[2012] FWA 6291

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carolyn Flanagan
v
Thales Australia Limited T/A Thales Australia
(U2012/482)

Christopher Hogan
v
Thales Australia Limited T/A Thales Australia
(U2012/483)

Kristian Pitches
v
Thales Australia Limited T/A Thales Australia
(U2012/484)

COMMISSIONER BULL

SYDNEY, 7 SEPTEMBER 2012

Summary termination of employment, inappropriate use of company computer and email access.

[1] These matters concern three employees; Carolyn Flanagan, Christopher Hogan and Kristian Pitches (the Applicants) all of whom claim their former employer, Thales Australia Limited (Thales), summarily terminated their employment in circumstances which were unfair.

[2] The matters were joined by consent and heard together, as the factual circumstances in each application were analogous.

Background

[3] The Applicants, all production workers, were summoned to individual meetings on Monday 27 February 2012, where allegations of inappropriate email usage were put to them by Thales management. The Applicants did not contest the allegations of inappropriate email usage as presented by Thales at these meetings.

[4] At the conclusion of the meeting of 27 February 2012, Thales informed the Applicants that the responses they proffered to the allegations would be considered. Ms Flanagan and Mr Hogan were separately advised in meetings later that week, held on the afternoon of Thursday 1 March 2012 that Thales had decided to terminate their employment, without notice, on a summary basis. Mr Pitches, who had been called to assist with emergency flood relief on 1 March 2012, was advised of his summary termination in similar circumstances on Friday 2 March 2012.

[5] The Applicants had their terminations later confirmed in writing by letter dated 5 March 2012, which stated that in accordance with the “Thales Australian Behaviour and Performance Improvement Policy and Guidelines” their employment was terminated with effect from 1 March 2012. The letters of termination stated that the Applicants had acted in contravention of the terms contained in the following Thales policies and procedures:

[6] The specific conduct relied upon by the Respondent in justifying the dismissal of the Applicants was described as “you used your Company issued computer to access inappropriate material”. Additionally, the Applicants were informed in the written correspondence from Thales confirming their termination of employment that their explanations were considered “unsatisfactory”.

[7] Mr Pitches was additionally advised in his termination correspondence that it was acknowledged he had “made full and frank admission to (sic) sending and receiving of inappropriate materials”.

[8] The Applicants were employed at the Thales Mulwala site as Level 9 Production Workers under the Australian Benalla and Mulwala Enterprise Agreement 2009 (the Enterprise Agreement). There are approximately 430 employees at the Mulwala site.

[9] It is not in dispute that the Applicants are persons protected from unfair dismissal pursuant to the Fair Work Act 2009 (the FW Act).

[10] The question for determination by this Tribunal is whether the terminations of employment were unfair within the meaning of s.385(b) of the FW Act. In that, were the Applicants terminated in circumstances which were harsh, unjust or unreasonable?

[11] The Applicants were represented by Mr Crawford an Industrial Officer from the Australian Workers’ Union (AWU). Thales was represented by Ms Minnah Kim, an Employee Relations Officer from Thales.

Investigation by Mr Doyle

[12] On 11 August 2011, Mr Doyle, the Thales Chief Information Security Officer, was instructed by an Emily Minns, Employee Relations Officer to conduct an examination of a mailbox on a desktop computer of an employee located at the Thales Benalla site. Annexure marked ‘BD2’ attached to Mr Doyle’s witness statement (TGH4) is an email dated 11 August 2011 from Emily Minns, containing her instructions to conduct an investigation. The investigation was initiated following a complaint about pornography at the Benalla site. This review led to an investigation across all Thales Australian operations involving 96 employees in total. The investigation reviewed the email mailboxes of the 96 employees and identified 330 emails containing inappropriate material. The investigation examined email usage over the period of the preceding 12 months (PN601). As a result of the subject matter discovered in email exchanges contained in the electronic files of the Applicant’s desktop computers, they were interviewed and shortly thereafter summarily terminated on the grounds of misconduct.

[13] The investigation was not initiated by a complaint being made against any of the Applicants that concerned their computer usage. However, Thales considered this was not relevant to a breach of the Thales policies. There was similarly no allegation that the Applicants used the company computers to access pornography via the internet or to store inappropriate images.

[14] In Mr Doyle’s report, he catalogued the emails he considered inappropriate into five categories:

Mr Doyle stated that there is a “pop up” which is activated before employees log on and enter their credentials. The pop-up asks the user to agree to the terms and conditions of the Thales Australia Internet and Email Security Framework, where it can be located and that use of the system may be monitored to the extent permitted by law. Users have to click “OK” before being prompted for a username and password (PN571).

[15] Of the employees based at Mulwala who were investigated, 13 employees sent or received emails in categories PA or PB, including the Applicants (PN1009).

Applicants’ evidence

Carolyn Flanagan

[16] Ms Flanagan had worked with Thales from 1986 until accepting a redundancy package in 1993. She re-joined Thales in 1998. Ms Flanagan tendered references indicating she is well regarded in the Mulwala community and has taken on voluntary community roles at the primary school and the football/netball club. Ms Flanagan did not dispute having attended previous workplace behaviour training but did not specifically recall having done so. She had no recollection of receiving any Thales communications about email usage in October 2009.

[17] Ms Flanagan’s evidence was that she only read the Thales Australian Internet and E-mail Security Framework 1 at the meeting on 27 February 2012 when she was confronted with the allegation of a breach of the policy. Ms Flanagan did not realise her emails were being monitored, but had she known this to be the case, she would not have forwarded the relevant offending emails. Ms Flanagan also stated that she did not read the pop-up action on logging onto the computer but just pressed “OK”. At her meeting with management she stated she was sorry and embarrassed.

Christopher Hogan

[18] Mr Hogan commenced employment with Thales in May 2000 and had worked without blemish, moving from a Level 12 Production Worker to a Level 9 Production Worker. In his position, Mr Hogan had computer access but did not recall seeing the pop-up on logging onto the Thales computer, or if it did appear he did not read it. Mr Hogan deposed that he only became aware of the Thales Australian Internet and E-mail Security Framework when it was referred to at the meeting on 27 February 2012, he then asked for a copy.

[19] Mr Hogan recalled attending a training session in 2009 titled: Appropriate Workplace Behaviour but stated that the training did not contain anything about email usage (AWU4 at 36-38).

[20] The evidence of Mr Hogan was that he could not recall previous company warnings regarding email usage other than in 2009, which he understood to be a prohibition on using the internet to access pornography via the internet (PN88, 147) (my emphasis). He only forwarded what he considered to be joke emails to persons he knew would not be offended.

[21] Mr Hogan’s evidence was that in his 10 years of having computer access he would enter his username and password and after a few minutes the screen would come up. “There was no pop up box” (PN151, 153).

[22] Mr Hogan did not recall any reference being made to the possibility that his employment may be terminated during his phone discussion with Mr Cowling on the morning of 27 February 2012 inviting him to a meeting on the same day (PN90, 189). Mr Hogan further denies having said during that meeting that he was embarrassed and aware of the Thales internet policy as was stated in his termination of employment letter of 5 March 2012.

[23] Mr Hogan stated that he apologised and demonstrated remorse for his conduct at the 27 February 2012 meeting (PN97, 99).

[24] Mr Hogan also provided references showing his good standing in the Mulwala community which was uncontested.

Kristian Pitches

[25] Mr Pitches has approximately 20 years service with the Respondent, having commenced work with Thales in March 1992 as a Production Worker. During this period no disciplinary issues ever arose. Mr Pitches has been a member of the site Emergency Response Team since 1995, and was the site OH&S representative.

[26] Mr Pitches deposed that he never received any specific training for email or internet use, nor did he recall receiving any circulars from the company about email and internet usage. Mr Pitches stated that Thales constantly sends out general circulars to employees across all sites, many of which have no relevance to the Mulwala site, making it difficult to keep track of the relevant information (AWU6 at 27-31, PN389, 439).

[27] Mr Pitches’ evidence was that he had never viewed the Thales Australian Internet and E-mail Security Framework and was unaware of its content. He did not recall the pop-up appearing on the computer screen when logging in, but in any event he had not read it (PN395, AWU6 at 37).

[28] Mr Pitches disputed that he had not shown any remorse stating that he had apologised for his conduct.

[29] Mr Pitches recalled that in November 2011 where, as part of the Emergency Response Team he attended a workplace incident during which an explosion occurred that nearly claimed his life, he understood that the person responsible received a written warning (PN341, 347). Mr Pitches also produced references demonstrating his contribution to the community.

Other Witnesses

[30] In addition to the Applicants’ evidence and witness statements, their case was assisted by witness statements and evidence of:

[31] All three witnesses confirmed that most workers at the Mulwala site were either not aware of, or did not understand the Thales E-mail and Internet Security Framework Policy. Both Mr Ryan and Mr Gilliland stated they were not aware of having been trained on the policy and testified that they had never read or do not recall reading the pop-up which appears when logging onto the Thales computer network (AWU3, AWU9, AWU12, PN490).

[32] Mr O’Connor and Mr Ryan were not cross examined. Mr Gilliland was cross examined on his evidence that the Thales E-mail and Internet Security Framework Policy was confusing and hard to understand.

Thales evidence

[33] Thales’ case was assisted by the witness statements and evidence of:

Mr Ben Doyle

[34] Mr Doyle, the Chief Information Security Officer, was instructed to conduct an examination of mailboxes in August 2011. He classified the material in the manner listed above (PA-PE) as an initial grouping to assist in his report, however, the classifications remained unaltered during the entire process. Mr Doyle then provided a spreadsheet to Human Resources. The report was his prime priority through August 2011 and took approximately one month to complete (PN597). Mr Doyle could not recall whether he was instructed to examine emails over a certain period of time but would normally review the preceding 12 months (PN600).

[35] Mr Doyle stated that he was unaware of any way to bypass the dialogue pop-ups that are activated every time an employee logs on, advising that their email usage may be monitored, and they agree to abide by the terms and conditions of the Thales Internet and E-mail Security Framework.

[36] The reference in the Thales Internet and E-mail Security Framework at clause 21 ‘Material that is in breach of the Appropriate Workplace Behaviour Policy shall be denied entry to the Company’s network.’ (my underline) was to be read where possible, as implying that the Thales system was not capable of blocking all incoming content in breach of the appropriate policies (PN626 - 639).

[37] Mr Doyle was aware of the Workplace Surveillance Act 2005 (NSW) (the Surveillance Act) and stated that Thales’ legal counsel had advised that the initial pop-up box which includes the statement:

met the requirements under s.10 of the Surveillance Act for employers to notify employees of computer surveillance (PN677).

[38] Mr Doyle stated it was not his role to contact employees and advise them that their emails were being monitored.

Ms Karen Deckert

[39] Ms Deckert is the Human Resources Business Partner (HRBP) for the Armaments Domain based in Melbourne. Ms Deckert commenced employment with Thales in July 2010 and was previously the HRBP at the Mulwala site.

[40] Ms Deckert gave evidence that she became involved in the investigation on or around 7 February 2012 (PN993), and had a role in the dismissal of the Applicants, but did not make the decision to terminate them. Ms Deckert was involved in the consideration of the recommendations made by each relevant HRBP in relation to the relevant employees, prior to a final outcome being determined (TH2 at 22). Ms Deckert had no knowledge of the investigation being undertaken by Mr Doyle in August 2011 (PN1049).

[41] Ms Deckert acknowledged that the Applicants were not immediately terminated following their initial meeting regarding their conduct as Thales did not think that they would return to the workplace and circulate any more inappropriate material (PN1040, 1099).

[42] Ms Deckert deposed that a number of factors were considered in the decision to terminate the Applicants. These factors, included, the number and nature of emails sent and received and the explanation provided by the Applicants (PN1148). Ms Deckert also advised that she understood that the process to be followed was that after the first meeting with the Applicants they were to be given the opportunity to provide a further response at a second meeting which she understood had occurred (PN1185, 1190).

[43] As a result of HR meetings held to discuss possible outcomes, a spreadsheet was generated which included the recommendations proposed by each HRBP, the agreed outcome by all HR personnel involved in the investigation, the justification for the outcome and whether the employee had received any prior warnings. The spreadsheet containing this information (KD3) compiled by Ms Deckert (PN1120) stated in respect of each Applicant:

[44] The spreadsheet indicated that no Applicant had been given previous warnings. It was further explained in cross examination that the reference to the multiple files sent included a single file having been sent to multiple persons (PN1136, 1139).

[45] Ms Deckert stated that any person viewing, storing, or sending offensive or potentially offensive materials would be in breach of the Thales Internet and E-Mail Security Framework (PN1238).

[46] Ms Deckert’s evidence was that all emails in the categories PA to PE breached the Thales Internet and E-mail Security Framework to some degree (PN1002, 1109). Ms Deckert was unaware of the terms of the Surveillance Act (PN1163).

Mr Geoffrey Mitchell

[47] Mr Mitchell commenced employment with Thales in 2004 and since November 2010 has been the Manufacturing Manager at the Mulwala site. On Wednesday 22 February 2012 he was informed by Mr Cowling that a number of employees were the subject of an investigation into the inappropriate use of the Thales email system. Given the Applicants were from the manufacturing teams he considered it appropriate that he conduct the meetings with the employees together with Mr Cowling. Mr Mitchell was involved in making the decision to terminate the Applicants’ employment (PN1441).

[48] Mr Mitchell deposed that when advising each Applicant of the meeting, he read from a prepared script which included an invitation to bring a support person to the meeting. Ms Flanagan attended the meeting with Mr Gilliland the AWU site delegate. Mr Hogan and Mr Pitches attended without a support person.

[49] After initial meetings with the Applicants on Monday 27 February 2012, Mr Mitchell met with Mr Cowling the HRBP at the Mulwala Armaments manufacturing site on Wednesday 29 February 2012, who told him that the business recommendation for each Applicant was that their employment be terminated. On Thursday 1st March 2012, Mr Cowling and Mr Mitchell met with Mr Hogan and Ms Flanagan separately (Ms Flanagan attended with Mr Gilliland and Mr O’Connor) and advised them their employment was terminated and that they were required to leave the site immediately, after being escorted to collect their personal belongings. A similar exercise was undertaken for Mr Pitches on Friday 2 March 2012.

[50] Mr Mitchell was not aware of a culture of exchanging pornographic emails at the Mulwala site (PN1359). Mr Mitchell did not recall having seen any of the general warning emails or circulars relating to inappropriate email usage. His first knowledge of these general warnings was as a result of being provided with a copy in the witness box (PN1550, 1370). Mr Mitchell stated that he had not been trained on the content of the Thales Internet and E-Mail Security Framework (PN1455).

[51] Mr Mitchell’s evidence was that the process and prepared script for the employee meetings on 27 February 2012 was provided to him by Mr Cowling (PN1446 - 1447). After these meetings he discussed with Mr Cowling a number of issues “most particularly the impact on people”. Other issues included:

[52] Following Mr Mitchell becoming aware of the alleged inappropriate use of emails on 22 February 2012, it did not occur to him that he should be concerned that the employees involved might circulate more inappropriate emails after this date (PN1428).

[53] Mr Mitchell agreed under cross examination that Thales had not notified the relevant employees “as soon as practical” as required under clause 15 of the Thales Internet and E-Mail Security Framework that their emails were being monitored (PN1465).

[54] Mr Mitchell’s evidence was that all Applicants including Mr Pitches demonstrated remorse for their actions (PN1497-1500).

Mr Bradley Cowling

[55] Mr Cowling commenced at Thales in October 2011. He is the HRBP at the Mulwala Armaments manufacturing site. Mr Cowling deposed that he attended a meeting of HR staff at the Thales Melbourne office on 15 February 2012. At this meeting he was briefed on the investigation of inappropriate usage of computers, including email. Ms Deckert was in attendance. While he considered it possible that the Applicants could send further inappropriate emails he did not consider it posed an imminent safety risk (PN1623).

[56] On 22 February 2012 Mr Cowling met with the Mulwala Core Management Team to inform them of the investigation including Mr Mitchell.

[57] On Thursday 23 February 2012, he reviewed training records of the Applicants which revealed that they had completed “Appropriate Workplace Training” either on 30 September 2009 or 1 October 2009. Ms Flanagan was also recorded as attempting online training on 22 November 2010.

[58] Mr Cowling met with Mr Mitchell on Monday 27 February 2012 to discuss holding meetings with the Applicants and asked him to arrange these meetings. At the end of each meeting with the Applicants held on 27 February 2012 Mr Cowling stated the Applicants responses would be considered and he would get back to each Applicant as soon as possible by Wednesday 29 February 2012 to inform them of the outcome.

[59] Mr Cowling deposes in his witness statement that each of the Applicants advised at the 27 February 2012 meetings, that they were aware of Thales policies concerning internet usage (TH4 at 50, 84, and 110). Mr Cowling was of the opinion that Mr Pitches did not show any remorse during the initial meeting on 27 February 2012 (PN1727).

[60] On Wednesday 29 February 2012, Mr Cowling participated in a telephone conference facilitated by Ms Deckert and attended by other HR employees. During this telephone conference he expressed the view that the Applicants should be terminated due to the following factors:

[61] Mr Cowling further advised that the Applicants records of employment and length of service were taken into account (TH4 at 132, 134).

[62] On Wednesday 29 February 2012 Mr Cowling attended a further teleconference facilitated by Ms Deckert to determine the final recommendations. Later that day he met with Mr Mitchell to inform him of his final recommendation, being termination of the employment of the Applicants. Mr Mitchell agreed with his recommendation. Mr Cowling also informed Mr Gary Davies, the General Manager Manufacturing Operations, Mulwala, who also agreed with his recommendation. Mr Cowling stated that he hadn’t personally undertaken any training on the Thales Internet and E-Mail Security Framework Policy (PN1706, 1708).

[63] Mr Cowling referred to obtaining mitigating circumstances from the Applicants in their 27 February 2012 meetings. In response to a question as to what mitigating circumstances would have been considered he said: “There may have been an unknown medical condition that we were unaware of, sex addiction or something like that.” (PN1786)

[64] Mr Cowling stated that Ms Deckert didn’t instruct him “in any way, shape or form” with regard to the termination process, but sent out copies of scripts and policies for consistency of use across the business (PN1710, 1722).

[65] In respect of the Enterprise Agreement and the ability under clause 45.2 Serious Misconduct for an employee to receive a final warning, Mr Cowling was of the view that the breaches of Thales policy “were of such a grievous nature” that there was no other option than termination. He further deposed that it wasn’t safe or reasonable for the Applicants to work out their notice period (PN1768). This was later explained in the context of risks associated with disinterested employees working in a high explosives environment (PN1778).

Applicants’ submissions

[66] Mr Crawford, for the Applicants, did not seek to deny that the Applicants had sent and received inappropriate emails contrary to the policies of Thales. The Applicants’ defence relied on a combination of factors which they submitted made the summary dismissals harsh, unjust or unreasonable. Mr Crawford pointed to the honest and forthright manner in which the Applicants’ offending conduct was acknowledged during the interview process.

[67] The Applicants were said not to have either received or recalled having received the general warning notices sent out to all staff regarding email usage. No Applicant was provided with specific training on the Thales Internet and E-Mail Security Framework. The Applicants also argued that the Thales investigation was not carried out in accordance with its own policy and in contravention of the Surveillance Act.

[68] It was put that the Thales investigation into the inappropriate use of emails was not carried out in accordance with the company’s obligations under the Surveillance Act which requires at s.12 that where an employer engages in computer surveillance of an employee, it must be in accordance with the policy of the employer. Despite the Thales Internet and E-mail Security Framework stating that employees and their Manager will be notified as soon as practical that monitoring of an employee’s email is occurring, this did not happen until five to six months after the monitoring commenced.

[69] Reference was made to the policy which states at clause 21: ‘Material that is in breach of the Appropriate Workplace Behaviour Policy shall be denied entry to the Company’s network’. It was argued that this mandates Thales to prevent inappropriate emails from entering its computer system.

[70] The question posed by the Applicants is why they were allowed to remain working with full computer access since August/September 2011 when the sending and receipt of the offending emails were discovered and reported in Mr Doyle’s investigation report. It was argued that this does not correlate with Thales’ view that their conduct was serious enough to justify summary termination approximately six months later in March 2012.

[71] The Applicants argue that the offending emails were between friends, there was no complaint made, the actions were acknowledged and remorse was expressed. There was no likelihood of any Applicants reoffending. All Applicants have long and impeccable work records with Thales and each Applicant is an upstanding contributor to the Mulwala community.

[72] The Applicants argue that the behaviour involved could not, in the circumstances of having been known to Thales for some six months, possibly constitute conduct so serious as to warrant summary dismissal.

[73] Mr Crawford drew my attention to a number of cases where employees had been dismissed for sending offensive emails to work colleagues and having been reinstated by the relevant administrative body. 2

[74] Mr Crawford alleged procedural unfairness and drew attention to the evidence of Ms Deckert who stated that there should have been two meetings before termination of employment, where the allegations are first put and the employees are provided an opportunity to consider their responses and provide these at a second meeting. This did not occur as the Applicants were told after the first meeting that they would be advised of the Thales decision in the next few days.

[75] It was argued that Thales breached the Internet and E-Mail Security Framework by not informing the Applicants in August 2011, that they were subject to an investigation and that the investigation included examination of emails sent and received after the investigation commenced. Mr Crawford submitted:

Thales submissions

[76] Thales referred to their duty as an employer to provide a working environment free of behaviour that has the potential to amount to offence. In reaching their conclusion, Thales took into consideration the Applicants long service, good employment record and the consequences of the terminations. However these considerations did not outweigh the need to terminate due to the “very serious breach” of policy.

[77] Thales sought to rely on the general warnings regarding inappropriate email usage they had distributed in 2004, 2006 and 2009. They further pointed to the pop-up box that appears on each occasion an employee logs on and the inability to bypass the pop-up box. Ms Kim submitted that for the Applicants to state they had never seen the pop-up box reflected on their credibility (PN1922).

[78] It was further submitted that the relevant email images were not intended for humour, were large in number and varied from nude images to hardcore pornographic images. Further, most emails contained multiple images.

[79] Thales placed reliance on general warnings distributed to its workforce as early as 2004 by either email, or a general notice, stating that the Applicants completely and blatantly ignored the warnings (PN1903).

[80] The Applicants had all attended the training course, Appropriate Workplace Behaviour in either September or October 2009. Thales submitted that each Applicant was afforded procedural fairness as they were advised of the allegations, invited to bring a support person and allowed to respond to the allegations.

[81] Ms Kim stated that mitigating circumstances including the Applicants’ long and good service, no previous warnings, their age and possibility of obtaining other employment were all considered, but did not outweigh the seriousness of the breaches. Summary termination was considered the most appropriate outcome in lieu of the alternative disciplinary actions available under the Enterprise Agreement.

[82] Thales relied on a number of authorities to demonstrate that the dismissals of the Applicants in circumstances involving inappropriate email usage is not considered unfair. 3

Conclusion

[83] Not unusually, the authorities referred to by each of the parties supported their own positions. Mr Crawford was able to point to decisions of various courts and tribunals that had reinstated employees who had been dismissed for sending inappropriate emails, including a March 2012 decision of the Victorian Supreme Court which upheld a decision of the Police Appeal Board to reinstate police officers, who contrary to the employer’s policy had sent emails depicting bestiality, extreme violence and other offensive content. 4

[84] Ms Kim referred to the 2006 Full Bench decision of the Australian Industrial Relations Commission, which held, that it is likely that employers may incur legal liability if they do not take steps to eliminate traffic of offensive emails and therefore it was reasonable for employers take whatever steps they can to eradicate traffic in such images. 5

[85] The Thales submission that the terminations were not harsh, unjust or unreasonable can be summarised as resting primarily on four planks:

The Applicants’ arguments focussed on disputing the first three of the four planks above.

[86] Section 387 of the FW Act lists a number of factors that the Tribunal must take into account in determining whether a dismissal was harsh, unjust or unreasonable. I consider each of these factors below.

(a) Was there a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)?

[87] Thales has terminated the Applicants for using company provided computers to send and receive inappropriate emails in breach of their policies. The Applicants do not contest that the conduct was engaged in but argue the terminations were harsh, unjust or unreasonable.

[88] I find that there was a valid reason for the termination of the Applicants which relates to their conduct. This conclusion is inevitable in view of the admission by the Applicants that they have received and transmitted inappropriate emails in breach of Thales’ policies on email communication.

(b) Whether the person was notified of that reason

[89] The Applicants were advised on Monday 27 February 2012 of the allegations of inappropriate email usage. The reasons provided by Thales remained unaltered throughout the termination process and were reflected in the Applicants’ termination letters dated 5 March 2012.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[90] The Applicants were contacted by phone on the morning of Monday 27 February 2012 by Mr Mitchell and told there was an issue with their email usage and were requested to attend a meeting that afternoon. At the meeting they were advised of the alleged misconduct engaged in and asked for any comment and response. Following this meeting the Applicants were told the company would consider their responses and get back to them by Wednesday 29 February 2012.

[91] Mr Crawford submits that in reality the Applicants did not have sufficient opportunity to respond to the allegations and points to the evidence of Ms Deckert the Human Resources Business Partner for the Armaments Domain who stated that she understood the Applicants were to be given the opportunity to provide a further response at a second meeting, which she understood had occurred. This is said by the Applicants to be an important factor in providing a genuine opportunity to respond as at the first meeting the Applicants would have been suffering the effects of shock and embarrassment and not able to respond in a considered and meaningful fashion.

[92] An opportunity was provided to the Applicants to respond to the allegations of misconduct in sending and receiving inappropriate emails at the 27 February 2012 afternoon meetings. Although I accept, as put by Mr Crawford, that the Applicants would have been ill prepared to respond in a considered manner. No doubt the Applicants were taken aback as they stated in their evidence that dismissal was looming as a result of their conduct which they did not deny had occurred.

[93] Mr Crawford submits that had the Applicants been given the opportunity to go away and think about their responses they could have sought advice and had the opportunity to respond more fully. In answer to what were the practical consequences of the Applicants having additional time to consider their responses, it was submitted that this was unknown but it may have affected the demonstration of remorse shown for example by Mr Pitches (PN2098-PN2101).

[94] The rule that no person be condemned unless they have had a fair opportunity to be heard is a basic principle of natural justice. In this case an opportunity for the Applicants was provided, but truncated in the sense that the Applicants were not given a period in which to digest the allegations put to them, seek advice and respond in a more informed manner. This is evident in submissions put during the hearing regarding aspects of the Thales Internet and E-mail Security Framework alleged by Thales not to have been complied with by Applicants.

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[95] Mr Mitchell gave evidence that he advised the Applicants by telephone on the morning of 27 February 2012 that they were welcome to bring a support person to the afternoon meeting. Mr Hogan and Mr Pitches attended the meeting without a support person and Ms Flanagan attended with Mr Gilliland, a Thales employee and AWU site delegate. Mr Pitches’ oral evidence was that he did not bring a support person as he did not realise the “severity” of the situation (PN434). Mr Hogan stated that he was only informed that he could have a “witness” when he sat down in the room for the 27 February 2012 meeting (PN101).

[96] I am satisfied whether during the phone calls of the morning of 27 February 2012 or at the meetings on that afternoon, the Applicants were provided with the opportunity to have a support person present. Ms Flanagan chose to avail herself of that opportunity, Mr Hogan and Mr Pitches for their own reasons declined.

(e) If the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal

[97] This matter did not proceed on the basis that the work performance of the Applicants was unsatisfactory. Evidence was adduced which was not disputed by Thales that the Applicants’ work performance was not in question. Thales raised no previous issues of the Applicants relating to performance or unsatisfactory conduct. The issue revolved around what Thales considered to be a serious breach of its email protocols which were or should have been known to the Applicants as contained in the Thales Internet and E-Mail Security Framework and other policy documents.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[98] No complaint is made on a procedural ground which relates to the size of the employer. Thales is a large employer and followed a procedure which included reading from scripts prepared by its senior human resources employees in effecting the dismissals of the Applicants. The adverse impact of the terminations on the Applicants was not due to the size of the employer. Despite the large size of the employer and its human resources capacity the process adopted by Thales in this matter did not always reflect its size and human resource expertise.

(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[99] Thales did not lack human resource management specialists. Thales appears to employ a number of Human Resources Business Partners across its Australian operations. Ms Deckert, for example, was a HRBP for the Armaments Domain based in Melbourne and reported to the Human Resources Director for Armaments. Mr Cowling was the HRBP employed at the Mulwala Armaments manufacturing site.

[100] On the morning of the 29 February 2012 Mr Cowling deposed that he participated in a teleconference with 13 other Thales human resource employees to ensure consistency in the decision making process. During this meeting he expressed the view that the Applicants employment should be terminated (TH4 at 130-132).

(h) Any other matters that FWA considers relevant

[101] A finding that a valid reason exists under s.387(a) of the FW Act for the terminations is only part of the exercise the Tribunal is required to undertake in determining whether a dismissal is harsh, unjust or unreasonable. A failure to consider the balance of the criteria in s.387 or to concentrate solely on whether a valid reason exists would be an erroneous application of s.387 as described by Cowdroy J in Coal and Allied Mining Services Pty Ltd v Lawler. 6

[102] The Full Bench in Woolworths Limited (t/as Safeway) and Cameron Brown 7 held that where a breach of an employer’s policy constituted a valid reason for termination the dismissal may still be harsh, unjust or unreasonable.

[103] The Full Bench in Atfield v Jupiters Ltd 9 also adopted this approach in holding that a breach of the employer’s policy constituted a valid reason for dismissal, but in each case all the circumstances must be taken into account in determining whether a dismissal is harsh, unjust or unreasonable. The Full bench stated:

[104] In Bostik (Australia) Pty Ltd v Gorgevski (No. 1) 10, Justices Sheppard and Heerey remarked:

[105] All Applicants had over 10 years unblemished service, Mr Pitches close to 20 years. The Applicants gave evidence that they had never been trained on the Thales Internet and E-mail Security Framework nor had they read it until their unfair dismissal claims were initiated.

[106] Mr Crawford relies on the reference contained in the Thales Internet and E-mail Security Framework at clause 21 wherein it states that material in breach of the Appropriate Internet Behaviour Policy shall be denied access to the company’s network as having been breached by Thales itself. I do not accept this as being a proper conclusion to draw and prefer the position taken by Thales witnesses and in particular Mr Doyle that Thales cannot be expected to be relied upon to block all material that may be inappropriate and in breach of its policy. If such were the case the policy in respect of inappropriate emails would become redundant as none would enter the system.

[107] Having heard the evidence of all witnesses I am far from convinced that the entire details of the Thales internet/email policies were known to either the Applicants or the Thales management. That is not to ignore that as a matter of normal conscience employees would know that sending and to a lesser extent receiving inappropriate emails is not suitable workplace behaviour.

Pop-up box (BC9)

[108] The pop-up dialogue is a constant reminder to all employees that their use of the Thales computers may be monitored and that they are to comply with Thales policies when using the computer. The pop-up box states:

[109] Ms Flanagan stated that she was aware of the pop-up box but just clicked “OK” without reading it. Mr Hogan’s evidence was that there was no pop-up box and Mr Pitches could not recall the pop-up box but in any event had not read it.

[110] I accept the evidence of Mr Doyle that the pop-up screen cannot be bypassed, I also accept Thales’ submission that the pop-up box appeared on each employee’s computer including the Applicants each time they logged onto the system. It seems to me unless the Applicants were not truthful on this point, which I do not find, they had become oblivious to the process of clicking “OK” in response to the pop-up box and it had become a mechanical exercise without thought as to what clicking “OK” actually meant.

[111] There is some strength in the Applicants’ argument that if an employee actually takes the time to read the contents of the Thales Internet and E-mail Security Framework it does not become clear until page 9 that it includes (at clause 15) standards relating to employee email usage, as opposed to internet and email security as the title of the policy itself suggests.

Workplace Surveillance Act 2005 (NSW)

[112] The Applicants submitted and Thales did not dispute, that it was bound by the Workplace Surveillance Act 2005 (NSW). The relevant provisions are sections 10 and 12:

[113] Computer surveillance is defined in s.3 of the Surveillance Act as:

[114] Mr Doyle, the Thales Chief Information Security Officer gave oral evidence that Thales legal counsel had advised that the initial pop-up box was sufficient to meet its obligation under s.10 above of the Surveillance Act of providing notice to employees that surveillance of employee emails may occur.

[115] The Applicants also rely on section 12 of the Surveillance Act which states that computer surveillance must not be carried out by an employer unless it is carried out in accordance with the policy of the employer. The Thales Internet and E-mail Security Framework policy at clause 12 under the heading Privacy of Users E-Mail states:

[116] Further, at clause 15 titled E-Mail Offensive Material it is stated in reference to offensive material:

[117] The Applicants’ submissions are that Thales contravened the Surveillance Act and its own policy by not notifying the Applicants as soon as practical that their emails were to be monitored. I make no finding as to whether Thales was acting in compliance with the Surveillance Act but observe that their legal advice was that they were in compliance.

[118] The issue of more significance is whether Thales while relying on a breach of the Internet and E-mail Security Framework policy to justify the Applicants’ terminations, were themselves acting in accordance with their own policy and if not what were the consequences if any, to the Applicants, this is dealt with later in this decision.

Nature of Emails

[119] The evidence of all the Applicants was that they freely admitted to sending and receiving of the inappropriate emails but did not appreciate what they considered to be joke emails received and sent amongst friends at Thales was a breach of any policy which would result in summary termination.

[120] The Applicants sought to categorise the nature of the emails sent and received as generally being joke emails. Reproduced below is an extract of the Applicants’ individual views on the nature of the emails:

[121] Such an approach taken by the Applicants is similar to the sentiments expressed in a paper by Barbara F Sharp (Sharp, B F 1999) 12 at p.246:

[122] Thales’ position is that all the identified emails were in breach of its email policies. Mr Doyle categorised the emails for the purposes of his investigation. His categorisation was adopted by the Thales Human Resources personnel. Mr Crawford for the Applicants drew Mr Doyle’s attention to the Guidelines for the Classification of Publications 2005 made under s.12 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) which describes four classification categories for publications. Mr Doyle was unfamiliar with the Guidelines but accepted that under the Government Guidelines material containing nudity and sexual engagement can be legally accessed by adults (PN932).

[123] I see no reason for an employer to adopt the Guidelines for the Classification of Publications 2005 in the administration of its own workplace policies. There is nothing inherently wrong with the categorisation adopted by Mr Doyle for the purpose of his investigation.

[124] The Tribunal was not taken directly to the content of the offending emails. However, I have had regard to their content and context and believe that any reasonable person would conclude that they all fall into the category of being inappropriate for a workplace. The Applicants should have known the difference between what is appropriate in the workplace as distinct from private emails outside the work environment. While many of the emails have an element of humour they are inappropriate due to the nudity or sexual connotations they portray. The one video email categorised by Thales as PA is not only inappropriate but pornographic in that it depicts an explicit sexual act (see Australian Concise Oxford Dictionary Fifth Edition). It would be a reasonable conclusion that the vast majority of the offending emails would likely be circulated in the broader email domain outside the Thales workplace.

[125] Thales argued that both the sending and receipt of inappropriate emails were of equal seriousness (PN1112-1113). I am prepared to accept that the receipt of inappropriate emails without their immediate deletion and notification to their manager and advice to the sender not to forward such emails again is of lesser seriousness than the forwarding on of inappropriate emails. Ms Deckert’s evidence was that no Mulwala employee subject to the investigation, including the Applicants, took the action of notifying their manager or contacting the sender to advise them to refrain from sending further such emails.

[126] Exhibit TH3 is the witness statement of Ms Deckert and attached at KD3 is a spreadsheet which records the nature of the offending emails sent and received by the Applicants. In this regard, I note that Ms Flanagan neither received nor sent a PA category email. Mr Hogan received a PA category email but did not forward it on and Mr Pitches forwarded a PA category to one other person. All Applicants received and forwarded emails categorised PB and PC.

Summary termination

[127] The well established practice in this Tribunal and its predecessor is that while the onus to demonstrate that the dismissals were harsh, unjust or unreasonable rests on the Applicants, where an employee is summarily terminated as in this case, the burden of proof lies with the employer to show that summary dismissal was justified. 13

[128] The Thales Enterprise Agreement provides that the employer may issue a final written warning in cases of serious misconduct or summarily terminate. Thales chose summary termination.

[129] Being summarily terminated, the Applicants were not required to work out any notice period or be paid in lieu of working out a notice period.

[130] The National Employment Standards (NES) found in the FW Act provide minimum periods of notice that an employer must provide on terminating an employee. Section 117(1) states:

[131] The Applicants were all provided with written notice of their terminations which were said to be effective from a date earlier than the written notice. However, pursuant to s.123 of the FW Act where an employee is terminated for serious misconduct, the NES notice obligations have no application. Similarly the notice periods required under the Enterprise Agreement are not applicable in circumstances that justify instant dismissal (clause 40.1).

[132] A definition of serious misconduct is contained at Regulation 1.07 of the Fair Work Regulations 2009 and includes at Regulation 1.07(2) “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.”

[133] Justice Madgwick in Serventi v John Holland Group Pty Ltd, described the reasons justifying summary termination in the following manner:

[134] In Sent v Primelife Corporation Ltd, Justice Mandie expressed a similar view:

[135] As was stated by a NSWIRC Full Bench in Budlong v NCR Australia Pty Ltd [2006] at [78] if the Applicants’ behaviour was so serious as to justify instant dismissal it seems indefensible that they would be allowed to continue to engage in an activity the employer found so aberrant and unacceptable while the employer took five/six months to investigate the matter.

[136] Ms Deckert accepted in cross examination that it was unlikely that the Applicants would go back into the workplace and circulate more inappropriate material (PN1099).

[137] Mr Mitchell’s evidence was similar in that the possibility of the Applicants circulating more inappropriate emails after their 27 February 2012 meeting did not concern him (PN1428).

[138] Mr Cowling expressed the view which I accept as legitimate, that there are risks associated with disinterested employees working in a high explosives environment. This however, does not relate to the offending conduct which is said to justify summary termination, but rather would be a relevant consideration as to why Thales would make a payment in lieu of notice which is their right under the Enterprise Agreement.

[139] Due primarily to the actions taken by Thales in allowing the Applicants to continue to have access to computers until their summary termination in February 2012, having identified in August 2011 that the Applicants were sending and receiving inappropriate emails which lead to Mr Doyle’s investigation and report. I am unable to categorise the misconduct engaged in to be such that it was inconsistent with the continuation of the contract of employment justifying summary termination.

General employee warnings

[140] The Thales Outline of Submissions refers at paragraph 18(d) to notices having been sent out to employees on numerous occasions over a prolonged period in relation to the misuse of computer resources.

[141] There is no doubt that Thales has never condoned the receipt or circulation of offensive emails and has acted to prevent this from occurring by alerting its employees of the relevant Thales policies and the obligations attaching to employees personally in respect of these policies.

[142] It was submitted by Thales that four general notices were distributed to its workforce by either email, or a general notice between 2004 and 2009, meaning the notices were approximately between two and eight years old:

[143] It is to be noted that Ms Flanagan could not have directly received the first three communications as she did not have email access until at least 2007. Mr Pitches did not have email access when the first warning was sent in 2009. This was not noted in the Thales written submissions.

[144] Ms Kim representing Thales took each of the Applicants in cross examination to the relevant emails that had been purportedly forwarded to all Mulwala employees via a generic email address. None of the Applicants recalled having received the emails and no evidence was produced by Thales to prove receipt of the emails.

[145] The inability of Mr Hogan to recall an email sent nearly eight years previously in 2004 and for both Mr Hogan and Mr Pitches to not recall an email/memorandum in 2006 some six years ago is understandable. While Mr Hogan recalled a warning email in 2009, his recollection was that it related to accessing the internet for pornography. Mr Pitches and Ms Flanagan could not the recall the 2009 email (PN146, 147, 271, 389, 439).

[146] All warning emails were addressed to a mass circulation address, i.e. ML-ADI, ML-Mulwala, ML-All. Unlike the evidence produced by Thales to demonstrate the inappropriate emails were sent and received by the Applicants, no evidence was produced by Thales that the Applicants had received these emails including the most recent, dated 9 October 2009 (PN895).

[147] Mr Hogan’s evidence was that he had never seen anything about email usage in a general notice or anything (PN144, PN147).

[148] As stated above, Ms Flanagan was not granted access to the Thales email system until around 2007 or 2008 and as such, would not have received the 2004 or 2006 email warnings, Ms Flanagan did not recall the 2009 email (PN272).

[149] Mr Pitches was given email access in 2005, he would not have received the 2004 email warning and did not recall the 2006 and 2009 warnings (PN389).

[150] It is also apparent that despite reliance on these warnings by Thales in this hearing the receipt or recollection of these warnings was not put to the Applicants at their 27 February 2012 meetings.

[151] More telling though is the evidence of Mr Mitchell, the Manufacturing Manager at the Mulwala site who has been employed at Thales since 2004. Mr Mitchell in conjunction with Mr Cowling conducted the interviews with the Applicants and was involved in and supported the decision to terminate the Applicants.

[152] Mr Mitchell in cross examination stated he did not recall receiving the October 2009 email addressed to the General Mailing list titled Appropriate use of company IT resources or any other warning to employees being relied upon by Thales to support the terminations (PN1370). Later in Mr Mitchell’s evidence he told the Tribunal that the first time he had become aware of the warning notices to employees was as a result of being provided with a copy in the witness box (PN1540).

[153] The evidence of Mr Mitchell is consistent with that of the Applicants who also had no recollection of the general employee warning notices going back approximately two to eight years. It would be an error for the Tribunal to find that Thales could rely on the general notices to support the terminations when the Applicants could not recall them and the Mulwala Manufacturing Manager had never seen them other than in the witness box. The email notices were not addressed to individuals but rather general mailing lists. As stated above, no evidence was put by Thales to demonstrate that the Applicants had received the emails in their mailboxes at the relevant times they were given access to the email system.

[154] That is not to say that employees need to be officially warned in writing or in a policy that the sending of inappropriate emails it not an acceptable work practice, particularly where such emails contain offensive content expressed in the form of nudity or pornography.

[155] The notices were not drawn to the Applicants’ attention at the meeting of 27 February 2012. The Applicants were not provided with the opportunity to advise Thales prior to their dismissals that they either did not have access to email usage when some of the emails were sent out or had no recollection of ever receiving the notices.

[156] Had the fact that Thales intended to rely on these warning notices been brought to the Applicants’ attention prior to their terminations, the Applicants could have advised Thales that they had no recollection of the notices. Further, one of the decision makers, the Mulwala Manufacturing Manager, Mr Mitchell, could have confirmed that he was in the same position as the Applicants in not recalling the notices and having seen the notices for the first time in the witness box.

[157] I find an element of unfairness has occurred towards the Applicants with Thales including as a consideration in the terminations warning notices that neither the Applicants nor the Manufacturing Manager could recall and which were not put to the Applicants prior to their terminations.

Thales adherence to Internet and E-mail Security Framework

[158] I have held that Thales had a valid reason for the terminations in that the Applicants’ conduct was in breach of the Thales Internet and E-mail Security Framework.

[159] The Applicant’s argument is that the investigation process was flawed as Thales did not fulfil its own obligations under the Framework policy. The Thales Internet and E-mail Security Framework places obligations on Thales itself and its employees.

[160] It was not made clear to the Tribunal by Thales exactly under which provision of clause 12 of the policy the monitoring of the Applicants’ emails occurred. There was no evidence that the emails were monitored by the Helpdesk or access was given to other employees following a formal request by the relevant Vice President or the Group Security Officer as is described in the policy. The evidence from Thales was that on 11 August 2011 Mr Doyle the Chief Information Security Officer was instructed by Ms Emily Mills an Employee Relations Officer to examine the mailbox of a Thales employee at the Benalla site. This initial review led to the review of the Applicants’ mailboxes.

[161] I note that clause 12 of the policy refers to the monitoring of emails; one definition of the word monitoring is “maintain regular surveillance over”. 16 Mr Doyle described his investigation as; “it was the monitoring of the emails, as the extraction of the emails that had previously been sent and received” (PN617).

[162] There is clearly an obligation on Thales under the Thales Internet and E-mail Security Framework to notify employees as soon as practical that their emails are to be discovered through monitoring (clauses 12 and 15).

[163] Thales did not satisfactorily explain or lead evidence to justify the reason for the lapse of time between Mr Doyle completing his report in August/September 2011 and the failure to notify the Applicants until the investigation was completed and the Applicants confronted with the allegations of misconduct on 27 February 2012 that their email usage had been monitored which had commenced six months earlier. None of the witnesses for Thales were in a position to advise what happened in the investigation process into the use of inappropriate email usage between August/September 2011 and February 2012.

[164] Mr Doyle, who undertook the investigative work, had no HR role in the exercise (PN621, 624). Mr Doyle stated that he was instructed to conduct an examination of an employee mailbox located at the Benalla site on 11 August 2011. No exact date was provided as to when he commenced conducting a search of the email content on the Applicants’ mailboxes using a forensic toolkit (TH1 at 10), although Mr Doyle was able to say that his review took approximately one month to conduct and it was his priority in August 2011 (PN597, PN693).

[165] The Thales witnesses gave varying reasons why the Applicants were not notified that their emails were being monitored sooner than 27 February 2012.

[166] Mr Doyle advised it was not his responsibility but that of HR, as it was a HR investigation (PN624).

[167] Ms Deckert, Mr Cowling and Mr Mitchell who were the ultimate decision makers were not aware of the investigation until February 2012 (PN1310, 1637).

[168] Ms Deckert stated it was not her role to know of the investigation (PN1057). Ms Deckert could not comment on why the Applicants were not notified of the investigation as soon as practical (PN1311).

[169] Mr Mitchell’s oral evidence was that he did not think that Thales had satisfied its obligation to notify the Applicants of the investigation as soon as practical (PN1465).

[170] Mr Cowling’s evidence was that he also only became aware of the investigation in February 2012. Although he was of the opinion that the notification of the Applicants and their manager, in February 2012, of an investigation which commenced in August 2011, was in compliance with the Thales obligation to notify as soon as practicable (PN1695).

[171] I accept the Applicants’ submission that Thales had not complied with its notification obligations to the Applicants under the Thales Internet and E-mail Security Framework, once the monitoring of their emails commenced.

[172] I have further drawn the conclusion having heard the evidence of the Thales HR witnesses, that they were unaware of this obligation contained in the Thales Internet and E-mail Security Framework. None of the Thales witnesses appeared to have any clear understanding of Thales’ responsibilities under their Internet and E-mail Security Framework at clauses 12 and 15 once a decision to conduct the investigation was taken being incumbent on those conducting an investigation to appraise themselves of the relevant provisions of the policy.

[173] The question which arises is whether this non compliance or breach by Thales has caused the Applicants any prejudice. As held by all three Justices in the Shire of Esperance v Mouritz  17

[174] Had Thales complied with its obligations under the Thales Internet and E-mail Security Framework to inform the Applicants that their mail boxes were being subject to a forensic examination, I see no reason why it would not have been reasonably practical to have done so immediately or at least some time in August 2011, following the HR instruction to Mr Doyle.

[175] It is a reasonable assumption that any employee would refrain from sending a potentially inappropriate email on a work computer once advised their mailboxes were being individually scrutinised. Mr Crawford tendered a document he had produced, AWU13 which indicated emails sent after the 7 February 2011 being the date Thales received a complaint at its Benalla site and considered by Thales in finding the Applicants had sent or received inappropriate emails. I do not find 7 February 2011 a date relevant to the Applicants whose mailboxes were not being accessed until sometime in August 2011.

[176] Had Thales acted in accordance with its policy it would have advised the Applicants sometime in August 2011 of the review being undertaken of their mailboxes thus making it unfair for Thales to subsequently rely on email traffic accessed after August 2011.

[177] In Thales’ written submissions at 14-16 a list of the inappropriate emails sent and received by the Applicants includes emails sent and received between November 2010 and November 2011. This information is also reflected in TH4 at BC3. Listed in Thales written submissions are emails sent or received by the Applicants in September and November 2011. In view of my conclusions above I accept the Applicants’ argument, that it would be unfair, in so far as the email traffic from September 2011 on, to have been considered by Thales.

[178] It was never made clear to the Tribunal by Thales how emails sent and received after August 2011 came to be considered in Mr Doyle’s report (PN785) (1843). There was a reference to a second investigation in the Thales closing submissions in response to a question from the Tribunal; however, no detail of this was given in evidence or in any witness statement or written submission.

[179] Having promulgated a policy and in relying on that policy to terminate the Applicants, Thales had an obligation to adhere to the policy itself, in failing to do so the Applicants were prejudiced.

Training

[180] The Thales position was that the Applicants breached the terms of the Internet and E-mail Security Framework, the Australia Appropriate Workplace Behaviour Policy and Framework and the Thales Code of Conduct. Further Thales submitted that each of the Applicants had undertaken training in relation to the policies and frameworks and appropriate workplace behaviour.

[181] The Thales Outline of Submissions state at 18(c); Each Applicant had undertaken training in relation to the policies and frameworks and appropriate workplace behaviour.

Thales Internet and E-mail Security Framework Training

[182] Thales brought no evidence to demonstrate that the Applicants had undertaken any training on the Thales Internet and E-mail Security Framework (PN1706 - 1709) and the Applicants confirmed none had been provided.

[183] In Ms Deckert’s evidence she confirmed that she had received training on the Internet and E-mail Security Framework in July 2010 (PN1060).

[184] Mr Mitchell’s evidence was that he had received a copy of the policy but had not been trained on the policy (PN1455).

[185] Mr Cowling stated he had not undertaken any training on the policy (PN1708) and wasn’t aware whether any specific training on the policy had been conducted (PN1678).

[186] Mr Hogan’s evidence was that he didn’t know that the Thales Internet and E-mail Security Framework document even existed (PN97).

[187] Mr Pitches stated that he had only read the Thales Internet and E-mail Security Framework after his termination (PN343).

[188] Ms Flanagan’s evidence was that she read the Thales Internet and E-mail Security Framework for the first time at the meeting with Mr Mitchell and Cowling (PN247).

[189] Why Ms Deckert had received training on the policy and others had not, including the Applicants wasn’t explained to the Tribunal.

[190] The only conclusion I can draw from the evidence in this matter is that the Applicants received no training on the Thales Internet and E-mail Security Framework.

[191] Having policies regarding workplace behaviour without providing adequate training for employees on those policies compromises employers’ efforts to improve workplace behaviour and reduces the effectiveness of a written policy. (see Caton v Richmond Club Limited). 18

Appropriate Workplace Behaviour Training

[192] Thales submitted that all the Applicants had attended a training course in 2009 titled Appropriate Workplace Behaviour which included a section on appropriate email usage. I accept that the exhibit marked ‘BC5’ attached to Mr Cowling’s witness statement is evidence of the Applicants having attended such training in late September 2009.

[193] The content of the training which I have accepted the Applicants did attend was disputed by the Applicants to contain any material relating to email usage. Unfortunately, the contents of this training were not made available to the Tribunal by Thales. There was no material or evidence provided to the Tribunal as to what was explained to employees who attended this training.

[194] Mr Hogan stated that he had attended the Appropriate Workplace Behaviour training but said it had nothing to do with computer usage (PN95, 164, AWU4 at 38).

[195] Mr Pitches and Ms Flanagan did not recall attending the Appropriate Workplace Behaviour training, (Pitches AWU6 at 28, PN338, 418; Flanagan AWU5 at 23, PN244).

[196] Ms Deckert’s and Mr Mitchell’s evidence did not address the content of this training.

[197] Mr Cowling, who was employed by Thales in October 2011 was not able to provide direct evidence as to the content of the 2009 training (PN1580), but understood it contained references to offensive images being distributed through emails.

[198] While I find that the Applicants attended training in 2009 on Appropriate Workplace Behaviour on the evidence produced before the Tribunal, I cannot conclude whether the appropriate use of email traffic was part of the content of this training. The Applicants state email usage was not addressed. A copy of the content of the 2009 Appropriate Workplace Behaviour training course would have assisted the Tribunal in determining this matter.

[199] As stated earlier it is not unreasonable to expect that employees would know that sending and receiving inappropriate emails is not suitable workplace behaviour. I do not consider it essential for an employer to have trained employees regarding a prohibition on the distribution of offensive and/or inappropriate images before being able to take disciplinary action against an employee for engaging in such conduct. The move to an electronic age has made the ability to circulate such literature a relatively easy task. However, I have no reason to find that what is acceptable in a workplace has been relaxed with improved technology. If anything the opposite has occurred, with a multitude of State and Federal statutes now existing with the intention to create a workplace free of potentially offensive material. 19

[200] However, Thales sought to support the summary terminations by submitting the Applicants had undertaken training in relation to the policies and frameworks and appropriate workplace behaviour. There was no evidence that the Applicants attended training on the Thales Internet and E-mail Security Framework, and while I have found that the Applicants attended Appropriate Workplace Behaviour training, what was contained in this training relating to email usage is unknown.

Procedural Fairness

[201] The Applicants’ argue that in effecting the terminations Thales did not apply procedural fairness. In the High Court decision of Byrne and Frew v Australian Airlines Pty Ltd 20 at page 468 McHugh and Gummow JJ state:

[202] The Applicants were advised at the 27 February 2012 meetings that they faced the prospect of termination. This was contained in a script prepared by Ms Deckert (TH4 at 28) which I accept was read to them by Mr Cowling:

[203] At the conclusion of the 27 February 2012 meetings, each Applicant was advised that the company would consider their response and get back to them as soon as possible.

[204] Had the offending emails considered by Thales been limited to those sent and received in a period prior to Mr Doyle commencing his investigation, any failure by Thales to advise the Applicants as soon as practical that their email traffic was being monitored would have had no impact on the outcome of the investigation.

[205] The responses provided by the Applicants when the allegations of misconduct were put to them on 27 February 2012 by Mr Mitchell and Mr Cowling were a determining factor in the Thales’ decision to terminate the Applicants. Ms Deckert stated that Thales were looking for an explanation that would have included the Applicants notifying their manager, deleting the file and requesting the sender to cease sending inappropriate emails (PN1162). Ms Deckert noted that none of the 13 employees subject to investigation at the Mulwala site provided this response; however some of the 13 employees were able to still keep their jobs (PN1165-1176).

[206] Ms Deckert’s evidence on this point is to be contrasted with the evidence of Mr Cowling who stated that it was very difficult to come up with mitigating circumstances as none were raised, but: There may have been an unknown medical condition that we were unaware of, “sex addiction or something like that” (PN1786). I find the likelihood of receiving such a response to be minimal. It is also far from preferable that management employees involved in the decision to terminate are not of the same mind on what is acceptable as a mitigating circumstance.

[207] It was submitted by Thales that the Applicants had an opportunity to further respond to the allegations put against them at the meeting of 27 February 2012 and raise any additional mitigating circumstances with either Mr Cowling or HR prior to their termination.

[208] The witness statements of both Mr Cowling and Mr Mitchell make no reference to the Applicants being advised that they may respond further to the allegations. They were told:

[209] Despite Mr Cowling’s oral evidence that the Applicants could have approached him between the meeting of 27 February 2012 and their termination meetings on 1st March 2012 (PN1715) to present any other mitigating factors, I do not accept this to have been a realistic option. The Applicants were not aware of this, the witness statements of both Mr Cowling and Mr Mitchell make no reference to this option, nor do the contemporaneous discussion records which were tendered (BC2).

[210] Mr Crawford on behalf of the Applicants, relied on the fact that there was no complaint received alleging that any of the Applicants’ emails caused offence. The evidence of the Applicants was that the recipients were not offended. While this was the evidence, it cannot be a significant factor in the Applicants’ favour, as to accept this as a significant factor would sanction the sending of inappropriate email images to consenting recipients in a worksite contrary to an employer’s stated policy.

[211] The procedure adopted by Thales culminating in the Applicants terminations could have been handled better. The Applicants should have been told as per the Thales Internet and E-mail Security Framework that their mailboxes were being monitored, the failure to do so as soon as practical has procedurally tainted the Thales investigation with the inclusion of emails that would otherwise not likely have been generated.

[212] After the allegations of misconduct were put to the Applicants the provision of a short period of time to consider their response would have been a better approach. This is because at the initial meetings Thales relied on the Applicants’ breach of the Thales Internet and E-mail Security Framework which had the Applicants had time to study or take advice on, would have enabled the issues now raised at this hearing regarding Thales’ obligations under the policy, to have been addressed and reconsidered prior to the any decision to terminate the Applicants.

[213] At the meetings of 27 February 2012 the Applicants were advised they had attended training on Appropriate Workplace Behaviour in 2009, the relevant content of that training was not provided to the Applicants, unlike the extracts of the relevant Thales policies which were provided at the meeting. Had that occurred the question of whether inappropriate email usage was covered in the training could have been resolved before the terminations and not left to this hearing, where it still has not been established what relevant training was conducted, other than the Applicants stating the training did not contain material on inappropriate email usage, and Mr Cowling stating that he understood that it did.

[214] Mr Mitchell who interviewed the Applicants and was involved in the decision to terminate and the only Thales witness employed for the entirety of the relevant period, gave evidence that the responses the Applicants gave at their initial meetings were relied on as a factor in deciding what punishment was appropriate (PN1400). He stated that all three Applicants demonstrated remorse for their conduct. Mr Cowling, who was the only other Thales management employee present at the meetings with the Applicants, was of the view that Mr Pitches did not demonstrate remorse (PN1727). Exhibit KD3 prepared by Ms Deckert states that Mr Pitches showed no remorse.

[215] At point 22(a) of the Thales Outline of Submissions it is stated that Mr Pitches did not show any remorse for his actions. Despite this not having been put to Mr Pitches prior to his dismissal, it is contrary to the evidence of Mr Mitchell who attended the meetings on behalf of Thales and who was involved directly in the decision to terminate Mr Pitches. Failure to show any remorse is not referred to in Mr Pitches’ letter of termination.

[216] Having regard to the evidence of Mr Pitches referred to above, and the evidence Mr Mitchell who attended the 27 February 2012 meeting and confirmed that Mr Pitches showed remorse and Mr Pitches demeanour in the witness box, I find that Mr Pitches was remorseful when presented with allegations of his inappropriate conduct on 27 February 2012 and that it was an error for Thales to include a lack of remorse in justifying Mr Pitches termination.

[217] The Tribunal as a non-judicial body is not bound by the doctrine of precedent, but in the absence of distinguishing features a Tribunal member will follow previous related and comparable Full Bench decisions as a matter of policy and sound administration.

[218] In deciding this matter I am guided by the Full Bench decision in Wake and Queensland Rail [2006] 21. The Full Bench stated:

And further:

[219] There are a number of factors in this case which I have outlined above in my view impact on the harshness, justness or reasonableness of the terminations.

[220] In any termination of employment, there will be a financial and personal penalty suffered by the employee. This does not result in the termination being harsh, unjust or unreasonable. In this matter the evidence of all the Applicants establishes that their terminations have had a severe impact on their personal and economic circumstances. Vice President Ross as he then was expanded on the term harsh in G A Stewart v University of Melbourne. 22 At paragraph 74 of the decision he defined the word harsh in the following manner:

[221] The meaning of the term “harsh, unjust and unreasonable” was considered by High Court Justices McHugh and Gummow in Byrne and Frew v Australian Airlines Pty Ltd 23 at page 465.

[222] In the decision of SDP Williams in National Union of Workers and AB Oxford Cold Storage Co. Pty. Ltd the Senior Deputy President noted at paragraph 23: 24

[223] There is no doubt that termination of employment from a large employer in a regional area has resulted in catastrophic consequences for Applicants. The impact of the dismissals on the Applicants is not restricted to a financial loss. Mr Pitches’ evidence was that workmates had donated money to help him and his family over Easter. Ms Flanagan deposed to losing weight and confidence and stress on her family. Mr Hogan referred to the termination as the worst thing that has ever happened to him in his life, with a massive impact on his children and wife (PN105).

[224] The Applicants have attempted to find alternative employment with varying degrees of success due to the small community they reside in. Suffice to say none has found or are likely to find equivalent alternative employment.

[225] Ms Flanagan had obtained some part time cleaning work, and was waiting for a reply to her application for work at the local piggery. Mr Hogan had worked as a builder’s labourer and was currently working at an abattoir. Mr Pitches had applied for numerous jobs, including a maintenance employee at McDonalds, working on the Moira Shire road gang, a Greyhound Bus Coach Captain and cleaner at the RSL club.

[226] The evidence of the impact of the terminations on the Applicants was stark. The loss of self esteem and confidence, virtual impossibility of finding alternative equivalent employment in a regional area, loss of social standing, serious family consequences and obvious financial loss was demonstrated in this case.

[227] The presentation of this case by all parties before the Tribunal produced no evidence that the essential relationship of trust and confidence between the Applicants and Thales had broken down. I have no reservation in concluding that the Applicants are remorseful for the conduct they engaged in by their demeanour exhibited in the witness box and do not consider as a realistic proposition that they would reoffend.

[228] In considering whether the dismissals were harsh, unjust or unreasonable, I have concluded that despite there being a valid reason for the terminations, the circumstances attached to the terminations which I have outlined above make the terminations to harsh, unjust or unreasonable. No particular matter alone results in this conclusion but rather the combination of circumstances and deficiencies in the process undertaken by Thales identified above.

[229] Section 390 of the FW Act, places an emphasis on reinstatement as opposed to the payment of compensation, where the Tribunal makes a finding of unfair dismissal.

[230] It is clear that the Applicants’ inappropriate conduct contributed to their termination of employment. As such they must bear some responsibility. In the circumstances reinstatement should not be accompanied with an order for Thales to pay for any loss of earnings or accrued entitlements lost since the dismissals.

[231] Accordingly, I find that the Applicants are to be reinstated within 14 days of the date of this decision. The period from termination until the date of reinstatement is be treated as a period without pay and not be taken into account for the purposes of calculating any statutory, award or agreement entitlements. Further, the Applicants must agree to undertake Thales’ provided training on the appropriate use of the Thales computer network as soon as practical.

[232] The parties may refer this matter back to the Tribunal should there be any difficulty implementing this decision.

[233] I would make it clear that that this decision is not intended to in any way undermine an employer’s right to enforce appropriate policies regarding the use of email at the workplace. As the Full Bench said in Wake and Queensland Rail each case is to be decided on its merits, but in general it is in the public interest subject to considerations of fairness that Tribunals support efforts to stop inappropriate email traffic.

[234] This is one of the rare occasions where as the Full Bench commented Wake and Queensland Rail; it ought not to be assumed that the Tribunal will uphold an employer’s right to terminate in all cases of a breach of a policy regardless of the circumstances. Whatever an employer’s policy prescribes, the Tribunal must decide whether the termination is harsh, unjust or unreasonable.

COMMISSIONER

Appearances:

S Crawford for the Applicants.

M Kim for the Respondent.

Hearing details:

2012.

Wodonga:

June 26 & 27.

 1   Note: Thales uses the word Email in the termination letters, the actual policy states E-mail.

 2   Budlong v NCR Australia Pty Ltd [2006] NSWIRC 288; Chief Commissioner of Police Appeal Board & Ors [2012] VSC

 3   Queensland Rail v Wake PR974391 AIRC 2006; Batterham & Ors v Dairy Farmers Ltd [2011] FWA 1230; Toyota Motor Corporation v AFMEPKIU Print T4675 [2000]; Lane v Northern Sydney Central Coast Area Health Service [2006] NSWIC 176

 4   Chief Commissioner of Police v Police Appeals Board & Ors [2012] VSC 105 (23 March 2012)

 5   Wake v Queensland Rail PR974391

 6   [2011] FCAFC 54 at Paras 5 -7

 7   PR963023

 8   (1992) 41 IR 452

 9   (2003) 124 IR 217

 10   (1992) 41 IR 452

 11   Ibid at 460

 12   Sharf, B.F. (1999) Beyond Netiquette: The Ethics of doing Naturalistic Discourse Research on the Internet. In S. Jones (ed.) Doing Internet research: Critical issues and methods for examining the net. Thousand Oaks: Sage Publication, 243-256 at p.246.

 13   See for example Cambridge-Darg v Star City Pty Limited (U2001/4678) at [16]

 14   [2006] FCA 1049, [6].

 15   [2006] VSC 445, [17]

 16   Australian Concise Oxford Dictionary 5th Edition

 17   WA Industrial Appeal Court 71 WAIG 899

 18   [2003] NSWADT 202 (27 August 2003) at 175

 19   See Heather Horne & Gail McIntosh v Press Clough Joint Venture (Comprising Press Offshore Limited) CCH 92:556

 20   185 CLR 411 (1995)

 21   (U2006/4054)

 22   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535)

 23   185 CLR 411 (1995)

 24   C No. 30469 of 2000

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