Imagine this. One of your employees tells you that another employee has been stealing from the petty cash.

Now, you are a fair and reasonable employer. Though you feel this employee is telling the truth, you won’t jump to any conclusions. You will treat it as an allegation and ask the other employee for their feedback before deciding what to do.

“Can you give me a statement?” you ask the informant.

You know that part of a fair process is that you must put the allegation in full to the employee. A full statement from the informant about what they saw would do the trick.

But they refuse.

They don’t want to give you a statement. They fear the other employee will retaliate, or they will become known as a “dobber”. They fear rejection from other staff. The employee who has allegedly stolen cash is very popular, you see.

Ideally, you’d like to start the disciplinary process straight away. Must you really disclose who saw what happened? Can’t you keep the identity of the complainant confidential and press on?

RIGHT TO KNOW IDENTITY OF COMPLAINANT

The Employment Court has long held that you must usually disclose the identity of the person who raised the allegation.

Why so? The person who is on the receiving end of a complaint has a genuine interest in knowing who the complainant is. The identity of the person making the allegation can be important context. It may be something that is key to their response.

Viewed this way, revealing the identity of the complainant is a matter of fairness. It is part of your obligation to disclose everything you know about the matter so that the employee has a fair opportunity to respond.

COMPLAINANT’S RIGHT TO PRIVACY

But the person making the complaint also has a right to privacy. Their identity as the person who made the allegation is personal information about them that they may wish to control.

They may genuinely fear retaliation. Which is why they may request confidentiality as a condition of giving a statement.

THE CHOICE

The scenario above appears to present you with a choice. Either you:

• Press on with a disciplinary process without the statement from the employee. But that way you risk making your process an unfair one, which may lead to an unjustified dismissal; or
• Ignore the allegation altogether, and keep a close eye on the petty cash. Perhaps you will have better evidence next time cash goes missing. But can you trust this employee in the meantime?

EXCEPTIONAL CIRCUMSTANCES

There is another way. The Employment Court has said that, in exceptional cases, you may fairly refuse to reveal the complainant’s identity.

While the law on this is scant, it seems to require you to:

• Show that exceptional circumstances are present. This may relate to the degree of threat to the complainant if their identity gets disclosed. The greater the threat, the more likely you will have exceptional circumstances;
• Reveal as much detail as possible about the allegation, while not revealing the complainant’s identity. For example, you might disclose the statement but not include the complainant’s name. If more than one statement, have a method for identifying each statement by number; and
• Ensure your disciplinary process is fair in all other respects.

This is still a risky course to take. But it shows the Employment Court is willing to recognise the difficulties you face, provided you strive to be as fair as possible.

CONCLUSION

Balancing the rights of your employees in situations like these can be like walking a tight-rope. You should try to persuade the employee raising the complaint to let you disclose their identity. But at the end of the day, it’s their choice.

If they refuse to let you disclose their identity, you then have a choice. Are there exceptional circumstances that justify non-disclosure? And can you truly avoid disclosing their identity during the disciplinary process?

In short, you have to weigh up whether your process will still be substantially fair if you don’t disclose. That is, after all, the measure that matters.

Have you ever faced a scenario like this? How did you handle it?