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10 Oct 2013

Automatic sack for breaching a workplace porn policy not on, says Fair Work Commission

by Michael Byrnes

You should not assume that an employee who accesses, sends or receives and stores pornographic material on a work email system deserves automatic dismissal.

You discover an employee is accessing, sending or storing pornographic material on a work email system. This is in clear breach of your workplace policy, so an immediate termination seems appropriate. But is it?

A majority of the Full Bench of the Fair Work Commission has found that this does not invariably warrant termination of that employee's employment, in a decision that has clarified that this is not a special type of misconduct immune from the ordinary principles of unfair dismissal law (In B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191).

A new email filter reveals some questionable material

A new software filter on the Australia Post email system uncovered pornographic material being emailed by some of its employees.

Following an investigation, 40 employees alleged to have distributed pornographic material went through a disciplinary process; some were terminated, some received a lesser sanction or warning.

Three of those terminated were from the same Letter Centre:

  • Mr B, who had sent six unacceptable emails to his home email address, and emails from his home email address to work friends at their Australia Post email addresses. 
  • Mr C, who had sent 11 emails; and 
  • Mr D, who sent multiple emails from his private home computer to work friends at their Australia Post email addresses.

The three employees then lodged unfair dismissal applications with the Fair Work Commission. Only Mr B succeeded, and he didn't get the reinstatement he was seeking, only compensation. They all appealed to the Full Bench.

Is breaching an employer's policy on porn an automatic sacking offence?

At the outset, the majority noted "an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct thatinvariablymerits termination of employment."

This trend seemed to come from a misinterpretation of a Full Bench decision, Queensland Rail v Wake(2006) 156 IR 393.

In that case, the terms of the employer's policy on porn in the workplace, and the lengths it had gone to ensure compliance with it, meant that the employee's termination for breaching it was justified, even though his breach was not serious and his length of service was substantial.

The majority held that Queensland Rail reasserted the basic principle that whether a dismissal is harsh, unjust or unreasonable must be decided on the facts and circumstances of the particular case. It does not mean that a termination based on pornography-related misconduct can never be harsh, unjust or unreasonable.

Were the terminations harsh, unjust or unreasonable?

Even when there are valid reasons for dismissal (as the majority said there were), a dismissal can still be “harsh, unjust or unreasonable” when all the circumstances are considered. The Commission will consider the gravity of the misconduct, proportionality of response, level of tacit acceptance, and factors such as the employee's age, length of service, and service record.

It found that:

  • the breaches were moderately serious (most of the material was softcore pornography);
  • all three had substantial periods of satisfactory service; 
  • no particular harm or damage was caused to the email recipients; 
  • Australia Post suffered no reputational damage; 
  • supervisors and junior managers at the Letter Centre knew inappropriate emails were being sent; 
  • the employees were not warned about the new filter and reminded of the policy; and 
  • there were no proximate prior warnings that Australia Post would treat breaches of the policy seriously to the point of dismissal for employees with long service.

In particular, the majority found that given the Letter Centre's culture and the failure to monitor and enforce the policy there, it was harsh to dismiss employees such as the appellants, without any prior warning, for breaches of policy of a type that had been widespread and unaddressed for a long time.

It was at pains to stress, however, that it did not endorse or authorise employees using the IT system of their employers to email pornography or other unacceptable material.

It ordered all three be reinstated with continuity of employment.

Implications for employers

Employers are often advised to have, and enforce, clear policies on porn in the workplace as a way of seeking to establish proper conduct including preventing sexual harassment. The flipside, as this case shows, is that zero tolerance policies can lead to another legal problem if they are not applied consistently and fairly.

So what should employers do?

First, as the majority emphasised, this is not a separate species of misconduct to which special rules apply. As with any misconduct, each case should be assessed on its own merits and on the basis of ordinary unfair dismissal principles. Instant dismissal might be justified in some very serious cases, but it should not be the only option an employer seriously considers.

Secondly, there is a range of different views on pornography. Employers need to be careful to ensure that their personal revulsion (or, indeed, acceptance) doesn't inform their dealings with an employee who is in breach of the company policy on pornography or other inappropriate material.

Thirdly, there's no point having a policy if it isn't communicated widely and enforced fairly and appropriately. This means giving warnings about monitoring email and other computer usage, ensuring your management team promotes the policy , and taking other active steps to educate employees about inappropriate conduct in the workplace.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.