A recent decision of the Fair Work Commission (FWC) has clarified that employees who support colleagues during disciplinary investigations must maintain confidentiality in relation to that investigation.

In the case, an employee who was acting as a support person to another employee during a disciplinary investigation forwarded an email and a letter about the investigation to his union and other colleagues in his work group. As a consequence, the employer issued the support person with a final written warning for breaching confidentiality.

The union subsequently made an application to the FWC under the dispute resolution clause of the employer’s enterprise agreement claiming that issuing a final written warning was ‘harsh and disproportionate’ and that it should be removed from the employee’s employment record.

While the FWC found that the final written warning was harsh and a less serious disciplinary action should have been taken under the employer’s policies in the particular circumstances of the case, it did find that that disciplinary investigations ‘are private matters between the parties, and the confidentiality of those processes should be respected at all times’.

The FWC considered that the employer had grounds to take disciplinary action against the employee (albeit less serious disciplinary action in the particular case) for breaching its confidentiality policies.

Lessons for employers

Employers should ensure that employees who act as support persons for colleagues are made aware that the investigation process is confidential.

Employers should also review their investigation and disciplinary policies to ensure that they expressly state that support persons are required to maintain confidentiality during the investigation process and that disciplinary action may be taken in relation to any non-compliance with confidentiality obligations.