Unfair Dismissal: Ronald Anderson v Thiess Pty Ltd [2014] FWC 6568

An employee has been awarded almost $30,000 after he was dismissed for sending a work email to colleagues that discriminated and vilified Muslims and incited violence towards them. Whilst the Fair Work Commission (FWC) found that the employer had a valid reason for dismissing the employee, due to the employee’s poor prospects of finding other employment and because he had received no prior warnings, the dismissal was harsh and unreasonable.

Facts

Mr Anderson worked as a Workshop Trainer/Assessor for Thiess Pty Ltd (Thiess) for approximately 18 months before being summarily dismissed on the ground of serious misconduct. It was not disputed that Mr Anderson sent an email from his Thiess email address to a number of colleagues with the subject “World War 3 – PASS IT ON.” Whilst the FWC would not reproduce the email, it said that the email was highly offensive, vilified persons of the Muslim faith and depicted photographs of persons holding signs that make reference to beheading.

Mr Anderson argued that:

  • He was not the author of the email and that he had simply forwarded it from another person;
  • He had an otherwise unblemished employment record with Thiess and maintained that a warning would have been appropriate;
  • He had not been trained in the appropriate use of Thiess’ email systems and that other employees, including his supervisor, sent similar emails to him using Thiess’ email system;
  • He was unaware that forwarding the email would be grounds for his dismissal and if he had been made aware of this, he would not have sent the email;
  • His dismissal was unfair because he was 65 years old and he would have significant difficulty obtaining other employment;
  • He had been unfairly dismissed and sought reinstatement to his position.

Thiess said that Mr Anderson had been previously warned about his unacceptable use of the company email systems and by sending an email that was “offensive, inappropriate and potentially discriminatory and vilifying” he had destroyed the relationship of trust and confidence that must exist between an employer and an employee.  Thiess also said that they had a number of employees who were Muslim and the company had very close links with Indonesia where the Muslim faith is widely practiced. They asserted that Mr Anderson’s email could therefore cause serious reputational damage.

Decision

The FWC noted that Mr Anderson genuinely held the views expressed in the email and that his only regret was that he was dismissed for sending it.  Mr Anderson displayed a complete lack of understanding that persons other than those who are Muslim could be offended by his email and expressed that he would not apologise to Muslim radicals who wanted to “cut his head off.”

The FWC stated that Australia is a free country and Australians are able to hold whatever views they wish to hold. However, Mr Anderson was not free to receive and disseminate material on Thiess’ electronic information system while he was on Thiess’ time.

The FWC held that whilst there was a valid reason for Mr Anderson’s dismissal, it was unfair on the grounds that it was harsh and unreasonable because of its consequences for Mr Anderson’s future employment and because he had not been previously warned that he could be terminated for his actions. Because Mr Anderson made a significant contribution to his dismissal, the amount of compensation awarded to him was reduced by 50% to an amount of $28,578.68.

* 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.