Pornography in the workplace - is this ground for automatic dismissal?

A full bench of the Fair Work Commission has recently found that three employees of Australia Post were unfairly dismissed even though it was proven that the workers had breached policies in relation to discrimination, harassment and the use of IT to access and share pornography.

The decision has surprised employers who had thought that if an employee breached a strict no dissemination of pornography policy that would be grounds to justify termination.
 

The majority of the Commission held that even though there was a valid reason to sack the employees, the Fair Work Act required an employer to still ensure that the sacking was not harsh, unjust or unreasonable.

The Commission illustrated the point by giving the example of a bus driver who was sacked for using a mobile phone whilst in charge of a bus. The bus company had a strict policy that drivers must obey the rules of the road and never use a mobile phone whilst driving. The bus driver’s wife was suicidal and suffering severe depression and had begged her husband not to go to work that day. The call that he took was from his wife. He hesitated to take the call, but frightened as to the catastrophic consequences of not taking the call, answered his phone and told his wife he would call back as soon as it was safe to do so. He had a long and unblemished record of service, acknowledged his fault and was remorseful. The Commission held that notwithstanding that there was a valid reason for dismissal held that the dismissal was harsh and reinstated the bus driver.

This decision is a reminder to all employers to make sure that any punishment “fits the crime” and that factors such as length of service, previous employment history, and inconsistent application of policies in relation to Internet usage may suggest that action short of termination should be taken.

What should Employers do?

1.             - Make sure that policies in relation to Information Technology are up to date,

2.            - Ensure that all staff are aware of the policies,

3.            - Make sure that policies are fairly and consistently enforced,

4.            - Assess each case of misconduct and breach of policies by reference to the particular circumstances including :  the employees age, length of service,  disciplinary record, remorse and the gravity of the misconduct,

5.            - Ensure that a punishment such as dismissal is not disproportionate to the offence.

Dismissal can be hotly contested by employees especially where there is a realistic prospect of reinstatement.  Employers should seek early advice from an experienced workplace practitioner about proper process before proceeding to terminate an employer for breach of policies.

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.