In a recent decision of the South Australian Industrial Relations Commission (SAIRC), Commissioner McMahon upheld the termination of an employee who sent an offensive email and lied during the investigation into the matter.

Implications for employers

This case highlights the importance of an employer affording procedural fairness to an employee, both in carrying out an investigation into alleged misconduct and in terminating an employee’s employment.

Background: facts

Stephen Kirkham was employed as a Corrections Officer with the Department for Correctional Services (DCS) for over 10 years until his dismissal.

On 18 July 2011, the following email was sent from a DCS employee’s email account to all employees within DCS:

Hello people, just a note to say that i am homosexual and i am looking for like minded people to share time with.

DCS’ Chief Executive initiated an investigation to find out who had sent the email.

The Investigations Officer proceeded to interview all Corrections Officers present on the day the email was sent. Before his scheduled interview, Mr Kirkham attended the General Manager’s office with his union representative and admitted to sending the email. Mr Kirkham then attended an interview with the Investigations Officer and again admitted to sending the email. Mr Kirkham also admitted to shutting down the computer system, which occurred at the same time the email was sent.

The following day, Mr Kirkham attended another interview with the Investigations Officer and retracted his admission, claiming he had been coerced by fellow employees into making the admission. Mr Kirkham was suspended with pay pending a disciplinary investigation.

The investigation report was completed in September 2011. The report:

  • concluded that Mr Kirkham breached the Public Sector Act 2009 (SA) (PS Act); and
  • recommended the Chief Executive consider instigating formal disciplinary action.

In October 2011, the Executive Director of Custodial Services invited Mr Kirkham to make written submission in relation to possible disciplinary action based on the allegations that Mr Kirkham had sent the email and undertaken inappropriate Wikipedia searches.

In his response, Mr Kirkham admitted to the Wikipedia searches but denied that he was the author of the email.

DCS’ decision

In November 2011, the Chief Executive advised the Commissioner for Public Sector Employment that based on the investigation, DCS had determined that Mr Kirkham was at the computer at the time the email was sent and on balance of probabilities, Mr Kirkham had sent the email. In sending the email, Mr Kirkham contravened DCS’ policies, the code of ethics, s 87(1) of the Equal Opportunity Act 1986 (SA) and s 21(1a) of the Occupational Health and Safety and Welfare Act 1986 (SA).

In December 2011, the Chief Executive advised Mr Kirkham that his misconduct and failure to answer questions truthfully during the course of the investigation were so serious that termination was the appropriate remedy based on DCS’ loss of trust and confidence in him. DCS invited Mr Kirkham to provide a response in writing, including reasons why his employment should not be terminated. Mr Kirkham responded to the allegations, maintaining he was not the author of the email and further stating that he was confused and nervous when being interviewed by the Investigations Officer as he felt that the Investigations Officer was being dismissive of him. DCS considered the response, but ultimately decided to terminate Mr Kirkham’s employment summarily.

Mr Kirkham made an application to the SAIRC alleging that his termination was harsh, unjust or unreasonable. He claimed that the investigation was seriously inadequate and did not afford him procedural fairness. He sought reinstatement.

Decision

Commissioner McMahon considered whether the termination was harsh, unjust or unreasonable under s108 of the Fair Work Act 1994 (SA) and whether DCS had complied with s54(3)(a) of the PS Act in terminating Mr Kirkham’s employment. He ultimately found in favour of DCS.

Commissioner McMahon found that:

  • Mr Kirkham’s evidence was not credible as he changed his position twice following the incident;
  • the Investigations Officer conducted the interviews with Mr Kirkham in a professional and considerate manner and his demeanour was not found to be dismissive or aggressive;
  • the Investigations Officer was an honest witness and his answers were direct and credible;
  • there was no evidence that any of Mr Kirkham’s fellow employees had coerced him by pressuring him to make an admission;
  • DCS had complied with s54(3)(a) of the PS Act by informing the Commissioner of the grounds on which it proposed to terminate the employment of Mr Kirkham and the processes leading up to the proposal to terminate; and
  • Mr Kirkham was afforded procedural fairness.

The parties agreed that the inappropriate Wikipedia searches undertaken by Mr Kirkham in themselves were not overly significant. Accordingly, the searches were ultimately not taken into consideration in determining the matter.

Commissioner McMahon determined that it was reasonable for DCS to conclude, on the balance of probabilities, that Mr Kirkham had sent the offending email and lied during the investigation. Commissioner McMahon further held that the termination of Mr Kirkham’s employment was a “reasonable remedy” and dismissed the application.

This article was written by Zsofia Guczi-Kidd, law graduate.