Confidentiality and workplace investigations

Many employers, when conducting workplace investigations, will issue an instruction to employees that the matter under investigation, and the investigation, are subject to confidentiality and may not be discussed by employees amongst themselves.

The legal issue is whether such an instruction is binding upon the employees. This will depend upon the circumstances which will determine whether the instruction is lawful and reasonable.

“I am satisfied the Direction that Ms Goss treat the investigation as confidential was lawful but I am not persuaded it was reasonable having regard to the circumstances of this case. It was apparent from the outset that both parties had engaged lawyers and wanted the benefit of legal advice. I consider it neither reasonable nor realistic to have required Ms Goss to elect to confide in either one support person or her legal advisers acting in the capacity of support person(s), but not both. Assume Ms Goss had, for example, attended the investigation interview with a support person other than one of her lawyers. It would have been unreasonable for the Respondent to then insist that she not disclose what transpired at the interview to her lawyers in the event she felt the need to subsequently obtain their advice with regard to matters that may have arisen or in relation to her ongoing employment. Similarly, 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. Decisions of significance need to be made. To have expected an individual to operate within the type of solitary vacuum the Respondent appears to have insisted upon was unreasonable. The reality is that with a disciplinary process or an investigation carried out by an external adviser, a circle of individuals may be party to the subject matter and matters arising. Such practicalities were laid bare by the Respondent’s lawyers themselves, when it was stated in their letter to Ms Goss’ lawyers dated 4 August 2020:

“You will doubtless appreciate that in order to conduct the investigation process and report upon it we cannot commit to maintaining confidentiality but we will impress upon other participants in the process the same obligation of confidentiality.”

[50] This is the key. An individual brought into a circle of confidentiality must respect that privilege and behave appropriately. Ms Goss was spectacularly failed by the stupidity of the boorish Mr McConnell, but I am not persuaded her disclosure of confidential information to him in all the circumstances of this case, including her symptoms and the prevailing conditions brought about by COVID-19, constituted a valid reason for the termination of her employment.”

Goss v Health Generation Pty Ltd (2021) FWC 1751 delivered 30 March 2021perper Clancy DP