25 Sep 2019, 09:00

A woman who was unhappy in her job made an enquiry to an employment agency about changing jobs. But the agency breached her privacy by disclosing her enquiry to her current employer.

The woman was considering a change of career and contacted the employment agency to get advice on what her salary might be given her qualifications. The agency employee she spoke to told her that she would have to get back to her with more specific information.

But the woman wasn’t available to answer the phone when the employment agency employee called back. The employee was instead directed by voicemail to the woman’s direct manager. The agency’s employee spoke to the manager and, in the conversation, revealed the woman’s intention to change careers.

It transpired the agency’s employee had mistakenly believed the woman’s manager was an appropriate person to contact about the information requested because her voice mail included an instruction to contact the manager directly, when the woman was unavailable. This error was compounded when, after their phone conversation had abruptly disconnected in mid-conversation, the agency’s employee decided in good faith to send the requested information by email to the manager.

The manager now knew the woman was seriously considering leaving her current employer and had written proof of that.

The woman said she was traumatised by the privacy breach. It complicated her employment situation because she had recently made a formal workplace complaint against her direct manager for bullying her. Her manager had used the information against her in a letter of complaint to a more senior manager, including the accusation the woman wasted time on non-work issues.

Complaint to the agency

When the woman complained to the employment agency, the chief executive acknowledged the breach and apologised by letter. The chief executive said she had investigated the matter and discussed it with the employee involved. The employee would have no further contact with the woman and none of her information would be kept in the agency’s system, apart from what was necessary to deal with the complaint.

In her complaint to the agency and to our office, the woman said she expected significant financial compensation for the violation of her privacy. The disclosure had caused her severe emotional distress and compromised her employment with her employer.

Our investigation

In our investigation, we found the amount of information disclosed about the employment enquiry was more than was necessary in order to obtain or confirm the woman’s contact details. The employee who disclosed the information also appeared to be have been aware she was speaking to the complainant’s manager.

We appreciated the employee was genuinely trying to assist the complainant, but she unarguably disclosed personal information to her employer. The employment agency admitted this and apologised for the disclosure. In our view the agency had breached principle 11 of the Privacy Act and interfered with the complainant’s privacy.

Principle 11 says an agency must not disclose personal information unless it can rely on an exception to that principle to do so. We were not satisfied that any of the exceptions to principle 11 applied or justified the disclosure.

Finding harm

In order to find an interference with privacy, our office must be satisfied the disclosure has caused harm. This is set out in section 66 of the Act as action that:

• has caused, or may cause, loss, detriment, damage, or injury to that individual; or
• has adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual; or
• has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.

The Privacy Act recognises anticipated harm as well as actual harm. Our view was that the email from the employee to the complainant’s manager revealed the complainant was planning on leaving her job. We accepted that an employer may either consciously or unconsciously take this into account when considering whether to promote or otherwise provide opportunities to an existing employee, which could prejudice that employee’s interests.

We decided that under section 66(1)(b)(ii) of the Act that the disclosure might have adversely affected the complainant’s benefits, privileges or interests.

Dispute resolution

Both parties accepted our view there had been an interference with the complainant’s privacy and she had suffered harm as a result.

We then worked to facilitate a resolution to the dispute. After negotiation, both parties settled on a sum of compensation to be paid by the agency to the complainant. We closed the file on that basis.