BlandsLaw - Blog posts from Confidentiality
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Employees keeping ‘hush hush’ during workplace investigations

Maintaining confidentiality is an essential component of an effective and functional complaints process. Therefore, it is common for employers to require employees not to disclose information to others during workplace investigations in order to preserve the integrity of the investigation. This is important in protecting all parties concerned, including the complainant, the respondent and any witnesses who may be reluctant to come forward with critical information.

Employers should consider placing confidentiality clauses in their workplace documents, including contracts, policies and procedures, to prevent employees disclosing confidential information. During workplace investigations it is worthwhile reminding participants at the outset about their confidentiality obligations.

In a recent case before the FWC,[1] an employee was dismissed after she sent emails to her Westpac state manager which included factually incorrect information about her colleague (relating to an investigation into a bullying and harassment complaint she had previously made against her colleague). The investigation had concluded and many of the allegations were found to be unsubstantiated. It appeared that the employee sent the emails

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Employers can face hefty costs when involved in confidentiality breaches

The loss of sensitive confidential information can severely harm a business. For this reason, there are legal mechanisms in place designed to prevent former or current employees from divulging confidential information to new employers or by creating their own competing business. Depending on the nature of the employment relationship, confidential information may be protected though:

    • Confidentiality provisions and restraints in employment contracts.
    • The equitable obligation of confidence.
    • Fiduciary duties to act in employers best interest.
    • Obligations owed under the Corporations Act.

Importantly, the Corporations Act includes a provision that triggers liability when a person is knowingly concerned in or party to a contravention under the Act. Therefore, company directors should think twice before ignoring their duties by participating in confidentiality breaches.

In a recent case heard by the Federal Court, funeral fund management company ‘Forresters’ was ordered to pay $6.2 million in profits earned to competitor company ‘Lifeplan’ for its knowing involvement in the contractual and fiduciary breaches of two Lifeplan employees. In an effort to prepare a business

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