The prevalence of workplace bullying and its impact on the law continues. Since our two-part series on workplace bullying in 2019, the Privacy Commissioner has released some guidance regarding how employers should manage Privacy Act requests in the context of workplace bullying investigations.
The Privacy Commissioner providing information regarding these types of requests shows that Privacy Act requests are being used often in circumstances of workplace bullying complaints and that employers need to manage them appropriately.
Employers hold ‘personal information’ about employees and Privacy Act requests can be used to help in better understanding the allegations and responses to those allegations. This is true whether you are the alleged bully or the alleged victim of that bullying.
The challenge for employers when dealing with these types of requests is that there is more than one person’s private information that is held by the employer. An employer must balance the rights of both individuals when managing the request.
There are justified reasons for withholding that material. An example being where disclosure of the material would breach an express or implied promise made to the person providing ‘evaluative material’. Evaluative material has a legal definition and is material ‘compiled solely’ for a particular employment purpose — for example, promotion or removing someone from their employment.
A lot of material will fall short of the ‘compiled solely’ standard and therefore will need to be released. Reasons such as concerns regarding publication by an aggrieved or vindictive employee are not valid reasons for withholding.
Privacy Act requests are a powerful avenue to source information and employers receiving them need to manage them carefully.
- be careful not to make promises not to disclose material (the law may not support that promise)
- ensure that the sharing of information is covered in terms of reference for the investigation into bullying
- get advice to ensure they are managing their Privacy Act obligations to both the employee whose information it is and the employee requesting the information.
For more information:
To read the full privacy commissioner information, click here.
Workplace Bullying series:
Click here for more information on anonymous complaints in the workplace.