Staying silent over leaks may risk sacking

 

THE DOMINION POST - SATURDAY, 22 may 2010

 

Wellington has its share of leaking homes, but it also has more than its share of other leaks. When a government's popularity is on the wane or its policies are disliked, the odd civil servant is inclined to leak information to opposition politicians or the media. This can be dangerous and may result in the dismissal of the leaker. It may also result in the dismissal of those people who know about it but do nothing.

John Smith and Glen Rankin were dismissed from their employment with the Customs Service in March after leaking information to Christchurch newspaper The Press.

Both were members of the National Union of Public Employees and Mr Smith had been the national delegate. Mr Smith had worked with Customs since March 2002 and Mr Rankin had worked almost continuously since 1986, so they were long-standing employees. Mr Rankin was an assistant chief customs officer.

Late last year, Customs became aware The Press had personal and confidential information relating to Customs officer X. The information concerned an earlier employment investigation into X.

Customs carried out an investigation into how The Press obtained this information and concluded that the principal party involved was more likely than not Mr Smith. Significantly, the investigation also concluded that Mr Rankin apparently knew he was involved in the unauthorised release of confidential information to the media, and did not bring that breach to Customs' attention as required under their code of conduct.

Not surprisingly, Customs concluded that Mr Smith had irreparably damaged the trust and confidence it needed to have in him. However, Customs went further and concluded that it had also irreparably lost trust and confidence in Mr Rankin because he knew what Mr Smith had done and had not reported it. The pair challenged their dismissals.

The Employment Relations Authority recently determined both had an arguable case, but that the balance of convenience favoured their not being reinstated.

The authority refused interim reinstatement of the two men, firstly because their having access to the Customs database could jeopardise the security national of sensitive information held by Customs.

That was despite the fact that the information released to the media was not sensitive in an operational sense and did not originate from a Customs intelligence database. Surprisingly, neither man was suspended during the employment investigation but continued working, even though the reason given for dismissal was that they no longer had the trust of their employer. The authority also took into account that the employee whose information was released to the media felt that it was impossible for him to work with the two men in the future.

The evidence in this case is untested because the hearing related to an interim injunction application by the two men to be reinstated until their case is heard fully at the end of May. The findings are accordingly tentative.

So - Wellington leakers beware. If caught, you are likely to be dismissed. And if you know that somebody is leaking the employer's confidential information, and don't bring the fact to your employer's attention, you also risk dismissal - particularly if your terms of employment require you to alert management or you are a senior manager yourself.

Legal and medical readers of this column will know that lawyers have an obligation under their rules of conduct to report suspected misconduct by their peers to the governing body. Medical practitioners may also be expected to advise responsible authorities about practitioners who are failing to perform their functions properly.

But what about everyone else? Under the Employment Relations Act, employees have a duty of good faith to their employer which requires them to be responsive and communicative. They also have an implied duty of fidelity.

There have been other cases on this issue. The Employment Court, in a case involving Rooney Earth Moving and three of its former employees, held that where a manager or senior employee observed actions that were harmful to the employer then the duty of fidelity or trust and confidence may require the employee to report the conduct to the employer.

In that case, the court held that the regional manager was under a duty to disclose his knowledge of the efforts of two other co-workers to shift work to a competitor and to solicit the services of some their fellow employees to work for that competitor. His failure to disclose his knowledge to the employer also made him liable for damages caused to the employer by that failure.

Mr Rankin had been with Customs for almost 25 years. He lost his job because he didn't report his colleague. If upheld, the decision is likely to have a chilling effect on the public service, and employment generally. It certainly highlights the risk. It also extends the risk to those who know of the leak, but do nothing. Losing your job of nearly 26 years is a big price to pay for not dobbing in your mate.

Most public servants behave entirely honourably. They don't act in the way that occurred here and place their jobs in jeopardy.

The decision is an interim one, and readers will watch with interest to see what happens at the substantive hearing at the end of May, and in the authority's subsequent determination of all matters, including, if relevant, reinstatement.