There appears to be no end to the twists and turns to the Enemalta oil scandal story. As the plot thickens over the mismanagement and lack of basic correct procedures in the buying of oil for power generation, a subsidiary issue has now arisen that has further illustrated the poor ethical standards that appear to have also dogged the corporation.
It has to do with the keeping of sensitive information by a corporation executive when he left his job as finance chief with the corporation.
When the matter came up in a sitting of the Public Accounts Committee after a corporation finance officer produced two files containing sensitive information, the MPs present at the meeting could not understand how the officer held on to the corporation files.
They could hardly be blamed for expressing surprise, for what sense does it make to allow an employee, let alone, a chief finance officer, to take with him confidential information? Not only that but both this officer as well as chief executive officer were also allowed to keep their computers when they left the corporation. It is pertinent to keep in mind that the financial officer had taken the files containing the sensitive information with him with the blessing of the CEO.
All this turns on its head what is considered as normal procedure, that is, that employees ought not to take with them company property when they leave their job. Confidential information is, of course, also company property and falls under trade secrets, which, in most countries of the European Union, are protected under specific laws.
Malta may not have a specific law as such but, in cases of infringement, action can be taken under the Criminal Code. The relatively recent amendments to the Civil Code also cover fiduciary obligations insofar as information is concerned.
Although there has not been any allegation of misuse of confidential information for personal gain in the issue that has arisen, the matter obviously raises issues of ethical standards and loyalty that should not be taken lightly. It is not simply a question, legal or otherwise, of whether an employee was authorised or not to take sensitive information with him when he left the job. The question is one of correct behaviour. This applies not just to people occupying high positions within a company but to others as well, irrespective of whether or not their employment contract carries ‘non-disclosure’ and ‘non-compete’ clauses.
As one expert consultant, Vivien Irish, remarks so well, employees should be aware that they have what is known as ‘duty of care’ or a ‘fiduciary duty’ towards their employer. This applies even if there is nothing written into an employment contract or if there is no such contract.
In the Enemalta case, one of the executives joined a bunkering oil company after leaving the corporation and the other sought work in the oil industry. Naturally, people switching jobs with competing firms or with firms engaged in a related activity are free to use all the skills they may have acquired in their work but there is always what is called the ‘inevitable disclosure doctrine’, which presumes that a person who has been in possession of confidential information in one job is likely to use such information in a similar job elsewhere. That is precisely why ethics and loyalty are so important.
The above leads to the conclusion that allowing executives to take files, or computers containing confidential information, was not the right thing to do.