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The Risks Associated With Blacklisting Employees - by Karen Davis

Updated: Dec 20, 2020


Pitter Patter Education Centre Ltd is a daycare centre in Feilding, NZ. An RNZ article reports that its license was suspended for three weeks in November.


As a parent, it’s difficult for me to say this but allegations of mistreatment of children are a matter between Pitter Patter, the Ministry of Education, and the childrens’ parents. We’re concerned with employment law.


Charlotte Cook’s RNZ article says:


“The complaints focus on manager and owner Pauline Murphy and her treatment of children, staff and parents.


The investigation was launched after four Pitter Patter teachers resigned in a month and written complaints were given to the MOE.”


and:


"[Pauline Murphy] also would like to intimidate us with her lawyers and saying she had connections in the Ministry and teachers council and could take our jobs and certificates at any time."


The last paragraph brings to mind a notorious blacklisting case that played out between 2012 and 2015: Hammond v NZCU Baywide.


Two women who were friends had left Baywide in early 2012 feeling that they had been constructively dismissed although neither made a Personal Grievance claim. Karen Hammond moved quickly into a new job with a smaller company that had a business relationship with Baywide. To console her friend Ms Gooding who was in a much worse situation, Ms Hammond baked her a rude birthday cake for a small private birthday party, with “NZCU FUCK YOU” icing.


NZCU Baywide’s HR manager Louise Alexandra got wind of it and threatened a 21 year old employee, in order to gain sufficient access to her Facebook account to screenshot a picture of the rude birthday cake. She then disseminated it, with the CEO’s blessing, around the industry. Ms Hammond had to leave her new job because of commercial threats to her manager and friend, and had trouble finding work in the industry.


Interestingly, this matter was not heard in the Employment Relations Authority, but the Human Rights Review Tribunal.

The HRRT awarded Ms Hammond $168,000 for Baywide’s breaches of the Privacy Act, and in the subsequent public fallout Ms Alexandra was swiftly removed from her position.


Paragraph 8 of the HRRT Determination says:


While the circumstances of the case arose in an employment context, the case falls to be determined under the Privacy Act, not under employment law.


Its concluding observation in Paragraph 188 is:


The facts of this case illustrate in dramatic terms the reasons why the information privacy principles were enacted by Parliament in the Privacy Act. The unrestrained use of personal information can cause devastating, if not irreparable harm to an individual. The Act stipulates that unless personal information is collected, stored and disclosed only as permitted by the Act, the holder of the information becomes legally responsible for the consequences. The statutory remedies are both real and effective. In the present case, had NZCU Baywide paused for a brief moment to consider its obligations under the Privacy Act it would have been deflected from the high-handed and impulsive reaction which has led to the infliction of serious harm not only on Ms Hammond but also on itself, its staff, its image and reputation.


Similarly, if Ms Murphy from Pitter Patter has already blacklisted employees, they may have a claim against Pitter Patter and even Ms Murphy personally if an investigation by the HRRT finds that she has breached their privacy.


Media attention may have discredited any comments Ms Murphy may have made about former employees seeking other employment, especially if those comments were negative. That may be fortunate for those employees, but where employment disputes are resolved in MBIE mediation, and settlement agreements almost always include a gag clause, those ECE teachers would not be able to speak to media without breaching the settlement agreement and exposing themselves to a penalty. Ironically, such a settlement agreement would give them little protection from being disparaged themselves.

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