Once again an employer has been let down by its failure to implement the necessary workplace policies.
In a complaint before the Fair Work Commission, an employee who used electronic devices provided by his employer to download and store hardcore porn succeeded in challenging his dismissal.
Mr Allan Croft, a former insurance manager with Smarter Insurance Brokers had been found by his employer to have used his work-issued laptop computer and phone to download pornography and as well as to store a private sex tape.
Although this decision may surprise some employers, Mr Allan successfully argued that he only downloaded pornographic materials while he was “on a lunch break” or “outside work hours and work premises”, and that he was not aware that this differed from other types of personal internet use.
Commissioner Cambridge when deciding the case noted that while using employer-issued equipment to access pornography would ordinarily constitute workplace misconduct, in the absence of evidence that the employer had implemented or made known a specific policy preventing employees from doing this, the employee’s behaviour did not constitute a valid reason for dismissal.
He added:
“In the particular circumstances of this case, the subsequently discovered misconduct involving the accessing, downloading and storage of pornographic material could not be properly held to represent valid reason for the dismissal of the applicant.”
He ordered that the employer, Smarter Insurance Brokers, pay $10,000 to their former employee as compensation.
Lessons learned ?
Although there were some procedural errors which added to the employer’s fate, this decision makes it clear that if employers wish to make the misuse of work equipment a potentially dismissible offence, they must implement and circulate policies to make this clear.
In the absence of such policies then employers are unable to dismiss without the risk that the dismissal will be found to be unfair.
For this with policies, this provides a timely reminder to review them to ensure that that remain relevant and to update them to reflect recent technological advances.