According to WorkSafe, as many as one in three New Zealand workers report being bullied or harassed at work every year.

By law, it is an employer’s responsibility to take steps to ensure employees are safe and free from bullying, harassment or discrimination at work. If an employee experiences workplace bullying, they are entitled to complain to their employer. Employment New Zealand outlines steps you can take to complain on their website here. Following making a complaint - what rights does the Privacy Act give a complainant? 

In recent months, our Office has investigated multiple complaints related to workplace bullying. In each of these instances, complainants wanted access to information about their bullying investigation that for one reason or another, the workplace decided to withhold. 

Your rights during the workplace bullying investigation

During a bullying investigation, an employer or external third-party may call in the employee, the reported bully or bullies and other employees, for interviews to ascertain the facts and decide whether disciplinary actions should be taken.

The employer may produce a report summarising the interviews and making note of any disciplinary actions taken. Investigation terms of reference will generally offer all parties to the complaint the chance to see a copy of the report, which may include statements from parties describing the alleged events. 

Unjustified reasons to withhold information

Under Principle 6 of the Privacy Act, individuals have the right to access information that agencies hold about them. When a complainant seeks information relating to their bullying investigation, the employer may wish to withhold information. Some reasons for withholding are legitimate, others are not.

In some cases we have seen, agencies withheld an investigation report from a complainant, even though it contained the complainant’s personal information and the terms of reference said they could receive a copy.

Under section 29(1)(a) of the Privacy Act employers must balance the privacy interests of the person seeking the information against the interests of other people involved. They must determine whether disclosure of that information would be an unwarranted disclosure of another person’s affairs given the circumstances.

Sometimes employers are concerned that employees may publish the material, either on social media or through a media organisation. This is not a legitimate reason for withholding private information under the Privacy Act. If the employer is worried about the disclosure of other people’s information to the media (thereby breaching those peoples’ privacy), they are entitled, in some cases, to offer a limited viewing of the information, or release of the report with conditions.

From a natural justice perspective, people who make complaints of workplace bullying should be entitled to see the results of the workplace investigation often – including statements their managers, co-workers or alleged bullies have made about them.

Limited instances where it is justifiable to withhold

In certain circumstances, employers may be justified in refusing requests for information relating to internal bullying investigations.

Section29(1)(b) of the Privacy Act says agencies may refuse to disclose any information requested “if the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise”. In other words, if the employer tells an employee that they won’t share their statement with other parties, that can be honoured.

Evaluative material is assessment or opinion information that is compiled solely for a particular employment purpose such as to determine someone’s suitability for a job. In one case we investigated, we found that the investigation report for bullying could not be withheld under section 29(1)(b) as the report did not meet the “compiled solely” test.  The report was collected to investigate a bullying complaint, and not solely to determine whether the alleged bully should continue to be employed.

In 2015, the Human Rights Review Tribunal heard the case of Watson v Capital & Coast District Health Board [2015]. The complaint was that the CCDHB had interfered with Ms Watson’s privacy by refusing to disclose personal information contained in her alleged bully’s response to her bullying complaint and the interview notes. CCDHB argued that it was required to withhold that information on the basis that, to not do so would result in the unwarranted disclosure of the affairs of another individual. The HRRT did not accept CCDHB’s argument and found that CCDHB had interfered with Ms Watson’s privacy. The Tribunal ordered CCDHB to pay a total of $15,000 for hurt and humiliation as the result of non-disclosure of personal information.

Key takeaways

1. If you have made a complaint about bullying you are entitled to know about the outcome as it pertains to you, but not necessarily all the information about the other people involved.
2. When you are investigating a complaint about bullying you should set clear terms of reference about who will get access to the final report and when.
3. Just because information is about more than one person does not mean an employer can automatically withhold it.

Where to go for help?

If you or someone you know is experiencing workplace bullying:

• Contact your workplace health and safety representative, contact person or union delegate  
• WorkSafe have comprehensive resources for dealing with workplace bullying here.

If a person wishes to complain about their employer bullying them, they can contact WorkSafe or, in cases of discrimination, lodge a complaint with the Human Rights Commission.