This is a curious decision that may give business a level of comfort with acting in such an arbitrary fashion. It is my view that would be cold comfort. The law is quite clear as to what employers must do in such circumstances. Here is a helpful guide:
- Your IT should be regularly reviewed to ensure misuse is not occurring. Your policies must permit such surveillance. In NSW (the jurisdiction in this case), the failure to bring home to a worker the right to survey their internet usage, is a breach of State Surveillance legislation! A point not argued in the case.
- Workers must be inducted and trained in all policies and procedures and found to be competent. This must be recorded. The training must be in a language and style that can be understood by the recipient. A failure to do so breaches the employer’s OHS obligations and anti-discrimination obligations in each State and Territory.
- Fairness involves considering each person’s personal circumstances. Drawing a line in the sand about the offence is only half the job.
- If it is a notorious fact that others act in the same way as the offender, and management have known this for some time, then management clearly condone the action; especially when managers are doing it.
It is unlikely the case will be appealed because of the humiliating nature of the allegations and findings. But the sense of rough justice that pervades these findings should not embolden employers to move in such an arbitrary fashion. Follow the rules and you will be safe. No one wants workers to share pornography.
There are so many reasons that such acts are repellent to a safe and respectful workplace. However, it would be unwise for employers to act in the same way as Star Casino and expect to be successful in a termination of a long-standing worker.
Andrew Douglas is a workplace relations principal at M+K Lawyers.
