Wood v Department of Transport
This case saw an individual’s claim of unfair dismissal upheld after he was terminated for providing information collated during a workplace investigation to the police to assist in a highly publicised criminal investigation into a murder. The employer argued that communicating information to the police was misconduct by way of breach of organisational privacy and confidentiality policies. The NSW Supreme Court strongly disagreed.
A range of issues relating to procedural fairness, natural justice, the onus of disclosure on the employee and the incorrect interpretation of privacy principles and employment terms by the employer were raised.
As novel as this case may be, it highlights two really important elements for employers to consider.
Firstly, it shows the complexity and seriousness of the dismissal appeals process. Failure to follow internal processes and/or best practice can result not only in poor or unjust decision making but unlawful conduct. The financial and personnel implications of getting things wrong can be significant. In this case, the organisation was ordered to pay the individual’s salary up until the position he held was made redundant a year later, and to pay the associated redundancy entitlements to the individual as well.
Secondly, it demonstrates the risks associated with decision-making in a vacuum. The organisation showed a lack of knowledge about the employee’s duty to disclose information in this particular case (in fact, it may have been a criminal offence had the employee not shared information with the police). It raises questions about prior decision-making around reportable issues for this organisation and others like it. Internal policies and procedures or terms in employment contracts do not trump legitimate lawful duties or obligations relating to disclosure, and reliance on internal doctrine without evaluating it from an industrial or legal perspective can be perilous. Examples where an employee may be obligated to disclose information to a third party (such as a regulator or statutory authority) may include where required by law in the context of:
- Federal or state based public sector obligations under legislation, code or contract.
- Where mandated by law under sector or professional association guidelines.
- Where it may be a criminal offence to fail to disclose.
This curious case is well worth reviewing.
At WISE Workplace, we are known for our workplace investigation expertise in relation to alleged workplace fraud and misconduct. Our team of skilled national investigators come from a wide range of professional backgrounds, including industrial relations, employment law, finance, insurance and health. If your organisation needs assistance in understanding its obligations and duties in relation to a workforce conduct matter, reach out to the team at WISE today on 1300 580 685 or [email protected]
Photo by Sasun Bughdaryan on Unsplash
