Offensive emails justified dismissal


Offensive emails justified dismissal

A public servant who was sacked for sending inappropriate and offensive emails to staff has lost his unfair dismissal claim.

A public servant who was sacked for sending inappropriate and offensive emails to staff has lost his unfair dismissal claim.

The Industrial Relations Commission of NSW found that the training adviser, had not heeded directions to cease his behaviour.

Serious misconduct

The adviser, employed by the NSW Department of Industry, was dismissed in February 2018 for serious misconduct.

The next day he filed an unfair dismissal application, and his case was heard in the Industrial Relations Commission of NSW.
The incidents involving misconduct included:
  • Failure to comply with formal direction given by the director of regional operations to cease sending inappropriate and offensive emails to staff members
  • Failure to comply with formal direction to cease sending emails that might denigrate, disparage or otherwise offend staff members
  • Sending a letter to the regional manager referring to ‘a terminal cancer diagnosis for management’ knowing that the manager’s mother had recently died from cancer.
  • Tearing up and throwing away envelopes with copies of emails previously sent to him while on leave as they were handed to him by a senior industrial relations advisor.

Relied on dyslexia as a defence

At a counselling session in May 2017, it was explained to the training adviser that emails he had sent to staff were offensive and disparaging. He had been reminded that it was part of his role as a training adviser to monitor his communications with others and represent the department in a professional manner. 
The training adviser claimed he had not intended to cause offence but acknowledged that he sometimes did because he had a form of dyslexia. He handed out pamphlets explaining dyslexia but did not produce medical evidence to support his claim. He was told the employer would arrange an assessment of his condition with a clinical psychologist in order to determine what assistance could be provided to him. He subsequently refused to undergo the assessment.

Counselling didn't help

The training adviser’s conduct did not improve as a result of the counselling session. In July 2017, the director issued formal directions to him to treat colleagues and members of the public with respect and with regard for their rights and obligations. The letter included a warning that any future communication that denigrated, disparaged or otherwise offended any staff member or any incident that breached the department’s code of conduct or workplace bullying policy could lead to formal misconduct action being taken.
In November 2017, the training adviser was on leave. Nevertheless, he continued to send emails to management. For example, he sent a rambling email to a deputy secretary of the department with a complaint against his regional manager and included cartoons with offensive language and but without making it clear what the point of them was. As a union representative, he accused the regional manager of having misrepresented himself and being dishonest, and also alleged non-compliance with the safety consultation requirements of the Work Health and Safety Act 2011.

Emails showed contempt for department

Comments by managers who gave evidence for the employer included that the training adviser’s style of communication was not conducive to fostering good working relationships with staff. His correspondence had a tone of malevolence and showed contempt for the department. He tended to escalate issues that did not need to be escalated. The managers agreed that reinstating him would be detrimental to the department. He would continue to be disruptive. His argumentative attitude and evasive conduct had caused an irretrievable breakdown of the employment relationship. 
Commissioner Murphy accepted that the training adviser’s work performance had not been the cause of his dismissal, even though he must have spent a fair amount of his work hours on inappropriate emails to staff. One witness had also questioned his suitability as a training adviser, considering his dyslexia. 
The evidence of misconduct had been established to the requisite standard before the commission. The commissioner gave serious consideration to the training adviser’s personal circumstances. He had been given several opportunities to correct his behaviour but had chosen not to. His misconduct had been serious and had occurred over a protracted period. Without medical evidence that dyslexia had caused or contributed to his conduct, it could not be taken into account in mitigation.
Commissioner Murphy agreed with the managers that reinstatement could not be considered. The training adviser’s dismissal had not been harsh, unjust or unreasonable. The unfair dismissal application was dismissed.

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