At work, as in life, information is power
- David Burton
- Blog
Businesses like to control information, particularly if it is likely to negatively their business or reputation. Information, or lack of information, provides a means to control the narrative. Employers are willing to fight for the protection or control of that information in many forums. There have been some high profile examples in the media lately.
Food giant Talley’s is suing TVNZ for defamation over a series of 1News reports in 2021 based on information, including photographs, provided by whistleblowers on health and safety issues, which Talley’s strongly denies. As part of those proceedings Talley’s lawyers argued that to get a fair trial they needed to know who the whistleblowers were so they could test their credibility and whether it was responsible for 1News to rely on those sources. In his recent ruling, Justice Andrew said “I decline to require the defendants [TVNZ] to reconsider the claim of confidentiality, to order inspection for the Court, to set aside confidentiality, or to strike out the responsible publication defence.”
A recently published best-selling book by New Zealand author Sarah Wyn-Williams has been scathing about Facebook parent company Meta, where she used to work. Her claims include being sexually harassed by longtime company executive Joel Kaplan and Meta exploring the possibility of breaking into the lucrative Chinese market by appeasing government censors there. An arbitration court granted Meta's request to bar Wynn-Williams from promoting the book or making derogatory statements about the company based on a non-disparagement contract signed by Wynn-Williams when she worked with the company's global affairs team.
The Public Service watchdog says it is time to consider tougher penalties for government departments that break the rules laid out in the Official Information Act. Retiring Chief Ombudsman, Peter Boshier, has called the fines for breaches of the Act "laughable" and has suggested agency chief executives be held personally responsible for breaches.
In particular, the Chief Ombudsman publicly reprimanded Health NZ Te Whatu Ora. In his report he found Health NZ had created its own process "contrary to law", through its practice of telling information requesters it had made a decision - without saying what the decision was - at a point when an official information request was already overdue. The law gives government agencies 20 working days to respond unless they can justifiably claim one of several legislated-for reasons. He said a common reason given is that an agency needs to consult more or that the information sought will be released soon anyway (which the Ombudsman says in practice can actually take place months later when an issue is no longer in the public mind).
The Chief Ombudsman said these things needed to be done in a quick and timely manner, "people have the right to make those decision-makers that affect them accountable, they've also got the right to participate in democracy."
The provision of relevant information helps address the inherent power imbalance in employment relations. The duty of “good faith” is wide but it explicitly provides an obligation on an employer to provide relevant information to an employee when it is considering a decision that will, or is likely to, have an adverse effect on the continuation of employment of an employee. If that information is not provided, it enables an employee to claim that any decision is not justifiable.
What is “relevant” sometimes becomes an issue. Perhaps the most well-known case involved a restructure at Massey University. Two senior lecturers whose positions were disestablished 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. This created two fundamental problems for Massey. The first was that it had told the selection panel that it considered the process confidential so that they could be “open” with their opinions. The second was that a portion of the information requested had not been recorded in writing. Massey refused to provide the information on the basis that it simply did not exist, and/or that it was confidential.
The Employment Court rejected those arguments and commented “when a business is restructured, the employer will, in most cases, have almost total power over the outcome. To the extent that affected employees may influence the employer’s final decision, they can do so only if they have knowledge and understanding of the relevant issues and a real opportunity to express their thoughts about the issues… knowledge is the key to giving employees some measure of power to reduce the otherwise overwhelming inequality of power in favour of the employer”.
The Employment Court comment is widely applicable. Information, or misinformation, affects ordinary people, and their ability to influence decisions that will affect them and their families. Read more...