Inappropriate emails a sackable offence

by 19 Dec 2011

A New Zealand man was sacked by his employer for keeping so-called “weird stuff” on his computer – and the case has highlighted the limits of acceptable employee conduct.

William Nicholas Machen, who was fired in July last year from rural supplies retailer RD1, went to the Employment Relations Authority (ERA) claiming wrongly dismissal andseeking compensation.

However, the sacking was upheld due the “weird and sexual nature” of material Machen had stored on his work computer.

The ERA conducted an audit of the computer, including material sent to and from his work email account, and 18 emails of an “offensive, racist and sexist nature” were discovered, including jokes about child abuse and assaulting women.

At a disciplinary meeting, Machen said he was aware of the company's technology policy and the emails were “just weird stuff that I like”, and didn’t consider the material to be in itself a sackable offence.

During the meeting, Machen's father, who accompanied his son, acknowledged the “jokes” were at the extreme end of humour, but said it was impossible to say who was the “arbiter of good taste in this day and age”.

The email material in question was later sent to the Office of Film and Literature Classification – and the body determined that while it was not criminal, it would be classified R18+.

It said jokes made about child abuse and battered women were unacceptable and added “These jokes are not funny: they are cruel and violent scenarios that most readers or listeners would consider vile and sickening.”

In her newly released decision, Rachel Larmer from the ERA found the employer was justified in dismissing Machen.

Larmer found that although much of the material was in word form rather than pictures, it still involved “sadistic cruelty towards vulnerable members of society”.

She dismissed Machen's claim for reinstatement, lost wages and a $25,000 distress payment for compensation.

According to the Office of the Australian Information Commissioner (OIAC), organisations must ensure they keep up to date policies on acceptable email content.

Additionally, it is paramount that a work environment is fostered where where staff feel assured that the privacy of their communications will be respected as long as they abide by the organisation's stated policy.

The OIAC said that balancing the legitimate interests of organisations and staff may be difficult, and this balance may vary in different organisations.

“Policy or practice which leads staff to believe that their privacy in the workplace is not respected may be regarded as intrusive and oppressive and have a negative impact on morale and productivity,” the OIAC said.

The following Guidelines are provided by the OIAC to assist organisations to develop policies or improve their existing policies:

  1. The policy should be promulgated to staff and management and should ensure that it is known and understood by staff. Ideally the policy should be linked from a screen that the user sees when they log on to the network.
     
  2. The policy should be explicit as to what activities are permitted and forbidden.
     
  3. The policy should clearly set out what information is logged and who in the organisation has rights to access the logs and content of staff e-mail and browsing activities.
     
  4. The policy should refer to the organisation's computer security policy. Improper use of e-mail may pose a threat to system security, the privacy of staff and others and the legal liability of the organisation.
     
  5. The policy should outline, in plain English, how the organisation intends to monitor or audit staff compliance with its rules relating to acceptable usage of e-mail and web browsing.
     
  6. The policy should be reviewed on a regular basis in order to keep up with the accelerating development of the Internet and Information Technology. The policy should be re-issued whenever significant change is made. This would help to reinforce the message to staff.

For further information about devising a workplace email policy, visit privacy.gov.au

 

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