50 It is apparent from the evidence that there was a group of the respondent's employees - referred to in the proceedings at first instance as the "unofficial group", who from about 1997 engaged in transmitting and receiving pornographic material via the company's email system. The employees consisted of directors, managers, billing analysts and others. The initial email in 1997 that appears to have sparked off the practice, came from Mr Cannon, who was the appellant's immediate superior in accounts receivable. Mr Jack Bal, who gave evidence in the proceedings was also involved. He was national credit manager for Australia and New Zealand and the appellant also reported to him.
51 The respondent's policies emphasised the importance of the role of managers and those who supervised others. For example, the Code of Conduct required managers and supervisors to take steps to ensure that unethical conduct within their areas of responsibility was detected, addressed and reported. Ms Homer conceded in her evidence that those managers that had sent Mr Budlong pornographic emails had failed in their responsibilities to the respondent and had not set the appellant a good example. Of course, not only had they failed in their duty to the appellant but they were also personally culpable.
52 It is apparent that the appellant was caught up in this culture of pornography exchange that existed within his sphere of work. It appears, however, that the appellant was not an initiator of pornographic emails (except for a single instance) but received emails from others, collected the emails in a special folder titled "amusements" and, from time to time, viewed the pornographic attachments that he found "erotic".
53 Murphy C found that the majority of the unofficial group had left the employ of the respondent some 14 months prior to March 2005 and the appellant should not, therefore, have continued to be part of a broad ranging disregard of the respondent's policy. Accordingly, the Commissioner was not prepared to accept that the culture was to blame.
54 We consider that the Commissioner erred in finding that most of the unofficial group had left the employ of the respondent some 14 months prior to March 2005 and, on that basis, in concluding that following that time the appellant should not have continued to flout the respondent's policy in the manner in which he did. The employees who sent the appellant pornographic emails were made redundant in April, May and July 2004, being some 11, 10 and 8 months respectively prior to the incident in March 2005 giving rise to the investigation into the computer files of the appellant. Others were made redundant as late as October 2004, being only some 5 months prior to this incident. Nevertheless, as already mentioned six employees remained in the employment of the respondent, including one who had been promoted to the respondent's parent company in the United States.
55 Given that the appellant had, for many years, received regular pornographic communications from managers and others; that he, and no doubt his fellow employees, signed acknowledgements of the Code in an air of automaticity; that no warning had been given to employees about dealing with pornography following the dismissal of Mr Portelli only two years previously about the respondent's intention to adopt a more stringent approach; and, that the appellant continued to receive pornographic emails right up to the time of his dismissal, some weight should have been given to the fact that the appellant was engaged in receiving and storing pornographic emails in an environment where senior managers not only condoned the practice but actively encouraged the appellant's participation by sending him the material.
56 We note also that after the main sender of the pornographic emails to the appellant had left the respondent's employ in September 2004 (that is, Mr Ryan), except for one internal email from a purchasing officer, the appellant only continued to receive pornographic emails sent externally from Mr Ryan. It was somewhat unrealistic of the Commissioner to find that after many years of working in an environment where the appellant was regularly sent pornographic emails by Mr Ryan that he would suddenly realise the gravity of his misconduct upon Mr Ryan leaving and refuse to accept any further emails from him. Further, given that it was essentially from Mr Ryan that the appellant continued to receive emails after Mr Ryan left the respondent (and sent none of his own) it could hardly be said that the appellant "continued to have been part of such a broad ranging disregard of policy …".
57 This is not to say that the environment or culture in which the appellant found himself excused his conduct entirely. But some weight was required to be given to this factor by the Commissioner in balancing all of the competing considerations in deciding whether the dismissal was harsh, unreasonable or unjust. Instead, the Commissioner gave no weight at all to the culture issue.
58 The respondent sought to downplay the significance of the culture issue to the extent, almost, that it was not a relevant consideration. We note the decision by Watson SDP of the Australian Industrial Relations Commission in P Micallef v Holden Ltd, PR900664, 25 January 2001. At [5] his Honour stated:
I find that there was a valid reason for the termination. Utilising the respondent's e-mail system, the applicant received, maintained on his work computer, and transmitted e-mails, attaching pornographic material. He did so in the context of a clear policy against such conduct, which set out consequences of such conduct. He did so in the knowledge that other employees, for whom he was responsible, had access to his computer and its contents. He concedes the receipt and sending of the material with respect to particular persons - friends of his - outside of the company. I find that it is more probable than not that he was responsible for most, if not all, other inappropriate material attached to the e-mails within his system. No attempt was made by the applicant to dissuade his regular correspondents from sending him material in breach of company policy. I find that this conduct constitutes a valid reason for termination related to his conduct, and the operational requirements of the respondent's company, having regard to its statutory obligations and its broader obligations to its workforce.
59 The circumstances in that case were clearly quite different from those in the present proceedings. Nevertheless, the respondent sought to rely on what Watson SDP said at [11]:
I have had regard to what the applicant described as the `culture' of acceptance of sexually explicit materials within the respondent company, or parts of its operation. 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.
60 The existence of a culture or environment involving exchanges of emails containing pornographic material may not necessarily diminish the inappropriateness of an individual's conduct where the individual is participating in that exchange. That is one consideration. A separate consideration, however, is the context in which the individual is involved and where the individual is essentially a receiver of pornographic emails sent to him from senior managers and which he retains for his own private use. Appropriate weight needs to be given to that fact in assessing the individual's culpability for the purpose of determining whether summary dismissal was justified.
61 The respondent also referred to the decision of Whelan C of the Australian Industrial Relations Commission in Williams v Centrelink, PR942762, 15 January 2004. In that case the applicant had sent "inappropriate emails including pornographic or otherwise sexually explicit images on his employer's email system both to other Centrelink employees and to external recipients." The Commissioner upheld the employer's decision to terminate the appellant, finding the dismissal was not harsh, unjust or unreasonable. In her decision Whelan C stated:
65] Mr Williams, both in his exchanges with Mr Mill and his evidence before this Commission has shown absolutely no insight into his behaviour. He has tried to blame his employer for failing to properly sheet home to him the guidelines applicable to him and the risk of termination he was running. He has tried to blame Mr Cameron for somehow implying that what he was doing was acceptable although he knew that Mr Cameron would not directly condone his activities. He even tried to blame the Centrelink IT department for not blocking the transmission of offensive material. Last, Mr Williams has blamed the workplace culture for creating an environment where he was allowed to behave in the way he did.
[66] I accept that the culture in a workplace may be a relevant factor in considering whether termination of employment, in a particular circumstance, was harsh, unjust or unreasonable. Centrelink as an organisation clearly did not condone the circulation of offensive emails and had acted to alert its employees to the relevant policies. There clearly was a situation where a minority of employees at Ballarat, including the office manager, did participate in circulating off-colour jokes and images.
[67] It appears to me however that the nature of the material being circulated by Mr Williams went further than this. Mr Cameron says he was not aware of the nature of that material although Ms J says she alerted him to her concerns about it in February 2003. A reasonable person would be aware that there is a distinction between poor taste jokes such as the "Tourette's" email and sexually explicit and degrading material. Even Mr Williams thought some of the material went too far. I am not satisfied that the general atmosphere of the office was one which condoned the circulation of pornography.
[68] In any event Mr Williams should have been of sufficient maturity to take responsibility for his actions. He was not the office junior. He held positions of responsibility. The fact that other people are exceeding the speed limit does not prevent you from facing the consequences if you are driving at 120 kph in a 100-kph zone.