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Breaching confidentiality: When can you be dismissed?

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Careful what you say, do, record or publish about your workplace. Breaching confidentiality: When can you be dismissed? is important reading. Know your rights and do’s and dont’s today.

It can be a lawful dismissal

Breaching confidentiality can be grounds for a lawful dismissal. Most Australian employment contracts include confidentiality obligations. These prohibit an employee from disclosing an employer’s confidential information to an external party.

In this article, we look at several cases where employees were dismissed for breaching confidentiality. A few of these are very extreme cases of employee misconduct. One worker was fired for taking a photo of a cancer patient’s genitalia while they were on the operating table. She then shared the photo with others.

In another case, a teacher was sacked for refusing to withhold the gender identities of her students from their parents. But first, let’s look at what is perhaps the more bizarre story of breaching confidentiality you’ll ever read…

Waitress dismissed for filming customer dining with inflatable doll

In May 2024, an American waitress made global headlines after she invaded the privacy of a customer by filming him. However, the reason she was filming him was because he was dining with a blow-up doll. The waitress, Tara Bjork, posted the video on TikTok, where it has amassed over 2 million views. The video was shot at a restaurant in Charlotte, North Carolina.

In the video, Ms Bjork admits that filming the customer is not something she is permitted to do. “OK, I’m not supposed to be making TikToks at work, but this calls for it. I work at a nice restaurant in Charlotte, and I need you guys to see what just came in the door,” she said.

The video then zooms in to show the man dining with the doll, which had blonde hair and was dressed in a black sleeveless dress. At one point, Ms Bjork observed the man feeding grapes to the doll and ordering a glass of champagne for his “date.”

Patron-with-his-diner-date.
Patron with his dinner date. What he does is his business. This is dispite what others think.

Waitress gets fired for TikTok video

Ms Bjork’s decision to post the video came with significant consequences. In an interview with local media, she said she was aware of the potential repercussions when she started filming. “[I] knew one of two things was going to happen, it would get no views and I would be fine or, it would blow up and I would be fired,” she said.

The restaurant’s policy prohibits employees from filming while on duty. Some viewers of the video found it amusing, while others criticised it as an invasion of privacy. In an interview with a local radio station, Ms Bjork defended her actions, describing the incident as an “unusual dining” experience.

“What I saw was him trying to ‘seat’ her at the table, which was mortifying to say the least because she wasn’t really ‘sitting’ as you can see. He proceeded to order some food and order some drinks for them and have a blast I guess.”

Photograph-of-a-plastic-blow-up-doll.
Careful what you photograph or record at work.

Date with doll was “punishment”

The man in the video was later identified as Henry Herrera, who took to TikTok to explain why he took the doll on a date. He revealed that it was a punishment for losing his fantasy football league.

“So, last year we started punishments for the last-place finisher in our fantasy football league,” he explained. “The guy last year had to sit in a Waffle House for 24 hours, and every waffle you ate subtracted an hour. But we kept seeing that online, so we wanted to do something different.” He noted that as he dined with the doll, he

“saw like six phones recording me.”

Herny Herrera

Sydney nurse dismissed for photographing patient’s genitalia

This story of a worker breaching confidentiality is of a far more serious nature. In 2015, a Sydney nurse was dismissed for photographing an anaesthetised woman’s genitalia during a medical procedure. The patient, who wished to remain anonymous, was undergoing gynaecological surgery to test for cancer when the incident occurred.

After the surgery, her doctor informed her that she did not have cancer. But she was also told that a nurse had taken an explicit photo of her while she was unconscious. “I felt like my world was exploding,” the patient, who is a schoolteacher, told media in 2015. “I felt I was in great peril that this photo was going to destroy my life, my career and that my son would find out.”

The hospital described the nurse’s actions as “abhorrent” and assured that it was a “one-off occurrence.” However, the victim felt the hospital did not do enough to address the situation. “The hospital has a clear patient’s bill of rights but they haven’t done the right thing,” she said. “They should have accessed the phone and ensured that the image was deleted as soon as possible.”

Breaching-confidentiality.-Recording-the-employee.
You cannot record co workers or your employer without their consent. Laws vary state to state.

Nurse avoids criminal conviction

The patient was further alarmed to discover that the nurse could not be charged with a crime under current NSW law. This was because the photo was not taken for sexual gratification but allegedly to mock her body. This stands in contrast to laws in Victoria and Queensland, where taking such a photo without consent is illegal regardless of intent.

The photo was reportedly shown to two other nurses in the recovery room, who then alerted hospital management. Despite being dismissed for the photo, the nurse responsible was later hired by another Sydney hospital. She continued to practice without any restrictions or supervision.

The patient, meanwhile, took leave of absence from her teaching job due to the stress caused by the incident. “I have lost about six months’ pay and entitlements, I have legal and psychological costs,” she said. “I’ve also lost my dignity.”

Christian teacher dismissed for refusing to hide students’ gender from parents

This story involved a California-based high school teacher who refused to withhold her students’ gender identity from their parents. California and US federal laws state that a transgender or gender-nonconforming student’s identity should not be shared without the student’s permission. This includes sharing their identity with their parents.

The teacher, Jessica Tapia, was sacked for refusing to adhere to the policies of the Jurupa Unified School District concerning transgender and gender-nonconforming students. Her reason for refusing was that the policy conflicted with her strong Christian beliefs. She also claimed the policy went against her beliefs “regarding human sexuality and lying.”

“I knew immediately, like in my gut, in my heart, in my soul, that there was a decision I had to make because, you know, these two things were totally butting heads,” Tapias told media. “I essentially had to pick one.”

Teacher-at-work.
Teacher at work.

Teacher is dismissed for refusing to keep student gender identities private

Staying true to her religious convictions, Ms Tapia told her employer that she would refuse to use students’ preferred pronouns. She also refused to permit students with “male genitals” to use the girl’s locker room. And she said she would share a students’ gender identities with their parents.

Ms Tapia’s legal team argued that there was no instance during her tenure where she violated school or state policies, as the issues in question never arose. However, her termination was precipitated by social media posts deemed offensive by students, which led to complaints about her views on transgender issues and religion.

This included publicly supporting a bill that would have required teachers to inform parents if their child was gender-nonconforming or transgender. This bill ultimately did not pass.

Employee-happy-as-she-got-a-good-payout.
Employee happy as she got a good payout. Get advice about your potential situation.

Teacher awarded $360,000

Following her sacking, Ms Tapia launched a lawsuit against the school district. She argued that her dismissal violated her rights to free speech and religious freedom, which are both protected under the US constitution. The school district did not admit any wrongdoing. However, it agreed to pay Ms Tapia $285,000 along with $75,000 for her legal fees as part of a settlement.

“I don’t believe [kids] should have this ‘privacy’ to where their parents are being left in the dark about some very pertinent information about their well-being,” Tapias told media.

Ms Tapia’s legal representative described the settlement as an “incredible victory.” She said the payout “sends a strong message that there’s a price to pay when you ask a teacher to lie and withhold information.” She also claimed it showed that “religious rights are not second class.”

Worker dismissed for breaching confidentiality during investigation

A Fair Work Commission case that involved a worker that breached their employer’s confidentiality is Ariana Goss v Health Generation Pty Ltd [2021]. Ariana Goss began working for Health Generation in April 2019 as an Associate Director and later promoted to Director of Client Relations. In mid-2020, Ms Goss alleged instances of sexual harassment, workplace bullying and unpaid entitlements. She made these allegations through her lawyer.

Health Generation subsequently hired an independent investigation into these claims undertaken by a law firm. The workplace investigation was deemed confidential. As such, Ms Goss was told not to disclose any details to anyone except her legal representatives and a support person.

As part of the investigation, Ms Goss was interviewed. She reluctantly attended the interview as she feared it would be to the detriment of her mental health. During this meeting she was advised again of the importance of keeping the investigation confidential. However, shortly afterwards Ms Goss disclosed details of the interview to her partner.

Employees-on-their-social-media.-Breaching-confidentiality
Employees on their social media. Careful what you publish. There is a record for ever after. Some employees end up dismissed for spending too much work time on their phones. It is addictive for some.

“F**k u”: Partner sends texts to former employee

Ms Goss’ partner subsequently sent a series of texts to a former Health Generation employee who was involved in the investigation. One of them read: “Fuxk (sic) u. You told them that her bruises from USA were from. passiknate (sic) love.”

Another read: “You statements were raised today…from that night with all 4 of us, did you or did you not say ‘the bruises were from passionate love making’ Did you or did you not send a sandwich bag of coke, (sic)”. Health Generation were subsequently informed that Ms Goss’ partner had been provided with details of the interview. This ultimately led to her summary dismissal for serious misconduct in September 2020.

Parties make arguments to Fair Work

In her unfair dismissal claim, Ms Goss acknowledged that confidentiality had been emphasised by the investigator. However, she argued to the Fair Work Commission that she had not received a formal directive from Health Generation regarding the scope or limitations of confidentiality, particularly concerning communication with family members. Ms Goss argued that such communication was essential for emotional support during a challenging period.

Meanwhile, Health Generation asserted that Ms Goss’s actions constituted serious misconduct. The company said that she had refused a “reasonable and lawful” direction. And that this resulted in “serious and imminent risk” to the health of the former employee. Health Generation argued that despite the absence of a direct directive from them, the principles of confidentiality were implicitly understood by Ms Goss.

Smiling-female-employee-recording-content-with-a-microphone-and-laptop-at-home.
Smiling female employee recording content with a microphone and laptop at home. Sometimes this leads to a second job, which may breach your employment contract.

Was dismissal justified? Fair Work decides.

At Ms Goss’ unfair dismissal hearing, the Fair Work Commission had to consider whether actions constituted misconduct justifying immediate termination. It found that the direction to maintain confidentiality was lawful. However, the direction was deemed unreasonable given the circumstancediss. Namely, Ms Goss’ mental health concerns and the stringent lockdown measures in place due to COVID-19.

The Fair Work Commission said that it was “manifestly unreasonable and unrealistic” for Health Generation to insist that Ms Goss not rely on her partner for emotional support. It therefore ruled that her dismissal had been unfair. 

Following the ruling, the commission instructed both parties to consider negotiating a settlement to address any potential remedy for Ms Goss’s unfair dismissal.

Confidential-file.
Careful what you take from your employer or publish. Defamation and breach of employment contacts are on the rise in the courts.

Conclusion to: Breaching confidentiality

A Whole New Approach can help you stand up for your rights if you have faced unfair dismissal, adverse action, discrimination or harassment. We have spent the last 30 years helping over 16,000 Australian seek justice through the Fair Work Commission. AWNA are not lawyers, however we are the nations leading representatives and workplace commentators.

We operate in every Australian state and territory and we offer a no-risk, no-fee service. But act fast, as Fair Work claims must be lodged within 21 days of your dismissal or unlawful termination.

Reach out today at 1800 333 666 for a no-obligation discussion of your situation

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