Workplace Relations Update For Executives on the Go!

In this update we cover:

  • Storing or forwarding pornographic material in the workplace is not necessarily a sackable offence 
  • Employers need to enforce a culture that makes it very clear that inappropriate behaviour is unacceptable
  • Employees need to be warned of the consequences of inappropriate behaviour 
  • Commonsense. Does it need to be trained in the workplace?

The viewing or distribution of pornography is no doubt considered one of the more morally unacceptable forms of misconduct in any workplace.

But that does not automatically make it one of the more sackable offences. As a recent ruling in the Fair Work Commission has shown, all forms of misconduct (even the most repugnant) must be assessed equally against the same principles when disciplinary action is concerned.

The majority full bench of the Commission upheld an earlier decision that found three postal workers had been unfairly and harshly treated when they were dismissed for breaching Australia Post’s IT policy for sending pornographic images to their work colleagues.

Despite all three employees admitting sending “unacceptable” emails and the employer having a “valid reason” to consider dismissal, the Commission found Australia Post had not properly weighed the gravity of the misconduct “against the various factors that mitigate against dismissal as a proportionate (fair) response”.

The Commission found Australia Post had been harsh given it did not provide any warnings of dismissal, was inconsistent in its treatment of other staff who engaged in similar behaviour, and there had been no evidence of harm or damage from the misconduct. The length of service of the long-term employees had also not been factored in.

The Commission singled out the “culture” at the mail centre where it was found the distribution and storage of pornography on work computers was widespread among staff including some managers.

The pornographic material was discovered after the installation of a new IT filter by Australia Post. But the Commission said the “historical absence of monitoring and enforcement of policy within the [mail centre], rendered it harsh to dismiss employees … without any prior warning, for breaches of policy of a type that had been widespread and unaddressed for an extended period”.

The Commission said the circumstances of the case should not be confused with another decision by the full bench, where an employer had been found to be reasonable in its termination of an employer who accessed inappropriate material on a work computer.

Unlike Australia Post, it said the employer, Queensland Rail, had gone to great lengths to let its employees know that it would take “serious action against the inappropriate use of its electronic communications system”. This included multiple warnings from the company to staff that they would be sacked for downloading or sending pornographic material.

“It took active and sustained steps to address the problem over an extended period,’’  the Commission said about QR.

Both cases highlight the fact that employers cannot automatically assume that their staff tacitly understand what forms of behaviour will lead to punishment or dismissal.  Even if most employees know that something is wrong, they need to fully understand the consequences any breach of a company policy.

Whether it be a company car or workplace computer, employers cannot simply assume their staff know how to use them in the appropriate way. A company may have a “valid reason” to sack someone, but they need to ensure that is not outweighed by factors such their lack in clearly communicating to their staff on company policy and the potential repercussions of any misconduct.

Employers need to set up systems that support a culture that makes it clear that inappropriate behaviour is not acceptable. A workplace culture must be built on solid platform of policies, systems, training, symbols (e.g. signage), leadership and commitment.

Does this also mean that we need to train commonsense in the workplace? Well, yes.

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How can CompliSpace help?

CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times. This enables a business to meet its workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:

P: +61 (2) 9299 6105 (Sydney) / +61 (8) 9288 1826 (Perth)

E:  contactus@complispace.com.au

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This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on (02) 9299 6105 and we will be happy to assist.