Fair Work Australia (FWA) has confirmed that the distribution of pornography in the workplace constitutes a valid reason for dismissal, even if the employee has not received appropriate training.

Implications for employers

FWA has recently confirmed that the distribution of pornography constitutes a valid reason for dismissal, even in circumstances where the employee has not received appropriate training. Notwithstanding this, employers should ensure that:

  • appropriate policies to prevent the dissemination of pornography in the workplace are in place and all employees are properly trained in these policies;
  • a fair and consistent disciplinary and investigative process is designed to deal with any breaches of these types of policies; and
  • workplace culture cannot be said to condone such behaviours.

Background

This decision arose from an application for an unfair dismissal remedy. The applicant was employed by the respondent (The Star) over several periods between 2004 and 2012 as a security officer. All employees, including the applicant, had been provided with new contracts of employment in October 2011, which contained an “entire agreement” clause stating that all previous contracts were wholly discharged.

As a result of an unrelated investigation under the Casino Control Act 1992 (NSW), The Star became aware of a large number of emails containing pornographic images sent and received by employees, including some management staff. At all times during the applicant’s employment with The Star, policies were in place prohibiting the distribution of pornographic and other inappropriate material.

The Star set up an investigation and disciplinary process whereby:

  • employees who had sent more than 10 pornographic emails were to be provided with the material, asked to respond and, if there was no suitable response, summarily dismissed;
  • employees who had sent or received less than 10 emails would be issued with a final warning once they had been interviewed and given a chance to respond; and
  • all other employees who received emails would be reminded of their obligations under The Star’s policies.

It was discovered that the applicant had sent 50 emails containing hard core pornography to colleagues from January 2010 onwards. The applicant was dismissed following an interview.

Applicant’s submissions

The applicant claimed that the dismissal was unfair because:

  • The Star did not have a contractual right to dismiss him under the October 2011 agreement for conduct that occurred under a previous contract of employment;
  • it was wrong to conclude that his conduct amounted to misconduct because there was an “unchallenged workplace culture” of employees distributing pornographic material; and
  • he had not been given specific training on the IT policy or Code of Conduct.

Decision

Commissioner Cargill found that the dismissal was not harsh, unjust or unreasonable.

In dismissing the action, Commissioner Cargill found that the change of contract in October 2011 did not sever the underlying employment relationship. The Star had the right to consider the applicant’s conduct prior to that contract.

As to a valid reason for dismissal, the Commissioner said that there are certain types of conduct which as a matter of common sense should not be engaged in in the workplace – and the distribution of hard core pornography is one of them. Other relevant considerations included that:

  • the vast bulk of the material originated from his personal email and was deliberately sent into the employer’s system for distribution;
  • some of the material was probably stored on the work system; and
  • the conduct took place over an extended period of time.

It was found that there appeared to be a culture among a group of employees, some of whom were managers, of exchanging pornographic emails. However, there was no evidence that this was a wider culture having regard to overall size of the workforce and the number of employees engaged in the behaviour. There was no evidence of senior managers or corporate level condoning such behaviour.

It was also found that there was nothing “inherently unfair” in filtering the more serious conduct from the less serious by the number of emails - the criteria was reasonable and applied consistently.

Finally, it was found that while the employee may not have received specific training in the IT policy, he had undertaken training in relation to the Code of Conduct, which refers to other policies which all employees could access on-line.