The applicant conceded that when clicking on pornographic images, it was being "displayed" and further conceded that in viewing the pornographic material at work, there was a risk of it being inappropriately displayed.
122 The evidence of Ms Homer was that from 2004 onwards, employees were required to certify their compliance with the Code of Conduct. The applicant conceded he had completed the appropriate certificate in respect of the 2004 Ethics and Compliance Certificate Statement and that he was aware in 2004 that he could have been dismissed for breach of the Code. He further conceded that he had read and understood the 2005 Code of Conduct, and when he was required to certify compliance with the Code, he knew that he was not complying to the fullest extent.
123 Mr Brown maintained that the applicant had received stored, sent and viewed in excess for three hundred and fifty images involving movie clips, video clips and powerpoint presentations of a pornographic nature and visited pornographic websites, which demonstrated repeated and flagrant breaches of the Code of Conduct. The fact that he had repeatedly and knowingly breached the Code was not disputed. (It should be noted at this stage that the applicant's representative had made the point that only one item, on one occasion, had the applicant actually sent a matter to another officer).
124 Mr Brown next highlighted the numerous submissions made by the applicant in respect of the Code of Conduct, and in particular, that he had knowingly repeatedly and materially breached the internet usage and e-mail policy each time that he had clicked and stored one of the one hundred and twenty e-mails contained in the "amusements" folder; each day that it was left on the computer; each time he accessed the material; every time he went to the pornographic website; and on the occasion that he had sent such e-mail to another party.
125 Mr Brown pointed out that a witness for the applicant, Mr Jack Bal, also conceded that when he viewed pornographic images on his work computer, he knowingly breached the policies and such was not a responsible and ethical use of the respondent's computer system.
126 The applicant's behaviour was not isolated, but was repeated and deliberate in blatant disregard to the policies; inconsistent with the employment relationship and more than sufficient to warrant termination, and on that basis, the respondent discharged its onus in proving the misconduct occurred and the Commission should make such finding.
127 Next Mr Brown moved to deal with specific issues, the first of which was to contend that the termination was not harsh, unjust or unreasonable. He exhorted the Commission to pay heed to recent decisions requiring the Commission to consider each one of those words within Part 6 of the Act to make a positive finding that the decision was neither harsh and a separate finding that it was not unreasonable, and or a separate finding again that it was not unjust.
128 He next dealt with the questions raised by Section 88 of the Industrial Relations Act and in respect of the aspects of procedural fairness in subsections (a) to (f), and contended that there was a thorough investigative process before taking action against the applicant, when two separate occasions he was given adequate opportunity to become apprised of matters relied upon by the respondent.
129 As to whether or not the reasons given to the applicant for his dismissal had a basis in fact as contained in subsection (b) of S.88, Mr Brown submitted that a forensic expert in the Guidry Group had been engaged to investigate and recover any data on the applicant's computer.
130 In that vein, he also highlighted that Mr Grant Findlay had actually viewed a pornographic image on his work station, and the sequence of the investigative process from there had been a series of contacts starting with the Human Resources Manager, Ms Homer, and to various levels within the organisation, involving contact with the corporate security, who received authorisation on the 7th April, 2005 to utilise EnCase Enterprise to investigate. On or around the 2nd May a telephone conference was conducted between Ms Homer, Mr Findlay and the investigator. Both Ms Homer and Mr Findlay met on several occasions in the course of May and June to discuss the applicant's conduct. This was also said to explain the delay in putting matters to the applicant until 6th June.
131 Following the dismissal of the applicant, the respondent had sent the applicant's hard drive to a forensic expert in the Guidry Group to conduct a further investigation.
132 That time line was important in respect of Mr Young's contention that the respondent had been inactive over several months prior to dismissing the applicant from the time in March in discovering the pornographic image on his screen by Mr Findlay. In rejecting that argument, he first pointed out that the respondent afforded the applicant procedural and substantive fairness in ensuring a thorough investigation was executed prior to raising the allegations with him, and to make certain they had "a basis in fact".
133 The fact that the applicant went on annual leave on the 16th May and returned on the 6th June was pointed out by Mr Brown to explain some of that delay. On the 6th June he was provided with a bundle of pornographic images and a copy of the Code of Conduct. The applicant conceded he knew he could be dismissed as a result of the breach of the Code. On the 6th June, the applicant was stood down and dismissed on the 7th June, following a further meeting, and the applicant conceded in cross-examination that he understood the contents of the letter of dismissal, and that it was consistent with the discussion that he had with Ms Homer and Mr Findlay during the meeting.
134 As to another feature of Section 88, Mr Brown submitted that the applicant was given the opportunity to make out a defence and give an explanation, when given an opportunity to address the allegations put to him, and when he responded "I was in traffic, the speed limit was accelerated by the cars in front of me, the cars behind me, I was just following the flow of traffic". He conceded that he was expected to provide an explanation during those meetings, and when given a further opportunity at the 7th June meeting, he sought advice from the trade union official, Mr Chris Gill, and was prepared for the meeting. He conceded that Mr Gill had adequately represented his interests, and in defence of his behaviour, he conceded that he had used the expression "I am a collector".
135 As to the central question as to whether the grounds relied upon by the respondent, were harsh, unjust or unreasonable, Mr Brown turned to the nine grounds upon which Mr Young relied upon in his submissions. The first of which was the conduct of other employees at the workplace and the culture.
136 Under this heading, Mr Brown first commented that the only evidentiary dispute regarding procedural aspects was whether the applicant raised the issue of the conduct of other employees.
137 Mr Brown strongly submitted that the applicant had at no time raised the issue of other employees prior to his termination and the respondent relies on the affidavits of Dipper, Homer and Grant Findlay. In cross-examination, she several times denied that the applicant raised the conduct of others. In his cross-examination, Mr Findlay did not agree with that proposition put to him.
138 Mr Brown submitted that the case now pursued by Mr Young on behalf of the applicant, bears no resemblance to the issues to which the applicant raised prior to, and at the point of termination. He asked the Commission to accept that the respondent's witnesses were at all times consistent and candid, and that the evidence of Ms Homer and Mr Findlay should be believed and their version relied upon by the Commission, that at no time did the applicant raise the conduct of others as he now claims.
139 Should the Commission accept the applicant's evidence that he raised the defence prior to his dismissal, the temporal aspects of the applicant's behaviour become important to demonstrate the inconsistencies in the matters now relied upon.
140 The applicant conceded that the vast majority of the "unofficial group" had left the respondent's organisation before April, 2004. He conceded therefore, that during that period to the termination in June, 2005, of some fourteen months, he had read and signed the Code of Conduct. Furthermore, he agreed that his participation in the unofficial group, proffered as an excuse for breaches of the Code, was not in fact an excuse for what he did. He acknowledged that during that fourteen months period, he had an opportunity to mend his ways following the exit of that unofficial group from the organisation. Therefore, the defence of "following the flow of traffic" is problematic for the applicant, who had every chance to cease and desist.
141 The respondent denies there was a culture permitting the viewing of pornographic material. The Code of Conduct is a clear enunciation of the policies. The applicant was not in any way confused, but simply chose to repeatedly and knowingly breach the policy.
142 In respect of that argument of the culture of pornography, Mr Brown referred the Commission to the authority of P.Micallef Vs Holden Limited where the Commission stated:
" I do not accept that the existence of a culture, the manifestations of which the respondent has made clear are not acceptable, diminishes the inappropriateness of the applicant's conduct".
143 On another issue raised by Mr Young, that the applicant had only on one occasion actually sent pornographic material to another, the fact that he had sent such an item does not belie the fact that dismissal was justified in the circumstances.
144 As to the criticisms of Mr Young as to the invocation of the "Zero Tolerance Policy", the Code of Conduct expressly did not permit access to pornographic material, and in receiving, accessing and viewing and storing e-mails of explicit pornography, the applicant engaged in wholly inappropriate behaviour in a work environment. The fact is that the respondent does not tolerate such behaviour as demonstrated by the dismissal some years previously of Ms Tina Portelli.
145 In respect of the treatment of that previous employee, Ms Tina Portelli, Mr Brown submitted that the reliance upon her circumstances bears no resemblance.
146 The applicant conceded that he was aware that Ms Portelli had been summarily terminated and the reasons for her termination related to having pornographic images on her computer. No matters regarding Ms Portelli were put to the respondent's witnesses and the fact that Ms Portelli had received a written warning prior to her dismissal, was not raised by him at the time of his termination.
147 As to whether or not the termination was out of proportion to the applicant's conduct, it is sufficient to establish that this dismissal was not out of proportion to that conduct if the Commission finds that the applicant engaged in wilful and serious misconduct.
148 As to whether or not the applicant should be given an opportunity to mend his ways, the applicant, by his own admission, had an opportunity, but had not done so.
149 On the applicant's claim that he had taken care that no one else saw the pornographic contents of the e-mails sent to him, he had to concede that another employee could have viewed the material, and it was in fact it was Mr Findlay's observance of the offending material, which led to these proceedings.
150 As to the caselaw cited by Mr Young, beginning with Borrows Vs Commissioner of Police, and including Michael Harrington Vs Phillip Morris Limited and Saric Vs Pacific Access referred to earlier, said to be in support of the proposition, that the act of dismissal was excessive, all these cases can be distinguished from Mr Budlong's case. In respect of Saric, the Commission in that case found Ms Saric had attempted to comply with her employer's policies regarding the offending material, but did not utilise the computer procedures properly and the Commission also indicated that it did not regard the material as pornographic.
151 In the matter of Harrington, the Commission accepted the applicant's denials in that case, that the misconduct occurred and therefore there was no basis for the company accepting the allegation. In addition, the Commission distinguished the conduct of the employee from other cases which involved "more than simple access to pornographic images on the internet" and included cases involving "the receipt, storage and transmission by e-mail of a considerable quantity of pornographic material". Clearly Harrington can be distinguished by the case at hand which do involve the receipt, storage and transmission by e-mail of a considerable quantity of pornographic material according to Mr Brown (Note again that Mr Young made some emphasis on the fact that for the applicant's evidence, only one e-mail was actually sent by the applicant of that nature).
152 In the matter of Borrows, which involved the alleged misconduct of police officers misusing the Police Service Electronic Memo System to send pornographic material and receive same, it was noted some four hundred and seventy one officers were detected as receiving and disseminating pornographic material, out of which only three were removed. It was with that background that the Commission found no proper basis for removing Mr Borrows, where others had not been removed from the Service and the Commission had also found that he had not been accorded procedural fairness.
153 Further distinctions to the Borrows case are that the applicant here at no time raised issues of other employees, with anyone prior to his termination, and the unofficial group who'd all had their services terminated some fourteen months prior due to redundancy. The applicant was aware of the former employee, Ms Portelli, being dismissed for such matters. There was no evidence here of the applicant not being afforded procedural fairness.
154 Mr Brown then proceeded to inform the Commission of caselaw which supports the dismissing of employees having pornographic material such as the case referred to earlier, Micallef Vs Holden Ltd, where pornographic materials received, maintained and transmitted and where the employee had done so in breach of the employer's policy, which were clear to the employee involved. The Commission found that there was no issue of the requirement to warn, given that the matter was about misconduct, as opposed to unsatisfactory performance, and in addition, the Commission found that workplace culture did not diminish the inappropriateness of the employee's conduct. In another case of Williams Vs CentreLink AIRC 15th January, 2004, PR924762, where an employee had sent inappropriate e-mails of a pornographic nature in defiance of the APS Code of Conduct, the Commission found against Mr Williams, despite evidence of never having looked at the Code of Conduct, but where he agreed the material was offensive if viewed by others, and tried to blame the employer's information technology department for not blocking the transmission of such material, and also blamed the workplace culture. The Commission held that it was not satisfied that the office had condoned the circulation of the pornography and Mr Williams should have had sufficient maturity to make his own decisions in that department. The observation was made "the fact that other people are exceeding the speed limit, that is not to prevent you from facing the consequences if you are driving at 120 kph in a 100 kph zone".
155 As to the issue relied upon by Mr Young of the employer's failure to introduce sufficient software to prevent the transmission of such material, Mr Brown submitted that it is the responsibility of the employee to act in a responsible, ethical manner and it is not the responsibility of the employer to put mechanisms in place to prevent such wrongdoings. It should not be a defence that the respondent did not put in adequate measures to stop the conduct occurring.
156 As to the personal and economic impact upon Mr Budlong of the dismissal, Mr Brown maintained that it is but one factor that the Commission should take into account, along with the efforts made to procure other employment.
157 On another issue raised by Mr Young, alleging that the respondent had pre-determined its course of action prior to meeting with Mr Budlong, Mr Brown pointed out that the applicant conceded he was prepared for the meeting and both he and Mr Gill from the union had an opportunity to raise any issues.
158 As to the claim for reinstatement, the respondent's submissions were that it was not open to the Commission to make such order as it is impractical to do so, given the loss of trust, confidence and good faith between the parties; the seriousness of the misconduct; and the effect it would have on the safety and welfare of other employees.
159 The reasons given by the applicant for his behaviour, namely that he was a collector, that he was "following the flow of traffic" are not satisfactory explanations for his conduct and do not instil a belief that a relationship can be restored.
160 The seriousness of the misconduct cannot be overstated in the receiving, accessing, storing, reviewing and on sending graphic and offensive material, which Mr Brown described again as the misconduct of the highest degree.
161 As to character references referred to by Mr Young, Mr Brown suggested to the Commission that they should be disregarded for the particular reasons related to each of those providing references, some of whom had no knowledge of the facts and circumstances surrounding his termination.
162 As to the practicality of reinstatement, Mr Brown alluded to the fact that at least one other employee, Ms Patti Dawkins, may have been able to see the material, he referred again to the South African female who if she did not consent to the photo, would mean that his reinstatement could cause some concern in the workplace.
163 The open office environment was an issue to be taken into account, where employees are frequently dropping off expense claims in full view of his computer.
164 The fact that the material was "extreme" and "obscene" by the applicant's own admission, and included such graphic images of sexual behaviour was also against any reinstatement.