When someone makes a workplace complaint, the person accused has a right to know the allegations made against them. That part is not controversial. What is contentious is whether that right extends to knowing who made the allegations.
Secret witnesses – is fear of retaliation enough to justify anonymity?
Employers sometimes offer confidentiality to encourage staff to raise concerns about colleagues or managers. While well‑intentioned, anonymity can become problematic if withholding a complainant’s identity or the details of their information affects the respondent’s ability to understand and respond to the allegations. In some cases, genuine safety concerns justify anonymity, but fear of retaliation can often be managed through other protective measures rather than secrecy.
Natural justice – the right to know the details of a complaint
In New Zealand, where an investigation may lead to disciplinary action, natural justice will usually require disclosure of the complainant’s identity. Respondents must be able to fully and fairly respond to allegations. Confidentiality often results in compromises on detail, limiting the respondent’s ability to comment meaningfully. It also prevents proper testing of evidence and credibility.
In Campbell v Commissioner of Salford School[1], the Court held that relying on confidential information—where both identity and detail were withheld—was a significant procedural flaw. The employee could not meaningfully engage with the case against her, and the employer’s conclusions were shaped by information she had never been able to challenge. The resulting decision could not stand.
Statutory framework under the Employment Relations Act 2000
The principles of natural justice have evolved through case law, but they are also embedded in the Act:
Section 4 (Good Faith): Employers must be active and communicative, providing all relevant information about proposals that may affect employment, including potential termination.
Section 103A (Justification Test): The Authority or Court assesses whether the employer acted as a fair and reasonable employer in all the circumstances, including whether the employee had a genuine opportunity to comment on allegations.
Anonymous evidence often sits uneasily with these obligations.
Impact of recent changes to personal grievance remedies
Recent legislative changes may reduce remedies where an employee’s own conduct contributed to the situation giving rise to the grievance, particularly where that conduct amounts to serious misconduct. This may shift focus toward the employee’s behaviour rather than process flaws. However, flawed investigations still pose risks: if anonymity limits detail, the employer may not have sufficient confidence in the accuracy of the findings to justify serious misconduct outcomes.
Mixed ERA views on anonymous witnesses
The ERA has taken varied approaches:
Wikaira v Hokianga Health Enterprises Trust[2]: Withholding witness identities may be acceptable if sufficient detail of the allegations is provided.
Brown v Bob Owens Retirement Village Ltd[3]: Reliance on anonymous complaints without disclosure rendered the investigation inadequate and legally vulnerable.
These cases show that anonymity is not automatically fatal, but it is risky and must be handled with care.
Privacy Act 2020 considerations
Information Privacy Principle 6 gives individuals the right to access personal information about themselves, which may include investigation material. However, employers may withhold information where disclosure would be an unwarranted intrusion into another person’s privacy.
This creates a genuine tension:
Natural justice may require disclosure.
Privacy law may permit withholding.
The key question becomes whether enough detail can be provided while maintaining anonymity to allow the respondent a meaningful opportunity to comment. In many cases, the answer is no.
Protected Disclosures (Whistleblowers)
Where a complaint qualifies as a protected disclosure under the Protected Disclosures (Protection of Whistleblowers) Act 2022, anonymity may be appropriate to protect against retaliation. However, even under this Act, anonymity can be lifted if withholding identity would undermine the investigation.
Recent cases highlight the seriousness of retaliation:
McCormack v Reserve Bank of New Zealand[4]: RBNZ’s General Counsel disclosed that Mr McCormack had made a protected disclosure, breaching section 17. Combined with disparaging comments, this amounted to retaliatory disadvantage. Compensation of $10,000 was awarded.
Bowen v Bank of New Zealand[5]: The Authority found BNZ unjustifiably disestablished Ms Bowen’s team in retaliation for her protected disclosure, and her redundancy was unjustified. She was awarded $105,000 compensation, $382,065 lost income, and $8,975 medical costs.
These cases demonstrate that retaliation concerns can be very real and must be taken seriously.
Finding the balance
While many employees fear retaliation, this is often overstated. However, employers must treat such concerns seriously and consider alternative protections—such as separation of staff, monitoring, or assurances about employment security—rather than defaulting to anonymity.
Ultimately, any investigation must be sufficiently open and transparent to allow affected parties to understand the allegations, respond meaningfully, and enable the employer to reach a fair, considered, and unbiased decision.
Recommendation
Anonymity should not be guaranteed for complainants. Employers should instead acknowledge retaliation concerns and put in place protective measures that allow the investigation to proceed fairly without compromising natural justice.
If you need legal advice navigating a workplace investigation, get in touch with the team at Douglas Lawyers.
Jo Douglas, Principal: jo@douglaslawyers.co.nz , 027 577 7018
Amy Stewart, Employment Lawyer: amy@douglaslawers.co.nz, 027 333 5567
References
[1] [2015] NZEmpC 122
[2] AA123/05, 8 April 2005 at [66].
[3] [2013] NZERA Auckland 526 at [51]-[59]
[4] [2025] NZERA 754
[5] [2024] NZERA 361, [2025 NZERA 380]
