| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct - Summary dismissal – Applicant dismissed for forwarding email from father to others, including work colleagues – Respondent claimed email objectively objectionable/pornographic or offensive, and applicant breached house rules by forwarding it – Email images clearly intended to shock and ridicule – Notwithstanding house rules about offensive or inappropriate material, no disciplinary action taken against colleagues who received, viewed and retained email – House rules ambiguous whether computer misuse misconduct or serious misconduct - Because application of policy not consistent, did not follow email automatically amounted to serious misconduct - Therefore its application, objectively measured, could not be fair and reasonable - Section 103A Employment Relations Act 2000 (ERA") required respondent to have regard to policy, whether policy appropriately applied, and other relevant factors – Some of general manager’s conclusions that content of email objectionable/ pornographic or offensive unsustainable - Opinions about what objectionable/pornographic or offensive notoriously subjective - Fair and reasonable employer would have gone beyond personal views, those of colleagues and others, and sought more reliable objective measures - On objective basis, fair and reasonable employer would not have concluded content objectionable/pornographic or offensive – Objective “bar” as to what objectionable and injurious set well above content of applicant’s email – Authority reached conclusion, notwithstanding respondent’s right to determine what constituted offensive or inappropriate, because of requirements of s103A ERA – Objective considerations militating against finding of serious misconduct included where email originated from, and its actual effect – Dismissal unjustified - Remedies - Applicant under current warning for breaching email policy – Needlessly forwarded email and acknowledged should not have - Respondent specifically consented to applicant sending some jokes - Contributory conduct 25 percent - Length of service two years two months – Administrative assistant" |