Porn in the workplace ruling not a green light for hijinks

Although Fair Work Australia has found that three Victorian postal workers were ''harshly'' dismissed after being caught using the Australia Post email system to distribute sexually explicit material around their workplace after doing so apparently for some years, it does not give employees elsewhere a green light to do the same.

Fair Work is expected to rule soon to decide if the three should get their jobs back. The Tribunal, in a split decision this month, found that ‘‘special rules'' do not apply to email porn distributors in the workplace and the same unfair dismissal laws apply as with other forms of employee misbehaviour.

Reports of the finding over-simplified the issue and focussed on the explicit material angle when the real issue was Australia Post’s apparent inaction across some years to enforce employee behaviour standards.

It’s really a wakeup call to employers to have a set of behaviour standards, properly convey them to workers and enforce them. The Tribunal seems to be saying you can’t be slack and ignore behaviour like this for years then suddenly sack some workers for doing it.

Employees should not regard it as a green light for sharing porn in the office email system, but at the moment the distribution of explicit material in itself does not seem to be regarded as unacceptable to the social norms in the way theft from the workplace is usually regarded as an automatic sacking offence.

Workplaces should now tighten their policies about the use of business email systems. In particular employers should be vigilant about staff sending explicit material to colleagues because it could be deemed sexual harassment.

The issue of distributing explicit material in workplaces is a “shades of grey” situation as what might be harmless to one person could be highly objectionable to another.

Employers need to set solid ground rules stating the sending of such material is a serious misconduct and repeated offences could lead to an employee’s dismissal.

The men dismissed by Australia Post, worked at Australia Post's Dandenong Letter Centre, and were among 40 workers disciplined by the employer over online activities in 2010.

Media reports stated the three workers, who secured a non-publication order on their names, were sacked after an investigation found a large number of workers involved in accessing and distributing pornographic material, some of it ''hardcore'', around the workplace.

The activity was detected after Australia Post installed a new email software filter on its internal email system which led to the discovery of widespread distribution of ''inappropriate'' material in some of its Melbourne workplaces.

''Most of the material was softcore pornography and no more salacious than material that might be viewed on free to air television almost any night of the week," the tribunal found. A small amount of the material was also classified as hardcore.

The Victorian issue with Australia Post involved a loose workplace culture and how Australia Post finally addressed it, by dismissing three staff members.

After they lost their initial appeal last year against their dismissal, the three workers took their case to the Full Bench of Fair Work Australia.

However one of the three commissioners hearing the case disagreed with his colleagues and backed Australia Post's actions in sacking the men.

Fair Work Deputy President Michael Lawler and Commissioner Anna Lee Cribb ruled that bosses could not automatically sack a worker for distributing porn to colleagues. It was a form of misconduct to which the same general principles apply as in all unfair dismissal matters involving misconduct.

The commissioners found that Australia Post should have considered the length of service - between 11 and 17 years - of the men it sacked before it made its decision.

Fair Work also found there was no evidence of harm caused by the three workers sending porn to their friends at work, and particularly that Australia Post had done nothing for several years to enforce its own standards on its workforce and that managers over the years had received the material and done nothing to warn employees that its distribution was against the workplace rules.

So it’s a mistaken perception to think the porn floodgates have been opened in the workplace. It’s really Fair Work telling employers to have policies and rules and enforce them and not allow a culture of indifference to prevail.

It’s a wakeup call for employers to have clear and enforceable policies about the distribution of objectionable, explicit material in the workplace, and enforce them.