Australia Post employees who sent porn at work reinstated by Fair Work Commission with back pay

Three Australia Post employees fired in 2010 for sending pornography at work have been reinstated by the Fair Work Commission.

The ruling, delivered on Monday, follows an earlier ruling in September that found they had been unfairly dismissed from their positions. That ruling centred on the finding that even though they had breached Australia Post’s IT policy, the workplace had experienced a culture of tolerating such behaviour in the past.

“At least within the DLC [Dandenong Letter Centre], Australia Post did not take steps to monitor compliance with the relevant policies or enforce them,” the Fair Work Commission found.

“In particular, the culture that existed at the DLC, and the historical absence of monitoring and enforcement of policy within the DLC, rendered it harsh to dismiss employees such as the appellants, without any prior warning, for breaches of policy of a type that had been widespread and unaddressed for an extended period,” it found.

The FWC also said emailing pornography to a friend or willing recipient is “objectively a less serious breach of policy” than emailing that material to an unwilling recipient in order to harass them.

On Monday, the Commission returned to the case to decide what to do with the three employees.

It decided upon reinstatement, with Fair Work Commission vice president Michael Lawler saying he thought not reinstating the employees would be inappropriate.

“I am not persuaded that the existence of a recruitment freeze and the present staffing situation at the Dandenong Letter Centre should prevent reinstatement of the employees.

“I am not persuaded that the additional emails discovered in relation to one of the [workers] after the decision to terminate changes the analysis in relation to that [worker].”

Australia Post had argued it would be inappropriate to reinstate the employees, as it had lost trust and confidence in them, but the manager of the three employees gave evidence saying he believed it extremely unlikely the three would bring porn to work again. 

Because of their misconduct, the Fair Work Commission ruled that the three should not receive the bulk of their back-pay. Instead of the tens of thousands of dollars they would have received for close to three years’ work, the Commission ruled they should lose 75%.

“There must be a substantial discount for misconduct for each,” Lawler said.

“I consider that a discount of 75% on the calculated loss is appropriate to reflect both the misconduct and the inappropriateness, in the peculiar circumstances of this case, of holding Australia Post liable for the whole of the very long period that the course of the unfair dismissal applications have taken thus far.”

Being awarded only 25% of their back pay would result in the workers each respectively being paid $30,083, $12,096 and $25,442.

Australia Post has challenged the ruling in the Federal Court.