On 27 June 2002 the Employment Relations Authority released a decision which emphasises the risks of careless use of e-mail. This decision reinforces the importance of putting procedures in place for the appropriate use of e-mail in the workplace.

The applicant had worked for a records company. Her supervisor had written an e-mail about her to another company employee. That e-mail described the applicant, among other things, as being in "la la land" and "not having a brain". The e-mail also said that:
"There will come a time when she will get so fed up with me on her back she will decide to leave. I will make sure I have a bottle of champagne to celebrate".
This e-mail prompted a response from the other employee to whom it was sent saying: " ...you won't be the only … staff member popping champagne".

The employee, rather unfortunately, discovered the existence of this e-mail by accident when she was using her supervisor's computer. She complained immediately about it and, although her employer investigated her complaint, it was not prepared to grant her the remedies that she sought. Given the attitude displayed by her supervisor in the e-mail, the employee decided to resign from her employment and claimed that in actual fact she had been constructively dismissed. Interestingly, the employee worked out a three week notice period.

The Employment Relations Authority rejected the employer's claim that the breach by the employer was not serious enough to warrant a constructive dismissal. It also rejected the claim that the employee's actions in working out her notice were inconsistent with someone claiming constructive dismissal. The employee was awarded $14,680.00 lost remuneration together with $2,000.00 compensation for stress and humiliation. A significant factor in the Authority setting the compensation as low as $2,000.00 was that the views expressed in the e-mail were not those of the employer and indeed, the employer disclaimed the language used in the e-mail as soon as it was discovered.

This case is yet another example of the risks to employers arising from the careless use of e-mail systems. Many people tend to regard e-mails as a personal and informal means of communication. However, e-mails are as much a form of written word as if recorded by hand and are similarly discoverable in proceedings. Therefore, employers need to be vigilant to ensure that no employee transmits by e-mail any information or message that is inappropriate or which they might think twice about sending in a letter or other form of correspondence.

Reliance on e-mail is becoming an increasing feature of employment law cases. Sometimes it can be used against employees, such as when an employee may have deleted an incriminating e-mail only to find that it was able to recreated by the employer, and sometimes it is used to the advantage of employees to provide evidence of inappropriate actions on the part of an employer such as in this case. One of the best ways employers can minimise the risk arising from e-mails is to have a comprehensive e-mail policy. We are able to advise on what may be suitable.

The contents of this article are for information purposes only and should not be acted upon without specific legal advice. KPMG Legal does not accept any liability other than to its clients and only then in relation to specific requests for advice. KPMG Legal is an independent law firm.

If you would like further information please contact:
Peter Churchman - pchurchman@kpmg.co.nz
Jane Latimer - jelatimer@kpmg.co.nz
Clayton Kimpton - clkimpton@kpmg.co.nz

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