Australia's Federal Court Has Ruled Sharing Porn At Work Isn't Automatically A Sacking Offence

Picture: BBC

You can’t be automatically sacked for emailing porn at work – the Federal Court says so.

Yesterday, it gave its verdict on the case for two workers who lost their jobs in 2010 among 40 others at Australia Post’s Dandenong Letter Centre who were disciplined over their online activities.

Back then, Australia Post had just installed a new software filter on its email system, according to The Age. It quickly became apparent that pornography was being widely shared on Australia Post’s email system.

Australia Post took the big hammer approach and made an example of three offenders who had worked for the company for between 11 and 17 years.

In September, the Fair Work Commission challenged Australia Post’s action, and found that even if sharing porn was a clear breach of your workplace policy:

“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”

It cited the cases of the three workers:

  • 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.

Mr B lodged an unfair dismissal proceeding with FWC, and succeeded, but only received compensation.

Australia Post deemed it inappropriate to reinstate the workers, as it had “lost trust and confidence in them”.

The FWC said it was important to note that accessing and sharing porn was not a “separate species of misconduct to which special rules apply”.

It said instant dismissal in some severe cases might be justified, but the company also has to show that its policy on porn must be “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.”

In the case of Australia Post, it considered the fact that:

  • It was mostly softcore pornography being shared
  • Supervisors and junior managers were aware of inappropriate emails
  • Employees were not warned the new filtering system was being installed, and
  • Australia Post neither reminded employees of the policy, nor warned that instant dismissal could be enforced for breaches of it

In October, Australia Post challenged the ruling and took the case to the Federal Court, and yesterday, the Federal Court found in favour of the workers.

It upheld the FWC’s rejection of Australia Post’s “zero tolerance” approach.

It agreed that the workers had been unfairly dismissed and ordered Australia Post to reinstate two of the sacked workers, so some might say it was a victory for the right to share porn, albeit an expensive one.

The FWC agreed that due to the level of their misconduct, they should only be reinstated with 25% of their back pay – $30,083, $12,096 and $25,442.

However, a warning for anyone who’s about to rush off and get back to emailing porn – in February, a similar case arose before the FWC regarding an ATO employee who used the Australia Post case to challenge his own dismissal.

The employee was found in possession of an email inferring cannibalism, images of bestiality and sexually explicit prose, after an investigation into his email activity.

He claimed it had been emailed to him by friends and admitted he had either downloaded it or sent it home to view later.

The FWC found that to be true, but still felt the ATO employee’s case was not in line with that of the Australia Post workers, as he had been in breach of IT policy previously and should have been aware of the seriousness of the matter.

You have been warned.

The Federal Court’s judgment can be read in full here >>

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