We recently terminated an employee due to underperformance. This person has now contacted the business requesting copies of past performance review documents and other records relating to our performance management process. Are we obligated to provide this information?
An employer is only required to grant access to a request by an employee for their personal information held by or on behalf of the employer if the information is accessible under legislation including the Privacy Act 1988 (Privacy Act) or the Fair Work Act 2009 (the FW Act). These two pieces of legislation are discussed below.
Under the Privacy Act’s Australian Privacy Principles (APPs), an act done, or practise engaged in, by an organisation that interferes with the privacy of an individual is exempt if it directly relates to:
Most of the personal information held by an employer about an employee will fall within the employee records exemption under the Privacy Act, which means that aside from the legal compulsion exception that applies to all information, employers do not have to comply with any of the Privacy Act requirements or APPs including allowing access to individual employees (past or present) to their personal information.
However the Fair Worklegislation does allow employees to inspect and take copies of certain information contained in their records.
TheFW Act requires an employer to make and keep employee records of the kind prescribed by the regulations for each employee, for 7 years. The records must be in English and in a legible form which is readily accessible to a Fair Work Inspector. Employees and former employees have the right to access their own records.
This means that employees have the right to access personal records (such as leave entitlements and pay records) even though there is no statutory entitlement to access these records under the federal Privacy Act.
Documents which relate to performance and are used in a performance management process are not considered an employee record under the FW Act therefore an employer has no obligation to provide copies of these to an employee.
However, it is recommended that these documents are kept in a secure file which can be accessed at a later stage, should a dispute arise.
To discuss this topic further, please contact us or call the Ai Group Workplace Advice Line on 1300 55 66 77.
