1 Feb 2006, 09:00

A job applicant complained that a prospective employer collected information about him that he considered was inappropriate and unnecessary, and that the employer contacted one of his former colleagues for a reference without his authorisation. The reference was not favourable to the applicant. He subsequently withdrew his application.

I investigated whether the prospective employer had acted in breach of principles 1 and 2 of the Privacy Act.

Principle 1

Principle 1 provides that an agency may not collect personal information unless it is collected for a lawful purpose connected with an activity of the agency and the collection is necessary for that purpose.

The applicant provided me with a copy of questions that the employer had asked, and that he had responded to, about his personal life and health status.

I examined the questions and formed the opinion that the employer collected more information than was necessary for the purpose of recruiting for the relevant position. For example, the employer asked about the applicant's relationship with his wife and children. I concluded that the employer breached principle 1.

Principle 2

Principle 2 provides that agencies collecting information about an individual must do so directly from the individual concerned, unless one of the listed exceptions applies.

The employer did not submit that any of the exceptions applied and acknowledged that he had breached principle 2 by asking for a reference without authorisation.

Adverse consequences

Section 66 defines actions for which redress can be obtained under the Privacy Act. It calls them “interferences with privacy”. Section 66(1) states that there will be an interference with the privacy of an individual where there is an action that breaches one of the information privacy principles and that results, or may result, in an adverse consequence for the complainant.

The applicant considered that the actions of the employer in asking the questions and contacting the reference adversely affected his benefits and interests with regard to his job prospects. He asserted that each of the employer's actions was significant in his decision to withdraw his application for the position.

In the circumstances, however, I accepted the employer's submission that the unauthorised reference had not jeopardised the applicant's chance of being offered the position. There was no evidence to suggest that the personal and health questions that the employer asked affected his job prospects either. The applicant made an independent decision to withdraw from the process. Therefore, it was my view that, in this case, the employer's actions did not have an adverse effect on the applicant's chance of being employed for this position or his other job prospects.

The applicant also claimed that the employer had caused him significant humiliation, significant loss of dignity and significant injury to his feelings by collecting information about his personal life and health status and putting him in a position where his employment status was uncertain.

I was not satisfied here that the collection of information caused the applicant humiliation, loss of dignity or injury to feelings at the level required by the Privacy Act. Nor was I satisfied that there was a sufficient causal link between the applicant's uncertain employment situation following the withdrawal of his application and the employer's actions. The employer was not responsible for anything that happened after the applicant withdrew his interest in the position.

Therefore, I found that there had been no interference with the complainant's privacy.

September 2006

Indexing terms: Collection of personal information - Prospective employer - Unauthorised reference - Information about personal life and health status - Privacy Act 1993, s66(1)(b)(ii) and (iii) - Information privacy principles 1 and 2