In a decision that has sparked privacy concerns for employers across the country, the Employment Court has ordered Massey University to provide its employees with all of the information from a selection process for redundancy, including information in the minds of the selection panel.
The Full Court's recent decision in Vice-Chancellor of Massey University v Wrigley applied an extremely wide construction to an employer's obligations under section 4(1A)(c) of the Employment Relations Act (Act) (to give employees access to certain information during a restructuring). Employers would be wise to bear this decision in mind when documenting any future employment processes.
Two senior lecturers at Massey University, Mr Wrigley and Dr Kelly were made redundant. They claimed that, in the course of the redundancy selection process, Massey University failed to disclose information that it was required to provide them under the duty of good faith imposed by s4(1A) of the Act.
By the time the University made the final decision to make Wrigley and Kelly redundant, the employees had been given a wide range of information including job descriptions for the new positions, selection criteria, identities of the other candidates for those positions, information from questions and answers at the interviews, feedback from the selection panel about why it had not recommended them for appointment, their individual assessment sheets from the selection panel and the panel's recommendations to the ultimate decision maker. However, information about the other candidates was omitted.
Despite this, Mr Wrigley and Dr Kelly claimed that they were entitled to further information under the ERA including the interview sheets completed by each panel member for each of the candidates who applied for the same position as they did, individual assessment sheets for the successful candidate(s), the candidate comparison sheets, the information about the successful candidate(s) contained in the panel recommendation to the decision maker, the handwritten notes of the selection panel made in the course of the interviews, and information in the minds of the selection panel members and the decision maker which had not been committed to writing (including their views on each candidate and the contents of their discussions etc).
Massey University argued that it was not obliged to give Mr Wrigley and Dr Kelly access to any of the additional information and that it had fully discharged its statutory duty. Furthermore, in response to concerns raised by the selection panel members about their involvement, Massey University had assured the panel members that the evaluative process was confidential and, as such, Massey University did not intend to release comments made by panel members during the selection process.
Court's decision - What Is "relevant" information?
The Court rejected the University's submission that employees should only have an entitlement to sufficient information to enable the employees to state a view, together with a reasonable opportunity to do so. Massey University had argued that a wider interpretation would be "unduly burdensome" and could disadvantage employees if essential information was obscured by large volumes of peripherally relevant information.
The Court held that there is no reason to restrict the normal meaning of the word "relevant" in s4(1A)(c). What is within the scope of s4(1A)(c) in any given case will depend on the particular circumstances, but it will include perceptions and opinions of those involved in the process leading to a decision, and will include not only information which is written down or otherwise recorded but also (somewhat surprisingly) information in the minds of people (such as the selection panel). The Court noted that while this may make the information more difficult to retrieve and less certain in its accuracy, it does not affect whether the information is relevant for the purposes of the Act.
Applying this extremely wide construction of s4(1A)(c) to the documents in dispute in the case, the Court found that all of the additional documentation sought was relevant and should have been provided to the employees for an opportunity to comment.
The general obligation imposed by s4(1A)(c) is, however, subject to the exception in s4(1B) that an employer is not required to provide access to confidential information if there is good reason to maintain the confidentiality of the information.
The Court stated that information should be regarded as "confidential information" if it is provided in circumstances where there is a mutual understanding of secrecy. In light of assurances given to the selection panel members that they were assisting in an evaluative process which Massey University considered to be confidential, the Court considered that information such as the individual assessment sheets, candidate comparison sheets and recommendations to the decision maker were all "confidential information".
However, the Court concluded that the protection of the privacy of those people involved in the selection process was not a sufficiently good reason to maintain the confidentiality of the information. Providing the confidential information to Mr Wrigley and Dr Kelly would have compromised the privacy of the selection panel members but the Court held that the potential adverse effects on privacy in providing access were "not great". The Court took note of the fact that the persons involved were all professional academics, experienced at expressing opinions and (in the Court's view) well-used to differences of opinion with their colleagues.
The Court therefore held that Massey University should have provided Mr Wrigley and Dr Kelly with access to all of the disputed documents and information because there was nothing in the information of an "intensely personal nature" that would have caused serious embarrassment.
Interestingly, the Court commented that in appropriate cases, "access" to information may be given in ways other than by providing full copies of documents, for example by giving the individual a reasonable opportunity to inspect a document (and other alternatives in section 42 of the Privacy Act 1993) or to redact personal/confidential information. However the information should be provided in the way requested by the employee unless to do so would be impractical or unduly burdensome to the employer.
Implications for employers
It appears that employers may now face requests to disclose "everything but the kitchen sink" in restructurings. Furthermore, these information requests could equally apply to other employment areas, including serious disciplinary cases. We recommend that employers be mindful of this when documenting employment processes and warn all participants in selection or disciplinary processes that their notes and assessments may need to be disclosed to the affected employees.
The Court in the Massey University case held that there was nothing in the information sought of an intensely personal nature that would have caused serious embarrassment. However, in our view, if such circumstances exist, then there could be grounds to decline disclosure. If in doubt, seek legal advice about whether requested information should be disclosed.