The Consequences of Emailing Porn at Work: an Unfair Dismissal?
It is not uncommon for employers to have a zero-tolerance policy on any transmission of inappropriate material at work. However, the key to having a positive work environment is always to ensure that all staff are kept up-to-date on policies and that employers make a serious effort to bring to the attention of all staff what the policies are. Unfortunately, uncomfortable situations do occur, which sometimes result in dismissals.
This week, You Legal's Senior Consultant in Workplace Relations and safety, Fiona Tillmann, updates you on recent legal developments and explains how to protect yourself and your employees from becoming involved in litigation concerning unfair dismissals relating to the alleged distribution of pornographic material.
Case Example
In 2010, Australia Post installed software that captured pornographic material emailed by its employees. Following an internal investigation, employees who violated the zero-tolerance policy on the distribution of such material in the workplace were terminated. Others were subject to disciplinary action but were able to keep their jobs.
Three employees applied to the Fair Work Commission under unfair dismissal laws. The Commission agreed with Australia Post's decision and found the dismissals were not harsh, unjust, or unreasonable. However, the Commission also found, in consideration of the circumstances, that one of the applicants deserved to be compensated. The two applicants for whom the Commission did not provide a remedy appealed further to the Full Bench.
On review of the appeal, the Full Bench Majority noted that the appeal was the result of a growing trend where “accessing, sending, or receiving and storing pornographic material by an employee was seen as serious misconduct that merited dismissal.” They were also concerned that an earlier decision in Queensland Rail v Wake (2006) was not being interpreted correctly in light of the present cases.
Queensland Rail Decision
In this case, Queensland Rail dismissed the employee due to their failure to comply with an electronic communication policy that also included the communication of inappropriate material. However, the circumstances surrounding this case were not the same as those of the Australia Post case in that Queensland Rail made a great effort to ensure that employees were fully aware of the zero-tolerance policy. Queensland Rail used various venues and training materials to inform them of this policy. They even went so far as to have the employees electronically acknowledge that they were aware of the policy and also allowed a certain period of time for an employee to remove any offending material from the electronic system.
Therefore, the Majority Bench wanted to ensure that the decision as to whether a dismissal is “harsh, unjust or unreasonable” should be based on the circumstances and facts of each case. The message is that it is by no means a foregone conclusion that termination of employment based on the distribution of inappropriate material will be automatically defendable.
What does this mean?
Whatever your policy position is on the transmission of pornographic/inappropriate material, we encourage you to make sure that you take every reasonable step to make your employees aware of what the policy is and what the potential consequences are for the breach of the policy. The Queensland Rail Decision demonstrates that it is good practice to hold training seminars on changing policies of the company and to check back with your staff that they are aware of the policies.
What Should I Do Next?
Contact us if you would like more information on this topic or require guidance on drafting office behavior policies. Our lawyers are always available to answer any further questions you might have. We look forward to hearing from you with any questions or feedback!
* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.