The complainant applied for sick leave prior to the hearing of disciplinary proceedings commenced by his employer - the hearing was postponed several times - the employer disclosed the fact to the complainant's doctors and sought medical confirmation of his fitness to attend the hearing - directly related purpose and prevention of dishonesty - DPP3, section 58(1)(d) and (2).
The Complaint
The complainant was a member of the disciplinary services and was subject to disciplinary proceedings. The disciplinary hearing was postponed several times because, prior to each scheduled hearing, the complainant claimed that he was sick. His employer became suspicious of the circumstances and wrote to his doctors seeking their medical opinion as to whether the complainant was physically and mentally fit to attend the disciplinary proceedings. His doctors all confirmed that he was physically and mentally fit. The complainant complained that the information about him relating to disciplinary proceedings was confidential in nature, and that his employer had breached DPP3 by disclosing the information to his doctors.
Findings of the Privacy Commissioner
The Privacy Commissioner conducted a preliminary inquiry and found that the commencement of disciplinary proceedings was for the purpose of determining the complainant's future employment status as the proceedings against him could result in his termination of employment, or subject him to other disciplinary measures. The disclosure of the disciplinary proceedings to the complainant's doctors was for the purpose of ascertaining his health condition and to advise on his fitness to attend the proceedings. The Privacy Commissioner decided that there was no change of use of his personal data in breach of DPP3. Dissatisfied with the Privacy Commissioner's decision not to carry out an investigation, the complainant appealed to the AAB.
The Appeal
The complainant alleged that his doctors, being ignorant of the fact that he was subject to disciplinary proceedings when originally consulted, could not subsequently offer an informed medical opinion about his physical and mental fitness to attend proceedings. He also pointed out that he did eventually attend the disciplinary hearing which served to indicate that he was not intent upon avoiding the proceedings, as his employer had suspected.
The AAB ruled that the coincidental application for sick leave immediately prior to each scheduled hearing of his case cast reasonable doubt in the mind of the employer who then sought to establish if he was actually trying to avoid the hearing. The disclosure of the disciplinary proceedings to his doctors in seeking to obtain professional medical advice was also relevant in determining whether the complainant was physically and mentally fit to attend the hearing. Such data were to be used for a directly related purpose and hence there was no contravention of DPP3. The Board went on to consider the application of an exemption. The disclosure of the information about the complainant to his doctors was for the purpose of ascertaining the reason why the complainant was unable to attend the hearing i.e. whether it was because of a genuine health condition or out of a deliberate attempt to avoid disciplinary proceedings. The AAB opined that such purpose was for the prevention or preclusion of dishonesty by the complainant and decided that the exemption under section 58 was applicable to the case.
The AAB's Decision
The AAB upheld the Privacy Commissioner's decision and dismissed the appeal.