In a recent decision of Goss-v-Health Generation Pty Ltd  FWC 1751 the Fair Work Commission (Commission) found on 30 March 2021, that it was lawful but not reasonable for an employer to issue a directive to an employee to only discuss a confidential work investigation with their lawyer and the dismissal of Goss for breaching such a directive was not for a valid reason for termination of employment.
Goss had been employed by the Health Generation for some 15 months. She sent a letter to her employer through her lawyers outlining allegations of sexual harassment, workplace bullying and unpaid entitlements and requesting an independent investigation into her allegations.
Health Generation appointed a lawyer to undertake an investigation and stated that Goss must treat the investigation as confidential and should not disclose the content of discussions or information disclosed to her, with anyone other than her support person or legal advisors (who must also commit to the same obligation of confidentiality).
Goss’s lawyer attended as the support person during the investigation interview and was directed the content of the interview must remain confidential between the employee and her legal advisors. This was confirmed by the investigator during the interview.
Information provided by another staff member to the investigator was disclosed to Goss during the interview. A short time after the interview was concluded that the staff member received a series of abusive text messages from Goss’s partner about the information that had been provided to the investigator.
Health Generation’s employer then sent a letter to Goss’s lawyer suggesting she disclosed information provided to her during the interview and if it was established she had made such disclosure, it would constitute a breach of a lawful and reasonable direction provided to her.
Lawyers for Goss questioned whether any direction given to their client which would prohibit her from discussing the investigation with her partner would be lawful or reasonable, particularly in circumstances where she had made the complaint. However, Goss was terminated on the basis that she had committed serious misconduct by sharing information from the interview with her partner.
Goss brought an unfair dismissal application challenging the lawfulness and reasonableness of her dismissal.
The Commission found support persons have an important and useful role to play when involved in investigatory and disciplinary matters in the workplace. Whilst the support person is not an advocate and should not highjack a lawful and reasonable process or answer for an employee the Commission did not subscribe to the absolute view that they should only be seen and not heard. This was because there may be circumstances in which an employee might be experiencing difficulty comprehending aspects of the process, or an employer might be misconstruing the explanation and the support person present can help improve the quality of the dialogue.
The Commission found the employer’s directive to keep the matter confidential was lawful but was not satisfied it was reasonable having regard to the circumstances of this case noting it was considered neither reasonable nor realistic to have required Goss to elect to confide in either one support person or legal advisors acting in the capacity of support persons but not both. It was considered manifestly unreasonable and unrealistic to seek to insist that a person only consults with their lawyers but not a spouse, de facto partner or another individual, upon whom they rely for advice and emotional support. Whilst Goss was spectacularly failed by the stupidity of the support person, the Commission has not persuaded her disclosure of confidential information to him nor the circumstances of this case constituted a valid reason for termination of her employment.
It is important when conducting investigations, disciplinary action or other confidential employee matters, that care is exercised when issuing directions regarding confidentiality and managing any alleged breaches of confidentiality. If you have any questions arising from the above or require assistance with a workplace investigation or managing a disciplinary matter, please do not hesitate to contact Matt Bell, Suzanne Wishart or Chris Lowe on 1300 068 736.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.