The Fair Work Commission has found that the termination of a long-time employee of the Department of Defence was unfair, even though his conduct in sending pornographic emails was a valid reason for dismissal.

Mr X’s supervisor undertook an initial assessment of the incident, and decided Mr X should be counselled but not terminated.  This report was then forwarded internally for an assessment of whether Mr X had breached the APS Code of Conduct.  Four months later, Mr X was told his conduct would be subject to a formal investigation.  A Code of Conduct investigation subsequently resulted in Defence deciding to terminate Mr X’s employment.

Mr X argued that his conduct in storing and sending certain emails was inappropriate, but that the sanction of dismissal was disproportionate to the degree of misconduct.  For its part, Defence argued that Mr X was a senior employee who had undergone extensive training on the issue and knew of Defence’s policy on the use of its IT system, particularly given recent adverse publicity.

The Commission agreed the emailed material was “lewd, pornographic and demeaning of women” and, in the context of Defence’s policies “clearly inappropriate”.  So where did Defence go wrong?

The Commission expressed sympathy at Defence’s position in attempting to overhaul its culture.  Nonetheless, it considered the dismissal unfair, taking into account a range of factors including Mr X’s age (62) and length of service, and inconsistencies in Defence’s investigation process.  On this point, the Commission made particular note of the delays in the investigation process and shortcomings in the information provided to Mr X about that process.

Key points for employers

  • In the criteria for considering harshness, etc, the issue of whether there is a valid reason for the dismissal is just one factor the Commission is required to consider.
  • This decision confirms that significant delays in making a decisions regarding employee misconduct can render the dismissal unfair.
  • Employers should be mindful of balancing the procedural obligations of properly investigating misconduct, with the need to avoid lengthy delays.​

A link to the decision can be found here: Mr X v Commonwealth of Australia T/A Department of Defence [2013] FWC 9140