The Case

Viva Energy Refining Pty Ltd (Viva) employed Mr Pearce as an operator at one of its refineries in Victoria for 27 years.

On 25 November 2016, Mr Pearce sent an email containing highly emotive language to 170 of his work colleagues, accusing several other unnamed operators of being “naive, deluded, stupid or selfish” for attending advanced fire training provided by Viva.

Mr Pearce expressed his anger and disapproval indicating that this training jeopardised the jobs of the refinery’s emergency response officers. Mr Pearce indicated in the email that he would be happy to discuss his position with the operators if he knew who they were.

Viva launched an investigation into the email, finding that it:

• was designed to intimidate, isolate, humiliate and bully the operators who attended the fire training;
• was designed to discourage other employees from undertaking safety training as required by Viva; and
• breached Viva’s conduct and behaviour policies.

Viva commenced a disciplinary process. Mr Pearce offered to apologise to the operators and to Viva. However, Viva dismissed Mr Pearce for misconduct.

Mr Pearce commenced unfair dismissal proceeding in the Fair Work Commission (FWC).

The Verdict

The FWC considered the content of the email, in particular the language and intent, finding that the email was:

• intended to negatively portray the operators who attended the training;
• disrespectful of their lawful decision to attend the training;
• divisive and intended to “flush out” the operators who attended the training; and
• intimidatory.

The FWC considered Mr Pearce’s offer to apologise was insincere and only came when he knew that his employment was at risk. The FWC found that despite being a single act consisting of sending the one email, this was sufficient to justify dismissal.

The FWC said:

“The email was not inadvertent. Nor was it provoked. Whilst written in disappointment and some anger it was not part of a heat of the moment exchange. It was unsolicited and widely broadcast. The misconduct was serious in intent and was not remediated when it could have been … Even as a single act, it had ripple effects and was designed to have those effects.”

The FWC held that there was a valid reason for dismissal, and the dismissal was not harsh, unjust or unreasonable.

Lessons for You

This case is a reminder that misconduct can come in many forms, including as an email, social media post or publication. Each case turns on its own facts. However, any conduct designed to injure (physically or psychologically) an employee in their employment needs to be responded to appropriately. In the circumstances of this case, it warranted dismissing Mr Pearce.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.