Education Law Articles - Employment Disputes

Pornography and union activity – what constitutes lawful grounds for termination of employment?

A US case in 2011 considered a teacher who had been dismissed for accessing pornography during work hours. The teacher claimed that his dismissal was actually retaliation for his union activity as he had been involved in pay and other working condition disputes with the school authority. The Court found that the school had terminated his employment for a legitimate and non-discriminatory reason - breach of the school’s computer usage policy. How would this case be decided in Australia?

A decision handed down this year concerned a senior public servant who had accessed pornographic images on a department laptop in the ‘comfort’ of his own home. The relevant government department had a policy that forbad accessing pornography. The Court held that an employer has a legitimate interest in ensuring that its equipment does not come into contact with pornography outside work hours as an employer would not want the pornography to resurface during work hours. The public servant was found to have been dismissed fairly even though the pornography had been accessed at home.

In a similar way, schools have a legitimate interest in ensuring that their employees do not access pornography at home using their work computers due to the significant risk of potential exposure to students at a later time. It is essential that schools have a policy which outlines employees’ obligations in relation to the use of computers and the internet. Where such a document exists and it has been acknowledged, accessing pornography should be sufficient grounds for dismissal, even if it is accessed outside of work hours.

In relation to the dismissal of employees for union activity, employment legislation states that an employer must not dismiss an employee for organising, promoting or encouraging activities that are part of a union. The sole ground for dismissing a teacher cannot be his or her participation in a union. In a recent Federal Court case, the Court held that an employee who used his work email to disseminate material related to union activity was protected by this employment legislation. The teacher was employed at a TAFE and had used his work email to discourage fellow teachers from participating in an audit that the employer was about to undertake. The Court held such industrial activity could not form a lawful ground for dismissal.

Schools considering terminating an employee need to consider carefully the grounds upon which the termination will be based!

On-line misbehaviour

In the USA:

A teacher in Pennsylvania has been suspended over blog postings she made which were critical of her students.

When a parent read the teacher’s blog postings and saw comments such as “frightfully dim”, “Rat-like”, “Am concerned your kid is going to open fire on the school”, “I hate your kid”, and “Seems smarter than she actually is” on her blog, she called school officials to complain.

And in Australia:

Negative comments made on Facebook about her employer have, in part, led to the dismissal of a hairdresser in Victoria.

The Fair Work Australia Commissioner said that “Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

Luckily, for this employee, she did not name the salon where she worked and the Commissioner did not consider that the comments were such that they would adversely affect the employer’s salon specifically.

But a warning for all employee’s no matter what their industry. The Commissioner also said
A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

Employers set the standard for appropriate email content

These days, internet usage and email access are practically ubiquitous in the workplace. Accordingly, it is increasingly common for employers, including schools, to provide their employees with an electronic communication policy. These documents outline what constitutes acceptable use of the Internet and email facilities provided at work. They will typically prohibit employees from accessing or passing on material that depicts violence or cruelty, is sexually explicit, discriminatory or otherwise offensive.
In a recent decision, Fair Work Australia (FWA) has affirmed that it is an employer’s sole right to determine what material is considered inappropriate within the terms of the workplace’s policy. The decision concerned Mr Spargo, an employee of QR Network. He was ultimately dismissed because he had received and forwarded on a number of emails that breached QR’s electronic communication policy.
QR initially sent Mr Spargo a ‘show cause’ letter asking him to explain why he should not be dismissed. However, even after considering his response, the relevant officers of QR felt that the large number of emails forwarded and the degree to which they breached the policy meant that they still had to terminate his employment.

Mr Spargo did not think that the content of the emails in question was inappropriate. In appealing to FWA against his dismissal, he argued that the words of the policy were vague, that no-one at QR really understood exactly what was and was not acceptable, and that QR’s interpretation of the policy was too conservative.

However, FWA disagreed on all counts. It was not prepared to give an objective meaning to the words of the policy, but rather said that as long as the standard set in the policy was ‘lawful, clear and unambiguous’, employers were well within their rights to subjectively decide what fell within that standard. Since QR had met this standard, FWA upheld its decision to dismiss Mr Spargo.

This decision demonstrates the importance of ensuring that staff fully understand the scope of their obligations in relation to acceptable use of email and the Internet. To avoid disputes like that between QR and Mr Spargo, schools should clearly communicate their expectations in this regard to their employees.
 

When it comes to managing employees, what is reasonable?
 

Most schools are aware that the law entitles employees to obtain workers’ compensation for physical or psychological injuries sustained in the course of employment, provided of course that they satisfy certain requirements. However, an employer who can show the court that it took ‘reasonable management action in a reasonable way’ will not be liable to pay compensation to workers who are psychologically injured as a result of that action.

The Qld Industrial Court has shed some light on what does and does not constitute ‘reasonable management action’. Ms P worked for an Australian School. She sought compensation for a psychological disorder that her doctor said was caused by bullying and harassment by Mr B, whom she had had difficulties getting on with for a long time. The unrest between them culminated in a loud argument in front of other employees and students, and Mr B had to be restrained by another colleague. The school subsequently engaged a third party consultant to attempt to resolve the issue, requested that Mr B take leave immediately following the incident, and ultimately terminated both his and Ms P’s employment.

When Ms P’s case was first heard by the Industrial Relations Commission, it found that the school’s actions were reasonable and that it had acted quickly following the dispute. Therefore, it was not required to pay compensation. However, Ms P appealed and the Industrial Court reversed the IRC decision, ordering the school to compensate her. This was mainly because there was evidence that the school had originally told her it had to dismiss her because of financial difficulties, but later said in her formal letter of dismissal that it was because of the dispute with Mr B. Additionally, other teachers at the School gave evidence that they were told of Ms P’s impending dismissal before she was.

The ‘mixed signals’ that Ms P received as to why she was being dismissed, together with the school’s unprofessional conduct in informing others of her dismissal, seem to have been the school’s downfall. Accordingly, schools should strive to resolve disputes swiftly, deal fairly with their employees and act professionally at all times.