Emailing porn need not lead to dismissal: Australia ruling

Emailing porn need not lead to dismissal: Australia ruling

Emailing pornography on work addresses should not automatically be considered a sackable offence, an Australian workplace tribunal has ruled.

The Fair Work Commission made the decision after considering a case in which three postal workers were fired after it was found they used work email addresses to send or distribute sexually explicit material.

The commission said the terminations of the workers — all of whom were long-standing employees of Australia Post — were too harsh, it confirmed on Wednesday.

In its decision it said there was “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 that invariably merits termination”.

“Such a proposition is inconsistent with basic principle,” it ruled.

“Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply.”

The case was picked up when Australia Post used email filtering technology to flag emails with attachments which could be pornographic.

The commission said the filtering system had picked up a large volume of pornographic emails that had been sent by many employees over an extended period and there was evidence that management had not responded.

It said that “weighing the seriousness of the misconduct against the factors mitigating against dismissal, we conclude that the misconduct did not warrant dismissal and that in each case the dismissal was harsh”.

The commission stressed it did not want its reasons to be misinterpreted.

“We are not endorsing or authorising employees to use their employer’s IT system to email pornography or other unacceptable material,” it said.

“We endorse the right of employers to have policies against the use of their IT systems to access, store or email pornography or other unacceptable material.

“We endorse the right of employers to regard compliance with such polices as a serious matter.”

But the Australian Chamber of Commerce and Industry’s Daniel Mammone said the ruling showed that unfair dismissal laws were too complex.

“The message that the business community has been trying to send is to say that it will have a zero tolerance approach to these kinds of misconduct, such as sexual harassment or pornography in the workplaces,” he told the ABC.

“All of that good work and good will over the recent years is somewhat undermined by these types of decisions, which do send the wrong messages.”

The case of the workers will go before the commission again later this month to resolve restitution.


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