Dismissal for emailing porn “unfair”

A recent case of the Fair Work Commission (FWC) indicates that a ‘one size fits all’ approach to employee dismissal should be avoided, even if the conduct in question relates to an area where an employer has a zero tolerance policy such as the access to or distribution of pornographic material.

Three (3) Australia Post employees (Messrs.  A, B & C), were all dismissed for breach of the companies policy not to distribute, or access pornographic material or inappropriate material within the workplace. Mr. A had sent six (6) unacceptable emails to his home email, and sent emails from his home email, to other Australia Post employees.  Mr. B sent 11 inappropriate emails from his workplace computer, and Mr. D sent multiple emails from his home email to work friends at their Australia Post email address.

The matter went before FWC, and the Court found that the dismissals of Mr. B & C were not unfair, harsh or unreasonable. However in the case of Mr. A, the Court found it was harsh in all the circumstances, but as re-instatement was not an appropriate remedy, awarded to Mr. A, compensation. All three appealed the finding of the Commissioner.  Mr. B & C appealed on the basis that their cases should not have been dismissed, and Mr. A appealed because the Commissioner would not grant reinstatement.

On appeal, FWC confirmed that each case must be taken on its own. It acknowledged there was a trend to view cases that regarding accessing, sending or receiving pornographic material was serious misconduct that invariably merits termination of employment, and this view was not correct.

Any breach of an employer’s policies must be viewed according to well established fundamental principals namely, the facts surrounding the events,, weighing the gravity of the offense against dismissal as a fair response to misconduct including factors such as age of the employee, length of service, service record, whether adequate warnings and notice, any tacit acceptance of the behavior.

In this case the employees had been employed for many years (Mr. A – 13 years, Mr. B – 11 years, and Mr. C -17 years), and they had provided satisfactory service during their employment. The FWC found:

1. Australia Post did not take active steps to bring home to employees the policy;
2. There was tacit acceptance of the practice, as evidence showed that supervisors and junior managers were aware of the transfer of inappropriate content since they had received or sent such emails;
3. There were no prior statements by Australia Post  that such breaches would be a ground for summary dismissal and;
4. There was no notice given to employees of a new filter system with a reminder of the Australia Post policy;

In simple terms, FWC found that each of the dismissals were harsh, given the culture, the historical absence of monitoring, the enforcement of the policy without warning when breaches had been widespread and unaddressed for an extended period.

FWC, re-confirmed that although they did not condone the practice, each case had to be decided on there own facts, and the sending and receiving of pornographic or inappropriate material was not a separate species of misconduct with special rules.

The normal rules and principals apply to such matters.