FWC clears university for dismissing employee who sent abusive email

by HCA05 May 2017
The Fair Work Commission has concluded that Murdoch University was justified in dismissing an employee for sending expletive-laden emails to a staff member at the Australian Bureau of Statistics.

The employee wrote to ABS statistician David Kalisch in August last year complaining about the move to store data from the 2016 Census.

“Who the f*** do you think you are changing the scope of the census by collecting my family members’ personal data electronically to be stored indefinitely,” said the email.

“My family’s personal information is none of your f***ing business! I worked in IT Mr Kalisch and know (sic) you won’t (actually can’t) keep that data safe.

“Tell you what why don’t you just use the data you stole from me for all these years and put that in your f***ing Census!”

The email was copied to a federal member of parliament and after a few hours the ABS wrote to the university complaining about it.

"Irrespective of their personal opinions, I feel sure that you would expect a higher standard of conduct from staff engaging under the signature block and logo of your esteemed institution," the complaint read.

However, a few days later the employee wrote again to Kalisch concerning the news that the ABS census site had been hacked.

"No mention from you Mr Kalisch that any data was stolen during last night's DOS attack - positive about that are you? With hundreds of millions of dollars at your disposal you can't keep the servers safe for one night but I'm supposed to entrust you with my family's personal data storage for years?" the email read.

“Please send me a fine, PLEASE, I really want to have my day in court now you bunch of f***ing buffoons!”

The employee insisted his use of the university's email was inadvertent and not intended to damage the university.

He also argued that there was no evidence his actions had damaged his employer despite the emails being posted on Twitter by a journalist.

The university conducted an investigation into the employee’s actions and concluded the emails breached its Code of Conduct and equated to serious misconduct warranting dismissal.

The staff member was terminated and was given an ex gratia payment of four weeks’ salary.

The employee's application alleged unfair dismissal based on the following grounds:

● the respondent did not have a valid reason to terminate his employment for serious misconduct;
● he was not given an opportunity to respond to all the allegations made against him;
● he was unreasonably refused a support person to assist in discussions relating to his dismissal;
● his length of service and significant personal economic loss suffered since the termination makes the dismissal unfair.

Murdoch University argued that before the employee was terminated he received a prior warning about email conduct in June 2016.

The employee allegedly sent a message to a fellow colleague that referred to another employee, saying they were “deliberately lying” or “suffering from a mental health condition”.

The university also said the staff member’s tone in the emails to the ABS was “abusive, insulting and offensive”.

In Commissioner Geoffrey Bull’s judgment he said he had no difficulty deciding that the emails provided a valid reason for dismissal.

"While the language used by (the employee) may be common vernacular in some circles, when reduced to writing and addressed to a specific recipient not personally known to (the employee), such language has an element of intentional abuse and cannot be regarded under any circumstances as acceptable language," he said.

“The misconduct constituted the use of language that was vulgar and offensive and was contained in an email identifying the University and (the employee’s) role at the University. (His) conduct was in breach of the University’s Code of Conduct and Email and Electronic Messaging Guidelines,” Bull said.

Bull also found that by sending the emails from a work account, the employee had openly linked himself to the university and this could not be considered anything other than a deliberate action “that seriously derogated from his duty”.

He added that the emails could also have caused reputational damage considering they appeared on Twitter.

Related stories:

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Offensive and vulgar’ Facebook post not valid reason for termination


 

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