A recent decision of the Human Rights Review Tribunal should serve as a warning to employers with respect to disclosure of what is treated as confidential information by the Employment Relations Authority. The case of Waters v Alpine Energy Ltd came before the Human Rights Tribunal earlier this year and Mr Walters, an unsuccessful job applicant, argued that he was discriminated against due to his age (62 years) and he sought disclosure of information about the other applicants. The Tribunal ordered the employer to disclose to Mr Waters the names, CVs, qualifications and work experience of the successful job applicants. The Tribunal also ordered the disclosure of the references obtained by the employer’s recruitment agency in relation to all of the other applicants for the job. While the Tribunal ordered that the addresses and contact details of the applicants could be redacted, in an unusual move the Tribunal ordered that the names of the Applicant’s be disclosed holding that “without the names of the applicants the information may be difficult to use or manage.”
This decision is similar in some respects to the Employment Court decision of Vice-Chancellor of Massey University v Wrigley & Kelly where the Court held that the employer, who was restructuring, should have provided unsuccessful candidates with certain information about the other candidates regardless of the issues of confidentiality and potential breaches of the Privacy Act 1993. These decisions are worrying for applicants applying for jobs in the belief that their personal employment history and information will be kept confidential. It also creates difficulties for employers in knowing when they can and cannot disclose personal information.
The Employment Relations Amendment Bill which is currently going through Parliament proposes to amend the Employment Relations Act to address the discrepancy between the approach now taken by the Employment Court, following the Massey decision, in relation to disclosure of information under section 4 of the Act, and the protection of personal information under the Privacy Act. However amendments to the Employment Relations Act will not bind the Human Rights Review Tribunal because of the different jurisdictions. This will no doubt lead to inconsistencies in law. On one hand applicants in a job application process can still obtain personal information about other applicants through the Human Rights Review Tribunal, whereas unsuccessful employees in a restructuring process will not be entitled to this information, once the Act has been amended.
The differences in these approaches will cause difficulties for employers in the future in balancing the rights of candidates to access information, as against the rights of individual candidates to privacy. It is therefore crucial that you seek legal advice before disclosing any information.
We are specialists in the area of employment law. If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co who normally advises you, or alternatively contact:
Kirsten Maclean
(03) 477 8870 or (09) 379 0055
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.