Three Australia Post employees were dismissed for serious misconduct back in 2010 after it was discovered that they were among a group of employees who had been sending pornographic emails. 

On appeal in 2013, the Full Bench of the FWC held that the dismissal was unfair. A separate hearing in November 2013 considered the remedy and ordered the employees be reinstated with a proportion of their back pay[1].

In his reasons Commissioner Lawler described the circumstances of the case as ‘peculiar’ [para 22]. Indeed at first glance the outcome appears neither expected nor reasonable. As with any case, however, the outcome depends on the facts.

Background: workplace culture found to override workplace policies

The IT department discovered these employees had been using their work email accounts to send and receive pornographic emails. The employees were summarily dismissed for breaching the IT Policy which prohibited this type of behaviour. The employees brought an unfair dismissal claim which was unsuccessful at first instance, but successful on appeal.

In a surprising twist the majority of the Full Bench held the dismissal was harsh, unjust or unreasonable. There was a workplace culture, particularly in the Dandenong centre where these employees worked, which meant that many employees regularly sent inappropriate emails and the practice had continued unchecked for some time. Importantly the emails were only sent to ‘willing recipients’ and not used in a harassing manner. Additionally, the content of the emails in question was, for the most part, at the ‘less serious’ end of the spectrum.

It is important to understand that the FWC were not sanctioning the behaviour. Sending pornographic emails at work may amount to misconduct and the employer can, and should, take appropriate disciplinary action. The issue in the case before the FWC was whether summary or instant dismissal was a fair response by the employer in the particular circumstances. For the reasons outlined above, the dismissals were held to be unfair. When considering the appropriate remedy, Commissioner Lawler found that reinstatement was appropriate particularly as the manager of the Dandenong Centre believed that the employees would not repeat the behaviour. Acknowledging the obvious misconduct on the part of the employees, their back pay was discounted by 75%.

Australia Post has since lodged an appeal with the Federal Court.

Lesson for employers: context is everything

The lessons from this case are at least two-fold. Firstly, employers need to carefully consider the possible grounds which substantiate summary dismissal. A clear breach of policy and obviously inappropriate conduct were not enough here to reach the threshold for serious misconduct because of the context. The decision in each situation will depend on the facts. With a different set of facts the outcome could have been very different.

Which brings us to the second key lesson: the importance of workplace culture. It is not enough to have a policy which prohibits certain behaviour if that behaviour continues to be a commonplace occurrence. To be effective, and indeed to be relied upon for disciplinary action, a policy needs to actually be implemented in the workplace. We regularly remind employers to conduct a workplace health check. A health check includes examining your workplace culture and the behaviour of all employees, including managers, to ensure that appropriate behaviour is modelled throughout the organisation.

Sarah Waterhouse, Solicitor, BlandsLaw