Employment Law – Background

In ‘LC’ and Australia Post the Information Commissioner has upheld an employer’s right to deny a former employee access to workplace investigation witness statements in order to protect the integrity of its complaints process.

Employment Law – Facts

In essence:

  • the former Australia Post employee requested access to documents after a HR practitioner informed him that two managers were facing discipline in their employment as a result of being heard making “derogatory” comments about him
  • although Australia Post initially denied the request, after reviewing its decision they granted him access to four workplace documents in full and two in part
  • however, they refused to provide him access to witness statements, “warning counselling documents” and an email chain
  • in refusing access to these workplace documents, they relied on the exemption under s47E(c) of the Freedom of Information Act (Act), which allows access to documents to be denied if such access would have a “substantial adverse effect on the management or assessment of personnel”
  • the employee applied to the Information Commissioner to gain access to the remaining workplace documents

Employment Law – Decision

The Information Commissioner found:

  • the documents qualified for the exemption under the Act
  • this was because the witness statements and “warning counselling documents” would “directly address the substance of the workplace complaint”
  • thus, releasing them would make witnesses reluctant to come forward in the future for fear of facing “backlash” from others involved
  • consequently, this would have a “substantial adverse effect” on the conduct of HR’s enquiries and the employer’s management function as a whole
  • the email chain was also exempt as it related to witness statements
  • there was a public interest in “protecting the integrity and robustness of Australia Post’s code of conduct complaints processes” and similar processes in other government agencies

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • seek the assistance of an employment lawyer to understand the impacts of this decision
  • raise any employment law questions with an employment lawyer
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • fairly, consistently and lawfully respond to breaches of employment laws including Awards and enterprise agreements
  • understand what employment laws apply at your workplace including Awards and enterprise agreements

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.