1 Feb 2003, 09:00

A salesman was dismissed by his employer. He alleged that remarks he made during a meeting with the company's human resources manager were subsequently disclosed to management despite a promise of confidentiality, and that this led to his dismissal. The salesman had instituted proceedings in the Employment Court and I suspected this made the parties somewhat reluctant to provide me with specific details of the meeting and subsequent events.

The complaint raised issues under information privacy principles 3, 4, 10 and 11. I formed the provisional opinion that the company had breached principles 3 and 4, but that there had been no interference with the man's privacy.

Principle 3

Principle 3 provides that where an agency collects personal information from an individual it must take reasonable steps to ensure the individual concerned is aware of a number of matters, including that the information is being collected, the purpose for the collection and the intended recipients of the information.

The company in this case maintained that the use and disclosure of the information it collected at the meeting fell within the purposes it had when it obtained the information. However, I was satisfied that the salesman had understood that the 'confidentiality' he was promised at the outset of the meeting meant that what was said would not be used or divulged by the human resources manager.

The salesman may have been aware in general terms that information was being collected. However, if the company intended to disclose information, the salesman should have been afforded an opportunity at the outset to state whether he wished the information to be conveyed to a third party. The human resources manager failed to inform the salesman that he would report back following the meeting and so the salesman was not advised of the use to which the information would be put. I came to the provisional opinion that the company had breached principle 3.

I also looked at the means by which the company collected personal information about the salesman.

Principle 4

The company agreed that it invited the salesman to the meeting and that confidentiality was offered. The salesman submitted that, on the understanding that information would remain confidential to the human resources manager, he was happy to answer any questions during the meeting.

I did not accept the company's submission that there was no unfairness at the time of collection. To my mind, the salesman provided his opinion on the basis that he had been assured that what was discussed in the meeting would be confidential. If the human resources manager, on behalf of the company, thought that some information gleaned at the meeting might be passed on or used against the salesman at a later stage and did not tell the salesman, then the company allowed an incorrect and misleading assumption of the purpose of the meeting to arise. It was not honest, in the circumstances, for the company to offer confidentiality at the commencement of the meeting.

Although there was no dispute about the offer of confidentiality at the meeting, there appeared to be diverging views about whether all or some of the information collected during the meeting was to be treated as confidential. I considered that if the company intended that some information from the meeting would remain confidential to the parties and some would not, it should have clarified what information fell into each category.

An important element in the assessment of 'unfairness' is whether a complainant would have responded differently had he or she known that the information would be disclosed. When I took into account that the issues discussed at the meeting concerned a personal grievance, it was reasonable to conclude that the salesman may well have responded differently had he known. I also took into account that it was a company decision to hold the meeting on neutral territory, suggesting an element of formality and control over the circumstances of the meeting.

I considered the means of collecting personal information about the salesman were unfair and that the company had breached principle 4.

Principles 10 and 11

In view of the opinion I formed about breaches of principles 3 and 4, I did not find it necessary to express a final opinion in relation to the complaints under principles 10 and 11.

Harm

The salesman said that as a result of remarks he made at the meeting being disclosed, he suffered adverse consequences including loss of position, hurt and humiliation and mental anguish.

I had difficulty in accepting that he suffered adversely as a result of the disclosure of his remarks. In my opinion the salesman and the company had what appeared to be a longstanding difference of opinion concerning branch management. The company was already aware of his opinions and his own behaviour played a contributing role in the matter. I was not persuaded that there was a sufficient link between the disclosure of the information from the meeting and the alleged adverse consequences. In terms of section 66 of the Privacy Act, I formed the provisional opinion that the actions of the company did not amount to an interference with his privacy.

After I had notified the parties of my provisional opinion, the salesman advised me that he had reached a settlement of his personal grievance with the company. The settlement was subject to him withdrawing his Privacy Act complaint. I decided to take no further action, exercising my discretion under section 71(1)(d) of the Act, on the basis he did not wish the investigation to be continued.

February 2003

Indexing terms: Collecting personal information - Company - Information collected under offer of confidentiality yet later disclosed - Complainant not advised of intended use - Information privacy principle 3

Collecting personal information - Company - Information collected under offer of confidentiality yet later disclosed - Collection 'unfair' if subsequent disclosure intended - Information privacy principle 4