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Excerpt from this article first published in Human Resources Magazine, Issue 117, 14 November 2006
Two recent cases show the advantage for employers in having clear computer usage polices that are enforced.
In the case of Bryson and Dy-Mark the Commission determined that although violent pornography had been downloaded onto the computer used by Mr Bryson, the employer did not have enough evidence to prove that Mr Bryson was responsible. Mr Bryson succeeded in his unfair dismissal claim.
Prior to the termination, Mr Bryson had been warned by the employer about inappropriate computer use, which included putting photos of colleague’s faces onto images of scantily clad women. However, Mr Bryson denied being responsible for downloads that lead to the termination and said he was away from his desk at the times that the downloads occurred.
The Commission determined that it would have been possible for a person other than Mr Bryson to sit unobserved at Mr Bryson’s work station and download the offensive material, or to utilise Mr Bryson’s IP address to access the offensive content from another computer, down load it to a CD and then load the CD onto Mr Bryson’s computer, or to make it appear as though Mr Bryson was responsible for the downloads by using a file sharing function.
The Commission considered it relevant that although the employer had provided the employees with a facility to password protect access to their computers, it did not have a policy requiring the employee to use the facility. There was also no policy barring the use of another employee’s computer without their consent.
In an appeal case, Wake v Queensland Rail, a full-bench of the Commission quashed an earlier decision reinstating a locomotive driver’s assistant who had down loaded pornography.
The Commission noted that the use of company electronic communications systems for the storage and transmission of images containing sexually related pornographic and violent material is a serious and socially important issue and is a legitimate and growing concern to employers.
The Commission considered it relevant that the employer had a policy directed at ensuring that employees did not use its electronic communication system to store or transmit images containing material that is sexually related, pornographic or violent. It also thought it important that the employer had made sustained efforts over a number of years to make its employees aware if the policy and the consequences of breaching the policy. The efforts the employer made included putting a notice in the weekly internal publication reminding employees to use the computer systems appropriately, reminding employees that auditing and scanning for inappropriate use was ongoing, issuing memo reminding employees that inappropriate use would result in termination and putting policy reminder notes on the employees’ payslips. Despite those efforts the employee repeatedly breached the policy.
All policies must be communicated to the employees and be consistently applied.
Sharlene Wellard
Senior Associate
