Even though an employee might be contesting a dismissal, or some other adverse action, this does not entitle an employee to improperly retain or obtain company documents to use in their defence, according to a recent federal court decision.
The case involved a senior employee who had been dismissed and had filed an adverse action claim against his employer. When the parties attended a conciliation conference the employer noticed the employee had company documents with him to which he was referring. The employer went to the Federal Court and obtained an injunction against the employee, forcing the employee to return the documents to the employer.
The court decided the employee could not justify keeping the records as part of his defence. The judge said that an adverse action claim requires the employee prove he or she was employed, that they had a workplace right and had exercised it (or tried to exercise it) and that they were dismissed, or threatened with dismissal or other punitive action, for exercising that right.
The adverse action legislation creates a reverse onus then, such that the employer is required to ‘disprove’ the adverse action was taken for a prohibited reason. In those circumstances, the judge said, there was no call for the employee to keep all the documents he had. But the judge went further than that, citing both contractual obligations on the employee not to keep company property after the employment ended, and the Corporations Act. Under that Act, it is a civil contravention if an employee improperly uses information to “gain an advantage for themselves” or to “cause detriment to the corporation”.
Most employers in Australia are corporations as defined in the relevant laws, so this federal court ruling is useful for employers generally. It reinforces the right of companies to demand employees not retain company records, nor copy them or otherwise hold them after they cease to be employees.