Fair Work Australia forces Thales Australia to reinstate employees dismissed for pornographic emails

Thales Australia has been forced by Fair Work Australia to reinstate three employees who it dismissed for email misuse including the sending of pornographic images.

The engineering company and defence force contractor had dismissed long-term employees Carolyn Flanagan, Christopher Hogan and Kristian Pitches in February.

The three employees had been with the company in production roles for 20, 14 and 12 years respectively and were summoned to individual meetings where the allegations of email misuse were put to them.

The trio did not contest the allegations and within the week the employees were summarily dismissed.

However, the employees then lodged unfair dismissal claims, arguing they were unaware of the company’s “internet and email security framework policy” and hadn’t received training specifically addressing email usage.

A union organiser and two site delegates gave evidence on the employees’ behalf, stating that most workers at the site were not aware of or did not understand the framework policy.

Thales argued its policy was reinforced by a login pop-up box on employees’ computer screens, and general warnings had previously been sent to staff via email about the consequences of inappropriate use, up to and including dismissal.

Commissioner Bull of Fair Work Australia found the employees’ misuse of email did constitute a valid reason for dismissal, but a number of other factors meant the dismissals were harsh, unjust or unreasonable.

Commissioner Bull found the trio were not given a period to digest the allegations, seek advice and respond in a “more informed manner”, the receipt or recollection of the prior staff warnings was not put to the employees at the meetings.

This was especially significant because two of the employees had only gained email access after some of the warnings were issued.

Thales also failed to explain the lapse of time between an investigation into email misuse that finished in September 2011 and the employees’ dismissal in February 2012.

None of Thales’ witnesses had “any clear understanding of [the employer’s] responsibilities under their Internet and Email Security Framework Policy”, failing to inform the employees, as per the policy, that their email use was monitored.

The Commissioner also note that no evidence was produced that the employees were trained in relation to the internet and email security framework and Thales had not considered the consequences of the dismissal on the employees, who live in a regional community and failed to gain equivalent work elsewhere.

Commissioner Bull concluded that “no particular matter alone” resulted in his finding, but rather the combination of circumstances and deficiencies in the process undertaken by the employer.

He ordered that the employees be reinstated to their positions, as there was no evidence that the relationship had broken down and they were unlikely to reoffend.

However, their misconduct meant no compensation was awarded for the time they were out of work.

“I would make it clear that this decision is not intended to in any way undermine an employer’s right to enforce appropriate policies regarding the use of email at the workplace,” Commissioner Bull stated.

“[But] it ought not to be assumed that the tribunal will uphold an employer’s right to terminate in all cases of a breach of a policy regardless of the circumstances.”