When was the last time your company actively advertised its IT usage policies, or audited employee compliance? A recent Full Bench Appeal decision of the Fair Work Commission (FWC) confirms that breach of IT policies is not a "special species of misconduct". Whilst electronic misdemeanour might provide a "valid reason" to terminate, this is not a complete defence to an unfair dismissal claim. An employer that fails to doggedly promote and police its IT policies may find it difficult to defend unfair dismissal claims following misconduct terminations : see B, C & D v Australian Postal Corporation  (t/a Australia Post) [2013] FWCFB 6191.

The Appeal involved three long-serving employees who were dismissed for sending a number of emails which included pornographic content.  The conduct was admitted by the employees and there was no dispute that the conduct was in breach of relevant IT policies. The employer only became aware of the emails after installing a new software filter on its email systems.  An internal investigation disclosed that about 40 employees were involved in policy breaches. As a result, a number of employees were dismissed (including the three Appellants in this matter). Other employees were disciplined through warnings and other lesser sanctions.

Prior to the Appeal, Commissioner Lewin rejected two of the employees' unfair dismissal applications but found the dismissal of one employee unfair and awarded compensation, although not reinstatement.  Each of the employees appealed, with the employer cross-appealing in relation to the successful employee.

The Full Bench allowed the appeals.  Although the Full Bench found that the employees had engaged in conduct in breach of a lawful and reasonable policy, the dismissals were nonetheless found to be harsh, taking account of a number of factors. These factors included the considerable length of service of each of the employees, the employer's failure to monitor compliance with its policies over a prolonged period, a failure to take action against instances of non-compliance (this was of particular concern in the Appeal given the substantial period over which the conduct took place), and an absence of any active steps taken  to draw employees' attention to the importance of compliance with its IT policy and that material breaches could result in dismissal.

It seems onerous to expect that an employer should be tasked with constantly reminding its employees of what should be patently obvious: pornography and work don't mix (in the vast majority of workplaces, anyway). This is particularly given that exchange in explicit material will generally give rise to risks of sexual harassment and other unlawful behaviour.
However, the Appeal is not an indication of an increasing tolerance of electronic misdemeanour. The nub of the Appeal decision is that a breach of IT policies is the same as any other type of misconduct. As such, an employer needs to be careful to ensure that a termination will not be harsh, unjust or unreasonable in all the circumstances in a particular instance. Importantly, employers need to act consistently when doling out discipline to employees who have engaged in similar conduct. In this respect, the Appeal decision suggests that it is not appropriate to differentiate between employees by making an assessments of "gravity" of misconduct based on the content of pornographic messages.

Employers need to be careful to constantly remind their employees of IT policies (eg through pop-up login screens referring to policies, or as part of regular compliance training), and to regularly audit compliance. Taking these steps will make it easier for employers to defend unfair dismissal claims, should they face them.