Fair Work Australia has upheld Dairy Farmers' dismissal of
seven employees who were found to be trafficking inappropriate
emails in the workplace in breach of company policy.
In January 2010, 15 employees and six contractors engaged at the
Wetherill Park site of Dairy Farmers Pty Limited either resigned or
were dismissed from their employment following an investigation
into the receipt, storage and distribution of inappropriate
materials via email.
Seven of these employees challenged their dismissals. Four
admitted sending some inappropriate emails, including some
pornography, while three denied sending any inappropriate material
at all. The company claimed that the dismissals were valid, as each
dismissed employee had breached three or four company policies on
multiple occasions. These policies included the 'Good Working
Relations' policy, the 'Code of Business Conduct'
policy, the 'Diversity EEO' Policy and the 'E-mail'
Following the dismissal of three employees for similar offences
in 2006, the company had emailed all workers and advised them that
information sessions would be available and employees would be
required to sign an agreement indicating they understood and would
adhere to Dairy Farmers' e-mail and internet policy. Six of the
seven applicants received this email and all applicants were
trained in the relevant policies.
Employer is within its rights to make hard core / soft core
The investigation conducted established a number of categories
by which to determine the extent and seriousness of potential
breaches of the Company's policies. These categories were:
(a) Hard-Core Pornography
(b) Soft-Core Pornography
(c) Otherwise offensive or racist content.
Consideration was also given as to whether emails had been
received, sent or stored. The company considered that the sending
of hard-core pornographic emails constituted the most serious
breach of Company policies.
The employees argued that the distinctions drawn for the purpose
of the categories, were not accurate representation of whether the
content was appropriate or not. Dairy Farmers argued that it was
necessary for at least some distinctions to be drawn to ensure that
'not all employees, with varying degrees of culpability'
were treated in the same way.
Deputy President Sams conceded that the tribunal 'is not an
arbiter of bad taste or what is, or is not, pornographic and
therefore inappropriate.' But he did say that the employer had
acted entirely appropriately, lawfully and unambiguously in
adopting the Commonwealth Censor's definitions of hard and soft
Improper training is not an excuse
Deputy President Sams rejected the employee's arguments that
proper training in the use of the company's email system had
failed to be provided.
Only one of the employees argued that he did not know how to
access or distribute emails sent to him and that he asked others
for help when he needed to send an e-mail. There was no sound
evidence that the remaining employees did not know how to use their
Deputy President Sams held that the very requirements of the job
made it 'inherently incomprehensible', that the employees
did not know how to use their e-mail account. Further, he said that
'for any employee to argue that they require training not to
send or access email pornography at the workplace is disingenuous
Culture is not an excuse
The employees also tried to argue that the existing culture at
the workplace was such that offensive material was regularly
circulated by employees, including supervisors. The Deputy
President held that, given the three dismissals in 2006, the
Managing Director's 2006 warning, three training sessions and
the availability of the
Company's policies on the intranet system, it could hardly
be argued that the behaviour was a 'culture' condoned by
management. This case is a timely reminder that workplace policy on
e-mail protocol and the internet is essential for employers, in
protecting the workplace from the distribution of inappropriate
e-mails. If you are concerned about any aspect of your email
policies, please do not hesitate to contact us.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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