Nasty E-mail Causes Nasty Outcome

Norman Burd v Moran Management [2016] FWC 488 (22 January 2016)

When an employee, who was already slated to finish up with his company due to poor performance, made slanderous and derogatory remarks about his current employer to a prospective new employer, his employment came to an abrupt, early end. And the Fair Work Commission has rejected his unfair dismissal claim, finding the employer acted in accordance with the Small Business Dismissal Code.

Prior to his dismissal, the employee had received three written warnings relating to e-mail and internet usage. But by August last year, he had exhausted his employer’s patience with further performance issues. He was told he would be terminated at the end of the year. He had approximately three months to find alternative employment.

Shortly after being told this, the employee, in an e-mail to a competitor of his employer, claimed the business had lost a substantial contract and also, that the owner was a scandalous philanderer, having left his wife and four children to pursue an affair.

The owner discovered the existence of the e-mail and confronted the employee, who initially denied sending it. The owner had already confirmed the e-mail had been sent so he knew the employee was lying when he denied sending it. The owner dismissed the employee on the spot for lying, for divulging potentially damaging information about the business (the alleged loss of the contract) and for slandering the owner.

The problem for the employee was that the owner was divorced, and in any event, the personal behaviour alleged was unrelated to the business or the employee’s relationship with the owner.

The FWC put aside the owner’s allegation that the employee lied about the e-mail, saying it wasn’t necessary to determine that aspect for the case. The FWC said the existence of the e-mail and its contents were sufficient to cause a genuine belief in the owner’s mind that the employee was damaging the business and the owner’s personal reputation. The FWC also accepted that the dismissal had been in accordance with the Code.

Summary dismissal is rarely justified. However in this case, the FWC confirmed the employer’s decision demonstrating that provided a small business owner follows the code, the FWC will support them. The case also emphasises how important it is for employers to have unfettered access to employee’s e-mail and to monitor it.