Court dismisses claim from worker fired for breaching privacy policy

Employee collected confidential patient records to support claim she was bullied by colleagues

Court dismisses claim from worker fired for breaching privacy policy

The Employment Court has thrown out a hospital worker’s bid to show that she was unjustifiably dismissed after she collected and retained confidential patient records in an attempt to support a claim that she was bullied by colleagues. The Court found that the worker’s conduct breached her employer’s privacy policy, which it said constituted serious misconduct and justified her dismissal.

The case concerned a cardiac physiologist who commenced her employment in February 2010. In 2014, the hospital commenced an investigation into an email the worker sent to all staff in the department she worked, criticising how the department dealt with records for patient referrals.

In the course of the investigation, the hospital discovered the worker had collected and kept confidential patient information. The worker admitted to keeping patient records, stating they were to show edits she alleged a colleague had made on her reports and provide evidence of “the impact other staff were having on her work productivity and herself”.

Following her summary dismissal, the worker brought an unjustifiable dismissal claim before the Employment Relations Authority.

The Hearing

At first instance, the ERA found that the employer’s decision to dismiss the worker for serious misconduct was justifiable.

The worker appealed the ERA’s decision to the Employment Court, stating her dismissal was “procedurally unfair and unwarranted”.

However, the Employment Court upheld the ERA’s finding, noting the worker’s conduct “needed to be looked at through the lens of the significance of patient privacy.”

“It must have been obvious to [the worker], given her training and experience, that by collecting and keeping patient records she was breaching her professional obligations and the [employer]’s policy,” Judge Kerry Smith said in a judgment handed down on 4 February 2022.

“While she may have thought there was a bona fide reason to collect and hold this information, she only reached that conclusion by putting her interests ahead of those of the patients whose records she collected and kept,” Smith explained.

According to the NZ Herald, a spokesperson for the worker said she intended to appeal the Employment Court’s decision.

Key Takeaways

  • In determining a claim of unjustifiable dismissal, the Court will consider whether the company acted in the way a reasonable employer would
  • Breaching a privacy policy may constitute serious misconduct, and may give rise to an immediate dismissal
  • As the case above demonstrates, the Court will not typically show sympathy to an employee who breaches privacy obligations for their personal gain

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