By Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.
In Jones v Bayview Credit Union (“Jones”), an employer wrongfully dismissed an employee due to allegations that the employee disclosed confidential client information, violating confidentiality policies and procedures. Although the employee had accessed client information in the context of providing services to another client, this practice did not breach any client’s confidentiality rights. Instead, the employee remained alert to relevant privacy issues while accessing the confidential information of one client while assisting another.
The fact that the employee had viewed the client’s parents’ banking information while meeting with the client had no impact on the parents’ rights to confidentiality.
The employer was a credit union in New Brunswick with seven branches. The credit union carried on business providing financial services to its members. The employee worked for the employer as a financial services officer from December 19, 2016, until the date of his dismissal, September 13, 2019. He had a clean disciplinary record, being described as a “fully satisfactory” employee in his performance reviews. Although he had, in some instances, failed to follow proper procedures and in other cases had exceeded the limits of his authority, the employer’s response to these transgressions was not disciplinary in nature, instead involving mere instructional coaching. In no instance did the employee receive a written warning concerning any issues in his work performance.
The employee’s meeting with the client
On September 13, 2019, the employee met with a client and his wife who wanted to discuss possible relief on payments for a recent loan. The couple was very upset due to financial struggles and difficulties repaying what they described as a loan, which was being repaid in accordance with automatic monthly withdrawals from their account. The employee noticed payments being withdrawn from the client’s accounts but saw no evidence of them having received or even applied for a loan.
The client insisted he had a loan with the employer and rejected the possibility that he might have a loan with another institution. However, the client was also confused as to what documents he had signed and was unable to provide any useful details. To add to the unusual nature of the automatic withdrawals, no notes on the account gave any clues as to the source or nature of the withdrawals. After further investigation, the employee finally learned that the automatic withdrawals were being deposited into the client’s parents’ bank account.
When the client learned that the alleged loan payments were going into his parents’ account, he guessed that the loan was a joint loan with his parents with the latter as the primary borrowers. The client insisted that the employee investigate the nature of the loan and discover the nature of his parents’ connection. The employee looked into the client’s parents’ account and discovered that the parents did indeed apply for and activate a line of credit for the purpose of helping their son’s financial situation. The details in the parents’ account confirmed some of the details the son had provided. The loan as detailed in the parents’ account showed that the son was to repay his parents $150.00 every week while also showing that he was to repay $150.00 every two weeks.
The employee did not tell the client any of the information he had learned from investigating his parents’ account. The reason for his decision to maintain the confidentiality of the information found in the parents’ account was that the son’s and parents’ accounts were not linked. Instead, the employee merely told the client about possible solutions to his issue, explaining features and repayment options regarding lines of credit, such as the possibility to lower monthly payments. The employee further encouraged the client to visit a different branch to verify that the plan he had signed up for was correct and to resolve any errors. The employee also recommended that the client check-in with his parents to see if he could get relief on the amount being transferred weekly.
The employee’s actions were in line with his understanding of the employer’s policies on assisting members, which encouraged employees to take a proactive approach to find solutions and refer them to appropriate resources. While attempting to resolve the client’s issues, the employee remained aware of the privacy issues at hand. The employee did not reveal that the client’s parents had taken out a line of credit and generally used his 12 years of experience in the banking industry as a guide to avoiding breaching the confidentiality rights of the parents.
The employer’s dismissal of the employee
On September 13, 2019, the employer dismissed the employee for cause, although it paid him two weeks’ compensation. The cause for dismissal, according to the employer, was that the employee had allegedly disclosed the confidential information of the parents during his meeting with the client. Allegedly, the employee had revealed this contravention during a regular review meeting.
The employee did not breach confidentiality policy
However, the employee disputed the fact that he had revealed such disclosure and furthermore disputed the breach itself. In the end, the employee was deemed to be credible and his story was accepted over that of the employer.
Considering that the employee did not disclose anything to the client and his partner that violated the employer’s policies and procedures as well as not telling his employer that he had disclosed any such information, the employer had no grounds to dismiss the employee for cause.
Employers must have a solid basis for dismissal for cause
Jones illustrates the importance of taking an objective approach to dismissing employees for cause. The employer, in this case, seems to have gotten carried away with what is considered to be a breach of an important consideration, namely, confidentiality in a sensitive industry. Although important considerations must be taken seriously, employers must approach possible breaches with an objective perspective and only discipline conduct which in fact merits a response.