Tassone v Kirkham [2014] SADC 134

Mr Tassone and Mr Kirkham worked as Correctional Officers at the Adelaide Remand Centre. On 18 July 2011 an email was sent from Mr Tassone’s work email stating:

“hello people, just a note to say that i am homosexual and i am looking for like minded people to share time with.”

The email was sent to approximately 2,300 colleagues. During the investigation later that day, Mr Kirkham confessed that he had been the one to send the email whilst Mr Tassone was out of the office. The next day, Mr Kirkham sought to withdraw the confession as he claimed he had been pressured to confess by other staff members.

Following the email, Mr Tassone was unable to attend work and was diagnosed with adjustment disorder with mixed anxiety and depressive reaction. Shortly afterwards, he started receiving workers compensation payments.

Mr Tassone commenced defamation proceedings against Mr Kirkham claiming that the email that was sent was understood by the recipients to mean that Mr Tassone:

  • Was a homosexual;
  • Was promiscuous;
  • Was of loose moral character;
  • Was seeking to solicit sexual relationships with persons he did not otherwise know;
  • Was a person who used his employment to solicit such sexual relationships;
  • Was a person who acted in an unprofessional manner in the course of his employment by using his employment email address to solicit such sexual relationships.

Mr Kirkham claimed that he was not responsible for sending the email and even if he had, the recipients of the email would have understood that it had been sent in jest and was a joke.

Decision

The Court found that Mr Kirkham had indeed sent the email.

Although the email clearly conveyed that Mr Tassone was homosexual, this was not defamatory in the general community of contemporary South Australia, or among the recipients of the email. The Court found that the other meanings conveyed in the email were defamatory.

Mr Tassone was awarded damages for non-economic loss, including psychiatric injury and aggravated damages in the sum of $75,000. Mr Tassone was also entitled to an award for the wages he had lost as a result of the defamation, which was to be determined after evidence was given by the parties.

This case demonstrates the requirement for employers to ensure the health and safety of all employees and the importance of having workplace policies in place regarding the appropriateness of work emails and information technology.

The Full Judgment can be read here.

 

 * PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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