Vendetta, vendetta! FWC finds attempted character assassination and confidentiality breach valid reasons for dismissal

Managing conflicting personalities can be one of the most challenging aspects of being a manager. Particularly when low level disagreements escalate to formal complaints, investigations, attempts at character assassination and breaches of confidentiality.

These issues were recently traversed in the Fair Work Commission’s (FWC’s) decision in Lecaude v Westpac Banking Corporation T/A Westpac [2018] FWC 1969.

The employee in this case was dismissed after sending two emails to the manager of a separate team who was in the process of recruiting for a vacant position. The emails related to one of the employee’s co-workers with whom she had a difficult relationship and about whom she had made a formal bullying complaint.

In the emails, the employee claimed that:

  • There was an open HR case against the co-worker for his abusive behaviour towards her;
  • The allegations made by the employee about the co-worker were proven;
  • The co-worker was on probation as a result of his behaviour;
  • She was asked by her managers not to proceed with her complaint for the sake of the co-worker’s family and so that he could keep his job;
  • The co-worker was supposed to go through an anger management program; and
  • It was a “serious issue” if any manager supported the co-worker’s application for promotion and would be “even worse” if he got the job.

One of the emails also inferred that the co-worker was racist, abusive and harassing towards others.

Prior to the sending of the emails, a formal investigation had been conducted in response to the employee’s complaint. The employee was advised on a number of occasions, including in writing and in Westpac’s policies, that her complaint and the investigation were confidential and were not be discussed or disclosed to anyone.

On the basis that the employee’s emails contained false and damaging statements about her co-worker and breached her obligation to maintain confidentiality, Westpac dismissed the employee.

The employee then lodged an unfair dismissal application with the FWC on the basis that there was no valid reason for her dismissal.

The employee claimed that she sent the emails at a time when she was stressed and she did so in Westpac’s best interests. The employee submitted that she believed the statements in her emails were true, that Westpac’s policy was not to promote employees who were the subject of open HR cases and that she was concerned the promotion would mean her co-worker would become her superior and he would subject her to further mistreatment. The employee claimed that she was, in effect, whistleblowing.

Westpac argued that the employee was trying to get back at her co-worker after the investigation into her complaint resulted in her also receiving a formal warning. Westpac submitted that the employee’s belief about the truth of her statements could not be supported by the evidence and she was trying to mask her true intentions in sending the email, which were to damage the co-worker’s reputation and injure his chances of securing a promotion.

Westpac submitted that the employee’s actions were a conscious and deliberate violation of her obligation to maintain confidentiality in relation to her complaint and that in failing to do so, the employee fundamentally breached Westpac’s policies including its code of conduct.

The FWC considered the evidence of the employee, her managers and members of the HR team. The FWC concluded that it was self-evident that the employee set out to damage her co-worker’s prospects of succeeding in his application for promotion and this was a valid reason for dismissal. A further valid reason was provided by the employee’s conduct in breaching her confidentiality obligations.

On the basis that Westpac had also followed a fair and proper process, the dismissal was upheld by the FWC and the employee’s application was dismissed.

Lessons for employers
Confidentiality in relation to grievances, complaints, investigations and any outcomes is absolutely essential to ensuring a fair and reasonable process.

Where employees make complaints or are involved in an investigation, they must be explicitly directed to keep all matters related to the complaint or investigation confidential and advised that disciplinary action may be taken for failing to follow this reasonable and lawful direction.

Stressing the importance of confidentiality can help to minimise the impact of the workplace rumour mill and hopefully prevent those searching for drama from finding a platform.

If an employee then breaches their obligations in relation to confidentiality, the employer will have good reason to take disciplinary action.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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