Social media is in the headlines more often than not these days. What is still being decided by courts and tribunals is not only what can be done by employees at work, but the line between what is acceptable and what is not.
A recent case of Fair Work Australia highlights what you need to advise employees in order to make sure any dismissal for abuse of the email system will stick. In order to dismiss safely, you need to look past the conduct and make sure the dismissal is still not harsh, unjust or unreasonable.
Three employees with lengthy service with Thales Australia were dismissed for inappropriate use of the work email system. The three employees, employed for 20, 14 and 12 years respectively as production workers, were called to individual meetings in February 2012, where allegations of email misuse were put to them, including sending pornographic images.
The employees did not contest the allegations put to them and within the week had all been summarily dismissed. All lodged unfair dismissal proceedings, arguing:
1. They were not aware of the company’s “internet and email security framework policy”; and
2. They had not received training specifically addressing email usage.
The evidence was that most workers at the site were not aware of, or did not understand, the framework policy. The employer argued its policy was reinforced by a login pop-up box on employees’ computer screens and general warnings had previously been sent to staff via email about the consequences of inappropriate use, up to and including dismissal.
The Commissioner found it did not become clear until page nine of the policy that it included standards relating to employee email usage, as opposed to internet and email security as the title of the policy itself suggested.
Fair Work Australia commissioner Geoff Bull held 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, including:
• The employees had not been given aperiod to digest the allegations, seek advice and respond in a “more informed manner”;
• Receipt or recollection of the prior staffwarnings not being put to the employees at the meetings, especially considering two of the employees had only gained email access after some of those warnings were issued;
• The employer’s failure to explain the lapse of time between an investigation into email misuse which finished in September 2011, and the employees’ dismissal in February 2012;
• None of the employer’s witnesseshaving “any clear understanding of [the employer’s] responsibilities under their Internet and Email Security Framework Policy”, in failing to inform the employees, as per the policy, that their email use was being monitored;
• No evidence being produced that theemployees were trained on the internet and email security framework; and
• The consequences of the dismissal onthe employees, who live in a regional community and failed to gain equivalent work elsewhere.
Commissioner Bull concluded that “no particular matter alone” resulted in his finding, but rather the combination of circumstances and deficiencies in the process undertaken by the employer.
The employees were ordered to be reinstated to their positions, as there was no evidence the relationship had broken down and they were unlikely to reoffend. However their misconduct meant that no compensation would be awarded for the time they were out of work.
“I would make it clear 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… it ought not to be assumed that the Tribunal will uphold an employer’s right to terminate in all cases of a breach of a policy regardless of the circumstances.”
The Commissioner quoted the decision of the Federal Court of Australia in Bostik (Australia) Pty Ltd v Gorgevski (No. 1) 10:
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
This example reinforces the importance of not just having clear and concise workplace policies, but regularly communicating them to employees, and ensuring that employers are consistent in their application of those policies, especially when it relates to employers’ own obligations.
Most of all, an employer needs to take into account the circumstances of the employee when taking disciplinary action.