Letting go of employees threatening to go to the media

Disgruntled employees (or ex-employees) can cause employers unnecessary grief, particularly when an employee threatens to approach the media and ‘leak’ information in a bid to publicly tarnish the name of the employer.

There are, however, reasonably straightforward ways to prevent sensitive information being leaked to the media. The most straightforward method is the inclusion of an obligation in the employment contract, which, if breached, will render the employee liable for damages to account for any harm suffered by the employer.

From an employment perspective, two recent Fair Work Commission (Commission) decisions indicate that an employee may be validly dismissed for encouraging media criticism of their employer.

Statements threatening to go to the media

In The Applicant v The Respondent, the employee, a cleaner in an aged care facility, was summarily dismissed for serious misconduct after encouraging a resident at the aged care facility to make a complaint to the television program ‘A Current Affair’ about concerns that the facility was not ensuring residents had sufficient water. The Commission held that this was a valid reason for dismissal as the employee’s actions amounted to deliberate misconduct, and were likely to cause the employer substantial harm.

Providing confidential information to a union official which was subsequently published

In the second case, Howie v The Royal Society for the Prevention of Cruelty to Animals T/A RSPCA-ACT, the employee, a senior manager of the RSPCA ACT, was dismissed for leaking information to the employee’s union and a journalist. The information included various confidential documents belonging to RSPCA, together with an allegation that the Chief Executive Officer had made a decision to pour concrete down RSPCA-owned rabbit warrens.

Although the Commission found that the employee’s dismissal was appropriate, dismissing the employee after the fact did not prevent the inevitable damage caused to the RSPCA and its reputation, as a result of the negative media exposure.

Can employees be prevented from going to the media?

In cases where an employee has threatened to go to the media and the consequences are likely to be serious for the employer, it is possible to make an application to a court for an interim injunction to restrain the potential actions of the employee.

An injunction is an order by the Court that either compels or restrains a person from undertaking or not undertaking a course of action. It acts to inhibit a potential violation of contractual terms. In this case, such an injunction would be prohibitory – meaning that it would prevent the person from breaching the restrictive term of the employment contract by leaking information to the media.

An injunction may also be granted after a breach, to prevent repetition of that action, however by this point the company may have already suffered irreparable damage. If the subject of an injunction goes on to breach the contract and injunction, they will be liable for damages to the other party, and for the offence of contempt.

If the media outlet has already obtained the information from the employee, the applicant may be permitted to serve the injunction on the company, to prevent it from later publishing the information.

After disclosure occurs – termination and damages

Where a breach of contract is committed by the employee, the employer is entitled to recover a monetary amount for damages from that employee. In principle, the aim of damages is to be compensatory. That is, the aim of recovering damages is to compensate the wronged party for any loss caused as a result of the breach of contract. As such, before an employer can recover an amount from an employee for providing information to the media, it must be able to show that there has been some negative effect on the employer, perhaps by a marked decrease in business as a result of a news story. A Court will look to award an amount of damages sufficient to place the employer back in the financial position that he or she would be in had the contract been honoured.

Links and further references

Cases

Howie v The Royal Society for the Prevention of Cruelty to Animals [2014] FWC 2771

The Applicant v The Respondent [2014] FWC 3189

Further information about employment law for employers and internet law

If you are an employer and need advice on whether you can restrain an employee from going to the media, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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