All emails from work belong to the employer

The Dominion Post - Tuesday, 18 June 2013

Peter Dunne is a popular local MP who has served residents in the Ohariu area for almost 30 years. He has been well-respected and been a member of governments led by both Labour and National. Earlier this month he resigned from his position as revenue minister following allegations that he leaked to the media a confidential report on GCSB spying.

Dunne denies leaking the report. However, his refusal to provide emails between him and Dominion Post reporter Andrea Vance to an investigation into the leak has proven his undoing.

It seems that the leaking of information is commonplace in Parliament. It can, however, be dangerous.

Retaining the trust of your employer lies at the heart of employment law. So, too, with a minister of the Crown and their "employer", the prime minister.

Dunne's basis for not turning over the emails is his view that communications between MPs and the public, including reporters, should be kept confidential. I find this unconvincing given that he has released about half of the emails in summary form anyway.

Were this an ordinary employment situation, Dunne's employer would have a right to view the emails in question.

Work emails are the property of the employer. Courts have held that employees don't have a legitimate expectation of privacy in the contents of their work emails, including personal messages sent from a work address.

Employers do not have the same rights in regard to communications sent from personal email or social media accounts. However, there are circumstances where it might be in an employee's interests to make such communications available.

A recent case sees an employee under investigation wrestling with these issues. He had messages on personal social media accounts that his employer wanted to see, but which contained embarrassing and intimate material.

Doug Behan-Kitto was employed by New Zealand Post as a postie in the upper North Island. In this role he interacted with members of the public who lived on his delivery route. In particular, he became close to Ms A, a local tattooist.

Things seemed to be going well for the postie until it was brought to his attention that a complaint had been raised by Ms A. Among other things, Behan-Kitto was alleged to have made sexual remarks towards her.

NZ Post started an investigation into the allegations and Ms A was interviewed.

Ms A stated that while she and Behan-Kitto originally got along well, his behaviour had begun to make her uncomfortable.

When the allegations were put to Behan-Kitto, he claimed he and Ms A had developed a friendship and that they communicated over Facebook and MSN Messenger. The employer asked if it could see these communications, but Behan-Kitto refused, claiming they were outside work hours and personal.

Following a separate complaint from another customer, Behan-Kitto was asked again to provide the conversations between him and Ms A. He was told that if he did not a decision about the allegations would be made without seeing the communications. Behan-Kitto refused to provide the communications and he was subsequently dismissed based on the evidence NZ Post had. He subsequently challenged his dismissal in the Employment Relations Authority.

Interestingly, the authority found that Behan-Kitto had contributed to his dismissal by refusing to provide the full texts of the electronic messages with Ms A. While he did not have to release the communication, the authority felt that things wouldn't have gone so badly for Behan-Kitto if he had made the communications available.

In spite of this, the authority ordered that Behan-Kitto be reinstated to his position. It found that the inquiry that led to the decision to dismiss was neither full nor fair. Notably, New Zealand Post should have taken greater care to verify the complaints made against Behan-Kitto. However, because of his refusal to release the communications, the compensation Behan-Kitto received was reduced. So Behan-Kitto got to keep his job.

Peter Dunne, in stark contrast, has fallen on his sword, leaving his nearly 30-year political career in tatters. Had he released the emails, things might not have gone so badly for him.

While Dunne has lost his position as a minister, dismissal of an MP is exceptionally rare in New Zealand. Peter Dunne's "Employment Court", the voters of Ohariu, will decide whether he'll be reinstated (re-elected) or not.