Downloading adult content at work: a cut and dried example of misconduct?

A recent ruling by the Fair Work Commission that involved an employee downloading pornography at the office, has illustrated how important it is to develop a clear workplace code of conduct. It must clearly stipulate the precise terms of inappropriate employee conduct – otherwise, simple oversight or presumption may lead to an expensive surprise in court.
 
This was the case for one small insurance broking business, who had an employee download inappropriate material on company equipment. In January this year, the former employee was successfully awarded compensation after the commissioner deliberating the case found that he had been unfairly dismissed. The finding was made after the Fair Work Commissioner found that the oversights made at the time of the dismissal rendered the termination invalid, according to the terms stated by the Small Business Fair Dismissal Code.
 
First of all, the employer merely directed the employee to attend a meeting without indicating its purpose, nor suggesting he bring with him professional support. Furthermore, the employee was not advised during the meeting of the reasons for his dismissal. Instead the employer simply stated that it was relying on the ‘termination with four week’s notice’ clause in the employment contract.
 
When the case was brought before the Fair Work Commission, the commissioner pointed out that the employer was in contravention of the Dismissal Code for neither indicating the reason for the meeting, nor providing a valid reason for dismissal.
In spite of the absence of a reason for the termination at the time, the Fair Work Commission does allow employers to present new information that comes to light to justify the original dismissal. The employer pointed out that they had subsequently discovered that employee was found to be using a company mobile phone and computer to download and store pornographic material.

However, despite the inappropriate nature of the man’s behaviour, the business did not have a policy stating that company equipment must be kept for work-related activities ¬– therefore, the man had not broken any rules and thereby there were no valid grounds for dismissal.
The Fair Work Commissioner agreed that such an act would ordinarily be grounds for termination of contract, however in this instance he found that the conduct was not in breach of any workplace policies.

As this case illustrates, when drawing up a workplace code of conduct and employment agreement, the precise terms of employee conduct must clearly stipulated.
 
As an employer, you might assume that inappropriate use of company equipment is immediate grounds for dismissal, but this may not hold up in court if you do not outline the consequences for such behaviour in your workplace policies. To ensure that your company is fully informed as to the rights and responsibilities of employers and employees, and that your workplace contracts and codes of conduct are free of faults or oversights, it may be necessary to access some outside advice.

iHR Australia’s Employee Relations 101 training program provides a broad introduction to relevant workplace legislation, and associated practices and guiding principles in relation to staff management. This workshop provides participants with comprehensive instruction in all aspects of workplace relations, including the industrial relations landscape, the role of the Fair Work Commission, and lawfully managing employee termination.