Posted on: Mar 05, 2015
The Human Rights Review Tribunal has found Credit Union Baywide, trading as NZCU Baywide, interfered with the privacy of a former employee by distributing a Facebook screenshot to Hawke’s Bay employment agencies with a warning against employing her.
In Hammond v Credit Union Baywide [2015] NZHRRT 6 (2 March 2015), the tribunal awarded $98,000 compensation for humiliation, loss of dignity and injury to feelings, plus damages totalling a further $70,070.88 for pecuniary loss, legal expenses, and loss of benefit.
The proceedings arose after the former employee, Karen Hammond, and her friend had both resigned from NZCU Baywide. They attended a private dinner party of 10 close personal friends, five of whom were current NZCU Baywide employees. Ms Hammond made a cake for the party, the top of which was iced with the words “NZCU F*CK YOU” and the side of the cake bore the word “C*NT”.
Ms Hammond later uploaded a picture of the cake to her Facebook page. The Tribunal says the privacy setting on her Facebook page meant only those accepted by her as friends had access to the photograph.
NZCU Baywide gained access to the page and a screenshot of the cake was taken. This was distributed by NZCU Baywide to multiple employment agencies in Hawke’s Bay by email. Along with contemporaneous phone calls from NZCU Baywide, they were warned against employing Ms Hammond.
An internal email was also sent by the CEO of NZCU Baywide to staff disclosing information about the circumstances in which Ms Hammond had earlier resigned from NZCU Baywide. The Tribunal says NZCU Baywide had also placed severe pressure on her new employer to terminate Ms Hammond’s employment.
In the proceedings before the Tribunal, Ms Hammond contended that NZCU Baywide had breached Information Privacy Principle 11. NZCU Baywide admitted this for the disclosures to the employment agencies and the internal email but denied there was any consequential interference with Ms Hammond’s privacy.
After assessing the credibility of the witnesses, the Tribunal found that an interference with Ms Hammond’s privacy as defined in section 66 of the Privacy Act 1993 had been established.
The Tribunal awarded damages of $38,350 for pecuniary loss, $15,543.10 for legal expenses, and $16,177.78 for loss of benefit. It made a further award of $98,000 for humiliation, loss of dignity and injury to feelings.
Assessing the damages for humiliation, loss of dignity and injury the Tribunal said that the aggrieved individual was not required by section 88 to establish all three heads of damages referred to in section 88(1)(c). Those heads were to be read disjunctively and it was not to be assumed that because one head of damage was established, the others were as well.
Where, as in the current proceedings, it was found for the purpose of section 66(1)(b)(iii) there was significant humiliation, significant loss of dignity and significant injury to the feelings of the plaintiff, it followed that humiliation, loss of dignity and injury to feelings had been established for the purposes of section 88(1)(c) which does not require that these forms of emotional harm be “significant”.
The very nature of the section 88(1)(c) heads of damages meant there was a subjective element to their assessment. Not only were the circumstances fact specific, but they also turned on the personality of the aggrieved individual.
The Tribunal said that there was no reason why it, at first instance, could not come to the conclusion that the time has come for a recalibration of the level of awards against which there should be some consistency.
“… awards for humiliation, loss of dignity and injury to feelings are fact-driven and vary widely. At the risk of over-simplification, however, it can be said there are presently three bands. At the less serious end of the scale awards have ranged upwards to $10,000. For more serious cases awards have ranged between $10,000 to about (say) $50,000,” the Tribunal said (at [176]). For the most serious category of cases it is contemplated awards will be in excess of $50,000.”
“It must be emphasised that these bands are simply descriptive. They are not prescriptive. It is not intended they be a bed of Procrustes on which all future awards must be fitted. At most they are a rough guide and cannot abridge the general principles identified earlier in this decision.”
Source: The Law Society
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