The NSW Supreme Court ruled that the provisions of an employment contract cannot defeat public policy
A Transport NSW employee fired for breaking his employment contract’s confidentiality provision by disclosing to police workplace records to aid a murder investigation was wrongfully dismissed and is entitled to damages, the NSW Supreme Court ruled.
Transport NSW had employed Thomas Wood as a forensic manager in the workplace conduct and investigation unit. In that role, Wood had twice investigated an employee who was later charged with murder. Wood learned about the crime from a news report and recognised the alleged killer as the same employee he investigated.
Wood contacted the police, and advised them that the department retained the suspect’s computer and phone records. Wood then immediately informed his manager of the nature of his disclosure to the police, which subsequently resulted in Wood’s dismissal for serious and wilful misconduct.
In Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales (2021), the department raised the confidentiality provision in Wood’s employment contract. The former maintained that the said provision lawfully precluded the latter’s act without prior notice.
The department also asserted that Wood’s disclosure of the alleged killer’s information violated the Privacy and Personal Information Protection Act.
The NSW Supreme Court ruled otherwise, saying: “A person who commits a criminal offence can have no right to privacy or confidentiality in such information, notwithstanding the provisions of an employment contract, privacy policies or the provisions of the Privacy and Personal Information Protection Act.”
The court further declared that “an employer and employee cannot contract out of provisions such as ss. 315, 315A and 316 of the Crimes Act. Nor can a contractual confidentiality obligation lawfully prevent the provision of information about offending which it might capture, to police. If it purports to do so, the contract will be contrary to public policy and either read down, or not enforced.”
The court found that the termination involved a repudiation of Wood’s employment contract and ruled that he is entitled to damages.