In a recent decision the Fair Work Commission emphasised the importance of confidentiality obligations in dismissing an application for unfair dismissal by a manager who emailed commercial confidential information to his personal email address when he was under investigation for conduct concerns.
The Facts
The manager was employed in 2022 at a logistics business as a recruitment officer. His duties included talent acquisition and onboarding and offboarding employees.
He was employed under an employment contract that included an obligation to not disclose confidential information to third parties. The employer also had workplace policies for data protection, information technology, and the protection of confidential information, and was trained in complying with the policies.
In February 2024 he received a performance appraisal that required him to improve in various ways including respectfully addressing colleagues and responding to colleagues in a less defensive manner.
In March 2023 a meeting was held with him about some recent concerns about his behaviour. He subsequently complained about how the meeting was handled.
Between February and April 2024 he sent confidential company information and employee information to his personal email account, including:
- Personal information of 93 employees including passport details, visa details, salary, and other remuneration information.
- The contract and fee structure with the employer’s immigration agent, a key supplier to the business.
- Information about a senior manager’s bonus.
After becoming aware of the disclosure the employer carried out an investigation and invited the employee to attend meetings to give input into the investigation.
The employer then issued further letters inviting him to a further meeting to give input to its concerns that he had committed a confidentiality breach, and then inviting him to show cause as to why the employment ought not be terminated.
The employer was not satisfied with the employee’s response and notified termination of employment for serious misconduct. He applied to the FWC for unfair dismissal.
The Decision
The Commissioner dismissed the application, observing that:
“I consider it fanciful to suggest that an HR professional, albeit in a junior position, trained as the [employee] was, would consider it allowable to send [the confidential information] to his home email address without any authorisation…
I also consider it of note that the confidential information was sent in a short and confined period of time around the First Allegations. It was obviously not something that would occur, or had ever occurred, in the ordinary course of employment. Disclosure of such confidential information would present a serious risk to the reputation of the Respondent’s business.”
The Commissioner was also satisfied that the employer had followed a fair process in the dismissal.
Implications
The case is a reminder that employers are entitled to expect compliance with their lawful and reasonable policies, and employment contract terms, for protecting confidential information.
Employees are reminded that they should be careful to understand those policies and expectations, and to comply with them.
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