An Aussie insurance broker who used his work-issued laptop computer and phone to download pornography and store a private sex tape will receive compensation of $10,535 (AU$10,000) after winning an unfair dismissal case.
The verdict has prompted employers to study their policies with the industrial relations umpire stressing that porn on work devices is not automatically sackable and any Australian employers who want it to be an offence should create specific policies that confine the use of their equipment.
The former manager from Port Macquarie’s Smarter Insurance Brokers lost his job in January after a string of verbal warnings about unsatisfactory work performance, Fairfax Media
Then, his New South Wales employer raised new evidence about his accessing of ‘hardcore’ internet porn to justify the sacking.
Phone records and internet searches spanning a period of several months were produced to reveal the former manager used employer-issued devices to view, download and store hardcore pornographic material.
The brokerage also claimed the manager’s laptop contained a sex tape and images of himself performing sex acts, which he did not deny, Fairfax Media
In his defence at a hearing at the Fair Work Commission, the manager defended his actions by arguing he downloaded the porn while he was ‘on a lunch break’ or ‘outside work hours and work premises’.
Commissioner Ian Cambridge said using work devices to access porn would normally constitute workplace misconduct.
He cited the ‘obvious differences’ between that and other sorts of personal internet use, such as internet banking.
“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,” Cambridge said, adding that the former manager’s line of defence was ‘questionable’.
However, because the employer had not implemented or made known a specific policy that confined the use of its equipment to work-related activities, it meant the claims in this case did not constitute a valid reason for dismissal.
"In the particular circumstances of this case, the subsequently discovered misconduct involving the accessing, downloading and storage of pornographic material could not be properly held to represent valid reason for the dismissal of the applicant," Cambridge said.
The employer’s process for dealing with the sacking was also highlighted as being ‘severely flawed’ since it had failed to provide the former manager with an opportunity to respond to the reasons for his dismissal.
The company was ordered to pay AU$10,000, equivalent to about eight weeks’ wages, as compensation.