When I was at primary school we were asked to participate in a debate of the proposition "that the pen is mightier than the sword".

I remember thinking at the time that it would be most unlikely that the written word could ever be more powerful – and more feared – than physical power and might. However, a decision of the Employment Relations Authority two weeks’ ago has caused me to rethink my previous position.
In Wilkinson v Recall Total Information Management, a division of Brambles New Zealand Limited (Unreported, Employment Relations Authority, Auckland, 27 June 2002) an employee sought compensation for what she said was her constructive dismissal.

At the heart of the claim was an email exchange that took place between the employee’s supervisor and another employee. The email (the text of which is reproduced in the decision) included a communication from the supervisor which appeared to describe Ms Wilkinson as "the umh @@@@" and included a comment that "she just doesn’t have a brain". The message went on to record that the supervisor thought that there was a time when Ms Wilkinson would be so fed up that she would decide to leave her employment at which point the supervisor would "make sure I have a bottle of champagne to celebrate".

The email exchange included a response from the employee which suggested that if Ms Wilkinson were to leave her employment the supervisor wouldn’t "be the only Recall staff member popping champagne".

Perhaps unfortunately for everyone concerned in this matter, Ms Wilkinson became aware of this email exchange. She reported it to her manager by way of complaint. The manager reacted by investigating the matter and attempting to resolve Ms Wilkinson’s understandable sense of grievance.

Ms Wilkinson asked for a number of different outcomes – each one based on the premiss that she could no longer work with her supervisor.

The supervisor offered Ms Wilkinson an apology – but to no avail. Ms Wilkinson made a decision to resign from her employment – and said that, in reality, she had been constructively dismissed by her employer.

The Authority agreed with Ms Wilkinson’s arguments. It found that the email exchange represented a breach of sufficient seriousness that Ms Wilkinson could not reasonably be expected to put up with it. Because the redress sought by Ms Wilkinson was not available to the employer, the Authority held that she was entitled to leave her employment at once.

The Authority ordered the employer to pay Ms Wilkinson 23 weeks of lost remuneration (totalling over $14,000) and compensation of $2,000.
It is not unusual for employees to form a belief that their workmates might be making negative comments about them – or even that co-employees or supervisors might "“be out to get them". Sometimes employees are correct in their beliefs – and sometimes they are mistaken. In the ordinary course of things, however, it is very difficult for an employee conclusively to establish the true position one way or another.

What made Ms Wilkinson’s case significantly different was the existence of an email exchange – of which she had obtained a copy – which appeared to make it clear that, amongst other things, her supervisor did not hold her in a very high regard – and wanted her to leave the workplace.

This email proved to be a decisive piece of evidence. Through the course of the Authority’s decision, reference was made to the words chosen by the supervisor in the email. These words were carefully analysed, and formed the basis of several important conclusions which ultimately led to the finding against the employer.

This case serves to emphasise a message which should be clearly understood by employers and employees alike. There is little evidence as powerful as the written word. If you send an email it is possible that someone will later be able to produce it – and that person may be someone who you didn’t intend to receive or even see the message.

Your email may even be retrieved if you attempt to delete it. Technology experts are even able to retrieve communications deleted from a hard-drive in certain circumstances.

If a written communication is recovered, and produced to the Authority or a court, it will be very difficult for the person who has sent it to deny its existence – or its contents. The email will provide very powerful evidence for the person seeking to rely upon it.

Beware the written word!

This is a general summary only and should not be taken as a substitute for specific advice.

This article was previously published in the Independent, 10 July 2002
Contact: andrew.scott-howman@bellgully.com
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