A breach of a workplace policy is not a special type of misconduct, and should be assessed on its own merits and using ordinary unfair dismissal principles.
Across society there are a range of different views on the issue of pornography. Employers need to be careful to ensure that any personal revulsion of pornography does not inform decisions in respect of the steps to be taken against an employee in circumstances where such material is an issue. Legal risk can arise from an employer playing "moral guardian".
A majority of the Full Bench of the Fair Work Commission has found that accessing, sending or receiving and storing pornographic material by an employee on a work email system does not invariably warrant termination of that employee's employment.
In B, C and D v Australian Postal Corporation T/A Australia Post  FWCFB 6191 (Australia Post), Vice-President Lawler and Commissioner Cribb (with Senior Deputy President Hamberger dissenting) upheld the appeal of three Australia Post employeesfrom a decision of Commissioner Lewin in relation to their unfair dismissal claim.
The proceedings arose following the installation of a software filter on the Australia Post email system in 2010. That filter brought to the attention of Australia Post management instances of pornographic material being emailed by Australia Post employees in Victoria.
Following an investigation, Australia Post conducted a disciplinary process in relation to some 40 employees. A number of employees were terminated on the basis that they had distributed pornographic material, including the Appellants in these proceedings. Others received a lesser sanction or warning.
The three employees subject to the appeal, Messrs B, C and D, were engaged at the Dandenong Letter Centre (DLC) and secured a non-publication order on their names during the initial hearing. Mr B had sent 6 unacceptable emails to his home email address and sent emails from his home email address to work friends at their Australia Post email addresses. Mr C had sent 11 emails. Mr D, an employee who did not have an Australia Post email account, was dismissed for sending multiple emails from his private home computer to work friends at their Australia Post email addresses.
Commissioner Lewin's Decision
Following their termination, the three employees lodged unfair dismissal applications with the Fair Work Commission.
Commissioner Lewin at first instance found that the dismissals of Mr D and Mr C were not harsh, unjust or unreasonable but that the dismissal of Mr B was harsh in all the circumstances. The Commissioner found that reinstatement was not an appropriate remedy for Mr B and awarded compensation. Following the Commissioner's decision, Mr C and Mr D appealed against the dismissal of their applications. Mr B appealed against the Commissioner’s refusal of the remedy of reinstatement.
Decision of the Full Bench Majority
At the outset, the majority noted that the appeal occurred in the context of "an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct thatinvariablymerits termination of employment."
On the basis of that trend, the majority expressed a concern that the decision of the Full Bench in Queensland Rail v Wake(2006) 156 IR 393 (Queensland Rail) was being misinterpreted.
Decision in Queensland Rail
Queensland Rail involved the termination of an employee with a long period of service on the basis of non-compliance with an electronic communications policy in relation to inappropriate material.
In that case, the terms of the employer's policy and the lengths that the employer had gone to ensure compliance with that policy meant that termination of the relevant employee was justified on the basis of his non-compliance with the policy even in circumstances where his breach was not serious and despite his substantial length of service.
In distinguishing Queensland Rail, the majority's reasons noted the "exceptional facts" of that case included the fact that Queensland Rail had gone to great lengths to inform its employees of its zero tolerance approach to the access or distribution of inappropriate content. In this regard, the steps it had taken included publication of policies, distribution of instructional videos, newsletters and CEO updates, the requirement that employees electronically acknowledge their acceptance of those policies, the implementation of an amnesty period for employees to remove any inappropriate material, consultation with unions and the inclusion of warnings on employee payslips putting employees squarely on notice that inappropriate use of the IT systems would not be tolerated.
The majority held that Queensland Rail was to be seen as a reassertion of the basic principle that a determination of whether a dismissal is harsh, unjust or unreasonable must be decided on the facts and circumstances of the particular case. It was not an authority for the proposition that it is axiomatic that a termination based on pornography-related misconduct will not be harsh, unjust or unreasonable.
Were the terminations harsh, unjust or unreasonable?
On appeal, there were no serious challenge to the Commissioner Lewin's primary findings of fact. The majority also noted that a finding that there were valid reasons for the employees' dismissals was "inevitable".
The majority stressed that, notwithstanding the existence of a “valid reason” for a dismissal, "it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable””.
In assessing the terminations, the majority found that:
"a determination of whether a given dismissal for the sending or receipt and storage of pornography is …. 'harsh, unjust or unreasonable' involves a consideration of all of the circumstances and aweighingof the gravity of the misconduct against the various factors that mitigate against dismissal as a proportionate (fair) response to the misconduct, including, of course, factors subjective to the particular employee (such as age, length of service, service record etc)."
With respect to the relevant breaches of the policy, the majority considered the breaches of policy by the employees to be:
"moderately serious but were certainly not in the most serious ‘category’. Most of the material was softcore pornography and no more salacious than material that might be viewed on free to air television almost any night of the week."
The majority noted the three Appellants all had substantial periods of satisfactory service (Mr D – 17 years, Mr B – 13 years and Mr C, 11 years) and noted the submissions of the appellants, which included reference to:
- The absence of any evidence of harm or damage.
- A culture of tacit acceptance or condonation.
- The absence of any warning of dismissal.
- Inconsistent treatment of other employees.
The majority accepted that there was no evidence of any particular harm or damage caused by the Appellants sending pornographic emails to friends and that there was no evidence of any reputational damage to Australia Post.
The majority was satisfied that supervisors and junior managers in the DLC were aware of the regular transfer of inappropriate content over the Australia Post system by virtue of themselves having sent or received unacceptable material by email.
The majority held that there were no proximate prior warnings to employees that Australia Post would treat such breaches of policy seriously to the point of dismissal for employees with long service, nor was there any evidence of notice being given to employees of the installation of the new email filter with a reminder of Australia Post’s stand on the policy.
In short, the majority formed the view that:
"Australia Post did not take “active steps” to bring home to employees that Australia Post would treat such conduct seriously, let alone active steps of the sort taken by the employer inQueensland Rail."
In using Queensland Rail as a comparison, the majority was at pains to point out that the steps taken in Queensland Rail did not represent a "minimum or a yardstick" but that each case must be considered by reference to its own particular circumstances.
On balance, the majority concluded that the relevant misconduct did not warrant dismissal and that in each case the dismissal was harsh in the relevant circumstances.
In particular, the majority found that given the culture that existed at the DLC, and the historical absence of monitoring and enforcement of policy within the DLC, it was harsh to dismiss employees such as the Appellants, without any prior warning, for breaches of policy of a type that had been widespread and unaddressed for an extended period.
The majority were satisfied that reinstatement with continuity of employment was appropriate and remitted the matter of remedy to Vice President Lawler for determination in accordance with the majority's reasons.
In making the above findings, the majority stressed that they did not endorse or authorise employees to use their employer’s IT system to email pornography or other unacceptable material but that each case should be assessed on its own merits and on the basis of ordinary unfair dismissal principles. The majority found:
"Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply. In the context of an application for an unfair dismissal remedy, it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters involving reliance on misconduct."
The decision clearly outlines that while employers can seek to put in place "zero tolerance" policies in respect of the access or distribution of pornographic or inappropriate content within the workplace, any action seeking to terminate an employee for breach under such a policy will be assessed against the same general unfair dismissal principles as for any other misconduct.
Accordingly, consistent with well established, fundamental principles, factors of mitigation including length of service, adequacy of warnings and notice, disproportionate treatment and any tacit acceptance of the relevant behaviour will always be factors in assessing whether a termination for misconduct was harsh, unjust or unreasonable, whatever the misconduct involved.
This article was first published in the Law Society Journal, October 2013