OPINION: Leaks could reasonably be considered a breach of employee obligations, particularly in terms of confidentiality.
Mr. Chappie Te Kani, Chief Executive of Oranga Tamariki, recently made headlines due to comments he made in a video. In the video, he accused some staff of breaching trust by leaking information to the media regarding the organization’s change process. Mr. Te Kani also criticized the belief that leaking is an employee’s democratic right.
While some view Mr. Te Kani’s comments as intemperate and potentially detrimental to workplace culture. From an employment law perspective, it does raise the question whether the leaks could reasonably be considered a breach of employee obligations, particularly in terms of confidentiality.
Although this writer has not sighted the change proposal, it is assumed that it contained the usual requirement for confidentiality. At the very least, communications sent to staff alongside the proposal likely emphasized this obligation. The staff that have leaked the information may be at risk (presuming they are identifiable as the source of the leak) of facing disciplinary action from their employer in their employment. If Oranga Tamariki failed to clearly express the need for confidentiality and its potential consequences, it could complicate matters.
There may be an argument that the information was publicly disclosable under the OIA and therefore the confidentiality requirement was not the actions of a fair and reasonable employer in all the circumstances and/or that the confidentiality instruction did not represent a lawful and reasonable instruction.
If you are an employee facing a disciplinary allegation, it is important to promptly seek legal advice, and more specifically to seek advice before providing any response to the allegation. It is okay to ask the employer for some more time to obtain advice and representation before being expected to respond to the allegation. It is neither fair nor reasonable for an employer to force an unreasonable time period on you to obtain advice and representation. Saying that, it is important to act quickly in seeking legal advice after receiving disciplinary allegations because the employer simply needs to provide a reasonable period for one to do so and in this regard is not required to wait forever and a day until you do.
It is important for both employers and employees to be aware of their obligations, and the risks involved in taking certain actions (including disclosing certain information to the media). If unsure about what your obligations and the risks are, it is important that you obtain legal advice before you undertake the action.
Any organization considering restructuring should obtain legal advice to navigate the process, getting it wrong result in an unjustified dismissal personal grievance. Employees who are undergoing restructuring or potential redundancy in their workplace and suspect that their employer lacks legitimate business reasons or is not conducting a fair and proper process, should also seek legal advice.
