Disclosure of Investigation matters doesn’t justify termination

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Disclosure of Investigation matters doesn’t justify termination

The Fair Work Commission (FWC) has not been persuaded that the dismissal of a senior employee for disclosing confidential matters gathered during an investigation to her partner was a valid reason for her dismissal.

At the time of her dismissal in September 2020, the employee had been engaged by Health Generation Pty Ltd (the employer) for a period of 15 months. Initially engaged in the role of Associate Director in the Advisory and Client Partner Team, she was promoted to a new Director of Client Relations position in January 2020.

In July 2020, the employee sent a letter via her lawyers to her employer outlining allegations of sexual harassment, workplace bullying and unpaid entitlements. She requested that the employer undertake an independent investigation into the matters she raised. They accepted her request and appointed a partner in an independent legal firm to undertake the investigation.

At the outset of the investigation, she was advised in writing that she, “must treat the investigation as confidential and should not disclose the content of our discussion … with anyone other than her support person or legal advisers…” The matter of confidentiality was also noted in other subsequent emails exchanged between the parties.

During the investigation, a witness received abusive texts from the employee’s partner relating to comments the employee had made during the investigation process. The employer regarded her disclosures to her partner as amounting to a breach of a lawful and reasonable direction concerning confidentiality and ultimately terminated her.

The employee claimed to have been under stress as a result of her complaint and felt the need to confide in her partner due to her emotional state.

As determined by Deputy President Clancy, the employer’s desire to rely on a breach of confidentiality was unreasonable. As he stated,

“I consider it is manifestly unreasonable and unrealistic to seek to insist that a person could only consult with their lawyers but not a spouse, de facto partner or other individual upon whom they rely for advice and emotional support. Litigious and potentially litigious matters are emotionally draining and require consideration of complex issues”.

While not condoning the behaviour of her partner in submitting abusive texts, Deputy President Clancy concluded that it did not give the employer sufficient justification to terminate her employment.

He has remitted the matter back to the parties to file further material on an appropriate remedy to address her unfair dismissal.

A G v Health Generation Pty Ltd [2021] FWC 1751 (31 March 2021)

For queries about misconduct investigations, terminations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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