Rights of the rejected putting privacy in peril

PETER CULLEN
Last updated 05:00 18/03/2014

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OPINION: Many readers who have been unsuccessful in applying for a job will have wondered why they were passed over. A recent decision of the Human Rights Review Tribunal has caused an outcry when an unsuccessful candidate for a position was given the right to view the CVs of other applicants for the same role.

Kevin Walters was employed by Alpine Energy from 1975 until 2008 when he resigned.

In 2012, 62-year-old Walters decided he wished to return to his former employer and applied for the position of engineering officer.

One month later, he also applied for the position of maintenance engineer. Although Walters was asked to interview for the second role, his applications were unsuccessful.

Walters believed his age was the key reason his applications were unsuccessful.

Obviously he couldn't go to through the traditional route for resolving employment disputes as he was not an employee. He therefore brought a claim in the Human Rights Review Tribunal, alleging that he was discriminated against by reason of his age.

The tribunal made a preliminary ruling requiring Alpine Energy to provide information to Walters, including the CVs of the successful applicants for the roles. The tribunal did, however, put Walters under certain obligations to ensure the confidentiality of the information was not used in anyway outside the hearing.

In 2009, Massey University restructured its Institute of Natural Resources. The result was that all existing positions were disestablished and staff were required to reapply for the fewer roles created.

Senior lecturers Martin Wrigley and Terry Kelly were affected by the restructuring. Both unsuccessfully applied for new roles.

Wrigley and Kelly requested and were provided with a significant amount of information by the university, such as the selection criteria for the new roles, the identities of other candidates, and the identities of the selection panel. They were also given feedback as to why they were unsuccessful.

However, the employees claimed that the university's duty of good faith required it to provide further information, including the assessment sheets of other candidates and information within the minds of the decision-makers regarding their views on each candidate. The university refused so the employees took their claim to the Employment Court, which held that much of the information sought was relevant to the continuation of Wrigley and Kelly's employment and should have been provided.

The Government has since announced that it will alter the law so that employers are not required to provide information about identifiable individuals like Massey University was. But the law change will not have a bearing on the disclosure of information in human rights cases.

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Clearly Walters' case is about his right to prosecute a claim with all evidence at his disposal. The Massey University decision involved information relevant to an employee's continuing employment. Both cases, however, highlight that the courts are trying to address the fact that employers naturally have access to far more information than employees or job applicants.

In such instances the privacy of third parties may be of diminished importance.

However, as shown in the Walters case, the courts can take steps to minimise any potential harm.

Many commentators believe that the tribunal has gone too far and it will be interesting to see if the Government intervenes, as it did following the Massey decision. In the meantime, it is clear that the right to privacy will from time to time bow to the right of the litigant to sue with all relevant information. Knowledge and perhaps power is being more evenly shared. Job-seekers, however, should be aware that their potential employer might not be the only one who sees their application and life story.

Peter Cullen is a partner at Cullen - the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.

- BusinessDay

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