Home > HR > ABLA ALERT: The Tribunal Softens It's Approach to Pornography

ABLA ALERT: The Tribunal Softens It's Approach to Pornography

Release Date

19 September 2013

Pornography not a separate species of misconduct

 
Fairly dismissing an employee for accessing, sending, receiving or storing pornography at the workplace may not be as simple as it once was following a recent decision of the Fair Work Commission Full Bench handed down by the Full Bench of the Fair Work Commission, where a majority has made it clear that pornography offences will not automatically amount to misconduct justifying dismissal.
 

What the case was about?

 
Three employees were dismissed after admitting to sending a number of emails, including one with a video depicting an extreme pornographic act. The employer, Australia Post, only became aware of the emails, after installing a new software filter on the email system. A broader investigation followed and about 40 employees were also disciplined about inappropriate email content. The Commission commented that “most of the material was soft-core pornography and no more salacious than material that might by viewed on free to air television almost any night of the week. A small amount of the material is properly classified as hardcore.”
 
Australia Post had an “IT Systems Security Policy” and a “Harassment, Discrimination and Bullying Policy” in place along with a standard logon notice requiring employee compliance with policies.
 

What was the outcome of the case?

 
Despite finding there was a valid reason for the dismissal, the majority found that the dismissal was unfair. A number of factors led to this outcome, including:

  • the employees had good disciplinary records and were long serving employees, each with more than 10 years service with Australia Post
  • the dismissal put the employees and their family at risk of significant personal and economic hardship
  • the emails did not result in harm or damage, in fact the emails were sent to friends and caused no offence
  • a culture of passive participation. That is, a large volume of pornographic emails had been circulating undetected around this particular workplace for an extended period of time with no adverse consequences for the employees involved, and
  • Australia Post did not do anything in particular to bring home to employees that a breach of policy would result in dismissal.
 
One of the tribunal members of the Full Bench disagreed and referred to, amongst other things, Australia Post’s legitimate interest in eliminating inappropriate email traffic as a reason why the dismissal was fair.
 

What does this mean for your business?

 
Employers should ensure they have up-to-date policies and that staff are educated as to their contents along with the disciplinary consequences if policies are breached. Logon notices alone are unlikely to be sufficient. Before dismissing an employee for sending pornographic or inappropriate emails, an employer should take into account an employees’ record, service, the workplace culture and whether the ‘the punishment fits the crime’. 
 
If you have any questions regarding this decision and how it could affect your business in the future, please do not hesitate to contact your trusted legal advisor at Australian Business Lawyers and Advisors on 1300 565 846 or email us at ablawyers@ablawyers.com.au.

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