Clifford Gouldson Lawyers

Confidentiality By Employees Assisting in Disciplinary Hearing

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A recent Fair Work Commission (FWC) decision involving an employer, employee and support person addressed several issues around the confidentiality of matters during disciplinary processes.

FWC Commissioner David Gregory found that workers who are supporting colleagues during disciplinary investigations must keep all information confidential.

In this case he said an employee supporting the person under investigation had gone well beyond the role of a support person and took a role more like a union site delegate.  The Commissioner also said that these are "private matters between the parties, and the confidentiality of those processes should be respected at all times".

But the Commissioner was also critical of the employer in issuing a final written warning to the support person (a CFMEU delegate) after he forwarded an email containing information about the internal investigation.  He said the company should have provided the support person with better information on confidentiality.

It is clear from this decision that employers would be wise to ensure that any employee acting in a support person role during an internal investigation is made aware of their obligations around confidentiality.

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