Porn, Filthy Jokes and Telling your Boss he is a Wanker - Part 2

Posted on 27 February 2014

In part 1 of this blog series we spoke about Australia Post’s failure to properly implement, manage and monitor their email usage policy to the extent that subsequently relying upon to dismiss employees was found to be unfair.

In part 2 of the series we look at how condoning and participating in improper behavior can hamstring an employer from subsequently dismissing employees who act in a similar manner.

Mr Paul Cronin v Choice Homes (QLD) Pty Ltd

On 30 December 2013, in the case of Cronin v Choice Homes, the FWC ruled the summary dismissal of an employee because he had sent an offensive email about the Chief Executive Officer (CEO) to all staff was unfair, harsh and unjust. The case was one of the more embarrassing matters for an employer to have publicised and highlights that blindly relying on a policy irrespective of the culture and conduct within the office can have disastrous effects. It also goes to show the benefit of getting expert legal advice BEFORE dismissing and employee.

The facts of the matter were that Mr Cronin (Financial Controller) had responded to an "all staff" email, which congratulated the CEO for his 20 years service and his recent purchase of a Lamborghini, by attaching a "mock" resume of the CEO stating that his hobbies and interests were "Gym and fitness, Tennis, Computers, Excessive Masturbation, Football, Socialising and Bungee jumping and skydiving”. The CEO's response to the email from Mr Cronin was to terminate him for serious misconduct on the basis that the email was "offensive and inappropriate and constitutes serious misconduct".

Mr Cronin filed an unfair dismissal application and asserted that his email was intended as a joke, and maintained that Choices Homes (QLD) Pty Ltd had a workplace culture where sexually explicit, sexist and racist emails were both accepted and endorsed by all staff. Mr Cronin also argued that no other staff had been terminated for sending inappropriate emails and that the termination of his employment was unjust when compared and contrasted to the misconduct of other, and more senior, staff.

After reviewing the evidence Deputy President Ashbury ruled that the termination of Mr Cronin's employment was:

  • Harsh because it had significant financial consequences for Mr Cronin as he was a long term employee of six (6) years and has been unable to find ongoing full time employment;
  • Unjust because the email was sent as a joke, the CEO's reaction to it was disproportionate to the gravity of Mr Cronin's conduct and the process of the termination was flawed by not allowing Mr Cronin the opportunity to apologise to the CEO to retain his employment; and
  • Unreasonable because the conclusion that the email was inappropriate because it contain sexually explicit material, could not reasonably have been reached in circumstances where the intention of the offensive comments was clearly not sexual and there was a workplace culture of condoning the distribution and dissemination of highly offensive emails containing pornography, sexism and racism.

The Deputy President in finding the dismissal unfair, said: "Generally, an employee who sends an email inferring that the Chief Executive [Officer] is a 'wanker' will be found to have engaged in misconduct". But while the email was "ill-considered, and personally offensive" to the CEO, she said, in all the circumstances it didn't constitute a valid reason for his dismissal, because it was intended as a joke and "on an objective basis, no reasonable person could have perceived the email in any other way".

The judgment also notes that the culture of the workplace was of "distributing and disseminating emails that tick every box in the spectrum of highly offensive material including hard core pornography, sexism and racism". The Deputy President observed that members of the management team were among the worst perpetrators, and even the staff who gave evidence that they were offended by the email were "shown to have regularly and systematically disseminated material which on any objective view was much worse than the email which resulted in [the financial controller's] dismissal". "The very fact that there was an email group within Choice Homes called 'the Porn Stars' the membership of which included and was updated by the IT Manager, speaks volumes about the attitude of senior management of Choice Homes to the dissemination of highly offensive material in the workplace," the Deputy President observed.

Importantly DP Ashbury said "This is not a case where an employer had a firm and well established policy about use of its electronic communication system for the dissemination of inappropriate material and dismissed an employee for breach of that policy”. "It is also not a case where a decision to uphold [the financial controller's] dismissal would support an employer striving to stop inappropriate email traffic.” "In fact, to the contrary, to uphold [the financial controller's] dismissal would support an employer who has dealt disproportionately with employees who have engaged in much more serious misconduct." It is interesting to note that these instances included an employee who assaulted a colleague while intoxicated, and who was allowed to remain with the company after apologising to his co-workers, and another worker who forged signatures, but was allowed to resign to preserve his employment record.

The FWC awarded an amount of compensation to Mr Cronin of $62,000.00.

Stewart Law
Employment & Litigation Solicitor
Dooley & Associates Solicitors  

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