The application was made “ex parte”. That means that the employer’s solicitors applied for it and the court made the order without hearing from the employee’s solicitors. Often the reason ex parte orders are made because the person seeking the order argues that if the other side is put on “notice” (i.e. told about the application) that might result in the information sought being destroyed or removed.
Mr B. held a senior managerial role with a Runanga as a Senior Manager in their health services. He was dismissed for serious misconduct He had access to confidential information about the employer’s business. While he was still employed in December 2008 he threatened to disclose information about the Runanga’s business to others in an apparent retaliation to strategies with which he disagreed. The employer used this as evidence of an arguable propensity for Mr B employee to misuse confidential information and to use information which belonged to them in subsequent employment.
When he was dismissed on 27 February 2009 Mr B. was asked to return the employer’s property (as he was obliged to do contractually) and specifically asked not to delete any information from a laptop computer and mobile phone that were in his possession and that belonged to his employer.
The employer provided strong evidence to the Employment Court that on three occasions, two prior and one after his dismissal someone removed 118 files from the laptop computer onto a memory device. All those files removed related to the employer’s operation. There was also evidence that the employee deleted about 2,000 files and folders from the laptop computer using what was described as a “specialist PC wiping software” which permanently erased the information.
The Runanga was in competition with other Maori providers for health contracts with District Health Boards and the Ministry of Health. The Runanga argued that it was in negotiations with a PHO to obtain funding for Maori health initiatives and information to which Mr B. had access was confidential commercial information and if it were used by a competitor would unfairly and severely disadvantage the employer.
The Chief Judge accepted that there was a real risk of misuse of confidential information and breach of the parties employment agreement. He ordered that a search could be made and permitted persons to enter certain premises for the purpose of securing and preserving “evidence” .That is the information allegedly in Mr B’s possession.
Why this decision is important is that if you have reason to believe that an employee or a former employee has information or property belonging to you now you can obtain a search order from the Employment Court whereas previously an employer had to go to the High Court.
