Sending pornography at work is not grounds for instant dismissal, Fair Work Commission rules

The Fair Work Commission has now ruled that sending pornographic emails at work is not grounds for an instant or summary dismissal.

In a groundbreaking case, which involves workers employed by Australia Post, a clear message has been sent to employers who are often confused about what behaviour the Fair Work system will allow as grounds for an instant sacking.

The case has serious ramifications for businesses of all types – the Commission has specifically cited this as a test case, citing the number of cases involving pornography as an “emerging trend”.

“This case removes from the summary dismissal category the sending of pornographic emails,” says TressCox Lawyers partner Rachel Drew.

In this particular case, three employees admitted sending pornographic emails either from their work email addresses, or from a private account to Australia Post email accounts.

But there were several problems with the case.

While the Fair Work Commission said it was reasonable for a company to restrict access to pornographic material at work, it also found there had been a culture of tolerating this type of material in the past at this particular workplace.

“At least within the DLC, Australia Post did not take steps to monitor compliance with the relevant policies or enforce them,” it found.

Given the employees were long-standing, had only sent the material to willing participants and there was no risk of damaging Australia Post’s reputation, the FWC said this only amounted to misconduct – not something that could warrant an instant termination.

“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.

And given this material was sent frequently, without warning, this meant an instant dismissal could be less warranted.

“There was no evidence that any of the Appellants (or any other employee involved in the sending and receipt of such emails) had sent such material to employees recklessly.

“There was no evidence that any such material had accidentally been viewed by other employees, let alone in a way that caused offence so as to activate the legal liability risk that is the primary justification of the policy.”

Rachel Drew says the case is a clear warning for other businesses – having a policy isn’t enough. It needs to be enforced.

“The case concerns the high water mark in terms of the best practice for employers in this area, and it concerns making sure you’re always reviewing your policies, and making sure your policies are clear.

“If you’re in an industry which tolerates this type of conduct, making sure it’s regularly alerted to employees is crucial. This is what’s required of you.”

The concept of summary dismissal has been confusing for some employers. Fair Work says employers can instantly dismiss an employee when the conduct is “sufficiently serious to justify immediate dismissal”.

Such vague language means businesses can be confused about what warrants an instant dismissal.

In the case, the Fair Work Commission noted there had been an emerging trend of cases involving an employee sending or receiving pornography, where such conduct was used as grounds for instant dismissal.

“Such a proposition is inconsistent with basic principle. Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply.”

This case serves as an example for others, the FWC said.