Porn at Work Posing Problems

Porn at work poses plenty of problems – for both employers and the employees who view it, John Wilson says.

The advent of the federal Sex Discrimination Act 1984 made ”sexual harassment” in the workplace unlawful. In 1984, desktop computers, laptops, mobile phones, SMS, Skype and the internet were largely future technologies. The typing pool was still de rigueur in the workplace and most senior executives would not have been seen dead getting their fingers dirty at a keyboard.

Back then, efforts to eliminate sexual harassment may have focused simply on ridding the workplace of the many tangible things associated with it: raunchy calendars, sexually explicit posters and pictures, and ”dirty” magazines. But three decades on, porn has gone underground. As technology has evolved, workers have become smarter about the ways they harass and discriminate at work (the Australian Defence Force Academy’s Skype-sex scandal and the Jedi Council email ring are recent cases in point), as well as how they access porn.

Sexual harassment today also encompasses things such as offensive and explicit emails, SMS messages or screen savers, accessing sexually explicit websites, obscene communications and behaviour that would also be an offence under criminal law (e.g. child pornography and using a carriage service to cause offence).

Sometimes, a workplace culture or environment that is sexually permeated or sexually hostile may also amount to sexual harassment. As early as 1988, in the case of Bennett v Everitt, it was held that ”all employees have a right to employment without sexuality … either direct or indirect”.

In the 1994 case of Horne v Press Clough Venture, it was held that it ”is now well established that one of the conditions of employment is quiet enjoyment of it. That concept includes not only freedom from physical intrusion … but extends to not having to work in an unsought sexually permeated work environment.” In Horne (a case that involved the display of posters of semi-naked women in a male-dominated environment), both the employer and the union were required to pay $92,000 in damages.

But what about those cases where the pornography is not openly on display? What if the pornographic images are accessed on the work computer in the relative privacy of an employee’s own office during business hours?

Over time, fears of prosecution for sexual harassment and sex discrimination under the vicarious liability provisions of the Sex Discrimination Act led employers, public and private sector alike, to develop comprehensive policies and procedures to try to prevent and eliminate such behaviour in the workplace.

In addition, the code of conduct in the Public Service Act 1998 requires that all Australian Public Service employees ”when acting in connection with APS employment must treat everyone with respect and courtesy, and without harassment”. Thus, it is a breach of the code for an APS employee, when acting in connection with their employment, to sexually harass anyone – including his or her fellow employees. The phrase ”in connection with APS employment” extends the prohibition not only to behaviour in the workplace but to behaviour anywhere that somehow or other has ”connection with APS employment”.

Some might expect, given the (at least outward) moral opprobrium that surrounds the subject, that accessing porn via the internet or email at work – and even, in some circumstances, outside of work using a work device – would amount to a breach of the APS code of conduct (and, where they exist, relevant agency-specific policies and procedures) and would inevitably lead to dismissal.

However, recent cases indicate this is not as clear-cut as some might assume. While it may be determined that such conduct does amount to a breach of the code, it does not inexorably follow that a dismissal for such conduct will be upheld by the Fair Work Commission or a court, as is demonstrated by two recent public sector cases before the commission.

The case of B, C and D v Australia Post, which was decided in August, concerned three employees who were dismissed by Australia Post for sending emails containing porn (including ”hard-core” material) to work colleagues using work facilities. Before a single commissioner at first instance, two of the employees had their unfair dismissal applications rejected. The other was found to have been harshly dismissed, but was awarded compensation rather than reinstatement. On appeal before a full bench, each of the employees had their applications upheld by a majority.

Australia Post had a policy in place that prohibited what the employees had done. A new software system it had installed unearthed the fact that many staff, including supervisors and managers, had breached the policy. Forty employees were disciplined as a result. Some were dismissed; others received lesser sanctions.

In upholding the appeal, the majority considered that the commissioner at first instance had given too much attention to whether there was a ”valid reason” for the dismissals, and neglected to properly consider other factors that weighed in the employees’ favour. They pointed out that whether an employer has a ”valid reason” for sacking an employee is only one of a number of factors that the commission must consider when determining whether a dismissal is ”harsh, unjust or unreasonable”.

The majority found that Australia Post had failed to take ”active steps” to notify staff that breaches of the policy would be taken seriously, and noted that the policy did not say that dismissal was a likely sanction for breach. They also found there was a tolerance for pornographic material in the particular workplace, and said Australia Post should have taken steps to monitor policy compliance and manage risk much earlier than it did. The majority were also critical of the criteria used to determine the appellants’ sacking compared with that applied to those who were not dismissed, and the fact that managers who appeared equally involved as the appellants also escaped dismissal. They also noted the employees’ long service, otherwise good disciplinary records, and the harsh economic effect that dismissal would inevitably have on them.

Those other factors, so the majority held, made the dismissal of the appellant employees ”unfair”, notwithstanding that Australia Post had a ”valid reason” for terminating their employment.

In short, while they acknowledged that it was reasonable and necessary for employers to take steps to eradicate the access and distribution of porn at work (among other things, for work, health and safety reasons, and to reduce the risk of staff being sexually harassed upon being confronted with such material), the majority held that sacking an employee for breaching a code or policy that bans the access, distribution or storage of porn will not automatically be ”fair”. Granted, they said a dismissal for such a breach will often, ”if not usually”, be upheld. However, there may be special factors that render a dismissal for doing so ”unfair”.

Read the full article in the Canberra Times’ Public Sector Informant.

By John Wilson, Legal Director, Employment Law.