Dismissal after sexual comment ruled unfair

by Cameron Edmond29 Jan 2014
The Fair Work Commission (FWC) has ruled the dismissal of a former Choice Homes employee who sent a lewd email as unfair, in part due to the company culture.
The court document reveals that CEO Troy Knight purchased a Lamborghini in April. Two months later – on the 20th anniversary of his involvement with the company – he received an email from construction manager Steve Bignill.

The email included an image of a 20 year service medallion and a Lamborghini, with the subject line reading: “Congratulations you have reached 20 years’ service on the books… and your reward is a Lamborghini.”

The email was also sent to the group ‘AllStaff’, meaning it reached all staff at the company. Shortly after, financial controller Paul Cronin responded to the email, sending it to himself, Bignill, and the AllStaff group. The subject line stated “RE: Congratulations – I actually found his original resume too!!”

Attached to the email was a fake resume lifted from humour site Lamebook. The resume included “Excessive Masturbation” under the header “Hobbies & Interests”. Upon seeing it, Knight contacted his solicitors who summarily dismissed Cronin.

Despite Knight telling the FWC that he felt sexually harassed by the email and that the inappropriate content would cause problems within the company, the dismissal was ruled as unfair. The FWC’s decision was based on the fact that the email was clearly a joke. In addition, it was found that employees of Choice Homes regularly exchanged emails containing explicit content.

“Those emails run the full gamut of offensiveness and it appears that no stone was left unturned and no depths unplumbed by staff of Choice Homes, in their exchange and dissemination of pornographic, sexually explicit, sexist, racist, scatological and generally derogatory material using the Choice Homes email system,” the decision read.
The full decision can be read here.

The case is reminiscent of Fair Work Australia’s decision regarding Australia Post employees who were terminated for sending adult material in work emails, with the industrial tribunal ruling their firing as ‘harsh’ due to the workplace culture fostering the behaviour.

Speaking to HC at the time of the Australia Post story, Herbert Smith Freehills special counsel Lisa Croxford said that organisations must ensure such cultures do not crop up in the workplace.

“If you’ve got a culture where this kind of stuff is going on then you need to have a program in place to address it,” she said. “To a lot of other people they’ll say ‘This is just what you’ll see on TV’ but it’s not … same with some of the images that get circulated around that might have images of women who are naked and a comment underneath that makes it appear humorous. That comment doesn’t offset the fact that that material is potentially sex discrimination.”

What do you think of the decision? Have you dealt with inappropriate content in workplace emails?


  • by Yvonne Walker 29/01/2014 1:13:35 PM

    I don't think the comment in this article "the FWC decision was based on the fact the email was clearly a joke" is helpful in determining what is, and isn't, sexual harassment in the workplace. If it were, then many offenders would get off scot-free. After all, many lewd emails, pictures, comments are made in jest - that doesn't make them acceptable.
    This current decision turns on the fact that an organisation can't allow a culture to build up where such an email is acceptable - and then expect to be able to dismiss someone for it.
    I acknowledge that the article does state this - but please, saying that the unfair dismissal case was lost because the email was 'clearly a joke' is not accurate.

  • by Dean Allen 29/01/2014 3:29:36 PM

    Yvonne, you need to read on, and not just stop at the bit that bothers you. It goes on to say, in addition...

    "The FWC’s decision was based on the fact that the email was clearly a joke. In addition, it was found that employees of Choice Homes regularly exchanged emails containing explicit content."

    The point is that it was a clearly a joke, and that this workplace had a culture of these kinds of jokes. It would be unfair for this employee to be dismissed for one email when the circulation of such emails in the organisation is common practice and nothing gets done about it. It's not saying that it being a joke condones sexual harassment, it is saying that the treatment of the perpetrator is harsh under the circumstances. Had it been a one-off email and there were robust systems in place around sexual harassment and use of digital media, or a history of other staff receiving disciplinary action for similar actions, then the case for dismissal would have been much stronger.

  • by Kevin Howard 29/01/2014 11:00:01 PM

    I sure we all understand what is wrong with the culture of Choice Homes.

    However, if you read the full FWC decision document it doesn't say anywhere that the FWC decision was "based" on the fact that the email was intended as a joke.

    That was simply one of several factors taken into consideration.

    Including "The dismissal was unreasonable because the conclusion that the email was inappropriate because it contained sexually explicit material, could not reasonably have been reached in circumstances..."

    and most importantly because "there was a workplace culture of distributing and disseminating emails that tick every box in the spectrum of highly offensive material...."

    This is the key. Not jokes.

    I therefore believe it is misleading to say that the decision was "based" on the fact that the email was a joke.

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