The internet and email are essential tools for most businesses. Email makes correspondence and transactions simple and efficient, but it is also easy to send the wrong email to the wrong recipient!
Employer provided IT, internet and email services are prone to abuse and misuse by employees, sometimes deliberately and other times not. To guard against deliberate misuse and to assist employees to be more mindful of their use of IT services, employers should have both an email and IT policy that outlines the proper use of such tools and services, and the consequences for inappropriate or misuse of the same.
Generally these policies should include a minimum statement to the effect that:
Two recent case examples demonstrate the importance of having email and IT policies.
In GS v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838, the employee lodged an unfair dismissal application after her employment was terminated as result of loss of trust and confidence following breaches of the IT User Conduct Policy and the Code of Conduct. The employee was employed as a Key Accounts Manager and was responsible for managing client accounts and overseeing customer service.
The employee’s breaches arose from two emails she had sent on one day in November 2016. In the first email, sent to the customer service team, she berated them and told them they were “totally incompetent”.
The second email, intended for a colleague, contained disparaging and racially offensive comment about some of the employer’s clients. Significantly, this email was also sent to the employer’s client contacts who promptly advised the employer that they would no longer work with the employee.
The employee explained that she had copied the client contacts in the email to provide to the colleague and had inadvertently kept them in the “CC” field.
The employee also submitted that she was suffering from PTSD, work related stress and was unsupported by management.
The Fair Work Commission (FWC) dismissed the employee’s unfair dismissal application, finding there was a valid reason for the termination of employment.
The FWC held that the email content was derogatory and offensive even without it being sent to the clients.
In dismissing the claim, the FWC noted that the employee’s conduct was in breach of the Code of Conduct and IT User Conduct Policy which prohibited users from making statements that would be embarrassing to the user or the employer if made public. Further, that the email was sent to the clients magnified the misconduct and caused damage to the employer’s reputation and relationship with the clients.
In SH v Murdoch University [2017] FWC 2174, the employee’s employment was terminated for serious misconduct due to breaches of the Code of Conduct and Email and Electronic Messaging Guidelines.
In that case, the employee sent emails using his Murdoch University work email address to the Australian Bureau of Statistics (ABS) relating to the 2016 Census, using inappropriate and offensive language.
Murdoch University became aware of the email after receiving a complaint directly from the ABS.
The FWC dismissed the employee’s submissions that he did not deliberately send the emails from his work email account and did not consider which account he was using. The employee also submitted that his conduct did not amount to serious misconduct and there was no evidence that Murdoch University suffered reputational damage.
The FWC held that the there was a valid reason for the dismissal. It held that the employee’s misconduct was wilful and had the potential to cause reputational risk to Murdoch University. It was noted that the employee forwarded the emails to others and the emails were later posted on social media by a third party.
For employers, it is important that there is either a policy or guidelines which outline the standard expected of employees when using email or other technology resources.
These recent cases also serve as a reminder to employees of work email etiquette: remember, the easiest way to avoid disciplinary action is to keep the use of your work email restricted to appropriately worded work related communications and other approved communications.
