Since then, it seems just about every lawyer or advocate who is acting for an employee in a redundancy, is relying on the Wrigley decision, to demand the employer provides more information about its proposal.
So what was this case really about?
Wrigley and Kelly had both been subject to a restructuring process and had applied for new positions at Massey. They were unsuccessful and sought access to documentation created during the selection process including, amongst other things, the selection panel’s notes (including scoring sheets) and information relating to other candidates.
There were two fundamental problems for Massey University with this request. The first was that the University had told the selection panel (who in some instances were colleagues of Wrigley and Kelly) that it considered the process confidential so that they would be “open” with their opinions. The second was that a portion of the information requested had not been recorded in writing. The University therefore refused to provide the information on the basis that it simply did not exist, and/or that it was confidential.
The case focussed on an employer’s duty of good faith which includes providing access to information relevant to the continuation of an employee’s employment. The exception to this obligation is where the information is genuinely “confidential” and where there is “good reason” to maintain that confidentiality.
The Court found that the information requested should have been provided to Wrigley and Kelly, and rejected the argument that the Privacy Act limited the duty to disclose. Although the Court appeared to appreciate that some of the information was confidential, it found that it should be disclosed as there was no “good reason” to uphold that confidentiality.
Significantly, the Court also decided that relevant information is not limited to that information which is written down but may in fact include that information “in the minds of people”. That meant the employer also had to document and disclose that information if it was relevant.
The upshot is that employers need to be very careful about promising that selection decisions are confidential, as the duty to disclose this information to the employee may override that obligation. Employers also need to understand that ideas, thoughts and plans around the restructure and selection of staff may need to be disclosed, even if it doesn’t yet exist in writing. If that information isn’t written down, an employee can still request that the information be documented and provided.