W. was employed as a receptionist in an electricity and water metering company. It was a relatively conservative workplace, but occasional joke emails were accepted as long as they are not offensive. Likewise, personal emails were permitted as long as they did not interfere with work. However, W. had been warned twice about breaching the policy by sending numerous personal emails, some of them inappropriate, and surfing the internet.
Then W. forwarded an email entitled “Eleven Most hot People!!!!!!!”. The eleven persons featured were odd looking and in unusual poses. Some were nude or scantily dressed. W. forwarded the email to 9 people, including 2 within the firm and some at government departments, with the comment “ewww”.
Her employer considered the email was offensive, and that it amounted to serious misconduct under the firm’s policy. The test he used was whether he could print the photos and put them on the staff notice board without receiving complaints. Given the particular work place environment, he thought he couldn’t. He was also concerned about the firm’s reputation, given that the email was sent externally, including to government employees.
W. was therefore invited to attend a disciplinary meeting regarding the email. She was told she could be dismissed as a result of it and invited to bring a support person. W. apologised for having sent the email, but couldn’t give any further explanation, and was subsequently dismissed.
W. claimed the dismissal was unfair.
Initially, the Employment Authority agreed. It found that the employer couldn’t rely on the email policy because it hadn’t applied it consistently in the past, and had not applied it fairly here. The Authority awarded 3 months wages and $12,000 (less 25% to account for W’s own wrong). However, on appeal, the Court held the email policy was still relevant even if hadn’t been applied strictly, and the employer acted reasonably in all the circumstances.
The lesson is trite but, given the number of cases like this arising, it doesn’t seem to have sunk in. Before you hit “forward”, think: “How would this email go down if it was posted on the staff notice board? What if it was printed on the front page of the newspaper with your employer’s name next to it?” Emails can end up anywhere and everywhere very quickly. Once they have been sent they are out of your control and it is almost impossible to delete them.
Doreen Evans is a partner at Preston Russell Law. Email questions to doreen.evans@prlaw.co.nz.
