By Charles Power
[Ed Note: If you are conducting a workplace investigation into alleged employee misconduct, neither the investigator nor the participants should speak about the investigation to other employees, including any witnesses involved. The same goes for any performance management process you undertake with an employee.
But what happens to this confidentiality requirement when a participant chooses another employee as their support person? As you probably know, under the unfair dismissal provisions in the Fair Work Act 2009 (Cth), an employee has the right to a support person, who will accompany them to any meetings to offer physical and emotional support. In an ideal world, a support person will not be another employee (they may instead be, for example, a friend or a union official), but it is sometimes unavoidable.
In today’s bulletin, Charles Power looks at a case which provides some guidance on what you can do if an employee selects a colleague as their support person.
Until next time…]
Case Law: FWC responds to a support person breaching confidentiality
If an employee selects a colleague to be their support person in a workplace investigation or a performance management process and you refuse to allow this, you will be putting yourself at risk of an unfair dismissal claim. This is because refusing to allow a participant to have a support person is one factor that the Fair Work Commission (FWC) will look at when determining whether a dismissal was harsh, unjust or unreasonable.
So what can you do if you are concerned about confidentiality being compromised? In Construction, Forestry, Mining and Energy Union (CFMEU) v MSS Strategic Medical and Rescue (MSS) (2014), the FWC shed some light on this.
In the case, an employee invited a colleague to be his support person in a performance management meeting. When the colleague agreed, the employee forwarded him the formal letter of complaint from his supervisor.
The colleague then sent a formal response to the employee’s manager regarding the meeting. He also sent a copy of the letter and his response to other members of his work group and their union.
Management responded by informing the colleague that he had breached confidentiality by distributing the letter, and instigated an investigation. In his defence, the colleague claimed that “the notion of confidentiality never entered [his] mind” and that he was not aware that “forwarding the email could possibly lead to any disciplinary action”.
Nevertheless, the investigation concluded with management issuing the colleague with a final written warning. The union took it to the FWC, claiming that the final written warning was “harsh and disproportionate in all the circumstances”.
While the FWC noted that anyone involved in an employee disciplinary process is expected to maintain confidentiality, it also said that, in this case, the management should have specifically told the colleague that he was required to maintain confidentiality. Ultimately, the FWC found that while a final written warning was harsh, a written warning would have been appropriate.
What can you learn from this case?
Never assume that the requirement to maintain confidentiality goes without saying.
Remind all employees, including support people, who are involved in performance management meetings or workplace investigations to maintain employee confidentiality. Make sure that they are aware that breaching confidentiality may result in disciplinary action.
Employment Law Practical Handbook