‘Data theft’ case finds employee unfairly dismissed

An applicant was dismissed after it was asserted her partner stole company data. The individual was employed by the respondent as a marketing & business optimisation coordinator. Her partner was previously employed by the respondent but had left the company in February 2020. On 18 June 2020, due to the economic impacts of COVID-19, the respondent notified the applicant that her position had been made redundant. She was informed that she would be paid a four-week notice period and her accrued annual leave.

One week later, the respondent informed the applicant that the company could no longer meet this agreement, proposing that she either be paid one week’s redundancy pay or work the four-week notice period. She was advised that, if she chose the latter option, her employment would be terminated effective 17 July 2020, but she would then be redeployed on a casual basis under JobKeeper for the foreseeable future.

The applicant chose to work her four-week notice period. She claimed that she continued to work until 27 July 2020, even though her notice period had expired by this time. On 28 July 2020, the respondent informed the applicant that, due to unforeseen circumstances, her employment could no longer continue. In a meeting, the respondent told the applicant that the company suspected her partner had used her login details to steal company data. The applicant subsequently filed a claim of unfair dismissal.

While the applicant asserted that her partner’s alleged conduct was the reason for her dismissal, the respondent maintained that she had been terminated on the basis of redundancy. The Commission noted that, where an employee continues working after the notice period ends, the employer cannot thereafter dismiss them on the basis of a summary dismissal. With this, it held that the reason for the dismissal was redundancy.

The Commission was further satisfied that, given the downturn in business as a result of COVID-19, there was a sound, defensible and well-founded reason for the applicant’s dismissal. However, the Commission also found that the respondent had not satisfied its procedural obligations under clause 38 of the relevant Clerks – Private Sector Award 2020. It was satisfied this rendered the dismissal unfair. Compensation of two weeks’ pay plus superannuation less taxation was ordered to the applicant.

Key Takeaways:

• Where an employee is dismissed on the basis of redundancy, employers must ensure they comply with all legal obligations under the Fair Work Act 2009 s 389 and the relevant Award or Enterprise Agreement