Employment Court overturn ruling on dismissal over email

An employment court judge has found that a Wellington company, ordered to compensate an employee fired after she sent an email containing pictures of naked people, acted appropriately.

Employment Court judge Coral Shaw found that Arthur D Riley & Co Ltd (ADR) was justified in dismissing Jessica Wood after she forwarded the email, having twice previously warned her about similar behaviour.

The company successfully challenged last year's Employment Relations Authority (ERA) ruling, and will receive the compensation payment it paid into court, with any interest earned. Costs were reserved.

ADR was to have paid 75 percent of Ms Wood's lost wages from September 18 2006 to January 2007, and $9000 damages for humiliation.

In last year's hearing, the ERA was told that when she started work in July 2005 as administrative assistant, Ms Wood was given a copy of ADR's policies and house rules, saying dismissal was likely if she breached the company's internet or email policy.

The policy stated employees were not to "access, download, save, request, transmit, store or purposely view sexual, pornographic, obscene, racist, profane or other offensive or inappropriate material".

The company retained the right to decide what was "offensive" or "inappropriate".

In December 2005 and August 2006, Ms Wood was warned about her internet use, including the questionable material she was sending from company computers.

Less than a month after the second warning, Ms Wood forwarded an email from a work computer on the subject of "Eleven Most hot People!!!!!!!" [sic] to workmates and friends.

Ms Wood received the email -- containing images of barely clothed or naked people, some obese, others with female heads edited onto the body of male bodybuilders -- from her father, a Wellington City Council employee.

After a disciplinary meeting for "downloading objectionable/pornographic material or offensive material" and personal use of company email and internet, the company met with Ms Wood again. After apologising but giving no explanation, Ms Wood was fired.

The ERA ruled that the company had a flawed and inconsistent approach to its own email policy; had overstated how objectionable the pictures were; and had not disciplined other employees of the company who had received Ms Wood's email.

However, in the ruling released this week, Judge Shaw said ADR's internet and email policy was clear that offensive material being circulated would not be tolerated.

The ruling on whether it was serious misconduct depended on factors including the workplace culture, house rules, and Ms Wood's awareness of the company's expectations.

ADR general manager Garth Mickell acknowledged that the workplace culture was reasonably conservative, and in that context he was justified in considering that some of the images forwarded by Ms Wood were objectionable, she said.

"Of necessity employers bring to their decisions the values, culture and expectations of their specific work place. They must weigh the impact of the behaviour of an employee under investigation on other employees and the work environment generally."

However, employers did not have licence to impose their personal prejudices or values on employees, she said.