A recent SA District Court defamation case has raised some interesting OHS concerns (Tassone v Kirkham). Both Mr Tassone and Mr Kirkham were prison officers. The case concerned a work email that was purportedly sent by Mr Tassone to his workplace colleagues stating: “Hello people, just a note to say that I am homosexual and I am looking for like minded people to share time with.” 

Mr Kirkham, after making the admission that he actually sent the email, sought to retract this confession. He then argued that the email had been clearly communicated in jest and that there was no damage done as a consequence to Mr Tassone’s character or reputation.

The email was sent from Mr Tassone’s work email account and was signed off with his electronic signature.  The Judge found that Mr Kirkham had in fact sent the email to all on the distribution list. He was then required to decide whether the natural and ordinary meaning of the email, as it was published, was defamatory.  The email suggested that Mr Tassone was professing to be homosexual and was seeking other homosexual people to “share time with”, which plainly indicates an interest in forming relationships with any recipient of the email.   

The standard of proof for the defamatory imputation is what the ordinary, right thinking members of the community would think of it.  The issue was not that Mr Tassone was purportedly professing to be homosexual; the issue was that the email was suggesting that Mr Tassone was promiscuous, of loose moral character and seeking to solicit a sexual relationship with people that he did not otherwise know.  It is those meanings that were found to be defamatory. 

Mr Tassone upon having this matter brought to his attention and the matter investigated, was forced to go on sick leave, due to stress and anxiety. He subsequently went on to workers compensation payments. 

Upon his return to work in an alternate position on the same pay grade, he felt that he had been demeaned as a result of the email and he was unable to continue in that role with the employer, due to an adjustment disorder. 

Penalty imposed

Mr Tassone was awarded damages for both economic loss and non-economic loss.  The non-economic loss was valued at $75,000 and the economic loss has not yet been determined.

Lesson for employers

The need to ensure that all reasonably practicable steps are taken to ensure the health and safety of employees needs to be addressed by employers. This includes the mental wellbeing of employees in the workplace. This case serves to demonstrate that defamation within the workplace can have significant impact upon employees’ mental wellbeing and that appropriate information technology protocols, email usage policies and associated training should be conducted to ensure that this type of incident does not occur in the workplace. 

Should your company require advice on current internet usage policies, employee surveillance policies or social media policies to ensure all reasonably practicable work health and safety obligations are being met, please contact Tim Trezise to discuss.

Tim Trezise
Senior Associate
T: +61 2 9390 8337
E:tim.trezise@holmanwebb.com.au