| Summary |
UNJUSTIFIED DISMISSAL – Applicant dismissed for inappropriate email activity – Applicant claimed not treated equally as co-workers also forwarded inappropriate emails – Respondent argued dismissal justified as analysis of applicant’s computer revealed inappropriate sexually explicit emails – Respondent argued applicant not treated disparately as acknowledged emails of more sexually explicit nature, of greater quantity, and not remorseful compared to co-workers receiving lesser disciplinary consequences – Following audit into email use, applicant identified for further investigation – Respondent met applicant to discuss emails – Respondent outlined emails contravening email policy and particular emails of serious concern – Applicant accepted accurate record of computer use kept by respondent – Applicant claimed emails sent and received amidst culture where content not likely to offend – Respondent concluded applicant received and forwarded large number of non-work related emails negatively impacting on productivity – Applicant’s father critical about respondent not providing email guidelines and claimed applicant’s behaviour consistent with workplace culture – Following adjournment applicant dismissed – Authority found applicant given all information relied on by respondent and opportunity to provide explanation – Authority found conclusion open to fair and reasonable employer that applicant should have been aware of respondent’s internet policies, however, required wider consideration where widespread inappropriate email use – Applicant argued did not have true appreciation of boundaries of policy – Respondent accepted emails only sent externally to applicant’s partner and family members, however, concerned reputation brought into disrepute if further forwarding – Authority found fair and reasonable employer would have concluded real likelihood applicant’s behaviour and appreciation of standards shaped by co-workers behaviours – Found fair and reasonable employer would conclude applicant less likely to have properly comprehended seriousness of emails sent and breached policy in circumstances where many co-workers involved in exchange of emails – Found fair and reasonable employer would not conclude, applicant, with full knowledge of policies and expected standards forwarded inappropriate emails – Found more likely applicant acted in environment where others behaving in same way and where not clear about expected standards – Authority not satisfied fair and reasonable employer would consider applicant’s emails more offending than others and then use that as basis for increasing seriousness of conduct – Found fair and reasonable employer would not find quantity of emails increased seriousness of conduct – Found inadequate remorse not matter to increase seriousness of conduct – Authority found fair and reasonable employer would have found misconduct for which respondent entitled to impose disciplinary action, but not serious misconduct – Found fair and reasonable employer would have made disciplinary outcome falling short of dismissal – Dismissal unjustified – Remedies – Authority found applicant contributed to circumstances giving rise to grievance – Found although behaviour shaped by co-workers behaviour, applicant did forward inappropriate emails – Found 50% contributory conduct appropriate – Applicant sought reinstatement – Respondent argued could not have trust in applicant again – Authority found unfortunate blame attributed to respondent at disciplinary meeting – Found fact applicant stopped behaviour when properly aware inappropriate emails would not be tolerated supported future adherence to clear policies – Reinstatement ordered – Authority found $1,000 compensation appropriate after reduction for contributory conduct – Quantum of reimbursement of lost wages to be determined by parties – Storeperson |