The District Court of New South Wales has rejected a defamation claim made by an employee suffering from cancer, whose sick leave details were circulated to other staff by her employer.1

Facts

Erbas & Associates Pty Ltd (Erbas & Associates), a consulting engineering company, became concerned with levels of employee absenteeism and circulated an email attaching an extract of a shared employee diary. In the accompanying email, Mr Ken Erbas, managing director of Erbas & Associates, raised concerns regarding productivity and the ‘hurt’ occasioned to the company and other employees by high levels of employee lateness and absenteeism.

To underscore his concerns, Mr Erbas circled a number of entries in the electronic diary showing days on which employees were absent or late. The majority of these absences related to an employee, Ms Enders, who, at the time, was undergoing chemotherapy for breast cancer.

Ms Enders brought proceedings for defamation against Erbas & Associates and Mr Erbas.

Decision

Judge Gibson held that circulating the electronic diary to Erbas & Associates’ 20 employees could be considered defamatory, in that it implied that Ms Enders:

  • did not act fairly to her employer by unjustifiably taking time off work
  • did not act fairly to other staff; and
  • hurt management in the running of projects by unjustifiably absenting herself from work.

However, Judge Gibson rejected Ms Enders’ arguments that by circling the examples of lateness and absenteeism in the employee diary Mr Erbas was implying that Ms Enders was a ‘malingerer’ or that she unjustifiably took time off work by falsely pretending she was sick.

The Defamation Act 2005 (NSW) allows, in limited circumstances, for the publication of potentially defamatory material, provided it can be demonstrated that it was “reasonable” to publish the material.

In addition, potentially defamatory material can be published, provided the person publishing it can prove that it was fair to do so for legal or moral reasons, because it directly concerned their interests - whether business or personal - and that it was not done with malice or for an improper purpose.

In this case, Judge Gibson found in favour of Erbas & Associates and rejected Ms Enders’ claim. In making this finding, Judge Gibson held that the email and employee diary circulated by Mr Erbas could be considered defamatory if they had been sent for a malicious purpose. However in this situation, Mr Erbas had circulated them to address genuine operational concerns regarding employee attendance, therefore he had not defamed Ms Enders.

Judge Gibson also found that Ms Enders did not suffer “hurt to feelings, or harm to reputation” because of the very unusual circumstances of the publication, namely an email from an employer to all of its employees about all of their conduct in relation to the taking of holiday and sick leave and coming to work late.

Bottom line for employers

Despite the finding for the employer in this instance, it is worth noting the risk involved in singling out individual employees in group communications. Alternative means of addressing legitimate managerial concerns, such as private meetings with those employees concerned, represents a more prudent approach to tackling these issues.

Claims of defamation can also arise in other contexts during the employment relationship. For example, in respect of an email to staff regarding a departing employee. Employers must always be conscious of what they say in these communications.