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‘Highly offensive’ email sent to client results in fair dismissal

The Fair Work Commission has dismissed an employee’s unfair dismissal application after she inadvertently sent a highly offensive email to a couple of her employer’s key clients.

The account manager, who had some 16 years of unblemished service, had been preparing an email to a contractor (whom she also socialised with) about the client. The email was to provide the contractor with some information, including the email addresses of the client.  To obtain those email addresses, the employee had used the ‘cc’ function of the email.  She then forgot to remove the email addresses from the ‘cc’ bar before sending the email to the contractor – so the email was received by the client.

Whilst the detail of the email is not set out in the decision, Senior Deputy President Hamberger described at least one comment as being ‘highly offensive’, and the decision indicates that some potentially racist material was referenced.

The email was brought to the attention of the employer by the client. Who subsequently said that they would not deal with a company represented by the employee.  Another company also indicated it did not want to work with the employee.

Following an appropriate meeting process, where the employee was given the opportunity to respond to the allegations that she had breached the employers Code of Conduct and IT policies, the accounts manager was terminated, with a payment in lieu of her notice period.

SDP Hamberger found that there was a valid reason for terminating the employee and that a fair process had been followed. He noted the employee’s length of service, but found that in the circumstances it did not overcome the gravity of her conduct.  SDP Hamberger, dismissed the unfair dismissal application, commenting:

“… there is no doubt that the impact of the dismissal has been significant for the applicant. She has also had a long period of service with the respondent and its predecessors, and had not previously been warned for misconduct. She also apologised for her behaviour. However, I do not consider that those factors outweigh the gravity of the misconduct so as to render the dismissal harsh.”

Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation. www.aitkenlegal.com.au.