Employee personal information – when is it your business to know?

Employee personal information – when is it your business to know?

Everybody has a history and a life outside of work… but what if your business is adversely affected not only by your employee but by their partner... or imagine losing a major contract because your employee did not advise you of past criminal convictions… so, when is it OK to ask your employee to disclose personal information?

Your right to ask…

Your employees hold the key to your business success.  During their employment with you they gather intellectual property and knowledge that belongs to you.  As such, they are generally obligated to answer any questions you may have about their own (or their partner’s) personal activities which may affect your business.

A recent Fair Work Commission (FWC) ruling has found you can ask your employee and they are obligated to disclose if their partner has a relationship with one of your competitors.

The case in question - Lakatos v Termicide Pest Control Pty Ltd (2014) upheld the company’s right to dismiss the employee, finding that:

  • it was reasonable for the employer to enquire about this matter; and
  • the employee’s refusal to reply “damaged fatally her employer’s confidence in her to manage the very risks which were the subject of the enquiry.”

In another case where an employee was undertaking activities outside of the workplace, Villani v Holcim (2011) it was found that, although there was no harm being caused to the employer by the employee’s outside business, the employee’s failure to respond to the employer’s queries justified his dismissal.

Your employee rights…

Your employee is quite within his rights to refrain from providing any information that might incriminate them in a pending criminal investigation which has no impact on the employer’s interest.

They are also not required to advise if a previous conviction has been spent – ie: completion of the relevant crime-free period has been undertaken. All convictions can become spent except for:

  • convictions for which a prison sentence of more than 6 months has been imposed;
  • convictions for sexual offences;
  • convictions imposed against corporate bodies (eg: company); and
  • convictions prescribed by the regulations.

It is important to note some kinds of employment (eg: child-related employment) are exempt from spent conviction legislation; which means all convictions must be disclosed.

Not asked… but should tell…

An employee does not have to advise their employer of their own or other employee actions unless they result in employee misconduct – eg: a co-worker is aware another employee is setting up a competing business.  They do not need to advise their employer of this unless it:

  • involves a misuse of the employer’s information or other resources;
  • involves sitting on corporate opportunities so they could be exploited later.
  • is done on work time; or
  • involves sitting on corporate opportunities so they could be exploited later.

What can I do?

You need to ensure your employee contracts provide detailed information on what is and isn’t required to be disclosed upon employee engagement. Cover all bases so you know your employee has no background, employment history or personal connections which may affect your business.

You want a business based on trust, values and integrity.  Make sure the employees you hire fit into this culture and understand your right to protect it.

Akyra Strategy & Development                                                                     www.akyra.com.au

Tags: Employee Rights, Disclosure, Personal Information, Conflict Of Interest, Misconduct

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