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Culture on Trial: Manager harshly dismissed after "explicit" joke about CEO

28 January 2014

A Queensland building company has been found to have unfairly dismissed a senior manager who sent round an email inferring that the CEO was an "excessive masturbator".

The company's financial controller described the email as a joke and said that "no reasonable person could have perceived the email in any other way." He sent it out in response to an email sent to staff from the chief executive telling them about his new Lamborghini.

Attached to the email was a fake document that the controller described as the CEO's "original resume" which listed "excessive masturbation" in the hobbies and interests section.

As reported by Workplace Express, one key point in this case was the culture within the organisation and the context it provided for the manager's conduct. Although the Fair Work Commission's Deputy President Ingrid Asbury described the manager's behaviour as misconduct she did not find that it was a valid reason for dismissal in all the circumstances.

She stated that the termination was "disproportionate when it is viewed in the context of the workplace culture [at the company] and the misconduct engaged in by other employees who were not dismissed."

Employees at the company, including managers and senior staff, were found to regularly send and receive offensive material that was considered by Deputy President Asbury to be "much worse" than the email sent by the financial controller. She pointed to an email group within the company which was called 'the Porn Stars' with membership being managed by the IT Manager, saying it "speaks volumes about the attitude of senior management [of the company] to the dissemination of highly offensive material in the workplace."

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The deputy president also described the chief executive's attempts to portray the financial controller as a person who had "tendencies towards sexually explicit material" to be unconvincing and did not accept that the CEO was unaware of the conduct of the senior management team.

"This is not a case where an employer had a firm and well established policy about use of its electronic communication system for the dissemination of inappropriate material and dismissed an employee for breach of that policy.

"It is also not a case where a decision to uphold [the financial controller's] dismissal would support an employer striving to stop inappropriate email traffic.

"In fact, to the contrary, to uphold [the financial controller's] dismissal would support an employer who has dealt disproportionately with employees who have engaged in much more serious misconduct."

She said it was relevant that "an employee who assaulted a co-worker while intoxicated and was repeatedly offensive to colleagues, and capped off his misconduct by driving away from the workplace while intoxicated thereby breaching conditions stipulated in a final warning, was allowed to apologise to colleagues and was retained in employment. [The financial controller] was not given a similar opportunity."

The decision has cost the company $62,000 in compensation to the dismissed senior manager. The damage to the company's reputation could also be costly given the severe dressing down received from the deputy president.

Although this case is somewhat extreme, it is a pertinent reminder of the responsibility of management to create and uphold lawful and appropriate workplace cultures. Ignoring inappropriate behaviour or failing to act on poor culture could land an organisation in trouble when matters come to light.

Organisations with concerns about culture or employee behaviour may benefit from engaging an HR consulting firm to help them establish a strategy to tackle problems and identify gaps. Services such as reviewing existing policies and their communication to staff, rolling out comprehensive training for employees and managers, and looking at how complaints are dealt with internally can all be provided by an HR consulting firm and can contribute to creating and maintaining a healthy workplace culture.

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