ERA upholds sacking for email misuse

RD1 Ltd successfully dismissed Tokoroa sales assistant William Nicholas Machen for breaches of its IT policy amounting to serious misconduct in 2010 - a decision upheld this month by the Employment Relations Authority's Rachel Larmer.

Machen applied to the authority for reinstatement, lost remuneration and $25,000 distress compensation, claiming his dismissal was "substantively and procedurally unjustified", but his personal grievance claim was dismissed.

The authority found RD1 had an "acceptable use" IT policy that had been explained to him at a staff meeting in March 2010 and then individually.

His internet access had already been removed twice because of excessive use and Machen had been reminded in June last year to ensure IT content was appropriate. A month later, a female colleague found an email on the company printer, which could have been seen by customers, apparently printed by Machen.

She considered the email "weird" and of a sexual nature and brought it to the attention of the company. Machen's email account was frozen so he could not delete material and a subsequent search turned up 18 emails "of concern".

A senior staff member described the content as "offensive, racist, sexist and degrading to women".

These messages had been sent from Machen's home computer to his work email address and two emails had been forwarded to others from his work account. Another four text files had been stored on his desktop.

Before dismissing Machen, the company approached him with its concerns, conducted an investigation into whether his actions constituted serious misconduct and looked at actions short of dismissal.

He had signed an employment agreement that included clauses pointing to the responsibility of the employee to "know and observe all company policies" and "refrain from acting in a manner that brings, or could bring, the company into disrepute". It made clear that breaching the acceptable computer use policy would be viewed as serious misconduct, warranting summary dismissal.

The policy specifically stated that downloading, requesting, transmitting or retaining illegal material or material that could be considered abusive, discriminatory, defamatory or offensive or which could bring RD1 into disrepute was considered unacceptable.

Although amendments had been made to the policy during Machen's employment, the authority found these had been explained to staff.