Proper human resources management generally necessitates that employers formally investigate employees’ allegations of misconduct before taking any disciplinary action in response to such allegations. But to correctly utilise and manage the workplace investigation process can be difficult.
A common concern amongst employers is the protection of sensitive and confidential information that materialises during the investigation and that is divulged to participants in the investigation. Further, gossip, rumour and innuendo about the investigation can also be potentially damaging to morale and the employer’s business.
Employers will usually proceed by formally directing these participants to maintain the confidentiality of the investigation and its contents, but to what extent is such a direction reasonable? Can it prevent an employee from disclosing such information to those who provide them with emotional support, such as their spouse?
These issues were addressed by the Fair Work Commission (FWC) in the recent unfair dismissal case of Goss v Health Generation.1
In July 2020, Ms Goss, the Director of Client Relations at Health Generation Pty Ltd (Health Generation), raised allegations of sexual harassment, workplace bullying and unpaid entitlements to Health Generation through her lawyer. In response, Health Generation engaged its lawyers to carry out an investigation into these allegations.
Ms Goss was invited to participate in an interview with the investigator and was advised that she was entitled to bring along a support person of either her lawyer or another individual. Ms Goss elected to bring her lawyer. Ms Goss was also directed not to disclose information about the investigation to anyone other than her lawyer.
During the interview, Ms Goss became aware of comments made by a colleague and witness in the investigation concerning Ms Goss’ allegations. Following the interview, Ms Goss disclosed these comments to her husband. Ms Goss’ husband reacted by sending abusive text messages to that colleague which were ultimately reported to Health Generation’s Director of Operations.
Health Generation decided to terminate Ms Goss’ employment on the basis that she had failed to comply with the direction to maintain the confidentiality of the investigation by disclosing her colleague’s comments to her husband.
It is important to note that Ms Goss provided evidence, supported by her psychologist, to the effect that given her emotional distress and depression, it was necessary for her to confide in her husband in the way that she did.
The primary question for the FWC was whether Health Generation’s direction to maintain the confidentiality of the investigation was lawful and reasonable.
Despite condemning the text messages sent by Ms Goss’ husband, Deputy President Clancy was not satisfied that the direction was reasonable, noting as follows:
“… I consider it is manifestly unreasonable and unrealistic to seek to insist that a person only consult with their lawyers but not a spouse, de facto partner or other individual upon whom they rely for advice and emotional support. Litigious and potentially litigious matters are emotionally draining and require consideration of complex issues…To have expected an individual to operate within the type of solitary vacuum the Respondent [Health Generation] appears to have insisted upon was unreasonable.”
As a result, the Deputy President found that there was no valid reason for Ms Goss’ dismissal and her dismissal was therefore unfair.
This decision certainly does not give employees an unrestricted license to disclose sensitive and confidential information relating to or arising out of workplace investigations, even if that disclosure is necessary to provide the employees with the emotional support they need.
Each case will be determined on its own set of facts. For example, in this case, it is crucial to remember that Ms Goss was suffering from various mental health conditions and the emotional support of her husband was expressly recommended by her treating psychologist.
In saying this, the decision does highlight the need for employers to exercise caution when imposing restraints on whom an employee can confide in and seek advice from in relation to sensitive and possible confidential information relating to their employment. Before imposing such restraints in the context of a workplace investigation, an employer should consider whether the direction will prevent the employee from receiving the emotional support and advice they need. If so, the direction may be considered unreasonable and therefore unenforceable.