The Privacy Commissioner’s office has received several complaints regarding employees being denied access to information about bullying investigations arising out of complaints that they have submitted.
As a result, on 28 January 2020, the Office of the Privacy Commissioner issued recommendations on how employers should be handling information requests regarding workplace bullying complaints and investigations.
If an employee feels that they are experiencing workplace harassment and bullying, they can make a complaint to their employer, and the employer has an obligation to fully investigate this complaint. The recommendations outline the rights that an employee who has made a complaint has under the Privacy Act 1993.
Situations where you cannot withhold information
Principle 6 of the Privacy Act 1993 gives individuals the right to access information that agencies hold about them. Employees will often request information about bullying investigations that they have been involved in. When a request is made, the employer needs to balance the privacy interests of the person who requested the information against the other people involved in the investigation.
Withholding information due to concerns over the information being released by publication on social media or through other forms of publication is not a legitimate reason to withhold it. The Office of the Privacy Commissioner says that these concerns can be addressed by offering limited viewings of the information or releasing the information with conditions.
The advice issued in late January stresses that as a principle of natural justice, the person who makes a complaint has an entitlement to see the results of the investigation, including statements their managers, co-workers or alleged bullies have made about them.
Situations where you can withhold information
The Office of the Privacy Commissioner made it clear that there are some instances where withholding the information is justified. The Privacy Act (section 29) provides examples of when an agency (such as an employer) may refuse access to personal information.
An example of when information can be withheld is where a disclosure of evaluative material would breach an express or implied promise made to the person who supplied the information, that the information or their identity would be held in confidence.
However, this exemption only applies to evaluative material, which is limited to information that is compiled solely for a specific employment purpose, such as appointment, promotion or removal from employment. In one case investigated by the Privacy Commissioner, it was decided that the investigation report for bullying could not be withheld as the report did not meet the “compiled solely” test because its purpose was wider than simply to determine whether the alleged bully should continue to be employed.
Think very carefully before denying an employee access to material relating to their harassment and/or bullying complaint.
Be wary of making assurances that information a witness provides will not have to be disclosed. In the majority of cases, an employee who provides a statement must be willing to sign their statement and agree to its disclosure to the alleged bully and the complainant(s) as part of the investigation.
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