King & Wood Mallesons

Asia-Pacific 100 position: 3

Distributing porn does not automatically amount to serious misconduct

A Full Bench of the Fair Work Commission has found that the dismissal of two employees for distributing pornography was unfair, stating that the same unfair dismissal principles apply for the distribution of pornography as for any other form of misconduct.

The employees were dismissed for distributing emails containing pornographic images, a small amount of which were considered to be ‘hardcore’. The employer had policies relating to the use of IT systems which strictly prohibited accessing, storing, sending or receiving pornography.

A majority of the Full Bench held that misconduct relating to pornography is ‘not a separate species of misconduct to which special rules apply… it is a form of misconduct to which the same general principles apply as apply in all unfair dismissal matters’…

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Overview

Level 61, Governor Phillip Tower
1 Farrer Place
Sydney
NSW 2000
Australia
http://www.kwm.com

Jurisdiction: PRC/Australia
No. of offices: 20
No. of qualified lawyers: 1,252