Privacy Failures Costs Employers

Two recent decisions of the Australian Industrial Relations Commission have resulted in significant levels of compensation paid to former employees in circumstances where matters of the employees' privacy were central to the question of fairness during the dismissal process. In both cases, the Commission observed that early and frank discussions with the employee would have been the fairer way to address concerns. That approach could have avoided the finding that the dismissals were harsh, unjust or unreasonable.

Case 1

An employee had eight years service and had developed a work related shoulder injury. The employee was off work for six weeks in mid-2006 for surgery, and undertook a graduated return to work program commencing in August 2006. The employee had been consulting his own doctor concerning the modified duties during that period. In January 2007, the employee went camping over the Australia Day long weekend. Unbeknown to the employee, the employer had