A 62 year-old civil servant has been awarded compensation for unfair dismissal despite sending sexually explicit emails at work, a number of which Fair Work Australia found to be lewd, pornographic and demeaning to women. Other distasteful and smutty images were also found on the employee’s work computer.
The Department of Defence dismissed the employee after he was found to have breached the public service code of conduct. However, five (5) months before the sacking, the employee was told he would only be counselled and monitored regarding the appropriate use of computing resources as his actions did not constitute sexual harassment.
In his application to Fair Work Australia, the employee sought reinstatement of his employment, arguing that there was a culture within the Department of exchanging emails which ranged from ‘mildly humorous to more sexually explicit’. He also argued that the emails and material stored on his work computer were not in the worst category of online pornography and due to his long and outstanding service record, a lighter punishment was warranted.
Fair Work Australia found the way in which the dismissal was carried out sent mixed messages to the employee and that the investigation was long and drawn out. However, it concluded that reinstatement was not an appropriate remedy, not only because the employee’s behaviour was ‘entirely inconsistent’ with Defence values and policies, but also because he held a senior position in Defence and therefore, reinstatement had the potential to make the enforcement of the employer’s policies more difficult.
The employee was awarded compensation in the form of six (6) months wages, reduced to three (3) months having regard to the employee’s bad behaviour.
If you need legal advice regarding a workplace issue, call Peter Moore on (02) 43247699.