Porn in the office is obviously unacceptable, offensive,
disrespectful and clearly amounts to 'sackable' conduct.
As recently confirmed by the Full Federal Court's decision
to uphold the reinstatement of two porn-lovin' posties,
indulging in a little XXX entertainment in the workplace
doesn't always amount to a sure-fire dismissal.
After installing a new email filter at one of its letter
centres, Australia Post discovered it had a bit of a porn ring in
its ranks. At least 40 employees, including supervisors and
managers, apparently thought mail sorting could use some spicing
up, so NSFW (look it up, maybe not at work though) material was
commonly shared through email. Not the discriminating types, the
employees apparently circulated material spanning an
"extraordinary range" and included "highly explicit
video files of orgiastic sexual intercourse of various types".
Commission's words, not ours.
At trial, Australia Post won easily. The dismissals were held to
be fair. But when the employees appealed to the Full Bench of the
Commission, the decision was overturned. Although the Full Bench
found the conduct was a valid reason for termination, the dismissal
of the two employees was still harsh considering:
the employees' long periods of satisfactory service;
the culture of toleration that had existed at the letter
the absence of any harm from the material given it was sent to
"willing recipients"; and
the lack of any notice regarding the installation of the filter
or a reminder of the workplace policy that prohibited the
So the Full Bench ordered reinstatement!
Next up, Australia Post appealed. But the Full Court of the
Federal Court affirmed the decision of the Full Bench. The
employees were entitled to keep their jobs.
Now this doesn't mean employees are free to spend their
breaks (or work time for that matter) perusing x-rated websites.
However, it's a good reminder that, when dismissing, the
offending conduct is only part of the story when you find yourself
down before the Fair Work Commission, and employers must have
regard to the bigger picture. For a start, make the ground rules
clear, and don't be engaging in workplace surveillance of email
and internet use without complying with notice provisions.
We do not disclaim anything about this article. We're
quite proud of it really.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).