The Office of the Privacy Commission (“the Office”) has recently issued advice on rights to access information workplace bullying investigations after receiving a number of complaints from people who were denied information they requested from their employer.
Allegations of bullying in the workplace are complex. One issue that often arises is around the employer’s privacy obligations and disclosure of information to people during an investigation.
The Privacy Act states that an individual has the right to access information that agencies hold against them. Natural justice supports the perspective that people who make complaints of workplace bullying should be entitled to see the results of the investigation, including statements that have been made about them by others.
When considering a request for information, employers must balance the privacy interests of the person seeking the information against the interests of others. They must determine whether disclosure of that information would be an unwarranted disclosure of another person’s affairs given the circumstances.
Employers are often concerned that if they disclose the information, employees may publish that material. This is not a legitimate reason for withholding the information, however, it may be acceptable in some instances to offer the employee a limited viewing of the material.
One justified reason for refusing to disclose information is “if the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise”. In other words, if the employer tells an employee that they won’t share their statement with other parties, that can still be honoured.
Evaluative material is assessment or opinion information that is compiled solely for a particular employment purpose. In one case reviewed by the Office, they found the investigation report for bullying could not be withheld on this basis as it did not meet the “compiled solely” test. The report was collected to investigate a bullying complaint and not solely to determine whether the alleged bully should continue to be employed.
An employee who complains about bullying is entitled to know the outcome of an investigation as it pertains to them, but not necessarily all the information about other people involved.
When investigating bullying complaints, terms of reference should be clear and set out who will get to access the final report, any conditions on viewing it, and when access will be given.
Just because information is about more than one person does not mean an employer can automatically withhold it.
These issues are complex and each specific request for personal information should be considered and reviewed on a case by case basis when considering whether disclosure should be made.