King & Wood Mallesons

Asia-Pacific 100 position: 2

Commission agrees smutty emails are bad, but dismissal may still be unfair

By Angela Weber

The Fair Work Commission has found that the termination of a long-time employee of the Department of Defence was unfair, even though his conduct in sending pornographic emails was a valid reason for dismissal.

Mr X’s supervisor undertook an initial assessment of the incident and decided Mr X should be counselled but not terminated. This report was then forwarded internally for an assessment of whether Mr X had breached the APS Code of Conduct. Four months later, Mr X was told his conduct would be subject to a formal investigation. A Code of Conduct investigation subsequently resulted in the Department of Defence deciding to terminate Mr X’s employment.

Mr X argued that his conduct in storing and sending certain emails was inappropriate, but that the sanction of dismissal was disproportionate to the degree of misconduct…

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