Email, in one form or another, has been around for more than 40 years but employers and employees are still coming to grips with how to manage email etiquette in the workplace.
In a recent decision of the Fair Work Commission (FWC) (Mr Andrew Pearce v Viva Energy Refining Pty Ltd  FWC 3817), an employee was validly dismissed for circulating an inappropriate email to about 170 of his colleagues.
The employee in question worked as an operator at a refinery in Victoria and had a long history as a member, delegate and elected official of the AWU.
On 25 November 2016, the employee drafted and sent the email to his colleagues at the refinery, which accused several other unnamed operators of being “naive, deluded, stupid or selfish” for attending advanced fire training provided by their employer.
Using highly emotive language, the email essentially expressed the employee’s disapproval and anger about the training that he believed jeopardised the jobs of the refinery’s emergency response officers. The email concluded by stating that the employee would be happy to discuss his position with the operators who attended the training if only he knew who they were.
Upon finding out about the email, the employer launched an investigation which found that the employee’s email was designed to target the operators who attended the training and had the effect of intimidating, isolating, humiliating, or bullying those employees. The investigation also found that the email was designed to discourage other employees from undertaking safety training as required by their employer. For these reasons, the investigation concluded that the employee had breached his employer’s conduct and behaviour policies.
The employer accepted the investigation’s findings and commenced a disciplinary process. In the later stages of the disciplinary process, the employee offered to apologise to the operators and to the employer. The employee was dismissed for misconduct. He had been employed in the refinery for 27 years.
After his dismissal, the employee made an application to the FWC claiming that his dismissal was unfair because his conduct was not sufficiently serious to warrant his employer’s actions. The employee claimed that his employer did not have a valid reason for dismissing him and he should be reinstated.
The FWC considered the email in detail and in particular the language and intent of the email.
The FWC found that the email was intended to negatively portray the operators who attended the training and disrespect their lawful decision to do so. On an ordinary construction of the language, the FWC said that the email and its tone was divisive and was intended to “flush out” the operators who attended the training. In that sense, the email was also found to be intimidatory.
The FWC considered whether the employee’s offers to apologise made his misconduct less serious. The employer argued that the apologies were insincere and came only when the employee knew that his employment was at risk. The FWC agreed.
The FWC also considered whether the single act of sending the email was sufficient to justify dismissal. In this regard, the FWC said:
 The email was not inadvertent. Nor was it provoked. Whilst written in disappointment and some anger it was not part of a heat of the moment exchange. It was unsolicited and widely broadcast. The misconduct was serious in intent and was not remediated when it could have been... Even as a single act, it had ripple effects and was designed to have those effects.
The FWC did not consider the employer’s response to be disproportionate.
Accordingly, the FWC held that there was a valid reason for dismissal and the dismissal was not harsh, unjust or unreasonable. Therefore, there was no unfair dismissal and the employee’s application was dismissed.
This case is a reminder to employers that misconduct can come in all forms, including through email, and when it occurs employers are entitled to act to protect the safety of other employees and to maintain a harmonious workplace.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
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