This one reads like something out of a made for Netflix drama. In a recent decision of the Human Rights Review Tribunal, a Chow owned company has been ordered to pay $60 000 in compensation to a former employee after interfering with their privacy.
The employee, who has name suppression and is referred to in the judgement as “BMN”, was employed by Stonewood Group Limited. He was invited out to coffee by the then Chief Operating Officer, Brett Gilchrist, at the direction of John Chow. While he was out of the office, Vicki Chow, Executive Director of the company, removed BMN’s work laptop, personal USB flash drive and personal cell phone from his desk.
When BMN returned to work he immediately noticed that these devices were missing and requested their return. He explained that they held important personal information, including his tax returns, case studies, research and medical information. Despite repeated requests, the company returned only the personal cell phone and refused to give him his personal information.
Stonewood then sent the laptop to a forensics company to undertake data copying. BMN was dismissed a week later.
Following his dismissal BMN continued to request the return of his personal information, but this did not eventuate. The company indicated that the information would be provided after the forensic examination was completed, but still this did not occur.
BMN then engaged representation and offered to provide a personally funded USB stick for his personal information to be downloaded onto. Still the material was not provided. At the time of filing his claim in the Tribunal, some two years later, BMN’s personal information had not yet been returned. An incomplete tranche was finally provided some three months after proceedings were filed.
BMN claimed that Stonewood had interfered with his privacy including by collecting information for an unlawful purpose and by unfair means, and that this was an unreasonable intrusion on his personal affairs. He also argued that the company failed to provide him with access to his personal information upon request and unlawfully disclosed it to third partes.
The Tribunal upheld BMN’s claims finding that there was no lawful purpose for collecting the information and that the attempt to belated justify its actions by relying on the forensic report was no defence as the justification could not be retrospectively applied. It also rejected Stonewall’s argument that it had a legitimate right to remove and examine the laptop given that it owned it and it was provided for work purposes.
BMN’s lawyer further argued that had Stonewood “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”. The Tribunal agreed finding that the manner of collection of the information was unfair and unreasonably intrusive.
BMN provided evidence of the significant impact that the company’s actions had had on him, including a formal diagnosis of acute anxiety and depression.
In awarding $60 000 in compensation, the Tribunal accepted that BMN had suffered significant humiliation and distress and that the award should be at the top end of the scale. It further described the company’s actions as orchestrated and not “intentional and without negligence”. Its conduct was found to have exacerbated the humiliation and distress suffered by BMN, as did the fact that it gave no consideration to his privacy interests.
Stonewood was also ordered to return BMN’s personal information to him and to delete any copies.
The facts of this case are extreme, but it provides a clear reminder that an employer cannot simply take what they regard as theirs whilst ignoring an employee’s rights under the Privacy Act. In this regard it is not uncommon for an employee to store some personal information on a work provided laptop, and this needs to be respected.
Further, in collecting information, an employer should behave in a reasonable and transparent manner – inviting an employee out to coffee so that their devices can be snatched is unreasonably intrusive, duplicitous, and smacks of subterfuge.
Originally published in The Post
