In the recent decision in Cronin v Choice Homes (Qld) Pty Ltd (U2013/1615), the Fair Work Commission found that an employee had been unfairly dismissed by his employer.
An email was sent to all the company’s staff congratulating the Chief Executive Officer for his 20 years of involvement with the company and on his purchase of a Lamborghini. The employee was dismissed after he sent an email in reply to all the staff where he attached a mock resume for the CEO, which included “Excessive Masturbation” under the heading “Hobbies & Interests”.
The Fair Work Commission concluded that the employee’s dismissal was unfair because it was harsh, unjust and unreasonable.
- It was harsh because it had significant consequences for the employee who had secure and long term employment for a period in excess of six years and who had subsequently been unable to find an ongoing position of employment.
- It was unjust because the email was intended as a joke and the CEO’s reaction to it was disproportionate to the gravity of the employee’s conduct, and also disproportionate when viewed in the context of the company’s workplace culture. It was also unjust because the employee had no opportunity to offer an apology to the CEO and to retain his employment.
- It was unreasonable because the conclusion that the email was inappropriate because it contained sexually explicit material could not reasonably have been reached in circumstances where the reference to masturbation was clearly not sexual, and where there was a workplace culture of distributing and disseminating emails containing highly offensive material, and where more serious misconduct engaged in by other employees did not result in dismissal.
The Fair Work Commission awarded the employee compensation in the amount of $62,000.00 after factoring in adjustments for contingencies and the employee’s contribution to the insulting email.
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