Porn at work not a sacking offence

Two workers dismissed for distribution of pornography at work have been permitted to return to their jobs, but how was the termination found to be harsh given the organisation’s “zero tolerance” policy? Last week 3AW aired discussion on the topic featuring comment from iHR Australia’s Director of Workplace Relations, John Boardman.

“I don’t think the Federal Court or the Fair Work Commission is saying the distribution of porn at work may not be a ground for termination of employment,” Mr Boardman said on 3AW’s Drive program, “it’s whether that termination was harsh in all the circumstances.”

Mr Boardman went on to explain the issue of the “zero tolerance” policy and what that means in practice: “When you say you don’t tolerate it, that doesn’t necessarily mean a person is sacked as a result of it,” he said, “It means you don’t allow it to continue.”

The case stems from a group of workers being caught sharing various inappropriate material via work email, after the company had installed a new IT filter within its system. In total forty workers were disciplined with some being dismissed as a result of their misconduct, three of the dismissed workers took their case forward to seek reinstatement. The initial decision was that only one of the three dismissals was unfair, however the unfairly dismissed worker was awarded compensation rather than reinstatement. An appeal was then launched by all three workers who sought to return to their jobs and a Fair Work Commission full bench majority overturned the decision, concluding that the dismissals were harsh in the circumstances.

This latest ruling comes as a result of the workers’ employer attempting to argue that the decision to allow them to appeal did not have sufficient basis. However, this approach was unsuccessful and the reinstatement decision stands.

As Mr Boardman highlighted, an employer’s decision to terminate should not be taken in isolation from the facts and the individual circumstances of each case. Employers should ensure that investigations into misconduct are fair and thorough, providing workplace investigation training to those undertaking investigations internally.

Organisations may wish to seek advice from HR consulting firms such as iHR Australia to help mitigate risks associated with people management and to avoid potential costly legal proceedings.

Listen to John Boardman speaking to Tom Elliott on 3AW Drive here.