Porn, Filthy Jokes and Telling your Boss he is a Wanker - Part 3

Posted on 04 March 2014

In part 2 of this blog series we spoke about the unsavoury and embarrassing case of Choice Homes dismissing a senior employee for serious misconduct for sending an offensive email about the CEO (albeit a poor attempt at humour). The dismissal occurred in circumstances where offensive and inappropriate emails were condoned and common practice in the workplace and far more serous matters had not resulted in termination.

Affect of recent cases

The Australia Post and Choice Homes cases should serve as a warning for businesses to ensure that policies and procedures are implemented, monitored and enforced clearly and consistently throughout the workplace.

Employers should be very clear on the risk they face in attempting to rely on a policy or procedure as the reasoning for dismissal where the policy/procedure:

  1. has not been properly implemented and/or adequate training provided as to it;
  2. has not been monitored routinely in terms of compliance;
  3. has not been applied/relied upon consistently

In circumstances where a business has tolerated behaviour contrary to their own policies/procedure (eg the dissemination of offensive emails or inappropriate internet use) it may be necessary to implement an "amnesty" period in which the inappropriate conduct can be phased out before any employee starts to receive discipline for the inappropriate conduct. Where the amnesty period ends and an employee or employees continue to use act contrary to the policy/procedure (eg use computers, internet and email inappropriately) despite knowing the consequences of their conduct, the employer can then take steps to discipline the employee.

However, prior to terminating employment, the employer will still need to take into consideration the employee's age, length of service, the consequences on the employee and there family, prior working record and any other relevant consideration before the decision to terminate is finalsied.

We highly recommend that employers:

  1. have up to date policies/procedures;
  2. they regularly train employees about their policies/procedures; 
  3. inform staff of the disciplinary consequences of a breach of the policy/procedures; and
  4. implement and enforce the policies/procedures consistently and fairly.

If you have any questions or concerns about workplace policies/procedures (or any workplace matter) please contact our team of specialist workplace lawyers.

Stewart Law
Employment & Litigation Solicitor
Dooley & Associates Solicitors 

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