Employment: compromising emails… are they grounds for termination?

An article published in The Courier-Mail revealed how the Fair Work Commission made a ruling that Australia Post was found to have unfairly terminated the employment of 3 of their workers who had emailed porn around the Dandedong Letter Centre.

David Grant, an experienced employment lawyer and member of the commercial litigation team at Quinn & Scattini, explains the circumstances of the dispute and the ruling.

"The matter arose following the distribution by three employees of pornographic emails to other co-workers.

Importantly, it was found that this action did not automatically justify sacking the employees involved.  The Commission said that not only was there a culture at this particular Australia Post centre but Australia Post did not take into account other relevant factors and had not given adequate warnings to staff concerning this behaviour.

The ruling is interesting because more and more employers are terminating employees for accessing, sending, receiving and/or storing pornographic material.  Many employers classify this behaviour as a form of serious misconduct invariably meriting termination of an employee.  But emailing pornography does not automatically amount to "serious misconduct" which would justify a termination that may otherwise be found to be harsh, unjust or unreasonable - a range of other factors must be taken into account.

I believe this finding is also significant for employers who face a culture of employees who use social media during work hours and/or who might send material to others which might be considered as culturally, or for other reasons, offensive.

Employers have a legitimate interest in eliminating this type of behaviour, which, if not dealt with, can lead to offence or distress of other employees or allegations of sexual harassment.  It is important that employers obtain legal advice on how to address all such behaviour strategically in their employee agreements, procedures and HR policies, and to deal with such behaviour effectively when it arises.

In the Australia Post case, it was a failure by the employer to not address the culture of pornographic distribution at the centre which, to a large extent, caused the ruling in favour of the three employees."

Any employer looking to terminate an employment agreement should obtain legal advice before proceeding, otherwise failing to do so might increase the exposure of the company to unfair dismissal and other compensation claims.