In the trenches with our clients: QR Network
December 7, 2010
Mr Geoffrey Thomas Spargo v QR Network Pty Ltd [2010] FWA 7822
The employee's employment was terminated based on the breach of his employer's Electronic Communications Policy. The employee had forwarded e-mails of an inappropriate nature to a significant number of recipients.
The employer had very strong policy guidelines with regards to employees' use of its computer system in the workplace and had taken extensive steps to educate employees in the use of its computer systems.
The employer's policy identified the categories of inappropriate material, examples of which included:
- Pornographic/sexually explicit material
- Sexually implicit material
- Cruel, malicious, or violent material; and
- Other categories
The employer's policy was quite clear that this type of material cannot be created, copied, accessed, downloaded, displayed, stored or sent.
The employee, in support of his claim for reinstatement, claimed the following:
- He had been employed by the employer for over 39 years
- He had a clean record with no prior disciplinary infringements
- He had never accessed pornographic material nor did he believe the material he had accessed was inappropriate
- The employer had applied an excessively conservative standard with regard to the material which was found on his computer; and
- The real test to be adopted was that of the employee in assessing whether or not the material is inappropriate.
Deputy President Swan of Fair Work Australia found that:
"The standard is set by the respondent, and that standard, provided it is lawful, clear and unambiguous, is the one to which adherence must be given". "There is no question whatsoever that the images in question are inappropriate and breached the respondent's policies".
"It is not accepted that the respondent has taken a conservative approach to these matters. What is evident is that the respondent's policies were fair, clear, and unambiguous and failure by employees to adhere to such policies have the potential to create an environment which could undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination." [Wake v Queensland Rail (PR974391) A Full Bench Decision of the Australian Industrial Relations Commission]
Further:
"The breach of the employer's policies by the applicant warrants the action taken by the respondent in terminating his employment".
The key learnings for employers from this case are as follows:
- Employers are entitled to set the rules regarding employees use of the employer's computer systems in the workplace.
- Provided the standard set by the employer is lawful, clear and unambiguous then employees must adhere to the employer's standard.
- In order to withstand challenges, employers should educate their employees on the appropriate policies and consequences of breach of those policies.
- The mere fact that an employee has a clean record with extensive years of service, does not afford the employee immunity from adhering to the employer's policies.
