Employers that have permitted a culture of inappropriate emails and other poor behaviour can't simply pick and choose when they will discipline workers for misconduct, a Fair Work Commissioner has ruled.

The case sends a message about the need for employers to develop and maintain a strong workplace culture, and ensure all misconduct is dealt with proportionately and appropriately, says Holding Redlich lawyer Matthew Orr.

The incident that sparked the dismissal involved a financial controller employed by Choice Homes (Qld) Pty Ltd, who replied to an all-office email about his boss's new Lamborghini.

The financial controller attached to his email a document that he claimed was the CEO's "original resume", and which listed "excessive masturbation" as one of his hobbies and interests.

The CEO summarily dismissed the financial controller, on the basis that his email was "offensive and inappropriate and constitutes serious misconduct".

In unfair dismissal proceedings, the worker claimed his email was intended as a joke, and pointed out that the workplace culture was one where sexually explicit, sexist and racist emails were both accepted and endorsed.

He also argued that other workers who had engaged in serious misconduct had not been dismissed, and his sacking was disproportionate to the severity of the conduct in which he engaged.

FWC Deputy President Ingrid Asbury, in finding the dismissal unfair, said: "Generally, an employee who sends an email inferring that the Chief Executive [Officer] is a 'wanker' will be found to have engaged in misconduct".

But while the email was "ill-considered, and personally offensive" to the CEO, she said, in all the circumstances it didn't constitute a valid reason for his dismissal, because it was intended as a joke and "on an objective basis, no reasonable person could have perceived the email in any other way".

Deputy President Asbury said the sacking was also "disproportionate when it is viewed in the context of the workplace culture at Choice Homes".

The culture was of "distributing and disseminating emails that tick every box in the spectrum of highly offensive material including hard core pornography, sexism and racism".

Members of the management team, she said, were among the worst perpetrators, and even the staff who gave evidence that they were offended by the email were "shown to have regularly and systematically disseminated material which on any objective view was much worse than the email which resulted in [the financial controller's] dismissal".

"The very fact that there was an email group within Choice Homes called 'the Porn Stars' the membership of which included and was updated by the IT Manager, speaks volumes about the attitude of senior management of Choice Homes to the dissemination of highly offensive material in the workplace," she said.

"This is not a case where an employer had a firm and well established policy about use of its electronic communication system for the dissemination of inappropriate material and dismissed an employee for breach of that policy.

"It is also not a case where a decision to uphold [the financial controller's] dismissal would support an employer striving to stop inappropriate email traffic.

"In fact, to the contrary, to uphold [the financial controller's] dismissal would support an employer who has dealt disproportionately with employees who have engaged in much more serious misconduct."

(These instances included an employee who assaulted a colleague while intoxicated, and who was allowed to remain with the company after apologising to his co-workers, and another worker who forged signatures, but was allowed to resign to preserve his employment record.)

Deputy President Asbury found reinstatement was inappropriate, and awarded the worker $62,000 in compensation.

Lessons for employers

According to Holding Redlich's Orr, "the decision reinforces that where an employer would ordinarily have a right to dismiss an employee for misconduct, the employer must take into account the particular work environment in which the conduct occurred, as well as its previous responses to other incidents of misconduct".

Accordingly, he says, when determining what type of disciplinary action to take, employers should consider:
  • Is the employee's conduct in breach of any of the employer's policies?

  • In what context did the conduct occur is it generally accepted in that particular workplace?

  • Is the proposed disciplinary action consistent with previous action? and

  • Is the proposed disciplinary action provided for in the employee's contract or employer's policies?
"Employers should also be aware that a positive workplace culture needs to flow top-down from senior management in order to shape a work environment with strong values that treats employees in a fair and consistent fashion," he says.

Paul Cronin v Choice Homes (Qld) Pty Ltd [2013] FWC 10240 (30 December 2013)

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