In a recent case, an employee in New Zealand was compelled to hand over Facebook material posted on dates on which she alleged to have been absent from work on dependent leave caring for her sick sister. The employee opposed her ex-employer's application to get hold of the material in a dismissal claim. However, the Employment Relations Authority of New Zealand gave orders to hand over the material (together with bank account statements for the same days) on the basis that the material would be useful to test the veracity of the employee's claim that she had taken leave for a legitimate purpose: Kensington v Air New Zealand Limited [2013] NZERA Auckland 332.

Ms Kensington had been on leave at Takapuna beach when her sister, who had recently given birth to her first child, called Ms Kensington and asked that she stay with her the following day as she was feeling unwell. Ms Kensington sought to access dependent leave, and a dispute ensued as to whether she was entitled to the leave. Ms Kensington took the leave. Her employer later questioned whether she had in fact been with her sister. Ms Kensington was subsequently asked to attend a disciplinary meeting on the basis of the employer's concern  that she "may have falsely declared the need to look after [her] sister and used this reason in an attempt to secure further time off". She was later dismissed, in circumstances where Ms Kensington provided no contemporaneous evidence of her sister being unwell, and where, it later transpired, she had continued following her request for leave to take pictures of Takapuna beach for her Facebook page.

Ms Kensington subsequently challenged her dismissal on the basis that she had been "unjustifiably dismissed". The ERA found in her favour, although weight was given to her length of service and other factors related to the employer's procedure: [2013] NZERA Auckland 384. The substantive judgement in the proceedings is not remarkable in the ultimate finding of unreasonableness: the ERA considered principles akin to those that the Fair Work Commission must consider in an unfair dismissal claim. What is interesting in this case is the ERA's appetite to order the employee to hand over "veracity evidence" from social media pages. Here, the relevant authority was willing to require presentation of Facebook material to consider whether the employee's Facebook activity corroborated her story.

So, what can we learn from Ms Kensington's case (other than that Takapuna beach is very photographic)? The lesson for employers is in what can be obtained in the context of proceedings that may not otherwise be readily available at the point of dismissal. Social media content can be powerful "veracity" evidence for an employer and should not be overlooked, even if it has not been on hand during the employee's employment.