This decision was an appeal from a decision of a single commissioner of the Australian Industrial Relations Commission (AIRC), who found that Queensland Rail had terminated the employment of Mr Wake in a manner which was ‘harsh, unjust and unreasonable’. Prior to his dismissal, Mr Wake had been employed with Queensland Rail for 27 years.

Mr Wake’s employment was terminated after he was found to have stored on his work computer numerous images of a sexually explicit and violent nature. These images were found during a routine auditing and scanning of Queensland Rail’s computer systems. Mr Wake had stored and forwarded numerous offending images during a period of some four years.

During this time, Queensland Rail had an internet and email policy in place which prohibited employees from storing or transmitting images which were sexually related, pornographic or violent. Importantly, Queensland Rail was able to successfully establish that Mr Wake knew of the policies relating to the appropriate use of Queensland Rail’s computer systems.

In particular the AIRC heard evidence that Queensland Rail:

• put in place both a policy regarding ’inappropriate use of electronic computer systems’ and code of conduct which detailed what was and was not acceptable use of their computer systems;
• had an electronic warning about inappropriate use of the computer systems, which was a condition of logging on to their computer systems;
• obtained acknowledgements from each employee that they were aware of the requirements regarding appropriate use of their electronic computer systems;
• placed an article in the ’Weekly Notice’ (an internal bulletin) reminding employees to use workplace electronic computer systems appropriately. This bulletin also reminded employees that Queensland Rail regularly audited and scanned the computer systems for the purposes of identifying and investigating inappropriate material;
• released an update from the Chief Executive Officer to all employees entitled ’QR continues its strong stance on appropriate use of electronic communication systems’.  Again, employees were warned that Queensland Rail would be auditing and scanning their electronic communication system in an attempt to identify and investigate all inappropriate material on their computer;
• placed a further article on their intranet site to reiterate the statement above; and
• inserted a reminder in all employees’ pay slips stating that inappropriate use of the company’s electronic computer systems may have serious consequences. This alert also contained details and examples of what would infringe Queensland Rail’s electronic communication policy.

The AIRC overturned the original decision finding that Queensland Rail had not terminated Mr Wake’s employment in a manner which was harsh, unjust or unreasonable. In its decision, the AIRC stated that:

“The 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. 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. While appreciating that loss of employment is a bitter blow, we can see no proper basis on which the Commission might properly intervene to reverse the employer’s decision in this case.”

Implications for employers

The decision of Queensland Rail v Wake demonstrates not only the importance of having an effective policy in place, but making sure the policy is adequately implemented and reinforced in your workplace.

When conducting a review of your workplace policies, ensure they address the following questions:

• Does the policy clearly define what is and what is not acceptable use of your internet and email systems? Employees should be able to know what is expected of them. Offer examples so that any ambiguity or uncertainty is reduced.
• Upon reading the policy, will employees know why compliance is important? Detail the impact it can have on productivity, morale and retention as well as the legal liabilities which can flow from a breach (both from the individual and company point of view).
• Does the policy explain the consequences should an employee be found in breach of the policy? Make sure the consequences are fair and equitable – that is, the punishment should fit the crime. Any disciplinary action taken by the employer must reflect the severity of the conduct.
• Is there a clearly defined process in place if an employee is found to be in breach of the email policy? How will an investigation be conducted and by whom?
• Does the policy afford an employee procedural fairness? That is, ensure you provide an employee with an opportunity to respond to any allegations that they have breached the policy.
• Is there a means of enforcing the policy? That is, has your workplace installed appropriate software which can scan and audit the computer systems to identify any possible breaches?
• Does your policy alert employees that you do have software that can identify possible breaches? Again, you should let them know that the computer systems are regularly monitored for material which could breach the policies.

It is also important that your workplace implements the policies correctly. Employers should ensure that:

• every employee is given a written copy of the policy;
• the policy should be readily accessible by all employees. Consider putting it on your intranet, staff notice board or emailing all employees a copy every year;
• provide regular and ongoing training to your employees. Reiterate what is contained in the policy. Keep records of attendance. Conduct refresher training sessions for your employees approximately once per year;
• regularly remind your employees of their obligations. Consider posting updates in your workplace bulletins, discuss the policy at your next team meeting or post an update in your employees’ pay slips. Remember to keep a record of all that you do – you never know when it could come in handy; and
• regularly review and update the policy. As technology changes, so should your policy. For example does it include piracy and copyright? These are important issues with respect to internet and email usage.

Click on the PDF link to download a full copy of the article.