The Federal Court has held that a terminated employee is not
entitled to retain documents after termination for the purposes of
prosecuting a claim against the employer.
Armstrong World Industries suspended its CFO on account of
bullying allegations and dismissed him eight days afterward. The
CFO made a general protections claim under s 340 Fair Work Act
2009 (Cth). There was a conciliation conference to resolve the
claim, to which the CFO took two folders of documents.
Representatives from Armstrong observed that those folders
contained its documents. When the conference failed to produce a
settlement, the Fair Work Commission certified that the dispute
could be litigated within a window of time.
Within three days left before that window closed, Armstrong
World Industries sought an injunction for the destruction of its
documents and their electronic copies in the possession of the CFO.
In retaining those documents, Justice Beach found that the CFO had
contravened s 183 of the Corporations Act 2001 (Cth),
prohibiting the use of company documents for personal advantage.
The CFO argued that the documents were necessary for the
prosecution of his claim, but Justice Beach noted that the
reverse-onus provisions of the Fair Work Act 2009 relieved
him of an obligation to provide evidence. Nevertheless, the CFO
could obtain access to the documents by legitimate means such as
Lessons for Employers
This decision gives employers a strong basis to request and
recover documents from terminated employees and grounds to take
back those documents notwithstanding any claim that might be
required by the employee for the conduct of litigation.
Furthermore, employers should note that such documents cannot be
used by directors and officers against the company unless they are
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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