The conclusion of an unfair dismissal case heard by the Fair Work Commission recently upheld an employer’s decision to terminate an employee for misconduct and breaching confidentiality.
The employee had made complaints to her employer that she had been bullied and harassed over a period of years and an ensuing workplace investigation found that some, but not all, of the allegations were substantiated. Following the conclusion of the investigation, the employee was told that the outcomes were confidential. However, events transpired and some months later the employee in an email, breached confidentiality of the investigation and management sent the employee a ‘show cause’ letter stating concerns about the email and its content. The employee was consequently sacked and she then lodged a claim with the Fair Work Commission.
Workplace investigations are becoming the norm to assist employers to identify and assess the facts and circumstances surrounding underlying issues raised by staff members. Confidential statements are taken from the parties concerned following which, decisions are then made on the course of action to be taken.
An investigation should be considered immediately a serious complaint has been lodged with management; doing nothing with a formal complaint is not an option. We have seen the results of doing nothing and they include an ever increasing sense of despair, frustration and anger from employees who feel they are being ignored. Issues that are not addressed then snowball to such a degree that workplace relationships become dysfunctional and often result in illness and stress claims than then become workers compensation issues. Additionally, penalties may apply for breaches of Occupational Safety and Health legislation for a lack of action surrounding a particular issue.
Back to the employee who was sacked for misconduct and breaching confidentiality. After hearing both sides of the case, Commissioner Bruce Williams found that the termination was not harsh, unjust nor unreasonable and the employee’s application was dismissed. (Lecaude v Westpac Banking Corporation T/A Westpac  FWC 1969 (11 April 2018))
The confidentiality of not only workplace investigations but workplaces in general has been a topic of discussion recently and it is our recommendation that an employer’s expectation of confidentiality in the workplace should be covered-off in employment contracts and/or formal workplace policies. Specific items, documents, processes and ideas, even wages information can be specifically included in confidentiality clauses and is an item worthy of review in your existing workplace documentation.
Following from our previous Workwise Words (25 April 2018), now may be a good time to review and perhaps strengthen your own workplace documentation, particularly employment contracts, and policies/procedures to ensure that the subject of confidentiality is suitably covered. In the legal case referred to above, Westpac’s policies on Grievance handling and their Code of Conduct were reviewed for their contents and the employee questioned on her understanding and acknowledgement of these documents.
If you have any doubts, concerns or queries about the confidentiality of your workplace investigations, or indeed any other workplace activity or documentation, we hope that you will contact the Workwise office today to discuss the changes that may be needed.
The information contained in this article does not constitute and should not be relied upon as ‘legal advice’. Workwise Advisory Services recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise Advisory Services.