March 2020 – References – it pays to check

Whether you are asked to provide or are seeking a reference, a recent Human Rights Review Tribunal decision confirms that care is needed. 

Director of Human Rights Proceedings v Katui Early Childhood Leaning Centre Limited [2019] NZHRRTinvolved an employee (Ms A) who thought she had secured a job at Waatea Early Childhood Centre, and so resigned from Katui Early Childhood Centre.  However, on arrival at Waatea she discovered that her references, from Katui personnel, had not been satisfactory and so her employment at Waatea was terminated.  Ms A made a complaint to the Office of the Privacy Commissioner about Katui’s interference with her privacy, and the Director of Human Rights Proceedings then took her case to the Human Rights Review Tribunal.

The issue was whether Katui had breached Privacy Principle 11 and if so had interfered with Ms A’s privacy.  For the purposes of this case, Principle 11 states that:

“An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds … that the disclosure is authorised by the individual concerned”.

In other words, when Katui provided references to Waatea, was this unlawful?

The answer was yes.  To start with, the Tribunal found that the references provided did contain personal information about Ms A because they were about her, despite involving the referees’ opinions.

Next, the Tribunal found that Ms A had not authorised anyone from Katui except Ms T (her former direct manager) to disclose her personal information, i.e. to be a referee for Ms A.  However, Ms T was not (twice) the person who answered the telephone when Waatea called. 

Finally, the Tribunal found that what the (unofficial referees) said about Ms A, which was not complimentary, did cause Ms A harm.  In this regard, she was not able to provide the referee she had desired for a job that was clearly important to her, and lost that job.

Fortunately for Katui, damages were a fairly modest $3,000.  As part of that, the Tribunal considered that Ms A was unlikely to have secured the new job in any event.  It also found Ms A should have told Waatea expressly that it could only to speak with Ms T.

The takeaway from this case is that whether you are the prospective employer or the employer being approached to give a reference, it is critical to ensure that any individual who provides comment (and not simply the organisation) has the requesting employee’s express consent to be their referee.  And that the organisation knows who is able to speak, and contact is directed accordingly.  Also keep in mind that ‘opinion’ can still be ‘personal information’.

For advice from our employment law specialists on any of the issues covered above, either call us on 04 801 5427, or contact us via email:

Paul McBride (Partner) – paul@mdjlaw.co.nz

Guido Ballara (Partner) – guido@mdjlaw.co.nz

Frances Lear (Senior Associate) – frances@mdjlaw.co.nz

Saadi Radcliffe (Solicitor) – saadi@mdjlaw.co.nz

Emma Rose Luxton (Solicitor) – emmarose@mdjlaw.co.nz

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James