Maintaining confidentiality is an essential component of an effective and functional complaints process. Therefore, it is common for employers to require employees not to disclose information to others during workplace investigations in order to preserve the integrity of the investigation. This is important in protecting all parties concerned, including the complainant, the respondent and any witnesses who may be reluctant to come forward with critical information.

Employers should consider placing confidentiality clauses in their workplace documents, including contracts, policies and procedures, to prevent employees disclosing confidential information. During workplace investigations it is worthwhile reminding participants at the outset about their confidentiality obligations.

In a recent case before the FWC,[1] an employee was dismissed after she sent emails to her Westpac state manager which included factually incorrect information about her colleague (relating to an investigation into a bullying and harassment complaint she had previously made against her colleague). The investigation had concluded and many of the allegations were found to be unsubstantiated. It appeared that the employee sent the emails in an effort to prevent her colleague, with whom she clearly did not get along, from getting a promotion.

In her emails to the state manager, the employee criticised her colleague’s performance and stated that he was put on probation for his behaviour and was required to undergo an anger management program, which was untrue. She also claimed that he was racist, harassing and abusive when no such allegations against him were substantiated. Further, the employee asserted that the case against her colleague was still open and ongoing, when in fact it had closed.

The employee was explicitly told that the investigation and outcome was to remain confidential. However, the employee explained she felt obliged to send the email because she believed the complaint remained open and unresolved. She had formed the understanding that someone who was subject to a current complaint could not be considered for a promotion, and if this had been overlooked it was her duty to report it.

Westpac submitted that they did not believe the employee’s assertion that she thought the investigation was still open or that she ‘acted out of some allegiance or duty to Westpac’. Further, not only did the employee breach confidentiality but she provided false information which was contrary to the Westpac code of conduct. The employee had received regular training on policy content and was well aware that the grievance process required confidentiality. She was reminded of this on numerous occasions throughout the investigation process. The company criticised her vindictiveness in attempting to disadvantage her colleague in relation to a promotional opportunity.

In finding that the employee was not unfairly dismissed, the FWC concluded there was no justification for the employee misrepresenting the facts in the way she did, and that she was only acting to damage the colleague’s promotional prospects. Further, the employee had breached Westpac’s policy in relation to confidentiality and her dismissal was justified and reasonable.

Lessons for employers

• Review and update your policies and procedures in relation to confidentiality including during investigations.
• Remind participants of their confidentiality obligations and the consequences when an employee discloses private or confidential information.
• Providing policy training is crucial, both to ensure employees are informed of the importance of preserving confidentiality and to enable the employer to rely on their policies in the event of a breach by an employee.