Pornography, Email and Unfair Dismissal: Flanagan and others v Thales Australia Limited

The there applicants in Flanagan and others v Thales Australia Limited T/A Thales Australia [2012] FWA 6291 (7 September 2012) were all production workers who were where dismissed for inappropriate email usage. The applicants terminations were later confirmed in writing by letter stating that in accordance with the “Thales Australian Behaviour and Performance Improvement Policy and Guidelines” their employment was terminated. The termination letter stated that the applicants had acted in contravention of the terms contained in the Thales policies and procedures relating to: Australian Appropriate Workplace Behaviour Policy and Framework; Australian Internet and Email Security Framework; and the Code of Conduct.

Specifically the conduct relied upon by the respondent to justify the dismissal of the applicants was described as “you used your Company issued computer to access inappropriate material”. Later the applicants were informed in the written correspondence from Thales confirming their termination of employment that their explanations were also considered “unsatisfactory”. It was not disputed that the applicants were persons protected from unfair dismissal pursuant to the Fair Work Act 2009.

The key question for determination was whether the terminations of employment were unfair within the meaning of the Act s 385(b) namely, were the Applicants terminated in circumstances which were harsh, unjust or unreasonable?

Commissioner Bull found the employees' misuse of email where a valid reason for dismissal but further found that various other factors meant the dismissals were harsh, unjust or unreasonable. He found the applicants were not given a period to digest the allegations against them or to seek advice and respond in a "more informed manner". The respondent also failed to explain the lapse of time between an investigation into email misuse that finished in September 2011 and the employees' dismissal in February 2012. The Commissioner further noted that no evidence was produced that the employees were trained in relation to the internet and email security framework and the respondent had not considered the consequences of the dismissal on the employees, who lived in the region and failed to get equivalent work elsewhere. Over all, the Commissioner concluded "no particular matter alone" resulted in his findings. Rather the combination of circumstances and deficiencies in the process undertaken by the employer.

The Commissioner ordered that the employees be reinstated to their positions and that their misconduct meant no compensation was awarded for the time they were out of work.

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