A guarantee of maintaining confidentiality is a key element in successful workplace investigations whether completed internally or by an external party. It protects employees from retributive action, encourages participation, and creates confidence in a company or organisation and its dispute resolution process.
However, the reality is that we can’t guarantee confidentiality. As affected employees increasingly seek legal avenues to resolve situations, including workplace bullying, our ability to maintain confidentiality becomes compromised. In this article, we explore two cases that were presented to the Fair Work Commission that involved applications seeking orders to access to what had been considered as confidential documents.
Fair Work Commission and Anti-Bullying Orders
Before we start, it is important to understand the role of the Fair Work Commission and anti-bullying orders. Under s.789FC, where an individual or a group of individuals reasonably believes that they have been bullied at work, they can make an application to the Fair Work Commission for an order to stop the bullying behaviour. For a matter to be considered bullying, it must include three core characteristics, these being there is unreasonable behaviour that is repeated and that creates a risk to health and safety. That being said, bullying doesn’t include reasonable management action carried out in a reasonable way.
In the course of that application, an individual can request an order for access to relevant information and documents that is not readily available. Under the Act (s.590), the Commission has the power to inform itself on matters that are before it in such a manner as it considers appropriate. This includes the provision of documents or records or any other required information. The test linked to this request is whether the documents have been specified with reasonable particularity and whether the documents have an apparent relevance to issues in the matter.
Case 1 – A Successful Application for Document Release
The first that explores the challenges of maintaining confidentiality in regards to our workplaces, involved Gordon and Rosemary Cooper who lodged separate anti-bullying applications against Jayex Healthcare. In October 2016, they requested an order for access to an independently completed bullying investigation report, potentially relevant board meeting minutes that may have outlined relevant actions in regards to the matter, and any correspondence referring to the report or resolution actions relating to the matter before the Commission. They argued that provision of the documents were in the interests of the administration of justice.
Jayex Healthcare opposed the provision of the documentation on the grounds it contained confidential information. Other employees of Jayex Health provided witness evidence for the investigation. Despite not being named, they were potentially identifiable. It was also argued the release of the report would also undermine employee confidence in the workplace investigations and complaints process. They had been assured of confidentiality.
The Commission agreed that the documents had potential relevance to the matter, making an order that all three be made available for the investigation. The Commission also agreed that the interests of justice outweighed the potential risk of the applicants identifying the providers of witness statements. That being the case, a supplementary order was made that the documents could only be produced to the applicants and their legal representatives for the purposes of the anti-bullying application. They should not be otherwise published, distributed or shown.
Case 2 – An Application Rejected
Not all applications for documentation are successful. In a matter from May 2017, Dr Michael McShane, a lecturer employed at Deakin University, lodged an anti-bullying order naming Professor Sandeep Gopalan and two others. As part of his application, he sought an order for a report into allegations of misconduct by Gopalan while the latter was dean of the University of Newcastle Law School. Dr McShane argued that the report was sought for forensic purposes and that it may demonstrated management behaviour of Professor Gopalan.
Deakin University objected to the application because it related to a completely different workplace, therefore wasn’t relevant to the current proceedings. The University of Newcastle acknowledged the existence of the report, which had been completed in mid-2015, but provided further information that its purpose was a workplace review of the Law School, not allegations of misconduct by Professor Gapalan. The report also provided feedback on six individuals who had not had access to or had an opportunity to respond to the report, and who could suffer irreparable reputation damage. They also argued it had no relevance to the current proceedings.
The Commission decided in this case, the application did not meet the test of apparent relevance. The Commission agreed that the behaviour at another workplace was not relevant to the matter before it. The issue of confidentiality and harm to reputation was also identified as far outweighing any evidentiary value.
Planning for information release
The above case studies highlight that we can’t guarantee confidentiality of workplace investigations, especially in an environment where more individuals are seeking legal alternatives as a resolution to workplace matters. That being said, the documentation needs to have demonstrable relevance to the matter before the Commission for an order to access that information.
However, there is one factor that makes this more challenging. For an anti-bullying order to be granted, the applicant needs to still be employed by the workplace and at risk of bullying. This means that the person who has access to the investigation may still be an employee of your organisation or company. The risk that exists includes an accidental, or purposeful, slip of the tongue by the holder of that information that can have a significant impact on your employees and their trust in how you do business.
For that you need a plan. You need to ensure that:
- employees are aware that information may be ordered to be available in potential legal cases;
- where this occurs, advise you will do everything in your power to maintain confidentiality and minimise that information’s inappropriate use; and
- there are consequences that results from such information being inappropriately shared or used to victimise employees.
Maintaining the trust of your employees is key to successfully operating a business. External factors do present a challenge, but they can be overcome with the right approach.
That being said, preventing workplace bullying and the need for an investigation is a much better option!