Most businesses keep records about their employees, but not everyone is aware of just what their obligations are when it comes to the maintenance or release of those records.
A lot of businesses may not be aware, for example, that employers are required to keep and maintain employee records for a period of seven years under the Fair Work Act, individual breaches of which can attract fines of up to $3,300.
To ensure that a business is complying with its obligations, best practice will involve developing and implementing policies that explain to employees what type of material is to be kept on the organisation’s personnel files, how the files are stored and how they can be accessed with due regard to privacy regulations.
It almost goes without saying, that keeping good employee records is not only critical to employee management, but the ability to produce accurate records is often determinative in resolving employment disputes.
What employee records must be kept?
Employee records include all personal information that relates to an employee, including health information. The type of records that should be kept include information about the terms and conditions of employment (hours, salary or wages, leave provisions, taxation, superannuation and other financial details), emergency contact details, as well as information about the employee’s recruitment, induction and any documents relating to discipline, performance and conduct. Information concerning memberships of any professional or trade unions should also be kept.
The type of health information that should be kept includes documents relating to pre-employment medical testing and any medical information relating to health assessments, including documents compiled for the purposes of managing workers compensation claims and return to work.
While there is no prescribed form in which employee records must be kept, best practice will ensure that they are kept in a secure place where they are only accessible by human resources personnel and/or line management.
Allowing access to personnel files
Best practice for providing access to employment records is governed by the National Privacy Principles (NPP). Generally, under the NPP if an employer holds personal information about an individual, it must provide the individual with access to the information, on request, by the individual.
However, there are a number of exceptions to this rule. Access does not have to be provided where the request is providing access that is unlawful or may prejudice investigation of unlawful activity, may pose a serious threat to the life, health or privacy of another person, or is deemed to be frivolous or vexatious.
A request for a copy of employment records can also be denied where the information relates to existing or anticipated legal proceedings between the organisation and the individual and the information would not be accessible by the legal process of discovery in those proceedings, or where providing access would reveal the intentions of the organisation in relation to negotiations with the individual in such a way as to prejudice those negotiations.
Prior to releasing information in personnel files, businesses should seek legal advice so as to properly consider whether there are any exceptions, and, if so, to which documents these may apply. Each case needs to be carefully considered. For example, where a confidential complaint has been made about an employee, releasing certain documents is likely to result in disclosure of the identity of the person who made the complaint. This could potentially result in an unreasonable impact on the employee who made the complaint. Depending on the circumstances, the employer could consider to rereleasing a redacted version of the documents (i.e. a document which blacks out the name and any other personal details of the person who had complained).
In the context of employment disputes, which documents are released often determines the outcome of the dispute. Should there be any doubt about the release of a particular document the best option is to seek legal advice.
About the authors
Robyn Young is a partner and Nick Read is a solicitor with the law firm Holman Webb. For further information visit http://www.holmanwebb.com.au/