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Porn: Instant Dismissal?

Commercial Law, General

The prevailing assumption that an employee who accesses porn at work can be summarily dismissed has been dealt a blow by a recent Full Bench decision of the Fair Work Commission in B, C & D v Australia Post [2013].

In that case, Australia Post had identified 40 different workers who had been accessing and disseminating porn through the installation of a new filter specifically designed to detect such activity. The three appellants had been sacked because each had been involved with a number of such instances.

In finding the employees had been unfairly dismissed, the Commission expressed concerns over the prevailing idea that offences of this sort should invariably lead to dismissal. They held that the offence of accessing pornography at work was not a special species of offence to which special and absolute rights to terminate apply. Rather, such misconduct should be considered in the light of the surrounding circumstances, just as any other form of misconduct.

In this particular case, the Commission found that:

*the employees had not been given any notice about the new filtering software

*no particular attention had been drawn to the anti-pornography policies of the workplace

*each of the employees had been with Australia Post for many years without any other such instances

*the content of the pornography was no worse than what a person could find on commercial television any night of the week

*the emails had not caused any harm – there was no evidence of hurt or offence to others

*the workplace culture was often ribald in its conversation

*there had been an inconsistency of approach between these employees and other employees who had done essentially the same thing, but who had not been dismissed.

There are some lessons to be learned here. In particular, make sure employees are made aware of your policies in this area and of any monitoring to be conducted, have zero tolerance of smutty workplace humour, and ensure written warnings are given about such behaviour before ultimately terminating staff over this issue. If a senior member of staff is caught out in this area, they should be counselled and offered an opportunity to address their misconduct before any termination is contemplated. Rod Berry, Managing Partner