1
[Note: refer to the Federal Court decision dated 23 July 2014 [2014] FCAFC 89 for result
of appeal.]
Fair Work Act 2009
s.604—Appeal of decision
B, C and D
v
Australian Postal Corporation T/A Australia Post
(C2011/6623)
VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER CRIBB
SYDNEY, 28 AUGUST 2013
Appeal against decision [[2011] FWA 7126] of Commissioner Lewin at Melbourne on 4
November 2011 in matter numbers U2010/15319, U2010/15398, U2010/15320 - Appeal –
unfair dismissal – emailing pornography in breach of policy – dismissal may be harsh, unjust
or unreasonable notwithstanding valid reason – correct approach to assessing valid reason –
correct approach to assessing whether dismissal is harsh, unjust and unreasonable
notwithstanding a finding that there was a valid reason for dismissal..
REASONS FOR DECISION OF VICE PRESIDENT LAWLER AND COMMISSIONER
CRIBB
[1] This Full Bench has before it applications for permission to appeal and cross-appeal
against a decision ([2011] FWA 7126) in relation to unfair dismissal applications brought by
three employees of Australia Post. Section 400 applies to each of the appeals and,
accordingly:
(a) permission to appeal pursuant to s.604(1) must not be granted from a decision
made under Part 3.2 unless FWA considers that it is in the public interest to do
so (s.400(1)); and
(b) appeals on a question of fact can only be made on the ground that the decision
involved a ‘significant error of fact’ (s 400(2)).
[2] This is not a case where there is any serious challenge to the Commissioner’s primary
findings of fact.
[2013] FWCFB 6191
DECISION
E AUSTRALIA FairWork Commission
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2014/2014fcafc0089
[2013] FWCFB 6191
2
[3] There is an emerging trend in the decided cases towards regarding the accessing,
sending or receiving and storing pornography by an employee as a form of serious
misconduct that invariably merits termination of employment. Such a proposition is
inconsistent with basic principle. Accessing, sending or receiving and storing pornography is
not a separate species of misconduct to which special rules apply. In the context of an
application for an unfair dismissal remedy, it is a form of misconduct to which the same
general principles apply as apply in all unfair dismissal matters involving reliance on
misconduct.
[4] We are satisfied that the emerging prominence of dismissals based on pornography
related breaches of employer policy, and a concern that the decision of the Full Bench in
Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) is being misinterpreted,
supplies the public interest required for grant leave to appeal in this case. This case proves to
be a suitable vehicle to address that matter of public interest. We grant permission to appeal.
Having granted permission to appeal, the appeal proceeds as a rehearing albeit that the Full
Bench cannot exercise any of the powers conferred by s.607(3) unless error is established:
Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at [17] and [32].
The relationship between “valid reason” and “harsh, unjust and unreasonable”
[5] This appeal has highlighted a tension or ambiguity in the jurisprudence going to what
is encompassed by the expression “valid reason” in s.387(a) of the Fair Work Act 2009 (Cth)
(FW Act). That tension or ambiguity is rooted in the history of the unfair dismissal remedy. It
is an issue that needs to be considered in some detail.
[6] An unfair dismissal remedy was first provided in Federal industrial legislation in 1993.
Section 170DE of the Industrial Relations Act 1988 (IR Act 1988) was inserted by the
Industrial Relations Reform Act 1993 (Cth) (1988 Reform Act). It provided:
“170DE(1) An employer must not terminate an employee’s employment unless there is
a valid reason, or valid reasons, connected with the employee’s capacity or conduct or
based on the operational requirements of the undertaking, establishment or service.
(2) A reason is not valid if, having regard to the employee’s capacity and conduct and
those operational requirements, the termination is harsh, unjust or unreasonable. This
section does not limit the cases were a reason may be taken not to be valid.”
(underline emphasis added)
[7] In other words, when the unfair dismissal remedy was first enacted, the existence or
otherwise of a “valid reason” for dismissal was the determinant of whether or not the
dismissal attracted an unfair dismissal remedy. Subsection (1) contained a prohibition against
termination unless there was a valid reason. Subsection (2) invalidated a reason if the ‘harsh
unjust or unreasonable’ criterion was met.
[8] The constitutional validity of s.170DE and other provisions introduced by the 1988
Reform Act was challenged in Victoria v The Commonwealth (1996) 187 CLR 416. The
enactment of s.170DE had relied on the external affairs power and the Termination of
Employment Convention to which Australia had subscribed. The High Court held that
s.170DE(2) was invalid but severable. The majority concluded (at 517-9):
[2013] FWCFB 6191
3
“...the inclusion of the “harsh, unjust or unreasonable” test is an additional ground of
unlawful termination that goes beyond the requirement for the reason for termination
to be valid. The terms “harsh, unjust or unreasonable” are not merely a synonym for
“valid”. Had the Parliament recognised the terms as being synonyms, or even the
harsh, unjust or unreasonable test as being a subset of grounds that were not “valid”,
then there would be no reason for changing the onus from employer to employee
between pars (a) and (b) of s 170EDA(1).
... the harsh, unjust or unreasonable criterion is broader than what otherwise would be
the test for validity. ... the inclusion of the “harsh, unjust or unreasonable” criterion
does not implement the terms of the Convention but goes beyond its requirements and
adds an alternative ground for making terminations unlawful.”
(emphasis added, footnotes omitted)
[9] In 1996 the Workplace Relations and Other Legislation Amendment Act 1996
(WROLA Act) effected substantial amendments to the IR Act 1988 – including to the
termination of employment provisions - and renamed it the Workplace Relations Act 1996
(WR Act 1996). The termination of employment provisions in subdivisions A, B, C and CA
of Division 3 of Part VIA of IR Act 1988 were repealed and replaced.
[10] Those amendments (introduced into the Parliament before the decision in Victoria v
Commonwealth was handed down) shifted the primary focus of the Commission’s inquiry
from a consideration of whether or not there was a “valid reason” for the dismissal to whether
the dismissal was “harsh, unjust or unreasonable”. A new s.170CA specified a new “principle
object” of Division 3. The object in s.170CA(1)(c) was “to provide for remedies appropriate
to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable.”
[11] Following those amendments, a ‘federal system’ employee could apply to the
Commission for an unfair dismissal remedy “on the ground that the termination was harsh,
unjust or unreasonable” (s.170CE). Section 170CG(3) of the WR Act 1996 conferred a power
of arbitration on the Commission, following unsuccessful conciliation. That provision
specified a series of matters that the Commission “must have regard to” in determining
whether a termination was “harsh, unjust or unreasonable” including:
“(3) In determining, for the purposes of the arbitration, whether a termination was harsh,
unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity
or conduct of the employee or to the operational requirements of the
employer’s undertaking, establishment or service; and
...
(e) any other matters that the Commission considers relevant.”
[12] Pursuant to s.170CH the Australian Industrial Relations Commission could make an
order that provided a remedy if it had “determined that the termination was harsh, unjust or
unreasonable.”
[2013] FWCFB 6191
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[13] The list of matters specified in s.170CG(3) has been adjusted by amendment, but the
basic structure for grounding the unfair dismissal remedy – a finding that the dismissal was
“harsh, unjust or unreasonable”, with the existence of a “valid reason” being only one of a
number of matters that the Commission was required to consider - has remained unchanged
through successive amendments to the WR Act and in the current unfair dismissal regime in
the FW Act. Section 387 of the FW Act contains the current incarnation of the list of
considerations, first introduced in 1996 in s.170CG(3) of the IR Act 1988, for determining
whether a dismissal is “harsh, unjust or unreasonable”. Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.”
[14] At the time of the Commissioner’s hearing and decision, s.387 referred to “FWA”
rather than “FWC”. The change of name and statutory references has occurred since. We will
refer to the relevant provisions of the FW Act in their current form and note that they were
otherwise identical.
[15] It is important to appreciate that the WROLA Act amendments inverted the previous
priority of consideration. Under s.170DE of the IR Act 1988, as enacted, the focus was on
“valid reason”, with a finding that the dismissal was “harsh, unjust or unreasonable” merely
constituting a way of concluding that there was “no valid reason” for the dismissal. By virtue
of s.170DE(2), dismissals that were harsh, unjust and unreasonable were a subset of
dismissals where there was no valid reason for dismissal. After the amendments affected by
[2013] FWCFB 6191
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the WROLA Act the focus was on whether the dismissal was “harsh, unjust or unreasonable”.
The existence of a “valid reason” was relegated to one of a number of matters that the
Commission was required to consider in determining whether the dismissal was “harsh unjust
or unreasonable”.
[16] It may be noted that this inversion did not occur in a vacuum. A number of Federal
awards contained provisions that required respondent employers to refrain from dismissing an
employee if to do so would be “harsh, unjust or unreasonable”1 (with the consequence that a
number of the authorities on the meaning of that expression occurred in the context of a
dispute over the application of such award conditions – Byrne v Australian Airlines (1995)
185 CLR 410 is an important example). New South Wales had already established an unfair
dismissal regime based on whether the dismissal was “harsh, unjust or unreasonable”. The
note to s.170CA of the WR Act 1996 suggested a legislative intent that the NSW general
approach to unfair dismissal was being adopted and endorsed in the new Federal unfair
dismissal regime introduced by the WROLA Act.
Meaning of “valid reason”
[17] There are numerous Full Bench decisions of the Commission and its predecessors that
endorse and apply the statement of principle by Northrop J in Selvachandran v Peteron
Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran) that “a valid reason is a reason that is
sound, defensible or well-founded”. Selvachandran was decided in 1995 under the original
1993 regime. That is, before s.170DE(2) had been declared unconstitutional in Victoria v
Commonwealth. Under that pre-inversion regime in s.170DE of the IR Act, matters such as
proportionality, inconsistent treatment, condonation and other matters that mitigated against a
termination being fair in all the circumstances were considered within the rubric of “valid
reason” because that was the ultimate determinate of liability in s.170DE.
[18] A consideration of the post-inversion unfair dismissal decisions of the AIRC following
the 1996 WROLA Act demonstrates that such matters were still frequently considered under
the rubric of “valid reason”. When the cases refer to Selvachandran, it is almost invariably
cited simply as authority for the proposition that a “valid reason” is a reason that is “sound,
defensible or well-founded”. Sometimes the additional observation that “a reason which is
capricious, fanciful, spiteful or prejudiced could never be a valid reason” is also quoted.
Those observations, quoted in isolation, do not illuminate the narrowing of the conception of
‘valid reason’ necessarily affected by the inversion.
[19] However, it is instructive to set out Northrop J’s full consideration of the meaning of
“valid reason” in s.170DE of the IR Act 1988 provided in Selvachandran:
“Subsection 170DE(1) refers to “a valid reason, or valid reasons”, but the Act does not
give a meaning to those phrases or the adjective “valid”. A reference to dictionaries
shows that the word “valid” has a number of different meanings depending on the
context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning
given is “2 Of an argument, assertion, objection, etc; well founded and applicable,
sound, defensible: Effective, having some force, pertinency, or value.” In the
1 The constitutional validity of such federal award terms was based on a decision of the High Court in Re Ranger Uranium
Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 that established that
there could be a valid federal system “industrial dispute” over the reinstatement of a group of employees said to have been
unfairly dismissed.
[2013] FWCFB 6191
6
Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid
reason.”
In its context in subsection 170DE(1), the adjective “valid” should be given the
meaning of sound, defensible or well founded. A reason which is capricious, fanciful,
spiteful or prejudiced could never be a valid reason for the purposes of subsection
170DE(1). At the same time the reason must be valid in the context of the employee’s
capacity or conduct or based upon the operational requirements of the employer’s
business. Further, in considering whether a reason is valid, it must be remembered that
the requirement applies in the practical sphere of the relationship between an employer
and an employee where each has rights and privileges and duties and obligations
conferred and imposed on them. The provisions must “be applied in a practical,
commonsense way to ensure that” the employer and employee are each treated fairly,
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported,
when considering the construction and application of section 170DC.
The requirements of subsection 170DE(1) should not impose a severe barrier to the
right of an employer to dismiss an employee. Nevertheless, in cases similar to the one
before the Court, the application of s170DE(1) should always be considered and
decided before consideration is given to the additional limitations on the right of an
employer to terminate the employment of an employee imposed by section 170DE(2)
and subsection 170DC. The purpose of these two provisions is to confer a greater
protection on employees from termination of employment. In this regard the
provisions are not very different from the consequences flowing from an award
provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA
888; (1995) 120 ALR 274 and discussed in Johns. There procedural fairness was held
to have been imported by implication as well as the substantive protection conferred
by the award. The statutory provisions now apply, by reason of the Act, with minor
exceptions, to all employees.
The construction and application of section 170DC and subsection 170DE(2) were
considered by Wilcox CJ in Gibson. His Honour discussed section 170DC under the
heading “Procedural fairness”. With respect, I agree with his opinion on this matter. I
expressed similar views in Johns. But with respect, for reasons already expressed, the
question of procedural fairness arises only after a finding has been made that the
employer has established a valid reason or reasons under subsection 170DE(1).
His Honour the Chief Justice discussed subsection 170DE(2) under the heading
“Substantive fairness”. With respect, for reasons already expressed, the question of
substantive fairness arises only after a finding has been made that the employee has
established a valid reason or reasons under subsection 170DE(1). Under this heading,
his Honour discussed the question of the construction and application of subsection
170DE(2) and in that discussion expressed the opinion:
“In this situation, it seems to me that Mr Ehsman, and anyone else who was
involved in the decision to terminate Mr Gibson’s employment, was entitled to
reason that, if Mr Gibson was not prepared to explain any difficulty he had in
working on a Saturday, in the circumstances it was better to dispense with his
services. That decision was based on a valid reason based on the operational
requirements of the respondent’s business. The limitation imposed by subs(1)
[2013] FWCFB 6191
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of s170DE was satisfied. And, having regard to the size and nature of the
respondent’s business, it seems to me the decision was not harsh, unjust or
unreasonable.”
Implicit in this discussion is the view that the adjective “valid” when used in
subsection 170DE(1) is to be given a meaning similar to the meaning I would give to
it as set out earlier in these reasons. In coming to his conclusion on this aspect, his
Honour had regard to the nature of the employer’s business and the need for the
employer to provide services to its customers. A refusal by the employee to work the
overtime directed, without saying why, was relevant both to the issue of a valid reason
and to substantive fairness under both the subsections of section 170DE. I do not
necessarily disagree with this approach but normally the issue of whether a reason for
termination is valid or not should be considered primarily from the employer’s
perspective while the substantive fairness issue should be considered primarily from
the employee’s perspective even though the perspective of the employer may be of
importance also. The differing onus of proof provisions support this approach.”
(bold and underline emphasis added)
[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v
Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would
otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or
unreasonable” notwithstanding the existence of a “valid reason” means that the class of
dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals
where there is no “valid reason” for the dismissal.
[21] Section 387 specifies a range of matters that must be considered in each case. Section
387(h) requires consideration of “any other matters that FWA considers relevant”. In any
given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that
rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are
“relevant matters” that must be considered pursuant to s.387(h).
[22] Often it will not make any difference to the ultimate outcome whether a particular
circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason,
or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether
the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter
greatly. That will tend to be so when the particular misconduct, shorn of the personal
circumstances of the employee and the broader context beyond the particular acts or
omissions that are said to constitute the misconduct, is clearly a matter that a reasonable
employer is entitled to take seriously. This is such a case.
The Exceptional Facts in Queensland Rail
[23] At this point it is desirable to comment at some detail on the facts in Queensland Rail.
The facts and circumstances in Queensland Rail were exceptional because, as the Full Bench
noted (156 IR 393 at [27]), the employer (QR), “made sustained efforts over a number of
years to make employees aware of its policy and the consequences of breaching the policy”.
[24] Those efforts were outlined by the Commissioner at length in the decision at first
instance (PR973936). There is no suggestion in the Full Bench’s reasons that it rejected any
[2013] FWCFB 6191
8
of the Commissioner’s findings in that regard. On the contrary, the Full Bench set out and
endorsed key portions of the Commissioner’s findings. It is useful to set out a detailed
summary of the Commissioner’s findings because they demonstrate the truly extraordinary
steps taken by the employer in that case to deal with the problem of inappropriate use of its IT
system.
[25] At all material times QR had policies against the inappropriate use of its computer
systems to access pornographic material, sexually explicit messages, images, cartoons, jokes
or to send or distribute offensive material. For example, its 2001 policy stated: “Any QR
employee found to be in breach of this statement will be subject to disciplinary action which
may result in dismissal”. (PR973936 at [11]). In August/September 2002 a video entitled
“Employment Equity: It’s Everyone’s Business” was distributed throughout QR. The video
specifically covered the appropriate use of QR’s computer systems. There was a specific
example on the video on misuse of email. The employee was shown this video on 15
November 2002. (PR973936 at [14]).
[26] In March 2003 QR required all employees to read and electronically acknowledge
appropriate use of QR’s systems. (PR973936 at [15]) This was in addition to the standard
“QR legal notice” that an employee had to acknowledge each time they logged on to the QR
network. This notice advised employees that the system is for business purposes and that
unauthorised use is not acceptable and had to be accepted as a precondition to logging on to
the network (PR973936 at [34]).
[27] It is clear that QR recognised that it had a cultural problem with the sending and
receipt/storage of pornography and other inappropriate material by employees. It took active
and sustained steps to address the problem over an extended period. In late 2004, QR, through
its CEO, determined that it would take sustained and serious action against the inappropriate
use of its electronic communications system. The following occurred:
Between September and December 2004 the CEO of QR issued three
separate updates emailed to all employees on the inappropriate use of QR’s
electronic communications system and setting out the consequences of
inappropriate use of QR’s email and internet facilities. (PR973936 at [19])
On 9 September 2004 and 25 October 2004 the employee’s union released
circulars to members on “inappropriate material on QR’s communication
system”. These circulars warned employees such as the applicant of the
consequences for employees found to have breached the QR’s policy and
the need to treat the issue of inappropriate use of email and internet
facilities extremely seriously. (PR973936 at [20])
On 13th October 2004 the Queensland Council of Unions (QCU) released a
letter to QR’s CEO advising that all Unions party to the QR Award support
the CEO’s position. The letter states “The unions acknowledge that QR has
taken and are taking appropriate steps to ensure that employees are well
aware that such activities are unacceptable and may lead to termination of
employment. Therefore, unions support the CEO update of 3 September
2004”. The QCU also stated that “Unions will be advising our members
that as a result of the significant steps being taken by the employer in this
[2013] FWCFB 6191
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instance, the support which can be provided by their union will be fairly
limited in the event that an employee creates access, download or forward
pornographic and other sexually related material”. (PR973936 at [21])
In November 2004 QR introduced an ‘amnesty’ period that gave
employees an opportunity to removed inappropriate material from their
computers, with the assistance of IT if required. The CEO issued an update
to employees advising the amnesty and stating in bold: “I will stamp out
this practice for the benefit of all employees. You have been warned - if
you ignore the instructions above and inappropriate material is found on
your system, it will cost you your job”. (PR973936 at [22])
In December 2004 each employee was required to acknowledge the
prohibition against inappropriate material. The acknowledgement was
headed in bold capital letters “DON’T JUST TICK THE BOX - READ
THIS INFORMATION CAREFULLY”. The acknowledgment detailed
QR’s approach to inappropriate material and the consequences of looking
at pornographic or sexually explicit material at work, including dismissal.
(PR973936 at [24]).
On 18 August 2005 an article in a weekly newsletter to employees
reminded employees to use QR’s electronic computer systems
appropriately and that “ongoing auditing and scanning to identify and
investigate inappropriate material on QR systems will continue”.
(PR973936 at [27]) That same day, the CEO issued an update to all
employees entitled “QR continues strong stance on appropriate use of
electronic communications systems”.
The update reminded employees of the previous CEO Updates on the issue
and the two week clean-up period in November 2004.
The update reiterated the message that “an employee’s employment with
QR would be terminated if it was found after investigation that they
deliberately created, copied, accessed, stored, downloaded or forwarded
pornographic or sexually explicit material using QR’s electronic
communication systems”.
It also noted that “QR Unions fully supported this tough stance and
advised their members that they will be fairly limited in the level of support
that they can provide for employees who now find themselves in this
position”.
It pointed employees to the location of the new specification as well as the
website on the Infonet. The update advises employees that the new
specification “clearly defines and addresses all types of inappropriate use
and material ranging from pornography and sexually explicit material to
infringement of copyright through the unauthorised reproduction of work
such as music, video, cartoons, games and any other form of unauthorised
software”.
[2013] FWCFB 6191
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The CEO also stated in this update “We will continue with ongoing
auditing and scanning of our electronic communication systems to identify
and investigate any inappropriate material on our system. It is your
responsibility to keep your computer free from inappropriate material at
all times. We will not accept any excuses”.
This update formed the basis of an article posted on QR’s intranet.
(PR973936 at [28] and [29]).
On 6 September 2005 and 16 October 2005 employee payslips contained a
reminder notice to employees that the inappropriate use of QR’s electronic
communication systems is not acceptable and may have serious
consequences. The notice stated in capitals:
“INAPPROPRIATE USE OF QR’S ELECTRONIC
COMMUNICATION SYSTEMS IS NOT ACCEPTABLE AND MAY
HAVE SERIOUS CONSEQUENCES. INAPPROPRIATE USE AND
MATERIAL RANGES FROM PORNOGRAPHY AND SEXUALLY
EXPLICIT MATERIAL TO INFRINGEMENT OF COPYRIGHT
THROUGH UNAUTHORISED REPRODUCTION OF MUSIC
VIDEOS, CARTOONS, GAMES AND ANY UNAUTHORISED
SOFTWARE. MAKE SURE YOU USE QR’S SYSTEMS
APPROPRIATELY. IF IN DOUBT, ASK YOUR SUPERVISOR, READ
THE NEW INAPPROPRIATE USE OF ELECTRONIC
COMMUNICATION SPECIFICATION OR SEE THE
INAPPROPRIATE USE WEBSITE:
HTTP://QR/CORPORATES/SHAREDSERVICES/INAPPROPRIATE
MATERIAL/.”
(PR973936 at [30] and [32])
[28] This is the context in which the Full Bench reached the conclusion on the rehearing
that upheld the dismissal of the employee notwithstanding his long service of 27 years. The
Full Bench stressed that “in this case the Appellant went to great lengths to alert employees to
the policy and to warn them that breaches would lead to dismissal.” And that, “[d]espite this
the employee breached the policy on a number of occasions in a substantial way” (156 IR
393 at [27]). In the special circumstances of that case, the Full Bench held that “[w]hile
appreciating that loss of employment is a bitter blow, we see no proper basis on which the
Commission might properly intervene to reverse the employer’s decision in this case”.
[29] At first instance in Queensland Rail, the Commissioner had placed determinative
weight on the very long service of the employee in finding that the dismissal was harsh. The
Full Bench addressed a concern that “[t]he Commissioner’s approach might well be
interpreted to mean that employees with long service ought be immune from termination of
employment unless guilty of breaches of the policy involving large amounts of ‘hard core’
pornography” and noted: “We think that an employer is entitled to take a firmer line than
that.” (156 IR 393 at [17]) The Full Bench then immediately placed emphasis on the fact that
the employer went to “great lengths to alert employees to the policy and to warn them that
breaches would lead to dismissal” as if to underscore the obviously correct proposition that
long service does not render an employee immune from termination for breach of policy.
http://qr/CORPORATES/SHAREDSERVICES/INAPPROPRIATEMATERIAL/
http://qr/CORPORATES/SHAREDSERVICES/INAPPROPRIATEMATERIAL/
[2013] FWCFB 6191
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[30] The Full Bench made an important concluding observation (156 IR 393 at [23]):
“[23] There is one additional issue requiring comment. The Appellant’s policy states
that any deliberate breach involving pornographic or sexually-related material will
result in termination of employment. Although in this case we have decided not to
interfere with the application of that policy, it ought not be assumed that the
Commission would uphold the employer’s right to apply the sanction of termination in
all cases of deliberate breach regardless of the circumstances. As s.652 of the Act
makes clear, in determining whether a termination of employment is harsh, unjust or
unreasonable the Commission is required to take a range of matters into account. In
addition the statutory provisions are intended to ensure a “fair go all round”: s.635(2).
In the proper exercise of its functions the Commission must exercise its own judgment.
Whatever sanction the employer’s policy prescribes, the Commission must decide
whether the termination is harsh, unjust or unreasonable.”
(underline emphasis added)
[31] This is properly to be seen as a reassertion of the basic principle that in each case,
whether a termination is “harsh, unjust or unreasonable”, must be decided on the facts and
circumstances of the particular case. The Full Bench expressly contemplated that, in a
different case, the particular circumstances might render a termination for a pornography
related breach of policy harsh, unjust or unreasonable notwithstanding the policy stating that
any deliberate breach will result in termination. The decision in Queensland Rail is
inconsistent with the proposition that there is any automaticity in concluding a termination
based on pornography-related misconduct will not be harsh, unjust or unreasonable.
[32] The Full Bench of the Industrial Relations Commission of NSW read Queensland Rail
in a similar way in Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288:
“64 More recently, the Full Bench of the Australian Industrial Relations Commission
considered an appeal involving the dismissal of an employee for breaching his
employer’s policy prohibiting the use of its electronic communications system for the
purpose of storing and transmitting sexually related, pornographic or violent images:
Queensland Rail v Wake, PR974391, 19 October 2006. The Full Bench in that case
upheld the appeal by the employer from the decision at first instance where the
Commissioner found the dismissal was harsh.
65 It is apparent from the decision in Queensland Rail that the employer was far more
diligent in seeking to eliminate use of its computer system by employees for storing
and transmitting pornographic material than NCR was in this case and that the
respondent employee continued to ignore numerous directions and warnings.
Moreover, there was an explicit warning that:
[A]n employee’s employment with QR would be terminated if it was found
after investigation that they deliberately created, copied, accessed, stored,
downloaded or forwarded pornographic or sexually explicit material using
QR’s electronic communication systems.
66 As the Full Bench observed at [17]:
[2013] FWCFB 6191
12
In this case the Appellant went to great lengths to alert employees to the policy
and to warn them that breaches would lead to dismissal. Despite this the
employee breached the policy on a number of occasions in a substantial way.
67 Queensland Rail is also distinguishable from the present case by the fact that no
question of culture or inequality of treatment was involved and the issue for the Full
Bench revolved around no more than that which was summarised at [22]:
The Appellant, rightly in our view, made sustained efforts over a number of
years to make employees aware of its policy and the consequences of
breaching the policy. Despite those efforts and repeated warnings the employee
breached the policy in a substantial way and on a number of occasions.
68 It may be thought from certain observations by the Full Bench that decisions about
whether an employer was entitled to terminate the employment of an employee who
transmits and stores pornographic material on the employer’s electronic
communication system would be determined according to the nature of the
pornography involved (eg “hard core”), or how sexually explicit the material was, or
the level of violence portrayed: see [17], [18], [22]. We do not believe such an
interpretation is open but if that were the basis upon which the Australian Commission
were to approach such matters we should indicate we do not, with respect, agree with
it. Our approach is summed up at [18]-[21] and [83] of this judgment. As the Full
Bench stated in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 at
344, the former Commission in Court Session was not “a court of morals but one of
law”. That sentiment applies equally to this Commission.
69 That the Full Bench in Queensland Rail was not setting up a test based on the
nature of the pornography involved is supported by the view it expressed that, whilst
its decisions should support employers who were striving to stop inappropriate email
traffic (see [3] and [21]), it also made it clear its support was “subject always to
considerations of fairness”. Further, we note what the Full Bench stated at [23]:
Although in this case we have decided not to interfere with the application of
that policy, it ought not be assumed that the Commission would uphold the
employer’s right to apply the sanction of termination in all cases of deliberate
breach regardless of the circumstances. As s.652 of the Act makes clear, in
determining whether a termination of employment is harsh, unjust or
unreasonable the Commission is required to take a range of matters into
account. In addition the statutory provisions are intended to ensure a “fair go
all round”: s.635(2). In the proper exercise of its functions the Commission
must exercise its own judgment. Whatever sanction the employer’s policy
prescribes, the Commission must decide whether the termination is harsh,
unjust or unreasonable.”
[33] We respectfully endorse that analysis.
Emailing pornography in breach of policy as misconduct for which dismissal is not
harsh, unjust or unreasonable
[2013] FWCFB 6191
13
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the
reason(s) being considered are the employer’s reason(s). In a misconduct case, the
Commission is concerned with whether the misconduct in fact occurred, not with whether the
employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging
Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat
Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is
assessed from the perspective of the employer and by reference to the acts or omissions that
constitute the alleged misconduct on which the employer relied, considered in isolation from
the broader context in which they occurred. It is the reason of the employer, assessed from the
perspective of the employer, that must be a “valid reason” where “valid” has its ordinary
meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a
valid reason “should not impose a severe barrier to the right of an employer to dismiss an
employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental
term of the contract of employment that obliges employees to comply with the lawful and
reasonable directions of the employer. In this way, a substantial and wilful breach of a policy
will often, if not usually, constitute a “valid reason” for dismissal.
[37] A prohibition on using an employer’s IT system to access, send or receive and store
pornography or other unacceptable material is a lawful, rational and reasonable policy for an
employer to implement for a number of reasons that are not related to any moral offence at
pornography. The main reasons are:
Limiting legal liability to other employees, clients, customers or other third parties,
especially in relation to harassment. A reasonable employer will take steps to suppress
conduct that it knows may cause offence to others.
The employer is entitled to ensure that its resources, including its IT resources, are
devoted solely to work purposes (and such reasonable personal use as it chooses to
permit as owner or legal controller of its IT infrastructure). An employer can be
legitimately concerned to prevent the diversion of its resources and the costs
associated with such activity. Of course, the monetary and time cost involved in
sending an email is very small. However, the wasting of work time by an employer
accessing (‘surfing’) such material may be significant.
Preventing reputational damage to the employer being identified to third parties or the
public as tolerating such material or such misconduct.
[38] It is the first of these reasons that arguably is the most important. In Queensland Rail
the Full Bench observed:
“[3] ... It cannot be doubted that electronic traffic in sexually-related, pornographic and
violent images is of legitimate and growing concern to employers. Such images, apart
from being offensive to many, can undermine acceptable standards of behaviour in the
workplace and create an environment conducive to harassment and discrimination. It is
possible, even likely, that an employer which does not take active steps to eliminate
traffic of this kind on its email and other electronic communication systems may incur
[2013] FWCFB 6191
14
legal liability, under anti-discrimination legislation for example. It is reasonable and,
arguably, necessary that employers take what steps they can to eradicate traffic in such
images. Although this case raises issues about the control of traffic in sexually-related,
pornographic and violent images, similar issues may arise in relation to images of
other kinds, such as images related to ethnicity or gender identity.”
[39] The Full Bench in Queensland Rail noted that “[t]he use of company electronic
communications systems for storage and transmission of images containing sexually-related,
pornographic and violent material is a serious and socially important issue.” (para [22]) A
policy against such material supports the employer’s duty of care owed to all its employees
and the concomitant duty to provide employees with a safe working environment free from
discrimination and harassment, including sexual discrimination and harassment. Pornography
accidentally seen by another employee can cause offence and distress. Deliberately sending or
showing pornography to another employee uninvited is a well recognised form of sexual
harassment. Policies prohibiting the sending or receipt and storage of pornography rationally
and reasonably assist in the discharge of those duties and in limiting potential legal liability in
relation to employees but also clients, customers or other third parties.
[40] Thus, the accessing, sending or receipt and storage of pornography will typically
contravene an employer policy and, adopting the approach set out above, that contravention
will usually constitute a “valid reason” for termination (that matter being determined from the
perspective of the employer).
[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the
Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the
existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v
McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB
4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited
[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v
Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd
[2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas
Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal
Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High
Court in Victoria v Commonwealth and is consequence of the reality that in any given case
there may be “relevant matters” that do not bear upon whether there was a “valid reason” for
the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is
harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer
relied (together with the employee’s disciplinary history and any warnings, if relied
upon by the employer at the time of dismissal) but otherwise considered in isolation
from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This
may include such matters as a history of toleration or condonation of the misconduct
by the employer or inconsistent treatment of other employees guilty of the same
misconduct.]
[2013] FWCFB 6191
15
(3) The personal or private circumstances of the employee that bear upon the substantive
fairness of the dismissal. [This includes, matters such as length of service, the absence
of any disciplinary history and the harshness of the consequences of dismissal for the
employee and his or her dependents.]
[43] The determination of whether there was a valid reason proceeds by reference to the
matters in category (1) and occurs before there is a consideration of what Northrop J
described as “substantive fairness” from the perspective of the employee. Matters in
categories (2) and (3) are then properly brought to account in the overall consideration of the
whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a
“valid reason”.
[44] This may best be illustrated by an example:
A bus company has a strict policy that drivers are to obey the rules of the road at all
times and a particular and prominent policy that a driver must never use a mobile
phone while driving. A passenger complained about a driver using his mobile phone
while driving. The employer investigated the complaint. Closed circuit video showed
the driver hesitating before taking an incoming call for a few seconds and then making
a brief outgoing call when the bus was next stopped. The bus company dismissed the
employee for breaching the policy prohibiting mobile phone use while driving or in
the bus.
[45] At this point there is clearly a valid reason. Valid reason is viewed from the
perspective of the employer. That view disregards issues of substantive fairness from the
employee’s perspective and there is clearly a valid reason. The employer had a vital interest in
limiting its legal liability from accident or injury associated with a breach of the road rules,
especially using a mobile phone while driving. The employer’s policy was obviously
reasonable. The employer was entitled to view compliance with its policy against the use of
mobile phones by drivers in its public buses as a very serious matter. Now consider the
following additional circumstances personal to the employee:
The employee’s wife was suffering from severe depression and occasionally suicidal.
That morning his wife was severely depressed and had begged him not to go to work.
The call that he took was a call from his wife. He hesitated before taking the call but
was frightened that his wife may be in a crisis state and that not taking the call could
lead to catastrophic consequences. He took the call but only to tell his wife that he
could not speak to her because he was driving and would call her back as soon as it is
safe for him to do so. He did that when the bus was stopped and ascertained that there
was no crisis. The employee had given long and loyal service and had an unblemished
disciplinary record. Dismissal would likely have had very severe consequences for the
employee. The employee acknowledged his fault and was remorseful.
[46] It can be seen that those additional circumstances put a totally different complexion on
the dismissal. In the case on which this example is based, the dismissal was held to be harsh,
notwithstanding the existence of a valid reason, and the employee was reinstated. No backpay
was ordered as a reflection of employee’s misconduct (see Nasrieh v ComfortDelGro
Cabcharge Pty Ltd T/A Hillsbus [2012] FWA 9617). That outcome is consistent with the
approach of Northrop J in Selvachandran. When issues of substantive fairness from the
employee’s perspective were considered, the dismissal was harsh notwithstanding the
[2013] FWCFB 6191
16
existence of a valid reason viewing the conduct in isolation of the employee’s personal
circumstances.
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and
Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but
they cannot exclude the possibility that instant dismissal of an individual employee for
non-compliance may, in the particular circumstances of an individual case, be harsh,
unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures
does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has
consistently applied the proposition that instant dismissal of an employee for non-compliance
with his or her employer’s policies may, in the particular circumstances of an individual case,
be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP,
Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000]
Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd
(2003) 124 IR 217 (Jupiters) at [12]-[13].
[49] In Jupiters an employee had breached a policy prohibiting gambling. The Full Bench
observed:
“The fact that Jupiters regarded the prohibition on gambling as absolute and enshrined
the prohibition in the contract of employment is not determinative. In each case all of
the circumstances must be taken into account.”
[50] In Fearnley an employee was dismissed for breaching a policy against fighting. The
Full Bench upheld the Commissioner’s finding that because the employee was acting in self-
defence there was no valid reason and the dismissal was harsh unjust or unreasonable.
[51] The principle just stated is equally applicable in cases of dismissal for misconduct in
accessing or emailing pornography contrary to an employer’s policy. Any notion that a clear
and knowing breach of policy will always provide a valid reason for a dismissal that will not
be harsh, unjust or unreasonable, no matter the employee’s length of service and other
circumstances, is inconsistent with basic principle. Every case must be assessed by reference
to its particular circumstances.
[52] In pornography cases there will typically be no contest in relation to whether or not the
misconduct – the breach of policy - occurred because the sending or receipt of the offending
material will usually be proved unequivocally by computer records.2 That is, in most cases
there will be no contest as to the existence of a valid reason. But that is not the end of the
inquiry. The bedrock principle to which we have referred means that an issue remains as to
whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of
that valid reason. Typically, as in this case, it will be the central issue.
[53] A determination as to whether a dismissal was harsh, unjust or unreasonable involves
the application of a broad discretionary standard. The discretion is nevertheless one that must
2 Of course, it may properly be open to an employee to deny the misconduct on the basis that someone other than the
employee used the employee’s computer or logon.
[2013] FWCFB 6191
17
be exercised judicially, that is, in accordance with applicable legal principles. As noted, the
key principle here is the principle that a dismissal may be harsh, notwithstanding the existence
of a valid reason for dismissal, because it is disproportionate to the misconduct. The classic
statement of principle comes from the judgement of McHugh and Gummow JJ in Byrne v
Australian Airlines Ltd (1995) 185 CLR 410 at 465:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[54] Their Honours noted that the distinction between procedure and substance is elusive
and continued (185 CLR 410 at 466):
“That is not to say that the steps taken, or not taken, before termination may not in a
given case be relevant to consideration of whether the state of affairs that was
produced was harsh, unjust or unreasonable.” ...
[55] Their Honours noted that the question of whether a dismissal is harsh, unjust or
unreasonable “is not answered by imposing a disjunction between procedure and substance. It
is important that matters not be decided simply by looking to the first issue before there is
seen to be any need to enter upon the second.” (185 CLR 410 at 466).
[56] At first blush, there is a tension between these statements and the approach of
Northrop J in considering the existence of a valid reason before considering issues of
substantive fairness. However, that tension is more apparent than real. In Byrne v Australian
Airlines the High Court was concerned with an award clause that prohibited dismissal if to do
so would be “harsh, unjust or unreasonable”. The award clause made no reference to “valid
reason”. Northrop J was concerned with a provision, s.170DE, that required, on its proper
construction, the consideration of “valid reason” from the employer’s perspective before
turning to considerations of substantive unfairness and thus whether the dismissal was harsh,
unjust and unreasonable – a different issue. That is an approach which fits well with the form
of the post-inversion unfair dismissal remedy.
[57] In Byrne v Australian Airlines (1995) 185 CLR 410 at 467 McHugh and Gummow JJ
endorsed the observations of Sheppard and Heerey JJ in Bostik (Aust) Pty Ltd v Gorgevski
(No 1) (1992) 36 FCR 20 at 28 in relation to the phrase “harsh, unjust or unreasonable”:
“These are ordinary non-technical words which are intended to apply to an infinite
variety of situations where employment is terminated. We do not think any redefinition
or paraphrase of the expression is desirable. We agree with the learned trial judge’s
view that a court must decide whether the decision of the employer to dismiss was,
viewed objectively, harsh, unjust or unreasonable. Relevant to this are the
circumstances which led to the decision to dismiss and also the effect of that decision
on the employer. Any harsh effect on the individual employee is clearly relevant but of
[2013] FWCFB 6191
18
course not conclusive. Other matters have to be considered such as the gravity of the
employee’s misconduct.”
[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or
unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process.
The Commission is required to consider all of the circumstances of the case, having particular
regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of
the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be
brought to account as weighing against a finding that dismissal was a fair and
proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.
[60] It needs to be stated clearly that a determination of whether a given dismissal for the
sending or receipt and storage of pornography is disproportionate to the misconduct such as to
be “harsh, unjust or unreasonable” involves a consideration of all of the circumstances and a
weighing of the gravity of the misconduct against the various factors that mitigate against
dismissal as a proportionate (fair) response to the misconduct, including, of course, factors
subjective to the particular employee (such as age, length of service, service record etc) to
determine whether those matters in combination rendered dismissal a disproportionate penalty
for the misconduct such that it ought properly be characterised as “harsh” notwithstanding the
existence of a “valid reason”.
[61] The formulation, implementation, dissemination and enforcement of polices are a
matter within the prerogative of management. The almost infinite variety of businesses and
their circumstances necessarily leads to great variability in employer approaches to those
matters. In particular, there is great variability in the approach of employers to:
The form and content of policies. (Employer policies come in all shapes and sizes.
Some employers have voluminous policies filled with detailed prescription. Others
have polices expressed in broad terms.)
They way in which employees are educated as to the content of polices.
The way in which polices are enforced (some employers enforce their policies
rigorously, other employers allow a situation to develop where particular breaches
of policy go unanswered) and in disciplinary procedures and the approach to
disciplinary decision making.
[62] Breaches of policy can often cover a spectrum from the trivial, minor or technical to
the very serious.
[63] All or virtually all medium to large employers have a range of policies that employees
are required to observe, including a policy against the accessing, transmission or storage of
pornography and other unacceptable or inappropriate material and a policy against harassment
[2013] FWCFB 6191
19
and victimisation. Most employers train employees in the employer’s policies. Many if not
most employers require employees to familiarise themselves with the employer’s policies.
Many if not most employers have logon notices reminding employees using the employer’s
IT system that they are bound by the employer’s policies. Common experience dictates that
such policy training often does not result in enduring employee familiarity with the policies
and that logon reminders become, as it were, part of the wallpaper.
[64] The nature of material that will come within descriptors such as “inappropriate”,
“unacceptable” or “pornographic” and the like will present as a spectrum. The lines of
delineation between appropriate and inappropriate or acceptable and unacceptable are not
sharp because they are broad, even amorphous, terms in respect of which reasonable minds
might differ. Emailing pornography to a friend or other willing recipient is objectively a less
serious breach of policy than emailing pornography to unwilling recipients or for the purposes
of harassment.
[65] Particular conduct may breach a policy so as to constitute a valid reason but dismissal
for that conduct without prior specific warning may be harsh. For example, an employer may
have a policy against swearing in the workplace. Such a policy is supported by the same key
reason justifying an anti-pornography policy. Swearing in a workplace can lead to an
environment where the risk of abuse, harassment and victimisation, and thus the potential
legal liability of the employer, is increased. In each case the policy furthers the legitimate
interest of the employer to maintain a workplace where conduct that may cause offence to
other employees is minimised. However, one can readily hypothesise a case where the breach
of a swearing policy would not be seen by any reasonable person as justifying dismissal. In a
workplace where swearing occurs without warnings or disciplinary response, selecting a
single instance of swearing by a stressed employee with long and unblemished service as a
basis for dismissal would be seen by any reasonable person as harsh and unfair.
[66] In Byrne McHugh and Gummow JJ endorsed the decision in Lane v Arrowcrest Group
Pty Ltd (1990) 27 FCR 427 at 456 in the following terms (1995) 185 CLR 410 at 467:
“...von Doussa J considered the example of the dismissal of an accountant who held a
position of trust where it was discovered after the dismissal that the accountant had
been systematically embezzling money from the employer. His Honour said it would
be astonishing if the employer could not resist an allegation that the dismissal was
harsh, unjust or unreasonable, within the meaning of the relevant award, by pointing to
those facts discovered after the dismissal, so long as they concerned circumstances in
existence when the decision was made. His Honour concluded: “Whether the decision
can be so justified will depend on all the circumstances. A circumstance, likely to
favour the decision to dismiss, would be that fraud or dishonesty of the employee had
caused or contributed to the employer’s state of ignorance. A circumstance likely to
weigh against the decision would be that the employer had failed to make reasonable
inquiries which would have brought existing facts to its knowledge before the
dismissal occurred.”
(underline emphasis added)
[67] Thus, a failure to monitor compliance or enforce a policy can be a relevant factor that
weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or
unreasonable. If widespread breaches of policy, of the sort that occurred in this case, occur
[2013] FWCFB 6191
20
without an employer response then this weighs against a decision that the dismissal was
justified and not harsh, unjust or unreasonable.
[68] Bearing in mind that, putting aside the effect of an employer’s policy, it is not
unlawful for an employee to access or email pornography of the sort with which this case is
concerned, generally speaking, if an employer wishes to elevate contravention of a policy
against accessing or transmission of pornography and other unacceptable material on its IT
system to the level where a breach of the policy constituted by a series of group emails of
unacceptable material to willing recipients will be of an order of seriousness to justify a
dismissal (especially of an employee with a substantial period of satisfactory service) that will
likely be immune from a finding that it was harsh, unjust or unreasonable, then notions of ‘a
fair go all round’ dictate that the employer must have taken adequate steps to bring home to
employees that breaches will be treated seriously and will likely result in dismissal.
[69] If breaches of policy present as a spectrum of seriousness, particular mitigating factors
that may make a dismissal harsh notwithstanding the existence of a valid reason also present
as a spectrum. The adverse personal consequences of a dismissal tend to increase with age
and duration of employment. For some employees, the loss of employment is not particularly
damaging. A young, single employee with an in-demand trade or skill will likely find new
employment very quickly. However, for an older employee without qualifications or a trade,
dismissal can amount to a personal catastrophe and lead to long term unemployment, serious
depression, loss of the family home, failed relationships and all of the myriad tribulations that
flow from that for children.
[70] The point is that there are some forms of wilful misconduct (like deliberate fraud
against the employer or a serious unprovoked assault) that will almost certainly merit
dismissal irrespective of an employee’s length of service, good disciplinary record and
personal circumstances. Employees do not need to be warned that such conduct will be treated
seriously by the employer. (Albeit that, even then, it is possible construct extreme scenarios
where it may be objectively unfair to dismiss the employee – for example, the misconduct
occurred while the employee was suffering a one-off episode of automatism arising from a
injury caused negligently by another employee). There are other forms of misconduct that are
clearly not such as to merit summary dismissal but should be the subject of a warning or
warnings or ‘active steps’ that bring home to the employee that the employer regards the
conduct in question as serious and meriting dismissal before dismissal occurs, particularly
where the employee has substantial service. That is so in the present case.
The circumstances in the present case
[71] The three employees in this appeal, Mr B, Mr C and Mr D, admitted sending the
emails in question. Mr B, sent 6 unacceptable emails to his home email address and sent
emails from his home email address to work friends at their Australia Post email address –
one with a video attachment depicting an extreme pornographic act. Mr C sent 11 emails. Mr
D, was a blue collar employee who did not have an Australia Post logon and was dismissed
for sending multiple emails from his private home computer to groups who included work
friends at their Australia Post email address.
[72] Mr Dwyer, the CEPU official who represented the employees at first instance, did not
make a submission that there was no valid reason for the dismissals. The conduct was
admitted and the case proceeded on the basis that there was a clear breach of policy (at least
[2013] FWCFB 6191
21
in the cases of Mr B and Mr C)3. Mr Dwyer’s submissions proceeded on an assumption that
there was a valid reason for the dismissals. Mr Dwyer’s written submissions were directed at
establishing that the dismissals were harsh notwithstanding that the admitted breaches may
have provided a valid reason for the dismissals.
[73] The breaches of policy in this case only attracted management attention and a
disciplinary response as a result of the installation of a new software filter on the Australia
Post email system. The new filter monitored email transmissions in and out of the system and
could recognise and flag emails with image attachments likely to be pornographic. In this way
instances of pornographic material being emailed by employees in the Dandenong Letter
Centre (DLC) came to the attention of Human Resources and a decision was made to conduct
an investigation. Partial searches of the stored emails of the individuals concerned, and
Australia Post employees listed as recipients of the emails, revealed a large number of
breaches involving a large number of employees at the DLC - including supervisors and
managers within the DLC. The evidence established that Australia Post did not conduct a
comprehensive search of stored email for all employees at the DLC. It follows that the
number of employees engaging in the conduct in question may have been even higher than the
number revealed by the investigations that were conducted.
[74] Australia Post conducted a disciplinary process in relation to some 40 employees. A
number of employees were terminated, including the Appellants in this case. Others received
a lesser sanction or warning. It appears that dismissal, rather than a warning or other lesser
sanction, was determined by whether emails identified in the partial searches were sent or
merely received and stored, the number of emails sent and the extremity of the attached
material – with the inference available from Mr B’s circumstances that extreme material was
effectively treated as meriting automatic dismissal.
[75] The Commissioner found that the dismissals of Mr R and Mr C were not harsh, unjust
or unreasonable but that the dismissal of Mr B was harsh in all the circumstances. The
Commissioner found that reinstatement was not an “appropriate” remedy for Mr B and
awarded compensation. Mr C and Mr D appealed against the dismissal of their applications.
Mr B appealed against the Commissioner’s refusal of the remedy of reinstatement. Australia
Post cross-appealed in relation to the granting of Mr B’s application, contending that the
Commissioner erred in finding that Mr B’s dismissal was harsh.
[76] Before the Commissioner, none of the Appellants disputed the misconduct alleged
against them. A finding that there was a valid reason was inevitable and the only real issue
was whether dismissal was a disproportionate disciplinary sanction so as to render the
dismissals harsh. Nevertheless, most of the Commissioner’s decision is devoted to a
consideration of “valid reason” (that is, the requirement in s387(a)).
[77] In relation to the material that the Appellants had transmitted, the Commissioner held:
“The nature of the material exhibited ranges from displayed images and text in email
messages or attachments to emails. The content of the material spans an extraordinary
range from the banal, such as images of overflowing ash trays, through questionable
3 Mr D did not send any emails from an Australia Post computer or using an Australia Post logon and there was an issue
taken that his sending emails from his home computer using his private internet connection, albeit to work friends at their
Australia Post email address, constituted a breach of the Our Ethics policy relied on by Australia Post.
[2013] FWCFB 6191
22
attempts at humour at the expense of persons identifiable by some particular physical
or other characteristic, such as images of obese naked, or scantily dressed bodies, to
highly explicit video files of orgiastic sexual intercourse of various types.”
[78] The Commissioner spelt out in some detail the rationale for the policy and the
legitimate interests of Australia Post that the policy protected (see especially paras [24] to
[26]).
[79] The Commissioner referred with apparent approval to the “distinction was drawn by
Australia Post for disciplinary purposes, between an individual’s receipt of and access to
inappropriate material and an individual sending, forwarding or distributing the inappropriate
material” as “seemingly designed to protect the relevant interests of Australia Post and
mitigate the objective risks by preventing the distribution, circulation and accumulation of the
material giving rise to those risks” (para [23]).
[80] The matters specified in s.387(b) to (g) have no material bearing on the outcome of
these appeals and the Commissioner’s treatment of them is not in issue.
[81] The Commissioner addressed the requirement in s.387(h) to consider other “relevant”
matters as follows:
“Other relevant matters
[38] The Australia Post Employee Counselling and Discipline Policy and Procedures
guide provides for a range of disciplinary action, following an inquiry, short of
termination of employment, including a transfer to another position at the same or a
lower level, a reduction in salary, warnings and formal counselling. This is a relevant
factor that I will take into account in addition to the length of service of the
Applicants. I will also take into account that none of the Applicants had been subject
to previous disciplinary action in relation to the reason for the termination of their
employment.”
[82] The Commissioner gave his conclusions on the application of the statutory test in
relation to each of the Appellants as follows:
“Harsh, unjust and unreasonable
[39] I now tum to consider whether the termination of the Applicants employment was
harsh, unjust and unreasonable in each case.
D
[40] Mr D was an employee of Australia Post for 17 years, employed at the
Dandenong Letter Centre as Mail Officer.
[41] In my view, the decision to terminate the employment of Mr D was not harsh,
unjust or unreasonable. The evidence of Mr D using the Australia Post email system
for the purpose of distributing inappropriate material in the Dandenong Letter Centre
is not mitigated in general or particular either by reason of Mr D being incited,
encouraged or somehow otherwise excused for the distribution of that material by
[2013] FWCFB 6191
23
management. Even weighing the service of Mr D and the alternative disciplinary
options open to Australia Post in lieu of the termination of Mr D’s employment I reach
the same conclusion.
C
[42] Mr C was an employed at the Dandenong Letter Centre as a Mail Officer, prior to
the termination of his employment Mr C acted in the position of Process Leader. Mr C
was an employee of Australia· Post for approximately 11 years.
[43] I reach the same conclusion in respect of Mr C as I have for Mr D.”
Consideration
[83] Australia Post was correct to be concerned about the existence of a relatively large
group of employees in the DLC who were using the Australia Post IT system to send and
receive and store pornography and other unacceptable material contrary to its IT policy.
Australia Post’s legitimate concerns about the sending and or receipt and storage of
pornography by employees are based on the matters referred to in paragraph [37] above, not
to any moral offence at pornography per se.
[84] As should be evident from the discussion above, there was clearly a valid reason for
the dismissals in this case. Viewing the conduct from the employer’s perspective, as explained
by Northrop J in Selvachandran, the employees engaged in conduct in breach of a reasonable
policy that Australia Post was entitled to treat as an important policy and they did so generally
knowing that the conduct was not permitted. Subject to a qualification in relation to Mr D, the
breaches of policy by the employees were moderately serious but were certainly not in the
most serious ‘category’. Most of the material was softcore pornography and no more
salacious than material that might be viewed on free to air television almost any night of the
week. A small amount of the material is properly classified as hardcore.
[85] The three Appellants all had substantial periods of satisfactory service (Mr D – 17
years, Mr B – 13 years and Mr C, 11 years). Dismissal for each of those employees was a
serious matter that put them and their families at risk of significant personal hardship. When
there is an objective focus on the reasons for the policy as a material consideration in
assessing the seriousness of the breach, it is hard to see how the proper vindication of
Australia Post’s interests warranted the termination of such long serving employees without
prior warning for sending such material to willing recipients given the prior culture of
toleration at the DLC and the absence of any evidence of the material travelling beyond
willing recipients or friends who were not offended.
[86] In relation to Mr D, who did not have an Australia Post logon or email address and
who sent emails from his home computer using his own private internet connection, there was
an issue as to whether he could be said to have “used” Australia Post’s email system contrary
to the policy. It is understandable that an employee could proceed on the basis that such
conduct did not involve them “using” the Australia Post email system. However, in relation to
the distribution of offensive material to persons within Australia Post, Australia Post is
entitled to appeal to the employee’s duty of good faith and fidelity (or its “Our Ethics” policy)
as a basis for contending that a reasonable employee ought to have realised that Australia Post
[2013] FWCFB 6191
24
would not approve of such material being sent into the Australia Post IT system from an
employee’s private email address and that it ought not be done.
[87] In relation to Mr B, the material sent to his own home email address did not increase
the relevant risk to Australia Post.
[88] In addition to long service, good disciplinary records and the harsh economic
consequences for the Appellants and their families, Mr Dwyer had relied on a number of other
matters before the Commissioner in contending that the dismissals were harsh, unjust or
unreasonable. Those matters were set out in detail in a lengthy outline of final submissions.
Matters on which those submissions focussed included:
The absence of any evidence of a harm or damage.
A culture of tacit acceptance or condonation.
The absence of any warning of dismissal.
Inconsistent treatment, especially of certain managers who had received or sent
unacceptable emails – including a number of emails that grounded the dismissal of
the Appellants – who had not been dismissed.
[89] The Commissioner’s reasons do not contain any consideration of those matters under
s.387(h) or in his overall consideration of whether the dismissals were harsh, unjust or
unreasonable in paragraphs [39] and following. To the extent they were considered, that
consideration occurred in the portion of the reasons dealing with “valid reason” (s.387(a)) and
that consideration was scant.
No harm or damage
[90] The emails in question were invariably sent to friends who, apart from a single
instance that did not go anywhere, were apparently content to receive the material. There was
no evidence that any of the Appellants (or any other employee involved in the sending and
receipt of such emails) had sent such material to employees recklessly. There was no evidence
that any such material had accidentally been viewed by other employees, let alone in a way
that caused offence so as to activate the legal liability risk that is the primary justification of
the policy. There was no evidence of any complaints being received by management.
[91] There was no evidence of any particular harm or damage caused by the Appellants
sending pornographic emails to friends. There was no evidence of any reputational damage to
Australia Post in the form of an external recipient taking offence at such material emanating
from the email address of an Australia Post employee. Moreover, Australia Post’s reliance on
the risk of reputational damage needs to be addressed in the light of its apparent failure to
monitor compliance with the relevant policies and take action against instances of non-
compliance that came to the attention of management – including line management in a
facility at the DLC. There, various managers had received offensive material over time but
had taken no action to enforce the policy or warn employees against sending such material.
[92] The time and resource costs to Australia Post of the sending of the emails was
necessarily very minor (this is not a case, for example, of employees imposing a time cost of
the sort that is involved in an employee surfing pornography on the employer’s IT system
when they are meant to be working).
[2013] FWCFB 6191
25
[93] The Commissioner’s reasons do not address the absence of harm or damage which
was a relevant factor relied upon by the Appellants. That was a relevant matter bearing upon
the relative seriousness of the misconduct.
Culture
[94] The Commissioner made a number of observations on the “culture” argument in the
course of considering whether there was a valid reason for the dismissal of each of the
Appellants. The Commissioner noted the reliance of the Appellants on the existence of a
culture of tolerance or condonaton at the DLC:
“[16] From my understanding of what was put on behalf of all of the applicants it is
conceded that each of them did distribute inappropriate content in or attached to emails
using the Australia Post email system. Although, the material distributed by each of
the applicants varied as to content and volume. However, it is submitted on their behalf
that the actions of the applicants in distributing the inappropriate material was either
encouraged, condoned or readily tolerated by a culture of management practice present
within the Australia Post workplaces of the applicants at which they were employed. ...
[17] I think I should take the submission in relation to the alleged culture of
management practice into account when considering whether not there was a valid
reason for the termination of the applicant’s employment and as a relevant matter
under s.387(h). I will also do this when considering whether or not the termination of
the applicants employment was harsh, unjust or unreasonable having regard to my
findings in relation to the validity or otherwise of the reasons for the termination of the
Applicants’ employment.
[18] This is because, despite the concession mentioned above, I am not entirely sure
that the Applicants’ clearly conceded that there was a valid reason within the meaning
of the Act for the termination of their employment in each case. If not it is appropriate
to consider whether, on what is before me, there was a culture of management practice
which did encourage, condone or tolerate the use of the Australia Post email system
for the distribution of inappropriate material. If so it would be necessary to consider
whether the existence of such a culture invalidated the reasons for the termination of
the employment of each of the Applicants.”
(underline emphasis added)
[95] The Commission commented:
“[21] It is clear that an extraordinary volume of email traffic containing what very
broadly could be described as inappropriate content was circulating at the Dandenong
Letter Centre at the time that the Applicants’ actions occurred and, more probably than
not, over an extended period of time which cannot be identified. As an observation, the
volume of such email traffic represented by the large amount of material tendered is a
sample rather than a complete inventory.”
[96] The Commissioner made other comments on this issue:
[2013] FWCFB 6191
26
“[27] However, in support of the submission that there existed a culture of management
practice which encouraged, condoned or tolerated the distribution of inappropriate
material it may be said that the inclusion of the names of persons in management
positions in the address line of emails containing inappropriate materials right give rise
to assumptions in the minds of some persons that the practise is encouraged, condoned
or tolerated by such persons so identified. However, it should be emphasised that, such
assumptions, without more, would be subjective on the part of another person
distributing inappropriate material. On the other hand reciprocal exchange of and
affirmative communication about the distribution of inappropriate material by persons
in a management role would be a clear case of encouragement, condonation or
toleration of the use of the Australia Post email system to distribute inappropriate
material.
[28] Moreover, the extent of what is submitted to be a culture of management practice
is a· relevant consideration in relation to this submission. As is the identification of
what strata or component of the organisation may be properly described as
“management” for the purpose of consideration of the submission.
[29] On the evidence before me, I am inclined to the view that few people who could
be properly described within the category of “management” participated in the
sending, forwarding or distribution of inappropriate material. Moreover, on the
evidence before me, the level of that participation by volume is not representative of
what would be sufficient to comprise a culture of such practice as submitted. There is
little, if any, probative evidence that management at either of the two Australia Post
workplaces at which the applicants were employed, conceived of as a class or group of
persons with managerial as opposed to lower level supervisory responsibilities within
the employment hierarchy, expressly incited, encouraged or condoned the distribution
of inappropriate material. That is not to say that there were no persons with that
category who sent, forwarded or distributed inappropriate material at any time.
Moreover, I accept that the evidence might indicate some degree of tolerance of the
receipt of inappropriate material comprised of a lack of disciplinary investigation or
response on the part of persons who could be regarded as within the class or category
of management.
[30] I am satisfied that the receipt of and access to inappropriate material occurred
widely and some persons who, on a broad view, could be described as managers were
included within this broader range of usage of the Australia Post email system. In
some instances of email usage there is evidence of transmission of inappropriate
material by a person who could be considered a “manager”. On what is before me,
where issues of this nature have come to the attention of Australia Post the relevant
management policies and procedure to which the applicants were subject have been
followed. In some instances investigations have been undertaken by and Australia Post
and action is pending to finalise such investigation. On the evidence, findings arising
from the investigation will be considered in relation to persons identified
notwithstanding that such persons could be considered within a broad description and
categorisation of managerial staff, in relation to the distribution of inappropriate
material by use of the Australia Post email system.
[97] The Commissioner summarised his conclusions as follows:
[2013] FWCFB 6191
27
“[31] In respect of these considerations, in my judgement, there was a high volume of
email traffic containing inappropriate material at the Dandenong Letter Centre where
[Mr B, Mr C and Mr D] were employed and some passive involvement of varying
degrees, on the part of some persons who might reasonably be considered to form part
of the management of the centre which could be loosely described as a culture of
passive participation. I judge that this culture was not one which may be properly
characterised as active managerial encouragement or condoning of the distribution of
inappropriate material. At its highest I think the evidence is indicative of some passive
involvement in the high volume of email traffic containing inappropriate material on
the part of some individuals who fell within a very broad categorisation of those with
managerial or supervisory positions, overwhelmingly as recipients of emails sent or
forwarded by others.” ...
(underline emphasis added)
[98] The Commissioner then concluded:
“On balance, I am unable to conclude that these circumstances invalidate the reason for
the termination of the employment of each of the applicants’ employment. I therefore
find that in each case there was a valid reason for the termination of the Applicants’
employment being the use of the Australia Post email system to send, forward or
distribute highly inappropriate material contrary to the proper use of the email system
and in the knowledge that doing so was a prohibited use of the email system.”
(underline emphasis added)
[99] It is noted that the Commissioner’s express consideration of culture was confined to
whether it “invalidated” the reason for decision. That is not the correct question.
[100] We agree with the submission on behalf of Australia Post that the evidence did not
support the contention of the union that there was a culture of toleration or tacit condonation
within Australia Post generally for the sort of policy breaches that occurred in this case – the
emailing of pornographic and other unacceptable material to friends in a group email list.
However, the evidence does support a finding that a culture of that type existed within the
DLC that remained undetected by executive management until the new email filter was
installed. A large volume of material of the sort subsequently identified as unacceptable had
been circulating among a large number of employees including, as the Commissioner found,
“individuals who fell within a very broad categorisation of those with managerial or
supervisory positions”. As recipients, those individuals could see that the emails they were
receiving were, more often than not, being copied to other employees. Over an extended
period, no action was taken by any of those individuals. The primary facts found by the
Commissioner call for a finding that the DLC was a workplace where there was a culture of
toleration.
[101] As the Commissioner found, there was, at the DLC, an “extraordinary volume of email
traffic” involving a large number of employees “over an extended period of time... without
any relevant detection or action being taken by Australia Post”. And this notwithstanding that
supervisors and junior managers in the DLC were aware of situation by virtue of themselves
having sent or received unacceptable material by email. The absence of any active steps taken
by Australia Post to bring home to employees that it regarded compliance with the policy as a
[2013] FWCFB 6191
28
serious matter, such that material breaches would sound in dismissal, was a “relevant matter”
within the meaning of s.387(h) that was central to the case advanced on behalf of the
employees. The existence of a culture over an “extended period” without any apparent
attempts at monitoring or auditing compliance with the policy makes the need for some form
of warning or ‘active steps’ before dismissal occurs even more obvious as a matter of “a fair
go all round” in relation to employees with long service like the Appellants. If Australia Post
had taken steps to monitor compliance with its policy and manage its risk it would have
discovered the existence of the culture at a much earlier time and could have taken the
required ‘active steps’ required to bring home to employees that the policy would be enforced
with serious breaches resulting in dismissal. Indeed, the Commissioner noted at para [22] that
“[t]he significance of the accumulation and circulation of such material is that it gave rise to a
situation which was highly prejudicial to the interests of Australia Post and in respect of
which due diligence by Australia Post in the management of the IT system was a necessary
and reasonable requirement.” And yet the Commissioner appears to have taken no account of
the Australia Post’s failure to satisfy that “necessary and reasonable requirement” in relation
to the use of the email system at the DLC.
[102] The Commissioner’s reasons disclose that his express consideration of the “culture”
relied upon by the Appellants as a relevant matter was confined to his explicit consideration
of whether there was a “valid reason” for the dismissals. The issue was not whether the
culture found by the Commissioner was such as to “invalidate the reason for the termination
of the [Appellants’] employment”. The issue was whether the “culture”, in combination with
the other mitigating factors applicable to each of the Appellants rendered the dismissal harsh,
unjust or unreasonable – whether the culture, and the historical absence of monitoring and
enforcement of policy within the DLC, rendered it harsh to dismiss an employee without any
specific warning for breaches of policy of a type that had been widespread and unaddressed
for an extended period. That is the primary significance of the underlying facts found by the
Commissioner. The Commissioner’s reasons for decision do not expressly address that issue.
Absence of enforcement and warnings
[103] At least within the DLC, Australia Post did not take steps to monitor compliance with
the relevant policies or enforce them. The evidence demonstrated that a large volume of
pornographic emails had been sent by a large number of employees over an extended period
without a management response, and this in circumstances where supervisors and managers
were involved in sending and receiving such emails.
[104] There was no proximate prior warning to employees that Australia Post would treat
such breaches of policy seriously to the point of dismissal for employees with long service.
There was no evidence of notice being given to employees of the installation of the new email
filter with a reminder of Australia Post’s stand on the policy.
[105] Australia Post did not take “active steps” to bring home to employees that Australia
Post would treat such conduct seriously, let alone active steps of the sort taken by the
employer in Queensland Rail. Australia Post had a policy that unambiguously prohibited most
of the conduct in question (albeit that the policy is not expressed in terms that bring home to
the employee the level of seriousness with which breaches will be regarded as reflected in the
dismissal of the Appellants for the breaches found against them). The policies did not specify
termination as the likely disciplinary sanction for breach.
[2013] FWCFB 6191
29
[106] The Appellants, like all employees had had formal training sessions in that and other
Australia Post policies in times past. There was a standard logon notice requiring compliance.
So much will apply in the case of almost all larger employers with dedicated human resources
specialists and a professional IT system. So much applied to the employer in Queensland Rail
prior to the “active steps” taken over a period of years to elevate the employees’ appreciation
of the seriousness that the employer was attaching to compliance with its IT policy and upon
which the Full Bench placed determinative reliance. Contrary to the submission on behalf of
Australia Post, the present case is clearly distinguishable from Queensland Rail precisely
because Australia Post did not take “active steps” of that sort before resorting to dismissal for
breach of the policy. The Appellants in this case were dismissed without a second chance
provided by a specific warning or a general warning in the form of active steps of the sort
considered in Queensland Rail. Unlike the employer in Queensland Rail, Australia Post did
not:
Introduce a new, clearer, policy and have the CEO write to employees alerting
them to the fact and then conduct an ongoing campaign to educate and remind
employees of the importance of the policy and dismissal as the consequence of a
breach.
Have tool box meetings conducted to alert employees to the policy and sanction of
dismissal for breach of the policy.
Declare an amnesty warning that breaches of policy after the amnesty period
would result in dismissal.
Insert notices into employee pay packets on two separate occasions specifically
warning that breaches of the policy would result in dismissal.
Have the active union support for the policy in educating members in relation to
the policy.
[107] Lest there be any confusion, we are not to be taken as holding that the particular set of
steps taken by the employer in Queensland Rail represent a minimum or a yardstick: the
employer in Queensland Rail went to extraordinary lengths. It was repeated breaches of
policy in the face of those extraordinary steps that justified the dismissal of an employee with
27 years’ service. Each case must be considered by reference to its own particular
circumstances.
[108] Bearing in mind the context we have elaborated, Australia Post did not do anything in
particular to bring home to employees that breaches of policy of the sort that had been
occurring in the DLC (over an extended period and involving supervisors and managers)
without a management response would be treated so seriously as to result in the dismissal for
the sort of conduct engaged in by the Appellants. That is a factor that weights materially in
favour of a finding that dismissal for the Appellants was a harsh response to the misconduct.
The observation in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456 referred to
above is apposite.
Disparate treatment
[2013] FWCFB 6191
30
[109] Mr Dwyer made lengthy submissions by reference to a large volume of evidence on
the topic of disparate treatment. We do not propose to set out that lengthy material. To
observe, as the Respondent has done, that other employees who received a lesser sanction, or
no sanction at all, did not send as many emails as the Appellants, or did not send material that
was as hard core as some of the material sent by the Appellants - albeit that Mr Dwyer
demonstrated that many of the particular attachments sent by the Appellants had also been
sent by other employees or received by a manager - is to miss the point of Mr Dwyer’s
arguments. In all cases the species of misconduct was the same. The lenient approach shown
to other employees jars in comparison to the decision to dismiss the Appellants
notwithstanding differences in the numbers of emails sent and the nature of the attachments.
The Commissioner appears to have approached this aspect of the matter on the basis that it
was open to the decision-maker to view the misconduct of the Appellants as more serious.
That is not the issue. It is for the Commission to assess the seriousness of the misconduct in
all the circumstances and weigh that misconduct against the mitigating factors.
Terminations were harsh
[110] On the rehearing, given the factors we have discussed and weighing the seriousness of
the misconduct against the factors mitigating against dismissal, we conclude that the
misconduct did not warrant dismissal and that in each case the dismissal was harsh. In
particular, the culture that existed at the DLC, and the historical absence of monitoring and
enforcement of policy within the DLC, rendered it harsh to dismiss employees such as the
Appellants, without any prior warning, for breaches of policy of a type that had been
widespread and unaddressed for an extended period. That conclusion is enforced by a
consideration of the examples relied upon by Mr Dwyer in relation to treatment of the same
species of misconduct by other employees, especially (junior) managers. In relation to Mr B,
we adopt the Commissioner’s findings against the contention that Mr B had been misleading
during the investigation.
Error
[111] Depending upon how one interprets various of the Commissioner’s observations, the
Commissioner either failed to take into account relevant matters or failed to accord those
matters adequate weight in the relevant sense: the Commissioner’s failure to address the thrust
of the Appellants’ reliance on manifestly relevant matters - the culture at the DLC, the
absence of relevant warnings and disparate treatment - amounted to a failure to exercise the
discretion actually entrusted to the Tribunal (cp Mallet v Mallet (1984) 156 CLR 605 at 614).
This constitutes error within House v The King (1936) 55 CLR 499 at 505.
Conclusions
[112] In relation to the matters specified in s.387:
(a) As discussed above, there was a valid reason for the dismissal of each of the
Appellants.
(b) We adopt the Commissioner’s treatment of the matters specified s.387(b) to
(g).
[2013] FWCFB 6191
31
(c) In relation to s.387(h), we have identified and discussed “other relevant
matters” above.
[113] On the rehearing, and weighing the seriousness of misconduct against the matters that
militate against dismissal being not “harsh, unjust or unreasonable”, for the reasons we have
given, we find that, in all the circumstances, each of the each of the dismissals was harsh.
[114] The grant of a remedy is governed by s.390 of the FW Act.
“390 When FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWC may make the order only if the person has made an application under
section 394.
(3) FWC must not order the payment of compensation to the person unless:
(a) FWC is satisfied that reinstatement of the person is inappropriate; and
(b) FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[115] There is no dispute that the Appellants were protected from unfair dismissal at the
time of being dismissed. The only issue in relation to whether the Appellants had been
unfairly dismissed was whether their dismissal was harsh, unjust or unreasonable. Each of the
Appellants made an application under s.394.
[116] Having concluded that each of the dismissals were harsh, we are also satisfied that
each of the Appellants was unfairly dismissed such that the requirement in s.390(1)(b) is
satisfied. We are satisfied that, in the circumstances we have set out, a remedy is appropriate.
[117] The language of s.390 demonstrates that the legislature intended reinstatement to be
the primary remedy where FWC was satisfied that the discretion to order a remedy was
exercised. The plain words of s.390(3) prohibit FWC from ordering compensation unless
FWC is affirmatively satisfied that “reinstatement of the person is inappropriate”.
[118] Given the time that has elapsed since the decision of the Commissioner, and the scope
for changed circumstances that may bear upon the issue of whether reinstatement is
appropriate, we have decided not to determine remedy ourselves but instead remit the issue of
remedy to Vice President Lawler for determination. In making that remitter, we make the
following observations:
[2013] FWCFB 6191
32
(a) On the present state of evidence we are not satisfied that reinstatement is inappropriate
for each of the Appellants. Indeed, we are affirmatively satisfied that reinstatement
with continuity of employment is appropriate. There is nothing about the conduct of
Appellants that could reasonably be taken to have undermined fundamental trust and
confidence in the employment relationship. It is unlikely that any of the Appellants
would engage again in conduct of the sort in issue in this case. The factors that
weighed in favour of the dismissal being harsh also weigh in favour of reinstatement
being appropriate.
(b) There must be a significant discount in any order for back pay to reflect the fact of the
Appellants’ misconduct, quite apart from any other discounts that may be appropriate
to reflect a “fair go all round”, particularly in light of the delay in the resolution of
these matters. Obviously income earned in the intervening period must be brought to
account.
[119] In relation to Australia Post’s cross appeal against the finding and award of
compensation in favour of Mr B, it is sufficient to note that our conclusions mean we agree
with the Commissioner’s conclusion that the dismissal of Mr B was harsh, even if account is
taken of 6 emails that he sent to his home address. In any event we are not persuaded that the
Commissioner failed to take account of those six emails – they are expressly considered at
para [47] of the Decision.
[120] We allow the appeal and quash the Commissioner’s decision and orders. We remit the
matter of remedy to Vice President Lawler for determination in accordance with these
reasons.
[121] We do not wish these reasons to be misrepresented. We are not endorsing or
authorising employees to use their employer’s IT system to email pornography or other
unacceptable material. We endorse the right of employers to have policies against the use of
their IT systems to access, store or email pornography or other unacceptable material. We
endorse the right of employers to regard compliance with such polices as a serious matter. We
acknowledge that, depending upon the circumstances, a breach of such a policy can ground
misconduct that may justify a dismissal that would not be harsh, unjust or unreasonable.
However, upon a full consideration of the particular circumstances of the present case, we are
satisfied that each of the dismissals was harsh.
REASONS FOR DECISION OF SENIOR DEPUTY PRESIDENT HAMBERGER
[122] This decision concerns two appeals against Commissioner Lewin’s decision of 4
November 2011 ([2011] FWA 7126) by Australia Post and by Mr B, Mr C and Mr D (the
employees). Australia Post is appealing the Commissioner’s decision that Mr B’s dismissal
was harsh, unjust and unreasonable. The employees are appealing the Commissioner’s
decision that Mr D’s and Mr C’s dismissal was not harsh, unjust or unreasonable, as well as
his decision that Mr B should receive compensation rather than reinstatement.
[123] The appeals were heard in Melbourne on 16 February and 2 April 2012. Australia Post
was represented by Mr M McKenney, of counsel and the employees by Mr D Victory, of
Maurice Blackburn Lawyers.
[2013] FWCFB 6191
33
An appeal under s 604 of the Fair Work Act 2009 (the Act) is an appeal by way of rehearing
and FWA’s powers on appeal are only exercisable if there is error on the part of the primary
decision maker. There is no right to appeal; rather an appeal may only be made with the
permission of FWA.
[124] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the
Act. Section 400 (1) of the Act provides that permission to appeal must not be granted from a
decision made under Part 3.2 unless FWA considers that it is in the public interest to do so.
Further, in such matters, appeals on a question of fact can only be made on the ground that the
decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an
intention that the threshold for a grant of permission to appeal is higher in respect of unfair
dismissal appeals than the threshold pertaining to appeals generally.
Commissioner Lewin’s decision
[125] The employees had been dismissed by Australia Post for distributing inappropriate
material using Australia Post’s e-mail system. The Commissioner noted that the employees
themselves conceded that they had indeed distributed inappropriate content in or attached to
e-mails, using the Australia Post e-mail system. However it had been submitted before him
that their actions in distributing the inappropriate material was encouraged, condoned or
readily tolerated by a culture of management practice present within their own workplaces.
The Commissioner made his own finding that the material relied upon by Australia Post to
dismiss the employees was in each case highly inappropriate.
[126] The Commissioner found that an extraordinary volume of e-mail traffic containing
what very broadly could be described as inappropriate content was circulating at the
Dandenong Letter Centre (where the employees were employed) at the time that the
employees’ actions occurred. The Commissioner noted that a distinction was drawn by
Australia Post for disciplinary purposes, between an individual’s receipt of and access to
inappropriate material and an individual sending, forwarding or distributing inappropriate
material. He found that the use of the Australia Post IT system to transmit the relevant content
was a wholly inappropriate use of Australia Post’s resources. The accumulation and
proliferation of the inappropriate material within the organisation’s systems posed potentially
serious consequences for the organisation. There were reputational risks and occupational
health and safety risks of a high order, as well as productivity issues arising from the
significant diversion of the energy of employees at various levels of the organisation. The
situation required action and intervention by Australia Post in accordance with established
management policies and procedures.
[127] Commissioner Lewin emphasised that the employees had been dismissed for sending
or distributing inappropriate material rather than receiving inappropriate material from others
or accessing inappropriate material using the Australia Post IT system more generally.
Persons who may have received and/or accessed the same material or other inappropriate
material had not been subject to disciplinary action. On reviewing the evidence Commissioner
Lewin was satisfied that few people who could properly be described within the category of
“management” participated in the sending, forwarding or distribution of inappropriate
material.
[128] The Commissioner found that there were some instances of the transmission of
inappropriate material by a person who could be considered a “manager”. He was however
[2013] FWCFB 6191
34
satisfied on the evidence before him that where issues of this nature had come to the attention
of Australia Post the relevant management policies and procedure to which the employees
were subject had been followed.
[129] Commissioner Lewin judged that there was no active managerial encouragement or
condoning the distribution of inappropriate material. He was unable to conclude that the
circumstances invalidated the reason for the termination of employment of each of the
employees’ employment. He found that in each case there was a valid reason for termination,
being the use of the Australia Post e-mail system to send, forward or distribute highly
inappropriate material contrary to the proper use of the e-mail system and in the knowledge
that doing so was a prohibited use of e-mail system.
[130] In relation to Mr D and Mr C, the Commissioner found that the decision to terminate
their employment was not harsh, unjust or unreasonable. The evidence of their using the
Australia Post e-mail system for the purpose of distributing inappropriate material was not
mitigated by reason of their being incited, encouraged or somehow otherwise excused for the
distribution of that material by management. He took into account their service and the
alternative disciplinary options open to Australia Post in lieu of their termination.
[131] The Commissioner found that the evidence in relation to Mr B involved some relevant
distinction from the circumstances of the other employees. On that evidence Mr B used the
Australia Post e-mail system to send inappropriate material from the Australia Post system to
his home address. In addition, he used the Australia Post system to send inappropriate
material to one address of one person within the Australia Post system on one occasion. The
Commissioner found that Australia Post had itself made a distinction when it came to sending
inappropriate material to one’s own home email address. He referred to the case of Mr Brown
who had forwarded an e-mail from the Australia Post system to his personal e-mail address.
He referred to evidence that since the material was exclusively sent to Mr Brown’s private e-
mail address the disciplinary action taken was a written reprimand and warning. He found that
given these circumstances it was not unreasonable to proceed on the basis that such action,
particularly given the extensive range of disciplinary action available to Australia Post would
be relevant to Mr B’s action of sending inappropriate material to his private e-mail address
from the Australia Post system. Given this he considered that the substantive reason for the
termination of Mr B’s employment was the e-mail containing inappropriate material which
had been dealt with in the evidence. He accepted Mr B’s evidence that the only time he
forwarded an e-mail containing inappropriate material to another employee was one occasion
at the request of a colleague when he and the colleague were alone in the office. He also
found on the evidence that there had been no attempt by Mr B to mislead Australia Post’s
investigations, nor had he been uncooperative.
[132] Commissioner Lewin had regard to Mr B’s service, the absence of any previous poor
work performance or misconduct, and the availability of the disciplinary sanctions within the
range of options open to Australia Post circumstances. He judged that in these circumstances
the failure to use an alternative option of this kind in lieu of the termination of Mr B’s
employment was unreasonable. The termination was harsh because of the significant personal
consequences for Mr B of his single and limited act of sending the e-mail in question and
unreasonable because penalties of a more appropriate degree were available and suitable in
the circumstances. The Commissioner found that an appropriate remedy should be awarded.
However he decided that it would not be appropriate to make an order for reinstatement,
particularly as the Act did not permit him to make such an order in conjunction with the
[2013] FWCFB 6191
35
imposition of the disciplinary penalties available to Australia Post such as transfer to another
position at the same or lower level, reduction in salary, a warning, or formal counselling.
Accordingly he indicated that he would make an order for compensation.
Submissions on Behalf of the Employees
[133] Mr Victory, on behalf of Mr D and Mr C, submitted that the Commissioner erred in
his approach to determining whether their dismissals were harsh unjust or unreasonable. The
approach he should have taken was to:
• Identify the policy that the employees were alleged to have contravened;
• make a finding about whether the employees’ conduct constituted a breach of
the terms of the policy;
• make a finding in relation to the degree of seriousness of the employees’
breached the policy;
• make a finding about the applicant’s knowledge of the policy;
• make a finding about the degree to which the employer had promulgated and
enforced the policy;
• make a finding in relation to the adequacy with which the employer had made
employees aware of the consequences of breach of the policy.
[134] Mr Victory submitted that the Commissioner had also erred by failing to take into
account material considerations when determining whether the dismissal of the two
employees was harsh. These included:
• Failing to take into account the fact that Mr D did not have the benefit of the
pop-up screen that appeared on the window of the screen for the purpose of
using the e-mail system;
• failing to take into account the workplace culture at Australia Post including
the sending and receipt of inappropriate e-mails by managers;
• failing to take into account the differential treatment of Mr D and Mr C and
other employees of Australia Post who were guilty of the same misconduct;
• failing to take into account the fact that no employee had complained about the
conduct of Mr D or Mr C;
• failing to take into account the fact that the Australia Post Fair Work
Agreement 2010 did not provide for dismissal of an employee for a first breach
of Australia Post’s “Our Ethics” policy;
• failing to take into account the lack of any prior disciplinary action taken
against Mr D or Mr C;
• failing to take into account the failure of Australia Post to enforce and
promulgate its IT policy;
• failing to take into account Mr D’s and Mr C’s admission that they had done
the wrong thing and their remorse;
• failing to take into account the emotional and financial effect of their dismissal
on Mr D and Mr C and their families; and
• failing to take into account the fact that Mr D’s and Mr C’s jobs at Australia
Post were the only ones they had held since leaving school and they had not
been able to find alternative employment.
[2013] FWCFB 6191
36
[135] Mr Victory submitted that the Commissioner erred by finding that Mr D used the
Australia Post e-mail system for the purpose of distributing inappropriate e-mail as he did not
have access to the system and sent e-mails from home from his personal e-mail account. This
mistake was significant because it meant that Mr D did not have the benefit of the pop-up
screen.
[136] Mr Victory also submitted that the Commissioner erred by finding that Mr D’s and Mr
C’s conduct was not mitigated by reason of being incited, encouraged or excused by
management. He also contended that the Commissioner failed to give adequate reasons.
[137] In relation to the Commissioner’s decision not to order the reinstatement of Mr B, Mr
Victory submitted that a number of relevant considerations had not been taken into account,
including the failure of Australia Post to terminate other employees, including managers, who
were guilty of misconduct at least as serious. He submitted that the Commissioner should
have taken into account the ability of FWA to make a recommendation or express a view
about the appropriate disciplinary sanction to be applied if Mr B had been reinstated.
Moreover it was inappropriate to take into account that the provisions of the Act do not permit
an order for reinstatement which would impose the disciplinary penalties available to
Australia Post.
Submissions on behalf of Australia Post
[138] On behalf of Australia Post, Mr McKenney rejected Mr Victory’s submissions
concerning the proper approach that should be adopted by FWA in matters such as this. He
submitted that the approach taken by Mr Victory was too prescriptive. FWA is required by
s.387 of the Act to have regard to the matters specified in that section, and that is what the
Commissioner did.
[139] Mr McKenney submitted that the evidence disclosed that the policy of Australia Post
had been properly promulgated and enforced. He also denied that there was a culture of
forwarding and receiving inappropriate e-mails at Australia Post and referred to the express
consideration of culture given by the Commissioner in his decision.
[140] Mr McKenney submitted that there was no differential treatment between Mr D and
Mr C and other employees guilty of the same misconduct. All employees had been subject to
the Employee Counselling and Disciplinary Process (ECDP) where there was evidence of
misuse by employees in sending inappropriate e-mails. Differential outcomes could quite
fairly result from the application of the ECDP.
[141] Mr McKenney submitted that the gravity of the misconduct by the employees was
very serious given the extent of the misuse of Australia Post’s e-mail system and its potential
consequences. It was irrelevant whether there were any complaints made about the conduct of
any of the employees. There was potential in the admitted conduct of the employees for
sexual harassment of other employees as well as damage to the reputation of Australia Post.
The enterprise agreement did not prevent the dismissal of an employee for serious misconduct
even where this was a first breach.
[142] The reference by the Commissioner to Mr D using the Australia Post e-mail system
was a reference to sending e-mails into that system. This conduct was in breach of relevant
policies and formed the basis for determining that the termination of Mr D’s employment was
[2013] FWCFB 6191
37
on the basis of the admitted misconduct giving rise to a valid reason for the termination of his
employment.
[143] Mr McKenney submitted that the Commissioner made a significant error in relation to
Mr B in that his dismissal had not been for a single e-mail but for six e-mails containing
inappropriate material. This was significant in considering the extent of his conduct in terms
of misuse of Australia Post’s IT resources. This significant error affected the determination as
to whether the misconduct was such that the decision to dismiss Mr B could be seen as
proportionate to the extent of the misconduct.
Consideration
[144] The appeals are against a discretionary decision. In House v The King (1936) 55 CLR
499 at 504-505 the High Court stated the principles governing appeals against discretionary
decisions. The Court held that:
“It is not enough that the judges composing the appellate court consider that, if they
had been in the position of the primary judge, they would have taken a different
course. It must appear that some error has been made in exercising the discretion. If
the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to
guide or affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the appellate
court may exercise its own discretion in substitution for his if it has the materials for
doing so. It may not appear how the primary judge has reached the result embodied in
his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court
may infer that in some way there has been a failure properly to exercise the discretion
which the law reposes in the court of first instance. In such a case, although the nature
of the error may not be discoverable, the exercise of the discretion is reviewed on the
ground that a substantial wrong has in fact occurred.”
[145] Section 400(2) modifies the House v The King principles by limiting any review based
on a mistake of fact to a significant error of fact. As noted previously s.400 clearly evinces an
intention by the legislature that appeals in unfair dismissal matters are more limited than
appeals with respect to other matters under the Act.
[146] The leading Full Bench authority in cases such as this is Wake v Queensland Rail
(2006) 156 IR 393. In granting leave to appeal, the Full Bench stated (at paragraph 3):
‘It cannot be doubted that electronic traffic in sexually-related, pornographic and
violent images is of legitimate and growing concern to employers. Such images, apart
from being offensive to many, can undermine acceptable standards of behaviour in the
workplace and create an environment conducive to harassment and discrimination. It
is possible, even likely, that an employer which does not take active steps to eliminate
traffic of this kind on its email and other electronic communication systems may incur
legal liability, under anti-discrimination legislation for example. It is reasonable and,
arguably, necessary that employers take what steps they can to eradicate traffic in such
images.’
[147] The Full Bench also found (at paragraph 11):
[2013] FWCFB 6191
38
‘The employer’s right to exercise control over its own information technology systems
is undoubted. If that right is exercised unfairly or unlawfully, however, the employee
concerned may have a remedy under the Act.’
[148] At paragraph 21 the Full Bench stated:
‘Obviously each case is to be decided on its merits, but in general it is in the public
interest that, subject always to considerations of fairness, the Commission’s decisions
should support employers who are striving to stop inappropriate email traffic.’
[149] Finally, the Full Bench commented (at paragraph 23):
‘The appellant’s policy states that any deliberate breach involving pornographic or
sexually-related material will result in termination of employment. Although in this
case we have decided not to interfere with the application of that policy, it ought not
be assumed that the Commission would uphold the employer’s right to apply the
sanction of termination in all cases of deliberate breach regardless of the
circumstances. As s.652 of the Act makes clear, in determining whether a termination
of employment is harsh, unjust or unreasonable the Commission is required to take a
range of matters into account. In addition the statutory provisions are intended to
ensure a “fair go all round”: s.635(2). In the proper exercise of its functions the
Commission must exercise its own judgment. Whatever sanction the employer’s
policy prescribes, the Commission must decide whether the termination is harsh,
unjust or unreasonable.’
[150] I endorse the comments of the Full Bench. Australia Post has a legitimate interest in
eliminating email traffic of the kind dealt with in this case. At the same time, it is important
that any disciplinary action employers take against employees who have been involved in
sending, receiving or accessing inappropriate material is done in a fair and equitable manner.
Regard must be had to the circumstances of each individual employee.
[151] The Full Bench found that Queensland Rail had had for a number of years a firm and
well-publicised policy prohibiting the use of its electronic communications system to store or
transmit material which was sexually-related, pornographic or violent. In the present case
Australia Post had a number of relevant policies. These included “It’s Your Business - Our
Ethics: The Way We Do Things At Australia Post.” This contained a definition of
unacceptable behaviour as including:
‘a reckless act or omission, which causes, or could cause, significant damage or harm
and which could adversely affect employment relationship’ as well as:
‘using corporate information resources such as the internet or e-mail outside policy
requirements...’
[152] In addition, Australia Post had an “IT Systems Security Policy.” This specifically
prohibited “behaviour or content that might be regarded as offensive, immoral or unethical”.
Users are prohibited from transmitting, storing, copying or possessing any material that is
defamatory, offensive or in breach of licensing conditions. The policy stipulates that the
content of e-mail messages is the property of Australia Post and that management has the
right and the capability to read e-mails entering, leaving and within the Australia Post
[2013] FWCFB 6191
39
network. All employees who access Australia Post’s IT system make a daily declaration
indicating an acknowledgement that employees may have disciplinary action taken against
them for misusing e-mail including by the use, access or transmission of pornographic photos,
animation, cartoons and images of sexually explicit, sexist and racist material. Other relevant
policies include those in relation to harassment, discrimination and bullying. The Harassment
Discrimination and Bullying Policy made clear that sexual harassment could include things
that are said, done, sent, displayed or written which are of a sexual nature. The policy
specifically prohibited behaviour that offends, embarrasses or scares.
[153] The evidence before Commissioner Lewin indicated that Australia Post went to
considerable lengths to educate staff about sexual harassment. The evidence included the
training records of the employees. All the employees had received training in the Harassment,
Discrimination and Bullying Policy and had received pamphlets in their pay slips. A brochure
distributed to staff at the Dandenong Letter Centre in mid 2009 specifically referred to rude,
dirty or obscene e-mails, screen savers or text messages as examples of sexual harassment.
[154] The evidence is that there were clear policies prohibiting the types of inappropriate
emails sent by each of the employees. None of the employees had any excuse for not being
aware of those policies. While Mr D - because he did not have access to the IT system -
would not have seen the daily declaration, he was still subject to the other relevant policies
and received training in relation to harassment, discrimination etc. I note that Mr D was
dismissed by Australia Post for breaches of the Harassment, Discrimination and Bullying
Policy, not the IT Policy.
[155] With regard to Mr Victory’s submission that the employees received differential
treatment, especially when compared to managerial staff, I do not find that this is made out on
the evidence. While different employees received different sanctions, the evidence supports
Mr McKenney’s contention that all employees - once there was reason to believe they may
have engaged in misconduct - were subject to the same Employee Counselling and
Disciplinary Process. Australia Post - quite reasonably - took account of individual
circumstances in determining what sanction to apply. For example, it distinguished between
sending and merely receiving inappropriate material.
[156] I do not agree with Mr McKenney’s submission that the Commissioner made a
significant error of fact in finding that Mr B was dismissed for sending only one email. It is
clear from his decision that the Commissioner was well aware of how many emails Mr B sent.
However, given his findings about the approach taken by Australia Post in relation to other
employees who had sent emails to their personal addresses he made the reasonable inference
that the emails Mr B sent to his private email address did not constitute grounds for his
termination. Accordingly he proceeded on the reasonable basis that ‘the substantive reason’
for his dismissal was the one email he sent to a colleague.
[157] With regard to the Commissioner’s failure to order the reinstatement of Mr B I agree
with Mr Victory’s contention that it would have been open to the Commissioner to have
reinstated Mr B together with a recommendation that Australia Post apply one of the lesser
sanctions available to it. However such a recommendation would not have been binding. I do
not consider that in taking account of the inability of FWA to order reinstatement while
imposing the disciplinary penalties available to Australia Post the Commissioner was having
regard to an irrelevant consideration. Nor am I satisfied that the Commissioner failed to have
regard to other relevant considerations. At paragraph 57 of his decision, he explicitly had
[2013] FWCFB 6191
40
regard both to Mr B’s length of service, and the absence of any poor work performance or
misconduct prior to his dismissal, in considering whether his termination was harsh, unjust or
unreasonable, as well as the more limited nature of Mr B’s misconduct. These considerations
were referred to again in considering what remedy would be appropriate.
[158] As noted previously, s.400 of the Act provides that FWA cannot grant permission to
appeal unless it considers that it is in the public interest to do so. In GlaxoSmithKline
Australia Pty Ltd v Makin ([2010] FWAFB 5343) the Full Bench said:
‘[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and I do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference
to undefined factual matters, confined only by the objects of the legislation in
question.
[27] Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters, it seems to us that none of those elements is present in
this case.’
[159] I draw the same conclusion in relation to the two appeals in this case. I would decline
to grant permission in relation to both appeals.
VICE PRESIDENT
Appearances:
Mr. D. Victory on behalf of the Appellants
Mr. M. McKenney of Counsel and Ms. S. Blackman on behalf of the Respondent
OF FAIR WORK COM -- COMMISSION AUSTRALIA THE SEAL
[2013] FWCFB 6191
41
Hearing details:
2012.
Melbourne:
16, February.
and
Melbourne:
2, April.
Final written submissions:
Filed by the Respondent on 5 May 2012
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