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Dismissal appeal fails for anti-Islam e-mailer

A FORMER diesel fitter for a major construction firm has failed to convince a Full Bench of the Fair Work Commission (FWC) that his dismissal following the distribution of an anti-Islam e-mail was unfair.

Heard in the first instance by the commission last September, the former Thiess employee sought reinstatement after an e-mail slandering Islam as a ‘killing machine’ was brought to the attention of a manager, prompting an in-house investigation into the incident.

Though finding the e-mail did not originate from the employee, its further distribution from the employee using the company’s network prompted Thiess to terminate his employment contract.

Read the full summary of the original ruling here.

Deputy President Asbury ruled the dismissal to be harsh and ordered compensation to be paid to the employee, but having failed to win reinstatement, the employee appealed the decision.

The employee argued that he had not been trained in acceptable use of Thiess’ IT systems and as such, could not be considered to have deliberately contravened one of the employer’s policies.

However, the Full Bench decided in favour of DP Asbury’s position, which found the employee had been warned not to utilise the company network to distribute e-mails unrelated to work.

“The evidence established that Thiess had a general Workplace Conduct Policy which among other things required employees to treat each other with dignity, courtesy and respect and specifically prohibited religious vilification, and also had a specific policy concerning appropriate usage of Thiess’s computer system entitled Acceptable use of information systems,” the Full Bench said.

“Although the Deputy President found that there was no evidence that (the employee) had been specifically trained in the latter policy, it was open to (the DP) to find, as she did, that (the employee) could not have been oblivious to the primary aspects of that policy.”

Further, the employee argued the e-mail did not vilify those of Islamic faith as it referred only to extremists. However, the Full Bench of the Fair Work Commission rejected this argument.

“In refusing to order reinstatement the Deputy President took into account the fact that there was a valid reason for (the employee’s) dismissal having regard to the earlier conclusions that the email and its attachments inappropriately vilified persons on the basis of religious belief, caused offence to at least one person, had the capacity to offend others regardless of their religious beliefs, and had the capacity to cause reputation damage to Thiess,” the Full Bench said.

“The email (including the attachment) clearly vilifies – that is, defames and traduces – persons of the Muslim faith. We do not accept (the employee’s) submission that it was only directed at violent Muslim extremists. On a fair reading of the email, it denigrates Islam and its adherents generally.”

“It also, if publicly exposed, had the potential to damage Thiess’s reputation as a company with a multicultural workforce and international operations which extended to Indonesia, a Muslim-majority nation.”

The Full Bench ruled against allowing the appeal and the case was dismissed.

Read the full decisions here.

Implications for Employers

In the first instance, this particular case caused concern among the business community as DP Asbury ruled the dismissal to be fair, but still ordered compensation of more than $28,000 paid to the employee due to its ‘harshness’.

While a 50 per cent reduction in compensation was applied due to the risk of the e-mail causing damage to Thiess’ reputation, the decisions still caused some concern as to the capacity of employers to enforce their own policies and procedures without ramifications.

In this instance, Thiess specifically included religious vilification as a contravention of its company policy.
As such, it is important that company policies and procedures are clear, concise and well-communicated to an employer’s workforce so as to minimise any risk or impact of an unfair dismissal claim.

AREEA members are encouraged to contact their local AREEA office and speak to an employee relations expert. Offering advice, information and guidance on such workforce challenges, AREEA’s workplace relations consultants can help protect your organisation with articulate and clear workplace policies and procedures.

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