Two Australia Post employees have kept their jobs after initially being dismissed for distributing pornography after the Full Federal Court held that emailing pornography in the workplace is not automatically a sackable offence.

The story so far…

The employment of three Australia Post employees was terminated for conduct that included distributing multiple  emails containing pornographic material to work colleagues and using work facilities to do so.

In November 2011, Commissioner Lewin of the Fair Work Commission held that there was a valid reason for the dismissal of two of the employees but that the dismissal of a third employee was unfair, and awarded  this employee compensation.  All three employees appealed the decision, with the third employee arguing that he should have been reinstated.  Australia Post appealed Commissioner Lewin’s decision that the third employee’s dismissal was unfair.

In August 2013, a majority of the Full Bench of the Fair Work Commission (Commission) confirmed that a “valid reason” is only one of a number of factors that the Commission will consider in determining whether a dismissal is harsh, unjust or unreasonable. A dismissal may be harsh despite the existence of a valid reason.

In submissions, the employees’ lawyer told the Full Bench that  the Commission’s 2006 decision in Queensland Rail v Wake (2006) (Queensland Rail) was “sometimes used as a precedent to support the contention that where an employee is sent pornographic emails it doesn’t matter what their length of service is, or the fact that they’ve got a prior unblemished service history, it’s okay for an employer to terminate them”.

The Full Bench majority concluded that there was an “emerging trend” where storing, sending or receiving pornography in the workplace “invariably justified dismissal.” It said that this was “inconsistent with the basic principle” that in any dismissal case relying on misconduct, the same general principles apply as in all unfair dismissal cases.  The Full Bench majority rejected Australia Post’s “zero-tolerance” approach to sending sexually explicit material and granted the employees leave to appeal.  The three employees were ordered to be reinstated.

Federal Court decision

In the Federal Court, Australia Post argued that there was no evidence to justify the majority of the Full Bench’s identification of an emerging trend in relation to cases of a zero-tolerance towards workplace pornography. Australia Post argued that there were cases where the termination of an applicant who had sent, accessed or received pornography was found to  be unfair, as well as other cases where the applicant was unsuccessful in their unfair dismissal claim.

Justice Jessup said that the Commission was entitled under the Fair Work Act 2009 (Cth) to rely on its knowledge of similar cases in deciding whether to grant leave to appeal, and that it was not necessary for there to be “evidence” of such matters.

Justice Bromberg agreed that the majority was entitled to rely on the employees’ lawyer’s “uncontested assertion” on Queensland Rail, and that it did not matter whether the assertion was wrong or led the Commission into error. The Federal Court therefore held that the Full Bench was correct to grant leave to two of the employees to  appeal. In relation to the third employee, it was found that the Full Bench had not considered the public interest arising on his appeal (ie the Commission’s failure  to order re-instatement after finding the dismissal harsh and unreasonable). The Full Court found this employee’s appeal remained to be dealt with by the Commission.

Bottom Line for employers

The decision of the majority of the Full Bench of the Commission still stands - that is sending or receiving pornography in the workplace does not automatically justify dismissal, even where the employer has a “zero tolerance” approach.

Care should be taken when managing employees who have engaged in serious misconduct in breach of company policy to ensure that all breaches are dealt with consistently and all disciplinary options are explored (even in light of a zero tolerance policy) to avoid a finding that the dismissal is “harsh”.

Caution should also be taken against applying principles from previous cases involving similar misconduct without considering the particular circumstances of each case.