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Former employee has her cake and eats it too

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. 


Claire Mansell


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