King & Wood Mallesons

Asia-Pacific 100 position: 2

Zero-tolerance approach to pornographic emails is risky

By Melissa Sykes

A Full Bench of the Fair Work Commission has found that the dismissal of three employees for sending pornographic emails over a work email system was unfair, despite the employees having clearly breached the employer’s policy.

Employers should not assume that accessing, sending, receiving or storing pornography on a work email system is a special form of serious misconduct that invariably justifies termination of employment. There may be factors from the employee’s perspective that militate against dismissal, particularly where the issue has not been actively addressed in the past…

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