Terminating employment: pornography, policies, and procedural fairness

When handled insensitively or without regard to the regulatory landscape, termination can open a Pandora’s box of potentially litigious grievances.

Ordinarily, the use of employer provided equipment to access, download and/or store hard core pornographic material would represent misconduct. Unless the employee worked in the sex industry it would be difficult to contemplate that the viewing, downloading and/or storage of pornographic material represented proper, work-related use of the employer’s equipment. — Commissioner Cambridge in Croft v Smarter Insurance Brokers Pty Ltd.

In late September, the Fair Work Commission delivered judgment in a seemingly remarkable unfair dismissal case. The employer had sought to rely on pornography found on the fired employee’s work laptop and mobile phone, discovered after termination, to justify the dismissal. While Commissioner Cambridge accepted that such actions constituted misconduct, he nevertheless concluded that a panoply of errors in the termination
process meant that they did not constitute a valid reason for dismissal. The termination was therefore harsh, unjust and unreasonable, and an award of compensation was ordered — an eye-catching result given the applicant admitted using employer provided technology to download pornography.

Croft is highly instructive, providing employment lawyers and employers alike with a range of lessons about how not to terminate employees. The dispute highlights the limitations on the ability of employers to justify
dismissals based on information acquired post-termination, while also emphasising the importance of procedural fairness, rigorous policy mechanisms and consistency in workplace decision-making. This
article will commence with an outline of Croft, before considering each topic in turn.

Croft

Mr Allan Croft was an insurance manager at a small insurance broking firm. His employment was ‘beset with difficulties from an early stage’ due to his ‘fractious’ relationship with the Directors of the employer. The employer alleged that Mr Croft was given several verbal warnings about underperformance and misconduct during his employment, but these were never particularised in written form.

In January 2016, the employer dismissed Mr Croft. Rather than terminating on the basis of underperformance or misconduct, they sought to rely upon a contractual clause which purportedly permitted termination without cause on four weeks’ notice. Mr Croft subsequently filed unfair dismissal proceedings.

In his decision, Commissioner Cambridge firstly dealt with the alleged ‘right to dismiss at will’. He held that a dismissal made without reason but solely reliant on a purported contractual right ‘would plainly subvert the statutory unfair dismissal laws, and also offend the broader common law position’. Commissioner Cambridge then considered whether Mr Croft’s accessing, downloading and storing of hard-core pornographic material on employer provided technology — the alleged misconduct discovered only after he had been dismissed — constituted a valid reason for the termination of his employment. On balance he decided — for reasons outlined below — that it did not. Accordingly, Mr Croft’s dismissal was found to be harsh, unjust and unreasonable, and $10,000 in compensation was awarded.

Continue Reading.

Written by John Wilson and Kieran Pender and first published in Ethos.