The benefits of internet and email use in the workplace are undeniable; not does communication happen at the click of a button, but information can be sourced instantaneously meaning tasks can be completed quickly and efficiently. Having said that, employees do not have free reign to surf the web as they please, and restrictions should be in place to prevent employees overusing these services for non-work related activities.

In a recent case before the NSW Industrial Relations Commission[1], an employee was dismissed for breaching her employer’s code of conduct and communications policy when she stored 1200 inappropriate and pornographic emails in a “funny emails” folder. The investigation found that the folder contained emails which were “considered pornographic, graphic (violence), and generally inappropriate in nature”. A non-work-related, 23-page personal journal was also found, which breached the policy’s personal use clause and ‘encroached on work time’.  

The employee adopted a ‘cavalier attitude’ towards the situation and attempted to contend that the employer’s IT system should have prevented unwelcome and inappropriate emails from infiltrating the system. In 2012, the company installed a system which required employees to acknowledge and accept that they understood the organisation’s code of conduct prior to logging in. However, the employee claims she did not read the policy and automatically clicked ‘yes’ in an effort to “get into her work”.  She also maintained that she never read the majority of the emails, and claimed there was culture within the workplace of sending and receiving inappropriate emails. She referred to her 12 years of exemplary service as a mitigating factor in the case.

The tribunal found that the employer was entitled to dismiss the employee and reasonably expected her to conform with its policies given her length of service. Whilst the tribunal held that the employer had a valid reason to dismiss the worker, the dismissal was found to be ‘harsh’ due to her inability to secure another job, the fact she had not been previously warned for misconduct and her “personal, family and dire financial circumstances.”

As this case reinforces, an increased number of employees are subject to disciplinary proceedings for downloading, storing and sending pornographic material during work hours. This could potentially expose employers to sexual harassment claims if the receiver takes offence to the content of the emails. Additionally, excessive personal internet and email use wastes time, interferes with work activities and can hinder productivity. Having clear, concise and well-enforced policies in place will be an employer’s greatest asset in managing unacceptable and inappropriate internet and email use in the workplace.

Lessons for employers

• Implement a workplace Internet and Email a Usage Policy that clearly outlines your expectations regarding usage during working hours. Ensure employees are made aware the contents of the policy and notified when there are policy changes.
• The policy should outline the potential consequences that may follow for employees if the policy is breached.
• The policy must stipulate whether you intend to monitor your employee’s internet and email usage.

• Where breaches of the policy are noted, ensure all investigations are fairly conducted to ensure procedural fairness is afforded.
• When terminating for breach of policy, follow a dismissal process closely. The relevant tribunal will consider whether the dismissal was harsh, unjust or unreasonable in light of how the process was handled.

Summary

Developing and implementing an internet and email policy is crucial in preventing employees from accessing, sending or storing inappropriate or offensive material in the workplace. In certain situations, employers may be justified in dismissing an employee who misuses workplace internet or email resources resulting in breaches of workplace policy.

[1] Bellenger v Mid North Coast Local Health District [2017] NSWIRComm 1019 (24 April 2017).

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