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
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
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
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.
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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