Pornographic Email is a Reason for Dismissal
Wednesday 12 February 2014 @ 1.23 p.m. | Industrial Law
The Fair Work Commission has ruled that an employee’s dismissal for harbouring pornographic emails was not harsh, unjust or unreasonable.
The employee in question, Mr Thanh Vu, was found in possession of an email inferring cannibalism, images of bestiality and sexually explicit prose, after an investigation into his email activity. As a result, he was dismissed from his work with the Government Office. Mr Vu claimed his dismissal to be unfair given that the material was emailed to him by friends and he either saved it to his computer or sent it to his home address to read later on. The Commission found no allegation that Mr Vu had downloaded the content while surfing the net or that he had distributed the material.
Mr Vu concedes that he had breached the ATO’s Code of Conduct by saving and forwarding the emailed material to himself. However, he points to his lengthy employment with the office and his meritorious achievements throughout the years. The Commission however found that Mr Vu had been in breach of IT policy previously and should have been aware of the seriousness of the matter. The Commission described his actions as a flagrant breach of workplace rules and that he had not been unjustly dismissed.
However, in a related Fair Work Commission Decision of B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWC 9293, it was held that the dismissal of three employees was harsh even though the employees had distributed, stored and accessed pornography on Australia Post’s IT systems.
Australia Post argued that there had been a loss of trust and confidence in the three employees. As to whether there had been a loss of trust and confidence significant enough to make reinstatement inappropriate, VP Lawler noted that the evidence provided by Australia Post’s witness (who was the Head of the relevant department where the employees would be reinstated) was that it was “extremely unlikely” that any of the employees would repeat the conduct.
It seems that the question of whether an employee would repeat the misconduct in question will be relevant in determining whether the trust and confidence has been truly destroyed and should be explored before a decision to dismiss an employee is made.
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