четверг, 19 марта 2015 г.

Австралия (трудовые отношения). Если работник попадает под специальное внутренние расследование по трудовым вопросам его необходимо уведомить о не распространении соответствующей конфиденциальной информации. Это же касается другого работника, которого указанный работник выберет для своей поддержки в расследовании.

Workplace Bulletin
Home | About UsTwitter LinkedIn

What happens when a support person 

breaches confidentiality?

Wednesday, 18th March, 2015, by Loran McDougall
In today's Workplace Bulletin:
  • Case Law: FWC responds to a support person breaching confidentiality
Dear Reader,
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,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
Click here to find out how to make sure you’re fully equipped to
conduct an effective workplace investigation - without creating
any legal risks for your business.

Case Law: FWC responds to a support 

person breaching confidentiality

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
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 confidentiality. Make sure that they are aware that breaching confidentiality may result in disciplinary action.
Charles Power
Charles Power

Employment Law Practical Handbook

Like the Workplace Bulletin? Check out our other free bulletins:
Health & Safety BulletinHealth & Safety BulletinAll the latest tips, tools and strategies you need to help you stay on top of health and safety laws. Click here to sign up now.

Self-Managed Super FundSelf–Managed Super Fund Bulletin
Receive all the information, ideas and tips you need to manage your own super fund. Click here to sign up now.

Please whitelist the Workplace Bulletin to make sure you get every edition delivered to your inbox.
The information in this email is intended solely for the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipient, please return the message to the sender and delete it from your records. All content is © 2007-2015 Portner Press Pty Ltd All Rights Reserved.
Disclaimer: We research our recommendations and articles thoroughly, but disclaim all liability for any inaccuracies or omissions found in our publications. Click here to view our Privacy Policy and Terms and Conditions.
Queries: For general enquiries, email cs@portnerpress.com.au or call 1300 782 911.
Workplace Helpdesk: Paid subscribers to the Employment Law Handbook can ask our experts for advice.
Syndication: To republish a Workplace Bulletin article, please email cs@portnerpress.com.au for information.
Workplace Bulletin ISSN 1836-117X
Portner Press Pty Ltd
96-98 Bridport Street
Albert Park VIC 3206