Sacking someone for using work email to job hunt: why the Fair Work Commission said it went too far

It’s a scenario many businesses will recognise: an employee uses their company email during work time for something personal — in this case, a job-seeking email — and the employer treats it as serious misconduct.

A recent Fair Work Commission (FWC) decision is a useful reminder that:

• a policy breach can still be a valid concern, but

• termination (particularly as serious misconduct) must be proportionate, and

• process can make or break the outcome.

What happened (in plain English)

A national sales manager was dismissed after sending a job-seeking email from his work email address during office hours. The employer treated this as serious misconduct and terminated his employment.

The FWC accepted there was a breach of the employer’s policy regarding personal use of company email — but found the response went too far. The decision also criticised the employer’s approach to the dismissal process, including shortcomings in procedural fairness and the way the termination was communicated.

The outcome reported was compensation of $28,374 plus $3,404 superannuation.

Why this matters: “serious misconduct” is a high bar

In practice, employers often jump from “breach” straight to “serious misconduct”. The FWC regularly reminds parties that serious misconduct generally involves conduct that is wilful or deliberate and so serious it’s inconsistent with the continuation of the employment relationship.

A one-off personal email (even if ill-judged) will not automatically meet that threshold.

That doesn’t mean you ignore the behaviour — it means you respond in a way that is defensible, consistent, and proportionate.

The other major issue: procedural fairness

Even where an employer has a reasonable concern, the Commission expects a process that is fair. That usually includes:

• clear allegations (what rule was breached, what happened, when)

• a genuine opportunity to respond before a final decision is made

• consideration of relevant context (length of service, record, intent, comparable treatment, remorse)

• a decision that is evidence-based, not reactive

• a properly documented outcome and rationale

In short: if you can’t show your working, you’re exposed.

Practical employer guidance: what to do instead

If you discover an employee has used work systems for job seeking (or other personal matters), a defensible approach looks like this:

Step 1 — Stabilise and verify

• Preserve the evidence (don’t “fish” or trawl beyond what you need).

• Confirm what actually occurred: frequency, content, timing, any confidentiality issues.

Step 2 — Classify the risk
Ask: does this involve any of the following?

• misuse of confidential information

• solicitation of colleagues/clients

• repeated or sustained misconduct

• fraud or dishonesty

• safety, compliance, or serious reputational harm

If yes, escalation may be warranted. If not, treat it as a conduct issue (not automatically serious misconduct).

Step 3 — Run a fair process

• Provide allegations in writing.

• Hold a meeting with a support person option.

• Provide time to respond and consider their explanation.

Step 4 — Apply proportionate outcomes
Common outcomes (depending on circumstances):

• counselling / manager direction

• a formal warning

• re-training on IT/policy

• tightening permissions/access (where justified)

• termination only where the totality supports it and the process is clean

Step 5 — Fix the system
If you want to reduce repeat incidents, focus on:

• a clear Acceptable Use / IT policy written in plain English

• regular refresher reminders (especially for laptops, phones, remote work)

• manager training on how to respond consistently (not emotionally)

The bottom line

Employees don’t get a “free pass” to use company systems however they like. But employers don’t get a free pass to label every breach as serious misconduct.

The safest path is consistent: facts → fair process → proportionate decision → documented rationale.

If you want a ready-to-use conduct investigation pack (allegation template + meeting script + outcome letter) tailored to your business, reach out.