An employer was ordered to pay its dismissed employee $9,000 damages plus 2 months lost wages for unjustified dismissal.

The employee sent an email containing pictures of naked and nearly naked people to work colleagues and others via her employer’s email system.  She had previously received two warnings for breaching the employer’s email policy.  That policy prohibited personal use of the email system, and transmitting sexual, pornographic, obscene … or other offensive or inappropriate material.

Despite the complete ban on personal use, the Human Resources Manager had consented to the employee sending “funnies” provided they did not depict nudity, be sexist or religion orientated” and the employer allowed a significant measure of personal email usage, including sending jokes.

They could not therefore rely on the total ban to justify the dismissal.  Their rules were also ambiguous as to whether computer misuse was misconduct or serious misconduct.

No disciplinary action was taken against those staff who received, viewed and retained the offending email in breach of the policy.  The application of the policy was not consistent, and therefore not fair and reasonable.

The employer relied on their own view of what was objectionable, but the Authority held that they still had to act as a reasonable employer would, and that none of the material sent was “objectionable,” and the decision that it was serious misconduct was unreasonable.

The award of $12,000 and 3 months wages was reduced by 25% because the employee knew she should not send emails depicting nudity and had been warned previously.

Employers must ensure that their policy on email use is clear and applied consistently.  They also need to apply reasonable standards as to what is objectionable if they allow some personal use of the internet/email, as getting it wrong has once again proved very expensive for an employer.