Is looking at X-rated material in the office reason enough to dismiss employees? The issue may not be as clear-cut as you think.
Two Australia Post workers who were caught emailing pornographic material to their colleagues have won their jobs back, after the Full Federal Court upheld their reinstatement.
According to a Lexology article by Marque lawyers Amber Sharp and Wesley Rogers, the dodgy emails were discovered when Australia Post installed a new email filter in one of its letter centres.
It discovered that at least 40 employees, including managers and supervisors, were sharing the pornographic material and a number of workers were dismissed.
Three employees took the case to the Fair Work Commission, which deemed two of the dismissals fair.
One dismissal was considered harsh and the employee was awarded compensation.
The other two workers appealed to the Full Bench and the decision was overturned.
The Full Bench found that the reason for the dismissal was valid, but it was still harsh when factoring in the employees’ long periods of satisfactory service, the culture of toleration that had existed at the centre, the absence of any harm from the material since it was sent to “willing recipients” and the lack of notice of the filter being installed or a reminder of the workplace policy on such conduct.
It ordered Australia Post to reinstate the workers, but the company appealed – to no avail.
The Full Federal Court upheld the decision.
Sharp and Rogers wrote that employers “must have regard to the bigger picture” in such situations.
“For a start, make the ground rules clear, and don’t be engaging in workplace surveillance of email and internet use without complying with notice provisions.”
What action would you have taken in this situation?
According to a Lexology article by Marque lawyers Amber Sharp and Wesley Rogers, the dodgy emails were discovered when Australia Post installed a new email filter in one of its letter centres.
It discovered that at least 40 employees, including managers and supervisors, were sharing the pornographic material and a number of workers were dismissed.
Three employees took the case to the Fair Work Commission, which deemed two of the dismissals fair.
One dismissal was considered harsh and the employee was awarded compensation.
The other two workers appealed to the Full Bench and the decision was overturned.
The Full Bench found that the reason for the dismissal was valid, but it was still harsh when factoring in the employees’ long periods of satisfactory service, the culture of toleration that had existed at the centre, the absence of any harm from the material since it was sent to “willing recipients” and the lack of notice of the filter being installed or a reminder of the workplace policy on such conduct.
It ordered Australia Post to reinstate the workers, but the company appealed – to no avail.
The Full Federal Court upheld the decision.
Sharp and Rogers wrote that employers “must have regard to the bigger picture” in such situations.
“For a start, make the ground rules clear, and don’t be engaging in workplace surveillance of email and internet use without complying with notice provisions.”
What action would you have taken in this situation?
