A well-worn story is the one about the Canadian researchers who launched a research project on men who had never looked at pornography, but it stalled at the first hurdle – they couldn’t find any.
While it may be a common practice, a number of cases have appeared before the courts dealing with zero-tolerance on pornography on work computers. One such case involved a senior public servant in a Canberra-based government department who was dismissed for viewing pornographic images on his work computer while at home.
In Griffiths v Rose  FCA 30, an employee argued his dismissal for breaching the department’s code of conduct was unfair, namely because the software used to detect his behaviour breached his privacy, as he used his own internet connection in his own home to access the images. It was also argued that the IT policy only applied to “IT facilities” at the workplace, and not to the laptop he had been issued.
Yet the court found that the company-owned laptop was covered in the definition of ‘IT facilities’ as the word ‘facilities’ had a broad definition that could be extended to cover any piece of technology issued to carry out the job. On the issue of privacy, it was found that the information collected by the department was “obtained and used for the purpose of monitoring compliance with the Code of Conduct” and that the department had a legitimate interest in ensuring its equipment “did not come into contact with pornography”. Therefore it was irrelevant that the employee accessed the images at home, because it was still accessed on his employer’s property. As such there were legitimate concerns that the images could reappear at the workplace as a result.
The decision to dismiss the employee was reasonable because the employer had legitimate doubts about the employee’s integrity. “It may well be harsh – there will be those who think it inhumane – but that is not the requisite standard,” Justice Nye Perram said in his findings.
According to employment law experts at Justitia, there are a number of key lessons for employers:
An employer can lawfully direct an employee not to use a work computer to access material such as pornography. This direction will continue to apply even when the employee is using the computer at home and with their own internet connection.
If an employer monitors employee use of its IT equipment, steps should be taken to ensure that the monitoring software only collects information that is relevant to the kind of internet use that the employer prohibits. If the software inadvertently collects personal banking information or credit card details during periods of personal use, this may be a breach of the employee’s privacy.