Legal

Employer ordered to pay compo to fired worker who had thousands of pornographic emails on work computer

Emma Koehn /

A New South Wales health organisation has been ordered to pay a former employee eight weeks’ pay after dismissing her for storing thousands of pornographic and inappropriate messages on her work email.

The staff member’s unfair dismissal case was decided at the end of April by the Industrial Relations Commission of NSW, where she launched proceedings after her position at the Mid North Coast Health District was terminated in January 2016.

The employer had terminated her position after it made three specific allegations around the misuse of Health NSW systems and devices between 2006 to 2014.

According to court documents, the employer discovered the worker had “received, stored and sent” inappropriate messages through her work account, including 1256 emails that were stored in an folder labelled “funny emails”.

In response, the staff member pointed to her impeccable work history over a 12 year period, and argued the employer’s email system should have prevented inappropriate content from entering inboxes.

While “Conditions of Access” notices appeared on workplace devices outlining prohibited content, the employee said these were set out across three screens and she claimed few staff actually read them.

In his judgment, Commissioner John Stanton observed the employer had “implemented a series of workplace policies which made it abundantly clear to employees there was a prohibition on the sending and receipt of inappropriate emails in the workplace”.

He said “employees have to be accountable for their actions” and the staff member should have been aware that storing the messages was a breach of code of conduct policies that had been communicated to her.

“Should [employees] decide to embark upon a blissful exercise in breach of those standards, they cannot then seek to extricate themselves from the obvious disciplinary consequences,” he said.

“Having regard to the nature of the allegations put against the applicant, the decision to dismiss was both sound and defensible,” he said.

However, while Commissioner Stanton found the correct procedure had been followed and the employer was just and reasonable in its choice to dismiss the worker, the termination was still “harsh”.

While reinstatement was not appropriate, the employee deserved compensation, Stanton said.

“I have given consideration to the mitigating factors concerning the applicant’s difficulty in obtaining alternative employment in the general Port Macquarie area, her personal, family and dire financial circumstances that were canvassed during proceedings. I have also taken into consideration that she had not previously been warned for misconduct. Against that backdrop, I have determined that the applicant’s dismissal was harsh,” he said.

Claims that an unblemished employment record should be taken into account in this case were rejected, with the Commissioner observing that long-standing employees have a significant responsibility to uphold company policies.

“I have not considered the applicant’s service as a mitigating factor. In my view, with some service of some 12 years’ service, the respondent was entitled to expect a high level of conformance with it policies,” Stanton said.

“Punishing the employer” vs protecting the employee

Despite finding the dismissal was harsh, Workplace Law director Shane Koelmeyer told SmartCompany the Commissioner acknowledged the employer has the right policies in place.

“There are a couple of good things they had done: They actually had workplace policies in place — step number one is good. Then, they made it clear to employees what the expectations were in relation to these policies,” Koelmeyer says.

Too often employers fail to outline both their expectations of employee behaviour and the corresponding potential consequences of failing to meet those expectations, Koelmeyer says.

While some SME owners may see the finding as unfair given the employer did everything it could, Koelmeyer believes the decision is not designed to punish them.

He says the decision not to give the staff member her job back shows the Commission found a good result for the parties.

“The fact that they didn’t reinstate her shows understanding that trust and confidence has broken down, clearly,” he says.

“When you make that decision to terminate, the worst thing is to have that person [come] back. So the fact she’s been given money is not to punish the employer.”

Instead, the decision will close the chapter for the parties and provide support to the worker who the Commissioner has said will find it difficult to find alternative work.

“It’s compensation for the difficulties she’s going to have — and she’s got eight weeks’ pay, which in all circumstances is not much.”

SmartCompany contacted Mid North Coast Health District but it was unable to provide comment on individual cases. The staff member could not be contacted prior to publication.

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Emma Koehn

Emma Koehn is a former senior journalist at SmartCompany.

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