Last week the Fair Work Commission awarded a man $10,000
compensation for unfair dismissal even though he admitted to
downloading hard core porn onto his work computer and mobile
In Allan Croft v Smarter Insurance Brokers Pty Ltd  FWC
6859 the employee's problematic conduct included not only
downloading and storing hard core porn (including images and video
of himself performing sex acts) on work equipment but also
increasing interpersonal friction with the Directors, late arrival
for work and extended lunch breaks. The misconduct would seem on
the face of it to be well and truly serious enough to warrant
dismissal, however the Commission found the dismissal was
Pornography at Work
The Commissioner found that although downloading hard core porn
onto work equipment (either during or after work hours) would
ordinarily amount to misconduct warranting the discipline or
dismissal of any worker (except those working in the sex industry),
he found that in this case it did not represent a valid reason for
The employer had not communicated any policy about the use of
its equipment being confined to work-related activities,
(Embarrassingly) there was some contested evidence that the
Directors may have also participated in accessing, downloading and
disseminating pornographic material in the workplace, and
The employee had only downloaded porn on three occasions.
Bad Legal Advice
The small business employer – Ausure Smarter Insurance
Brokers in Newcastle - sacked the employee on-the-spot and without
specifying any particular misconduct it took issue with. The
employee was simply told that his services were no longer required.
The employers believed that if they paid the employee four weeks
salary in lieu of notice (in accordance with the termination clause
in the employment contract) it was unnecessary to outline any
specific allegations, warn the employee that his employment was at
risk, allow him a support person or provide the employee with an
opportunity to respond. Worse still it seems the employers held
this belief due to legal advice they obtained.
Ausure received legal advice which Commissioner Cambridge
described as "unfortunate", "manifestly
erroneous", "severely flawed" and
"fundamentally misconceived". The Commissioner awarded
the $10,000 of compensation notwithstanding that he also found that
the employee's conduct and performance over 14 months of
employment as an insurance broker with Ausure meant that the
employee "was likely to have been dismissed upon proper
basis... if the employer had obtained and acted upon sound
employment law advice."
Tips for Employers
Make a policy about what is acceptable use of work equipment
that everyone (including directors) is required to adhere to.
Promptly raise conduct concerns and document all warnings
Provide opportunities for employees to improve their conduct
and respond to allegations.
Do not predetermine the outcome of a dismissal meeting.
You always need a valid reason for dismissal.
Use only trusted and professional lawyers.
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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