A recent decision of the Fair Work Commission (FWC) is a reminder of the importance of workplace policies when dismissing an employee for misconduct. The FWC upheld an employee's unfair dismissal application, notwithstanding that the employee admitted to using company equipment to access "hard-core" pornography.

The Facts

The employer operated a small insurance broking business in Port Macquarie and was subject to the Small Business Fair Dismissal Code (the Code). The employee, Mr Croft, was employed in the position of general insurance manager.

Mr Croft had been employed for just over 12 months when the employer sought to terminate his employment. At the time of the dismissal, the employer allegedly considered that Mr Croft was a poor performer and that his conduct was inappropriate by causing conflict with the director. The employer also alleged that it had given Mr Croft verbal warnings about his performance and conduct.

However, in effecting the dismissal, the employer directed Mr Croft to attend a meeting without indicating the purpose of the meeting or offering him to bring a support person. Furthermore, the employer did not advise Mr Croft of the reason for dismissal at that time, but simply stated that it was relying on the 'termination with 4 weeks' notice' clause in the employment contract. This meant the employer did not have a valid reason for dismissal relating to capacity or conduct, as required under the Code.

The Law

The employer mistakenly believed that a contractual right to terminate Mr Croft's employment existed and did not take the Code into account.

Under the Code, an employer is required to give an employee a reason why they are at risk of being dismissed based on the employee's conduct or capacity to do their job. The Code also states that the employee must be warned verbally, or preferably in writing, that they risk dismissal if there is no improvement in their behaviour or performance.

Employers may be able to rely on new information that comes to light after the dismissal to justify the original dismissal (i.e. showing that it was not 'harsh, unjust or unreasonable'). Following the dismissal, the employer discovered that Mr Croft had used a company mobile phone and computer to access pornographic material. Mr Croft admitted to downloading and storing the material, including videos of himself performing sexual acts, which he had also stored on the work computer.

During the hearing, Mr Croft admitted to downloading the material but claimed that the material was downloaded during lunch breaks and possibly while he was "walking the streets", and therefore was not during work hours.

The Decision

Commissioner Ian Cambridge agreed that the bringing of graphic pornographic material into the workplace would ordinarily constitute grounds for summary dismissal. The Commissioner further stated: "Particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/ or storing hard-core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work".

Mr Croft's employer had no such policy stating that use of its equipment should be strictly confined to work-related activities. Accordingly, in the absence of any valid reason (the employer also argued performance issues as a valid reason, which the FWC did not accept), the dismissal was found to be harsh, unjust and unreasonable.

Mr Croft was unemployed for a period of 17 weeks and obtained alternative employment following that period, albeit at less remuneration. Commissioner Cambridge did not factor Mr Croft's misconduct into an award of compensation, which he assessed to be $10,000 based on 8 weeks' pay.

Lessons for Employers

Never underestimate the importance of a well-drafted policy that addresses expectations regarding an employee's conduct. Your workplace policies should cover various forms of unacceptable workplace behaviour and conduct, including:

  • unlawful bullying;
  • anti-discrimination and unlawful sexual harassment;
  • risks to health and safety;
  • social media use; and
  • company equipment, technology and internet use.

Important

You should take steps to ensure your employees are aware of and understand each of the policies. This is usually through compliance training or workshops and seminars.

Ensure that your policies are being actively monitored and enforced. One of the issues in this case was that there was some evidence that directors of the employer may have also participated in accessing, downloading and disseminating pornographic material. If policies are applied inconsistently, there may be some difficulty relying on the terms of the policy as the basis for the dismissal.

* A version of this article was originally published in Employment Law Adviser. This article is © 2016 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

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