Huge stash of p*rn emails, yet dismissal still harsh

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Huge stash of p*rn emails, yet dismissal still harsh

A woman who amassed more than a thousand sexually explicit and inappropriate emails on her work computer was harshly dismissed, the NSW Industrial Commission has ruled.

A woman who amassed more than a thousand sexually explicit and inappropriate emails on her work computer was harshly dismissed, the NSW Industrial Commission has ruled.

However, reinstatement was impracticable as the employment relationship had irretrievably broken down.

Background


Ms B began work with the Mid North Coast Local Health District in September 2004. At the time of her dismissal in January 2016, she was the assistant to the district manager – Mental Health Services.

Her dismissal followed a finding she had received, stored and sent significant quantities of emails which were considered  "pornographic, graphic (violence) and generally inappropriate in nature".

Some 1256 emails had been stored in a specific folder named "funny emails". A number of similar emails were found elsewhere in her email directory.

Ms B was sacked for inappropriate use of the workplace email system, alleged breach of the code of conduct and communications policy, and serious misconduct.

Response


Ms B contended that her employer's email system should have prevented unwarranted, unwelcome and inappropriate emails to infiltrate the system .

She said had appropriate filtering systems been in place, "the folder and its contents may well have been removed".

Ms B also claimed she had been unaware of her employer's communications policy prior to the allegations being put to her.

Although she accepted that, since 2012, email access required a user to tick a box stating they had read the policy and agreed to comply, she said few people actually read it.

Clear policy on emails


Commissioner Stanton found the employer had a valid reason to dismiss the woman.

He was satisfied the employer had workplace policies which made it abundantly clear there was a prohibition on the sending and receipt of inappropriate emails. 

"Those policies were reinforced and in my view 'triggered' at the point of user log-in which required their mandatory acceptance by 'ticking' a pop-up box. Certainly there can be no argument that this procedure was in place from 2012."

Commission Stanton said employees had be accountable for their actions.

"Should they decide to embark upon a blissful exercise in breach of those standards, they cannot then seek to extricate themselves from the obvious disciplinary consequences," he said.

Although there was a sound reason for dismissal, the commissioner nonetheless found it was harsh.

"I have given consideration to the mitigating factors concerning the applicant's difficult in obtaining alternative employment... her personal, family and dire financial circumstances.

"I have also taken into consideration that she had not previously been warned for misconduct. Against that backdrop, I have determined that the applicant's dismissal was harsh in the circumstances of this case,"he said.

Commission Stanton said reinstatement was not an option "given the gravity of the misconduct" and the breakdown of the employment relationship.

He ordered compensation of eight weeks' pay.

B v Mid North Coast Local Health District [2017] NSWIRComm 1019 (24 April 2017)
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