Paul Judge was a lecturer at Wintec until a privacy breach by a company Wintec had a business relationship with destroyed his career (allegedly).
Remember “rude cake baker” Hammond v NZCU Baywide? That was a particularly egregious privacy breach by Ms Hammond’s former employer resulting in that employee being blacklisted, and the award was $168,000 in 2015.
The matter was litigated not in the Employment Relations Authority but the Human Rights Review Tribunal (HRRT) which usually deals with privacy breaches. Similarly, Judge v Care Park NZ Ltd is being heard by the HRRT.
There was a bullying problem at Wintec, but Mr Judge never raised a Personal Grievance in relation to that or anything else. However, a restructuring took place in 2016 which caused a small number of redundancies, and Mr Judge claims he was “invited” to a mediation that resulted in him being paid less than half of what he would have got if he’d been made redundant in the normal way. To achieve that “saving”, Wintec allegedly aided and abetted a breach of Mr Judge’s privacy by Care Park and then ambushed him with a complaint from that third party about unpaid parking tickets.
Here’s a 2018 Determination by the HRRT. Basically the HRRT has struck out Mr Judge’s claim against first defendant Wintec, accepting its argument that all matters between the employer and employee including the privacy breach have been resolved under Section 149, the Record of Settlement dated 17 November 2016 being final and binding.
 ... clause 17 of the agreement provided that the “settled matters” included any complaints Mr Judge has made or may make against Wintec, to any statutory body including the Privacy Commissioner.
The HRRT dismissed the second defendant Care Park’s application to strike out Mr Judge’s claim and a hearing has been set down for later this year.
The relationship between Wintec and Care Park
The 2018 strike-out decision notes that Care Park “are contracted by Wintec to manage Wintec’s car parks”, including collecting fees and issuing infringement notices.
Problems started in 2012 or 2013 when the annual parking fee quadrupled. That leads us to believe that staff parking activities were privatised through the sale of the parking areas to Australian company Care Park NZ Ltd, so they weren’t Wintec’s parks any more. By contrast, we note that VUW have not done this and still issue parking permits internally (we understand there’s a lengthy waiting list for these) and only outsources infringements, for unauthorised parking for example.
Payment of the annual fee did not guarantee that every Wintec staff member would get a park – they only had the right to hunt for one. After complaints by staff, Care Park moved to a pay and display system for Wintec staff. Its wardens often pounced when staff members went ten minutes over, issuing $40 infringement notices. By his own admission Paul Judge was less than diligent regarding parking compliance, given the demands of his job as a lecturer, and collected a large number of infringements, eventually falling behind on the payments.
But that’s a matter between Care Park and Mr Judge; Wintec had made a business decision to get out of some of its parking activities, and for whatever reason allowed staff parking fees to quadruple at one point. As Paul Judge was dealing with Care Park, it was open to that company to send unpaid infringement fees to a collection agency without interfering with his work or his employment relationship with Wintec. To invite Wintec to intervene in a commercial dispute with a person who happens to be their employee would normally be a breach of that employee’s privacy, and it appears that Care Park did exactly that.
Normally that would not have been a big deal, except that Wintec were undergoing a restructuring process at the time, with job losses expected. Mr Judge’s own job was exposed, and while his preference would have been to keep his job, at least under the TEU collective agreement he would have expected to receive about a year’s salary if his position did not survive the restructure.
It appears that Wintec were looking to save money on redundancy payments, and may have cut corners to achieve that, as we see from the ongoing HRRT proceedings.
[37.6] [Having struck out the claim against Wintec] Mr Judge is to file an amended claim confined solely to his allegation that Care Park breached Principle 11.
Privacy Act 1993, Principle 11
Principle 11 states that an organisation may only disclose personal information in limited circumstances. For instance, an organisation may disclose personal information when:
disclosure is one of the purposes for which the organisation got the information
the person concerned authorises the disclosure
the information is to be used in a way that does not identify the person concerned
disclosure is necessary to avoid endangering someone’s health or safety
disclosure is necessary to uphold or enforce the law.
We don’t know what discussion took place between Care Park and Wintec in 2016 regarding Mr Judge’s unpaid infringement notices, but we do know that Wintec managed to get Mr Judge into a mediation and made a big deal out of what should have been a non-issue – his poor relationship with Care Park whose change in fee structure had caused difficulties – and as is often the case, pressured him into leaving with a payout that was a lot less than what he would have otherwise got (through continued employment or a fair redundancy compensation package). But Mr Judge says Care Park had no business talking to Wintec about him at all.
So the remaining matter between Mr Judge and Care Park is a non-employment privacy dispute (unlike Hammond v NZCU Baywide where Ms Hammond was an ex-employee). He asserts that he was only put in this position because Care Park breached his privacy.
As mentioned earlier, Wintec’s counsel Sam Hood has succeeded in striking his client out of proceedings under s149, aside from the possible inconvenience of having its staff called as witnesses in the upcoming hearing. So as far as the HRRT and even the ERA are concerned, Wintec are off the hook. So they can forget about it and move on, right?
Yes and no. Remember that if Wintec has exposed its business associate to a six figure payout for a devastating privacy breach it had a hand in, then it’s in Wintec’s interests to either protect Care Park, or failing that, try its best to exonerate itself and leave Care Park holding the bag. Conversely, it’s in Care Park’s interests to either claim it can benefit from the settlement between Mr Judge and Wintec, or to claim, later, and outside the jurisdiction of the HRRT, that Wintec has to pay its fair share of whatever Care Park is ordered to pay Mr Judge.
Care Park has summoned Wintec’s HR Manager to give evidence in the upcoming HRRT hearing. Mr Hood has successfully applied on behalf of Wintec to intervene in the hearing.
We think the investigation will focus on how the privacy breach happened, who said what, and when. Did Wintec aggressively demand data on outstanding infringements from Care Park, or did Care Park carelessly volunteer it?
The cumulative financial impact on Mr Judge over nearly five years of sporadic employment would be significant by now, and we look forward to seeing from the final HRRT determination how the upcoming hearing plays out.