USE OF CONFIDENTIAL INFORMATION RECEIVED IN ERROR

[Ivan Israelstam]

The Financial Manager, by mistake, sends to the Accountant an email containing all the salaries of the company’s staff. The Accountant is not authorised to see this confidential information. He notices in this email that all employees’ salaries, except his, have been restored to normal after everyone’s salary had earlier been cut due to the Covid lockdown. He makes a complaint to the Financial Manager who refuses to restore his salary because “the Accountant’s normal salary is “too high”, and institutes disciplinary proceedings against the Accountant for reading information that he is not authorised to see. Is the Financial Manager entitled to: (a) refuse to restore the Accountant’s salary to its normal level and (b) to discipline the Accountant for reading the email erroneously sent to him by the Financial Manager?

[Ingrid Lewin]

There was no basis for the employer to not restore the accountant’s salary. The fact that the employer is saying the reason for not restoring the accountant’s salary is because the accountant’s normal salary was “too high” indicates that the agreement for the reduction was abnormal for everyone and that the intention was to restore everyone’s salaries once things normalized post lockdown.
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In order to be disciplined the accountant must have know or ought to have known that by opening the email he would be disciplined. Thus, If the accountant knew, before he opened the email what it contained and that he was not authorized to read the content and that he knew, by doing so, he would face disciplinary action, then, yes, he should be disciplined. Otherwise, no.

The person who should be disciplined for gross negligence is the Financial Manager for making the mistake which has had consequences.

[Patrick Deale]

Question (a): No – the Financial Manager can’t refuse to restore the Accountant’s salary. He was not entitled to reduce his salary without good reason or prior consultation. The reduction would constitute a unilateral change of a condition of employment. After he has restored the salary, the Financial Manager would be entitled to consult with the Accountant about the apparent salary misalignment. If the Accountant accepts the reduction, the issue would be resolved. If he rejects it, the Financial Manager could proceed with the s189 procedure to correct the misalignment.

Question (b): No – he can’t discipline the Accountant for simply reading the email. The Accountant was apparently an innocent party when he received and read the email. He could be disciplined for misconduct if he then shared the confidential email with others who were not entitled to see it.

[Author]

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