Is downloading confidential work documents on personal devices grounds for dismissal?

With the rise of remote working arrangements, the ability to keep confidential or sensitive company files secure is a new challenge for employers and their workers to navigate.

Many employees now work from their living rooms and kitchen tables using both devices provided by their employer and personal devices to send emails, access and edit documents or join virtual meetings. While none of these actions sound like particularly risky activities, if deemed a breach of company policy, they could give rise to disciplinary action or even dismissal.

“Highly inappropriate and seriously improper” conduct

A Queensland employee recently argued their dismissal on the grounds of misconduct for downloading confidential files to a personal device was unfair because of the absence of protocols and processes regarding accessing and storing documents remotely and the challenges of working from home, such as network outages, and reliance on desktops and USBs to save and access work, among other reasons.

The state government senior program officer allegedly downloaded confidential documents onto a personal device and saved copies of the documents onto the desktop of their company provided computer and a privately owned USB without authorisation. After an audit and investigation, the employer affirmed the allegations and commenced disciplinary processes, resulting in dismissal.

The employee was ultimately unsuccessful in their claim, with the Queensland Industrial Relations Commission finding that in these circumstances, downloading work documents on a personal device was a valid reason for dismissal. The Commission noted that as an experienced policy officer who had previously been in roles in which he dealt with confidential documents regularly, the worker should be “aware of the very strict requirements that related to the handling of [documents] to protect the confidentiality and security of the information.”

Emailing work documents to a personal account

To protect commercially sensitive information, some companies assert copyright over documents in addition to any confidentiality policies, so sending those documents to a personal email address can constitute reproduction in a material form under the Copyright Act 1968 (Cth).

This can become especially relevant when information sent to a personal account or device is to set up a competing business or move to a competitor.

However, not all breaches of a code of conduct give grounds for dismissal. In a case before the Fair Work Commission, a worker received compensation and reinstatement after their dismissal for breaching the employer’s code of conduct was deemed harsh.

According to records, the employee emailed documents to their personal email address and stored photos of the documents on a personal device. The employee argued that none of the information was sensitive or classified and the captured information was for work purposes, with the FWC concluding that breaches were not “serious errors of judgment” and “did not warrant dismissal.” Further, the FWC said the employee’s failure to follow “lawful and reasonable directions” was not “substantial, wilful or intentional.”

Authority to access and download

The best way to ensure compliance with policies regarding accessing or downloading confidential documents while working from home is to familiarise yourself with the contents of the policy and seek clarification on anything you do not understand.

Where no policy exists, and there has been no direction from your employer not to use a personal device for work purposes, you may wish to speak to your employer about getting approval anyway.

Written by Trent Hancock

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.