In a recent X-rated tale a summary termination was found to constitute unfair dismissal, even where an employee's misuse of electronic communication provided a sufficient reason for termination.
The Applicant was employed at Australia Post's Melbourne consolidation centre and over a period of 18 days sent a number of pornographic emails, including one enigmatically entitled 'Grandmothers of Brazil', to colleagues and a contact outside the organisation.
After detecting the correspondence through an electronic filtering system, Australia Post launched an investigation into the Applicant's conduct, and subsequently terminated his employment, without notice or payment in lieu, for multiple breaches of company policy.
The Applicant commenced unfair dismissal proceedings against his former employer, arguing that:
- the organisation's culture tolerated the exchange of inappropriate emails; and
- several other employees had engaged in similar conduct and had not been dismissed.
Naïve Conduct but not wilful disregard of policy
Fair Work Australia (FWA) accepted that the Applicant had breached the relevant Australia Post policies, but characterised his conduct as naïve and falling short of a calculated or wilful disregard of company policy.
The Tribunal confirmed that an employer is only entitled to summarily dismiss an employee for serious and wilful misconduct, and found that in this case, summary dismissal was disproportionate and contravened the unfair dismissal protections in the FW Act.
In reaching this conclusion FWA was influenced by evidence that:
- the Applicant had limited experience with computers and never intended to repudiate his contract of employment;
- Australia Post had applied its policy inconsistently – the Applicant had received the email from other work colleagues and none of these employees had been subject to disciplinary action;
- the Applicant's conduct was unlikely to damage the company's reputation given all external emails were sent to his sister-in-law (at her request…).
In an unusually severe reproach to the employer, in addition to requiring the reinstatement of the employee, FWA determined that Australia Post would be ordered to pay to the Applicant an amount equal to the remuneration lost by the Applicant from the date of dismissal to the date of reinstatement, a period of 13 months.
Implications for employers
The moral of this racy yarn, is not only that an employer should carefully consider all the circumstances of the case before determining whether the conduct is serious enough to warrant summary dismissal, but also that while company policies are essential in clarifying the boundary between acceptable and unacceptable behaviour in a workplace, in order to be effective tools in the disciplinary process policies should be applied consistently and fairly, as well as explained clearly, to all existing and new employees.