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' policy.

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 distinction

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 core.

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 email accounts.

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 nonsense.'

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.

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