Porn, Filthy Jokes and Telling your Boss he is a Wanker - Part 1

Posted on 25 February 2014

Now that we have your attention, we thought it would be an opportune time to talk about several recent rulings of the Fair Work Commission that deal with all of these very things over our 3 part blog series!

In the last six (6) months there have been a number of cases that should have Employer's concerned about the implementation and enforcement of workplace policies regarding inappropriate use of internet, email and social media in the workplace. In this blog, we analyse two (2) significant cases where the FWC ruled the termination of an employee was unfair due to a culture of inappropriate internet, email and social media use within the employer.

B, C and D v Australia Postal Corporation T/A Australia Post

On 28 August 2013, the FWC ruled that a mere breach of a computer, email and internet use policy would not always justify the termination of an employee. In the highly publicised case of B, C and D v Australia Postal Corporation T/A Australia Post the FWC considered the termination of three (3) employees by Australia Post due to their use and distribution of pornography by email to work colleagues. While many employees were disciplined over the incident only B, C and D were dismissed by the company.

In a two (2) to one (1) ruling in favour of the employees the FWC decided that their termination was unfair unjust and harsh. The reasons sighted by the majority of the FWC for their decision including the following factors:

  • the dismissal put the employees and their family at risk of significant personal and economic hardship;
  • the employees had good disciplinary records and were long serving employees, each with more than 10 years service with Australia Post;
  • the emails did not result in harm or damage, in fact the emails were sent to friends and caused no offence;
  • a culture of passive participation (including senior management) and a large volume of pornographic emails had been circulating undetected around the workplace for an extended period of time with no adverse consequences for the employees involved;
  • Australia Post did not do anything in particular to bring home to employees that a breach of its policy would result in dismissal.

Due to the above reasons, and Australia Post's failure to monitor employees’ inappropriate behaviour and enforce their internet, email and computer policy consistently, the FWC recommended that the employees be reinstated to their previous positions as well as 25% of their back pay (B - $30,083, C - $12,096 and D - $25,442), which provided for a 75% reduction in total earnings due to the fact misconduct in the workplace had occurred, for the 35 month period since the termination occurred.

Stewart Law
Employment & Litigation Solicitor
Dooley & Associates Solicitors 

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