Employer argues misconduct but union claims it was 'legal professional privilege'
The New South Wales Industrial Relations Commission recently dealt with a worker who was allegedly caught sending emails to his union about the employer’s confidential information.
The case examined whether the investigation and finding of misconduct against the employee were substantially influenced by their role as a delegate and/or their participation in award proceedings.
The union and the worker claimed their correspondence under legal professional privilege. The employer audited employee emails and discovered these disclosures, leading to an investigation.
Background of the case
The Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (PSA) filed a claim against the NSW Commissioner of Police, regarding the alleged mistreatment of one of its members, Tony Saraceno.
According to the PSA, Saraceno has been victimised by the Commissioner of Police for his involvement with the union and his participation in proceedings related to an industrial matter.
On the other hand, the Commissioner said that Saraceno engaged in misconduct by disclosing confidential information without authorisation, potentially leading to his dismissal.
The industrial matter in question pertains to proceedings initiated by the PSA for a new award determining the terms and conditions of employment for special constables within the New South Wales Police Force. Special constables, although not classified as "police officers," play a crucial role in maintaining safety and security in key government buildings.
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Saraceno, a special constable, is a member and delegate of the PSA and was intended to be a witness in the award proceedings. However, he faced allegations of misconduct for disclosing confidential information related to his duties.
The PSA filed both a dispute Proceeding and a victimisation proceeding seeking redress for Saraceno. The proceedings, aimed at resolving the disciplinary actions against him, were brought before the Commission for conciliation and hearing.
The PSA highlighted the significance of union delegates providing information to their union regarding industrial matters, especially when such information is deemed confidential by the employer. Additionally, questions were raised regarding the application of police regulations to information shared by union members for industrial purposes.
Commission’s decision
Despite these complexities, the Commission ultimately dismissed both proceedings, citing detailed reasons provided in the decision. While the tension between confidentiality and union representation was acknowledged, it wasn't crucial to the determination of the case's outcome.
However, the Commission noted that the PSA on behalf of Saraceno, or Saraceno in his own right, has the ability to seek relief for unfair dismissal. The Commission referred such matter at another time.