Australia: Protecting confidential Information: Termination day: Tips for employers

Last Updated: 18 July 2018
Article by Dominic Russell

This article is the final piece in a three part series of blogs focussed on how organisations can most effectively protect themselves against employees stealing confidential information. Following on from our second blog in the series, which focussed on how to effectively protect your company's confidential information from an employee during their notice period up until their termination, this blog looks at common mistakes employers make when exiting an employee, and what to do in the event that a former employee has been found to have stolen company data, or is working in breach of a restraint of trade.

Making a clean break and preserving data

Firstly, it is important to always conduct an exit interview with the departing employee, and in turn, to have the employee sign a declaration stating that they have returned all company property that was in their possession. Be sure to make an official internal note of the interview in case there is ever a discrepancy in the future. Either during, or immediately prior to this exit interview taking place, make sure to cut off the employee's access to any company IT services and/or accounts, and be equally careful to change all passwords used by the employee to access company services.

Save and preserve a complete copy of the employee's mailbox, making sure to include their calendar and any calendar notes.

If the employee has used a company issued computer and/or phone for work, consider sending the device to a forensic IT specialist to conduct a basic review of the device to check for abnormal activity. Whilst this is not necessarily a crucial step in every case, no harm can come from taking a cautious approach to an employee's departure.

What should you do if you suspect that an employee has stolen company data, or is working in breach of a contractual restraint of trade term?

Try to secure any electronic devices that were previously used by the employee prior to them leaving by locking them in a secure place. It is important not to attempt any sort of examination of the employee's devices without professional assistance.

Collate relevant documents:

  • Employment contract(s);
  • Termination or resignation letters;
  • Exit interview documents;
  • Related company policies, such as workplace surveillance, use of electronic devices, and confidentiality; and
  • Any documented evidence of a breach, such as evidence of copying data and suspicious emails, or other communications with customers and suppliers.

It is also important for companies to review all current and future business opportunities which the employee in question may seek to exploit, and to prepare a detailed rundown of any relevant information.

Seek urgent legal advice! Any delay by a company may be viewed by a court as evidence that there is no genuine business risk to protect, and the court may in turn dismiss a case on that basis alone.

Common pitfalls for employers

From experience, the most common obstacles faced by employers when seeking to enforce post-employment obligations are self-inflicted. These are:

  • Having poorly worded contracts, usually as a result of employers preparing their own employment contracts without seeking legal advice;
  • Failing to keep signed copies of employment contracts;
  • Providing staff with access to sensitive information without monitoring that access or maintaining controls over how that information can be copied or sent;
  • Not maintaining a workplace surveillance policy;
  • Failing to act quickly once they become aware of a potential breach; and
  • Compromising the integrity of key evidence by attempting to examine electronic devices themselves.

To quote Nigel Carson from KordaMentha Forensic, "every computer contact leaves a digital trace". It truly is important to take heed of the fact that in an environment where the best evidence usually wins, conducting inexpert investigations can be a self-defeating exercise.

Of course, all of these pitfalls are easily avoidable with a little bit of advance planning, disciplined business management and legal advice.

Finally, we all recognise that in 2018 filing cabinets and ledgers are pretty much a thing of the past. Similarly, I suggest that it is also time to acknowledge the fact that the "IT guy" and the "mate of the boss who's a bit of a tech-head" have likewise become redundant. Virtually all business activity is conducted electronically through computer systems, so regardless of how small a company may be, the IT system is often the most important piece of commercial infrastructure that they have.

A professionally managed IT system using up to date hardware is not just good for business, it will also save you certain grief in the future if you need to rely on it to recover data or gather evidence for use in legal proceedings.

How can Coleman Greig help your business to protect its confidential information?

Coleman Greig's employment team can assist businesses at every stage of the employment life-cycle. Our lawyers are able to provide expert advice on the preparation and implementation of internal policies and procedures, drafting contracts and agreements, risk identification and management, and enforcement of post-employment obligations including litigation to prevent misuse of confidential information, and to enforce contractual restraints of trade.

Please bear in mind that whilst Coleman Greig's Employment Law team can provide legal advice on risk management and the protection of confidential information, we don't manage IT systems. I would urge any business with an IT system currently serviced by the "IT guy" to seek professional advice from a reputable company!

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dominic Russell
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions