A Full Bench of the Fair Work Commission has found that the dismissal of two employees for distributing pornography was unfair, stating that the same unfair dismissal principles apply for the distribution of pornography as for any other form of misconduct

The employees were dismissed for distributing emails containing pornographic images, a small amount of which was considered to be “hardcore”. The employer had policies relating to the use of IT systems which strictly prohibited accessing, storing, sending or receiving pornography (Policy).

A majority of the Full Bench held that misconduct relating to pornography is “not a separate species of misconduct to which special rules apply ... it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters”.

In concluding that the dismissal was harsh, the majority observed that:

  • the employer did not do enough to draw the employees’ attention to the Policy and stress its importance;
  • there was a culture of tolerance of breaches of the Policy;
  • no prior warning was given to say that breaches of the Policy were going to be treated as serious enough to warrant dismissal; and
  • the long periods of satisfactory service (in excess of 10 years for each employee) and potential for hardship on the employees and their families should have been taken into account.

The Commission endorsed the right of employers to have policies on pornographic material in place, and acknowledged that breaches of such policies can warrant dismissal. However, the majority said that an employer “must have taken adequate steps to bring home to employees that breaches will be treated seriously and will likely result in dismissal”.