Fair Work Australia has reinstated a dismissed Department of Defence employee despite finding that the employee had breached the Australian Public Service code of conduct by storing pornographic images on a computer hard drive.
The employer’s system also showed a warning to employees each time they logged onto their computers. The reinstatement of the employee to his previous employment was ordered despite FWA finding that there was a valid reason for the termination and that the employer had observed procedural fairness in its investigation and leading up to its decision to dismiss the employee.
In favour of the employee was 25 years of unblemished service, a series of illnesses, the distress of explaining his conduct to his family, the fact that he had been unable to obtain other work and that he exhibited genuine contrition. In those circumstances FWA decided that termination was a disproportionate response to the offence and that the dismissal was harsh.
This result in this case must be considered exceptional. The personal circumstances of the employee were the clear, and essentially the only, reason for FWA deciding in his favour. A penalty was imposed on him in that, because his conduct was found to have contributed to his dismissal, FWA declined to order that he be back paid to the date of his termination.
Despite the ultimate result, the decision does highlight that it is important for employers to have clear policies regarding inappropriate use of all company property including computer systems that are widely publicised and available to employees.
In response to an application by Caltex, Fair Work Australia has approved the use of random drug and alcohol testing at the company’s Kurnell refinery. After a long series of negotiations Caltex had failed to reach agreement with the Australian Workers Union about the drug and alcohol policy to be included in their enterprise agreement. The union argued that testing should only occur where the company had cause to believe that an employee was impaired in the performance of their duties. Evidence was given that this regime applied at other similar facilities owned by other oil companies. Senior Deputy President Hamberger found that random testing should be allowed.
In reaching this decision regard was had to the company’s very strict obligations under occupational health and safety legislation to ensure employee’s safety. Although it was acknowledged that the incidence of drug and alcohol abuse, which had been discovered and acted upon by the company was low, the potentially catastrophic effect of an accident caused by an employee impaired by drugs or alcohol was taken into account.
Employers considering the introduction of such policies should be aware that it is likely that such a policy is only likely to be acceptable in workplaces where accidents are relatively common, or where the effect of an accident is potentially very serious. FWA also imposed conditions that the policy should include counseling in preference to immediate termination of employment and that an employee should have a right of appeal through the agreement dispute resolution procedure.
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
