Steven McMahon v Snowy Hydro Limited
[2012] FWA 8762
•5 DECEMBER 2012
[2012] FWA 8762 |
|
DECISION |
Fair Work Act 2009
s.394 — Application for unfair dismissal
Steven McMahon
v
Snowy Hydro Limited
(U2012/6926)
COMMISSIONER BULL | SYDNEY, 5 DECEMBER 2012 |
Alleged unfair dismissal - inappropriate use of company computer and email access - pornographic content.
[1] This matter involves an application for an unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Steven McMahon (the Applicant) against his former employer Snowy Hydro Limited, (the Respondent).
[2] A hearing of the matter was conducted in Canberra on 10 and 11 September 2012 and closing submissions were heard in Sydney on 20 September 2012. Mr McMahon was represented by Mr A McKinnon, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Snowy Hydro Limited was represented by Mr M Easton, of counsel.
Background
[3] Mr McMahon had approximately 25 years service with the Respondent, having commenced work with Snowy Hydro Limited on 27 October 1987. In 2010, Mr McMahon was promoted to a Team Leader - Electrical, a position in which a number of tradespersons and apprentices reported to him. At the time of his termination Mr McMahon was employed as Team Leader - Electrical.
[4] Mr McMahon’s workplace was at Cabramurra, located in the Snowy Mountains.
[5] Mr McMahon was notified on 20 February 2012, by the Respondent’s management that he was required to attend a meeting that day. At this meeting Mr McMahon was advised he was under investigation for allegedly accessing private employee documents.
[6] The Applicant was subsequently stood down on full pay pending the outcome of the investigation into his use of Snowy Hydro IT systems.
[7] On 19 March 2012, the Applicant was required to attend a second meeting. During this meeting, the issue of the Applicant’s alleged inappropriate use of Snowy Hydro emails and pornographic material found in his work email account in breach of Snowy Hydro IT policies was addressed.
[8] On 20 March 2012, the Applicant attended a third meeting which resulted in him being advised of the termination of his contract of employment on the ground of serious misconduct.
Applicant’s case
[9] The Applicant and Mr Mick Koppie, an organiser with the Electrical Trades Union NSW Brach (the ETU) tendered written statements and gave evidence.
[10] The Applicant submitted that even if the Tribunal found that there was a valid reason for termination, in all the circumstances the termination is unfair. This argument is based on a number of propositions referred to below.
[11] It was the Applicant’s case that there was no evidence before the Tribunal that his conduct had any deleterious effect on the safety and welfare of other employees, nor was there any evidence of a serious or imminent risk to the health or safety of other employees.
[12] The conduct involved does not satisfy the test for termination based on the grounds of serious or gross misconduct.
[13] The sending, receipt and storage of pornographic emails was undertaken for private purposes and did not involve accessing external pornographic websites using the Respondent’s computer system. The Applicant was not given any warning or opportunity to correct his behaviour, despite warnings given to other employees and an alleged widespread culture of inappropriate email usage within the workforce. This was said to be demonstrated by the number of other employees whose conduct was also the subject of investigation, and which resulted in the Respondent issuing warnings over inappropriate email usage.
[14] There is no evidence that substantiates that the Applicant had a poor employment history. While not a model employee, the Applicant met or exceeded his performance requirements.
[15] It was argued that during the Respondent’s investigation the Applicant had been open and honest in admitting his use of the Respondent’s computer system to send, receive and store inappropriate pornographic images.
[16] The Applicant submitted that he had received limited training relating to company computer usage, which the Respondent’s training records confirm and further that, the Respondent allowed inappropriate content onto its computer system.
Applicant’s evidence
[17] Mr McMahon prepared a witness statement and gave evidence under oath. He testified that on 20 February 2012, he was asked by Mr Mark McFarland, the Area Manager, to attend a meeting and bring a support person. The Applicant attended the meeting with Mr David Baldwin a CEPU delegate. At the meeting the Applicant was told the company was investigating how he came to print out a document containing private information of his Manager, Mr Mulligan. He told Mr McFarland and Ms Lyndall Dean, the Respondent’s Manager Workplace Relations and Human Resources Strategy (who was also present at the meeting) that he had found the document on his work computer in a public area and had printed it out to read in private. At the end of this meeting Mr McMahon was stood down on pay while the company undertook an investigation into the possible misuse of personal information.
[18] During the meeting of 20 February 2012, the Respondent advised the Applicant that for the purposes of conducting a thorough investigation into the allegation, the Respondent would require access to the Applicant’s computer records. In response, Mr McMahon declined to provide permission for the Respondent to access his computer records without being present. As a consequence, the company provided 14 days written notice under the Workplace Surveillance Act 2005 (NSW) and confirmed their intentions to examine his computer records.
[19] Following the company’s investigation, a further meeting was held on 19 March 2012. The Applicant attended this meeting with Mr. Mick Koppie an organiser for the Electrical Trades Union New South Wales Branch. Also present at the meeting was Mr McFarland and Ms Alice Purss from the Respondent’s Human Resources department and Ms Dean.
[20] During this meeting fresh allegations concerning the Applicant’s use of the Snowy Hydro computer systems were raised, specifically those involving pornographic content.
[21] Further at this meeting, Ms Dean made allegations about Mr McMahon accessing other employees email accounts which he denied. Ms Dean then opened Mr McMahon’s outlook account and identified a private and confidential folder. She then proceeded to open and examine every email in the file that contained pornographic material. On each occasion that an email was opened Ms Dean said words to the effect of, “do you think you should have this on your computer” or “do you think women might find this offensive”.
[22] Mr McMahon stated that his general response to these questions was to the effect that they were private emails, for private viewing and had not been sent to any women. This process went on for a number of hours. During the meeting Ms Dean also alleged that Mr McMahon forwarded emails to other employees.
[23] Mr McMahon stated that he had forwarded pornographic emails to his personal address but was not in the habit of forwarding these emails onto other employees.
[24] At the conclusion of the meeting, Mr McMahon was told that the company would have further discussions with Mr Shea the Respondent’s, Executive Officer People and Culture, and he was asked to return to work the next day.
[25] On the following day, 20 March 2012, Ms Dean stated that the company did not accept Mr McMahon was being honest and had concerns about his behaviour being contrary to Snowy Hydro policies. Mr McMahon states that at no time did he ever lie or deny having pornographic emails on his system and if he did forward them on, it was not more than a few times and only after being requested by other employees to do so.
[26] Mr McMahon stated in his witness statement and evidence that he was now fully aware of the Company policy on email usage and was totally committed to not storing or sending inappropriate emails on company computer systems in the future.
Evidence of Mick Koppie
[27] Mr Koppie was a Union Organiser for members employed by Snowy Hydro Limited. He stated that in February 2012, the Applicant contacted him about a meeting he had been summoned to regarding his printing of the private résumé of his Manager.
[28] Mr McMahon then advised Mr Koppie that he had been stood down on pay while the company was undertaking an investigation that involved accessing his computer records.
[29] On 19 March 2012, Mr Koppie attended with the Applicant a meeting with Snowy Hydro Limited personnel to discuss the outcome of the company’s investigation. Ms Dean chaired the meeting and stated that the purpose of the meeting was the alleged misuse of private information. The Company’s IT department had located emails and attachments which were considered offensive on his computer.
[30] The meeting took place in a small training room; a projector with computer access was also set up to view Mr McMahon’s computer records on a large screen. The process was undertaken between approximately 10:00am and 2:30pm.
[31] Each email and attachment in Mr McMahon’s folder was viewed, followed by a series of questions from Ms Dean. Mr McMahon explained that he only looked at his stored inappropriate emails when his work was completed. Mr Koppie stated that a number of the emails examined were five years old or older. At the end of the meeting, Mr McMahon was asked to return the following day.
[32] The following day, 20 March 2012, Mr Koppie attended the meeting at Cooma, the head office of Snowy Hydro Limited, with Mr McMahon. Mr McMahon was again questioned about his alleged poor behaviour, after which Mr Shea read out the contents of Mr McMahon’s termination letter which was then given to him.
Respondent’s case
[33] The Respondent called three witnesses, all of whom had prepared witness statements:
● Ms Lyndall Dean (Manager Workplace Relations & Human Resources Strategy);
● Mr Charles Shea (Executive Officer People and Culture); and
● Mr Mark McFarland (Area Manager, Upper Tumut).
[34] The Respondent put to the Tribunal that the Applicant kept in a separate designated folder in his work email account pornographic and otherwise inappropriate material. He had also forwarded these emails and showed this material to other employees. The material was contained within emails some of which were in the Applicant’s inbox, but most were in a separate email folder labelled ‘personal private’. The material was predominantly pornographic.
[35] The Respondent stated that the Applicant’s conduct was particularly concerning given that as a Team Leader he showed no remorse and failed to recognise that his conduct was unacceptable. When asked about the offensive material contained on his email account Mr McMahon argued with the human resource staff as to whether the material was offensive, whilst making further offensive comments and asserted that his conduct was acceptable.
[36] The Respondent submitted that the Applicant had attended workplace training including training regarding computer usage. It was submitted that the Applicant was extensively interviewed about the storage and distribution of pornography prior to his termination and he was represented throughout this process by his trade union while persistently refusing to acknowledge the inappropriateness of his conduct.
[37] The Respondent submitted that due to the Applicant’s responses to the allegations put to him, being that there was an absence of genuine regret or remorse, that the necessary trust and confidence between the employer and the employee had been destroyed.
[38] The Applicant was provided with a termination letter which outlined briefly the reasons for termination. The letter referred to meetings held to obtain the Applicant’s response as to why he had stored and distributed inappropriate emails. Reference was made to the training he had received in relation to workplace behaviour and computer usage and his previous warnings and discussions. Having considered the Applicant’s response his termination of employment was to occur immediately. However, due to his long service with Snowy Hydro Limited he would receive five weeks pay in lieu of notice.
Evidence of Lyndall Dean
[39] Ms Dean is the Respondent’s Manager Workplace Relations & Human Resources Strategy. Ms Dean advised the Tribunal that she reports to Mr Shea, Executive Officer People and Culture. Ms Dean advised the Tribunal that Mr McMahon reported to Mr Terry Mulligan, Maintenance Manager who in turn reported to Mr McFarland, Area Manager Cabramurra.
[40] The Applicant as Team Leader - Electrical, was responsible for the electrical maintenance of Snowy Hydro’s electrical assets at Cabramurra, with a number of tradespeople and apprentices reporting to him. Ms Dean told the Tribunal that approximately 490 employees were employed by the Respondent across eight locations.
[41] Ms Dean stated that on 23 January 2012, she received a telephone call from Mr Mulligan (Maintenance Manager), who was Mr McMahon’s direct manager, who expressed his concern as he believed that Mr McMahon had accessed and printed a copy of his private résumé. On contacting the Snowy Hydro IT section it was ascertained that the résumé was located in the ‘H Drive’ belonging to the Applicant and that it had been printed from the Applicant’s log in. Ms Dean said that the Company was concerned that the Applicant had accessed what was personal information about his Manager.
[42] A meeting was organised on 20 February 2012, where the allegations concerning the accessing and printing of the private résumé were put to Mr McMahon. At this meeting Mr McMahon did not deny he had printed and read the private résumé of his Manager and he was then told that an investigation of the possible misuse of personal information would be conducted. Mr McMahon was requested to provide his consent to search his computer records which he refused unless he was present at the time. As a result, Mr McMahon was suspended on full pay and was told he would be given 14 days notice of the Company’s intention to search his computer records. Ms Dean stated that the Applicant replied:
“good, fine, 2 weeks leave on pay I’m going fishing”
[43] No further action was taken until the 14 days notice had expired.
[44] The search of Mr McMahon’s email account was undertaken by the IT department who identified a sub folder called ‘personal private’, on opening this folder it was clear from the title of the emails inside the folder that it contained inappropriate and possibly pornographic material.
[45] An examination of the emails showed they contained images/video’s showing exposed genitals of both sexes and/or sexual acts.
[46] During the investigation Ms Dean advised that she had a number of conversations with Mr Koppie from the ETU. During one such conversation she advised Mr Koppie she would have a fair bit to talk about to Mr McMahon at their next meeting to which Mr Koppie replied “so you found the porn”. A meeting was arranged for the Applicant and for his representative Mr Koppie to attend, and this was held on Monday 19 March 2012.
[47] At this meeting Mr McMahon was advised that the Company wished to obtain his explanation for the large volume of emails with inappropriate content that had been located on his computer, as well as the misuse of the personal information discussed in February 2012.
[48] Ms Dean stated that two inappropriate emails were dated 2008 and the remainder were from 2009 onwards.
[49] Ms Dean advised of the nature of the Applicant’s responses to various pornographic emails found on his work email account. These responses included the following:
● “I am not gay I like looking at women”
● “I find it very attractive”
● “I don’t know what women think, those women find it attractive”
● “My private emails, my personal viewing”
● “Nice women in public view”
[50] Mr McMahon’s responses also included that he had sent the inappropriate emails to people who he thought would enjoy them.
[51] In concluding the interview the Applicant was asked whether he agreed that accessing, storing or circulating pornography and other offensive material in the workplace was unacceptable to which he replied: “no”.
[52] A further meeting was held the next day, where the Applicant maintained his position from the previous day.
[53] Ms Dean concluded that the Applicant had openly demonstrated his belief that his conduct was acceptable and showed no remorse or contrition for his behaviour. This attitude contrasted markedly with other employees whom the investigation had shown had inappropriate emails on their computer and all of whom expressly acknowledged their unacceptable conduct.
[54] Mr McMahon’s conduct and responses were all the more serious as he occupied the position of Team Leader. As a result of the investigation, the meetings held with Mr McMahon and his responses it was decided that his employment should be terminated and he was advised of this outcome on 20 March 2012. Mr McMahon’s response was:
“I expect a farewell for 25 years and I expect Snowy to put money over the bar”
[55] Ms Dean stated that Mr McMahon then produced a memory stick (USB) and requested that that the Company save all of the material in his ‘personal private’ folder on the basis that is was his property. This request was declined in respect of the inappropriate material.
[56] As a result of the email investigation of Mr McMahon a broader investigation of the workforce was undertaken. Ms Dean stated that two employees were identified as having sent inappropriate emails to the Applicant and both were suspended on pay. One of those employees had left the Respondent’s employment on confidentially agreed terms and the other was to be interviewed on return from a period of extended sick leave.
[57] In respect of other employees who were identified as having received some inappropriate email content; discussions were held with 97 employees across five locations. The outcome of these discussions resulted in:
● 2 employees ceasing employment;
● 9 employees issued final warnings;
● 48 employees issued warnings;
● 13 employees counselled; and
● 22 employees had file notes placed on their HR files.
[58] Ms Dean described the Applicant’s response to his inappropriate conduct as being unique. All other employees demonstrated regret at their actions and accepted that their conduct was inappropriate. Mr McMahon was also unique in creating a specific folder to store his pornographic material.
Evidence of Charles Shea
[59] Mr Shea is the Respondent’s Executive Officer People and Culture. In late January 2012, he was informed by Ms Dean that a document containing personal information relating to Mr Mulligan, the Applicant’s direct manager had been located on a printer. He was later told that the IT group had identified that the document had been printed from a computer with the Applicant’s ID and log on. During the investigation into this event he was told by Ms Dean that in early March 2012, a separate folder containing pornographic material had been created by Mr McMahon.
[60] Ms Dean advised Mr Shea that during a meeting with Mr McMahon on 19 March 2012 to discuss the content of his email file, Mr McMahon did not see that he had done anything wrong. Mr Shea decided to attend the meeting the following day on 20 March 2012, where Mr McMahon was given the opportunity to provide any further response. During this meeting Mr McMahon showed no contrition or appreciation for the seriousness of his conduct.
[61] Mr Shea stated that Snowy Hydro Limited at the end of its investigation had concluded that the Applicant had deliberately stored significant quantities of inappropriate and pornographic material on a Company issued computer and distributed some of it to other Snowy Hydro Limited employees which was not aligned with the company’s behaviour expectations of Team Leaders.
[62] Mr Shea formed the view that Mr McMahon would in all likelihood, continue to retain or distribute inappropriate and hard core pornographic material and came to the conclusion that in all the circumstances termination of employment was the appropriate course. Due to the Applicant’s long service, he was provided with five weeks pay in lieu of notice and allowed to remain in his Company house for a period of three months.
Evidence of Mark McFarland
[63] Mr McFarland is the Respondent’s Area Manager, Upper Tumut. The Maintenance Manager reports to him and under the Maintenance Manager are three direct reports known as Team Leaders for the areas of mechanical, electrical and civil. Mr McMahon was the Team Leader for electrical.
[64] Mr McFarland stated that he did not allow nor did he ever observe employees view or circulate pornographic emails within the workplace. In Mr McFarland’s view, employees understand that viewing pornographic material is unacceptable and will result in disciplinary action.
[65] In mid 2010, a Team Leader position became vacant and he needed to appoint an acting Team Leader. Mr McFarland formed the view that Mr McMahon had leadership potential and he was offered the acting position. Mr McFarland had knowledge that Mr McMahon had a history of behavioural issues and safety breaches over previous years, but he was prepared to give him the benefit of the doubt. Mr McFarland stated that he told Mr McMahon he was giving him an opportunity to demonstrate his leadership capability.
[66] In early October 2010, Mr McFarland stated that he spoke to Mr McMahon about improving his management skills if he was to be appointed permanently as a Team Leader. Mr McMahon acknowledged the need for improvement. On 11 October 2010, Mr McFarland appointed the Applicant to the permanent position of Team Leader - Electrical.
[67] Mr McFarland described a number of events in 2011, where he was not satisfied with the Applicant’s work performance/conduct. In September 2011, Mr McMahon asked to be released from the role of Team Leader and revert back to a tradesperson in the technical team, but if he couldn’t move to the technical team he would prefer to stay in his current role. By January 2012, Mr McFarland had formed the view that the Applicant had failed to model good behaviour and had regressed to his old ways to the extent that he could not remain as a Team Leader. Mr McFarland had not removed Mr McMahon from his position of Team Leader prior to his termination; a number of reasons for this inaction were given to the Tribunal (PN 2498-2502).
[68] Mr McFarland told the Tribunal that he was involved in the investigation concerning Mr McMahon’s access to a private document of another employee and his storage and distribution of inappropriate emails on the company computer. Mr McFarland attended the meeting to discuss these matters with the Applicant on 19 March 2012. He did not attend the meeting the following day as he had a conflicting work commitment.
Legislation
[69] Pursuant to s.387 of the Act, the Tribunal must determine whether the Applicant’s dismissal was harsh, unjust or unreasonable.
[70] Section 387 of the Act sets out the matters the Tribunal must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
(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.
[71] I shall now deal with the criteria for consideration established by s.387 of the Act.
(a) Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees)?
[72] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 1, in relation to s.170DE of the Industrial Relations Act 1988. Northrop J stated:
“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[73] The holding of the word ‘valid’, as meaning sound, defensible or well founded continues to be applied by this Tribunal.
[74] In respect of employees distributing pornographic emails in the workplace, the Full Bench decision in Wake and Queensland Rail [2006] 2 provided the following observation:
“[21] ...Obviously each case is to be decided on its merits, but in general it is in the public interest that, subject always to considerations of fairness, the Commission’s decision should support employers who are striving to stop inappropriate email traffic.”
[75] The Respondent terminated the Applicant for using a company provided computer to send, receive and store inappropriate emails in breach of its policies. The Applicant does not contest that the conduct was engaged in, but argues that the termination was harsh, unjust or unreasonable.
[76] I find that there was a valid reason for the termination of the Applicant which relates to his conduct. This conclusion is unavoidable in view of the admission by the Applicant that he had received, stored and transmitted inappropriate emails, in breach of Respondent’s policies on email communication.
(b) Was the person notified of that reason?
[77] The Applicant was notified of the reason for his termination.
(c) Was the person given an opportunity to respond to any reason related to the capacity or conduct of the person?
[78] Mr McMahon was interviewed on 20 February, 19 and 20 March 2012, and invited to respond to the allegations put to him.
(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
[79] The Applicant was represented by his union officials at all of the discussions which finally culminated in his termination.
(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.
[80] Whilst Mr McMahon did not have an unblemished work history, this matter related to specific inappropriate conduct which the Respondent argued was contrary to its workplace policies. The specific offending conduct of the receiving, storing and sending of pornographic emails was not known to the employer until an unrelated investigation was initiated.
(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.
[81] This factor was not an issue.
(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.
[82] There was no absence of human resource specialists available to the Respondent.
(h) Any other matters that FWA considers relevant.
[83] A number of other issues were raised during the hearing of this matter, some of which are addressed in the conclusion below.
Conclusion
[84] There is no contest that the email content relied upon by the Respondent justifying the Applicant’s termination included significant pornographic images and video clips. Mr McMahon’s defence is that he believed the use of his email account on the Respondent’s computer system for private purposes was acceptable, including, where that private use included sending to other employees and storing pornographic emails on the company computer.
[85] The Respondent’s case centred primarily on its conclusion that the Applicant’s conduct was not only egregious, but that the Applicant failed to express any remorse or acknowledge that his conduct was unacceptable, a position he maintained up until his termination.
[86] The Applicant did however, attempt to revise his position. During the hearing and in his witness statement Mr McMahon states that in hindsight his behaviour was not acceptable and that he was now aware that he had broken policies which he regretted (PN 699, 705, 711; Ex A3 at Para’s 81 and 87).
[87] The Respondent can only act on what is before it while the Applicant was its employee. Subsequent admissions of regret and willingness to comply with company policy into the future are not considerations the Respondent was presented with on the day of termination.
[88] The sincerity of the Applicant’s attempts after his termination and at the hearing of this matter to accept responsibility for his conduct and to change his behaviour are seriously discredited by an email the Applicant sent to a number of Snowy Hydro Limited employees on 12 September 2012, two days after having given his evidence, but before the conclusion of the matter.
[89] The Applicant makes a number of statements in his email which the Respondent alleges are false and defamatory. One such statement is clearly relevant to the evidence provided to the Tribunal by the Respondent’s management and reads as follows:
“don’t put up with the intimidation and bullying and managers who lie under oath they want you to leave” (R6)
[90] Mr McKinnon on behalf of the Applicant acknowledged that the email had been sent by the Applicant but told the Tribunal that having spoken to the Applicant he had received no further advice or instructions. The actions of the Applicant strongly support the Respondent’s conclusions that in all likelihood his inappropriate conduct would continue and that the essential trust and confidence between the parties had dissipated.
[91] The Applicant’s admission in cross examination that his Statement of Evidence was deliberately inaccurate in respect of his knowledge of what was to be discussed at the 19 March 2012 meeting in order to bolster his case, also reflects poorly on the Applicant’s credibility (PN 820-821).
[92] The Applicant was told his termination was effective immediately; however, due to his long service he would receive five weeks pay in lieu of notice, together with any accrued or outstanding statutory entitlements. On this basis, I do not find it necessary to consider whether the Applicant’s conduct justified summary termination as opposed to termination with notice.
[93] The Respondent also relied on a number of previous warnings regarding the Applicant’s work performance and behaviour dating back to 1990, most of which related to safety incidents. For the purposes of these reasons for decision, I have not had regard to the previous warnings on the basis of the age of the warnings and their relevance to conduct involving inappropriate email usage. Further, such a work history being considered unsatisfactory is not consistent with Mr McMahon’s promotion to the Team Leader position in late 2010. However, I accept the proposition that over the period of Mr McMahon’s tenure with the Respondent he had not on all occasions conducted himself in an exemplary manner.
[94] In respect of the argument put by the Applicant that the seriousness of the Applicant’s conduct is somewhat reduced by the fact that the inappropriate emails were not blocked by the Respondent’s computer system, I refer to the decision of the Full Bench in Australia Postal Corporation T/A Australia Post v Nick Rushiti 3. The Full Bench held that the employer’s lack of an email filtering system designed to catch the transmission of inappropriate emails does not diminish or excuse an offending employee’s culpability.
Training
[95] The Applicant argues that he received extremely limited training on the restrictions which the company applied to computer usage. An examination of what training was provided would tend to support this position.
[96] On 11 February 2008 the Applicant attended a training course which included training on “SHL Internet Usage Policy.” While the Respondent relied on this course as evidence of relevant training given to the Applicant, no evidence was presented to the Tribunal by any witness or in any document tendered as to what the course content contained. As such it does not assist the Tribunal.
[97] The Applicant attended training on the Respondent’s Workplace Behaviour Policy on 24 August 2010. A copy of the power point slides used for the training course was tendered (Attachment LED 22). One slide out of 42 slides addresses the issue of inappropriate computer use. Under the heading ‘Extremely high risk behaviours’which may lead to disciplinary action or dismissal. A bullet point on the overhead read as follows:
“...
Knowingly using Snowy’s computer system or equipment to access, store, download, email or forward pornography, offensive or stereotyping (sexist, racist, anti-gay etc.) material
...”
[98] Mr Shea stated in cross examination that this training course took about one hour. Ms Dean stated in cross examination that the course took around three hours to conduct (PN 1212, 1995).
[99] Where 97 employees out of a workforce of 490 (20%) are identified, to varying degrees, as having been involved in either the receipt, storage or transmission of inappropriate emails in the workplace, clearly something is lacking in the policies or implementation of the policies of the Respondent in respect of offensive material being circulated on the company computer system.
[100] It comes as no surprise that the Respondent following its investigation has since revised and redrafted its ‘Acceptable Use of Corporate Internet and Email Access Policy’ and conducted further training of its workforce.
[101] Despite the limited training on appropriate computer usage that was provided to the Applicant, I do not consider that this renders the termination of the Applicant unfair. The nature and amount of pornographic material and its email trafficking by the Applicant could not reasonably be expected to be acceptable in any workforce, with or without policies and with or without specific training. The deliberate storage in a folder titled ‘personal private’ and the Applicant’s failure to acknowledge any wrong doing or express any remorse only makes the conduct more serious. 4
[102] The Applicant raised the treatment of other employees who were not terminated as a reason for concluding that his dismissal was unfair. An employee is not treated unjustly merely by reason of the circumstance that other persons are treated more benevolently (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Gray) 5
[103] The issue of differential treatment of employees in respect of termination of employment was also considered in Sexton v Pacific National (ACT) Pty Ltd. His Honour, VP Lawler said:
“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been ‘harsh, unjust or unreasonable’
…
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.” 6
[104] In Daly v Bendigo Health Care Group 7, SDP Kaufman said:
“[62] I am troubled by the apparent disparity in the treatment of Mrs. Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs. Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.”
[105] While the Applicant was not alone in having his employment terminated, the Respondent has adequately distinguished the conduct of the Applicant from other employees who may have received a sanction less serious than termination. The Applicant did not point to any other employee whose conduct placed them in the same circumstances as the Applicant but had received different treatment.
[106] On the evidence, I am not satisfied there is sufficient comparability between the circumstances of the Applicant and other employees. As was amply stated in the evidence, the responses received from the Applicant were markedly different from other employees.
[107] The use of company electronic communications systems for storage and transmission of images containing sexually related and pornographic material is conduct inimical to the maintenance of the employment relationship. Mr McMahon’s approach to the investigation and his actions on 12 September 2012, during the hearing of this matter, has not assisted his claim of unfairness by the Respondent.
[108] There is no basis upon which the Tribunal could properly intervene to overturn the Respondent’s decision in this case. While Mr McKinnon put all that could reasonably be put on the Applicant’s behalf, it has not been established that the termination of his employment was harsh, unjust or unreasonable.
[109] The Applicant had approximately 25 years service with the Respondent, such a lengthy work history, together with the Applicant’s age is a consideration in respect to the harshness of his termination.
[110] Termination of employment is the most severe of disciplinary actions that an employer can invoke; the consequence of losing employment for most employees is devastating. Mr McMahon remained unemployed at the time of the hearing, some six months after his termination. The Respondent provided Mr McMahon with five weeks salary in lieu of notice, based on his length of service. I have taken into consideration, all these matters, in reaching this decision.
[111] Having regard to all the relevant criteria I am satisfied that the Applicant’s dismissal by the Respondent was not harsh, unjust or unreasonable. The application is accordingly dismissed.
COMMISSIONER
Appearances:
A McKinnon,for the Applicant.
M Easton,of Counsel for the Respondent.
Hearing details:
2012.
Canberra.
September 10
September 11.
Sydney.
September 20.
1 (1995) 62 IR 371 at 373
2 PR974391, paras [21]
3 [2012] FWAFB 7423
4 See decision in Flanagan & others v Thales Australia Ltd [2012] FWA 6291 (where the employees were contrite)
5 Majority decision of Keane CJ & Buchanan J; [2012] FCAFC 158
6 AIRC [PR31440] 14 May 2004
7 Trudi Daly Applicant v Bendigo Health Care Group PR973305
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