A divided Full Bench of the FWC has recently reviewed in detail the issues surrounding dismissal for accessing, sending or receiving or installing pornography on a company’s IT system in breach of company policies. In doing so, it has emphasised the separate considerations which apply as to whether there was a ‘valid reason’ for any dismissal, and whether that dismissal could be characterised as ‘harsh, unjust and unreasonable’.
The Commission was concerned at what it said was an emerging trend in cases that sending or receiving or installing pornography by an employee was being increasingly treated as a form of serious misconduct that invariably merited termination of employment. It said the misuse of pornography on a company’s IT system was a form of misconduct to which the ordinary principles apply as to any other unfair dismissal case involving reliance on misconduct.
The installation of a new software filter of the employer’s email system had resulted in the investigation and disciplinary process involving some 40 employees including supervisors and some managers within the Dandenong branch. A range of outcomes resulted but the case involved three employees who had sent inappropriate emails, images and video attachments to and from their home computers and to work friends at their work email addresses. Commissioner Lewin at first instance had accepted the termination of two employees, but found the termination of one employee to have been harsh. All parties appealed.
The majority decision
The majority of the Full Bench placed considerable emphasis on the likelihood that there could be a valid reason but made it clear that that was only the start of the analysis by the Commission in considering whether it was satisfied that the dismissal was “harsh, unjust or unreasonable.” That there was a valid reason was only one of the factors to be taken into account. It drew upon the long standing principle that the dismissal may be harsh, unjust and reasonable notwithstanding the existence of a valid reason for dismissal. The Full Bench pointed out the extraordinary lengths to which the employer had gone to introduce, implement and enforce its IT policy which made it, in the majority’s view, an exceptional case. In assessing whether a termination has been harsh, unjust or unreasonable, consideration has to be taken of all the circumstances and a weighing of the various factors which may include the form and content of company policies, the manner in which the employees are informed and educated regarding the policies and the way in which they are enforced.
In this case, there was a large amount of inappropriate email traffic circulating amongst a number of the personnel within the company. Although it might not have been actually condoned, it had not resulted in any earlier action of investigation or warning. There was no evidence of reputational damage or activated legal liability of risk said to be caused by the circulation of the material, with no complaints received by management and nor had it come to the attention of any outside or third parties. Most of the material was regarded as ‘soft core’, although there was some material as ‘hard core’.
Of other matters, the Full Bench noted there was no proximate warnings or dissemination of the policy, there were no active steps to keep the policy to the fore front of the employees’ minds and there had been a difference of treatment between a number of those employees investigated, although it was acknowledged they were all deal with under the employee disciplinary policy. The employees concerned had service of 17, 13 or 11 years and dismissal was a serious matter that put them and their families at risk of severe personal hardship in the circumstances where they had no prior unsatisfactory service.
The Full Bench concluded that the misconduct did not warrant dismissal and that in each case it was harsh. It specifically indicated it did not wish for its reasons to be misrepresented. They endorsed the right of employers to have policies against the improper use of pornography on the Company’s IT systems and they endorsed the right of employers to regard compliance with such policies as a serious matter. However, a full consideration of particular circumstances of each case had to be held.
Although they referred the matter of remedy to Vice President Lawler (a member of the Full Bench majority), the majority indicated there was nothing about the conduct of the employees that could have been taken to undermine the fundamental trust and confidence in the employment relationship and reinstatement was possible.
The minority decision
Deputy President Hamberger was the minority. After reviewing Commissioner Lewin’s decision in detail (upholding two dismissals and finding one termination was harsh), Hamberger DP said he found nothing in that decision which would attract the necessary public interest (such as it being a matter of importance or general application, or where there was manifest injustice) and therefore he would decline to grant the right to appeal.
Lessons for employers
From one point of view, it can be said that the case simply points out that the inappropriate handling and distribution of pornography does not automatically justify termination of employment and all circumstances should be taken into account. On a more practical level, the nature and level of the actual steps and facts that are necessary to ensure that an anti-pornography policy is successfully implemented and imposed to support disciplinary enforcement have been set out in some detail within the decision. The decision provides an endorsement for the steps that many employers would no doubt implement in the ordinary course and a reminder of the need for constant reinforcement of the policy.