The Society points out that the recent judgment (8 October) by Employment Court Judge Coral Shaw, overturning the July 2007 ruling by the Employment Relations Authority (ERA) that awarded $9,000 for hurt feelings to an employee, Jessica Wood, for unjust dismissal by her employer for her breach of company policy involving emails; highlights the bizarre nature of that flawed ERA decision. ERA member Dennis Asher who wrote it, was quite wrong to have suggested that an employer has to secure a classification decision from the Chief Censor’s Office confirming that an email is “objectionable”, before dismissing an employee for disseminating offensive and sexually explicit content in breach of company email policy.
Media Release by Arthur D Riley & Co Ltd
13 October 2008
The General Manager of Arthur D Riley & Co Ltd, Garth Mickell, says a level of common sense has been applied in the decision by the Employment Court which has found that his company was justified in dismissing an employee.
The case, which was originally an appeal against a decision from the Employment Relations Authority, involved the dismissal of an employee for forwarding offensive images by e-mail to internal and external recipients.
Ms Wood forwarded an email containing pictures of naked people, having twice previously been warned about similar behaviour.
Mr Mickell says his company has only applied the terms of employment and policies that Ms Wood had signed, and she had been warned about on more than one occasion.
“It has been a long and costly process, but we could not let the ERA ruling stand as is, due to the ongoing impact it may have on employment disputes. Each and every employment environment is different and this ruling allows this to be taken into account.” [Read more…]
Landmark Court Decision on Misuse of Internet in Workplace. Dismissal by Company of Employee Upheld.
Media Release 11 October 2008
The Society is delighted that the Employment Court in Wellington has recently issued a robust landmark decision that defends the rights of employers to enforce any company rules they have prohibiting their employees from accessing, downloading, uploading, saving, requesting, transmitting, storing or purposely viewing sexual, pornographic, obscene, racist, profane or other offensive and inappropriate material, using the workplace internet or intranet. The Court’s decision overturns a determination of the Employment Relations Authority (ERA) issued last year that was extensively covered in the media and featured in July 2007 on John Campbell’s TV3 Nightline programme.
“Employers have always had a right to dismiss employees who breach company policies relating to conduct in the workplace,” says Society Executive Director David Lane. “However, this Court decision, Arthur D Riley & Co Limited v Jessica Sharon Wood (WC 18/08; WRC 25/07) issued by Judge CM Shaw on 8 October 2008, underlines in case law, for the first time I am aware of, the rights of employers to tie their company policies to their own community/workplace standards in relation to objectonable/pornographic or offensive content, without relying on the liberal and flaky definition of what constitutes offensive and obscene content issued regularly by the Chief Censor’s Office – the so-called enlightened ‘objective view’. Of course companies must set out fair and reasonable procedures that allow an employer to effectively deal with breaches of conduct in the use of the internet, clearly define inappropriate content and notify and warn employees of the consequences of all misconduct.”
Employment Court Judge Coral M Shaw has overturned an earlier determination that was issued by the Employment Relations Authority (ERA) that upheld a wrongful dismissal claim by a Wellington woman Miss Jessica Sharon Wood against her employer Arthur D Riley & Co Lts (ADR). The substantial financial compensation awarded her by the ERA, made against ADR, has now been negated by the Employment Court which has ruled that all of it (paid in full by ADR into the Court, pending appeal result) – 75% of her lost wages from 18 September 2006 to January 2007 and $9,000 damages for humiliation – must be returned with interest to the plaintiff (ADR). The Court has reversed the decision of the ERA by now reserving costs in favour of the plaintiff, which has 28 days from the date of the Court’s decision, 8 October, to submit its claims against Miss Wood.
The Society Director David Lane praises Mr Garth Mickell, Director of a private electricity and water metering business, Arthur D Riley & Co Ltd (ADR), the plaintiff, for challenging the appallingly incompetent and flawed decision issued last year by Mr Denis Asher of the ERA.
In an email dated 10 October Mickell wrote to the Society:
“First thank you for your support, and advise. Attached for your reference is the employment court determination. We are thankful that commonsense has prevailed, and there is now the ability of places of work to be able to determine their level of morality and ethics, without influence from central government.”
To reiterate: employers now have a right, recognised by the Employment Court, to enforce company policy relating to what they consider constitutes objectionable/pornographic or offensive content without having to get an “objective” determination from the Chief Censor’s Office. Employers can also determine what constitutes “serious misconduct” relating to such material without having to have the liberal Chief Censor’s Office effectively negate the fair and reasonable community standards they seek to uphold in the workplace.
Grand Theft Auto IV: Who is the NZ distributor profiting from this offensive “Crime-Promoting Game”?
Grand Theft Auto IV (also known as GTA 4) – a computer game formatted for PlayStation 3 and Xbox 360 – was launched on April 29, 2008 and sold nearly 2.9 million copies in the United States in its first five days.1 The game – made by Two’s Rockstar studio – with first-week worldwide sales forecast of up to $US400 million, was submitted to the Office of Film and Literature Classification (OFLC) on the 4th of February 2008 by the Film and Video Labelling Body Inc (FVLB).
The computer game’s distributor, the applicant to the FVLB, recorded on the application form, its identity as “TAKE 2 INTERACTIVE”. All other details relating to the company were deleted from the form by the Chief Censor, Bill Hastings, when he provided the application form to the Society, in response to its Official Information Request (OIR). The applicant’s contact person, return street address for the publication and contact telephone number, were all deleted.
The Society Investigates……..
Society’s Submission to the Ministry of Culture and Heritage
Submission Re: Consultation Paper: “Broadcasting and New Digital Media: Future of Content Regulation”
Ministry of Culture & Heritage January 2008
Society’s responses to Ministry Questions submitted 11 April 2008
Q 1 What concerns are appropriate to be addressed through content regulation.
These concerns should include all content that could be considered “objectionable” and/or “injurious to the public good” …. all the matters covered under Sections 3(1), 3(2), 3(3), 3(3)(A) and 3(3)(B) of the Films, Videos, and Publications Classification Act (1993), which was amended in 2005. Concern should also include all matters related to issues of fairness, accuracy, balance and personal privacy, as well as others currently dealt with in Section 4(1) of the Broadcasting Act (1989). Consideration also needs to be given to the current set of principles established by the Press Council as well as matters dealt with in s. 21 of the Human Rights Act 1993 relating to the treatment of classes of persons.