Rude cake baker gets record $168K in damages

The woman awarded a record $168,000 payout from her former employer says she is "relieved and elated at the decision" by the Human Rights Tribunal.

Hawke's Bay woman Karen Hammond, who iced a cake with derogatory comments about her former employer, has won her claim that her privacy was breached when the company took an image of the cake from her Facebook page and used it to harm her employment opportunities.

The Human Rights Review Tribunal ordered NZ Credit Union Baywide to pay a record $168,070 in damages to Hammond, and apologise to her "for the severe humiliation, severe loss of dignity and severe injury to feelings".

The company must also retract information it sent to staff and other agencies about her, and undertake training to ensure all staff understand the Privacy Act.

In a statement issued this afternoon, Karen Hammond said the case had "consumed my life for three years".

"I had to represent myself at the tribunal because NZCU Baywide left me in a position where I could not afford a lawyer.

"The tribunal has confirmed what I have been saying for three years - that NZCU Baywide acted maliciously and unlawfully.

"I lost employment opportunities, it caused major grief for my family, the financial impact meant my partner had to leave the region to find work that could sustain us, and the humiliation and stress.  

"The personal impact has been huge," she said

She said she was pleased to know that the protection of all NZCU Baywide staff in terms of their privacy had been achieved. 

'SICK OBJECTIVE'

Hammond resigned from NZCU on March 26, 2012. Five days later she baked a cake for a colleague, who, like her, believed she was constructively dismissed from the company.

In the cake's icing was written "NZCU f..k you" and other derogatory terms.

Hammond, who represented herself before the Human Rights Review Tribunal in early December, said she baked the fruit and chocolate chunk cake for a private function of about 10 friends.

She took a photo of it and put it on her Facebook page, ensuring it was only accessible to her Facebook friends.

On April 10, Hammond started a new job at Financepoint, a broker for clients using lending companies such as NZCU.

Soon after, she discovered NZCU executives had accessed the photograph of the cake by forcing a young employee, who was Hammond's Facebook friend, to copy the image.

A screenshot of the image was taken and the company's human resources manager, Louise Alexandra, sent it to several local recruitment agencies and advised them against assisting Hammond.

Hammond said this was a malicious attempt to ruin her career in the finance industry "with complete disregard to the law to achieve their sick objective".The image was also sent to Hammond's bosses at Financepoint. Hammond said this was sent with a request that she be sacked.

She had to resign from her position at Financepoint because NZCU refused to deal with with her and put pressure on her new employer.

Hammond told the tribunal the cake was "a gift from one friend to another in the presence of our friends only ... So yes I made a cake to let off steam and cheer up a friend who had been so badly treated for no other reason than to ensure the executive team could exist in their roles".

NZCU's lawyer, Andrew Harris, told the tribunal the company accepted "there have certainly been errors of judgment by some of the defendant's employees".

But while NZCU accepted the photograph was offensive, and that distributing the image had caused Hammond some detriment and humiliation, "it does not accept it has caused the extent of harm alleged by the plaintiff".

Harris said Hammond made the cake and chose to share the photo of it to her 150 or so Facebook friends, among whom were NZCU employees and other finance sector employees.

Although the photograph had not been publicly available, it had been widely disseminated by Hammond, and it had been obtained lawfully.

Harris said it was accepted that Hammond's privacy was breached when Alexandra sent emails to the employment agencies. 

Her privacy was also breached when NZCU chief executive Gavin Earle sent an email to all staff concerning the photograph, as well as Hammond's resignation and other matters.

Earle admitted the company had made mistakes and told the tribunal that, in hindsight, it had been "irrational" to press for Hammond's dismissal from Financepoint on the basis that she was a commercial risk.

'SEVERE INJURY TO FEELINGS'

In its decision the tribunal said: "Looking at the facts as a whole we are of the view that an appropriate sum to adequately compensate Ms Hammond for the severe humiliation, severe loss of dignity and severe injury to feelings inflicted on her is $98,000. 

"In arriving at this sum we have taken care to focus only on the emotional harm which the actions of NZCU Baywide caused to Ms Hammond and have excluded any element of punishment or disapproval."

It further awarded Hammond damages of $38,350 for lost income, $15,543 for legal expenses, and $16,177 for the loss of a benefit Ms Hammond might reasonably have expected to get.

The tribunal said the case illustrated "in dramatic terms the reasons why the information privacy principles were enacted by Parliament in the Privacy Act.

"The unrestrained use of personal information can cause devastating, if not irreparable harm to an individual. 

"The Act stipulates that unless personal information is collected, stored and disclosed only as permitted by the Act, the holder of the information becomes legally responsible for the consequences.

"In the present case, had NZCU Baywide paused for a brief moment to consider its obligations under the Privacy Act it would have been deflected from the high-handed and impulsive reaction which has led to the infliction of serious harm not only on Ms Hammond but also on itself, its staff, its image and reputation," the tribunal said.

NZCU Baywide was ordered to send a copy of the tribunal's ruling be sent to employment agencies Red Consulting Group, Able Personnel, Adecco and Grow HR, and ask the companies to delete any screenshot of the cake from their records. 

NZCU Baywide said it accepted the "severe" ruling for it to pay $168,070 to Hammond.

In a statement issued this afternoon, the company said it had tried to resolve the matter "well ahead" of the tribunal hearing in early December.

"Baywide is genuinely sorry these breaches occurred and for the hurt, humiliation and distress caused, which is highlighted in the Decision of Tribunal. Errors of judgement were made, and these are sincerely regretted," NZCU Baywide chairman Iain Taylor and CEO Earle said.

"Unfortunately nothing we can say or do can alter the mistakes made in the past, and the hurt caused to Miss Hammond. We accept unreservedly the decision of the Human Rights Review Tribunal. We made mistakes; and we accept the remedies."

Earle agreed with the assertion of the tribunal chair that the response to the message on the cake was less than judicious in terms of the privacy policies Baywide had at the time.

"In simple terms, considerable offence was taken at what was expressed on the cake as a judgement of the organisation and its people; people were upset and angry and acted in a manner that was not well-thought through or responsible. This in no way excuses the privacy breaches that followed, which is reinforced in the Tribunal's decision," he said today.

"We accept unreservedly the Orders intended to ensure Baywide does not repeat such breaches in the future. These relate to retractions of earlier communications and training recommendations, in conjunction with the Privacy Commissioner, with respect of our obligations under the Privacy Act.

"Two years ago we took additional steps developing and implementing a solid and mandatory privacy training system, part of which ensures annual review by all staff. We will be talking with the Privacy Commissioner regarding training and be implementing any changes as recommended."