She had a legal right to conceal the conviction. Her former employer sent it to ACC anyway
An aged care employer has been penalised $10,000 after New Zealand's Employment Relations Authority found it deliberately breached a mediated settlement by sending disparaging documents about a former worker to ACC - including material referencing an old conviction the worker had a legal right to conceal.
The determination, issued on October 15, 2026, centred on what happened after a caregiver at an aged care home on the outskirts of Motueka settled an employment dispute with her employer, FOMHT Health Services Limited (FHS).
The worker had been employed as a caregiver and laundry service provider from June to October 2024. A workplace incident in August 2024 led to sick leave, a resignation, and eventually a personal grievance in which the worker alleged she had been bullied.
The two sides went to mediation and signed a settlement agreement on May 1, 2025. Among its terms was a standard non-disparagement clause: neither party would make disparaging or defamatory comments about the other to any third party, in any forum.
That should have been the end of it.
On October 15, 2025, ACC wrote to the employer seeking information about the worker's mental injury claim arising from the workplace incident. Six days later, the employer's chief executive responded with an email that the Authority later found went well beyond what was asked for.
Attached to the response were three witness statements from staff - all of which, the Authority noted, portrayed the worker "in an unfavourable light." A fourth witness statement, the one most favourable to the worker's account, was not included. The Authority found this omission was almost certainly deliberate, noting it was "highly unlikely" that every other statement in the file was disclosed but that one was missed by accident.
Also attached were a set of documents that had surfaced internally in April 2025 - before the settlement was signed. Those documents, the Authority found, portrayed the worker negatively and included a reference to a conviction from 2010.
That conviction was no longer current. Under the Criminal Records (Clean Slate) Act 2024, eligible individuals have the right to have old convictions concealed, provided they meet specified criteria. The employer had already sought legal advice on this point after the conviction failed to appear in police vetting - putting it on notice that the conviction was not current. It disclosed the details anyway.
The Authority found the disclosure breached the non-disparagement clause. It rejected the employer's argument that it was justified under the Accident Compensation Act 2001, which requires former employers to provide ACC with relevant information on request. The key word was "relevant." The Authority held that while some of the information about the workplace incident was legitimately responsive, the disclosure as a whole was "one-sided and exceeded what was necessary" and included material "unrelated and irrelevant to the Workplace Incident."
The worker's own ACC authority form permitted ACC to collect records relevant to her claim. It did not, the Authority found, authorise the employer to send the disclosure email.
On the question of intent, the Authority was direct. It found the disclosure was "deliberate" and driven by "ill-will" towards the worker that remained from the workplace incident, her personal grievance, and the settlement. The April documents, it found, were disclosed with "the intent of undermining" the worker's credibility.
At the investigation meeting, the employer's chief executive said she believed it was the employer's job to send information from "our side" and it was the worker's job to provide her own. She described herself as an experienced care manager with more than 11 years in management and a background in handling ACC claims.
She said she had regrets and had learned lessons. But, the determination records, she concluded: "I don't regret not backing down."
The employer had not acknowledged the breach or taken steps to mitigate it. It had not contacted the worker or her representative before making the disclosure, and had made no attempt to verify the information in the April documents.
A clinical psychologist gave evidence that the disclosure caused the worker "moderate" distress that was "clinically meaningful and more than minor or short-lived," though it did not amount to a separate mental injury.
In setting the penalty at $10,000 - against a statutory maximum of $20,000 for a company - the Authority weighed the deliberate nature of the breach, the worker's vulnerability at the time (she was unemployed and experiencing mental health difficulties), and the absence of any acknowledgement or mitigation. The Authority noted the employer is a not-for-profit organisation but "a significantly sized business" with sufficient resources to have been properly advised.
Seventy-five per cent of the penalty - $7,500 - was ordered paid to the worker, with the remaining $2,500 payable to the Crown. Costs were reserved.
For HR teams, the case is a pointed reminder that a non-disparagement clause does not switch off when a statutory information request lands on your desk. The obligation to respond to ACC - or any regulator - does not license a data dump of everything unfavourable in the file. What gets sent, what gets left out, and whether anyone checks with the other side first are all decisions that can put an employer back in front of the Authority.
