Confidentiality applies to the support person as well…

The Fair Work Commission (FWC) recently considered if the confidentiality obligations in  disciplinary investigations extend to a support person.

Background

Mr Leighton was engaged as an emergency services officer by MSS Strategic Medical and Rescue (MSS). Mr Leighton also undertook the role of CFMEU site delegate.

In December last year, Mr Leighton acted as a support person for a fellow employee, Mr Arnold, in relation to allegations regarding Mr Arnold's conduct in a toolbox talk. 

MSS provided Mr Arnold with a letter marked "confidential" in relation to the alleged conduct, which Mr Arnold subsequently provided to Mr Leighton. 

Mr Leighton then forwarded the letter and his response to it by email to the CFMEU and blind carbon copied other members of the work group.

MSS subsequently met with Mr Leighton regarding his breach of confidentiality in distributing the letter and issued a final written warning to him regarding the breach of his confidentiality obligations.

The CFMEU on behalf of Mr Leighton, lodged a dispute with the FWC on the basis the warning letter was harsh and disproportionate in all the circumstances, and should be removed from Mr Leighton's employment record.

Decision

The FWC confirmed that Mr Leighton should not have forwarded the letter to other members of his workgroup and the CFMEU, "… primarily because Mr Leighton was at the time first and foremost carrying out the role of support person for Mr Arnold in relation to a disciplinary investigation being carried out into his behaviour. Any person in that role of support person should understand an investigation into issues to do with an employee's work performance or behaviour are private matters between the parties and, the confidentiality of those processes should be respected at all times." 

However, the FWC then found the final warning was harsh and unwarranted in the circumstances as:

• Mr Leighton had a reasonably unblemished record;

• Mr Leighton did not act to intentionally or maliciously damage or harm MSS; and

• the letter contained little information that would not have already have been known to other employees, that would have caused an issue for MSS or that was commercial in confidence,

and a written warning (not a final written warning) would be appropriate in the circumstances.

Lessons

In most circumstances, when undertaking investigations and disciplinary processes, employers should ensure that:

• prior to commencing a relevant meeting, the employee and their support person are advised of their respective obligations to keep all matters related to the investigation or disciplinary action strictly confidential; 

• letters or other relevant documents provided to employees regarding investigations or   disciplinary action should be marked "private and confidential" and further confirmation provided within the body of the document regarding its confidential nature and that it should not be inappropriately disclosed; and

• clearly outline in any relevant policy and procedures that both employees and their support person are obligated to retain strict confidentiality.

If you would like more information about the case, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.