The Human Rights Review Tribunal recently ordered an employer to disclose to
an unsuccessful job applicant alleging age discrimination, the names, CVs,
qualifications and work experience of the successful job applicants. The
Tribunal also ordered disclosure of the references obtained by the employer’s
recruitment agency in relation to all of the job applicants (Waters v Alpine
Energy Ltd, 20 February 2014).
Decided in the human rights jurisdiction as Mr Waters was a job applicant
(and not within the definitions of an “employee” or a “person intending to work”
under the Employment Relations Act 2000 (ERA)), there are
parallels to the well-known Employment Court decision in Vice-Chancellor of
Massey University v Wrigley & Kelly. In Massey, the Court held
that an employer conducting a restructuring should have provided the
unsuccessful candidates with information concerning other candidates, despite
confidentiality and Privacy Act 1993 constraints. In both cases, and despite the
factual differences, unsuccessful candidates for a position have been able to
obtain confidential and personal information about other applicants.
The Employment Relations Amendment Bill introduced in Parliament in April
2013 is proposing to amend the ERA to address the tension the Massey
decision created between the approach now taken by the Employment Court in
relation to disclosure of information under section 4 of the ERA, and the
protection of personal information under the Privacy Act.
It will be concerning to employers that while the issues of disclosing
personal information to unsuccessful candidates in Alpine Energy and
Massey are similar, the different jurisdictions in which they are
determined means that the approach of the Tribunal would not be affected by the
proposed amendment. This could potentially create an inconsistency in the law,
whereby unsuccessful job applicants are entitled to personal information and
evaluative material about other applicants, while, those employees that are
unsuccessful in securing an alternative position in a restructuring as part of a
selection process, are not.
Waters v Alpine Energy Ltd
Mr Waters, aged 62, applied for two positions with Alpine Energy, an employer
he had previously worked for over a number of years. Both of Mr Waters’
applications were unsuccessful, and he alleged that he was discriminated against
by reason of his age (prohibited by the Human Rights Act 1993). Alpine Energy
rejected his complaint, asserting that the appointments were made based on the
person it considered best suited to the role by reason of qualification,
experience and organisational fit.
Mr Waters’ complaint was progressing towards a hearing, with the initial
discovery and disclosure of documents being given. Issues arose when Alpine
Energy refused to disclose certain documents on the basis that they were either
confidential information under the Evidence Act 2006, not within the company’s
possession or control, or because the documents had already been destroyed.
These documents all related to information about other candidates, including the
successful candidates, which Mr Waters argued he needed in order to pursue his
discrimination complaint. The documents contained the others applicants’ names,
addresses, contact details, and information about their employment history,
experience and qualifications.
The Tribunal has the power to regulate its own procedure however it sees fit,
and has a broad discretion to receive evidence whether or not it would be
admissible in a court of law. However, subject to this discretion, the Evidence
Act applies to the Tribunal (in contrast, the Employment Court does not strictly
follow the Evidence Act).
Under section 69 of the Evidence Act, the Tribunal can direct that a
confidential communication or information not be disclosed. The Tribunal refused
in this case to make an order that the confidential information not be
disclosed. The Tribunal found that there was a public interest in preventing
discriminatory conduct being hidden behind a cloak of confidentiality, and
commented that the section was concerned with public interests not private
interests. Implicitly, it viewed the maintenance of privacy and protection of
personal information as a private rather than public interest.
In summary, the Tribunal ordered the disclosure of:
all job applications, whether of successful candidates or not;
the CVs, employment history, listed qualifications, experience and any other
information relating to the successful applicants (although the case indicates
that if certain documents had not been destroyed, Alpine Energy would have also
been required to disclose the same information for unsuccessful applicants);
all documents held by the recruitment agency which came within Alpine
Energy’s disclosure obligation, which includes reference checks made by the
The Tribunal accepted (as Mr Waters did) that the addresses and contact
details of the applicants could be redacted, but – strangely – found no reason
for the names of applicants to be redacted. The Tribunal reasoned that “without
the names of the applicants the information may be difficult to use or manage.”
In practice, it seems that the use of aliases such as “Applicant A” could have
mitigated potential privacy concerns of those individuals, while still enabling
the information to be useable.
Massey, the Privacy Act and the Employment Relations
In Massey, a significant decision for employers, the Employment
Court held that an employer conducting a restructuring should have provided the
unsuccessful candidates for selection to a new position with information
concerning other candidates due to the good faith obligations under section
4(1A)(c) of the ERA, despite confidentiality and Privacy Act constraints. In the
Court’s view, there was no good reason to maintain the confidentiality of the
In Alpine Energy and Massey, the Privacy Act has taken a
backseat to other legislation, such as the Evidence Act and ERA. Indeed, the
Privacy Act itself states that nothing in principle 11 (which contains the
requirement for an agency holding personal information not to disclose that
personal information) derogates from any legislation that authorises or requires
personal information to be made available.
Parliament is attempting to restore some balance to the protection of
personal information through the Employment Relations Amendment Bill, which
proposes to amend section 4 of the ERA to provide that an employer is not
required to give access to confidential information if that information is:
about an identifiable individual other than the affected employee;
evaluative or opinion material complied for the purpose of making a decision
that may affect an employee's continued employment;
about the identity of the person who supplied the evaluative or opinion
subject to a statutory requirement to maintain confidentiality.
However, this amendment will only apply to individuals covered by the ERA,
such as employees or those who have been offered employment. It will not affect
unsuccessful job seekers who allege discrimination and request information about
other applicants. This means that there may be a disconnect between the
situation of unsuccessful job applicants (who would be entitled to personal
information and evaluative material about other applicants), and employees who
are unsuccessful in securing an alternative position in a restructuring
selection process (who would not be entitled to personal information
and evaluative material about the other candidates in that process).
Tips for employers
The disclosure of personal information about job applicants to other
unsuccessful applicants is a difficult field to navigate. With the interests of
the unsuccessful applicant in obtaining information, and the interests of other
applicants (whether successful or not) in maintaining their privacy at odds, our
recommendations for employers are:
If the individual seeking information is already an employee, follow the
principles of the Massey decision until the Employment Relations
Amendment Bill is passed into legislation.
If the individual seeking information is an unsuccessful job seeker, the
Human Rights Act is the applicable legislation. The Tribunal may require
disclosure as in Alpine Energy. It remains to be seen whether this
decision will be appealed to the High Court.
It may be prudent to seek legal advice as to whether or not requested
information should be disclosed before proceeding to decline or grant a request,
as there may be other exceptions to disclosure that apply (such as
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.