Juicy email justifies instant sacking
Posted on February 18, 2016
Last month, the Fair Work Commission (FWC) upheld an employer’s decision to instantly dismiss an employee who sent a derogatory email about his boss to a competitor via his work email account.
The facts in Burd v Moran Management [2016] FWC 488 involved Norman Burd sending the following email to a competitor named Ross about his manager, Daniel Moran:
“I need a good working environment, I have my own book which is growing and I aim to develop it further but the office under Daniel has become difficult and most unpleasant.
Daniel, left his wife and 4 kids and is having an affair with the office manager who calls herself general manager ie another Ann who’s leading him by the nose, Moran’s has lost one of their biggest accounts plus other business, to put it simply he is struggling and has created a difficult atmosphere for me I’m not into office politics, which I can’t put up with anymore.”
When Mr Moran discovered the email on 7 September 2015, he immediately confronted Mr Burd who denied sending it. However, Mr Moran checked with Ross who confirmed that he had received the email and that Mr Burd had called him after sending it to discuss its contents. It followed that Mr Moran met with Mr Burd on 8 September 2015 and handed him a termination letter.
In response to Mr Burd’s subsequent unfair dismissal application, the FWC was required to consider whether Moran Management (an employer with less than 15 employees) had complied with the Small Business Fair Dismissal Code (Code). In cases involving summary dismissal, the Code requires an employer to believe on reasonable grounds that the employee’s conduct is “sufficiently serious” in order to for a dismissal to be fair. In this regard, the FWC was satisfied that:
- Mr Moran had made reasonable inquiries in respect of the email and established its authenticity;
- There was no reasonable explanation for the email, particularly where the contents were offensive, inappropriate, false and potentially damaging;
- The content of the email was destructive of the employment relationship and inconsistent with a desire to continue that relationship; and
- Mr Burd was well aware of the company’s email and internet policy, and had previously received 3 written warnings in respect of same.
Commissioner Roe dismissed Mr Burd’s unfair dismissal application and concluded with the following remarks:
“This is not a case where passing comments of a critical nature are made about an employer to friends or family in private at a party or on private email or on a private Facebook page. This is a case where work email is used to communicate with another employer in the same industry... The employer had reasonable grounds to believe that it was damaging to his business to have information about the financial state of the business and its client base released to competitors. Whether the information was true or false the employer had reasonable grounds for concluding that it was serious misconduct to provide this damaging information to another employer in the industry.”
While there have been numerous instances in the past where the FWC has found a dismissal to be unfair where it related to employees’ private interactions, the circumstances of this case involved a significant connection to the workplace. Further, by properly distributing and enforcing the email and internet policy, this meant that it could be successfully relied upon to justify the disciplinary action taken by Moran Management.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require assistance with your email, internet and other media policies.
