The Human Rights Tribunal recently ordered an employer to disclose applicants’ CVs and references to an unsuccessful job applicant.
Background
In 2012 Mr Waters, then aged 62, applied for two positions with Alpine Energy, where he had previously worked from 1975 to 2008. He was unsuccessful in both applications,
Mr Waters took his case to the Human Rights Review Tribunal ("the Tribunal") alleging that he had been discriminated against because of his age. Since Mr Waters was not an employee at the time, the Human Rights Tribunal was the appropriate forum for this case. Employees can take their cases to the Tribunal, where appropriate, instead of the Employment Relations Authority.
Mr Waters sought to have access to all relevant documents that would assist in establishing whether "persons of younger age, with lesser skills, lesser qualifications, lesser direct experience and lesser time engaged in similar work or in similar positions were considered more favourably and were ultimately successful in being appointed to the two advertised positions".
The Evidence Act 2006 ("EA06")does provide the Tribunal jurisdiction to direct that all confidential information not be disclosed by virtue of section 69. In applying the section and relevant principles the Tribunal held the focus is on public interest not private, and that it is not about the expectation of the person who has made the "confidential" communication, nor is it dependent on the desire of the person to whom the confidential information has been given.
The Tribunal held that "a claim to confidentiality must not be allowed to shield alleged discriminatory acts from investigation”. It also recognised that public interest in having a full and rigorous investigation into “alleged unlawful discrimination must be given significant weight in the weighing or proportionality assessment mandated by s 69(2) of the EA06. In addition, proper recognition must be given to the principle that all relevant information is disclosable and a claim to confidentiality should not be lightly upheld."
The Tribunal declined Alpine Energy’s application under section 69 of the EA06 and made several directions in relation to disclosure of documents. In summary, orders were made for the disclosure of:
- All relevant documents held by the recruitment agency that assisted Alpine Energy throughout the process;
- CV, application, employment history, listed qualifications, experience, and other information relating to the positions;
Alpine energy was also ordered to provide answers to specific questions such as
- The dates on which the successful applicants applied for the positions.
- The dates on which the successful applicants were appointed to their positions.
- Whether the successful applicants were interviewed.
- Whether referee checks were carried out for the successful applicants.
Mr Waters was ordered to give a written undertaking to the Tribunal that he will respect the confidentiality of the documents and not make further disclosure to third parties.
There are similarities between this case and Vice-Chancellor of Massey University v Wrigley & Kelly, where it was held that the employer should have disclosed to unsuccessful applicants information concerning other applicants. Massey concerned a restructuring exercise, so the applicants were employees.
If passed into law, the proposed Employment Relations Amendment Bill would enable employers to refuse to provide access to confidential information on grounds that include:
- that is about an identifiable individual other than the affected employee;
- that is evaluative or opinion material compiled for the purpose of making a decision that will, or is likely to have an adverse effect on the continuation of employment of 1 or more employees:
This would only apply to persons to whom the Employment Relation Act 2000 applies. Thus, similar cases to the Alpine Energy have to be heard at the Tribunal. We recommend that Employers seek advice before disclosing confidential information.