The absence of properly drafted workplace policies can be a problem when dismissing an employee for misconduct.

In a 2016 case, the Fair Work Commission (FWC) upheld an employee’s unfair dismissal application, notwithstanding that the employee admitted to using company equipment to access pornography.

The employee worked at the small company – which was subject to the Small Business Fair Dismissal Code – as a general insurance manager for just over 12 months when the employer sought to terminate his employment.

At the time of the dismissal, the employer allegedly considered that the employee was a poor performer and that his conduct was inappropriate by causing conflict with the director. The employer also alleged that the employee had been given verbal warnings about his performance and conduct.

However, in effecting the dismissal, the employer directed the employee to attend a meeting without indicating the purpose of the meeting or offering him to bring a support person.

Also, the employer did not advise him of the reason for dismissal at that time, but simply stated that it was relying on the ‘termination with 4 weeks’ notice’ clause in the employment contract.

This meant the employer did not have a valid reason for dismissal relating to capacity or conduct, as required under the Small Business Fair Dismissal Code.

The employer mistakenly believed that a contractual right to terminate his employment existed and did not take this code into account.

Under the code, an employer is required to give an employee a reason why they are at risk of being dismissed based on the employee’s conduct or capacity to do their job.

It also states that the employee must be warned verbally, or preferably in writing, that they risk dismissal if there is no improvement in their behaviour or performance.

Employers may be able to rely on new information that comes to light after the dismissal to justify the original dismissal (i.e. showing that it was not ‘harsh, unjust or unreasonable’).

Following the dismissal in this case, the employer discovered the employee had used a company mobile phone and computer to access pornographic material.

The employee admitted to downloading and storing the material that included videos of himself performing sexual acts, which he had also stored on the work computer.

While admitting in the hearing that he downloaded the material, he claimed this was done during lunch breaks and possibly while he was “walking the streets”, and therefore this was not during work hours.

The Fair Work commissioner in making his decision agreed that the bringing of graphic pornographic material into the workplace would ordinarily constitute grounds for summary dismissal.

“Particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/ or storing hard-core pornographic material on the employer’s equipment, whether such conduct occurred within or outside of the ordinary hours of work,” he said.

But the employer had no such policy stating that use of its equipment should be strictly confined to work-related activities.

Accordingly, in the absence of any valid reason (the employer also argued performance issues as a valid reason, which the FWC did not accept), the dismissal was found to be harsh, unjust and unreasonable.

The terminated employee was unemployed for a period of 17 weeks before obtaining alternative employment following that period, at less remuneration.

The commissioner did not factor the employee’s misconduct into an award of compensation, which he assessed to be $10,000 based on 8 weeks’ pay.

Lessons for employers

Never underestimate the importance of a well-drafted policy that addresses expectations regarding an employee’s conduct. Your workplace policies should cover various forms of unacceptable workplace behaviour and conduct, including:

• unlawful bullying:
• anti-discrimination and unlawful sexual harassment;
• risks to health and safety;
• social media use; and
• company equipment, technology and internet use.

You should take steps to ensure your employees are aware of and understand each of the policies. This is usually through compliance training or workshops and seminars.

Ensure that your policies are being actively monitored and enforced.

One of the issues in this case was that there was some evidence that directors of the employer may have also participated in accessing, downloading and disseminating pornographic material.

If policies are applied inconsistently, there may be some difficulty relying on the terms of the policy as the basis for the dismissal.