A Full Bench of the Fair Work Commission has found that the dismissal of three employees for sending pornographic emails over a work email system was unfair, despite the employees having clearly breached the employer’s policy.

Implications for employers

Employers should not assume that accessing, sending, receiving or storing pornography on a work email system is a special form of serious misconduct that invariably justifies termination of employment. There may be factors from the employee’s perspective that militate against dismissal, particularly where the issue has not been actively addressed in the past.

Background

In December 2010, four employees of Australia Post were terminated for sending inappropriate and sexually explicit email material using the Australia Post email system.

The issue came to light when a new software filter system detected pornographic material being emailed at the Dandenong Letter Centre (DLC). An internal investigation found that a large number of employees had breached Australia Post’s IT policy on email usage. A disciplinary process was conducted and some employees, including Messrs B, C and D were dismissed.

In summary:

  • B sent six unacceptable emails from his Australia Post email address to his home email address. One of the emails had a video attachment depicting what the majority of the Full Bench described as “an extreme pornographic act”;
  • C sent 11 emails within the Australia Post system; and
  • D sent multiple emails from his home computer to groups which included work colleagues at their Australia Post email addresses.

The employees filed claims for unfair dismissal in Fair Work Australia (as it then was). They did not dispute that there was a valid reason for their dismissal. However, they argued that the dismissals were nevertheless harsh, unjust or reasonable.

Decision at first instance

Commissioner Lewin determined that the dismissals of C and D were fair, but the dismissal of B was harsh, unjust or unreasonable in the circumstances. In relation to B, he found that reinstatement was inappropriate and awarded compensation instead.

C and D appealed the decision to dismiss their applications. B also appealed the decision not to reinstate him. Australia Post cross-appealed against the finding that B had been unfairly dismissed.

Decision on appeal

The appeal was heard by Vice President Lawler, Senior Deputy President Hamberger and Commissioner Cribb.

The majority decision

A majority of the Full Bench (Vice President Lawler and Commissioner Cribb) allowed the appeals by the employees. They determined that the dismissals of B, C and D were unfair and dismissed the cross-appeal.

The majority confirmed that a dismissal may be unfair, notwithstanding the existence of a valid reason for the termination. Other matters relevant to the “substantive fairness” from the employee’s perspective include the broader context in the workplace in which the acts or omissions occurred (for example, a history of tolerance or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct) and the personal circumstances of the employee (for example, length of service, disciplinary history or the harshness of the consequences of dismissal for the employee and his or her dependants).

In this case, relevant mitigating factors included:

  • The absence of any evidence of harm or damage

The emails were invariably sent to friends who were apparently content to receive the material. They were not viewed accidentally by other employees and there was no evidence of any reputational damage to Australia Post.

  • Culture of tacit acceptance or condonation

The majority accepted that the evidence supports a finding that there was a culture of toleration or tacit condonation within the DLC (but not Australia Post generally) in relation to policy breaches of this type. The evidence demonstrated that a large volume of pornographic emails had been sent and received by a large number of employees (including managers and supervisors) over an extended period, without a management response.

  • The absence of any warning of dismissal

There was no prior warning given to employees that breaches of the policy could result in dismissal. This was significant in circumstances where Australia Post had not taken steps in the past to monitor compliance with the relevant policies or enforce them at the DLC.

  • Inconsistent treatment

There was evidence that other employees, especially junior managers, had received more lenient sanctions for similar behaviour.

  • Length of service

The three employees all had substantial periods of satisfactory service, being over 17, 13 and 11 years respectively. The majority said that dismissal for each of these employees was a serious matter that put them and their families at risk of significant personal hardship.

The majority weighed the seriousness of the misconduct against these factors and concluded that the misconduct did not warrant dismissal. The matter was remitted to Vice President Lawler to determine an appropriate remedy. The majority suggested that reinstatement was appropriate, but with a significant discount in relation to any order for back pay to recognise the employees’ misconduct.

The minority decision

Senior Deputy President Hamberger preferred the approach taken by Commissioner Lewin and would have refused the appeals.

B, C and D v Australian Postal Corporation [2013] FWCFB 6191