To talk or not to talk?

To talk or not to talk?

27/02/2019
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Please note, the following does not constitute legal advice.

Confidentiality in the workplace is a critical compliance matter, which can often be complex and circumstantial.  The slogan for employees is “ask before you talk’, which is short for seek clarification from management/your employer before divulging private commercial information.

Confidentiality often comes up as a matter of interest for parties involved in a workplace investigation, especially the complainant or respondent.  Often people in this position require support from those close to them.

Generally, it is accepted that an employee can talk to their partner or spouse about the fact they may be the subject of an investigation or that they have made a complaint. While investigation would not normally be covered by the formal rules of evidence, legislation in Australia normally contains a provision, often referred to as ‘Spousal Privilege’.

An example is the Evidence Act 2008 (VIC) Section 18 2(b) which provides that a ‘spouse’ can object to giving evidence of a communication between them, and their spouse (the accused), in criminal proceedings. Courts of law will consider whether compelling the spouse to testify might damage the relationship between the accused and their spouse.

Moving beyond the spouse to the ‘immediate’ family, extended family and/or friends, increases the risk that the person is breaching confidentiality and furthers the likelihood of potential defamation action. The more remote the relationship, the greater the potential liability. 

Obviously, the express terms of any confidentiality agreement would need careful consideration. 

Additionally, a person seeking support (legal or union etc) and/or counselling regarding the investigation will not breach confidentiality when obtaining that advice or support.

If in any doubt the employee should seek clarification from their employer or otherwise obtain their own legal advice before sharing any confidential information.  

Express your interest in iHR eLearning’s new program ‘Confidentiality’, which releases in March, 2019.