Withholding an employee’s information during a workplace bullying investigation

When an employee makes a complaint about bullying in the workplace (the complainant) they sometimes request to see the full investigation report including the accused’s statement and all other witness statements.  However, bullying investigations often contain sensitive information, including accusations about a colleague that could potentially lead to disciplinary action if the allegation is substantiated, and for one reason or another, the employer would like to withhold such information from the complainant.

The balancing act

Principle 6 of the Privacy Act 1993 (PA) gives individuals the right to access information that agencies hold against them. However, sometimes employers wish to withhold such information.

Section 29(1)(a) of the PA outlines the need for employers to balance the privacy interests of the person seeking the information against the interests of other people involved. Essentially, the employer must decide whether disclosure of information would be an unwarranted disclosure of another person’s affairs, given the circumstances.

Natural justice favours the complainant in the sense that they are entitled to see the results of the workplace investigation, even though this includes statements made about them by their managers, colleagues and alleged bullies. However, in some circumstances, employers may be justified in refusing requests for information relating to bullying investigations.

Employer’s concerns

A common concern by employers is that once an employee acquires all the information, they can then go to social media and publicise the information.  The Office of the Privacy Commissioner has said “this is not a legitimate reason for withholding private information under the Privacy Act”.  Instead, they have advised that employers can offer a limited viewing of the information with conditions.

Limited justifications – when an employer can withhold information

Section 29(1)(b) of the PA essentially says that agencies may refuse to disclose any information requested if the employer tells an employee that they will not share their statement, being evaluative material, with other parties.  This information can be redacted from the final investigation report so as to keep and maintain the confidentiality of the employee involved.

The PA says evaluative material is “assessment or opinion information that is compiled solely for a particular employment purpose such as to determine someone’s suitability for a job”.

The Privacy Commissioner had one case where they found the investigation report for bullying could not be withheld under section 29(1)(b) as the report 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.

The Office of the Privacy Commissioner has further seen some agencies withhold investigation reports from the complainant even though the report contained both the complainant’s personal information and the Terms of Reference for the investigation specifically stated they could receive a copy.

Key points to remember

1. If you are an employee and have made a complaint about bullying in the workplace, you are entitled to request and receive the outcome of the investigation, as it pertains to you (this may not include all the investigation information including information about other people involved).

2. When a bullying complaint is made, before the investigation starts, clear Terms of Reference should be drafted which set out how the investigation will be conducted and who will have access to the final report and when. This will ensure from the outset that the complainant knows what information they will or will not have access to once the investigation is complete and if there are issues with this, they can be discussed at the outset and agreed upon.

3. When information includes more than one person, it does not automatically mean an employer can withhold the information from the complainant.

Unique and difficult situations can arise when investigations are conducted and our Employment Law Team is on hand to provide advice and guidance throughout the process.

Workplace Law team

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan