A recent decision of the Employment Court provides food for thought for employers who are considering restructuring their business.
The case of Vice-Chancellor of Massey University v Wrigley involved two lecturers at Massey University who were made redundant. Their redundancies followed a “contestable reconfirmation process” where a number of lecturing staff were asked to re-apply for a reduced number of lecturing positions.
The lecturers challenged their redundancies on the basis that the university had failed to disclose information that was relevant to the redundancy selection process. They argued that this failure constituted a breach of the good faith provisions of the Employment Relations Act which require employers to disclose all things “relevant” to an employee’s ongoing (or not) employment.
The university had provided the employees with quite detailed information about the selection process, including job descriptions; selection criteria; details of what would be asked at the interviews; identities of other candidates and panel members; each employee’s assessment sheets from the interview; and feedback as to why they had not been selected for appointment. The employees were also provided with the selection panel’s overall recommendations to the decision maker, albeit with information about other candidates removed.
The employees wanted more. In particular, they wanted each interviewer’s handwritten notes – not only in relation to their own interviews but also the interviews of candidates who had been successful. They wanted the panel’s full, unedited recommendations to the decision maker. Perhaps the most surprising thing is they wanted access to “information in the minds of the selection panel members…which had not been committed to writing”.
The university objected to providing this information on the basis that it contained information on other employees such that to release it would cause the university to breach the Privacy Act. The university argued that “relevant” should be read to require it to provide “sufficient” information to enable employees to state a view about the restructure.
The Employment Court disagreed. It held that there was no reason to read down the ordinary meaning of “relevant”. While what is “relevant” in each case will depend on individual circumstances, in this case it did include perceptions and opinions involved in the decision making process – including information in the minds of the selection panel. Policing may be a challenge!
The Employment Court noted that information that is genuinely confidential can be withheld if there is a good reason for maintaining confidentiality. That exception was, however, of little assistance to the university. The Employment Court held that in an environment where professional academics are experienced at expressing opinions and well-used to differences of opinion, the potential adverse effects of releasing the information sought were not great.
The implications for employers? Employers may find themselves faced with requests to disclose absolutely everything in restructuring situations. It looks like information may only be withheld if it is of an intensely personal nature or is truly confidential for some other reason. When in doubt, seek legal advice.
Article first published in the Otago Daily Times on 20 June 2011
