Employer's hard line policy on porn does not always justify dismissal

Introduction

A recent Full Bench decision of the Fair Work Commission held that an employer's hard line policy relating to pornographic material will not always justify dismissal of an employee. It also confirmed that the principles which apply to dismissal for misconduct also apply to misconduct relating to accessing, sending, receiving and storage of pornographic material in the workplace. National Workplace Lawyers explains further below.

Background

Australia Post installed a filter system on their computer software which monitored email transmissions in and out of its IT system and flagged emails with attachments likely to be pornographic. As a result, several breaches of Australia Post's email policy regarding the use of its IT system to send, store or receive pornographic material were identified. Forty employees were disciplined as a result of a breach of the policy. The discipline ranged from warnings to termination of employment.

Three of the employees who were terminated as a result of breaching the policy made an application to the Fair Work Commission alleging unfair dismissal. One of the three employees did not have a work email address or access to Australia Post's IT system, rather he forwarded emails from his home/private email address to work colleagues at their work email address. All three employees admitted to sending emails to or from work which contained inappropriate material ranging from the banal to highly explicit.

Decision in the first instance

The decision in the first instance upheld the dismissal of two of the three employees, but that the remaining employee's termination was harsh and ordered compensation. Two employees appealed the decision to uphold their dismissal and the third employee appealed against the Commissioner's order of compensation and refusal to order reinstatement.

Decision on appeal

Upon appeal to the Full Bench the decision was overturned. In relation to the distribution and dissemination of pornographic material the Full Bench observed that:

"There is an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing of pornography by an employee as a form of serious misconduct that invariably merits termination of employment. Such a proposition is inconsistent with basic principle. Accessing, sending or receiving and storing of pornography is not a separate species of misconduct to which special rules apply. In the context of an application for an unfair dismissal remedy, it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters involving reliance on misconduct."

The Full Bench further went on to warn that there is no blanket rule that when an employee clearly and knowingly breaches a policy, that it will provide a valid reason for dismissal. Further even if the dismissal is valid, it may nevertheless be harsh, unjust or unreasonable. Every case needs to be assessed by reference to its particular circumstances.

For instance, an employee breaching a policy concerning pornography may provide a valid reason for termination but the termination may be harsh, for example, if no prior warnings were given.

The Full Bench determined that Australia Post was justifiably concerned about the existence of a relatively large group of employees sending, receiving and storing pornographic material. It held there had been a valid reason for dismissal as the employees had knowingly breached a reasonable policy of Australia Post. This included the employee who sent emails from his home computer. That employee should have been aware that sending such material was against Australia Post's policy and ought not to have been done.

However all three applicants had substantial periods of satisfactory performance ranging from 11 to 17 years and dismissal for each of the employees was a serious matter which put each employee and their families at risk of significant financial hardship. Further, the employees were terminated without a prior warning and without any evidence of "the emails travelling beyond willing participants and friends who were not offended."

When reviewing the matter as a whole, the Full Bench found the seriousness of the misconduct when weighed against the factors against dismissal as outlined in the paragraph above, rendered the dismissals harsh. Australia Post's action of terminating the employees was disproportionate against its interests in upholding the policy and terminating long serving employees.

The Full Bench distinguished its decision in this matter from another leading case in similar circumstances of Queensland Rail. In that case, Queensland Rail had made sustained efforts over a number of years to make employees aware of its policy and the associated consequences of breaching it.

In this case, breaches of the policy had been occurring in the workplace over an extended period of time. It also involved supervisors and managers, creating a culture of tolerance. Australia Post did not do anything to reinforce with employees that the breach of the policy could result in termination of employment. This weighed materially in the finding that the terminations were a harsh and therefore disproportionate response to the conduct.

The employees were reinstated into the positions which they held immediately before their dismissal, continuity of employment was maintained and the lost pay between the employee's termination and their reinstatement was restored with a 75% discount in recognition of the employee's misconduct.

Implications for employers

Australia Post has sought judicial review of the matter in the Federal Court. Nevertheless, this case

highlights some important considerations which apply in circumstances where employers insist on strict compliance from their employees on workplace policies. Where employers have policies that they may ultimately seek to rely on for the purposes of dismissal, they should:

• ensure written copies of the policy is provided and clearly explained to employees and where appropriate, training undertaken to enable employees to understand the policy and the potential implication of breaching it;
• provide employees with a letter or email regarding the policy and including the employer's most senior employee or director's endorsement;
• where appropriate seek the support of appropriate consultative groups or other stakeholders;
• undertake an 'on-going' campaign over a period of time, reinforcing the policy with employees - for instance through toolbox talks, on notice boards, newsletters, direct emails, alerts when logging on computers, notices on payslips;
• ensure that the policy is fairly and consistently applied across the workplace; and
• consider the particular circumstances of each of the employees involved, including whether dismissal, as opposed to another form of discipline, may be disproportionate in the circumstances.

If you would like more information about the case or management of inappropriate emails or pornography in the workplace generally, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.