| Summary |
UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed as applicant had used respondent’s computer to retain offensive, racist and sexist material - Respondent’s policy stated retaining offensive material likely to lead to disciplinary action – Applicant agreed had signed and was given copy of policy – Respondent’s policy updated to include prohibited use and violations and penalties section – Applicant claimed unaware respondent’s policy had been updated – Authority found even if applicant unaware of updated policy was self-evident offensive material should not have been brought into workplace – Found respondent’s human resources manager (“M”) notified all employees of updated policy – Found applicant’s manager (“A”) discussed amended policy with applicant collectively and individually and was further discussion when applicant’s performance reviewed – Applicant’s co-worker found email of sexual nature printed by applicant – A found 18 emails in applicant’s email account of concern – Emails sent from applicant’s private email address and some forwarded to friends and family – A claimed 18 emails were offensive, racist and sexist – Applicant and support person, applicant’s father (“B”), attended investigation meeting with A – Found applicant stated at meeting was aware of respondent’s policy and agreed emails breached policy – A found four more offensive documents on applicant’s desktop – Respondent held disciplinary meeting – Applicant claimed did not receive copies of 22 items of concern when respondent sent disciplinary letter – Found likely applicant received copies of items before disciplinary meeting – B spoke on applicant’s behalf at meeting – B accepted ten items were offensive – Applicant dismissed - Respondent relied on ten items and further two items when decided to dismiss applicant - Found further two items relied on by respondent were also offensive – Found applicant retaining offensive material clearly breached respondent’s policy – Applicant’s lawyer sent most offensive item to Office of Film and Literature Classification (“OFLC”) for classification – OFCL held item was not criminal but most readers would consider item’s references to battered women and sexual abuse of children repugnant and sickening – Found respondent’s customers often went to workplace with families including young children – Found respondent’s branch where applicant worked had only one printer and offensive items could have easily been found by respondent’s customer – Found therefore was risk that offensive items could have been seen by others likely to be offended by material – Applicant claimed respondent had culture of exchanging email jokes and applicant unaware of consequences of actions – Found A took active steps to ensure employees were aware needed to comply with respondent’s policy – Applicant claimed dismissal predetermined – Found respondent properly considered all relevant information and alternatives to dismissal - Found irrelevant that OFLC did not consider most offensive item involved criminal offending – Found many people would experience horror and repugnance by applicant’s items that referred to sadistic cruelty, criminal acts and exploitation of children for sexual purposes – Found fair and reasonable employer would have dismissed applicant in all circumstances – Dismissal justified - GOOD FAITH – Applicant claimed respondent had breached duty of good faith as respondent failed to provide applicant with employment agreement, performance management documents and did not identify parts of policy respondent considered applicant had breached – Found respondent relied on breach of policy not employment agreement when dismissed applicant – Found parties discussed acceptable content at applicant’s performance review and applicant aware job potentially at risk – Found although respondent should have specifically identified documents and how breached policy, applicant aware of nature of concerns and how policy had been breached – Found no breach of good faith - Sales Assistant |