Written by Alex Millman and Troy Wild, NRA Legal
On 24 April 2017 the New South Wales Industrial Relations Commission awarded compensation to a State employee who had been fired after pornographic emails, including images of naked children, were found in her work email account.
The employer argued that the employee had committed multiple breaches of its Code of Conduct and Communications Policy by receiving, accessing, and storing the emails on the employer’s email server.
The Commission agreed, and held that the dismissal was just and reasonable. Despite this, the Commission (relying on past decisions of the Fair Work Commission) held that the dismissal was harsh and awarded compensation.
In reaching this conclusion, Commissioner Stanton took into account the employee’s difficulty in finding other employment in her local area, her personal financial and family situation, and the fact that the employee had never been previously warned.
Notably, the Commissioner did not consider the employee’s 12 years of service as a factor in her favour, effectively ruling that after such a long period of service she ought to have known better.
Whilst this decision was made with respect to a State public servant, its reliance on precedent set by the Fair Work Commission highlights the delicate balancing act that is required when considering the appropriate disciplinary outcome of any given situation.
In particular, it emphasises the requirement that an employee need only satisfy the Commission that their dismissal was harsh or unjust or unreasonable in order to obtain a remedy. Conversely, the employer needs to be able to show that its decision to dismiss an employee was fair and just and reasonable.
If you are considering taking disciplinary action against an employee and have concerns about how best to protect your position, call today on 1800 RETAIL (1800 738 245) to speak with one of our workplace advisors.