How Did You Know?

When a sacked public servant grieved his dismissal he didn’t count on the potential longer term consequences of his claim. He lost his case and, according to his testimony in new proceedings, has paid an even higher price since – he has not been able to find another job, and blames the ease of access via the internet to his public record of litigation in the tribunal.

The employee submitted that he had applied for over 200 jobs since being sacked and had had at least 20 interviews that went very well, but subsequently, he was not hired. He claimed that his prospective employers could conduct a straightforward internet search and find the details of his previous case. He said those details should be expunged, as he was suffering prejudice.

While agreeing this probably was the case, at least in some instances, the tribunal adopted the long held principle of open justice. It made the point that the employee either knew, or ought to have known, that once he started his unfair dismissal claim with his previous employer, everything was on the public record. The tribunal refused to countenance expunging the case decisions or even anonymising the records.

This case underlines the need for care to be taken by both employers and employees before embarking on any form of litigation. Prior to the development of the internet and the powerful search engines used to scan for information, specific employee files would have been much harder to access. Prospective employers would never have gone to the trouble of attempting to trawl through the case files of the employment tribunals, they would rely on the employment application form and reference checking.

Now a few keystrokes and mouse clicks and all is revealed, from either side. Prospective employers and employees appearances in courts and tribunals (with a few very rare exceptions) are matters of public records that have never been so easy to access. Both need to be careful about how far they take matters, and what the consequences might be.

Samakovlis v Chief Executive, Department of the Premier and Cabinet (Department for Correctional Services) [2016] SAIRComm 6 (4 July 2016)