Employees sacked for emailing porn, reinstated.
“Zero Tolerance” is not always the solution as Australia Post found out this week.
On Wednesday the Federal court upheld the Fair Work Commission’s rejection of Australia Post’s “zero tolerance” approach to sending sexually explicit material at work.
It agreed that the workers had been unfairly dismissed. The two Australia Post workers were fired for sending porn on staff email accounts in 2010. However, they will keep their jobs after an appeal was dismissed.
The employees claimed a culture had arisen in which there was an extraordinary amount of inappropriate email traffic involving a large number of employees, which occurred over an extended period of time. It was claimed that Managers were aware of it and in some cases participated in it and did not take action to enforce the policy … but then all of a sudden they were dismissed without warning for something that had been tolerated.”
The Tribunal ruled that Australia Post should have considered the workers length of service (between 11 and 17 years) before deciding to sack them.
Vice President Michael Lawler and Commissioner Anna Cribb warned employers they could not automatically sack someone for distributing porn to co-workers.
The commissioners said an “emerging trend” that peddling porn in the workplace “invariably merits termination of employment” was “inconsistent” with basic principle.
“Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply,” they said.
“It is a form of misconduct to which the same general principles apply, as apply in all unfair dismissal matters involving reliance on misconduct.”
