Lewd office emails not automatic sacking offence
Three workers at Australia Post were caught sending lewd email messages to each other. They were fired on the spot.
They took their case of unfair dismissal to the Fair Work Commission arguing they had worked for the company for more than a decade, and were among 40 other employees disciplined at the same time.
The Commission found there had been an extraordinary amount of inappropriate emails being sent around the Letter Centre in Victoria.
Even though it was against the company policy to send pornography via a staff email account, the three workers argued they hadn’t been pulled up earlier for the breaches which had gone on for some time.
The three argued the company was also at fault as it had not intervened earlier. It had only acted when a new software filter was installed that detected the improper email traffic.
In a surprising two to one majority decision, the Fair Work Commission ruled in favour of the three employees and said sending lewd emails was not an automatic sacking offence. The sacking still has to be ‘fair’.
“There is an emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing of pornography by an employee as a form of serious misconduct that invariably merits termination of employment,” the decision stated.
“Such a proposition is inconsistent with basic principle. Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply.”
The Commission ruled the employer had failed to take “active steps” to warn staff they could be sacked for a breach of company policy on email use.
The decision by the Commission could have enormous impact for other cases of its type, said employment law specialist Kym Luke of Stacks Law Firm.
“The ruling means that company policies on matters such as what is permitted to be sent through the office email system not only have to be clearly spelled out to staff, but also enforced consistently.”
The ruling demonstrates sending lewd emails does not automatically mean a company has the right to sack an offending employee. The Fair Work Commission clarified that sending porn at work is not a special type of misconduct that’s outside the ordinary principles of unfair dismissal law.
“The Commission has effectively said that before employers fire someone for breaching company regulations, they need to consider how serious the offence really was. If others are doing it at the workplace, why should just one or two be fired? The dismissal still has to be fair.”