TWO employees initially dismissed for circulating pornography to colleagues will keep their positions after the Federal Court upheld a decision ruling the behaviour was not an automatically sackable offence.

The 2010 incident saw Australia Post discipline a group of 40 employees after a software upgrade revealed widespread distribution of pornographic material across employee e-mails.

Three of the organisation’s Dandenong Letter Centre employees, who had each been terminated following the incident, lodged unfair dismissal applications to the Fair Work Commission.

At first instance, Commissioner Lewin ruled two of the terminations to be neither harsh, unjust nor unreasonable, but in the instance of the third dismissal, which he ruled to be unfair, he made an order for compensation rather than reinstatement.

Each of the workers was granted leave to appeal the decisions before a Full Bench of the Fair Work Commission, comprising President Lawler, Senior Deputy President Hamberger and Commissioner Cribb.

In their decision, the Full Bench majority – President Lawler and Commissioner Cribb – warned that the distribution of pornographic material in the workplace was not an automatically terminable offence.

“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,” they said.

“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.”

In particular, the Full Bench said that an appeal was ‘a matter of public interest’ in order to rectify the assumption that termination is the inevitable result of such misconduct, as was the case in Queensland Rail v Wake.

Despite agreeing termination was not unfair, the Full Bench majority ruled the action to be harsh, leading to an order of reinstatement for all three employees.

In the most recent appeal filed by Australia Post to a Full Bench of the Federal Court of Australia, the employer argued the Fair Work Commission had erred in allowing the appeal on grounds of public interest, concluding from a review of precedent cases that:

“…in some cases it was found that the termination of an applicant who had accessed, sent, received or stored pornography was harsh, unjust or unreasonable. In others, the applicant was unsuccessful.

“There are no decisions, let alone a trend of decisions, of the kind that the majority of the Full Bench relied upon in finding that it was in the public interest to grant permission to appeal in this case.”

However, Justices Besanko, Jessup and Bromberg upheld the decision of the Fair Work Commission for two of the employees, but said the Commission lacked jurisdiction to hear the appeal of the third worker who had first been award compensation in place of reinstatement.

“In the short public interest reasons for the majority, I cannot find anything which makes sense in the setting of an otherwise successful employee who appeals against a refusal to order reinstatement,” the judges said.

“The majority simply did not deal with the public interest requirement in [Mr B’s] appeal. It follows that the Full Bench did not have jurisdiction to hear that appeal on its merits.”

The Federal Court ordered a judicial review of the third employee’s appeal, but otherwise dismissed Australia’s Post’s appeal.

To read the full decision, click here.

Implications for Employers

The dispute between Australia Post and its three former employees has become a relatively high profile issue, particularly as it demonstrates inconsistency across decisions handed down by the Fair Work Commission.

This is emphasised by the legal representative acting on behalf of Australia Post, who conducted an electronic search of similar cases dating back to 2000, finding that where the distribution of pornographic material was involved, unfair dismissal applications were both successful and unsuccessful.

As the national resource employer group, AREEA has long advocated the establishment of a specialist independent appeals bench to better manage inconsistent decisions as in the case of Australia Post.

“The commission must send clear and consistent messages to employers about how to comply with Australia’s employment laws and treat people correctly in the workplace.
AREEA executive director Scott Barklamb said.

“A new and judicially superior appeals body could resolve inconsistencies, not only for the parties directly concerned, but for future employers, employees and organisations who at the moment are understandably confused as to which precedent applies.”

Though acknowledging that inconsistent decisions complicate compliance measures, AREEA members are encouraged to establish clear and communicated policies about misconduct in their respective workplaces.

Ensuring all workers are aware of possible disciplinary action will not only act as a deterrent against potential infringements, but will also reduce the likelihood of disputation if such policies are breached.

While AREEA will continue to work with the federal government to balance Fair Work inconsistencies, AREEA’s workforce experts can provide legal advice and information about matters relating to workplace policies, disciplinary action and termination. Contact your local AREEA office for more information.