Most employers would consider e-mailing porn to be a sacking offence, but Fair Work (FWC) has ordered reinstatement for a group of workers who did just that. The employees had circulated (mainly) soft porn among themselves, but their employer argued its policy was clear, and dismissed the employees.
The employees argued this penalty was a bit stiff, but failed to convince FWC at the first hearing. In a split decision on appeal, a full bench of FWC has come out in favour of the employees, saying that just because it involved porn did not mean it was automatically so serious as to justify dismissal.
The employer presented evidence indicating it had advised employees of its expectations and the consequences. The employees however were able to show inconsistencies and neglect in the monitoring of observance of the policies. Further, some managers or supervisors had been effectively involved in similar behaviour and this tended to undermine the employer’s argument that it did not condone or tolerate abuses of the policy.
Importantly, the FWC said this:
“There is an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing pornography by an employee as a form of serious misconduct that invariably merits termination of employment. 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. In the context of an application for an unfair dismissal remedy, it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters involving reliance on misconduct.”
This means that employer’s should not automatically reach for the firing gun when this problem arises, the merit of the case holds true regardless of the nature of the offence. On the other hand, if the employer develops policies but never really behaves in a way consistent with commitment to those policies, it cannot expect and get the support of FWC.