pay for the
new employer to obtain legal advice regarding terminating Karen's
employment. Because the photo had been sent to recruitment
agencies, Karen couldn't get a job for 10 months and ultimately had
to settle for a job that was beneath her level of skills and
experience.
Credit Union tried to argue that Karen shouldn't be compensated
because she was wrong to create the cake and post the photo on
Facebook. The Tribunal firmly rejected this argument. It said Karen
had made the cake to cheer her friend up who had been let go from
Credit Union and her humour was "none the worse for being somewhat
direct, if not earthy in nature".
The Commission awarded Karen $98,000 (on top of $70,000 already
awarded for loss of earnings) for hurt and humiliation, the highest
award handed down to date. The Tribunal was influenced by the
vindictive nature of Credit Union's actions. The Tribunal described
it as a "gross over-reaction" to the situation. The irony being
that Credit Union's own actions damaged its reputation far more
than Karen's photo did.
This case reaffirms that information posted on a private
Facebook page retains its status as private information under the
Privacy Act. If employers become aware that employees have
posted damaging content on their private Facebook pages, they need
to be very careful about how they access that information and what
they do with that information if they do obtain it.
Contact
Claire
Mansell