A recent Fair Work Commission decision serves as a timely reminder about confidentiality obligations of employee support persons in disciplinary meetings.

A union site delegate landed himself a final written warning when, after attending a disciplinary meeting as the support person for a fellow employee, he took it upon himself to forward correspondence regarding the employee to his union and members of his work group. The employer issued a final written warning on the basis that the employee had breached confidentiality in circulating the correspondence.

The union applied to the Commission to deal with the matter under the dispute resolution procedure in the employer’s enterprise agreement. The union submitted that the final written warning was “harsh and disproportionate” in all the circumstances and should be removed from the employee’s employment record.

The union relied on a number of matters to argue why the final written warning was unjustified. These included that the material contained in the correspondence could not reasonably be considered “confidential”, that the employee was not told that it was confidential and that the employee had not previously been subject to disciplinary action. The union also argued that the employer did not follow its “three tier” disciplinary structure because it ignored the first two stages in giving the final written warning. 

The employer counter-argued that there was nothing in its enterprise agreement that mandated a three step process be followed as part of an employee’s disciplinary procedure. The employer also argued that the fact that the employee did not believe the content of the correspondence was confidential, did not diminish the fact that the letter that he had forwarded on to others was marked “confidential” and in the employer’s view contained confidential information in relation to a disciplinary process.

Taking into account the employee’s unblemished record, the lack of evidence to suggest his actions were directed to intentionally harm the employer and the fact that the correspondence did not contain ‘commercial-in-confidence’ information, the Commission held that the final written warning was harsh and warranted review. The Commission did, however , hold that a written warning was appropriate, acknowledging that the employee had gone well beyond the role of a support person and had instead taken on a role “much more akin” to a union site delegate. As an experienced union delegate, the employee should have “been aware of the processes involved in an individual’s disciplinary procedure, and his responsibilities as part of that process.”

This decision highlights the importance of employers making sure that any person in the role of support person understands that an investigation into employee performance or conduct issues are private matters between the parties, and that the confidentiality of those processes should be respected at all times.

CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (5 September 2014)

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