Phil Eberhard, Master Plumbers’ Senior Workplace Relations Advisor examines the contentious issue of unfair dismissal.

A recent Fair Work Commission (Commission) decision (Shayne Finemore v CMIB Insurance Services P/L, [2016] FWC 8517, 29 November 2016, Commissioner Gregory), has reconfirmed that evidence “acquired after the time of dismissal can be taken into account...

(in determining whether the dismissal was harsh, unjust or unreasonable)... even if the employer was unaware of those facts at the time, and did not rely on them when the dismissal occurred”. However, the Commission qualified that statement by finding that the new,

or additional information, needs to “be established by evidence provided to the Commission at the time of hearing”.

Shayne Finemore (Finemore) applied for an unfair dismissal remedy in relation to her dismissal from her employment as an Account Executive with CMIB Insurance Services Pty Ltd (CMIB).

Finemore was dismissed as a result of serious misconduct. During her employment, Finemore had been given permission by CMIB to remotely access information from the CMIB Server. However, prior to her termination, CMIB revoked that permission.

Whilst searching Finemore’s sent emails, CMIB had found that Finemore had emailed various pieces of information to her personal email account. CMIB met with Finemore and raised this (and other issues) issue with her. In her defence, Finemore advised CMIB that the information that she had emailed was working les, not reports or client lists. Finemore also advised that the working les did not contain phone numbers, addresses, or full client names.

CMIB terminated Finemore’s employment.

After Finemore’s termination, CMIB became aware Finemore had (prior to her termination) downloaded and retained “further con dential information. This was contained on a USB stick she had previously used to store personal photos. However, it had been discovered it had also been used to download a range of con dential information, and this had occurred... after Finemore accessed the server at work from home”.

CMIB became aware of the “further con dential information” after a broker from another insurance company had contacted CMIB and advised that CMIB should check the contents of the USB. Upon checking the USB, CMIB found that a number of highly sensitive and con dential documents (client lists, submissions, templates, working documents, etc) had been downloaded. CMIB relied on this additional information to justify their dismissal of Finemore.

CMIB submitted that Finemore made no mention of the “further con dential information” because Finemore “was not aware, at the time, that... (CMIB)... now knew of the existence of the USB stick and the information and data loaded onto them”.

The Commission found that “the evidence of... (CMIB)... and the answers provided by... Finemore in cross – examination, suggest the Excel spreadsheet was more than a working document containing little or no client information”.

The Commission found that Finemore wanted to retain the “further confidential information” after leaving CMIB.

Finally, the Commission found that Finemore “was initially evasive and unresponsive in that meeting, until confronted with evidence of the emails being sent... (Finemore’s)... explanation then about wanting to update the documents from home, when this task could have been carried out much more efficiently at work, was considered less than satisfactory”.

Should there be any questions about the contents of this article, Members may contact Phil Eberhard, Senior Workplace Relations Adviser, Master Plumbers, on 03 9321 0720, 0425 790 722 or [email protected]