The FWC has compensated a senior HR consultant after her employer conducted a flawed investigation into suspicions she had copied confidential information to help start her own business.
Commissioner Peter Hampton ruled that while CKI People Pty Ltd had a valid reason to dismiss the consultant, her misconduct was not serious enough to justify immediate dismissal and that it failed to follow a proper investigation process.
"[T]he demonstrated misconduct fell short of the serious misconduct warranting immediate dismissal," said the commissioner.
He accepted that the employee had exercised "poor judgement" and took "liberties" but it was the employer's failure to investigate that made the dismissal unfair.
Commissioner Hampton ordered the Adelaide-based HR consultancy to pay the consultant $11,505 compensation plus super.
The Commissioner accepted reinstatement was inappropriate because the employee's actions gave rise to legitimate "suspicion" and "unease" that caused damaged to the employment relationship.
CKI People dismissed the consultant in December last year when it discovered she had downloaded confidential business information, including clients' personal details and other intellectual property, and transferred it to an external hard drive.
The employee claimed that she had downloaded the information to enable her to work on projects from home over Christmas.
The company remotely checked her system, revealing she had downloaded confidential material on two occasions, including in September last year.
According to CKI People, the consultant's actions were unauthorised.
The company accused her of serious misconduct and breaches of company policy, alleging she was stealing information and company records.
CKI People claimed the employee had attempted to hide the file transfer process by placing the hard drive out of sight.
It suspected she was covering up her actions because she wanted to use the information to start her own business.
It regarded the employee's misconduct as so potentially damaging to the business its chief executive reported the incident to Adelaide police.
Commissioner Hampton accepted the "combination of events and circumstances was grounds for suspicion" but he wasn't satisfied that the employee had motive or intent to misappropriate the intellectual property.
He found CKI People's belief the employee had "stolen" company IP with the intent of misusing the information was speculative and, at the time of the dismissal, there was "insufficient foundation" for "such a belief to be reasonably held."
"However, given the seriousness of the allegations, the matters that [CKI People] did not know and the very limited investigation and discussions prior to the dismissal, it did not have a reasonable basis at that time to conclude that [the employee] had in fact seriously breached her obligations and/or actually put the business at risk," said Commissioner Hampton.
Although the commissioner said that some of the employee's explanations were "unconvincing" and she had "attempted to downplay" the significance of the IP, he remained unconvinced that the conduct amounted to theft or misappropriation.
Commissioner Hampton found the company's procedures fell short in telling her she was dismissed when she returned to the office after attending a medical appointment to treat a migraine.
Although she acknowledged that the file transfer was "a silly thing to do" she was not given the opportunity to address the allegations raised or to respond to some of the reasons for her dismissal.
The commissioner said that he could not be satisfied that the employee understood on a "reasonable basis" that a direct instruction not to duplicate the file or IP had been provided.
He concluded the "absence of notice and the procedure adopted by the employer" warranted his finding.