Unfairly sacked for disclosing colleague's salary


Unfairly sacked for disclosing colleague's salary

Sending a colleague confidential information about another worker's remuneration did not amount to serious misconduct, therefore summary dismissal was unfair.


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Sending a colleague confidential information about another worker's remuneration did not amount to serious misconduct, therefore summary dismissal was unfair.

However, the Fair Work Commission declined to award any remedy, as the company was now subject to a Deed of Company arrangement and the employee had returned to the UK.

Facts of case

The employee was employed under a 457 visa arrangement by a hardware supply business.  

He had an ongoing dispute with his employer over his job duties and remuneration. He photographed the front page of an employment contract between the employer and another employee, which contained both personal information and details of the employee’s remuneration, and sent it to another employee.

Before that, he had ongoing communications with management concerning his job title, responsibilities and remuneration package over about two years. A Fair Work Building and Construction industry inspector had inspected the employer’s records and indicated to him that he was being paid less than another employee in an equivalent job. 

The man’s employment contract contained a confidentially clause requiring him to prevent the unauthorised disclosure or use by any other person of confidential company information. The employer also had a Confidentiality Policy, with a definition of “confidential’ that included any information that an employee knows, or ought reasonably to know, to be confidential.

The evidence was that the employee was aware of and bound by the policy. The employer also had a Termination of Employment Policy that set out procedures to follow.

In September 2015, the employee received a letter setting out concerns about his job performance, which referred to complaints from other employees. The employee responded in writing, refuting the allegations, which the FWC described as “disproportionate and confrontational”. After that, the employee continued to raise concerns about his job title and remuneration. 

In November 2015, he presented a medical certificate stating he had work-related anxiety and depression and was off work for four months. In December, he refused the employer’s request to return various items of company property. 

While the employee was on stress leave, the manager whom he had sent a copy of the front page of a third employee’s employment contract reported the matter. The employer then contacted the employee and put the allegations to him, but he replied saying the matter should be deferred until he returned from stress leave.
The employer then sent a second letter, and when it was unanswered it terminated his employment for “serious and wilful misconduct” in March 2016. 

Reasons for decision

The FWC held that the photo of the page of the contract was within the scope of “confidential information” and the employee ought reasonably to have known that.

It was sent to another employee for a reason that was not in the employer’s best interests – because he wanted the recipient to use it as evidence against the employer. Also, the employee had denied sending the photo and, as the evidence strongly indicated that he did send it, this amounted to misleading the employer.

This would have amounted to a valid reason for dismissal, but the FWC said that the context in which it occurred had to be considered, as did some uncertainty about the operation of the confidentiality provisions. 

Although there was a valid reason for dismissal, the FWC said that the employee’s conduct fell short of “serious misconduct”. Therefore, summary dismissal of him was unfair.

Given the degree of tensions in the employment relationship – and the employer being placed in administration one month later – his employment would not have lasted much longer and would have largely been covered by workers compensation payments. Therefore, no compensation was awarded as there was no projected remuneration loss.

Also, the terms of the employee’s work visa meant that he had been forced to return to the UK. Therefore, no remedy was awarded in this case.

What this means for employers

Information about other employees’ remuneration and employment conditions is normally regarded as “confidential” information covered by “confidentiality” policies and contractual terms. But as not all employees may be aware of this, it may be wise to refer to such information specifically in the policy or contractual term.

In this case, the FWC indicated that if the employee had merely photographed the information and used it to negotiate a better deal for himself, that would not have amounted to misconduct.

However, by sending it to another employee, he had handled it in a way that was intended to work against the best interests of the employer.

L v Woodpend Pty Ltd (subject to a Deed of Company Arrangement) [2016] FWC 5460 (14 September 2016)
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