In every business enterprise, there is certain information that employer’s wish to remain confidential. This is particular vital in the global era where there is lower job security, higher job mobility and situations where employees work multiple jobs. Employees are bound by the duty of confidentiality, where they are forbidden to disclose certain information obtained during the course of employment. The purpose of this paper is to explore the nature and extent of this duty of confidentiality and legal options available to the employer if this duty is breached. The main focus will be on the application of this duty towards customer lists.
What is the nature of the duty of confidentiality?
Firstly, it is imperative to analyse the term, ‘confidential information’. Confidential information is often thought to be a form of property, but in Breen v Williams, Chief Justice Brennan stated that what is important is the nature of the relationship and not the particular information itself. Thus, confidential information can be classified as information supplied during a relationship of confidence and it is inherent in that relationship that the information is to remain confidential.
Hence, the duty of confidentiality is equitable, as it imposes a personal obligation on the person who knows the information not to disclose it. This has been unanimously approved in the High Court Case Farah Constructions Pty Ltd v Say-Dee Pty Ltd.
President Kirby further developed this doctrine by listing factors which helps in determining whether information is confidential in Wright v Gasweld Pty Ltd. Factors which suggest that information is confidential are if it required skill and effort to acquire, whether the employer had guarded the information cautiously, or the employee is made aware that such information is confidential.
What is the extent of the duty of...