Workplace bullying investigations and the Privacy Act 1993 | Employment Law Update March

Under the Health and Safety at Work Act 2015, employers and workers have an obligation to ensure that workplace bullying is adequately addressed. Employers must, so far as reasonably practicable, ensure the health and safety of workers in the workplace. This includes having a workplace free of bullying. And employees must take reasonable care of the health and safety of themselves and take reasonable care not to adversely affect the health and safety of others.

All this includes taking steps to ensure there are robust workplace bullying, harassment and discrimination policies in place to prevent such behaviour in the workplace. And if a complaint is made and an investigation is necessary, the employer needs to understand what information it is and is not entitled to disclose to the parties involved.

If an employee is dissatisfied about the way their personal information is being handled by their employer, the employee may make a complaint to the Privacy Commissioner. An employee may make a complaint that one or more of the 12 core information privacy principles established under the Privacy Act have been breached. These principles cover situations involving how personal information should be collected and handled, storage of personal information, disclosure of personal information and more. Broadly speaking, any complaint made to the Privacy Commissioner usually concerns wrongful holding, collection, use or disclosure of personal information, which makes the Privacy Act a particularly pertinent issue for employers to consider during workplace investigations.

When cannot an employer withhold information?

Information Privacy Principle 6, titled “Access to personal information” provides that individuals have the right to access information that employers (agencies) hold about them:

“Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled—

  • (a) to obtain from the agency confirmation of whether or not the agency holds such personal information; and

  • (b) to have access to that information.

However, when employees request information relating to a bullying investigation they were involved in, the employer will need to consider whether there are any grounds to refuse this request. One ground for refusal relates to the need to balance the privacy interests of the individual who requested the information against the privacy interests of other people who were involved. In other words, as per s 29(1)(a) of the Privacy Act, the employer needs to determine if disclosing the information would involve the unwarranted disclosure of other people’s affairs.

In its recommendation, the Office of the Privacy Commissioner noted examples where agencies had refused to disclose an investigation report to an employee despite the fact that the terms of reference in the report provided that the complainant would receive a copy, and the report contained the employee complainant’s personal information. These reasons will generally be unjustified reasons for withholding a report, especially as information in the report about others can often be redacted. This point is illustrated by the Watson case.

Watson v Capital & Coast District Health Board [2015] NZHRRT 27 was a Human Rights Review Tribunal (HRRT) case involving an employer which withheld personal information from a complainant. Ms Watson was a registered nurse employed by the Capital & Coast District Health Board (CCDHB) and lodged a harassment complaint against her line manager, Ms Slade. Ms Watson’s manager