2006 WAIRC 05535

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES IAN ANDERSON
APPLICANT
-V-
ROGERS SELLER & MYHILL PTY LTD
RESPONDENT
CORAM COMMISSIONER S J KENNER
HEARD THURSDAY, 24 AUGUST 2006
DELIVERED WEDNESDAY, 4 OCTOBER 2006
FILE NO. U 309 OF 2006, B 309 OF 2006
CITATION NO. 2006 WAIRC 05535

Catchwords Industrial law - Termination of employment - Harsh, oppressive and unfair dismissal and denied contractual benefits - Alleged breach of respondent's email policy and equal opportunity and harassment policy - Whether summary dismissal of applicant justified - Principles applied - Commission not persuaded that summary dismissal warranted - Applicant harshly, oppressively and unfairly dismissed by reason of his summary dismissal - Application upheld in part - Compensation ordered - Industrial Relations Act 1979 (WA) s 29(1)(b)(i), s 29(1)(b)(ii) & s 23A
Result Order issued

Representation
APPLICANT MS J KENNY OF COUNSEL INSTRUCTED BY DWYER DURACK LAWYERS

RESPONDENT MR J EDMONDS


Reasons for Decision

1 The applicant brings two applications before the Commission pursuant to s 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 (“the Act”). The applicant claims that he was unfairly dismissed from his position as a retail sales consultant on or about 10 March 2006 and was denied a contractual benefit by way of payment of salary in lieu of notice in the sum of $3,010.76.

2 The respondent wholly denies the applicant’s claims and alleges the applicant was lawfully and fairly summarily dismissed for misconduct.

3 At the outset of the proceedings the Commission, by consent, ordered that the name of the respondent be amended to reflect the proper name of the applicant’s former employer.

Factual Background

4 The facts of this matter are not essentially controversial and they are as follows. The applicant commenced employment as a retail sales consultant with the respondent, which is a supplier of bathroom fittings and fixtures, on or about 10 March 2005. The applicant entered into a written contract of employment a copy of which was tendered as exhibit A1. Relevantly, for present purposes, amongst other matters, that contract of employment contained a declaration to the effect that the applicant had received a copy of the respondent's staff manual and agreed to comply with the conditions and policies set out in it. A copy of the staff manual was tendered as exhibit A2. That manual contained various policies including policies in relation to computer usage and equal opportunity and harassment matters, the relevance of which will appear further below in these reasons.

5 The circumstances leading to the termination of the applicant’s employment arose from events which occurred outside of the workplace on 2 March 2006. The applicant testified that he was attending a dinner party with friends in East Fremantle in Perth. Towards the end of the dinner, the applicant said he noticed someone removing car keys from a table close to the front door of the house. He gave chase. The intruder was pursued by the applicant along with others it seems, from the dinner party. At some point in the pursuit, the intruder appeared from bushes brandishing a knife and threatened the applicant and others who were present. The intruder then attempted to and apparently did, drive off in a motor vehicle which had been stolen from the house where the dinner party had been taking place. Subsequent to that, the applicant assisted police which ultimately led to the apprehension of the intruder who was subsequently charged with various serious criminal offences.

6 The applicant testified that he arrived home very early the following morning and had little sleep before attending work the next day on 3 March 2006. He testified that he was still shaken and upset from the experience of the night before. He spoke to some employees about the incident when he commenced work and said this made him feel better. Thereafter, for present purposes, the applicant prepared and sent an email to all staff of the respondent which it was common ground, was distributed to employees of the respondent nationally. Given that the applicant’s and respondent’s cases respectively turned on the content of this email communication and its characterisation, it is set out in full as follows:

“Hi Everyone,

This is an email that I would like everyone to read and seriously think about it. It is not an urban legend and it is not one of those things that happened to a friend of a friend. This happened to me last night and is head lining this morning’s news in Perth (Friday 03/03/06).

Last night I was at a dinner party in the very nice neighbourhood of East Fremantle. We were out on the balcony finishing off the night with coffee when my friends dog, that was with us, started to go berserk heading for the front door. I looked and saw and (sic) arm doing a snatch and grab from the hallway table at the front of the house. Unfortunately it was a coloured arm that did not belong in the house.

The next thing, I was out of me (sic) seat running and yelling at the intruder who had walked through the unlocked front door. He ran out of the house with my self hot on the trail, leaving the rest of the dinner party wondering what the hell was going on. By the time I got outside he was already out of sight. Hearing the sound of someone going through bushes at the corner, I headed down the street in hot pursuit. Unfortunately, I lost track of him, but thankfully a neighbour who had been observing the commotion from across the street saw him hide in some bushes. By that time, the rest of the dinner party joined me and we surrounded the bushes telling him to come out, when one of the other guest (sic) arrived with his car and was shining the light into the bushes.

This is where things took a turns (sic) and he came out of the bushes brandishing a large knife that surprised us all. We all of course moved back and he made back down the street towards the cars that were parked at the front of my friend’s house. He was using the remote on the keys he had swiped to locate the car by deactivating the alarm. He then jumped in the vehicle and proceeded to try and start it. The other dinner guest who was in his car drove up the street and blocked the car in. I yelled at him to get out of the road as this guy is getting out of here one way or another. He reversed in time as the guy took of (sic) at a rate of knots. At this stage, the dinner guest in his car decided to follow the stolen car and another called the police. With some clever liaising with the police and the guest tailing the car, the police apprehended the guy and his (sic) is in custody facing court today charged with armed robbery and aggravated burglary.

The point of sending you all this email is not to scare you and turn your house into fort knox and live in fear. Things are getting worse out there and its time we stopped turning a blind eye and start making a stand against it. The world is crumbling under violence and terrorism and we should not take our way of life for granted. I want this email to raise your awareness and think a little.

· Do take to precautions to secure your home when you are away and also when you are at home.
· Introduce yourself to your neighbours and swap phone numbers and keep an eye out for one another.

These are two simple things that could of stopped the (sic) this event from happening. The worst thing you can do is do nothing and simply turn a blind eye. Do your part to keep the Australian spirit and way of life alive and most of all, but most of all, be sensible about the actions you take. Doing nothing should never be an option.

With thanks”


7 It was common ground that the applicant also sent the email to some friends outside of the respondent, which email contained a sound recording.

8 The applicant said that after he returned home after work that day he was still quite traumatised by the incident. The applicant next attended work the following Tuesday as it was a long weekend. He received a telephone call from the respondent’s General Manager Mr Parker. Mr Parker informed the applicant that there was concern about the content of the email he had sent to all staff as it was in breach of the respondent’s policies. The applicant was informed that as a result, there was to be an investigation into the matter and in the meantime, until Friday 10 March 2006, the applicant was suspended on pay. This was confirmed in a letter from Mr Parker to the applicant dated 7 March 2006 a copy of which was which was tendered as exhibit R4. This letter informed the applicant that he would undergo a formal disciplinary process as a consequence of the email that he sent, with a formal disciplinary meeting to be held on 10 March 2006. It was alleged in particular, that the email was inappropriate as it contained a racial slur and additionally, attempted in the respondent’s view, to solicit support for a political cause or contained a political overtone.

9 The concerns that the respondent had about the applicant’s email were referred to in the evidence of Mr Edmonds the respondent’s Managing Director. He testified that he regarded the email as a serious breach of the respondent’s Computing and Equal Opportunity Policy as it was inconsistent with the respondent’s values. He said that the respondent employed some 80 plus employees of various cultural backgrounds and he took the view that the reference to “coloured arm” and the final paragraphs requesting readers to take some action, as containing a political overtone and highly inappropriate for a workplace communication. The applicant was informed that the respondent considered the matter a serious one and one which may lead to termination of employment.

10 A meeting took place on the morning of 9 March 2006 between the applicant and representatives of the respondent. A copy of the notes of this discussion, were tendered as exhibit R5. The applicant accepted that the notes captured the gist of the discussion. The applicant was prior to the meeting, invited to have a witness present but declined to do so. During the course of the meeting, the applicant was informed that the respondent took the view that the email sent by the applicant on 4 March 2006 was in breach of its Computer and Equal Opportunity and Harassment policies. The applicant confirmed that he was aware of these policies in the staff manual. The applicant was informed that the reference to “coloured arm” could clearly be construed as offensive to a reader of the email in breach of the respondent’s policy and also, given that the email was sent to “All Staff” and was prepared during work time, this was unacceptable conduct. The applicant was also referred to a previous counselling he received in January 2006 regarding use of the respondent’s internet for private purposes.

11 The applicant’s response during the meeting, and indeed his testimony, was that he meant no harm by the email but rather prepared and sent it to make others within the respondent aware of the possibility of such incidents occurring in their own homes. The applicant said that he attempted to make something positive arising from the incident and to raise the level of awareness with the respondent’s employees.

12 As to the reference to “coloured arm”, the applicant said he unthinkingly said this because given those who attended the dinner party, the fact that the arm was not fair skinned meant it was not someone at the party who was taking keys from the table. As to the passages in the email about “making a stand”, the applicant said he only meant to say that in this country we should not take our lifestyle for granted and that these events can occur to anyone anywhere. The applicant was remorseful for his conduct and apologised to the respondent for it.

13 Additionally, the applicant prepared and provided to the respondent a written response to the allegations dated 9 March 2006 which was tendered as exhibit R6. In it the applicant referred to the incident, why he sent the email and that he intended no ill by it and was apologetic again.

14 The next day on Friday 10 March 2006 a further meeting took place in the morning. At that meeting, Ms Corner the WA Manager for the respondent informed the applicant that the respondent had considered the circumstances of the case and the applicant’s explanation. The applicant was informed that it was the respondent’s decision to summarily dismiss the applicant for misconduct. The reason for the dismissal was the breach of the respondent’s Computing and Equal Opportunity and Harassment policies. The applicant said he was upset by the respondent’s decision and left the premises that day. Counselling services were offered by the respondent which the applicant availed himself of.

15 Subsequent to his dismissal, the applicant sought alternative employment and commenced in a new position on or about 24 July 2006 on an annual salary in excess of that earned by him in his employment with the respondent. I find accordingly

Consideration

16 Whether or not the applicant’s dismissal was harsh, oppressive or unfair turns on whether the employer has exercised its contractual right to terminate the contract of employment contrary to the principles set out in Miles & Ors t/as The Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385. Additionally, given that the dismissal was effected summarily for misconduct, there is an obligation on the employer to establish on the balance of probabilities that the misconduct complained of actually occurred: Newmont Australia Ltd v The AWU (1988) 68 WAIG 677. Additionally, in a case such as this, the lawfulness of the dismissal is a relevant consideration however not all unlawful dismissals will be unfair and vice versa: R v The Industrial Court of South Australia; ex parte General Motors Holden (1975) 10 SASR 582.

17 The issues in this case are as follows:

(a) did the conduct of the applicant, properly characterised, constitute a breach of the respondent's policies?;

(b) if it did, was the breach sufficient to warrant summary dismissal?; and

(c) if it was not sufficient to warrant summary dismissal, did the applicant's conduct warrant dismissal on notice?

Breach of Policies

18 The Commission has already referred to the staff manual tendered as exhibit R2. The relevant policies from the staff manual are the “Computer, Internet and E-mail Security Policy” and the “Equal Opportunity and Harassment Policy”. Relevantly, the Computer, Internet and E-mail Security Policy provides as follows:

“rogerseller makes available to its staff computer equipment, software, Email and internet access. The provision of these facilities is to allow staff to be as productive as possible in the delivery of products and services to our customers. This policy is to ensure that:

· these facilities are used to improve the services to our customers;
· these facilities are not used in a way that damages the company’s interests; and
· the significant investment in these facilities is protected…

As a condition of continued employment, each User is personally responsible to ensure that this policy is followed. Violation of this Policy will subject the User to discipline, up to and including termination of employment...

ELECTRONIC MAIL OR EMAIL

The primary purpose of electronic mail is to facilitate internal and external business-related communication. Accordingly, Email should be used primarily for matters of concern to rogerseller business. The use of email for personal, private or non-business should be only on a limited basis only.

Email and other information systems of the company are not to be used in a way that may be disruptive, offensive to others, or harmful to morale.

You must not display or transmit sexually explicit images, messages or cartoons or Email communications that may contain ethnic slurs or anything that may be construed as harassment or discredit others based on their race, national origin, sex, sexual orientation, age, disability, religious or political beliefs.

The Email system cannot be used to solicit or convert others for commercial ventures, religious or political causes, outside organisations or other non-job related matters.”

19 Further, the Equal Opportunity and Harassment Policy provides as follows:

“rogerseller will not tolerate discrimination, harassment or victimisation. We believe that all employees have the right to be treated with respect and dignity, in a workplace free from harassment.

The Equal Opportunity and Harassment policy of rogerseller is based on the right of all individuals to be treated with respect and dignity.
Every employee is obliged to treat his or her work mates with courtesy, sensitivity and fairness.

Discrimination, harassment or victimisation will not be tolerated, and appropriate action will be taken whenever it is found to occur. All employees are entitled to fair treatment regardless of:

· age
· race, colour or national origin
· sex or sexual preference
· marital status or pregnancy
· religious or political convictions
· physical impairment.

Harassment is any physical or verbal conduct which is unwelcome, intimidating or offensive. It must be remembered that behaviour or comments which may not offend one person may be unwelcome or offensive to another.

Harassment includes:

· displays of offensive material
· leering, touching or suggestive behaviour
· smutty, racist or other offensive jokes or comments
· intimidating or humiliating phone calls
· name calling or deliberate gestures
· demands or subtle pressures for sexual favours or outings
· campaigns of hate or silence
· derogatory terms or behaviour.”

20 The Harassment Policy then goes on to outline the process for dealing with complaints by an employee alleging harassment in contravention of its terms.

21 At the outset, I am not persuaded on the evidence that the applicant’s conduct constituted harassment for the purposes of the respondent’s Harassment Policy. I considered the application of a similar policy in CMETSWU v BHP Iron Ore Ltd (2001) 81 WAIG 1393. In this case, an employee of the respondent company was dismissed for writing allegedly offensive remarks on a draft affidavit to be used in court proceedings in connection with an ongoing industrial dispute. In that case, the operative part of the respondent’s harassment policy was similar to the Harassment Policy set out above and was in the following terms:

“BHP IRON ORE NON HARASSMENT POLICY

BHPIO is opposed to all forms of work related harassment including that related to sex, race, membership or non-membership of trade unions and acceptance or non-acceptance of workplace agreements.

Harassment takes many forms but is usually constituted by unwelcome acts or remarks which make the workplace unpleasant or humiliating for the targeted person.

Such harassment may comprise of:

· verbal abuse, including derogatory words;
· offensive graffiti;
· intimidating behaviour towards another employee or members of that employee’s family; and
· direct threats

Any employee who believes that they are being subject to harassment, and any employee who observes behaviour which may amount to harassment, should immediately report it to their supervisor or manager.

Work related harassment, including threats and intimidation, is unacceptable to BHPIO and any employees found to have engaged in such behaviour will be subject to disciplinary action up to and including summary dismissal.

Management will ensure that all complaints are treated confidentially, seriously and sympathetically and that appropriate action is taken whenever harassment occurs.

Note that pursuant to the Workplace Agreements Act 1993 (WA) (“the WPA”) a person must not by threats or intimidation persuade, or attempt to persuade, another person to not enter into (or enter into) workplace agreements.

Further, Section 68(2) of the WPA relevantly provides that a person must not intimidate an employee or threaten, injury or harm to a person or property of an employer because the employee is (or is not) a party to a workplace agreement.”


22 Interpreting the policy in accordance with the ordinary and natural meaning of its language, I said at pars 19-21 as follows:

“19 The clear purpose of the Policy is to prevent employees of the respondent from engaging in any conduct that may have the effect of harassing another employee. It is also clear from the plain language of the Policy, when read as a whole, that for there to be harassment, there needs to be some form of communication and/or conduct engaged in by an employee, which conduct and/or communication is directed at another person, (referred to in the Policy as the “target”) and that other person, in some way, shape or form, is in receipt of it. It is a necessary ingredient of harassment in my opinion, for the purposes of the Policy, that the “harassee” be harassed. That is, the subject or “target” must receive it and be affected by it in some way. That is the whole purpose of the Policy.

20 Some assistance as to what is meant by “harassment” in its ordinary and natural meaning, can be obtained from the Shorter Oxford English Dictionary which defines “harass” as follows:

“Harass - 1. To wear out, or exhaust with fatigue, care, trouble etc. 2. To harry, lay waste 3. To trouble or vex by repeated attacks. 4. To worry, distress with annoying labour, care, importunity, misfortune, etc.”

21 Clearly therefore, for a person to be “harassed” under the Policy, the person must, as a necessary ingredient, know of the alleged harassing conduct or communication. In this case, the evidence was that Mr Holland was never aware of the words written by Mr Robinson at any material time prior to his dismissal. Indeed on the evidence, even as at the time of these proceedings, Mr Holland had never seen the notations placed on the affidavit.”


23 On the facts of that case, the Commission concluded that there could be no harassment within the terms of the policy, because the alleged “target” of the harassment, was not even aware of the relevant written comments, let alone affected by them in the manner contemplated by the policy. The Commission’s decision in this case was affirmed on appeal to the Full Bench of the Commission ((2001) 81 WAIG 30, 31) and further by the Industrial Appeal Court in BHP Billiton Iron Ore Pty Ltd v CMETSWU (2002) 82 WAIG 1188.

24 On the evidence before the Commission in this matter, there is nothing to suggest that the email sent by the applicant was received by any person within the staff of the respondent who regarded the communication as unwelcome, intimidating or offensive or otherwise complained about it. I do not include the management’s response to the email in this regard, as clearly their concern was compliance with the policy, not a complaint of harassment in any particular sense. It is also clear from the text of the respondent’s Equal Opportunity and Harassment Policy read as a whole, that for a breach of such a policy to occur, there must be a subject, being another employee or person, who feels discriminated against or harassed.

25 In the absence of a breach of the Harassment Policy, the next issue is whether the applicant’s conduct was in breach of the respondent’s Computer, Internet and Email Security Policy. It is quite clear that this policy is designed to prevent the use of the respondent’s internet and email system in an inappropriate manner. There is no requirement for a breach of this policy to occur, that a recipient of such a communication be aggrieved in any particular manner, as opposed to the Harassment Policy. It is the actual use by an employee, or more appropriately, misuse, of the respondent’s computing system that might give rise to a breach of the policy. It is clear in my opinion that sending an email as did the applicant, if it contains material falling within the terms of the policy, may constitute a breach of the policy.

26 There are a number of matters to be referred to in relation to this policy. Firstly, the policy makes it plain in accordance with its terms, that the primary use of the respondent’s computing equipment, software and email etc, is for business purposes only. There is provision in the policy for use of email for personal purposes on a limited basis. It is also very clear that the purpose of the email policy is to ensure that such communications are free from the kinds of subject matter there set out. The respondent submitted that the applicant must have spent some time composing and typing this email, and correspondingly, would naturally involve some time during working time, in every recipient of it reading it.

27 Firstly, I do not accept the applicant’s evidence that the email was simply a spur of the moment communication. From its terms, it was clearly a well thought out and constructed communication with a serious message contained within it. The manner of composition, the detail involved in the narration, and the final paragraphs extolling the virtues of the Australian way of life and requesting readers to “make a stand against it” are strongly suggestive of a communication into which has been put considerable thought. From the time of sending, on exhibit R3, based on AEST, of 2.31pm, even allowing for daylight saving, it would also appear that it was not sent shortly after the applicant arrived at work as was the suggestion in his evidence. The email also invites the reader to consider and take seriously the message intended by the communication. It is certainly not a light hearted brief communication with all staff.

28 It was the applicant’s evidence and submissions made on his behalf, that he did not intend any offence by the content of his email. I accept the applicant’s evidence in this regard and also that he was remorseful and apologetic for the difficulties caused by his conduct. However, the relevant point to be made at this juncture is that in terms of policies of this kind, and equal opportunity law generally, intention is not an element to be established: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; 64 ALJR 53; 29 IR 398; 89 ALR 1; [1989] EOC 92-271; Waters v Public Transport Corp (1991) 173 CLR 349; 66 ALJR 47; 103 ALR 513; [1991] EOC 92-390. A principal purpose of policies of this kind, put in place by employers in the workplace, is to ensure that employees do not, even inadvertently, inappropriately use an employer’s resources which may have the effect of causing harm or offence to others. This in turn, places an employer in a position where it may be held vicariously liable for the conduct of its employees in some circumstances. It must always be borne in mind in cases of this kind, as indeed the respondent’s policy records, that things said or done by one person, without any intention to offend or harm, may be interpreted by another person in an entirely different way, depending perhaps for example, on their cultural background. That is why sensitivity to these matters is required at all times in the workplace.

29 Returning to the email itself as exhibit R3, I consider that reference to “coloured arm” could be interpreted by a recipient of the email as a racial slur. The reference was very specific. This is despite the applicant’s evidence that he did not intend in any way to convey such an impression. Secondly, the penultimate and final paragraphs in my opinion, in accordance with the plain language of the email, read in the context of the email as a whole, clearly seek to solicit support by other staff of the respondent for people to in effect, “stand up and defend themselves”. In my opinion, read in context, these two paragraphs do contain overtones of soliciting support for a political cause, not in a party political sense, but may be construed more generally in terms of citizen’s rights and the requirement for vigilance to defend those rights, in particular in one’s home.

30 These matters are clearly inappropriate content for a communication in the workplace. They carry with them the clear potential for a recipient to misinterpret its content. I also take into account the un-contradicted evidence of Mr Edmonds that the respondent’s employees come from a diverse range of cultural backgrounds.

31 I therefore regard the email sent by the applicant on 3 March 2006 as being in breach of the respondent’s Computer, Internet and Email Security Policy as set out above.

Did The Breach Warrant Summary Dismissal?

32 The remedy of summary dismissal is available to an employer in a situation where an employee commits an act of misconduct which is sufficiently grave to indicate that the employee no longer intends to be bound by his or her obligations under the contract of employment. The right to summary dismissal at common law is an implied term of a contract of employment. It enables an employer, in response to a fundamental breach of the contract by an employee, to terminate the contract without providing notice or pay in lieu of notice of termination under the contract. Additionally, in some circumstances, depending upon the terms of the contract of employment and any relevant industrial instrument, the employee lawfully summarily dismissed may also forfeit other accrued entitlements which would otherwise fall due on termination of employment. Moreover, reference by way of express terms in a contract of employment or relevant industrial instrument, to some grounds justifying summary dismissal for misconduct, do not exclude the implication of the more general right at common law: AWU v Mackay Harbour Board; re Keane (1939) 33 QJP 124.

33 In the present case, there is an express term in the applicant's written contract of employment contained at clause 19(d) in the following terms:

“d) In addition, the Employer has the right to terminate the Employee’s employment without notice for serious misconduct, for serious breach of the Employer’s policies or procedures or serious or persistent breach of the Employee’s terms and conditions of employment, and in such case the Employee’s pay and other entitlements will be paid up to the time of termination only.”


34 I am satisfied on the evidence in this matter and I find that at the time that the applicant sent the email in question, he was aware of the respondent’s policies. This is so because of his admissions in evidence and also, by reason of the counselling he received in January 2006 concerning his use of the internet during working hours, where he made a similar admission as to his knowledge. I also take into account as a relevant consideration, that the events of the evening of 2 March 2006 must have been a traumatic experience for the applicant and no doubt others involved at the time. Whilst to some extent this might be seen as a mitigating circumstance, the fact remains that the applicant did prepare and send the email which he did, in the knowledge that it must have been inconsistent with the respondent’s relevant policies. It was a deliberate and not an inadvertent act. Whilst there was no actual harassment in the circumstances of this case, for the reasons I have set out above, the potential for offence to be taken to such a communication is clear and it is equally important that policies of the kind adopted by the respondent, be enforced to reinforce their importance in the workplace.

35 However, in all of the circumstances of this case, I do not consider that the actions of the applicant warranted summary dismissal without notice for serious misconduct. This is the most severe remedy available to an employer to exercise in situations where an employee’s conduct or performance strikes at the very root of the contract of service. Having considered all of the background to this matter, the ultimate sanction of summary dismissal was, in the present circumstances, too severe a penalty. The applicant has lost the benefit of salary in lieu of notice which he would otherwise have been paid. I therefore consider that for these reasons, the dismissal of the applicant was unlawful and also unfair to that extent.

Did The Breach Warrant Dismissal on Notice?

36 Whilst the Commission has concluded that the applicant’s dismissal was wrongful at law, and to that extent was unfair, in my opinion, having regard to the fact that the applicant was aware of the relevant policies; that he consciously prepared and sent the email which he did that clearly contained inappropriate material; and that the applicant had been previously counselled as to a breach of the respondent’s computing policies regarding internet usage; and that the respondent must enforce such policies as a component of their integrity, I consider that termination of the applicant’s employment on notice would have been the appropriate outcome in this case.

37 As to the applicant’s submissions that he was in some way denied procedural fairness, I am not persuaded that this was the case. The applicant was notified of his conduct as soon as it occurred. He was suspended on pay while the disciplinary process took place. The allegations against the applicant, which were not really factually controversial, were clearly put to the applicant and he was given every reasonable opportunity to respond. The applicant did so both orally and in writing. I am satisfied that the respondent took into account the applicant’s explanation and in particular did have regard to his remorse for his conduct. In all of the circumstances, it cannot be said in my opinion that the dismissal was, in any sense, procedurally unfair.

38 Accordingly, having concluded that the applicant ought properly have been lawfully and fairly dismissed on notice or by payment in lieu of notice, the Commission will declare the applicant to have been harshly, oppressively and unfairly dismissed by reason of his summary dismissal, and will order compensation by way of payment in lieu of notice that the applicant would otherwise have received if the employment was terminated lawfully. Given that it was not in dispute that the applicant would have been entitled to the sum of $3,010.76 by way of four weeks’ salary in lieu of notice, I find that to be the applicant’s loss for the purposes of s 23A(6) of the Act. Whilst the applicant also claimed that he had suffered injury as a consequence of the dismissal, I am not persuaded that the circumstances of the applicant’s dismissal warrant any award of compensation on this ground: Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144 at 151-152 (FCFC), and the approval by the Full Court of the dicta of Lee J in Aitken v CMETSWU (1995) 63 IR 1 at 9; Bogunovich v Bayside Western Australia Pty Ltd 79 WAIG 8; Nicholas Richard Lynam v Lataga Pty Ltd (2001) 81 WAIG 986.

39 Finally, as the award of compensation to the applicant effectively satisfies his claim under s 29(1)(b)(ii) of the Act for denied contractual benefits, this application will be dismissed.

40 Order accordingly.