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Employment Law – Background

In B v Mid North Coast Local Health District [2017], the NSW Industrial Commission found that despite a woman’s sacking for amassing thousands of sexually explicit emails on her work computer being valid, the dismissal was still harsh.
Facts
• The woman was working with Mid North Coast Local Health District as an assistant to the district manager of Mental Health Services
• She was found to have received, stored and sent a large amount of emails which were “pornographic, graphic (violence) and generally inappropriate in nature”
• She was sacked for inappropriately using the workplace email system, breach of the code of conduct and communications policy and serious misconduct
• She argued that her employer’s email system should have had a filtering system in place to prevent inappropriate emails
• It was also argued that she was unaware of the communications policy, despite the fact that

Decision

The NSW Industrial Commission found:
• the employer had a valid reason to dismiss the woman

• the workplace policies made it clear that sending and receiving inappropriate emails was strictly prohibited. This was clear by requiring users to accept the policy through ticking a pop-up box when they logged in
• despite its validity, the dismissal was harsh. Consideration was given to mitigating factors such as her difficulty “in obtaining alternative employment…her personal, family and dire financial circumstances”. The fact that she had not been previously warned for misconduct was also taken into account.
• reinstatement was impracticable considering “the gravity of the misconduct” and the fact that the employment relationship had irretrievably broken down
• that the woman was to be compensated eight weeks pay

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
• review this Fair Work Commission decision

• seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
• ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
• fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
• train staff about this Fair Work Commission decision
• damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)
• raise any employment law questions with an employment lawyer

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.