Pornography At Australia Post Not Grounds for Dismissal: Decision Upheld By Federal Court
Tuesday 19 August 2014 @ 11.25 a.m. | Industrial Law
The Full Federal Court has upheld a decision by the Full Bench of the Fair Work Commission to reinstate two Australia Post employees who were found to have emailed various kinds of pornography from their work email addresses in Australian Postal Corporation v D'Rozario [2014] FCAFC 89.
The Full Federal Court found that there was no appellable error in the Fair Work Commission decision in relation to those two employees. However, their Honours did conclude that the Full Bench failed consider whether it was in the public interest to grant permission to appeal in the case of a third employee, who did not have a work email address but sent pornographic material to groups including work friends.
Background
Australia Post installed a new software filter on their email system. In the process, they discovered that a large number of their employees had been sending emails containing pornographic material which breached their work policies. Although a comprehensive search was not conducted, a disciplinary process was started in relation to at least 40 employees, some of whom were terminated. Several of those people then appealed to the Fair Work Commission on the basis that their dismissal was harsh, unjust or unreasonable. At first instance, the Commissioner dismissed the application of the first two employees, but did uphold the complaint of the third employee, and ordered compensation (dismissing reinstatement). The first two employees then appealed to the Full Bench. The third employee appealed to the Full Bench against the dismissal of reinstatement as an option and Australia Post cross-appealed against the decision in respect of the third employee.
The Full Bench of the Fair Work Commission
The Full Bench split 2-1 on their decision to allow the appeals. Vice President Lawler and Commissioner Cribb allowed the appeals on public interest grounds, and decided that the Commissioner had not taken into account several factors including inconsistent treatment of the employees involved, the absence of notification as to the new filter or any warning of dismissals, and a “culture of tacit acceptance or condonation” [at 88 of the FWCFB decision]. They also allowed the employee’s appeal and decided that reinstatement could be appropriate in all three cases.
The Full Federal Court Decision
Australia Post appealed to the Federal Court in the basis that there was no evidence to support the decision of the Fair Work Commission to grant permission to appeal in the public interest. The argument centred around a statement in the opening paragraphs of the FWC decision by Vice President Lawler and Commissioner Cribb:
“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. 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...
We are satisfied that the emerging prominence of dismissals based on pornography related breaches of employer policy, and a concern that the decision of the Full Bench in Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is being misinterpreted, supplies the public interest required for grant leave to appeal in this case. [at 3-4 of the FWCFB decision]”
The Federal Court heard that there was in fact no such emerging trend, and that no cases were cited in the Full Bench’s reasoning, or could be found by electronic search, that seemed to indicate such a trend. However, the Federal Court concluded that this did not amount to a jurisdictional error, and as Jessup J noted [at 77]:
“So long as there was some evidence – understood in the Commission as including factual material asserted in oral submissions – the majority was entitled to rely on it, even if doing so was factually erroneous. Such an error would have been made within jurisdiction.”
However, the Federal Court noted that in relation to the third employee, “consideration of the public interest arising on [this particular] appeal seemed to have “[fallen] through the cracks”” [at 86]. They concluded that this was clearly a jurisdictional error, as there was nothing in the Full Board’s judgment to indicate that they had considered this matter separately. The Federal Court quashed the part of the decision that related to the third employee’s appeal.
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Sources:
Australian Postal Corporation v D'Rozario [2014] FCAFC 89 (23 July 2014)
B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 (28 August 2013)
