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Your questions answered: Does an employee have a right to see an employer reference?

By Portner Press on November 28th, 2018
  1. Workplace Policies
  2. Privacy & Data Protection

 

Q
I was of the understanding that under the privacy provisions, a candidate has a right to see information held about them in a referee report, but if that candidate becomes an employee, those referee reports become part of the employee’s HR record and are exempt from the privacy provisions. Is this correct?

 

A
A prospective employee does not have a right to access a confidential reference that their ex-employer gives about them.

However, there is a common law duty on ex-employers not to provide a false, misleading or negligent reference.

If the person is subsequently hired and this reference is retained on file, it will become an employee record. As you suggest, the Australian Privacy Principles (APPs) will not apply to employee records. The APPs also may not apply if your business:

  • has an annual turnover of less than $3 million; or
  • is not expressly covered by the Privacy Act 1988 (Cth).

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