Employment Law – Background

In B v Mid North Coast Local Health District, 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.

Employment Law – Facts

In essence:

  • 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 the employer’s employment law 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 employer’s employment law communications policy

Employment Law – Decision

The NSW Industrial Commission found:

  • the employer had a valid reason to dismiss the woman
  • the workplace law policies made it clear that sending and receiving inappropriate emails was strictly prohibited. This was clear by requiring users to accept the employer’s employment law policy through ticking a pop-up box when they logged in
  • despite its validity, the employee’s dismissal was harsh under workplace laws
  • 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
  • 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 employment law decision
  • seek the assistance of an employment lawyer to understand the impacts of this decision
  • ensure all employment law policies are compliant with all employment laws including employment law decisions, Awards and enterprise agreements
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • train staff about employment law policies
  • properly investigate allegations of misconduct and provide employees with procedural fairness
  • properly consider any mitigating factors relevant to the employment situation
  • 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.