Clean work history not enough to save job of pornography accessing employee
In a decision handed down on 24 April 2017, the Industrial Relations Commission gave a timely reminder to employees of the need to comply with workplace communications and conduct policies concerning materials reasonably considered pornographic or offensive. As a consequence of receiving and storing substantial amounts of inappropriate materials, a long term LHD employee lost her job, despite being able to prove her dismissal was harsh.
Facts
Ms Jodie Bellenger worked at Mid North Coast Local Health District from 2004 and was dismissed from her role, including that of Network Support Officer, effective 15 January 2016 following a review of her email directory which found she had received and stored significant quantities of emails “which were considered pornographic, graphic (violence) and generally inappropriate in nature.” This included 1,256 emails stored in a folder named “funny emails”.
Such use of her computer was found by an internal investigation to have breached both the NSW Health Code of Conduct as well as the Communications – Use and Management of Misuse of NSW Health Communications Systems policy. When responding to her Show Cause, the Applicant advised:
she had been an exemplary employee with an impeccable work history,
the email system should have prevented unwarranted unwelcome and inappropriate emails to infiltrate it,
other staff may have accessed her computer,
of a prevailing work culture of accepting the sending and receipt of inappropriate emails, and
the offending email traffic had virtually ceased from the end of 2011.
However, the decision was made by her employer to dismiss her with notice despite Ms Bellenger making the following submissions:
an admission she gave scant attention to the log in conditions of use for her computer;
an admission she kept written details of her computer access password near her PC + often failed to log off at the end of her workday; and
a claim she was unaware of the Ministry’s Communications policy.
Consideration and finding
While Commissioner Stanton was of the view the applicant’s dismissal was harsh in the circumstances of her difficulty in obtaining alternative employment in the general Port Macquarie area, her personal financial circumstances as well as the fact Ms Bellenger had not previously been warned for misconduct, were insufficient factors to overcome the fact that employees need to be squarely on notice that non-compliance with employer policies may lead to dismissal.
The Commissioner added that on the specific issue of use of an employer’s electronic communication system to store and transmit inappropriate images, case law supported the actions of employers who are striving to stop inappropriate email traffic within their workplace. Accordingly, while the termination had impacted on Ms Bellenger in a harsh manner, Stanton C determined reinstatement to be impracticable as the gravity of the misconduct meant the employment relationship had irretrievably broken down.
Comments on the decision
This case and decision confirms the importance of employer efforts to brief and update their staff on an ongoing basis with important workplace policies, particularly those concerning expected codes of conduct as well as the correct use of IT and other communications systems.
Tips for Local Government and Public Sector employers
The favourable comments by the Commission of the use of log in ‘triggers’ to reinforce the Ministry’s Communication’s Policy underlines the importance of such initiatives to:
maximise the opportunity for employees to comply with ‘acceptable use’ of IT resources; as well as
providing definitive proof of the employer’s policy being received by its employees, valuable in cases where disciplinary action may be required.
Bellenger v Mid North Coast Local Health District [2017] NSWIRComm 1019
