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Employee awarded $62,000 for unfair dismissal after calling his boss a “w#nker”

In Cronin v Choice Homes, the events leading up to the dismissal began with an office wide email received by Mr Cronin, regarding the business owner’s new Lamborghini purchase.  Mr Cronin responded,  attaching to his reply a document purporting to be his bosses “original resume” and which included, within the hobbies and interests sections reference to “excessive masturbation”. Although the document was intended to be a joke, it soon came to the attention to the owner who dismissed the employee for serious misconduct, finding the email to be both “offensive and inappropriate”.  Mr Cronin successfully challenged the fairness of the dismissal both on grounds that it was simply a joke consistent with the culture of the workplace and that his dismissal was inconsistent with the behaviour and treatment of others.

Deputy Asbury accepted Mr Cronin’s evidence that the email was a joke, and determined that “on an objective basis, no reasonable person could have perceived the email in any other way”. In reaching her finding in this regard the Commission heard and accepted evidence as to the unpleasant culture within the workplace at Choice Homes of which the ‘joke’ was not inconsistent.

The FWC heard of a workplace culture where sexually explicit, sexist and racist emails were both accepted and endorsed and that the management team were among the worst perpetrators of this. Further, within Choice Homes existed an email group called ‘the Porn Stars’ who regularly disseminated “highly offensive material in the workplace” and whose membership included and was updated by the IT Manager.

Deputy Asbury found that “to uphold dismissal would support an employer who has dealt disproportionately with employees who have engaged in much more serious misconduct” and that it was “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”.

The FWC held that the dismissal was disproportionate to the circumstances and for those reasons the dismissal was unfair.  Mr Cronin was awarded compensation of $62,000.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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