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Sacked for surfing porn, but employee wins unfair dismissal claim

An insurance manager who used his work laptop and phone to download porn and store a private sex tape will be compensated $10,000.
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Sacked for surfing porn, but employee wins unfair dismissal claim

Sacked for surfing porn, but employee wins unfair dismissal claim

22 September 2016

The industrial umpire's verdict reinforces that pornography on work devices is not automatically sackable, and employers who want it to be an offence must circulate "specific policies" that confine the use of their equipment.

Tribunal rules viewing pornography on work devices is not automatically sackable The former insurance manager, from Port Macquarie's Smarter Insurance Brokers, lost his job in January after a string of verbal warnings about unsatisfactory work performance.

But his employer soon raised new evidence about his accessing of "hardcore" internet pornography to justify the sacking. Smarter Insurance also claimed his laptop contained a sex tape and images of himself performing sex acts, which he did not deny.

Access outside work In a hearing at the Fair Work Commission, he defended his actions by arguing that he was downloading porn while he was "on a lunch break" or "outside work hours and work premises". He suggested he "probably downloaded some of the pornographic material while he was walking the streets of Port Macquarie".

Commissioner Ian Cambridge said using employer-issued equipment to access pornography would ordinarily constitute workplace misconduct. He said there were "obvious differences" between other sorts of personal internet use, such as internet banking, and downloading pornography.

"Unless the employee worked in the sex industry, it would be difficult to contemplate that the viewing, downloading and/or storage of pornographic material represented proper, work-related use of the employer's equipment," he said. Commissioner Cambridge described the former insurance manager's line of defence as "questionable".

No specific policy But he ruled there was no evidence that the employer had implemented or made known a specific policy that confined the use of its equipment to work-related activities, meaning the claims in this case did not constitute a valid reason for dismissal.

"In the particular circumstances of this case, the subsequently discovered misconduct involving the accessing, downloading and storage of pornographic material could not be properly held to represent valid reason for the dismissal of the applicant," he said. It was also ruled that the small business employer's process for dealing with the sacking was "severely flawed", and had failed to provide the former manager with an opportunity to respond to the reasons for his dismissal.

The company was ordered to pay $10,000 - about eight weeks' wages - as compensation. You don't know what you don't know. Don't let the lack of expert support result in a needless and costly claim. Register to attend a FREE Workplace Updates Seminar to find out if you, as an employer, are fully across everything that could potentially go wrong in you workplace. To find out if your business is above board, take a simple

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