The New Zealand woman, who worked at an Auckland Michael Hill store, sustained several injuries – including bruises and scratches on her face and wrists – during a workplace altercation on 8 February, the New Zealand Herald reports.
A complaint was subsequently made to police, and a medical certificate reportedly also showed her to be exhibiting symptoms of post-traumatic stress disorder.
No arrests had been made at the time of publication, however the newspaper reports that the woman was emailed by an MHJ regional manager shortly after the incident, warning her not to publicly disclose the alleged assault to the media.
“For the avoidance of doubt, MHJ considers that any disclosure of such confidential information to media outlets would be deemed to be a breach of confidentiality, your individual employment agreement and MHJ’s confidentiality policy,” it quotes the email as saying.
Speaking to the Herald, the woman’s husband claimed she felt “very let down” by MHJ: “My wife is very badly affected by the incident and of course it is made worse because of the company’s threat against her to talk about it.
“I think she feels very let down because instead of getting support and understanding, the company is using a confidentiality clause in her employment contract to try to silence her.”
The Herald reports that the woman emailed the company after the alleged assault to express concerns over ongoing workplace bullying, which she claimed had been reported to management and ignored.
Her employment contract was terminated via a "dismissal without notice" letter within two days of the Herald story's publication. The letter reportedly stated that the staff member failed to attend a formal meeting as part of the disciplinary process and had been "violent and disorderly" towards the colleague.
When contacted by Jeweller prior to the employee's termination, an MHJ spokesperson said, “The company strongly condemns bullying and violence of any sort in the workplace and has a robust range of policies and procedures in place to prohibit these types of behaviours and to assist staff who may have been impacted by them.
“The highest levels of conduct and professionalism are also expected from our employees. The current matter is the subject of an ongoing police investigation. Michael Hill will assist the police in their investigation as required.”
Specific questions regarding whether the employee’s actions had breached the company’s confidentiality agreement, and whether such a breach could result in a termination of employment, were ignored.
The woman's husband claimed she was considering taking the case to the Employment Relations Authority.
Confidentiality clauses for employees
According to New Zealand’s Ministry of Business, Innovation & Employment, Confidentiality Clauses within Employment Agreements usually pertain to “all information owned by, or in the possession of, the employer that is not in the public domain, and which the employer reasonably regards as private”, such as trade secrets, financial and marketing information, and intellectual property.
Laurie Knight, staff barrister with Auckland-based employment law specialist Catherine Stewart, told Jeweller, "Confidentiality clauses are typically focused on preventing employees from using business information for their own private gain, or to harm the employer financially – for example, through competition.
"Such a clause could, however, also include an undertaking from an employee not to speak to the media about matters pertaining to the employer without specific authorisation from the employer.
"In our experience, that type of commitment is typically located elsewhere in an agreement, such as in the list of the employee’s duties," she explained.
Knight added, "If the confidentiality clause expressly covered the specific situation – for example, it prohibited any unauthorised communication with the media about the business – then the clause could be enforceable in the circumstances.
"In our experience, it is fairly uncommon to find a confidentiality clause as prescriptive as this; however, it will always turn on the actual wording of the clause. Whether such a disclosure was then grounds for termination would depend on other terms in the agreement, such as the definition of 'serious misconduct' and the amount of harm to the employer resulting from the employee’s disclosure."
MHJ is a Certified Member of the Responsible Jewellery Council (RJC). Section 18.1 of the RJC’s Code of Practices (2019) states: “All forms of violence and harassment in the workplace are prohibited... Both direct and indirect harassment in any form is not acceptable in workplace facilities. Members shall ensure that employees are treated with dignity and respect and are not subjected to harassment or violence, or threatened with these towards themselves, their family or colleagues.”
Section 18.5 states, “Members shall have a policy and management systems to avoid retaliation for individuals filing complaints or engaging with the grievance procedure”.
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