The legal lowdown on pornography in the workplace

The rules around the downloading and viewing of pornography in the workplace are well established.

If your business:

• has relevant policies and procedures;
• had workers who have been trained in relation to the policies and procedures; and
• acts consistently in respect of each breach of the policies or procedures,

then any disciplinary action, including termination of employment, will be defensible.

The key elements in the policies and procedure are:

• you identify the IT infrastructure as the business property;
• you explain the IT infrastructure is to be used for business purposes only;
• you specifically prohibit the downloading, viewing, sharing or otherwise dissemination of pornographic materials as unacceptable; and
• you identify that such wrongful behaviour will warrant disciplinary action, up to and including, termination of employment.

However, the recent decision of Nick Rushiti v Australian Postal Corporation T/A Australia Post [2012] FWA 2850 doesn’t follow the past authority as closely.

Commissioner Ryan in the above case said:

• Mr Rushiti was the recipient of the pornography. He had not located and downloaded it himself, although he did forward it to outside contacts.
• He was a long-serving employee.
• He didn’t know he could be dismissed for sending the emails.
• No evidence was led of reputational risk by the forwarding of emails.
• It was not calculated or wilful disregard of Australia Post’s policies and procedures.

Employers may be concerned by this decision. Fellow workers should be even more concerned. The fact that someone naively sends offensive material to others doesn’t change the characteristics of the wrongdoing. It is still wrong, it is still offensive and it is patently unacceptable.

Serious misconduct doesn’t require a calculated or wilful disregard of policies and procedures. The focus is on the content of the breach, the number of times the breach occurred (and this includes viewing and condoning misbehaviour) and whether the person understood such behaviour to be a breach.

In Nick Rushiti v Australian Postal Corporation T/A Australia Post, the applicant knew it was wrong. It is unlikely this decision will be followed but it will complicate the issue.

The lessons for employers are:

• Make sure you have evidence that your workers are trained and competent in your policies and procedures.
• Make careful inquiries into the worker’s personal circumstances during the disciplinary step and canvass them with the worker.
• Deal with all workers consistently.

If you do the above, you will reduce the likelihood of your dismissed worker being reinstated.

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.