Fenz breached firefighter's rights accessing bank account

Otago Daily Times

03-05-2025

A Christchurch firefighter who helped pool his colleagues' meal allowances so they could buy groceries and cook meals while on shift has been cleared of any wrongdoing after his employer accused him of misusing the money.
Instead, Fire and Emergency New Zealand was found to have acted unlawfully when it accessed firefighter Joshua Strauss' bank account, then used the information it collected to start disciplinary action against him.
The Employment Relations Authority (ERA) slammed the way Fire and Emergency handled the situation in a recently released ruling that found the organisation had breached the Privacy Act.
The New Zealand Professional Firefighters' Union president Joe Stanley told NZME the union had tried to get Fire and Emergency to take a step back and seek clarity on the employment matter, but the organisation refused to budge.
"All we've ever wanted is to settle this miscommunication, and it could have been resolved through a conversation," he said.
"We gave them lots of opportunities and, instead of talking, they decided to move away from established custom and practice and really focus on actions against Josh.
"Basically, they grabbed the wrong end of the stick and tried to beat Josh with it for the last 18 months." Tea, coffee, sugar, milk and biscuits
According to the ruling, Strauss opened a bank account for the Wigram Blue Watch at the Wigram Fire Station in Christchurch.
He planned to pool the firefighters' mess allowances so they could buy groceries and prepare meals together while on shift.
A mess allowance is a key feature of the collective employment agreement, and is a financial contribution made by Fire and Emergency to fire stations to purchase communal items such as tea, coffee, sugar, milk and biscuits. Any surplus is distributed among the firefighters who make up a watch.
Often, the surplus money was kept in cash containers, but Strauss set up a bank account to pool the leftover money and arranged for contributions of between $10 and $20 to be paid into it every week by his colleagues who wanted to take part.
That money was then used to purchase groceries for Wigram Blue Watch to cook shared meals.
But when Strauss left the Blue Watch and was stationed elsewhere, new members of the Blue Watch requested a transfer of the funds.
Strauss and ex-members agreed and sent the balance to the new account.
A new member was given authority over the account and when he logged in to check it, he believed he found "discrepancies" in the finances.
He informed his senior station manager, who took over the account, changed the passwords and then contacted area management to advise them of his concerns.
As Fire and Emergency pursued disciplinary action against Strauss, it sent him a letter claiming he'd accessed money that belonged to the Blue Watch and used it for personal purchases.
Strauss, in return, lodged a personal grievance against Fire and Emergency, through the union, claiming his personal bank account had been accessed unlawfully.
He said he would make a complaint to the Financial Services Complaints and the Privacy Commissioner.
In July 2024, Fire and Emergency issued preliminary findings concluding that Strauss had accessed money that belonged to the Wigram Blue Watch mess, which included contributions from Fire and Emergency.
The preliminary findings stated he made unauthorised transactions, which amounted to serious misconduct and would likely result in his dismissal.
Strauss then applied to the ERA to halt that action, and an injunction was made until a full hearing could be scheduled. Does not meet the duty of good faith
In this week's ruling, the ERA's Peter van Keulen made a final order for Fire and Emergency to cease disciplinary action against Strauss concerning the money.
Van Keulen found there was a lack of clarity governing the use of the mess allowance, but said it was clear there was a custom among stations to spend the surplus on almost anything related to firefighters' work.
He found Strauss had set up a personal bank account for pooling his and his colleagues' mess allowances, and that Fire and Emergency had no authority to take control of the account.
"This is akin to an employer taking control of an employee's personal mobile phone because the employee used that phone to access the employer's email system or used it to participate in an employees' group chat about work," he said.
"Intermingling does not change ownership rights, nor does it create access rights. There would be an extreme and chilling effect if an employer could authorise itself to take control over, or access, an employee's personal bank account because an allowance, payable to an employee, was paid by the employer into that personal bank account."
Ultimately, van Keulen found Fire and Emergency's actions had breached the Privacy Act.
"This taints all those aspects of Fire and Emergency's actions. I conclude that Fire and Emergency should not have acted on the complaint, used the information to investigate the complaint or proceeded with a disciplinary process against Mr Strauss.
"In doing so Fire and Emergency has breached the duty of good faith and not acted as a fair and reasonable employer could in all the circumstances.
"In short, Fire and Emergency used its position as Mr Strauss' employer to improperly and unlawfully gain access to his personal bank account and then it relied on the information in that account to investigate a complaint and conduct a disciplinary process against him – this is not justifiable behaviour, nor does it meet the duty of good faith."
A Fire and Emergency spokesperson said it was aware of the ERA's ruling and was "scrutinising it".
"We're unable to comment further at this point. Employment matters are confidential, and the matter is still under judicial consideration."
- Jeremy Wilkinson, Open Justice reporter