Today’s correspondent says:

Over the last couple of years, a number of large volunteer organisations in NSW have used The Voice to conduct a pulse check across their paid and volunteer staff. 

The sell to staff and volunteers was that these surveys are completed anonymously. It has come to light that one of these prominent volunteer organisations has used this “anonymous” survey feedback to instigate disciplinary action against staff and/or volunteers whom they believe made certain statements, in what was believed to be an anonymous survey.

This raises a question but more importantly a major consequence for said organisation:

Question: can an organisation legally use feedback from a supposed anonymous survey to instigate disciplinary proceedings against staff and/or volunteers?

Even if the answer is ‘yes’, as word spreads about what the organisation has done with this “anonymous” feedback, the organisation has done irreparable damage to the trust employees and volunteers now have in its executive and leadership structure, and the willingness for employees and volunteers to speak up.

I accept that if an organisation promises that feedback is anonymous, but it isn’t that will permanently damage the organisation’s standing and the value of any future survey. That is not however a legal issue, and I won’t take it further.

As for the legal question that’s difficult. Evidence law would give a court a discretion to exclude evidence that has been improperly obtained or in the circumstances would be unfair to the accused (see for example, Evidence Act 1995 (NSW) ss 137 and  90), but we are not talking about criminal proceedings and in most situations, the Evidence Act won’t apply (see The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024)). 

Even where the Evidence Act does apply there is generally a discretion to use such evidence where it is crucial and where the alleged offending is very serious. If though an anonymous survey evidence is obtained of serious misconduct that poses a risk to the organisation or individuals (eg fraud, sexual offending, using agency resources to advance criminal conduct etc) then it would be incumbent on the organisation to use that information to start looking into the matter even if the survey answers could not be directly used.  That is if they put an organisation on notice of some serious issues, they cannot ignore them because the survey was anonymous and if they did ignore them it would defeat the purpose of the survey which is to invite people to anonymously report their concerns.  That is if a person or persons completing the survey says that they are not happy as they are subject to bullying by a named person then the organisation is not breaching rules of anonymity if they say ‘this has been reported by one or more people, we don’t know who but it is something we must investigate’.  That must be fine. 

What would also be fine is if they read the survey results and see someone has made a statement to the effect that they are damaging the organisation or are an unacceptable risk to others. The organisation may say ‘we don’t know who said that but if it’s true we need to work out what’s going on’ and then began an investigation that narrowed down the possible people to include, and perhaps only include, the person who wrote the survey. That does not deny that the survey was anonymous, but it triggered an investigation. And what is the point of the surveys if not to trigger action to resolve what’s reported?  If what is reported is general dissatisfaction or low morale, then the organisation wants to use that information to identify the problem and start the solution.  If what is identified is individual misbehaviour that poses a risk to the organisation or those in it that too, having been anonymously identified, has to be resolved. What is not fine is if the person completing the survey makes an admission and the organisation then says ‘You said this in your survey, and we are now investigating whether or not you are a fit and proper person to be in the organisation’. That would be a breach of confidence.

In short acting on what the survey reveals must be the expected or hoped for result of the survey and that does not breach confidentiality. Identifying who completed the survey from the survey, does. The critical question is what type of ‘disciplinary action’ is being take based on what type of statements?

It would not be fine to take vindictive or punitive action against someone who completed the survey honestly and is now being targeted for their opinion.  If for example someone wrote that ‘all the middle managers are useless’ then trying to work out who they were would be wrong; but equally that could hardly be a breach of any code. If the person is asked to give their opinion in an anonymous survey then they are doing what they are asked and I cannot see how that could warrant action against any code of conduct.

If we accept that that the organisation is identifying who completed the survey then that be a breach of a duty of confidentiality. That duty can arise where information is obtained in circumstances where it is expected that the information will be confidential. That would seem to apply here so there could be an action for damages or for an injunction to restrain the use of that information.  The Privacy Act requires organisations that collect personal data to use that data only for the purpose for which it was intended and if it was promised to be confidential then to use it in the way suggested would ] be a breach of the privacy legislation if the information was ‘personal’ information.

Conclusion

Assuming that the organisation can and does identify the author of the survey from their survey answers, and that there is action based solely on the answer then for an employee there would remedies under industrial law. Volunteers would certainly argue that the information cannot be used and that honest answers given in response to a request for those answers cannot amount to any breach of discipline. They may be successful in seeking a review of any decision on the basis that the use of the material was ‘unfair’ but that is both time consuming and costly.  If it can be proved that the material was collected for one purpose but used for another then the most effective remedy may be a complaint under relevant privacy legislation.

If on the other hand, the organisation identifies a problem from the survey so starts investigating the problem, then that is fine even if, in the course of the investigation, they find that the person who identified the problem is also the cause of the problem.

The biggest implication would be, as noted, no-one would ever trust the survey process again.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.