KXBbwA asked his colleague B (a long term employee and union delegate at their workplace) to be his support person during an investigation process being conducted by their employer.  A gave B a copy of a letter A had received from the employer.  The letter referred to the confidential nature of the investigation being undertaken.  B responded to that letter to the employer on behalf of A and provided a copy of the letter and his response to the union, and to other members of his work group at the workplace.

The employer was not impressed with B, who later acknowledged and apologised for the breach of confidentiality as a support person but said he was not aware of his confidentiality obligations.  The employer then issued B with a final written warning.

The union applied to the Fair Work Commission (FWC) on B’s behalf, submitting that the final written warning was harsh and disproportionate in all the circumstances, and should be removed from B’s employment record.  The employer said that it had considered summarily dismissing B for serious misconduct but had settled on the lesser disciplinary measure of a final written warning.

The FWC held that:

“Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times”.

Nevertheless, the FWC held that the decision to issue B with a final written warning was harsh and warranted review.  Relevant factors were:

  • B’s role as union delegate meant he should know better but also that he had an active role to play for employees in that workplace;
  • there was little in the letter B circulated that was truly confidential;
  • B was a long term employee (over 11 years) with a clean disciplinary record;
  • B did not act intentionally or maliciously to damage the employer.

The FWC ruled that B’s final written warning should be downgraded to a written warning only.  The FWC “emphasised that it is to be expected the parties involved in issues to do with individual employee disciplinary processes will respect the confidentiality and privacy of those processes”.

For employers, a lesson is to ensure that, when an employee requests a colleague as a support person, the colleague is clearly informed of the strict confidentiality of the process and then disciplinary measures can result if that confidence is breached.  When an external support person is brought in, an employer may wish to request that person sign a brief confidentiality undertaking (even if just to re-emphasise the confidentiality of that process).

At Everingham Solomons, we have the resources and expertise to assist with issues in your workplace because Helping You is Our Business.

Click here for more information on Keiran Breckenridge.