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Excerpt from this article first published in Human Resources Magazine, Issue 120 - 23 January 2007
An employee who was terminated for receiving, retaining and accessing over 350 pornographic images through his work computer has been reinstated to his job.
In Budlong v NCR Australia Pty Limited (2006) ("Budlong") a single Commissioner of the NSW Industrial Relations Commission found that although the employee had accessed pornography at work, his termination was harsh having regard to: the culture of the workplace (including supervisors condoning and participating in receiving, retaining and accessing pornography); the failure of the Company to install a firewall system; the more favourable treatment of other employees accused of the same offences; the length of service of the employee and the employees otherwise unblemished record. The employer was ordered to reinstate the employee.
The approach taken by the Commissioner in Budlong was recently confirmed by a Full Bench of the Commission in Lane v Northern Sydney Central Coast Area Health Service (2006) ("Lane"). In this case the employee was found to have received, sent and stored sexually explicit and graphic images on his work computer. At first instance before the Commission, the employer was successful in defending its termination of the employee.
Mr Lane appealed the decision. A Full Bench found that the Commission needed to properly consider all relevant matters including Mr Lane’s length of service; the consequence of the termination on Mr Lane’s personal and economic situation; whether the policy prohibiting the material was applied inflexibly; the employee's age, specialised skills, impaired eyesight and hearing, and the ability of the employee to secure future employment. The matter is currently being reheard by the IRC.
HR Tip
Jason Donnelly, Senior Associate and Jessica Lee, Lawyer
