Damming Evidence Discovered Post Employee’s Dismissal May Still Be Relevant
Shayne Finemore v CMIB Insurance Services P/L  FWC 8517 (29 November 2016) explores circumstances where an employee is dismissed but with the employer only having certain information available at that point in time.
Post the dismissal, the employer came into evidence of further matters that reinforced its decision to dismiss the employee. Could the employer use that evidence in the subsequent Unfair Dismissal proceedings?
Facts of the matter
- Ms Shayne Finemore (“the Applicant”) was employed by CMIB Insurance Services Pty Ltd (“CMIB”) most recently in the role of Account Executive.
- On 28 April 2016, the Applicant forwarded her resignation letter to the Directors.
- The Applicant’s last work day was to be 31 May 2016. However, whilst serving out her resignation period, the Applicant’s employment was terminated on 3 May 2016 for serious misconduct.
- CMIB discovered that the Applicant had, only two minutes after sending her resignation letter, emailed a client list from the work server to her personal Gmail email address.
- Upon discovery of this breach of confidentiality, CMIB asked the Applicant to attend a meeting on 3 May 2016.
- At the 3 May meeting, the Applicant was asked whether she wanted to have a support person present but did not press this matter. The Applicant claimed that the so called “client list” was not a client list, but a “renewal list” which she used as a working document.
- CMIB considered the Applicant’s responses but did not consider them to be appropriate. Accordingly, she was informed that her employment was being terminated for serious misconduct.
- On 6 June 2016 (post the Applicant’s dismissal), CMIB came to learn, through another brokerage that the Applicant had also, in addition to the client list, downloaded and retained more of its confidential information, including CMIB’s client lists, submissions, templates and a number of other working documents together with personal documents.
At hearing, conducted before Commissioner Gregory, CMIB argued that the information that the Applicant sent to herself on 28 April 2016 was highly sensitive and could potentially enable clients of CMIB to be contacted at renewal time for the purpose of soliciting their business. Furthermore, that the Applicant’s motive or purpose for sending such a confidential document was for an improper purpose, in breach of her employment obligation and that she had not provided completely frank answers when asked about the email.
CMIB also argued that the information downloaded by the Applicant (that was discovered on 6 June 2016) was a “serious and significant threat” to CMIB’s business and operations due to the ease in which clients could be solicited away.
Commissioner Gregory found that the Applicant’s employment contract contained confidentiality undertakings and a Code of Ethics which precluded this disclosure of CMIB’s confidential information to competitors and that:
… on the balance of probabilities that Ms Finemore both emailed and then downloaded the client information and other materials to her Gmail account, and later to a USB device, with the intention of retaining those materials and that information for the purpose of making use of them after she had left CMIB.
Commissioner Gregory went on to say:
… the reasons for termination relied upon need not be confined to the reasons given at the time of termination, and can extend to include other reasons if they can be established by evidence provided to the Commission at the time of hearing.
The Applicant’s unfair dismissal claim was dismissed. Commissioner Gregory found the Applicant’s conduct was sufficiently serious to warrant dismissal and reasonable grounds existed to justify her dismissal.
Message for Employers
The additional information / evidence that is discovered by the employer post dismissal may be used in Fair Work Commissions hearings, subject to whether the facts were in existence when the decision to terminate the employment was made. This will involve a consideration of the facts of each case.
The benefit for employers is that once an employee is dismissed and if the employee lodges a claim with the Fair Work Commission, then the employer may possibly be able to use information obtained post termination for the purposes of defending either an unfair dismissal or general protections application (if the facts concern circumstances in existence when the decision was made).