DHS loses unfair dismissal case after employee’s “stupid” call to 3AW

Businesses have been warned to once again make sure they are following every step of the unfair dismissal procedure to the letter, following a successful case in which an employee won compensation after divulging confidential information.

An employee of the Victorian Department of Human Services (DHS), who worked at a juvenile detention facility, told a 3AW radio program the facility would be installing razor wire in order to stop inmates from escaping.

The case is one of many in which procedural mistakes have resulted in businesses having to pay compensation.

Given this was a confidential piece of information, the employee, John Ryan, was terminated – although said he accepted his actions as “stupid”.

“The applicant was clear that it was an act of stupidity to have made the call and also very poor judgement on his part. He said that he was very remorseful about what he had done,” the Fair Work Commission found.

The DHS was contacted by SmartCompany, but declined to comment.

The commission heard Ryan had been under a lot of stress at his job, being in charge of training staff and implementing new systems. Ryan called 3AW in order to prompt the department into acting on putting razor wire into place around the facility.

“He thought that, if someone from the department heard it, they would act upon it. He said that, at his level, he could not go to the director and make that recommendation.”

Although Ryan’s conduct warranted termination, the commissioner found the department had erred. The workplace regulations mandated Ryan’s defences should be investigated, and only one of them was. Additionally, Ryan was not given minutes of a meeting relating to his conduct.

“It would also appear that… the process followed by the department was far from transparent,” the commissioner found.

Rachel Drew, partner at TressCox Lawyers, told SmartCompany this morning it is critical that businesses follow proper procedures during unfair dismissal cases – especially ones involving such serious allegations as the leaking of confidential information.

She says there are many examples of these sorts of procedural mistakes.

“It doesn’t matter what type of employer you are, a fair process is one of the requirements of unfair dismissal – and probably always will be,” she says.

As for the confidential information, Drew says it often goes without saying confidential information is off-limits for repeating to others. In many cases, this doesn’t even need to be defined by the company in question.

“This is the sort of thing that will not be written down, but will be implied,” she says.

“Some employment contracts define it specifically. Traditionally, confidential information refers to trade secrets, like the recipe for Coke. Those things are traditionally confidential.

“Usually, this refers to things like sensitive business information, information about clients, the turnover of the business and profit levels, and so on.

“All of these will usually be considered confidential information.”

Ryan will be awarded compensation for his dismissal.


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