21 Feb 2018, 09:00

A woman was dismissed by her employer after drugs and drug-taking tools were seen in her car while it was parked in the company carpark. Three days after her dismissal, her manager emailed all employees disclosing the circumstances of her dismissal. The woman found out about the email and complained to our office.

The email

The manager’s email informed over 100 staff that the woman was no longer employed by the company. It said she had been found with illicit drugs on the company’s premises. The email also explained that management had been working with the woman on a number of performance-related matters and the latest incident had contributed to the decision to dismiss her.

The woman said she found out about the email seven days later when she visited staff in another branch of the company. She was upset the email had been sent to all the company’s staff, including those in another part of the country. She said she was embarrassed and humiliated by the circumstances of her dismissal. The stress of situation had damaged her confidence and emotional state. She was concerned about finding another job because she did not know what people in the small industry already knew about her. She wanted the company to be held accountable and sought compensation for the hurt and humiliation suffered.

Our investigator contacted the woman’s former employer and requested the company’s side of the story.

Company explanation

A lawyer representing the company responded to our request. He said other employees spotted drugs and drug taking tools in the driver’s seat of the woman’s car. The car was parked in the company carpark. One of the employees took a photo of the items and showed it to other staff. This soon became widely known within the workplace and prompted a management investigation.

The company met with the woman to discuss the situation and the woman agreed to leave her job at the company. The company offered the woman three months wages as part of her severance.

The lawyer said it was company practice to send an email to employees advising of staff changes. Company practice was to be transparent about why an employee was leaving. The content of the email was usually discussed and agreed with the departing employee.

In this case, the manager inadvertently sent the email about the woman’s departure to all employees, rather than to the woman first. The manager had included the information about the woman’s possession of drugs because it was apparent that staff already knew the information, and because the company had strict policies on drugs and alcohol in the workplace.

The company did not consider it had breached principle 11 because it did not disclose personal information that was not already known. It also did not consider there had been any significant harm to the woman because the information in the email was already widely known among staff.

Principle 11

The woman’s complaint raised issues under principle 11 of the Privacy Act, which says personal information should not be disclosed for purposes other than those for which the information was obtained. The company accepted that personal information was disclosed but claimed there was no breach because many staff already knew the information.

Our view

We referred the lawyer representing the company to a 2015 decision by the Human Rights Review Tribunal. In Hammond v Credit Union Baywide, the Tribunal said:

[141] The difficulty with this submission is that the exceptions in principle 11 do not include the circumstances where the information disclosed is already known to the recipient. The focus of principle 11 is on the disclosure by the agency, not on what may or may not already be known to the recipient. It is difficult to see how principle 11 could provide effective protection against the disclosure of personal information if that protection is made dependent on the state of knowledge (or absence of knowledge) on the part of the receiving agency or person, a state of knowledge which may be of uncertain degree and in any event, difficult to establish. It is unlikely that Parliament intended that the operation of principle 11 turn on the subjective state of mind of the recipient of the information.

We said the email constituted a disclosure of the woman’s personal information, and the company had not established that one of the exceptions to principle 11 applied. We also decided the company’s actions had caused the woman significant harm. We referred to another 2015 Human Rights Review Tribunal decision, Taylor v Orcon Limited, which said:  

[61] it is not necessary for the cause (of the harm) to be the sole cause, main cause, direct cause, indirect cause or “but for” cause.

Instead, what a complainant needed to show was that an agency’s act or omission was a contributing or material cause of the harm that was suffered. In this case, while there was gossip in the workplace about the woman, a disclosure made in an email from a senior manager had considerably more weight, and would have been significantly more humiliating and embarrassing.

Our final view was the woman had suffered significant humiliation, loss of dignity or injury to her feelings as a result of the company’s actions. Accordingly, we decided there had been an interference with her privacy.

Conciliation

After we informed both parties of our final view, they indicated they were willing to attend mediation to resolve the matter. We attempted to facilitate a meeting but both parties declined to participate as they had decided to resolve it themselves. We were later informed that a settlement had been reached and we closed the file.

February 2018

Employer  ‒ dismissal ‒ disclosure ‒ harm ‒ interference with privacy ‒ settlement ‒ Privacy Act 1993; principle 11