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  5. Blatant Misconduct Still Requires a Fair Dismissal Procedure
6 Oct 2016

Last week the Fair Work Commission awarded a man $10,000 compensation for unfair dismissal even though he admitted to downloading hard core porn onto his work computer and mobile phone.


In Allan Croft v Smarter Insurance Brokers Pty Ltd [2016] FWC 6859 the employee’s problematic conduct included not only downloading and storing hard core porn (including images and video of himself performing sex acts) on work equipment but also increasing interpersonal friction with the Directors, late arrival for work and extended lunch breaks.  The misconduct would seem on the face of it to be well and truly serious enough to warrant dismissal, however the Commission found the dismissal was unfair.


Pornography at Work


The Commissioner found that although downloading hard core porn onto work equipment (either during or after work hours) would ordinarily amount to misconduct warranting the discipline or dismissal of any worker (except those working in the sex industry), he found that in this case it did not represent a valid reason for dismissal because:


a) The employer had not communicated any policy about the use of its equipment being confined to work-related activities,


b) (Embarrassingly) there was some contested evidence that the Directors may have also participated in accessing, downloading and disseminating pornographic material in the workplace, and


c) The employee had only downloaded porn on three occasions.


Bad Legal Advice


The small business employer – Ausure Smarter Insurance Brokers in Newcastle – sacked the employee on-the-spot and without specifying any particular misconduct it took issue with.  The employee was simply told that his services were no longer required.  The employers believed that if they paid the employee four weeks salary in lieu of notice (in accordance with the termination clause in the employment contract) it was unnecessary to outline any specific allegations, warn the employee that his employment was at risk, allow him a support person or provide the employee with an opportunity to respond.  Worse still it seems the employers held this belief due to legal advice they obtained. 


Ausure received legal advice which Commissioner Cambridge described as “unfortunate”, “manifestly erroneous”, “severely flawed” and “fundamentally misconceived”.  The Commissioner awarded the $10,000 of compensation notwithstanding that he also found that the employee’s conduct and performance over 14 months of employment as an insurance broker with Ausure meant that the employee “was likely to have been dismissed upon proper basis… if the employer had obtained and acted upon sound employment law advice.”


Tips for Employers

  • Make a policy about what is acceptable use of work equipment that everyone (including directors) is required to adhere to.
  • Promptly raise conduct concerns and document all warnings given.
  • Provide opportunities for employees to improve their conduct and respond to allegations.
  • Do not predetermine the outcome of a dismissal meeting.
  • You always need a valid reason for dismissal.
  • Use only trusted and professional lawyers.

This is only general information and does not constitute specific legal advice.  If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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