A case before Fair Work Australia has deemed the treatment of three Australia Post employees who were terminated for sending adult material in work emails ‘harsh’ by the industrial tribunal.
"If we want an answer to pornography in the workplace, we have to look at the workplace culture … It is the culture in the workplace that will determine whether or not the distribution of pornography is acceptable,” Wayne Morgan, senior law lecturer at ANU college, told The Sydney Morning Herald.
However, allowing the distribution of this kind of content in the workplace due to the culture of the workplace is an unacceptable - and possibly dangerous - path to take.
“Distribution of this kind of material in the workplace is not okay and I think it is completely reasonable for employees to have policies that say it is not okay,” Lisa Croxford, special counsel, at Herbert Smith Freehills, told HC.
“I do disagree with some of the comments in the judgement, particularly this idea that some of the participants were willing participants in the exchange and that somehow lessens the seriousness of the fact that this stuff is being sent around in the workplace,” Croxford explained.
Croxford stated that it is difficult to tell that all involved were willing participants, due to the fact that people will often engage in behaviour to fit in with their peers and won’t object, regardless of how they feel about it.
“From the perspective of an equal opportunities tribunal, who might look at this in the context of a sexual harassment complaint, the fact that no one complained is not a defence for an employer to a claim of vicarious liability,” she added.
In addition to this, allowing a culture of this behaviour to exist can be disruptive for new-comers, who may feel pressured to assimilate to this culture.
“What people need to understand is we all have a different level of acceptance to this stuff – just because you think it is okay doesn’t mean someone else will,” Croxford said.
HR professionals who fear this culture may manifest in their workplace should be mindful and diligent in ensuring it doesn’t.
“If you’ve got a culture where this kind of stuff is going on then you need to have a program in place to address it,” Croxford said, adding that organisations must draw ‘lines in the sand’ to make it clear to all employees what is and isn’t acceptable.
If the culture has already spread, terminating all staff is not an option, so establishing clear boundaries to ensure it stops is crucial. To stop it from reaching this point, HR should be aware of joke emails that may allude to sexist or racist jokes.
“To a lot of other people they’ll say ‘This is just what you’ll see on TV’ but it’s not … same with some of the images that get circulated around that might have images of women who are naked and a comment underneath that makes it appear humorous. That comment doesn’t offset the fact that that material is potentially sex discrimination,” Croxford explained.
Croxford warns taking an early stance is crucial, as the longer it is left, the harder it becomes to remedy. “If you are receiving this stuff or you are copied to it and you don’t act then you will be taken to be as endorsing a culture and that will make it harder for you to act later to stamp it out.”
Have you dealt with inappropriate material circulating the workplace? How did you deal with it?