A call-centre worker who complained of sexual harassment and was then sacked for using MySpace to criticise her employer's investigation - and for emailing pornographic images to co-workers - has failed in her unfair dismissal claim.
The former Real Insurance employee on 15 April 2009 alleged a call centre manager had sexually harassed her, prompting the chief executive, legal counsel and a director of the company to launch an investigation.
The manager admitted to "sexual banter" with the worker, but said it was consensual, a view backed up by several other employees in the area.
A search of the company's email system also uncovered a message the worker had sent to the manager that "you have been a constant challenge to me and I have loved every minute of it. From the constant flirting to the first time I got to see the human in you at conference".
The investigation also revealed that on two occasions the employee had used the company's email system to send highly sexually explicit images to co-workers or members of her family.
In two subsequent meetings the investigators questioned the employee both about her allegations of harassment and the pornographic images she had sent.
On April 24 the investigators informed the employee of its determination that her allegations were unfounded because, on the balance of probability, she had failed to show the manager's conduct was "unwelcome, unwanted or non-invitational".
Employee slams "witch hunt"
Later that day the employee posted an entry on MySpace, a social networking website, harshly criticising managers behind the investigation and including comments that:"I have just been thru an investigation that in the end, advanced corruption. The investigation sought to ensure that evidence was tampered with, was controlled and was biased. It was set to make the victim the perpetrator and that any accusation against the real perpetrator, that he was exonerated completely.
"This place covers peoples lives, offering to protect them when catastrophe happens and yet fails to protect the people that work for them. Chasing dollars over safety. Witch hunting. Nothing but witch hunters.
"To get rid of us was more commercially viable than getting rid of six figured salary sexual perpetrator that might just sue them for unfair dismissal."
The company discovered the post a short time later and on May 1 sent her a letter demanding that she take down the post and show cause why she should not be summarily dismissed for making the comments and sending and receiving the pornographic images.
The employee refused to remove the comments for at least three weeks, during which time they exchanged letters in which the company proposed that she resign from her job "by mutual agreement".
The issue was still unresolved until, on June 15 last year, the employee filed an unfair dismissal claim with the AIRC. In a hearing last year Commissioner Frank Raffaelli rejected the claim after finding she had not been terminated at the initiative of the employer.
A FWA full bench earlier this year overturned that decision, however, finding the "show cause" letter constituted a repudiation of the employment contract that the employee had accepted when she filed her unfair dismissal application, and ordered that the matter return to a single member of the tribunal to be dealt with.
Employee believed only "friends" could read post
Before FWA, the employee argued that the seriousness of any misconduct relating to her MySpace post was limited because she had intended that only her MySpace "friends" - people she had authorised to enter her personal page on the site - could access the material.This proved incorrect, but Commissioner Colin Thatcher said it would have been irrelevant if she had done so because her Myspace "friends" included work colleagues.
"It is enough that her ‘friends’ included other employees of Real because (even if it had such a restriction) it could reasonably be expected that a document of such controversy would be circulated within the workplace," he said.
Commissioner Thatcher said that, given the circumstances, it might have been possible to "make an allowance" for the employee's actions if she had apologised and removed the post a reasonable time after receiving the "show cause" letter.
However, not only had she failed to do so, during the hearing she refused to resile from the opinions she had expressed on her MySpace page.
The post was "an attack on the integrity of the management of Real", he said, and the allegation of corruption was sufficiently serious that it constituted a valid reason for dismissal.
No excuse for explicit images
Commissioner Thatcher said the emailing of pornographic content in the workplace was a serious matter and that in this case the images were "graphic and hard core".The employee gave evidence that other employees had also circulated pornographic images within the workplace and that in most cases she had sent them at the request of the recipients.
Commissioner Thatcher said this might have been relevant if it established management acceptance of the practice, but the evidence showed they took the issue seriously and had in the past dismissed employees for similar conduct.
It appeared the employee had failed to grasp the seriousness of her conduct in sending and receiving the images, he said.
"I find it regrettable that although [the employee] appears to be passionate about seeking justice in respect of her purportedly being a victim of sexual harassment in the workplace, she gives no impression that she has any understanding of the seriousness of her role in the distribution of pornographic emails (i.e., in effect being a perpetrator) or the linkage between the circulation of such emails in the workplace and the incidence of sexual harassment," he said.
While there were some problems with the procedure the company had adopted in dismissing the employee, they were not sufficiently serious to outweigh the employee's misconduct regarding the Myspace comment and the emails, and her unfair dismissal claim should therefore be dismissed, he found.
Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544 (5 November 2010)