Terminating the employment of an employee who accesses, receives, stores or distributes pornography in the workplace will usually constitute a valid reason for dismissal under the statutory unfair dismissal provisions. However, employers should be careful in adopting a ‘zero tolerance’ approach.
Recent cases in the Federal Court of Australia and the Fair Work Commission provide a timely reminder that terminating an employee’s employment for accessing or distributing pornography without considering other factors (such as the employee’s length of service) may lead to a finding that the termination was unfair.
Employers are expected to take reasonable steps to eliminate pornography from the workplace to comply with workplace health and safety and other obligations. This is also advisable for cultural and employee relations reasons.
Aside from ensuring that workplace policies about the appropriate use of company resources such as computers are clear, accessible and up-to-date, it is recommended that employers take the following approach to dealing with pornography in the workplace:
- ensure employees receive regular training about acceptable workplace conduct;
- use monitoring systems that detect pornography or inappropriate content; and
- ensure that there is clear communication from the highest levels (CEO/managers) as to what constitutes inappropriate behaviour and repeat the communication at a local level (staff meetings or toolbox meetings).
Additional steps may be necessary where there is a culture of accessing pornography in the workplace. These steps can include an intensive period of training and notifying employees that, after a certain date, a different position will be consistently taken to inappropriate workplace behavior.
Key considerations before termination
The preventative steps above are only part of the story. Before making a decision to terminate an employee’s employment, ensure that you have considered:
- the employee’s seniority, length of service, age and past conduct – for example, have they received prior warnings in relation to similar conduct;
- the role the person played in accessing or distributing pornography (viewed or sent) and frequency of breach (one instance or repeated) – this involves making a qualitative judgement about the seriousness of the breach(es) and their frequency;
- the steps taken over time to eradicate pornography from the workplace (see above);
- whether the pornography was sent to an employee or external person (and whether there is any evidence of harm such as a reputational harm, a complaint or harassment claim); and
- whether a decision to terminate would be proportionate to the conduct and is consistent with other disciplinary outcomes for similar conduct.
Not every case will be the same. Caution should be exercised before terminating an long term employee with an otherwise unblemished record for receiving/distributing pornography.