Sacked for disclosing sensitive information

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Sacked for disclosing sensitive information

An employee who was sacked for allegedly leaking confidential business information was harshly dismissed, a tribunal has ruled.

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An employee who was sacked for allegedly leaking confidential business information was harshly dismissed, a tribunal has ruled.

Background


The employee, Ms B, worked at Wynbob Pty Ltd (the respondent) from October 2015 to August 2017. Wynbob owned and operated an Andersons carpet and flooring franchise at Tweed Heads. 
 
Mr G was the operator at Wynbob: it was a small business that employed three employees.

On 17 November 2016 Ms B said she witnessed Mr G intoxicated at work. She raised these concerns with Andersons' head office. She also sent an image of Mr G sleeping on the couch at work to the CEO of Andersons Franchise Group. She made such a disclosure on the basis she would be protected under the whistle-blower provisions of her employment manual. 

The CEO C attended the respondent’s premises on the same day Ms B raised her concerns. Mr G had agreed to abstain from drinking alcohol in response to a previous warning notice. The CEO informed Mr G that his franchise would be shut down. 

Mr G held a meeting with staff on 3 August 2017 where he discussed the possibility that Wynbob would be shut down. Staff were told this information was confidential and not be to discussed with anyone outside of the business.

A few days later, a contracted carpet layer of the business attended the premises and indicated that he knew Wynbob would be closing down.
 
Mr G believed Ms B had told the carpet layer this information in breach of confidence.
  
On 8 August Ms B was summarily dismissed. She then sought an unfair dismissal remedy. 

The law 


The Small Business Fair Dismissal Code (Code) states that an employer can summarily dismiss an employee if there are reasonable grounds that an employee’s conduct is sufficiently serious to warrant such an immediate dismissal. Serious misconduct includes theft, fraud, violence and breaches of OHS procedures. 

If a person is dismissed, and that dismissal is harsh, unjust or unreasonable, then it is unfair (s385 of the Fair Work Act). There are several criteria for setting out whether a dismissal is harsh, unjust or unreasonable and these include whether or not there was a valid reason, whether the person was notified of the reason and whether the person being fired was given an opportunity to respond (s387).

Arguments 


The respondent raised a jurisdictional objection to the claim by virtue of being a small business. It argued that the dismissal was consistent with the code. It submitted Ms B's breach of confidence, and disparaging comments about the business and Mr G, warranted summary dismissal. 

Ms B submitted that the “disparaging comments” related to her complaints about Mr G's intoxication. She denied having disclosed any confidential information. 

Legal question 


The commission had to determine whether the code applied to the dismissal and, if not, whether Ms B was unfairly dismissed according to the Fair Work Act 2009. 

Was dismissal in accordance with the code?


The commission found that, at the time of the dismissal, Mr G did not know Ms B had made complaints about him to the head office, or that she had sent a photograph to the CEO of the franchise group.  It found “the only event that can be taken into consideration" was Mr G’s belief that Ms B revealed sensitive information to a contract carpet layer. 

Commissioner Hunt noted that Mr G formed the view Ms B should be dismissed on Monday 7 August 2018, one day before he actually dismissed her.

“In requiring Ms B to work approximately six hours on 8 August 2017… I am satisfied that Mr G considered that Ms B’s conduct was sufficiently serious to warrant the termination of her employment, but not summary dismissal.” 

Ms B was not immediately dismissed after the decision to dismiss was made, therefore the code did not apply and the employer could not rely on it.
 
The commission then determined whether the dismissal was unfair. 

Was the dismissal harsh, unjust or unreasonable?


The commission found there wasn’t enough evidence to suggest Ms B told a carpet layer that Wynbob was closing down. It concluded there was not a valid reason to dismiss her. 

It also noted Ms B was not given an opportunity to respond to the reasons for dismissal.
 
Commissioner Hunt ruled the dismissal was harsh, unjust and unreasonable. Ms B was awarded $2565 compensation. It was noted her employment would not have lasted long in light of the business closing on 30 November 2017. 

Read the judgment


Hayley Bond v Wynbob Pty Ltd [2018] FWC 1337 (29 March 2018) 
 
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