Employment Court backs Safe Air

By Scott Wilson, Partner

First published in NBR 25 August 2009

Safe Air was perfectly within its rights to fire a male staff member for sending sexually explicit emails, an Employment Court judge has ruled.

The decision overturns an earlier ruling by the Employment Relations Authority ordering the Woodbourne aviation engineering company to reinstate purchasing officer Philip Walker.

Mr Walker was dismissed from the Air New Zealand subsidiary in February for inappropriate emails he sent while at work. Some contained graphic nudity, lewdness and depicted sex acts.

He challenged his dismissal and, surprisingly at first blush, was successful in the Employment Relations Authority and was reinstated to his job.

But Safe Air was not happy with that determination, and went to the Employment Court, which accepted that the company had acted as a fair and reasonable employer and found that Mr Walker had not been unjustifiably dismissed.

An employment law specialist at Duncan Cotterill, Scott Wilson, said in any dismissal, the issue was whether the employer followed a fair process before taking action and was the action fair and reasonable?

Wilson said it was vital for employers to have accessible email and internet policies in place, setting out what they regarded as acceptable use. This must be communicated to staff.

Wilson said in reaching its conclusion, the Court had to decide a number of issues including whether Mr Walker was aware of Safe Air’s policies on email and whether these were applied fairly.

Judge Couch found that Mr Walker was not aware of the substance of the email policies but that ignorance of them was inexcusable. The Judge also accepted that Mr Walker’s conduct was capable of amounting to serious misconduct.

“Mr Walker had engaged a sustained course of conduct which he admitted knowingly was wrong and which he knew was the subject of company policy without finding out what the policy was. A significant number of the emails were also seriously offensive,” Wilson said.

Mr Walker was not alone in sending inappropriate emails and said he had been influenced by the fact that others had been doing this.

But Wilson said this did not hold any sway with the Court, especially given that Mr Walker knew what he was doing was wrong and also knew what others were doing was also wrong.

Other employees had also been the subject of investigation but had not been dismissed. Mr Walker said that this was unfair – he had been dealt with in a disparate way (one employee had been given a final warning). Safe Air had a satisfactory explanation for this – far fewer emails had been sent and they were not seriously offensive which was accepted by the Court.

Wilson said that while Walker may have won the battle at first instance, he ultimately lost the war.

Scott Wilson is an employment law specialist at Duncan Cotterill. S.wilson@DuncanCotterill.com

For further information, please contact:

Scott Wilson, 03 379 2430; s.wilson@DuncanCotterill.com

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