Media Release 11 October 2008
The Society is delighted that the Employment Court in Wellington has recently issued a robust landmark decision that defends the rights of employers to enforce any company rules they have prohibiting their employees from accessing, downloading, uploading, saving, requesting, transmitting, storing or purposely viewing sexual, pornographic, obscene, racist, profane or other offensive and inappropriate material, using the workplace internet or intranet. The Court’s decision overturns a determination of the Employment Relations Authority (ERA) issued last year that was extensively covered in the media and featured in July 2007 on John Campbell’s TV3 Nightline programme.
“Employers have always had a right to dismiss employees who breach company policies relating to conduct in the workplace,” says Society Executive Director David Lane. “However, this Court decision, Arthur D Riley & Co Limited v Jessica Sharon Wood (WC 18/08; WRC 25/07) issued by Judge CM Shaw on 8 October 2008, underlines in case law, for the first time I am aware of, the rights of employers to tie their company policies to their own community/workplace standards in relation to objectonable/pornographic or offensive content, without relying on the liberal and flaky definition of what constitutes offensive and obscene content issued regularly by the Chief Censor’s Office – the so-called enlightened ‘objective view’. Of course companies must set out fair and reasonable procedures that allow an employer to effectively deal with breaches of conduct in the use of the internet, clearly define inappropriate content and notify and warn employees of the consequences of all misconduct.”
Employment Court Judge Coral M Shaw has overturned an earlier determination that was issued by the Employment Relations Authority (ERA) that upheld a wrongful dismissal claim by a Wellington woman Miss Jessica Sharon Wood against her employer Arthur D Riley & Co Lts (ADR). The substantial financial compensation awarded her by the ERA, made against ADR, has now been negated by the Employment Court which has ruled that all of it (paid in full by ADR into the Court, pending appeal result) – 75% of her lost wages from 18 September 2006 to January 2007 and $9,000 damages for humiliation – must be returned with interest to the plaintiff (ADR). The Court has reversed the decision of the ERA by now reserving costs in favour of the plaintiff, which has 28 days from the date of the Court’s decision, 8 October, to submit its claims against Miss Wood.
The Society Director David Lane praises Mr Garth Mickell, Director of a private electricity and water metering business, Arthur D Riley & Co Ltd (ADR), the plaintiff, for challenging the appallingly incompetent and flawed decision issued last year by Mr Denis Asher of the ERA.
In an email dated 10 October Mickell wrote to the Society:
“First thank you for your support, and advise. Attached for your reference is the employment court determination. We are thankful that commonsense has prevailed, and there is now the ability of places of work to be able to determine their level of morality and ethics, without influence from central government.”
To reiterate: employers now have a right, recognised by the Employment Court, to enforce company policy relating to what they consider constitutes objectionable/pornographic or offensive content without having to get an “objective” determination from the Chief Censor’s Office. Employers can also determine what constitutes “serious misconduct” relating to such material without having to have the liberal Chief Censor’s Office effectively negate the fair and reasonable community standards they seek to uphold in the workplace.
Some Details on the Case
The Employment Court overturned a determination issued by the Employment Relations Authority (ERA) that Miss Wood had been wrongly dismissed as an employee of Arthur D Riley & Co Ltd [ADR] on 18 September 2006, for serious misconduct including breaching its clear internet/intranet policy, by forwarding on to fellow employees and friends in government departments, a “joke email” on the subject of “Eleven Most hot People!!!!!!!” (sic), containing offensive sexual content, which she had received from her father Graeme Wood a Wellington City Council employee. The email contained offensive images including those of completely nude obese middle aged men and an elderly women and explicit depictions of a man’s genitalia.
The ERA determination made by Denis Asher stated: “The images were clearly designed to shock and ridicule, as evidenced by the subject title and the phrase employed by Ms Wood when she forwarded it,. . . namely ‘ewww’.”
Mr Asher said the company had “a significantly flawed and less than consistent approach to its email policy”. He also deemed the pictures were not as objectionable as Mr Mickell made them out to be and that his views were “unsustainable”. “Something more concrete is required than Mr Mickell and his colleagues’ personal views,” Mr Asher said. He implied that because Mr Mickell had not submitted the emails to the Chief Censor’s Office for classification and thereby ‘proved; that they were in fact “objectionable” under s. 3 of the Films, Videos and Publications Classification Act 1993, he (Mickell) could not possibly sustain his company’s view that they were offensive. In the Employment Court Judge Shaw rejected this argument advanced by Counsel for Miss Wood.
Mr Asher also made the bizarre and erroneous ruling that because the other employees of the company who had received Ms Wood’s email had not been disciplined, the company was not being fair. The Court’s ruling notes that it is not the innocent recipient of “objectionable” or offensive content that breaks the law or company policy, but rather the disseminator of such content.
The Society strongly urged Mr Mickell in 2007 to appeal the ERA decision, which it considered seriously flawed. The ERA had ruled that Mr Mickell’s company had a significantly flawed and less than consistent approach to its internet and email policy and its application was not fair and consistent. The Court rejected these findings that run counter to all the facts of the case and rejected the criticism that it had failed to advance any “objective criteria” as to what constituted objectionable/pornographic or offensive material, but rather had relied only on colleagues’ personal views.
The Society is delighted that the Chief Censor’s Office was shut out of this dispute and that its liberal agenda has not been allowed to corrupt this important Employment Court ruling.
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139. The test of justification set out in section 103A of the ERA is applicable to a wide range of decisions or actions by employers, including when identifying and evaluating alleged serious misconduct.
142. If an employer has not made reasonable inquiries into an allegation of serious misconduct prior to reaching a conclusion, then any decision to dismiss is likely to be unjustified. An employer will be evaluated on the reasonableness of his or her belief that the employee was guilty of the serious misconduct alleged, based generally on the investigative process undertaken to establish this belief, including the provision of an opportunity for the employee to answer the complaint.
143. In respect of substantive justification, the Courts will usually apply a two-stage approach to the question of whether a dismissal is justified:
(a) Did the misconduct amount to serious misconduct; and
(b) Was dismissal what a fair and reasonable employer would have done bearing in mind in of all the circumstances at the time?
144. With procedural fairness in such cases, the usual rules apply. However, employers should note that an employee should be advised at the outset of an investigation that the process might result in him/her being summarily dismissed.
Wood v Arthur D Riley & Co Limited (unreported, WA96/07, 9 July 2007)
145. A recent Employment Relations Authority determination, Wood v Arthur D Riley & Co Limited considered the test of justification in section 103A of the Employment Relations Act 2000 in a summary dismissal situation. The case involved an employee, Jessica Wood, who forwarded, via her work email, an email she had earlier received from her father misleadingly entitled “Eleven most hot people!!!!!”. Some individuals depicted were obese; another image appeared to have a woman’s head transposed onto the body of a male body-builder. The Authority noted that the aim of the email was to shock and ridicule.
146. In summarily dismissing Ms Wood, the company relied on its house rules (employment polices) which provided that a breach of the Internet and Email Policy amounted to serious misconduct. The Internet and Email Policy provided that computers were to be used only for business purposes, and prohibited employees from transmitting or storing obscene, pornographic or offensive material. Further, the policy provided that what constituted offensive material was to be determined by the company in its sole discretion.
147. Despite the company’s clear policies, and the fact that Ms Wood had received earlier warnings about inappropriate email usage and professionalism in the workplace generally, the Authority was of the opinion that the company’s decision to dismiss did not meet the test of justification in section 103A.
148. The Authority emphasised that the company could not simply rely on its policies or house rules to assert justification for Ms Wood’s summary dismissal. The application of any policy was subject to the test of justification in section 103A requiring an objective assessment by a fair and reasonable employer. Just because the company’s policy provided that certain behaviour amounted to serious misconduct, did not automatically mean that such behaviour did constitute serious misconduct. The rationale for this view is that section 103A requires an employer to decide whether dismissal is fair in all the circumstances.
149. The Authority did not look favourably on the company’s flawed and inconsistent approach to enforcing its internet and email policy. The Authority noted that in reality the company accepted a significant measure of personal email usage notwithstanding its policy that email and internet be used for business purposes only. Accordingly, other employees had not been disciplined in relation to storing Ms Wood’s email in contravention of the Internet and Email policy.
150. Further, the Authority was not convinced that a fair and reasonable employer would have considered the email offensive. The Authority noted that Ms Wood had received the email from her father, a person she could reasonably expect to rely on in determining what was or was not offensive. Ms Wood’s father was employed by a major local body whose computer filtering program had not picked up the email. The Authority was of the view that the company had not advanced enough objective criteria that the images were offensive. The Authority considered that the company’s reliance on arguments that, for example, pictures of obese people would offend other obese people was insufficient evidence that the email was offensive.
151. The Authority concluded that the company had relied too heavily on its own views as to what constituted offensive material, and its decision to dismiss did not reflect on what a fair and reasonable employer would have done in all the circumstances at the time.
152. Ms Wood was awarded reimbursement for lost wages, and $12,000 in compensation for hurt and humiliation. However both these awards were discounted by 25% to reflect Ms Wood’s contribution