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Exposing a legal minefield

RECENT court decisions have examined the rights of employers in managing employees who abuse or misuse a company’s email and Internet system.

The decisions have called in to question a common misconception that employees who use their employer’s email or Internet systems to view, exchange, download or store pornographic material may be terminated, almost at will.

The decisions confirm that the normal rules governing the termination of employees apply, being:

p the employer must have a right to terminate an employee’s employment; and

p that right must be exercised fairly.

In Wilmott v Bank of Western Australia Limited, an employee had his employment terminated for keeping allegedly pornographic images on his work computer. The images were received by the employee via email but there was no suggestion that the employee had disseminated the images in any way.

It was accepted that the employee was aware that storing pornographic images on the bank’s email system could lead to the termination of his employment.

Commissioner Smith found that the termination of the employee’s employment was, in all of the circumstances, unfair because the breach of the bank’s email and Internet usage policy was trivial and did not justify dismissal.

In reaching her decision, Commissioner Smith made the following observations:

p the material was not pornographic and could best be described as “dirty jokes”;

p the bank did not have any concerns about copies of magazines such as B left in the reception area or lunch rooms that contained photographs of women in various states of undress and articles such as “My Experience with my First Vibrator”, even though it would be a breach of the email and Internet use policy to have that sort of material stored on a computer;

p there was no evidence that anyone at the bank, other than those who had investigated the incident, actually viewed the material; and

p although the bank’s Internet and email use policy made a clear statement in relation to pornographic material, there were no warnings or statements in relation to offensive or otherwise inappropriate material and nothing that provided any explanation of what the bank would have considered to be inappropriate or offensive material.

Ultimately, Commissioner Smith formed the view that the failure by Wilmott to comply with the bank’s policy did not warrant summary dismissal, although the circumstances may have justified other disciplinary action, such as a severe reprimand, a warning or demotion.

In Burrows v Commissioner of Police, a decision of the New South Wales Industrial Relations Commission, two police officers were removed from the police service in circumstances where a number of police officers were found to have received and sent what was described as highly offensive and pornographic material and to having engaged in a written dialogue (using the police service’s email system) that involved an extreme level of vulgarity.

These actions also were found to be in contravention of instructions that had been sent to the police officers.

In finding that the police officers were unfairly dismissed, Justice Boland made a number of observations:

p there was a significant delay in dealing with one of the police officers, during which time he continued to work;

p there was no proper basis for terminating the police officers’ employment when a large number of other police officers, some more senior, had engaged in similar or worse conduct but had not been removed;

p there was no evidence that people receiving the material found it offensive or unwelcome;

p the police officers’ past good conduct and performance was a factor in their favour; and

p the personal and economic consequences of removal were harsh.

In all of the circumstances Justice Boland found that the officers’ conduct was totally unacceptable but that removal from the police service was too harsh. Justice Boland also noted that in his view suspension for one month without pay was too lenient a punishment for the misconduct.

These decisions highlight the tensions between an organisation’s responsibilities under equal opportunity and discrimination legislation to protect employees and customers from pornographic material or offensive material on the one hand, and an employer’s obligations to its employees in dealing with misconduct for breach of company policies and procedures.

In managing employees, employers must consider a range of factors before taking any action against an employee who uses a company’s Internet and email system for downloading, receiving, storing or transmitting pornographic or offensive material. Relevant factors include: the nature of the material; whether the employee was aware of and understood the relevant policies and procedures; the employee’s involvement with the material; how other employees, who have been involved in similar conduct, have been dealt with;

had any employees or other people seen the material and, if so, were they offended by it or was it unwelcome.

In order to manage the conflicting obligations that may arise where employees use an employer’s Internet or email system to receive, download or store or distribute pornographic material employers, should ensure that: they have clear and well understood policies in relation to email and Internet usage; those policies are enforced and consistently applied; and clear systems are in place for managing the investigation of misconduct.

Greg Smith is a partner at Jackson McDonald and can be contacted on 9426 6849, 0409 297 835 or at gsmith@jacmac.com.au

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