A recent sacking for leaking info has been upheld.

This month I’ve summarised an unfair dismissal case decided recently that addressed two important questions. Can an employee be dismissed for failing to look after the interests of their employer? And can information that comes to light after dismissal be used to support the dismissal?

The employee, Richard, held a senior sales position with an international company with a presence in Australia. He had worked for the company for more than 10 years. He sent two emails containing confidential information to a friend of his, and a former employee of the company, Scott, knowing that the information he sent would be used by Scott to harm the company.

Richard was dismissed summarily, that is, without notice and without payment in lieu of notice.

Scott told Richard that he was obliged to send him (Scott) the information, and the disclosure was protected by whistleblower legislation. This advice was wrong, but Richard did not check this until after he had sent the emails to Scott, and in fact, after he  had been provided with a ‘show cause’ letter in relation to this conduct.

Richard had also sent around 30 emails to his own private address, presumably to use against the company, although this information did not come to light until after Richard had been dismissed. Prior to his dismissal, Richard had said that sending the two emails to Scott had been an isolated event and an innocent mistake, although at the time, Richard knew that he had subsequently sent dozens of emails to himself.

This act of sending emails to himself was found to be inappropriate, and a breach of his contract of employment, however, the serious misconduct, and the reason for dismissal, was that he intentionally sent emails to a friend when he knew that information could be used against the company.

A matter of trust

In unfair dismissal cases, a long period of service is usually an argument used by employees to say they shouldn’t have been dismissed. However, Deputy President Peter Sams of the Fair Work Commission (the Commission) pointed out that this can be a ‘double edged sword’, as an employee with long service, and holding a senior and responsible position, can reasonably be expected to be familiar with the company’s policies, and to look out for the interests of the company.

The Commission said that Richard should have known not to give a former employee ammunition to use against his (Richard’s) current employer, regardless of whether a policy is outdated. The behaviour was found to be inimical to the continuation of the expected trust and confidence in the relationship.

Throughout the arbitration process, Richard maintained that he had done nothing wrong, and asserted that the HR Manager, towards whom he harboured deep antipathy, falsified reasons for dismissal.

Richard appeared to characterise the HR Manager as a ‘puppet master’, directing decisions taken by senior management in relation to his dismissal. The Commission found that the evidence did not support this characterisation of the situation.

Richard’s evidence was assessed as improbable explanations designed to salvage a weak case and was also described in places as silly and unbelievable.

The Commission characterised Scott as someone with ‘an axe to grind’ against the company, and said that Scott’s evidence during the hearing had been smug and argumentative, not helping Richard’s quest to get his job back.

Neither Richard nor Scott were accepted as credible witnesses, and where their evidence differed from evidence given by the company witnesses, the company witness evidence was accepted.

The Commission expressed the view that when assessing whether or not a valid reason exists for an employee’s dismissal, there is a need to be fair to both the employer and the employee. It was found that, on the balance of probabilities, Richard had critically overstepped the mark when he intentionally sent confidential information to a former employee, knowing that it could be used against the company.

Richard was notified of the reason for his dismissal, in a ‘show cause’ letter sent to him in mid-July 2018, and he had a genuine opportunity to respond to the reason for dismissal. He was given two extensions of the deadline to respond, and his lawyers responded on his behalf. Although there was no face to face meeting between Richard and senior management, this lack was not criticised by the Commission as at the time: Richard was away on personal leave, and his lawyers had not asked for a meeting. Additionally, his lawyers had had time to respond to the allegations.

The HR Manager had been subject to some criticism by Richard’s representative because she had not recused herself from the disciplinary process, despite Richard having complained about her behaviour. The Commission came to the view that failure to recuse herself was not fatal to procedural fairness because she was the only relevantly qualified person in the company. Another factor was that other senior managers were not entirely familiar with Australian employment law.

Finally, the Commission commented that even if Richard had been found to have been unfairly dismissed, which he was not, he would not have been reinstated. This was partly because the level of antipathy between Richard and the HR Manager was such that it was unlikely the employment relationship could have been sensibly restored. Another relevant issue was that Richard continued to maintain that he had not done anything wrong, so the company could have no confidence that the misconduct would not have been repeated.

Emma Watt is an independent industrial relations consultant who has, for more than 20 years, provided advice and assistance to employers in the timber industry. She has also worked as an unfair dismissal conciliator with the Fair Work Commission. Emma is very keen to ensure that employers know their rights and obligations, so they can sleep well at night!