Worker awarded $100,000 after colleague sent email from his account soliciting gay sex

A prison worker in Adelaide has been awarded $100,000 in compensation after a colleague sent an email from his account which was found to be defamatory.

District Court judge Susanne Cole ruled this week Cosimo Tassone suffered “severe personal hurt and distress” when his former colleague Stephen Kirkham used Tassone’s email account to send a message to around 1200 people stating Tassone is gay, reports Adelaide Now.

Cole awarded Tassone, who was suing Kirkham, $100,000 for non-economic loss, medical expenses and loss over wages over the email, which was sent in July 2011.

The email sent by Kirkham read: “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with.”

While Cole found the imputation that Tassone is gay was not defamatory, she said the other suggestions contained in the email were.

“The email also conveys the meaning that the plaintiff is promiscuous, is of loose moral character and is seeking to solicit sexual relationships with people he does not otherwise know,” said Cole.

“I consider that those meanings are defamatory both within the community generally and among the recipients of the email.”

Cole also found the suggestion in the email that Tassone would use his employment to solicit sex was defamatory.

The court heard Tassone suffered considerable shock and anxiety in response to the incident and was declared unfit for work until September 2012.

He told the court he was “in absolute shock” when he saw the email and worried his colleagues “would look at me differently – that I was hidden in the closet behind closed doors”.

Kirkham initially admitted to sending the message from Tassone’s email account, claiming it was a “bad joke”. However, he later retracted the admission and said another employee at the centre was responsible.

Andrew Douglas, partner at M+K Lawyers, told SmartCompany defamation law arises when someone says something which hurts, humiliates or intimidates someone, but unlike bullying, “the hurt and humiliation is the issue”.

For comments to be defamatory, they must be published or communicated to anyone else other than the person concerned, says Douglas.

While Douglas says individuals accused of defamation can sometimes use the defence of truth, in this case, that defence would never have been successful given that the intention of the email was to “scandalise” the victim.

Douglas says for employers, this case raises the issue of whether or not an employee can be terminated for these kinds of actions.

“If someone used a work computer or accessed the work IT system in any way, they would have no difficulty,” says Douglas.

Douglas says there have been a number of cases where employees have been terminated for accessing another person’s email account and either making adverse comments about the individual or responding to a work-related matter in a different way to what the individual would have.

“It should always be taken as the most serious breach of confidentiality as it attacks the company’s IT system and culture,” says Douglas.

He says it is also a reminder of the importance for all employers and employees to regularly change their email passwords.

SmartCompany contacted the South Australian Department of Correctional Services but the department was unable to comment on the matter for privacy reasons.