An Unfair Dismissal claim has been thrown out by the Fair Work Commission after finding expletive-filled emails were fair grounds for termination. McDonald Murholme Managing Director, Alan McDonald, discusses the merit of the claim with Smart Company.
See below article for more information.
Fair Work Commission clears Murdoch University over decision to fire employee who sent expletive-filled emails to the ABS about 2016 Census
The Fair Work Commission says Murdoch University was within its right to dismiss an employee for sending aggressive emails to a senior staff member at the Australian Bureau of Statistics in protest of the 2016 Census.
In a decision handed down on Wednesday, Fair Work Deputy Commissioner Geoff Bull threw out the unfair dismissal case of a Murdoch University staff member, who was fired in December 2016 after the university took issue with two emails he sent through his work account to senior ABS staff member David Kalisch.
The first email was sent on August 5 and included the staff member’s work email signature and the university logo. In it, the staff member accused Kalisch and the ABS of overreaching by changing the scope of retention of census data, and said Australians “no longer trust the Australian government especially as you are not asking us to complete the census but instead are threatening huge fines for those who do not ‘comply’.”
“Who the f-ck do you think you are changing the scope of the census by collecting my family members’ personal data electronically to be stored indefinitely. My family’s personal information is none of your f-cking business!” the email said.
The ABS notified Murdoch University of the email, according to evidence provided to the Fair Work Commission.
On August 10, the Murdoch staff member sent a second email, which linked to news articles about the outage of the census and asked Kalisch to, “Please send me a fine, PLEASE, I really want to have my day in court now you bunch of f-cking buffoons!”
Murdoch University conducted an investigation into the employee’s actions and concluded the emails breached its Code of Conduct and amounted to serious misconduct warranting dismissal. The staff member was terminated on December 9 and was given an ex gratia payment of four weeks’ salary.
The staff member then lodged unfair dismissal proceedings with the Fair Work Commission, claiming the emails were unrelated to his employment and there was no proof they had caused reputational damage to the university. He also claimed he was not given adequate chance to respond to some allegations.
However, the university claimed the lead up to the staff member’s termination included a previous warning about email conduct in June 2016, when he allegedly sent a message to a work colleague that referred to another employee, saying they were “deliberately lying” or “suffering from a mental health condition”.
The university claimed the staff member’s tone in the emails to the ABS was “abusive, insulting and offensive” and was in breach of the staff code of conduct.
In deciding the case, Deputy Commissioner Bull considered whether the actions amounted to serious misconduct and whether the employee’s actions were deliberate.
“The misconduct constituted the use of language that was vulgar and offensive and was contained in an email identifying the University and [the staff member’s] role at the University. [His] conduct was in breach of the University’s Code of Conduct and Email and Electronic Messaging Guidelines,” Bull said.
Bull also found that by sending the emails from a work account, the staff member had openly linked himself to the university and this could not be considered anything other than a deliberate action “that seriously derogated from his duty”.
As a result, Bull found the university had a valid reason to dismiss the employee.
SMEs more likely to act “quickly and decisively”
However, this case could have been lodged as an general protection claim under the Fair Work Act, rather than an unfair dismissal claim, according to Alan McDonald, managing director of employment law firm McDonald Murholme.
“It was a misdirected claim in the first place, it should have been a general protections claim. General protections claims protect people who want to make political statements,” he says.
However, the way this claim played out shows the resources and robust policies organisations like universities have when it comes to fighting unfair dismissal claims.
“They would be willing to spend hundreds of thousands defending a claim … and can back their workplace policies with funding, as a rule,” he says.
This case also indicates that while a staff member might have a strong opinion on an issue, when that opinion could come to affect the reputation of their organisation, it can become a problem.
“If it’s an external [action] and that damages the name of the company, it can’t be tolerated,” McDonald says.
Cases like this one are unlikely to play out as often in small and medium businesses, says McDonald, because while they have fewer resources, they often do more to act quickly and decisively.
“A small to medium business that has HR advice would act quickly and decisively and would never let an issue like this get out of control. Small to medium business is usually very fair, and the employers want to do the right thing,” he says.
However, given SMEs do have fewer resources, policies and approaches to staff communications need to be well planned.
“They do have to be more prudent,” McDonald says.
SmartCompany contacted the Australian Bureau of Statistics and Murdoch University but did not receive responses prior to publication. SmartCompany was unable to contact the former staff member.
Reference: ‘Fair Work Commission clears Murdoch University over decision to fire employee who sent expletive-filled emails to the ABS about 2016 Census’, Smart Company, 4th May 2017