Employment Law

Privacy and the right to a reference

One of the most peculiar features of New Zealand Employment Law is that employyes are not entitled to a reference. Whereas in Germany it is fixed in statute and often fiercely fought over, employees in New Zealand are left with a handshake and the hope that the previous employer will give an accurate and positive account of their work when rung up by the new prospective employer. More often than not, though, employers are symphatitic to the request for a written reference.  On the other hand, verbal references tend to be more honest. Its harder to lie when you are put on the spot. Also, all that jargon and hidden meanings which have developed in Germany due to obligation to give a ‘positively-worded’ reference, are virtually unheard of down here.

But there are also drawbacks:

http://www.privacy.org.nz/case-note-210106-2010-nz-privcmr-14-woman-seeks-access-from-former-employer-to-content-of-verbal-reference/

The former employer provided a verbal reference to the prospective new employer, but in the end, the employee did not get the job. She believed that her former employer was not quite honest or said something negative about her.  However, the ex-employer refused to tell her what he had said. With no employment relationship in place anymore, she could not claim that the ex-employer had disadvantaged her, so she omplained to the office of Privacy Commissioner.

Under the Privacy Act everyone has access to all information which is held about them. This includes information which is not written down anywhere, i.e. in “someones head”. As long as the information is readily retrievable, however, the information has to be provided.

Of course, what is retrievable depends on the circumstances. Here, because the conversation took place fairly recently, the employer was ordered to providce a summary of the verbal reference.  But it might still be a good idea to always request a written reference, even a short one.  After all you dont want to go to the OPC every time you need to check a reference.

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