Post-employment woes: Can an employee keep company documents after dismissal?

The Employment Relations Authority recently dealt with an employer’s plea to retrieve and destroy the files that were kept by a former worker, adding that the latter’s possession of confidential documents breached his employment agreement.

The worker, Simon Mutonhori, was employed by the Wairoa District Council on 10 February 2020, initially as its customer services manager. Later, he was promoted to be one of its group managers.

Mutonhori's employment with the council was abruptly terminated on 3 August 2022. Subsequently, he initiated two separate proceedings related to alleged personal grievances.

Meanwhile, the council requested the Authority to order the worker to retrieve and destroy several documents in his possession. It said Mutonhori should not have had access to the said information.

Furthermore, the employer sought a ruling from the Authority that Mutonhori breached the explicit terms of his individual employment agreement.

Return of company files

The council said that Mutonhori is in possession of council documents that he was required to return upon the termination of his employment.

The Council cites specific examples to support this claim, including a feedback email and its relevant attachments, as well as supplementary documents.

Moreover, the employer argued that Mutonhori came into possession of the employer's information by improperly sending this information, whether it was classified as confidential or not, to his personal email address and retaining it following his dismissal.

What were the employer’s documents?

Regarding the feedback email and its attachments, the Authority found that it contained a survey initiated by a current staff member to engage with council employees on retention-related matters, conducted in an informal and confidential manner.

The results of this survey were disclosed to select council staff. The employer said that it would like for the survey to be destroyed since individual staff members were identified by name in the results.

The worker said the feedback email should not be considered council property, as the survey originated as an independent staff initiative.

As for the supplementary documents, they related to an accreditation process. The council said these documents are "commercially sensitive," but the worker said these documents "are publicly available information because the audit of council affairs is public."

The Authority’s decision

In its decision, the Authority said the feedback and its relevant attachments were council documents.

“The original email in the chain was sent from a council employee’s work email address to the chief executive of the council at his work email address. The email was later forwarded to a number of council staff members (again, all at Council work email addresses),” it said.

“Irrespective of whether the information arose as a staff initiative, it was clearly generated in a work context, and intended to identify workplace issues to the chief executive,” it added.

The supplementary files were also ruled to be the employer’s property, saying that “even if that information had been published, it would still be the council’s information.”

Did the worker breach his contract?

The Authority said the worker “breached the express terms of his employment agreement by failing to return the information and then using the information after his employment had ended.”

It then required him to “permanently delete or destroy all of the [employer’s] digital documentation, printouts, manuals, reports, letters, memos, plans, diagrams and all copies of that material, which are in his possession.”