No joke: Gay gibe a $100k mistake

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A “joke” email sent to and read by 1200 co-workers has cost a Correctional Services employee more than $100,000.

The email was sent by an Adelaide Remand Centre employee who used another colleague’s email account to send a message stating: “Hello people, just a note to say that I am a homosexual and I am looking for like minded people to share time with.”

An investigation into the email concluded that Correctional Services employee, Stephen Kirkham, had sent the email from the account of Cosimo Tassone on July 18, 2011, while Tassone was away from his desk.

Tassone launched civil action claiming defamation damages and loss of wages while on stress leave.

He claimed the email implied that he “is homosexual, promiscuous and of loose moral character and is seeking to solicit sexual relationships or encounters with others; that he would use his employment to seek sexual relationships and would act in an unprofessional manner by using his work email to solicit sexual relationships.”

The District Court found mostly in his favour.

Judge Susanne Cole concluded that the imputation that the plaintiff was homosexual, though false, was not defamatory.

All other imputations were held to be defamatory.

Tassone was awarded damages for non-economic loss at $75,000 and damages for lost wages, medical costs and other expenses.

The medical and other expenses amount to $11,000, while the loss of wages (the gap between workers’ compensation and full wages) is estimated to be at least $15,000; a total of $100,000.

The court heard that about 1200 people, including other State Government department employees, received the email.

The defendant, Stephen Kirkham, had initially admitted sending the email while his colleague was briefly away from his computer, claiming “it was only supposed to be a joke, bad joke alright fair enough, bad joke”.

“But I’ve had it done to me so that’s, I’m not saying I did it just because they’ve done it to me. I mean it’s just a culture in the Department, (you) leave your log on people do jump on and they might change your desktop picture to something unsavoury or, or do this.”

Kirkham, however, recanted his confession the following day, saying he had felt pressured by others to “take the rap”.

Department officials then conducted an investigation into the incident. Kirkham refused to name who he thought might have sent the email.

Cosimo Tassone, meanwhile, went on immediate sick leave, later extended after a diagnosis of “acute/stress/anxiety”, the court heard.

Tassone remained on workers’ compensation until April 2012, when he resumed work part-time. His psychiatrist diagnosed “adjustment disorder caused by the sending of the email”, with the described effect being “severe and disabling”.

In May 2013, after another incident relating to the July 2011 issue, Tassone again went on sick leave. He was “likely to continue until the legal proceedings relating to the events of July 2011 are resolved”, the psychiatrist said.

Judge Cole said she didn’t believe Kirkham’s second version of events.

She concluded that Tassone had “suffered severe personal hurt and distress, as well as significant damage to his reputation”.

“He is entitled to an award for damages for non-economic loss, including aggravated damages and damages for his psychiatric injury.

“Aggravated damages are appropriate on account of the conduct of the defendant in retracting his initial confession and in continuing to maintain, falsely, that he did not send the email.

“The defendant has never apologised to the plaintiff or retracted the content of the email.”

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