Mr Geoffrey Thomas Spargo v QR Network Pty Ltd
[2010] FWA 7822
•7 OCTOBER 2010
[2010] FWA 7822 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Geoffrey Thomas Spargo
v
QR Network Pty Ltd
(U2009/11490)
DEPUTY PRESIDENT SWAN | BRISBANE, 7 OCTOBER 2010 |
[1] The applicant, Mr Geoffrey Spargo, applies for relief in relation to his alleged unfair dismissal of employment from QR Network Pty Ltd [the respondent/QR] pursuant to s. 394 of the Fair Work Act 2009 [the Act].
[2] The applicant was represented by the organisation of which he is a member, the Australian, Rail, Tram and Bus Industry Union [RTBU]. The respondent was represented by Counsel.
[3] The applicant’s employment was terminated summarily. The following reasons were cited by the respondent:
• The volume of inappropriate material sent from Mr Spargo’s email from October 2008 to March 2009;
• The explicit nature of some of the emails;
• Mr Spargo’s action in selectively forwarding some of the emails to a number of recipients; and
• Not providing an adequate explanation as to why he did not follow QR’s standards in having the inappropriate emails ceased, deleted and his manager/supervisor notified of action taken in this regard. [Exhibit 3 – LE26]
The Respondents relevant Policies
[4] Clause 4.5 of the Electronic Communications specification states that:
“Employees shall not use QR’s electronic communications systems for the purposes of accessing, creating, copying, downloading, displaying, storing or sending material which is inappropriate. Examples of inappropriate material include:
Pornographic / sexually explicit mater (this does not just mean sexual acts – it can include nudity)
Sexually implicit material (includes material with sexual concepts or ideas or suggested sexual acts)
Cruel, malicious or violent material (includes people or animals that are fighting, dead, or being hurt or killed)
Material that may cause offense or intimidation or may amount to harassment or discrimination on any of the grounds in the Anti-Discrimination Act (Qld)
…..
Other inappropriate material not listed that is offensive and/or unethical i.e. is a breach of the code of conduct (includes material with swearing, material that is offensive, racist or sexual, material that humiliates or degrades a person etc)”
[5] Clause 4.9 of the Electronic Communication states that:
“Employees shall use the following processes to report inappropriate use of QR’s electronic communication systems.
4.9.1 If you receive an inappropriate email
Employees shall take the following action if they receive an email which contains inappropriate content:
If you receive an inappropriate email from someone internal to QR, immediately reply to the sender asking them not to send you such material. Send a copy of your reply email to your supervisor / manager; then delete the inappropriate email.
If you receive an inappropriate email from a person you know from outside QR, immediately reply to the sender asking them not to send you such material. Send a copy of your reply email to your supervisor / manager, then delete the inappropriate email.
4.9.2 If you receive any other inappropriate material
Employees shall report any other inappropriate material received (for example, a mobile phone text message) to their manager or supervisor. The manager or supervisor shall then take the appropriate action. This may require them to commence an investigation into the inappropriate use.
4.9.3 If you become aware of an employee’s inappropriate use
Employees shall record another employee’s inappropriate use to their manager or supervisor. The manager or supervisor shall then take the appropriate action. This may require them to commence an investigation into the inappropriate use.”
Background to Applicant’s claim
[6] The applicant had been employed by QR for over 39 years.
[7] The applicant’s employment was terminated on 13 August 2009.
[8] The applicant had been employed as a NC5 level Network Controller.
[9] The terms of the applicant’s employment were governed by the QR Network Pty Ltd “Start Up” Union Collective Workplace Agreement [the Agreement].
Outline of the applicant’s claim
[10] Prior to the termination of his employment, there had been no concerns raised by the respondent with regard to the applicant’s conduct or work performance.
[11] The applicant’s computer skills were acquired on-the-job and computer work became a regular feature of his work from 1990. The applicant said that he possessed only basic computer skills.
[12] The applicant used the Internet at work for the following purposes:
- Work related programs [eg Train List]
Microsoft Outlook to send and receive work emails.
Microsoft Outlook to send and receive non-work [personal] emails.
The Internet to read news and/or ABC on-line.
The Internet to look at “Pickles Auctions or Flowers Auctions” and for news of the weather forecast.
[13] The applicant said that he had never accessed pornographic material, nor did he access inappropriate material.
[14] There was no waste of the respondent’s time as the accessing of material was only for a few minutes at a time.
[15] The use of the electronic systems for non-work matters occurred only when there was a lull in work.
[16] The applicant was required to attend a Disciplinary Interview on 23 June 2009.
[17] The applicant attended the interview with a support person, Mr Smith, an RTBU Delegate.
[18] At the interview, the applicant was shown certain material comprising copies of emails and pictures that were said to have come from his computer.
[19] The applicant did not believe that he had received and sent inappropriate material.
[20] The applicant was required to attend a “Disciplinary Interview” on 8 July 2009. The applicant attended with his RTBU Delegate, Mr Smith.
[21] At the interview, the applicant was shown a copy of certain attachments identified by the respondent as “1”; “1(b)”; “2” and “2(a).
[22] The applicant did not believe he was accessing inappropriate material which had been found on a news website. He had not understood that material viewed by him was automatically saved by the respondent.
[23] The applicant conceded that he had ‘unwittingly breached the respondent’s policies” and for that he apologised.
[24] The applicant gave an undertaking that he would advise all his personal email contacts not to send any further material to his work email address. The applicant committed to delete all his non-work email contacts.
[25] On 21 July 2009 the applicant received a ‘show cause’ letter from the respondent.
Cross-examination of applicant
[26] The applicant explained his understanding of the email system at his workplace. He said he was unaware as to how to access Internet sites. If he wanted a particular site, he asked someone else in the office to put a site he wishes to look at into his “favourites’ list on his computer. The applicant agreed that he could follow web page links on his computer system.
[27] The applicant was aware that he had to accept the respondent’s policies, by ticking a box on the screen, before being able to access his computer.
[28] The applicant viewed that exercise as being a ‘tick and flick exercise.’ [Transcript PN 225]
[29] The applicant was taken to “MT2” [Appropriate Use of Electronic Communication” which was attached to the affidavit of Mr Tangue. [Exhibit 5]
[30] The applicant agreed that when the document was updated, the employee using the computer is required to read the document. The applicant said that he had read and understood the document.
[31] The applicant did not see anything in the material found on his computer system which fitted the category of “material with sexual concepts or ideas or suggested sexual acts”. The applicant had not viewed any of the material as being “pornographic” or inappropriate.
[32] In terms of all the descriptors of inappropriate material, the applicant denied that any of the material fitted any of those categories.
[33] The applicant was then shown copies of some images of material found on his computer.
[34] The documents included, inter alia, an image of a woman, naked from the waist entitled “This morning I was sent an angel” The applicant denied that there was anything sexually explicit in the image.
[35] There were a series of images of children under the heading of “Why boys need parents”. The images include a small child with his penis exposed over a bowl and a boy who has covered himself with stick-on sanitary pads, with one wrapped around his penis. Upon being questioned about these images, the applicant stated: “I find it hard how anybody can find this – the whole series - there is a series of children and what they go through as kids”. PN367
[36] A further image was presented which showed a drawing of two males showing joined genitalia in a deformed state. [entitled “Siamese Twins – worst case ever recorded”]. The applicant said the image was a cartoon which had not offended him.
[37] A further image was of a disfigured and burnt male penis. [entitled “Today’s safety lesson”]. The applicant viewed the image within the context of a safety lesson for men in that they should not urinate on a 220-volt fence.
[38] Further documents displayed material which the respondent viewed as racially offensive. One document involved Muslim immigrants. The respondent described the punch line to the story as involving the use of four-letter words together with a series of derogatory statements of a serious racial nature. The lead in to the commentary was “Have you ever noticed that if you rearrange the words “Muslim Immigrants” and add a few more letters, it spells out “F… off and go home, you hairy-faced, sandal-wearing, bomb-making, benefit-grabbing, smelly-assed, rag-headed pricks”.
The applicant’s response was that “I disregard it as rubbish because how can you get that much out of two words”.
[39] A further image which involved male genitalia being bar-b-qued brought the response from the applicant “It doesn’t do anything for me”.
[40] Another image involved a DVD which showed obese, naked women rubbing oil on each other entitled “The real cause of the oil shortage”.. The applicant saw nothing sexual in the material.
[41] Further material entitled “Idiots of the Month” showed images of people seriously hurting or injuring themselves.
[42] In the applicant’s view, images etc were only pornographic if people were “at it” or someone was taking a film of people “at it”. [Transcript - PN 691]
Re-examination of the Applicant
[43] The applicant stated that he had found the Policy on nudity to be ambiguous. The applicant viewed nudity as being ‘fully unclothed’. [Transcript – PN899]
[44] The applicant said that he hadn’t seen all of the material presented until he had seen the respondent’s affidavits.
[45] The applicant also held the view that neither he nor his colleagues understood the Policy. The applicant stated:
“I got the impression that everybody at work is waiting for a result out of this to find out what is explicit and what is implicit. They don’t know. You get a list of things here. What is explicit? You know, nothing is put in front of you saying, “This we consider to be implicit. This we consider to be explicit.” At the moment its just words. There’s nothing there to define what is and what isn’t.” [Transcript PN883]
[46] Those sentiments were supported by Mr David Smith [RTBU delegate]. [Exhibit 1]
[47] Paragraph [31] showed a woman who was naked from the waist up. The applicant elaborated upon his response to state:
“Well, as I said, you know, if it was a dark skinned woman in National Geographic, it wouldn’t have even arisen. She has got boots on; she has got socks on’ she’s got pants on; she has got something in her hair; wings on her back; something hanging around her neck”. The applicant viewed ‘nudity’ as only applying to someone who was fully unclothed. [Transcript – PN898]
[48] Upon further questioning around the tattoo in paragraph [37] the applicant was asked if he viewed the drawing as pornographic, to which he responded:
“No, I didn’t look at it the way he looked at it at the time. I just took it as a butterfly. Until people explained things – explained it to me, you can see other things into it, but I didn’t read that into it at the time.” [Transcript – PN933]
[49] Note Not every image shown at this hearing has been identified above.
Respondent Evidence
Mr Lance Edwards [Senior Human Resources Advisor]
[50] Mr Edwards commenced in this role in May 2009, taking the file over from another employee who had conducted the initial investigation.
[51] The issue around the material found on the applicant’s computer was first identified by the applicant’s Manager, Mr Jeff Smith who saw a screen saver on the applicant’s computer which he deemed to be inappropriate.
[52] Mr Gary Wegert, Mr Smith’s manager, was contacted as there was concern that there might be other inappropriate images on the applicant’s computer and that of a Mr McMillan.
[53] Mr Edwards spoke to Mr Jeff Smith on 10 June 2009 to review the emails and images linked to the applicant.
[54] Mr Smith expressed discomfort at having to view all of the images however he advised that he had spoken to the applicant when he sighted the inappropriate screen saver.
[55] A meeting was held with the applicant on 23 June 2009. The applicant had a support person with him. The purpose of the meeting was explained to the applicant. This was to gather information regarding his actions when receiving and sending emails as well as storing and accessing inappropriate images.
[56] The term ‘store’ was explained to the applicant. This referred to images that were found on QR computers which had been accessed by the applicant over time and that were associated with the applicant’s user login.
[57] The applicant acknowledged that he was the owner of the email account, but he did not accept that the emails stored in the account were inappropriate. The applicant stated that he had made his own personal judgement of what was or was not appropriate material.
[58] The applicant was shown the emails from October 2008 to March 2009. A spreadsheet was established which showed the emails per category as defined within then Electronic Communication specification. [Exhibit 3 – Point 25].
[59] The applicant was given an opportunity with his support person to view this material in the absence of the others present at the meeting.
[60] The emails under the following headings, “This morning I was sent an angel”; Siamese Twins – worst case ever recorded”; Why boys need parents’; Today’s Safety Lesson”; “The real cause of the oil shortage” were viewed by the applicant and his support person. The applicant did not seek to view any further emails on the laptop.
[61] The applicant had said that the question of whether emails were appropriate or not depended upon the sensitivity of those to whom they were sent and his judgement was not based upon the terms of the Electronic Communication specification.
[62] The emails viewed by the applicant and his support person related to matters of a sexually explicit / sexually implicit nature. The applicant, however, had also received emails and forwarded a number of emails that were categorised as offensive, cruel, malicious, violent and inappropriate pursuant to the Electronic Communication specification.
[63] The applicant had also received and forwarded emails containing videos which were in breach of the Electronic Communication specification. One video, “Idiots of the month”, showed a number of people severely injuring themselves. Another video, “Unusual Musical Performance” showed a female going through various movements to ultimately play a musical instrument by inserting in into her genitalia. While no nudity was shown, the video was extremely inappropriate in accordance with the Electronic Communication specification.
[64] When questioned as to whether he had notified his supervisor to say that he had been receiving inappropriate material and also whether he had asked senders of the emails to stop sending the inappropriate material, the applicant reiterated that he had not found the material inappropriate and therefore not in breach of the Electronic Communication specification.
[65] The applicant advised that he was aware of the respondent’s Code of Conduct together with other relevant QR Policies. [Exhibit 3 – point 51]
[66] The applicant was also aware of the ‘Acknowledgement of QR’s Electronic Communications Systems Specification’ when he logged onto his computer each day.
[67] The applicant said he was unaware that the images had been saved onto his system.
[68] The respondent determined to escalate the investigatory process to a disciplinary interview with the applicant.
The disciplinary meeting of 6 July 2009
[69] The applicant was told that he had breached the respondent’s Code of Conduct.
[70] The applicant was advised that he was required to comply with QR policy and that it was not for him to determine subjectively what was appropriate or inappropriate material.
[71] The applicant provided a written response. That included the following:
• That the applicant was ignorant and did not realise that accessing news websites could be in breach of QR policy;
• That he did not know that the images from the sites would be saved.
• The emails had been taken out of context.
• The emails had only been forwarded to people who would not be offended by them.
• That he had unwittingly breached the Code of Conduct and the Electronic Communication specification for which he apologised.
• The applicant undertook to advise all of his contacts not to send anything to his work email address and that he would delete any non work related contacts.
• The applicant advised that he would in future adhere to all QR policies.
• The applicant reiterated that the material under consideration was not pornographic or racially vilifying.
[72] The applicant was advised that any further breaches of a similar nature could lead to further disciplinary action up to and including dismissal.
[73] However, upon reporting to Ms Wran, Human Resources Manager, Practices and Services, it was decided that given the volume and nature of the breaches the applicant should be issued with a show cause letter as to why his services should not be terminated. This approach was consistent with action taken in relation to similar situations.
[74] Mr Edwards was of the view that there was inconclusive evidence that the applicant had deliberately and consciously saved the images to his computer. There was evidence, however, that the applicant had forwarded emails of a sexually explicit nature to a significant number of recipients.
[75] Consequently, the draft show cause letter asked the applicant to respond to the forwarding of emails only.
[76] The applicant’s response to the show cause was received on 5 August 2009.
The response contained, inter alia, the following:
• The applicant admitted to receiving and sending three emails which were not sent in a representative capacity of QR, nor were they forwarded to any other employees or agents or representatives of QR. Those emails did not contain any pornographic or sexual images on any reasonable view of the emails.
• ‘Inappropriate” is defined however what is ‘inappropriate’ very much will depend on the interpretation of the sender/recipient.
• The applicant’s unblemished record of nearly 40 years with QR should be considered.
• The email, “Oil Shortage” was not inappropriate. It represented a satirical analysis of the oil crisis.
• The nature of the work performed by the applicant should be considered.
• The applicant worked shift work. The applicant has been married for 27 years.
• The applicant commenced work at 12am and works until 8.26am. He did not enjoy normal family activity because of his working hours.
• Communication with family and friends was limited and the emails which were sent went to family and friends with no intention to offend or humiliate.
• The applicant had been a loyal and conscientious worker for many years.
• The applicant had deleted all his contact materials from the computer.
• The applicant had re-read all relevant policies and signed copies which were forwarded back to the Network Manager.
• The applicant apologised to QR for these incidents.
• The applicant believed that QR would filter out all inappropriate material and consequently be did not believe that he was acting inappropriately.
[77] After considering the applicant’s response, the respondent determined to terminate his employment.
Evidence of Ms Lysa Glancy [Career Transitions Manager, QR Limited]
[78] Ms Glancy provided a history of the various Codes of Conduct and Policies implemented by the respondent. The common theme, relevant to this matter, was that pornographic or sexually explicit material and sexually implicit material was deemed to be inappropriate.
[79] Updates of the Policy occurred frequently with commentary which included, by way of example, the following which was provided to employees in 2004:
“I will stamp out this practice for the benefit of employees. You have been warned – if you ignore the instructions above and inappropriate material is found on your system it will cost you your job”.
[80] Notices were frequently placed in pay slips and on the QR intranet warning employees of the respondent’s Policy with regard to the use of their computer system.
[81] Ms Glancy stated that”:
“QR considers that it is not for QR employees to make a personal value judgement on what material they believe is inappropriate by their own standards, that is, whether are personally offended by material that fits a description in the QR policy as being forbidden. Whilst employed by QR, employees are required to abide by QR’s policies and specifications.” [Exhibit 6 – point 80]
Findings
[82] I accept the respondent’s submission that there was inconclusive evidence that the applicant had deliberately saved the images to his computer. What was accepted however was that the applicant did forward emails of an inappropriate nature to a significant number of recipients. The material identified at the time of the termination of employment discussions was inappropriate and contrary to the respondent’s policies so much so that termination of employment was warranted.
[83] The relevant respondent’s policies have been detailed in this decision.
[84] The issues to be determined are whether the applicant had breached the respondent’s various Codes of Conduct and, if so, whether termination of employment in the circumstances is unfair, unjust or unreasonable.
[85] QR has very strong policy guidelines with regard to employees’ use of the computer system in the workplace. In fact, the respondent had taken extensive steps directed towards the complete eradication of the type of images described in the Electronic Communications specification.
[86] The policies have been stated above, and there is no question that the intent of the policies is clear and unambiguous, notwithstanding the applicant’s evidence to the contrary.
[87] In Wake v Queensland Rail (PR974391), a Full Bench of the AIRC viewed the use of company electronic systems for inappropriate use as a “serious and socially important issue”. The Full Bench stated that it was more than reasonable that employers take what steps they can “to eradicate traffic in such images.”
[88] The applicant says that the respondent applied an excessively conservative standard with regard to the material which was found on his computer and further that the respondent could not satisfactorily establish that the applicant was responsible for the material in question.
[89] Firstly, the applicant has admitted in evidence and in written submissions to the breaches of the respondent’s policy which are alleged.
[90] The Electronic Communications specification identifies the categories of inappropriate material as including material which has
(a) pornography/sexually explicit
(b) sexually implicit
(c) Violent/cruel and
(d) Other categories
[91] The policy is clear that this type of material cannot be created, copied, accessed, downloaded, displayed, stored or sent.
[92] In addition to pornographic material, any material dealing with sexually explicit material (which was said to mean not just sexual acts, but to include nudity) and sexually implicit material, which was said to include material with sexual concepts or ideas or that suggested sexual acts would be inappropriate.
[93] The applicant, in his submission that a very conservative approach has been taken by the respondent to the materials in question, states that the real test to be adopted is that of the employee in assessing whether or not the material is inappropriate.
[94] In my view, that is not the test. The standard is set by the respondent and that standard, provided it is lawful, clear and unambiguous, is the one to which adherence must be given.
[95] The applicant received a significant amount of emails and many of those emails had been forwarded on by him to other persons. The applicant used the respondent’s computer system to forward this material.
[96] The type of material in question has been referred to in this decision. The examples are contained in paragraphs 31-36 of this decision. There is no question whatsoever that the images in question are inappropriate and breach the respondent’s policies.
[97] It is not accepted that the respondent has taken a ‘conservative’ approach to these matters. What is evident is that the respondent’s policies were fair, clear and unambiguous and failure by employees to adhere to such policies have the potential to create an environment which could “undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination.” [Wake]
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Re (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[98] A valid reason for the termination of the applicant’s reason has been set out in paragraph [3] of this decision.
Re (b) whether the person was notified of that reason
[99] The applicant was notified of the reason for his dismissal.
Re (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[100] The applicant was given ample opportunity to respond to the allegations made.
Re (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[101] The applicant attended relevant meetings with his Union representative.
Re (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[102] There was ample warning given to respondent employees that failure to adhere to the respondent’s policies with regard to inappropriate electronic communications systems use could lead to termination of employment.
Re (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[103] This criterion has not been a matter for consideration.
Re (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[104] This criterion has not been a matter for consideration.
Re (h) any other matters that FWA considers relevant
[105] There are no other issues to be considered.
[106] The breach of the employer’s policies by the applicant warrant the action taken by the respondent in terminating his employment.
[107] In saying this, I have taken into account all of the factors raised by the applicant – ie length of service; the applicant’s work record with the respondent; absence from his family and friends through working shift work, amongst other matters.
[108] The actions of the applicant seriously transgressed the respondent’s policies so much so that the termination of his employment was not harsh, unjust or unreasonable.
[109] I dismiss the application.
DEPUTY PRESIDENT
Appearances:
Mr L Tiley for the applicant.
Mr Herbert for the respondent
Hearing details:
2010
Brisbane
June, 18,24
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