Employers rights to know vs employees right to privacy
An employment issue that arises from time to time is – how much must an employee tell you about things that happen outside of work? A recent case (ASG v Harlene Hayne, Vice-Chancellor of the University of Otago) in the Supreme Court may give employers some confidence that employees have a duty to disclose things that may be relevant to their work even when they happen outside the workplace.
The court case involved a security guard working for the University of Otago. The guard was charged with wilful damage and assault (in relation to offences that occurred outside of work). He pled guilty to the charges but because the Judge thought he was very likely to lose his job, the Court discharged him without conviction and made an order suppressing all details.
The guard did not tell his employer about the charges or the court appearance. However, the University found out, and a University official was in the public gallery on the day the case was heard. The official passed on the details of the case and the University carried out an investigation. The guard was suspended from his employment during the investigation and subsequently received a final written warning.
He brought a personal grievance against his employer. One of the issues was whether the University could rely on the information from Court given the suppression orders. The Supreme Court concluded that it could and that there was no breach of the orders. The guard should have disclosed the assault and willful damage charges to the University as it had a legitimate and genuine interest in his conduct outside the workplace as his employment involved protecting students and University property. The obligation of good faith in an employment relationship required him to divulge criminal proceedings that may be relevant to his job.
It follows that it may be a breach of good faith in an employment relationship if employees are involved in matters outside of work that an employer has a legitimate interest in knowing about and they don’t say anything. This may extend to social media and comments made on the internet.
In this, as with any of a number of significant employment issues that can pop up, a little bit of knowledge can go a long way in helping employers avoid what can be costly and lengthy disputes with an unhappy employee. If you are a small business with a strong sense of unity, a personal grievance brought by an employee with whom you previously had a close relationship with can be emotionally and personally draining.
At any time, but in particular during times of growth and continual change such that many employers are currently experiencing, and where there is pressure coming from all directions, it’s important to ensure the correct employment processes are followed.
If you’re an employer currently dealing with a dispute or if you’d like to stay on the front foot and reduce the likelihood of employment issues with your staff, solicitors at Franklin Law will be able to help you. We are proud to be able to offer experienced solicitors who provide easy to understand and sensible guidance to employers in the community.
The information contained in this paper is necessarily of a generalised nature and specific advice should be sought in relation to any particular situation. Further information and assistance in relation to this article can be gained by contacting senior personal property lawyer Eddie Taia.