Con DeftereosAMMA’s Manager of Workplace Relations, based in Melbourne, Con Deftereos (pictured, right) reviews an unfair dismissal determination where the applicant was compensated due to the ‘harshness’ of her termination, despite a valid reason being found for the employer’s decision.

THE termination of a personal assistant in the New South Wales health sector has been deemed ‘harsh’ despite her being found to have stored more than 1200 inappropriate and pornographic emails on her work computer.

The New South Wales Industrial Relations Tribunal upheld the Mid North Coast Local Health District’s sacking of the general manager’s personal assistant, but awarded her eight weeks’ pay after deeming the decision ‘harsh’ due to her personal circumstances.

The employee had received, stored and sent 1256 emails, which were considered pornographic, graphic (violence), and generally inappropriate in nature, and were saved in a “funny emails” folder.

An audit into the emails found they were categorised by containing images of genitals, naked children, partial-nudity images, cartoons depicting sexual acts, sexually suggestive, containing profanity, graphic and chain emails.

The employee argued she had been an exemplary employee with an impeccable work history and claimed the Mid North Coast Local Health District email system should have prevented unwarranted, unwelcome and inappropriate emails to infiltrate the system.

Employee had “cavalier attitude” towards email use

In validating the dismissal of the employee, the Full Bench concluded it was in the public interest to support employers who strive to stamp out inappropriate email traffic.

Commissioner Stanton found the employer made sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching it.

“Despite those efforts and repeated warnings the employee breached the policy in a substantial way and on a number of occasions,” he said.

“Her dismissal follows the cavalier attitude she adopted in relation to email use.”

Commissioner Stanton was satisfied the Mid North Coast Local Health District took steps to inform employees about the Code of Conduct and disciplinary action that may be taken if breached. He also concluded procedural fairness had been afforded to the employee.

In upholding the dismissal, Commissioner Stanton said the assistant’s behaviour breached the organisation’s code of conduct and its communications policy, and the NSW Ministry of Health code of conduct.

He determined procedural fairness had been afforded to the employee, and that reinstatement was impracticable given the gravity of the misconduct and a loss of trust and confidence between employer and employee.

Sacking ‘harsh’ due to personal circumstances

Despite the above findings, the dismissal was nonetheless deemed “harsh” due to the employee’s difficulty in obtaining alternative employment, her personal, family and financial circumstances.

“I have given consideration to the mitigating factors concerning the applicant’s difficulty in obtaining alternative employment in the general Port Macquarie area, her personal, family and dire financial circumstances that were canvassed during proceedings. I have also taken into consideration that she had not previously been warned for misconduct. Against that backdrop, I have determined that the applicant’s dismissal was harsh in the circumstances of this case,” Commissioner Stanton said.

The applicant was awarded eight weeks’ pay.

Implications for employers

The decision to award compensation despite the dismissal being upheld outlines why AMMA is advocating for reform in Australia’s termination of employment laws.

AMMA is concerned about the rising number of speculative and unmeritorious claims from former employees,  who have clearly done the wrong thing but are being awarded compensation and even reinstatement on the judgement of “harshness”.

Our strong view is that employers shouldn’t be penalised when lawfully addressing appalling and unacceptable behaviours in the workplace.

It is of particular concern that even though this case occurred in the public sector and was covered by state industrial relations jurisdiction, it follows a worrying trend of tribunals finding justification for compensation or reinstatement when an employee is found to be validly dismissed.

Learn more about AMMA’s proposed reforms of termination of employment laws at our campaign page.

AMMA can assist with disciplinary and termination processes, company codes of conduct and policies, and in defending actions in court and tribunals. For discussions on this case or general advice, contact [email protected]