Summary dismissals for distribution of porn considered to be unfair.  

In a recent X-rated tale a summary termination was found to constitute unfair dismissal, even where an employee's misuse of electronic communication provided a sufficient reason for termination. 

The dismissed employee had been employed at Australia Post's Melbourne consolidation centre and over a period of 18 days sent a number of pornographic emails, to colleagues and a contact outside the organisation.   The emails were detected through an electronic filtering system, and Australia Post then launched an investigation into the Applicant's conduct, and subsequently terminated his employment, without notice or payment in lieu, for multiple breaches of company policy. 

The Applicant commenced unfair dismissal proceedings against his former employer, arguing that: 

the organisation's culture tolerated the exchange of inappropriate emails; and that several other employees had engaged in similar conduct and had not been dismissed. 

Fair Work Australia accepted that the Applicant had breached the relevant Australia Post policies, but characterised his conduct as naïve and falling short of a calculated or wilful disregard of company policy. 

An  employer is only entitled to summarily dismiss an employee for serious and wilful misconduct, and found that in this case, summary dismissal was disproportionate and contravened the unfair dismissal protections in the FW Act. 

Fair Work Australia, in arriving at the decision, were influenced by the fact that Australia Post had  

a)   applied its policy inconsistently – the Applicant had received the email from other work colleagues and  

b)   none of these employees had been subject to disciplinary action; and that the Applicant's conduct was unlikely to damage the company's reputation given all external emails were requested by, and sent to, member of the employees family