Access to confidential information is part and parcel of work for many employees especially those working in finance, professional services and technology based businesses. The ANZ Bank recently dealt with a case where an employee filed an unfair dismissal claim after she was dismissed for:
- Undertaking an unauthorised celebrity search on the database
- Doing searches on her brother
- Commencing searches on a colleague
In the Fair Work Commission matter of Dinov v Australia and New Zealand Banking Group Ltd T/A ANZ Bank [2021] FWC 745 (ANZ Bank Case) the Employer’s actions in terminating the employee for contravening the policy which included access of account holder information without permission was justified.
However, even with a valid reason and illogical explanations the Employer still had to defend an unfair dismissal claim of this type.
Using what we have learnt from this case here are 2 tips for Employers when dealing with information based misconduct:
Tip 1 – Your Policy is key
In the ANZ Bank Case the Employer had in place a Prohibited Activities Policy which set out in no uncertain terms that employees were not allowed to utilise the comprehensive systems to view accounts of relatives, friends and celebrities, for that matter. The Policy also expressly prohibited access of other employee accounts without genuine permission to do so.
The Policy was clear. The employee knew about the Policy and it was well known to employees. There are of course significant legal ramifications around misuse of information that was only briefly covered in the ANZ Bank Case which is also useful to consider when developing a Policy.
We discussed in detail previously the decision of Belinda Ayres v City of Kingston T/A Kingston City Council in the article The Pink Folder – Senior Employees And Their Duties Of Trust And Confidence (3 Tips For Employers) and ways Employers can go further with protection of confidential information including but not limited to:
- Confidentiality clauses in employment contracts
- Separate deeds of confidentiality
- Technology based user account restrictions to information of the business
If you do not have a policy around information and confidentiality, get one in place.
Tip 2 – Evidence will be required, so ensure it is “put” to the employee
Having evidence on misconduct on its own may not be enough. There are numerous unfair dismissal cases where Employers have lost even when they have a valid reason for the dismissal.
Procedural fairness and natural justice are integral to ensure any claim made at a later stage be it, unfair dismissal, general protections of breach of contract can be defended with evidence that has been “put” to the employee.
In practical terms, a show cause letter requesting a response to the allegations is the very least an Employer should do to mitigate their risk.
In the ANZ Bank Case the employee argued that she didn’t access the information and further more had no real tangible benefit to do so. However, the Employer was able to put forward:
- The information was accessed on her account
- The searches were made
- The employee was the only person consistently working at her desk during these searches
- The searches were made in a very short period of time between legitimate work related searches
As such, the logic of her arguments lacked substance and the Employer’s conclusion was backed by the Fair Work Commission.
However, this may have been quite different and “muddied” if the Employer had simply terminated her employment without procedural fairness. This is a key reason for the Employer’s success.
About to undertake disciplinary action? Consider contacting our office to get the best advice to mitigate your risk and liability. Get in touch with NB Lawyers – Lawyers for Employers undertake and book an obligation free consultation. Reach out via [email protected] or +61 (07) 3876 5111 to book a consultation.
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Written By
Director
NB Lawyers – Lawyers for Employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.