Job privacy weighed | Rural

One of the main objectives of the Employment Relations Act 2000 acknowledges the inequality of bargaining power within employment relationships. When a business is restructured, most employers end up determining the outcome. How much affected employees can influence a decision is determined by their knowledge and understanding of the grounds and an opportunity to express their thoughts on them.

So has the Employment Court in Vice-Chancellor of Massey University v Wrigley & Kelly restored equality, or tipped the scales heavily against employers?

Section 4(1A)(c) of the Act requires an employer to provide affected employees in restructuring, redundancy and even disciplinary matters, access to ''relevant'' information that will affect their continuing employment. The court has given practical effect to an employer's ''duty of good faith'' in section 4 of the Act, including what information should be provided to employees. It brings far-ranging implications for all employers by extending to matters traditionally held under privacy and confidentiality to even what decision makers were thinking.

This case involved a restructuring at the university, where existing employees were subject to a selection process for a reduced number of jobs. Employees were provided with a range of information before the selection process, including the selection criteria, subject matter of interview questions, interview panel composition and who the other candidates were. Following selection, unsuccessful employees were provided with feedback on why the panel had not recommended them. This included individual assessment sheets, minus information about the other candidates. The employees were also given the opportunity to comment on the information before the final decision was made.

The unsuccessful employees sought information about the other candidates, including interview notes and scores, the panel's written recommendations and even what panel members thought. The employees claimed that section 4(1A)(c) of the Act entitled them to ''relevant'' information and that by not disclosing it, Massey University had not met its ''good faith'' obligations. The university claimed the information was subject to privacy and an exception provided for in the Act.

The court held that ''relevant information'' is information ''relevant to the continuation of the employee's employment'' and may include a good deal more information than employers have traditionally relied on. Significantly, the court held that ''relevant information'' included details about the other candidates from interview and assessment sheets to candidate comparison sheets.

Strikingly, it included what members on the selection panel were thinking. With non-documented information like this, the court held that access may be provided in other ways, such as by telling the employee. The court acknowledged the Employment Authority's reluctance in a previous hearing, to ''reach into the minds of the selection panel members''. However, regardless of the fact non-documented information may be difficult to retrieve and be less accurate, it is still relevant.

The court felt a broad interpretation of ''relevant'' was required to overcome an ''overwhelming inequality'' of bargaining power in the employment relationship. This is a warning to all employers that a broad range of information and documents may potentially have to be disclosed during restructuring. What's more, the court regarded the principles formed in this case would apply to similar situations where employment maybe at risk, such as serious misconduct or poor performance. This raises concerns as to whether employees are being afforded a position of negotiation in situations where traditionally consultation and co-operation are the main objectives.

With the employer's thoughts now subject to an employee's right of disclosure, the decision makes considerable inroads into the employer's right to run a business and manage employees. Employers need to tread carefully as the ramifications are obvious.

About the author: Ronni Cabraal is a Senior Associate in the employment team.

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