Culture of 'poor taste' no excuse for sending pornographic emails

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Culture of 'poor taste' no excuse for sending pornographic emails

The AIRC has found Centrelink was right to dismiss a customer service officer for circulating offensive emails saying that although he was not the only culprit, the extent of his activity and the nature of the material he sent distinguished him from other employees.

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The AIRC has found Centrelink was right to dismiss a customer service officer for circulating offensive emails saying that although he was not the only culprit, the extent of his activity and the nature of the material he sent distinguished him from other employees.
 
Background

The employee applied under s170CE(1) of the Workplace Relations Act 1996 contending that the termination of his employment by Centrelink was harsh, unjust or unreasonable.

He admitted to sending 23 inappropriate emails, including pornographic or otherwise sexually explicit images, on his employer's email system both to other Centrelink employees and to external recipients. Centrelink argued this conduct amounted to a breach of the APS Code of Conduct and the Public Service Act 1999.

The employee was one of a group of 24 employees in the Ballarat office who were investigated after complaints of unsolicited emails. The result of the investigation was that two employees, including the applicant, were dismissed, two resigned, four or five employees received a reprimand and the rest were either demoted or received a salary reduction or both.

The factors Centrelink considered in determining penalty included: the nature of the material involved, the extent of misuse of the email system, the employee's position within the organisation in terms of their level of responsibility, the opportunity the employee had to familiarise themselves with Centrelinkpolicies, and the degree of contrition and assumption of responsibility shown by the individuals.

The employee said that he was never told at the time of his induction about Centrelink's guidelines on the misuse of email and said that he was not aware of screen savers and other material circulated internally to staff about the guidelines. He also argued that 'it was common practice for staff,including managers, to participate in the circulation of ribald jokes and pictures by email'. The employee went on to note that no one had ever complained about the emails he sent them.

Findings

Commissioner Whelan noted that Centrelink had twice emailed employees to alert them to its guidelines on misuse of email and the consequences of such behaviour. It also had in place screen savers relating to the 'APS Values and Code of Conduct' and the 'Acceptable Use Policy'. She found the employee had 'failed to see, or more probably ignored' the screen savers which would have alerted him to what might be the result of his actions.

She also dismissed the employee’s argument that he hadn’t had time to read the misuse guidelines finding he 'had time to download and send pornographic emails to people but did not have the time to read a policy document that would have alerted him to the dangers of doing so'.

The Commissioner said the employee had shown absolutely no insight into his behaviour.

'He has tried to blame his employer for failing to properly sheet home to him the guidelines applicable to him and the risk of termination he was running. He has tried to blame [his manager] for somehow implying that what he was doing was acceptable although he knew that [the manager] would not directly condone his activities. He even tried to blame the Centrelink IT department for not blocking the transmission of offensive material.

'Last,[the employee] has blamed the workplace culture for creating an environment where he was allowed to behave in the way he did.'

Commissioner Whelan accepted that the culture in a workplace might be a relevant factor and said there clearly was a situation where a minority of employees at Ballarat, including the office manager, participated in circulating off-colour jokes and images.

However, she found that the nature of the material being circulated by the employee went further than this. 'A reasonable person would be aware that there is a distinction between poor taste jokes and sexually explicit and degrading material ...I am not satisfied that the general atmosphere of the office was one which condoned the circulation of pornography ... 'In any event [the employee] should have been of sufficient maturity to take responsibility for his actions. He was not the office junior.'

Having found there was a valid reason for the employee’s dismissal,Commissioner Whelan went on to reject the argument that his treatment was unjust because other employees guilty of the same misconduct had not been dismissed.

She said he might have had a different outcome from the investigation but that did not necessarily mean that there was inconsistency in his treatment. The Commissioner found that the process and the factors taken in to account were the same and said she was satisfied that the employee behaviour warranted the termination of his employment.

'In particular the extent of his activity and the nature of the material with which he was dealing distinguished him from a number of the other employees involved.'

See: Williams and Centrelink, AIRC PR942762, Whelan C,15 January 2004.

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