Victoria’s workplace bullying laws raise questions about the privacy rights of complainants within a complaints process requring alleged victims to disclose sensitive and sometimes traumatic information relating to workplace bullying.
An accusation of bullying can be potentially defamatory, especially under circumstances where confidentiality is not respected and/or a person’s reputation is unfairly damaged. Within any organisational complaints process, discussions, information and documentation outlining a bullying complaint should remain factual in nature and be securely handled to protect all persons involved.
Last week saw Clayton UTZ settle a sexual harassment claim, amidst claims by the victim Bridgette Styles that her initial complaints were dealt with internally by the Workplace Relations Group in a manner which constituted victimisation.
When Styles informed Luis Izzo she intended to bring his bullying behaviour to the attention of the Workplace Relations Group, Izzo is alleged to have prepared a file note which she claims defamed her to pass onto the Head of the Workplace Relations Group, which she claims lead to further victimisation, culminating in the termination of her employment.
Every organisation should have a mechanism and policies in place within their Human Resource Department to deal with and resolve complaints of bullying, harassment and discrimination within the workplace.
The Clayton UTZ settlement raises questions about what happens in practice when the alleged victim of bullying lodges a complaint against a co-worker or workers? How does an organisation ensure the victim’s confidentiality is observed, any information contained in documentation relating to their complaint secured from unauthorised access and disclosure, whilst also balancing the rights of employees accused of bullying?
This question arose for consideration in the course of a privacy complaint raised by a victim of bullying to Privacy Victoria in Complainant AU v Public Sector Agency  VPrivCmr 03.
The victim made a complaint alleging her privacy had been violated by a public service organisation by the manner in which they used and disclosed information provided by her regarding her bullying complaints.
The complainant had furnished an exhaustive document to her Employer, setting out in chronological form the various incidents of bullying she was subjected to, including the identities of the co-workers involved, the emotions she experienced and what she perceived was a desirable outcome to resolve the situation.
The organisation’s internal policy at the time mandated that a copy of the alleged victim’s complaint be onforwarded to all persons against whom she had made complaints, an aspect of the procedure the victim held anxieties about.
Believing she had no alternative, she initially agreed to this course of action, but later sought to withdraw her consent after the complaint had been distributed to the persons against whom she had brought the complaints.
The Complainant brought a complaint to the Victorian Privacy Commissioner alleging that the disclosure of her complaint breached several Information Privacy Principles relating to the collection, use and disclosure of her personal information.
Her grievance was that each staff member mentioned in the complaint was provided with full and unfettered disclosure a copy of her complaint in it’s entirety, including her emotional reaction to each incident of bullying she particularised. She contended it was only necessary to provide access to the information relevant to each individual, as opposed to the entire document detailing all of the alleged incidents. The complainant also complained that the organisation’s policy itself was defective itself in that it was out of date.
The Respondent’s position was that it hadn’t violated the Complainant’s privacy as it was a necessary part of the investigative process that her complaint be provided in an unedited form to all alleged perpetrators of bullying.
The Privacy Commissioner determined that when an organisation receives a complaint about staff member/s, in order for an investigation to be carried out the basis and details of the complaint must be disclosed to the individuals concerned.
The rationale is that individuals are accorded natural justice in the process of responding to allegations, and that allegations are properly investigated. However the Commissioner held that such a disclosure should be made in a manner which protects a complainant’s privacy to the greatest extent possible.
Using this rationale, it should only be necessary to disclose information which individuals require in order to address and respond to such a complaint and for investigative purposes.
The Commissioner determined that it was excessive to disclose the entirety of the complaint which should have been edited to reasonably protect the privacy of the complainant, particularly since the complaint in it’s raw form revealed the complainant’s state of mind, emotional responses and desired outcomes.
The organisation was required to collate the information provided by the complainant and distil it so that it only contained information which was necessary to disclose to the alleged bullies for the purpose of investigating the complaint.
Where, as was the case here, more than one staff member was involved in a documented instance of bullying, it may be appropriate in making a determination regarding what information to disclose, to furnish the details of a given incident to all respondents, however it was not necessary or appropriate to merely hand over the complaint wholesale to all respondents.
With respect to whether the complainant’s consent was violated in the collection of the information demanded of her in the course of the complaints process, the Privacy Commissioner held that the complainant’s consent couldn’t be relied upon as ‘real consent’, as under the organisation’s policy she was given no choice by management.
The notice principles contained within the IPPs were also held to have been breached, as the Privacy Commissioner decided, based on the evidence presented, that there was confusion over which version of the organisation’s policy was provided to the complainant. This meant that the complainant couldn’t have been sure as to precisely what information the complainant had notified her had to be disclosed.
The lesson is clear for organisations. Grievance policies and complaints procedures should be framed in a manner which enables bullying accusations to be fully investigated without unduly compromising a complainant’s privacy and confidentiality. The underlying rationale is that a workplace bullying complaints procedure should acknowledge the right of all persons involved to be treated with respect and be accorded due process and natural justice.
Whilst compliance with the duty to investigate workplace bullying complaints doesn’t confer any absolute guarantees of confidentiality or privacy upon victims, organisations must engage in a reasonable determination of what information is necessary to onforward to alleged bullies on a ‘need to know’ basis only, and only to the extent to which they are granted the right to respond to a case brought against them.