FWA reinstates employees dismissed for inappropriate email usage

by Iain Hopkins27 Sep 2012

Engineering company and defence force contractor Thales Australia has been forced by Fair Work Australia to reinstate three employees it had dismissed for email misuse, including the sending of pornographic images.

In Flanagan and others v Thales Australia Limited T/A Thales Australia [2012] FWA 6291 (7 September 2012), evidence was given that Thales Australia had been monitoring the workers’ emails without notifying them despite a policy that notification take place “as soon as practical”.

The exchanging of email material continued during this time without the company taking any action.

Commissioner Geoff Bull heard that Thales began an examination of employees’ mailboxes on 11 August 2011 after a complaint about pornography.

The mailboxes of 96 employees were reviewed and 330 emails containing inappropriate material were identified.

The three workers – who were all long-tenure employees with clean records – were interviewed on 27 February 2012, and soon after were summarily terminated on the grounds of misconduct.

However, the employees then lodged unfair dismissal claims, arguing they were unaware of the company's "internet and email security framework policy" and hadn't received training specifically addressing email usage. They also claimed this was also the case for other workers at the Mulwala site in the Riverina district. One man said he thought it only applied to accessing pornography on the internet.

Thales also failed to explain the lapse of time between an investigation into email misuse that finished in September 2011 and the employees' dismissal in February 2012.

Commissioner Bull found the employees' misuse of email did constitute a valid reason for dismissal, but a number of other factors meant the dismissals were harsh, unjust or unreasonable. He found the applicants were not given a period to digest the allegations against them or to seek advice and respond in a "more informed manner".

The respondent also failed to explain the lapse of time between an investigation into email misuse that finished in September 2011 and the employees' dismissal in February 2012. The Commissioner further noted that no evidence was produced that the employees were trained in relation to the internet and email security framework and the respondent had not considered the consequences of the dismissal on the employees, who lived in the region and failed to get equivalent work elsewhere.

Counsel for the three workers told FWA that they did not seek to deny they had sent and received inappropriate emails contrary to the policies of Thales. He pointed to the “honest and forthright manner” in which their offending conduct was acknowledged during the interview process.

He said that despite Thales’ policy stating that employees and their manager will be notified as soon as practical that monitoring of an employee’s email is occurring, this did not happen until five to six months after the monitoring commenced.

Counsel also argued that the offending emails were between friends, there was no complaint made, the actions were acknowledged and remorse was expressed.

In reply, Thales referred to their duty as an employer to provide a working environment free of behaviour that has the potential to amount to offence.

Thales had taken into consideration the workers’ long service, good employment record and the consequences of the terminations. However, these considerations did not outweigh the need to terminate due to the “very serious breach” of policy.

In his decision, Cmr Bull said there was no doubt that termination of employment from a large employer in a regional area had resulted in catastrophic consequences for workers, including financial loss and stress.

“I have no reservation in concluding that the workers are remorseful for the conduct they engaged in by their demeanour exhibited in the witness box and do not consider as a realistic proposition that they would reoffend,” Cmr Bull said.

He concluded that despite there being a valid reason for the terminations, the circumstances attached to the terminations made them harsh, unjust or unreasonable.

“No particular matter alone results in this conclusion but rather the combination of circumstances and deficiencies in the process undertaken by Thales,” he said.

“I would make it clear that that this decision is not intended to in any way undermine an employer’s right to enforce appropriate policies regarding the use of email at the workplace.”

Cmr Bull ordered the workers be reinstated within 14 days but as they should bear some responsibility for their actions did not order they be reimbursed for their lost wages.

 

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