The Fair Work Commission (“FWC”) has upheld the dismissal of an employee whose conduct exposed his employer to having its confidential information stolen. The FWC’s ruling in Sully v CBMG North Pty Ltd confirms that a termination where an employee is negligent with confidential information is a valid basis for dismissal.

Background

The Applicant was employed as a casual courtesy bus driver and internal delivery driver for the Respondent, CBMG North Pty Ltd, who sold motor vehicles across Brisbane. As part of his duties he would transport confidential information such as applications for finance and contracts of purchase which contained sensitive customer information including income and bank account details.

The Applicant was driving a company vehicle during a delivery when he decided to take a detour to stop at his house. He later explained to his employer that he needed to pick up a pen because the pen he had been issued with was lost. While the Applicant was in his house looking for a pen the company vehicle, which contained the confidential documents and the Applicant’s mobile phone, was stolen. The Applicant initially told his employer and allegedly the police that he had left the keys to the car in the ignition.

The Applicant was called to a meeting with the service manager and HR manager of the employer, where he recounted his story. The Applicant was informed that he would be stood down pending an investigation due to the serious nature of the matters and the confidentiality of the items in the car.

Later that afternoon the Applicant was dismissed from his employment for serious misconduct on the basis of his confidentiality breach (in that he was negligent with confidential information). The Applicant was not given notification of the reason for his dismissal or an opportunity to respond to it before the decision to dismiss him was made. The Applicant filed for unfair dismissal, claiming that the dismissal was not valid as it was disproportionate to his conduct.

Conflicting accounts about the location of the keys

The employer maintained that it was a valid dismissal due to the confidentiality breach, submitting that the Applicant’s actions were wilful and deliberate actions which could not be condoned. The Applicant had filled out and signed a damage report and an incident report, which both stated that he had “parked in the driveway (with the keys in the ignition)”. During the meeting with the service manager and the HR manager the Applicant allegedly told them that he had left the keys in the ignition.

More than two weeks after the incident and the Applicant’s dismissal he sent an email to a police officer stating that he wanted to “correct for the record” that he was “in shock at the time” of making his statement. The Applicant stated that he “removed the keys and placed them downstairs on a table at the property” and “then went upstairs to find items (pens) required for filling in the log book.”. When questioned during the hearing the Applicant did not offer any explanation as to why it took him until then to advise the police of his new recollection.

Seriousness of conduct outweighed procedural unfairness

The FWC upheld the decision to terminate the employee, finding that the employee being negligent with confidential information was a valid reason for dismissal and not unfair despite there being some procedural unfairness. Although the Applicant was not notified of the reason for his dismissal prior to the decision and was not given a reasonable opportunity to respond to the allegations, it would not have resulted in the Applicant’s continued employment. The Applicant’s conduct was held to be negligent and had significant implications on the Respondent and its customer’s financial security.

Key takeaways
• Breaches of confidentiality obligations can be a valid reason for dismissal, particularly if the employee has been negligent or careless.
• Even if the dismissal is not procedurally fair, dismissals for breaches of confidentiality may be upheld as valid where the conduct is serious enough.

People + Culture Strategies