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Dismissal was unfair despite disclosure to ‘stupid, boorish’ partner

A worker was dismissed for sharing details of an investigation with her partner.
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Dismissal was unfair despite disclosure to ‘stupid, boorish’ partner

Dismissal was unfair despite disclosure to ‘stupid, boorish’ partner

13 April 2021

By Gaby Grammeno

After a worker was summarily dismissed for breaching the confidentiality of an investigation by sharing details with her partner - who’d then reacted in a highly inappropriate manner - a commission has found that her partner’s ‘disgraceful’ behaviour didn’t justify her sacking, and it was unreasonable of the employer to require such a degree of confidentiality.

Investigating the allegations

The worker was employed by an aged care consultancy as its director of client relations. In July 2020, she complained of sexual harassment, workplace bullying and unpaid entitlements, and asked the employer to undertake an independent investigation into her allegations.

An investigator was duly appointed, and via her lawyers, invited the worker to meet with him. The letter advised that she could have a support person come to the meeting with her, and that she should treat the investigation as confidential and not disclose matters discussed to anyone other than her support person or legal advisors.

Several weeks into the investigation, the worker was advised that some information they’d obtained from one of her co-workers was not consistent with the information she’d provided in her complaint.
Her lawyers responded, saying the incidents described in her complaint had had a severe impact on her mental wellbeing and she was currently on sick leave. The lawyers’ letter asserted that obliging her to reluctantly participate in an interview would likely exacerbate her condition, but she was willing to attend if she could have her lawyer present as a support person.

The investigator accepted, and the interview was conducted by video link. In the course of the interview, the investigator made reference to the information he’d been given by her co-worker offering a different view of the matters under discussion.

Shortly after the interview concluded, the worker’s partner sent seven text messages to the co-worker who’d provided the conflicting information. The messages had an angry, intimidating tone.

One of his messages asked ‘Did you just throw [his partner] under a bus?’ Others accused the colleague of saying the worker was ‘a big drug user’, and that ‘the bruises were from passionate lovemaking’. Another referred to the employer as ‘this shit company’. Another message simply said ‘Fuck u’.

The dispute about confidentiality

The co-worker was distressed by these messages and complained to the company’s director of operations.

When the investigator was told of the aggressive texts, he advised the worker’s lawyer to immediately tell her to stop discussing the matter with her partner and that the contact with the co-worker must stop. The investigator also said the company might regard the disclosure of the confidential information to her partner as serious misconduct on the worker’s part.

The employer then wrote to the woman’s lawyers saying that if she’d talked to her partner about matters raised in the interview, this amounted to a breach of the lawful and reasonable direction she’d been given to keep matters confidential. The letter also said such a breach of confidentiality was wilful or deliberate behaviour inconsistent with the continuation of her contract of employment, and that it caused serious and imminent risk to the health and safety of the colleague, and the reputation of the business.

The lawyers’ response asserted that under the circumstances and notwithstanding the requirement for confidentiality, it was unreasonable of the employer to prohibit her from discussing the matters with her partner, who’d been her support person during the investigation process, though her lawyer had been her support person during the interview.

Nevertheless, the employer responded by terminating the woman’s employment with immediate effect, on the grounds of serious misconduct.

The woman then applied to the Fair Work Commission, claiming her dismissal had been unfair.

The FWC’s decision

The commission took the view that the direction to treat the investigation as confidential was lawful but not reasonable.

The deputy president said that the woman had been ‘spectacularly failed by the stupidity’ of her ‘boorish’ partner, but under the circumstances, her disclosures to him did not constitute a valid reason for the termination of her employment.

He said he suspected that neither the woman nor her lawyers nor the employer could have anticipated the ‘thuggish’ behaviour of her partner, which ‘detonated the relationship between the parties’ and led to her dismissal.

He found she’d been unfairly dismissed, and encouraged the parties to engage in discussions to see whether they could agree on a remedy, without necessitating another hearing.

The bottom line: It’s unreasonable and unrealistic to insist that someone involved in an emotionally draining workplace investigation must not confide in a spouse, de facto partner or anyone else they might rely on for advice and emotional support.

Read the judgment

Ariana Goss v Health Generation Pty Ltd [2021] FWC 1751 (30 March 2021)

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