Accessing former employee's files - An employer granted access to former manager's files

May 24, 2017

An employer has been granted access to a former manager’s USB devices, after the Federal Court found it might have grounds to to take action him for breaching his contractual confidentiality obligations.

The national sales manager of Toll NQX resigned in August 2016, and two months later started working as a business development executive with competitor Followmont Transport Pty Ltd.

Toll Transport Pty Ltd sought preliminary discovery of the manager’s USB devices, believing it might be able to claim damages from him under s183 of the Corporations Act for breaching a duty of confidentiality.

Toll argued that the manager had access to commercially sensitive information, and that after he left the company it conducted a forensic examination of his work laptop, finding USBs were inserted into it in the days leading up to his resignation.

Toll claimed that they recovered emails the manager sent prior to his departure that indicated he was in the final phase of negotiating the terms of his employment with Followmont, despite his claims he was “not sure” he’d be moving to the competitor.

In agreeing to Toll’s request, Justice John Logan noted that after the manager joined there was evidence Followmont had taken up work that “one might otherwise have expected” would have remained with Toll, and that the evidence supported “a reasonable belief” on the part of Toll that it might have a claim against him.

Toll Transport Pty Ltd v Fleiter [2017] FCA 376 (3 April 2017)

Toll Transport Pty Ltd v Fleiter (No 2) [2017] FCA 384 (13 April 2017) (Order)

The case illustrates the need to ensure that confidentially and potentially restraint of trade clauses are included in employment contracts.

This is general information only and does not constitute legal or any other form of advice. If you would like assistance with a workplace matter such as this, or if you require the services of an independent investigator, contact Phil O’Toole at Centium. Centium has conducted many workplace and employment related investigations and can share lessons learnt and good practices observed across industry.

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