Good Faith
25 August 2015The Employment Court’s decision in Vice-Chancellor of Massey University v Wrigley [2010] NZEmpC 37 caused employers to be concerned about the information required to be provided to an employee in respect of decisions likely to have an adverse impact on the continuation of their employment (such as restructuring or dismissal situations).
S.4(1A)(c) of the Principal Act requires an employer to provide the employees affected with:
- Access to information, relevant to the continuation of the employees’ employment, about the decision; and
- An opportunity to comment on the information to their employer before the decision is made.
The Act amends s.4 to provide that an employer will not be required to provide access to confidential information:
- That is about an identifiable individual other than the affected employee, if providing that information would involve unwarranted disclosure of the affairs of that other individual;
- That is subject to a statutory requirement to maintain confidentiality;
- Where it is necessary, for any other good reason, to maintain the confidentiality of the information (for example to avoid unreasonable prejudice to the employer’s commercial position);
Note also that an employer must not refuse to provide access to information merely because it is contained in a document that includes confidential information. That means that such information would have to be provided to the employee in summary form, or with the confidential information redacted.
However, employees affected by restructuring or dismissal situations are entitled to confidential information about themselves, which also includes evaluative material provided about them in circumstances where there is a mutual understanding of secrecy.