Is a breach of confidentiality grounds for dismissal?

In a recent decision, the Fair Work Commission considered the dismissal of an employee who confided in her partner about a confidential investigation. The employee worked as the director of client relations for the respondent. In July 2020, she sent a letter to the respondent outlining allegations of sexual harassment, workplace bullying and unpaid entitlements.

The respondent commenced an investigation into the matters raised. It requested she not disclose the confidential information with anyone other than her legal advisors and a support person – a role taken up by one of her lawyers. The respondent approached the applicant, seeking an interview. Although initially reluctant to participate, fearing that reliving past events would severely impact her mental wellbeing, the applicant eventually agreed.

In August 2020, the applicant attended an interview with the respondent’s lawyer. During the interview, the respondent’s lawyer reiterated to the applicant the importance of confidentiality. Shortly after the interview, the applicant’s partner sent several accusatory text messages to a former employee of the company involved in the investigation. The respondent was subsequently informed that the applicant had confided in her partner following the interview.

The applicant did not deny she had discussed the interview with her partner. She asserted that, given the sensitive nature of the allegations and their detrimental impact on her mental health, permission to communicate with her partner was implied. The applicant was summarily dismissed from her employment and subsequently filed an unfair dismissal application.

The respondent asserted that her summary dismissal was due to her failure to follow a “reasonable and lawful” direction, which caused “serious and imminent risk” to the health of the former employee.

Although the Commission was satisfied that the direction to the applicant to treat the investigation as confidential was lawful, it was not persuaded that it was reasonable under the circumstances.

“I consider it manifestly unreasonable and unrealistic to seek to insist that a person only consult their lawyers but not a spouse, de facto partner or other individual upon whom they rely for advice and emotional support,” the Commission said.

Given the impacts of both the investigation and COVID-19 lockdowns on the applicant’s mental health, the Commission was not satisfied that her discussions with her partner constituted a valid reason for her summary dismissal.

Remedy is yet to be set.

Key Takeaways:

• Employers must ensure that their directions to maintain confidentiality are reasonable under the circumstances