The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A private bank employee has seen a $58,000 damages award against her former employer overturned after she breached its client confidentiality policies in deciding to complete work assignments at home.

The Court of Appeal, in a unanimous verdict, rejected the Industrial Tribunal’s finding that Avis Munroe, a two-year fiduciary billing officer with Itau Bank & Trust (Bahamas), had been unfairly dismissed as “unreasonable and illogical, and cannot be sustained”.

Appeal justice Isaacs, in delivering the court’s judgment, said it was “incongruous” and “inconsistent” for Industrial Tribunal vice-president, Simone Fitzcharles, to find the bank was justified in summarily dismissing Ms Munroe but, at the same time, also rule that she was unfairly terminated.

The Industrial Tribunal had based its verdict on a line in a November 4, 2016, letter that Ms Munroe signed authorising Itau personnel to inspect her computer, retrieve and delete the sensitive client information she had sent to her personal e-mail - something forbidden by the bank’s policies.

The second paragraph began with the phrase: “In order to avoid any adverse consequences of such action...”, and the Industrial Tribunal found this had gained Ms Munroe’s co-operation by promising her she would not be dismissed. However, Itau successfully argued on appeal that the letter was designed to provide it with an indemnity so it would not be exposed to adverse legal consequences when it went to her home and accessed Ms Munroe’s personal computer.

“Properly understood, there was nothing in that consent letter which could reasonably be interpreted as the appellant [Itau] having held out to the respondent a promise or inducement that she would not have been dismissed if she consented,” Appeal justice Isaacs ruled.

Tracing the background to the dispute, he wrote: “The events leading up to her dismissal were that on November 1, 2016, the respondent [Ms Munroe] forwarded confidential client information to her personal e-mail address without first obtaining authorisation to do so. This was contrary to the [bank’s] policies and procedures.

“The appellant confronted the respondent about the matter on November 4, 2016, and the respondent admitted to sending the e-mail without the requisite authorisation, but denied that the e-mail contained confidential information. Nevertheless, she apologised for her actions.”

This prompted the creation of the letter around which the unfair dismissal claim revolved around, as Ms Munroe authorised Itau staff “to access and go through her personal computer in her presence, and to delete any information from her personal e-mail regarding the appellant or its clients”.

The letter said: “In order to avoid any adverse consequences of such action, by counter-signing this letter you consent to authorised employee(s) of Itau to accompany you to your residence, go through your personal computer and, in your presence, delete any and all information from your personal e-mail and/or personal files pertaining to Itau and/or any of its affiliates and clients.”

Two Itau employees, Daniel Amorim and Cheryl Fox, accompanied Ms Munroe to her home and examined her laptop in her presence. The e-mail was confirmed as having been sent to the latter’s personal account, and Ms Munroe was terminated that same day “for a material breach” of Itau’s confidentiality, corporate information and electronic security policies.

Ms Munroe, in her witness statement, said she was working to reconcile information from both The Bahamas and Cayman company registries that was required for billing fees to Itau’s clients.

She alleged that she was “under a lot of stress and pressure to meet the deadlines of the respective projects that were going on simultaneously, and not being able to work beyond 9pm to get as much done as possible, I forwarded to my home e-mail address the reconciliation task that I was working on”.

Ms Munroe also said the e-mail she sent contained information “for the most part within the public domain, but for the account numbers which were needed for billing purposes, so that I could determine and distinguish what was truly outstanding to the Bahamas and Cayman registries”.

Addressing the consequences of her termination, she added: “I have suffered significantly. As a breast cancer survivor, insurance coverage is critical and loss of employment resulted in the termination of my private health insurance and lost coverage. As a result, I lost years of premiums and was not able to see my private doctors since November 2016 to May 2018, when I was finally able to secure meaningful employment.

“I spent over $11,112 in out of pocket expenses.... ltau’s insurance provider, Atlantic Medical, did not provide full coverage for anything cancer related, so I had to keep my individual insurance while I was employed with Itau. While I was employed, I was able to cover my private health insurance premiums. After I was terminated, I simply couldn’t afford to pay.”

Ms Munroe also alleged she was unable to find alternative employment for up to 17 months following her termination, and had to accept a much lower salary than she was accustomed to. She claimed she lost National Insurance Board (NIB) benefits that should have been paid when she was off sick.

However, Jacqueline Rolle, Itau’s general manager of fiduciary, testified that Ms Munroe had violated “Bahamian client confidentiality rules” through her actions. And Mr Amorim, Itau’s trust and operations manager, conceded under cross-examination that the laptop search and e-mail deletion had enabled it to “contain the risk to the bank”. However, he denied that the November 4 letter had induced Ms Munroe to co-operate, saying it was instead for the bank’s protection.

Appeal justice Isaacs, in deciding the dispute, said of Ms Munroe: “Notwithstanding the respondent’s assertion that she did not transmit confidential information from her work computer to her personal computer at home via the Yahoo portal, the overwhelming evidence adduced at the hearing before the [Industrial Tribunal] was that is indeed what she had done.

“The respondent was a bank employee who was aware that confidential information generated by the appellant was to be kept with strict regard to that confidentiality. She transferred the appellant’s information over an unsecure platform, namely Yahoo, thereby placing her employer’s information in danger of being made public.

“She did not have the requisite VPN (virtual private network) access but if she wished to work from home all that was necessary for her to do was to request authorisation to do so. This she did not do. Her supervisor’s statement to the effect that she should do whatever was necessary to get the job done could not be taken as permitting her to breach the terms contained in her employer’s handbook.”