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Dismissal upheld – Confidential client list

The Fair Work Commission has dismissed an employee’s application for unfair dismissal, finding that the employer’s decision to terminate the employee for serious misconduct was reasonable as the employee’s action can be construed as constituting a breach of the confidentiality obligations in her employment contract.

An employee who held the position of Account Executive was terminated by her employer for serious misconduct after she submitted her resignation. The employee subsequently lodged an unfair dismissal claim.

The Account Executive tendered her resignation on 28 April 2016 indicating that her last day would be 31 May 2016. On 3 May 2016, she was immediately dismissed when the employer discovered that she had emailed the employer’s client list to her private email account on two separate occasions after she provided notice of her resignation.

The employer told the Commission that the information that the employee had sent to her private email was highly sensitive and that whilst she had not yet used the information improperly she was in the process of doing so and would have done so but for the fact she was discovered.

In support of its decision, Commissioner Gregory stated, “I am satisfied that the Directors of CMIB had a belief at the time of Ms Finemore’s dismissal that her conduct was sufficiently serious to justify her immediate dismissal. It was based on her sending confidential client information to her personal Gmail account at the same time as she was about to confirm her resignation. This was in breach of her employment agreement, and created the potential for the information to be used in competition with CMIB’s business.

This case highlights the importance of having in place employment agreements that contain provisions for dealing with confidential information. Employers should take steps to actively manage and protect confidential information, and take action when a breach is found.

If you have a difficult situation in your workplace, contact us for further guidance.

https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8517.htm

 

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The information contained within this article is for general advice only, to obtain specific advice for your business contact us on 1300 116 400 or email [email protected], this advisory service if free for all members.

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