All employees owe their employer a duty of confidentiality which requires employees to not disclose or misuse confidential information belonging to their employer obtained during their employment. But is it a breach of confidentiality obligations if an employee sends information to themselves? This is what happened in a recent case in the Fair Work Commission (“FWC”), where the employee, a Junior Recruitment Business Partner, sent confidential information from his work email account to his personal email account without authorisation.

Background

The employee’s employment contract included a clause which stated, “Other than in the proper performance of your duties you must not disclose to any third party, any confidential information.” A confidentiality policy had also been issued to the employee which provided that all information to which an employee has access should not leave the employer’s premises without the expressed permission of senior management. From induction, the employee had received training regarding compliance with the employer’s information, privacy, data protection and confidentiality procedures and policies.

The employee sent information related to 93 employees, including passport details, visa details, salary, employment descriptions, contracts and other remuneration and confidential commercial information from his work email account to his personal email account. The employer became aware of this, conducted an investigation and subsequently terminated the employee’s employment for serious misconduct. The employee brought a claim before the FWC that he had been unfairly dismissed and argued that he had never been able to use his work email account at home so had used his personal email instead.

Was this a valid reason for dismissal?

The FWC found that it was fanciful to suggest that the employee, a trained HR professional, would consider such a breach of confidentiality as allowable. By disclosing information outside of the proper performance of his duties, the employee had breached his confidentiality obligations.

The FWC agreed that the employee’s actions amounted to serious and wilful misconduct which were inconsistent with his employment continuing. The employer had fairly dismissed the employee.

Key takeaways

There were a number of considerations the FWC took into account in coming to its decision. Employers facing a similar situation should consider a range of factors, including:

• the terms of any confidentiality clause in an employment contract or policy and what is explicitly said about the misuse of confidential information;
• whether there was perceived implicit or explicit authorisation to share the confidential information;
• any training that has been provided to the employee regarding their confidentiality obligations (including the method and frequency of the training);
• the employee’s work performance and history, and whether they have an unblemished record;
• the impact of the misuse of the confidential information, including any risk to the employer’s reputation;
• any explanation provided by the employee to justify sending the confidential information; and
• how any similar situations have been dealt with by the employer previously.