Is a complainant allowed to access information obtained during a workplace investigation?

WorkSafe New Zealand reports that as many as one in three employees claim that they are the victim of bullying or harassment in their workplace.  When an employee makes a complaint about being bullied, the employer has a duty to investigate the complaint and take steps to protect the complainant if necessary.  The Office of the Privacy Commissioner reports that many employees are dissatisfied with the amount of information they are being provided with about these investigations. 

What does the law say about the right to access information obtained in an investigation?

Principles 6 of the Privacy Act gives individuals the right to access information about themselves. Specifically, the Office states that “people who make complaints of workplace bullying should be entitled to see the results of the workplace investigation often – including statements their managers, co-workers or alleged bullies have made about them."

On the other hand, however, the Office also reminds parties that employers "must balance the privacy interests of the person seeking the information against the interests of other people involved. They must determine whether disclosure of that information would be an unwarranted disclosure of another person’s affairs given the circumstances."

If there are concerns that such information will be published, measures should instead be put in place to prevent this (for instance allow limited viewing, or release the information subject to conditions). 

The Privacy Act allows employers to refuse disclosure of information in limited circumstances only, for instance:

• the information is “evaluative material” and the employer made “an express or implied promise” that the information would not be disclosed;
• after consulting with an individual medical practitioner, the employer believes that disclosure will result in the physical or mental health of an individual deteriorating; or
• the information requested is not readily retrievable, does not exist, cannot be found.

Getting things wrong can be costly.  In 2015 an employee was awarded $15,000 for the hurt and humiliation she suffered when her employer refused to disclose personal information about the investigation of her bullying complaint. 

Quick summary:

1. If you have made a complaint about bullying you are entitled to know about the outcome as it pertains to you, but not necessarily all the information about the other people involved.
2. When you are investigating a complaint about bullying you should set clear terms of reference about who will get access to the final report and when.
3. Just because information is about more than one person does not mean an employer can automatically withhold it.

Learn more about what you can you do if you are the victim of bullying, or if you are accused of being a bully.

Learn more about finding out more about your right to information about what your referee’s are saying about you.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins, we have an experienced family law team, who can answer your questions and put you on the right track.