Porn in the office is obviously unacceptable, offensive, disrespectful and clearly amounts to ‘sackable’ conduct. Right? Well...
As recently confirmed by the Full Federal Court’s decision to uphold the reinstatement of two porn-lovin’ posties, indulging in a little XXX entertainment in the workplace doesn’t always amount to a sure-fire dismissal.
After installing a new email filter at one of its letter centres, Australia Post discovered it had a bit of a porn ring in its ranks. At least 40 employees, including supervisors and managers, apparently thought mail sorting could use some spicing up, so NSFW (look it up, maybe not at work though) material was commonly shared through email. Not the discriminating types, the employees apparently circulated material spanning an “extraordinary range” and included “highly explicit video files of orgiastic sexual intercourse of various types”. Commission’s words, not ours.
At trial, Australia Post won easily. The dismissals were held to be fair. But when the employees appealed to the Full Bench of the Commission, the decision was overturned. Although the Full Bench found the conduct was a valid reason for termination, the dismissal of the two employees was still harsh considering:
- the employees’ long periods of satisfactory service;
- the culture of toleration that had existed at the letter centre;
- the absence of any harm from the material given it was sent to "willing recipients"; and
- the lack of any notice regarding the installation of the filter or a reminder of the workplace policy that prohibited the conduct.
So the Full Bench ordered reinstatement!
Next up, Australia Post appealed. But the Full Court of the Federal Court affirmed the decision of the Full Bench. The employees were entitled to keep their jobs.
Now this doesn’t mean employees are free to spend their breaks (or work time for that matter) perusing x-rated websites. However, it’s a good reminder that, when dismissing, the offending conduct is only part of the story when you find yourself down before the Fair Work Commission, and employers must have regard to the bigger picture. For a start, make the ground rules clear, and don’t be engaging in workplace surveillance of email and internet use without complying with notice provisions.