Calling your boss a wanker isn’t always grounds for getting sacked, Fair Work Commission rules

If your workers regularly use your company email system to distribute porn and other questionable material, you can’t fire one of them for calling you a wanker, if a recent Fair Work Commission decision is any guide.

In May last year, Paul Cronin was dismissed from his job as a financial controller for Choice Homes after sending around an email where he indirectly called chief executive Tony Knight a wanker.

The events leading up to the dismissal involved a reply to an all-staff email sent by the Choice Homes’ construction manager that said Knight had acquired a Lamborghini after 20 years working at the company founded by his parents. Cronin responded to this email by forwarding to all staff a mock resume for Knight, which listed ‘excessive masturbation’ under the CEO’s hobbies and interests. 

Knight consulted his lawyers and fired Cronin. But the Fair Work Commission agreed with Cronin that given the workplace culture at the firm, and the type of things that didn’t raise an eyebrow at the company, calling the CEO a wanker was par for the course, and so not enough to warrant a dismissal.

Knight’s legal team also argued that the email constituted sexual harassment, but the Fair Work Commission was not swayed by this argument either.

Evidence put before the Fair Work Commission found Choice Homes’ email system was regularly used to send what the tribunal described as “hard-core pornography”, as well as sexist and racist material.

“Those emails run the full gamut of offensiveness and it appears that no stone was left unturned and no depths unplumbed by staff of Choice Homes, in their exchange and dissemination of pornographic, sexually explicit, sexist, racist, scatological and generally derogatory material using the Choice Homes email system,” the deputy president of the Fair Work Commission, Ingrid Asbury, noted.

Senior management were involved in the dissemination of this material, including the IT manager, who managed a formal work group called “The Porn Stars”, which Asbury noted “speaks volumes about the attitude of senior management of Choice Homes to the dissemination of highly offensive material in the workplace.”

Because of this, even though the email was “ill-considered and potentially offensive to Mr Knight”, it did not make a valid reason for Cronin’s dismissal.

Industrial relations lawyer Peter Vitale tells SmartCompany the ruling shows businesses have to enforce formal rules and norms for breaching those norms to be considered grounds for dismissal.

“Because the company didn’t appear to make any significant attempt to control the flow of email traffic, and because the commission said that the email in this case was clearly intended as a joke, that the company did not even get to the first basis of having a valid reason for termination,” he says.

“What this case really highlights is that any employer who wants to rely on email as a basis for termination needs to, firstly, ensure that they have a very clear policy regarding the usage of the company’s email system, which prohibits communications of this nature. Secondly, they need to ensure the policy is clearly communicated to all staff. They also need to ensure the policy is enforced fairly and consistently.

Vitale says the workplace clearly had a culture around the sort of material, which meant the Commission took the view that the company “simply overreacted” to a Cronin’s actions.

“It shows that unless you have clear policies which fairly prohibit the use of sending of certain images or language, then it’s very difficult to suddenly say, ‘this one is extremely offensive’ over something that’s at the lower end of the scale compared to the other types of material sent around the company.”

Cronin did not ask to be reinstated at his job, and was instead awarded compensation of $77,800, which was adjusted downward by 20% to $62,000 to account for the fact that he “did make a contribution to the situation in which he found himself”.

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