Fair Work Australia (FWA) recently ordered the reinstatement of three long-term employees despite finding that they had breached their employer’s “Internet and Email Security Policy”.
The employer commenced an investigation into the inappropriate use of emails across its Australian operations in August 2011. The investigation concluded in September 2011. However, no action was taken against those particular employees until 27 February 2012 when at separate meetings, the employer put allegations of inappropriate email usage to each employee. Each employee was also provided with a copy of the relevant policy at their respective meeting. Having had an opportunity to review the policy at the meeting, each employee then acknowledged that they had breached the policy. The employees were then dismissed for serious misconduct because of their breach of the policy.
However, in subsequent unfair dismissal applications to FWA, the employees said that they were unaware of the employer’s internet and email policy at the time the breaches occurred and had not received any training about email usage.
The employer on the other hand argued before FWA that it had a policy in place and had sent general warnings to all staff with respect to the policy. In addition, all employees were required to agree to the terms and conditions of the policy by clicking “OK” prior to logging on to any computer in the workplace.
Whilst FWA found that breach of an employer’s policy would be a valid reason for termination, it also found that the employer had not produced any evidence to show that the employees in question had received any training about the internet and email policy. FWA also found that the company had incorrectly applied the policy by not informing the three employees that their emails were being monitored from September 2011 until their notification on 27 February 2012. In its decision, FWA emphasised the comments of the Full Bench in Wake v Queensland Rail [2006] AIRC (unreported, Commissioner Bacon, 12 September 2006) that “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.”
The key message employers should take from this case is that it is not sufficient for employers to simply have a particular policy in place within the workplace. Employers need to make their employees aware of the policy and the potential consequences that may follow if the policy is breached. In some instances, it will also be necessary to provide specific training for employees about the application and scope of a particular policy.
