Employee sacked for smutty emails is reinstated

Photo/ Bay of Plenty Times

Inappropriate use of email and the internet is a hot topic in employment law. Cases abound where employees who have sent inappropriate emails, or criticised management on Facebook, have had their dismissals upheld. A recent decision, however, serves as a warning - sending smutty emails is not necessarily enough in itself to justify sacking someone.

Philip Walker worked for Safe Air Ltd in Blenheim, initially as a storeperson and then as a purchasing officer. He was employed for 18 months before his dismissal.

In May 2008 the company began investigating inappropriate material that had been sent via email, both internally and externally. It turned out that a number of employees were involved.

The investigation revealed that Mr Walker had sent 425 emails "of concern" over a period of six months, of which 26 depicted lewdness, nudity, genitalia and/or sex acts, in contravention of Safe Air's email and internet policies.

Mr Walker said the external emails only went to his partner and family members, who he knew would not be offended. He also said, and the Authority accepted, that several other employees (including someone senior to him) were involved in sending and forwarding the emails, and the employer's expectations in this area had not been made clear to him.

After a full and fair investigation and disciplinary process, he was dismissed. The issue was therefore purely whether sending the lewd emails justified his sacking.

The Authority accepted that some of the emails he had sent contained inappropriate material, and that he had no control over where the emails were then sent. However, the involvement of other employees who were not dismissed, and the employer's failure to make its expectations clear to him, meant that while he was guilty of misconduct (justifying a warning), it did not amount to serious misconduct (justifying dismissal).

The Authority ordered Safe Air to reinstate Mr Walker. It said that when he became aware of the company's investigation, he stopped sending the emails. While this may have been self-preservation, it did demonstrate he could adhere to standards once they were made clear to him. It rejected the company's claim that it could not have trust in him again.

The Authority also awarded him $2,000 compensation for humiliation, with a 50 per cent reduction to take into account his own contribution to the dismissal, and reimbursement of lost wages, also to be reduced.

This case shows that while sending lewd emails is in some cases be a sackable offence, that will not be the case if other employees are doing the same thing, and the expected standards have not been made clear.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

 

 

 

Photo: Bay of Plenty Times