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Watching smut at work is bad but emailing it is just fine, says Oz court

Workers celebrate glorious hole in workplace pr0n policies

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Voyeurs rejoice! The Federal Court of Australia has ruled Aussies cannot be easily sacked for emailing porn to work colleagues.

The ruling upheld a decision last year by Fair Work Australia which found the nation's mail service Australia Post was wrong to have sacked the three workers at the Dandenong Letter Centre for emailing smut around the office.

The unnamed men were part of 40 staff found flinging flesh by web filters Australia Post installed in 2010. The men were subsequently sacked or punished.

Their dismissal has since been ruled unfair (see judgement below) because the sacked staffers were essentially blind-sided. Australia Posts' "zero tolerance" to smut propagation on company pipes was found to have been at odds with a workplace culture that surfaced after non-enforcement of anti-pr0n policies.

Maurice Blackburn associate Daniel Victory, who represented the workers, told The Register the case highlighted a "gulf" between policy and enforcement.

"This case was not about the rights and wrongs of circulating pornographic material at work ... It was about the gulf between the policies of Australia Post and the culture at the Dandenong Letter Centre and the way Australia Post went about addressing it," Victory said.

"Despite having a policy in place, Australia Post did not take active steps to apply and enforce its IT policy. A culture had arisen where an extraordinary amount of inappropriate email traffic involving a large number of employees occurred over an extended period of time. Supervisors and managers were aware of it, and in some cases participated in it, and did not take action to enforce the policy.

"Then suddenly these longstanding employees were dismissed, without warning, for something that had been tolerated at the Dandenong Letter Centre for an extended period of time. Many other employees, including managers, who had also breached the policy were not dismissed.

The tribunal's Vice President Michael Lawler and Commissioner Anna Cribb said in September there was emerging trend of over zealous punishment for workplace porn perusal.

"[There was an] emerging trend in the decided cases towards regarding the accessing, sending or receiving and storing of pornography by an employee as a form of serious misconduct that invariably merits termination of employment," they said.

"Accessing, sending or receiving and storing pornography is not a separate species of misconduct to which special rules apply."

Australia Post should have weighed in the sacked staffers' 11 to 17 years of service before swinging the anti-erotica axe.

Lawler and Cribb said the dismissals were different from a 2006 ruling by the tribunal in which Queensland Rail sacked an employee who chalked up more than 27 years' service after he was caught emailing smut stored on a work computer.

FairWork found the state rail service acted reasonably due to its "sustained efforts" to enforce policy over many years.

Companies wishing to flush pornography from the workplace could take a leaf from the Queensland Rail book and deliver a CEO-signed company-wide terse email that porn will be stamped out "for the benefit of all" with dissenters to lose their jobs, followed by an amnesty period to allow purveyors to promptly void their machines.

Vulture South also warns businesses that policies are not worth the paper if they aren't coupled with enforcement and education. This can hinder civil cases when pursuing insider theft and the company culture sees staff regularly take home corporate data in breach of written policy. ®

[2014] FCAFC 89

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