Employers will make every effort to maintain confidentiality when it comes to employees who give evidence as part of an investigation. However, should a matter eventually end up before the Fair Work Commission (or similar tribunal) there is no guarantee that the confidentiality will be upheld.
Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited t/a DP World; Maritime Union of Australia, The Victorian Branch and Others  FWC 4542
Three DP World employees previously applied to the Fair Work Commission (FWC) for stop bullying orders against their DP World colleagues who were also members of the Maritime Union of Australia.
The substantive proceedings were put on hold until FWC heard DP World’s application for an order to restrict the publication of documentation which had been prepared by DP World in relation to complaints that had been made by the three employees. The documentation included allegations about conduct in the workplace that had been raised in a confidential manner by some employees of DP World.
The three employees submitted that not having access to the documentation would be contrary to the principle of “open justice” and would contribute to the perception that DP World encourages a workplace culture of silence. It was also argued that there was an implied undertaking of confidentiality amongst the parties relating the information.
DP World argued that the information should not be published on the basis that the identity of the employees who participated in the investigations and the information they disclosed were not relevant to the current proceedings. Further, it was also submitted that if the documents and the information within were disclosed, there was a risk that disclosure could undermine both ongoing workplace investigations by DP World and also employee confidence in DP Wold’s investigation policies and procedures generally. In addition to these arguments, DP World argued that its workplace behaviour policy gave assurances of confidentiality to employees who participated in the investigation process.
The FWC agreed with DP World’s submissions that the documents should not be disclosed as the information they contained was provided in confidence by employees who were not party to the proceedings. The FWC stated that to disclose the documents may undermine employee confidence in DP World’s policy and investigation processes and place those employees at risk of the same bullying behaviour as alleged by the three employees.
Accordingly, a confidentiality order was made to restrict the disclosure of the documents.
Employers will make every effort to maintain confidentiality when it comes to employees who give evidence as part of an investigation. However, should a matter eventually end up before FWC (or similar tribunal) there is no guarantee that the confidentiality will be upheld. To try and maintain confidentiality employers should try to be in a position to be able to show:
- The importance of maintaining confidentiality was specified to all participants involved in an investigation.
- The degree of relevance the sought after information has in relation to the matter before FWC (or similar tribunal).
- The negative impact on the workforce in terms of employees feeling uncomfortable or scared to come forward with information if confidentiality is not upheld.
- The negative impact on the employer’s ability to investigate complaints/allegations in the absence of employees providing information due to the lack of confidentiality.
- The existence of any legal privilege over the information.
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