Worker's privacy 'undoubtedly' breached

By Sharon Lundy

Ports of Auckland. Photo / Brett Phibbs
Ports of Auckland. Photo / Brett Phibbs

An employee whose personal details were leaked during an industrial dispute could seek compensation from Ports of Auckland for breaching his privacy, a law expert says.

Ports of Auckland chief executive Tony Gibson, in a letter to Maritime Union (MUNZ) secretary Russell Mayn, addresses the leaking of personal information - including details of bereavement leave - about employee Cecil Walker to the Whale Oil blog.

The blog published a list of 106 leave days under five categories taken by Mr Walker, a crane driver, from when his former wife was diagnosed with a terminal illness in 2007 until after her death the next year.

It was published a day after Radio New Zealand broadcast criticism by Mr Walker about the impact he feared a proposed new port rostering schedule, since overtaken by plans to contract out 292 port jobs, would have on family life.

Professor Paul Roth, of Otago University's Faculty of Law, said the leak was "undoubtedly'' a breach of the Privacy Act.

"So the only issue that is open is whether Mr Walker suffered 'significant' humiliation or injury to feelings as a result of the disclosure,'' Prof Roth said.

The action was taken as part of an industrial relations "Punch and Judy show'' but the fact Mr Walker had earlier played a part did not mean Ports of Auckland was absolved of its employer obligations under the Privacy Act.

However, it could be relevant to the issue of whether he had suffered a "significant'' level of humiliation or injury to feelings.

"It may be that the employer's apology will be sufficient to resolve this matter but Mr Walker may not be be willing to accept one, in which case he would be within his rights to bring proceedings before the Human Rights Review Tribunal and seek monetary compensation once the Privacy Commissioner has completed her investigation,'' Prof Roth said.

A spokeswoman for the Privacy Commissioner's office said it was investigating a complaint received when the information was first released so could not comment on today's developments.

Mr Gibson said in the letter to the union that Ports of Auckland would like to "sincerely apologise to Mr Walker for any distress he may have felt regarding the information released. Upon reflection, we accept the distress this may have caused him, and for that we are very sorry''.

"At the same time, however, I note that the release of information was intended purely as a direct response to Mr Walker's commenting negatively and, in our opinion, unfairly in the public domain about us as his employer and effects on workers' family lives.''

The letter goes on to say that Mr Walker's personal situation regarding his deceased wife was already in the public domain before the leak, and ``the information published in the media simply illustrated the lengths to which Ports of Auckland went in order to accommodate Mr Walker's family situation at a sad and stressful time''.

``As long as these types of unbalanced stories, which we consider are damaging to Ports of Auckland, continue to be published at the instigation of MUNZ and certain of our employees, we cannot make the requested undertaking to the extent it seeks to prevent us from putting accurate corrective information in the public domain in response to matters raised by MUNZ and our employees.''

The letter does not explicitly state that Ports of Auckland was responsible for the leak but Council of Trade Unions president Helen Kelly said it was an admission by the company.

Green MP Denise Roche said Auckland Council - to which Ports of Auckland is answerable through Auckland Council Investments Ltd - should pull the company into line.

"The mayor (Len Brown) does have executive powers and he should be looking closely at the fact that a council-controlled organisation is (allegedly) frequently acting illegally and breaching some of the laws of our land,'' Ms Roche said.

"The council really needs to step in and seriously question how the board is managing the ports, which is an Auckland asset.''

But Auckland Council Investments Ltd chief executive Gary Swift refused to comment.

Ports of Auckland did not want to comment further, the Maritime Union was tied up in mediation with the port, and Mr Walker had been advised not to comment.

Meanwhile, Ports of Auckland said it was disappointed by the results of today's mediation, which broke down this afternoon.

Mr Brown encouraged the parties to "seriously consider entering into facilitation as soon as possible and use it as a way to settle the dispute once and for all''.

"It's time for the two sides to put aside entrenched differences and consider the best interests of Auckland. The majority of Aucklanders would agree with me that the dispute has gone on way too long,'' he said.

- APNZ

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