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Choose your referees wisely Richard Stephen
20 October 2016


Applying for a job can be a nerve-wracking ordeal and, more likely than not, it ends in disappointment. It can be devastating to miss out on that dream job and not knowing why you missed out can be incredibly frustrating.

One common part of applying for a job is nominating your referees. Confusion about this process can raise privacy concerns which sometimes ends up in our Office. There are specific parts of the Privacy Act which address these matters and it is important both parties are aware of them.

Firstly, among other important obligations, a potential employer must only contact the referees the applicant has listed. Please see our blog post on recruitment for more advice.

When you don’t get the job

What if you don’t get the job, and you are worried your referees let you down? What are your rights if you want to know what they said about you? Or, what if you want to protect a referee from a disgruntled applicant who might be threatening to sue?

Principle 6

Under principle 6 of the Privacy Act, you are entitled to access personal information an agency holds about you – but not always.

A potential employer may be able to withhold this information. Section 29(1)(b) says an agency may refuse to disclose personal information that is evaluative material, if disclosing it or information identifying its source (or both) would breach a promise to keep the information or the identity of the source confidential.

Evaluative material

Evaluative material is described in section 29(3) as information “compiled solely” for a range of purposes, and where there is a common purpose in the supply and receipt of that information. In other words, the information needs to be gathered solely for that purpose.

There needs to have been a promise made to the referee about withholding their identity or the information in confidence, and that promise must have been clear to the referee when they make the decision whether or not to supply the information. This typically applies where an employer requests a letter of reference from a referee nominated by a job applicant.

It is important to be aware that this does not apply to unsolicited information. For example, unsolicited complaints about an employee by a disgruntled client cannot be withheld under this provision.

Section 29 of the Privacy Act allows for people to be able to give free and frank references about people. It also means potential employers are more likely to value the information they hear. This can protect people from possible repercussions, awkwardness, and protects current and future relationships. Many people would also refuse to give references if they did not have confidentiality, or the ability to speak honestly. 

Disappointed applicants

But some disappointed applicants will speculate on the potential reasons they were denied a job, and unfortunately this feeling of frustration can be reinforced when information about them is withheld. Sometimes this sense of grievance arises from the way they are treated or how the application was handled. In these cases, it may be beneficial to get the referee’s permission to release the information or to give summary feedback on why an applicant was declined.

Here's a couple of tips:

  • If you are applying for a job, be careful who you use as a reference, and pick someone who is professional (and who hopefully likes you!).
  • It’s also good to advise the recruiters you would like to be contacted before the referees are contacted, just in case circumstances changed in the meantime.

Here’s another thing to think about. If you really want a job somewhere, is lodging a complaint about how your application was handled going to bring you any benefit? There may be variety of reasons why you didn’t get a job and often references are only a minor factor.

If you have further questions about privacy and recruitment, try using our AskUs tool to get the answers.

Image credit: Massimo Busacca, referee, Switzerland via Wikimedia Commons





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