The Fair Work Commission held that dismissal of an employee who sent abusive emails from work email address was not unfair.

In Issue

  • Whether the dismissal of an employee who sent abusive emails from his work email account was unfair

The Background

Mr Hayes had an IT related role at Murdoch University (the University). In August 2016, Mr Hayes sent two emails to the Australian Bureau of Statistics (ABS) expressing concerns about his family’s personal information being collected electronically and being vulnerable to theft. Mr Hayes used abusive and vulgar language in the emails. The emails were sent from the University email address with the University’s logo and Mr Hayes’ signature. He also copied a member of the Federal Parliament on one of the emails and forwarded both emails to four of his friends “just for a laugh”. Following receipt of the emails, the ABS wrote a complaint to the University about Mr Hayes’ conduct. The University conducted an investigation, found that Mr Hayes engaged in serious misconduct and terminated his employment. Despite being terminated for serious misconduct, Mr Hayes received a four weeks’ pay equivalent to the notice of termination that would otherwise have been required and accrued leave entitlements. Mr Hayes made an unfair dismissal application to the Fair Work Commission.

The Decision at Trial

Deputy President Bull held that Mr Hayes’s dismissal was not harsh, unjust or unreasonable. In making this decision, the Deputy President looked at the criteria for considering harshness listed in section 387 of the Fair Work Act 2009 (Cth). In his view, the sending of the emails by Mr Hayes provided the University with a valid reason for dismissal. Mr Hayes engaged in misconduct by using vulgar and offensive language in the emails that identified the University and Mr Hayes’ role at the University. This conduct was in breach of the University’s Code of Conduct and policies. In this regard, the Deputy President observed that “valid reason” is assessed from the perspective of the employer, where “valid” has its ordinary meaning of “sound, defensible and well founded”.

Deputy President Bull further found that Mr Hayes’ conduct satisfied the meaning of serious misconduct in the University Enterprise Agreement as it was wilful conduct which constituted a serious impediment to the carrying out of his duties. The University Enterprise Agreement permitted the University to terminate Mr Hayes’ employment for serious misconduct. This supported the conclusion that Mr Hayes’ dismissal was not unfair.

Deputy President Bull did not consider that the length of Mr Hayes’ employment with the University (four and a half years) was of such duration as to warrant serious consideration as a mitigating factor. The Deputy President was also influenced by the fact that Mr Hayes’ service was not unblemished (he had a previous warning for sending an inappropriate email to a colleague), his approach to investigation was less than co-operative and he did not express any genuine contrition.

The Deputy President also did not think that the prospect of Mr Hayes suffering economic loss as a result of termination was a mitigating factor. In his view, this was a common result of termination and, as such, did not deserve any special consideration.

Implications for you

In the digital age the line between work and non-work related communication can become blurred. This decision is a good example, however, that, although an employee may not intend to damage the reputation of their employer by using work email for personal communications, in appropriate circumstances an employer will be entitled to terminate that employee if the nature and content of that communication constitutes serious misconduct.

Stephen Hayes v Murdoch University [2017] FWC 2174