Oct 292012
 

Fair Work Australia has ordered the defence contractor Thales Australia Limited (Thales) to reinstate three employees, dismissed for sending pornographic materials on company email, on the grounds of unfair dismissal. 

Thales said the terminations of employees at their munitions plant were justified because:

  • The employees breached company policy; and
  • The employees were made well aware of email policy through the use of pop-up boxes when logging in to the email system. 

However, Commissioner Bull found that a lack of training and education about the policy’s application meant employees were inadequately informed.

This is an interesting case for Employers. It shows how Employers should review all their policies and how they are explained and enforced before terminating for breach of those policies.

For more detail and the actual findings, read on below.

Facts

In August 2011, Thales initiated an investigation into email misuse across all Australian operations through the review of email mailboxes. 

The investigation showed that the three Applicants, Carolyn Flanagan, Christopher Hogan and Kristian Pitches, had sent and received emails with content ranging from hardcore pornography to pictures of genitals for the purpose of humour. 

No Warnings and Quick Fire Sackings an Explosive Combination

On Monday, 27 February 2012 the Applicants were individually informed that they were the subject of allegations of inappropriate email usage.  Later that week, the Applicants were terminated without notice on the grounds that they breached company policy about appropriate workplace behaviour and email use.

Judgment

Substantive Fairness a Long Shot for Ammo Manufacturer

Commissioner Bull found that Thales had the right to terminate the Applicants based on their conduct; however, the failure to adequately inform employees of company policy before the dismissal made the dismissals harsh, unjust or unreasonable. 

Employers need more than pop-up menus in their Armoury

Thales relied on company internet policy and previous training programmes as grounds for the dismissal, suggesting that the Applicants were well aware of the consequence of termination for email misuse. 

Commissioner Bull instead found that the way in which policy was administered was insufficient to expect employee understanding.  Though all Applicants attended Appropriate Workplace Behaviour Training, there was no evidence to suggest such training addressed matters of email usage.  In addition, Thales failed to provide specific training on company internet and email policy.  The fact that all staff were required to accept Thales’ internet policy before logging in to the computer system was insufficient to guarantee understanding.

Procedural Fairness hits the Target for Dismissed Employees

A lack of procedural fairness weighed heavily on Commissioner Bull.  The following three grounds were established:

  1. Thales failed to provide the Applicants with a second meeting, after the notification of the allegation, to explain their behaviour.  The initial meeting was insufficient as the Applicants would have been “suffering the effects of shock and embarrassment and [were] not able to respond in a considered and meaningful fashion.”
  1. Thales internet policy required that employees be notified of any investigation or monitoring of emails as soon as is practicable.  Failure to comply with this provision, being a six month delay between the monitoring and notification, prejudiced the Applicants as they would have behaved differently had they been informed. 
  1. Thales relied on the distribution of general emails warning against email misuse when terminating the Applicants.  This was deemed as unfair as no Applicant was given the opportunity to argue that they had not received, nor were aware of, the emails.

Orders Made

The Applicants were reinstated pursuant to s 390 of the Fair Work Ac 2009. However, in acknowledgment of the Applicant’s inappropriate conduct, Commissioner Bull denied requests for Thales to pay loss of earnings or accrued entitlements lost as a result of the dismissal. 

Action Items for Employers

If you want to rely on breach of company policies to terminate staff, then you better ensure that your staff not only know about the policies, but also that they are educated and trained about them.  It is not sufficient to have conduct rules on your website, or on pop-up menus.

Dismissals can be unfair in two ways, substantively, and procedurally.  An employer has to get both the substance and the procedure fair. 

An employer may have valid grounds for termination (substantive fairness), but failure to ensure procedural fairness may be enough for an employee to prove unfair dismissal. 

As a practical matter, having a fair process is not good enough; you have to follow the process as well.  In following fair processes you may reduce your risks of employee claims and thus avoid unnecessary cost and delay. 

 

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