What are the consequences of a privacy breach?

An employee successfully brought a constructive dismissal claim against her employer in the Employment Relations Authority for a series of procedural failures which resulted in the employee’s resignation.

Firstly, the employee was subjected to an overly invasive security clearance interview. She was asked for details about her mental health diagnosis, treatment, and medication relating to her mental health history. The employer did not meaningfully address the employee's concerns as to why so much information was required and took five months to provide a decision.

Secondly, the employee raised concerns about her co-worker’s coughing in the office being too loud and distracting. Instead of sufficiently addressing the issue, the employer advised the employee that she may face a potential disciplinary action for bullying her co-worker.

Thirdly, the employer initiated a performance management process with the employee and restructured her role by removing one of her duties without consulting her. The employer failed to clarify the requirements and performance indicators of her role which caused stress to the employee. In response, the employer requested further mental health information from the employee and raised doubts about the employee’s capacity to perform her duties.

Fourthly, when the employment relationship broke down, the employer refused to attend mediation or enter into any settlement with the employee unless they received written confirmation from a medical practitioner that the employee is capable of understanding and agreeing to the terms of the settlement.

The toxic work environment and the lack of support offered to the employee, in addition to the employer refusing to engage in mediation ultimately led the employee to resign. The employee then raised a personal grievance for constructive dismissal.

The Authority held that the employer had a contractual obligation to address the employee’s concerns quickly and it failed to do so when the employee raised legitimate concerns about the clearance, coughing, and performance management process. The employer further aggravated the situation by refusing to engage in mediation on the basis of the employee’s mental health.

The Authority ordered the employer to pay $40,000 in compensation to the employee for making her feel discriminated for her health issues, and for causing significant psychological harm.

This case highlights the importance of employers acting in good faith and adequately addressing their employee’s concerns. It pays for employers to seek legal advice from a legal professional if they are unsure about their procedural obligations.

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