Many employers adopt a "zero tolerance" to behaviours in the workplace such as sexual harassment, bullying, circulation of inappropriate material via the employer's IT system or unsafe workplace behaviour. These employers have policies in place which reflect this zero tolerance and they rigidly try to enforce these policies by dismissing any staff member found to be contravening them.
Despite the best intentions of employers to stamp out inappropriate workplace behaviours, this approach can sometimes backfire. If an employee who was dismissed for contravening a workplace policy brings a claim of unfair dismissal against their employer, a court may view the dismissal as harsh, unjust or unreasonable if the employer has simply followed their policy blindly.
The view of industrial tribunals is that employers must consider all the circumstances before deciding whether misconduct or inappropriate workplace behaviour justifies dismissal.
In this eBulletin, we discuss a recent case where the Fair Work Commission considered whether dismissals of employees for accessing, sending, receiving and storing pornographic material were unfair, and we look at the key lessons for employers from this case.
Even pornography-related dismissals can be considered unfair
The Fair Work Commission recently considered whether dismissals for accessing, sending, receiving and storing pornographic material were unfair1 (Australia Post case). The majority of the Full Bench upheld an appeal that the dismissals were unfair.2
The majority of the Full Bench found that a breach of company policy will invariably mean that there is a valid reason for termination of employment. However, despite the existence of a valid reason for the termination, it noted that a dismissal may still be "harsh, unjust or unreasonable".
In granting the appeals, the majority of the Full Bench considered that:
- the employees had long periods of employment with largely unblemished employment histories;
- a workplace culture had previously existed at Australia Post of tolerating or tacitly condoning the emailing of pornographic and other unacceptable material;
- many individuals had been involved in the behaviour, and managers and supervisors had been the recipients/sender of some of the inappropriate material; and
- there was no recent warning to the employees that the employer would treat breaches of its policies seriously to the point of dismissal.
In its investigation, Australia Post adopted a formulaic approach to whether dismissal or a warning should be the outcome. If the offensive emails were sent rather than merely received and stored then this resulted in dismissal. The extremity of the material was also effectively treated as meriting automatic dismissal.
No automatic right to dismiss an employee for misconduct
Employers should be aware that there is no automatic right to dismiss an employee involved in pornography-related misconduct. This behaviour may be the valid reason for terminating their employment, however, all the circumstances must be considered when determining whether or not termination of employment is an appropriate response.
This principle also applies to other forms of misconduct where a workplace policy has been breached. For example, fighting in the workplace would - at least on the face of things - be considered serious misconduct and would breach a zero tolerance policy against workplace violence. However, our experience shows that industrial tribunals will recognise extenuating and mitigating circumstances, such as where an employee acts in self-defence or as a result of provocation, in considering whether a dismissal for fighting is harsh, unjust or unreasonable, irrespective of the employer's policy.
Bringing your policies to the attention of employees
One of the key issues considered by the Fair Work Commission in the Australia Post case was whether Australia Post had brought its policies to the attention of its employees. The Full Bench considered the leading case on the issue of bringing company policy to the attention of employees3 (Queensland Rail case). In the Queensland Rail case, the dismissal of an employee with 27 years' service who stored and emailed pornographic and other inappropriate content was found not to be harsh, unjust or unreasonable.
In this particular case, the employer had gone to extraordinary lengths to bring its policy to the attention of its employees, including:
- the CEO issuing at least three separate email updates to employees about the appropriate use of computer systems and the consequences of inappropriate use;
- the relevant union releasing circulars to its members about the inappropriate use of computer systems and the consequences of breaching Queensland Rail's policies about this;
- introducing an "amnesty period" during which employees could remove any inappropriate material from their computers, the announcement of which included a message from the CEO stating that "I will stamp out this practice for the benefit of all employees, you have been warned - if you ignore the instructions above and inappropriate material is found on your system, it will cost you your job";
- publishing an article about appropriate computer use in a weekly newsletter and on Queensland Rail's intranet; and
- attaching a reminder notice to employees about the appropriate use of computer systems to employees' payslips.
The majority judgment in the Australia Post case cautiously noted that it did not consider the above steps to constitute any minimum requirement or yardstick for employers to follow, noting that they were indeed "extraordinary lengths". However, it criticised Australia Post for not taking any active steps whatsoever to ensure that the employees understood the serious consequences that might flow from a breach of its policies prior to terminating their employment.
Policies have to be written on hearts, not just paper
Another key issue which will carry weight for a tribunal in determining whether an employee's dismissal for misconduct is harsh, unjust or unreasonable is whether the employer failed to monitor compliance with or enforce a policy. A perceived lack of commitment by the employer to its own policies and procedures may result in a tribunal considering an employee's dismissal to be harsh, unjust or unreasonable.
It is clear that a policy can only be relied on when it is brought to the attention of employees and employees are regularly reminded of their obligations under the policy.
Key lessons for employers
- Even the best drafted policies may not be worth the paper they are written on unless they are properly monitored and enforced.
- Policies should specifically state that a breach may result in termination of employment.
- Any decision to terminate should be made on the basis of the whole of the circumstances and facts. The blind application of policy will not necessarily make the dismissal fair.
- It is important that policies are applied consistently by an employer so that different employees are not treated differently in respect of the same conduct.
- While it is not necessary to go to extraordinary lengths in reminding employees about company policies, more is required than simply having a written policy in place and providing relevant training.