Confidentiality obligations of employees

Here are some very interesting observations and findings in an unfair dismissal case by a senior member of the Fair Work Commission about employees’ obligations of confidentiality to their employers.

“Allegation 3 – sent private and confidential information to a private email address

[62] There is no dispute that on 15 October 2020 Mr Longobardi sent emails from his work email address to his wife’s personal email address. Mr Longobardi did so because he wanted to use these emails to support his allegation of bullying by Ms Street and other managers. The emails in question included communications between Mr Longobardi and Ms Street which Mr Longobardi contends prove that Ms Street communicated with him in an unreasonable manner.

[63] Mr Longobardi was suspended at the time he was preparing his bullying complaint (15 October 2020). Mr Longobardi had access to his work emails from home but could not print off his work emails from his own email account. Mr Longobardi’s printer at his home is connected to his wife’s email address, which she does not use. Mr Longobardi forwarded the emails in question to his wife’s email address, printed them off at home and used them to support his bullying complaint. Before he could forward emails to wife’s email address, Mr Longobardi had to delete sensitive information from the emails. He deleted sensitive information until such time as New Horizon’s information technology system allowed him to forward on the emails to his wife’s email address. However, some sensitive information remained in the forwarded emails, such as a medical diagnosis for a particular customer. Mr Longobardi gave evidence that his wife did not see or have access to the emails, and that the emails were not disclosed or provided to any third party; they were only used for the purpose of supporting his bullying complaint to New Horizons.

[64] I accept the truth and accuracy of the evidence given by Mr Longobardi in relation to this allegation, as summarised in the previous two paragraphs. There is no evidence to support a finding that Mr Longobardi has used the emails other than to support his bullying complaint. The steps Mr Longobardi says he took to print off the emails and use them to support his bullying complaint are logical and ring true, particularly for a person such as Mr Longobardi who is not an information technology specialist.

[65] Mr Longobardi’s contract of employment contains the following provisions in relation to confidential information:

“19. DISCLOSURE OF COMPANY INFORMATION

(a) You must keep secret during and after your employment all information you obtain about the business and affairs of the Company, Related Companies, clients or customers of the Company.

(b) Any document or written material provided by the Company for use in connection with the Company’s business is the Company’s property must not be removed, passed on, copied or disclosed to third parties except with the Company’s authority.

  1. RESTRICTIVE COVENANT

(a) You expressly agree to:

iii. not at any time without the authority of the Company either directly or indirectly divulge to any person any information in connection with the Company or any of its businesses or customers which you may have acquired during or as incidental to your employment…”

[66] By engaging in the conduct summarised in paragraphs [62] and [63] above, I find that Mr Longobardi:

(a) did not breach clause 19(a) or 23(a) of his contract because he did not “divulge to any person” or fail to “keep secret” any information about New Horizons. He did not disclose the emails or their content to anyone, other than New Horizons for the purpose of supporting his bullying complaint; and

(b) did not breach clause 19(b) of his contract. By forwarding the emails to his wife’s email address for the express and sole purpose of printing the emails for use to support his bullying claim, I do not consider that Mr Longobardi “removed, passed on, copied or disclosed to third parties” any document provided by New Horizons or used in connection with its business. Alternatively, if acting in this way constituted a breach of Mr Longobardi’s obligation not to “copy” or “remove” relevant documents, it would be a minor technical breach which would not provide a sound, defensible or well-founded reason to terminate Mr Longobardi’s employment.

[67] Mr Longobardi was also criticised during his cross examination for the steps he took to comply with an order for the production of documents made in 2021 during the course of these proceedings. In particular, Mr Longobardi used his father in-law’s computer and email address to scan-in various documents that he was obliged to produce to the Commission in response to the order for production of documents. I accept Mr Longobardi’s evidence as to the steps he took in that regard, the legitimate purpose for which he acted, and the fact that the documents were not disclosed to any third party. I am satisfied that Mr Longobardi did not breach any obligation of confidentiality owed by him in connection with the steps he took in 2021 to produce documents to the Commission.

Allegation 4 – breached policies and procedures

[68] New Horizons contends that Mr Longobardi breached:

(a) its Positive and Productive Workplace Policy which required him to “behave in a responsible and professional manner and treat others in the workplace with courtesy and respect”; and

(b) its Code of Ethical Conduct which required him to “treat all people with respect and dignity … undertake … duties with care and diligence … uphold and model the values of New Horizons” and “protect the reputation and assets of New Horizons and exercise judgement accordingly”.

[69] By reason of Mr Longobardi’s conduct (as found above) in relation to allegations 1.1 and 2, I am satisfied that he failed to comply with his obligations under relevant policies and procedures to:

  • behave in a responsible and professional manner and treat others in the workplace with courtesy and respect;
  • treat all people with respect and dignity and uphold and model the values of New Horizons; and
  • protect the reputation of New Horizons and exercise judgement accordingly.

Conclusion on valid reason

[70] I am satisfied on the evidence that allegations 1.1, 2 and 4 are substantiated. Allegations 1.2, 1.3 and 3 are rejected.

[71] By reason of Mr Longobardi’s conduct (as found above) in relation to allegations 1.1, 2 and 4, I am satisfied that New Horizons had a sound, defensible and well-founded reason to dismiss Mr Longobardi on 10 December 2020. I am therefore satisfied that New Horizons had a valid reason to dismiss Mr Longobardi related to his conduct.”

 

 

Longobardi v New Horizons Enterprises Limited (2021) FWC 2203 delivered 21 April 2021 per Saunders DP