03 May 2021
We are sharing a ruling by the Privacy Commissioner.
The complainant resigned from his job and attended a job interview with the company during his notice period. He expressly told the interview panel that he did not want them to contact his current employer. The complainant subsequently learned that a person from the interview panel had a discussion with the complainant’s Manager shortly after the interview.
The complainant submitted a formal complaint to the Office of the Privacy Commissioner (the Office) that there had been a disclosure of information in breach of principle 11 of the Privacy Act 2020. Principle 11 states that an agency that holds personal information shall not disclose the information unless the agency believes, on reasonable grounds, that one of the exceptions applies.
The company advised the Office that the person from the interview panel had a close friendship with the complainant’s Manager and that she had simply met with the complainant. The company did not offer the complainant a position as his experience was not as wide as the company required. The company advised that the decision was made before the discussion with his Manager. The complainant’s Manager recalled that the person from the interview panel had told him that the complainant had interviewed for a position. The Office found that the person from the interview panel had provided the context for meeting the complainant and that they had interviewed the complainant for a position. Therefore, the Office found that there had been a breach of principle 11.
For there to be an interference with privacy, there must be a breach of a principle and harm resulting from the breach. Harm can include significant injury to feelings. The complainant advised that when he discovered that the person from the interview panel had spoken with his Manager about the interview, he felt extremely worried, upset, and anxious. He was concerned that his Manager had given him a poor reference as he had been experiencing a difficult job situation.
The Office decided that the feelings experienced by the complainant met the threshold for harm. The Office was guided by the decision in Winter v Jans, where the Human Rights Review Tribunal found that injury to feelings could include anxiety and stress.
The Office facilitated a settlement of the complaint and closed the file.
David Browne | Senior Solicitor/Legal Team Manager | 03 456 1812 | 021 225 6938 | email@example.com
Persia Templeton | Senior Solicitor | 0508 656 757 | firstname.lastname@example.org
Dr Kathryn McAuley | Solicitor | 03 456 1813 | 021 197 4603 | email@example.com
Libby Fraser | Advocate | 03 455 5165