Viewing Pornography At Work
Conducting personal business in the boss’s time would be as old as paid work itself. Pasty white-collar workers hide novels amongst the clutter of their desk papers; swarthy riggers study race books on the scaffold; roadmen lean on shovels and pressured working mums in open plan office organise childcare out of the team leader’s earshot. Roger Hall captured this memorably in “Gliding on” when a public servant goes ape at his mum for ringing him during a tea break instead of in work time. In an Employment Court case involving engineers at Air New Zealand it was found over a 16 week period some workers spent over 60 hours using the work computer for personal browsing.
Computer work stations now dangle addictive temptations for new ways to “skive off” in the boss’s time. Trademe transactions, email jokes, playing the stock market, and looking at pornography come to mind.
It’s the latter I will discuss, as viewing objectionable material now regularly features in employment dismissal cases. It has moved on from Playboy pinups in the mechanics bay at the local garage. Unlike other “skiving off” diversions pornography has a moral repugnancy element about it. Guess that’s why the media made a whooping fuss over Judge Fisher who visited sex sites on his High Court computer. The upset Helen Clark quipped when hearing of this “there are always computer games if you are waiting for a jury verdict!” What, Prime Ministerial blessing for “skiving off” playing computer games whilst on the public payroll – I rather think not!
A senior doctor was fired for taking pictures of his “old fella”, on the hospital phone and emailing them to a female colleague on the clinics computer. He won interim reinstatement then finally kept his job whilst the legal process moved at a snails pace. Thankfully, he did not get a brass razoo of the $60,000 he bumptiously sort in damages from the pubic purse over being fired for such behaviour. Google reckons New Zealanders are runners up to South Africans in searching for porn – an unsettling statistic about the darker side of Kiwiana.
Defining pornography is tricky. There are cases, like at IHUG for instance, where grossly obscene e-mails explicitly told the boss were he could put his job. The staff that did this got away with it. Why? Obscenities were commonplace in the workplace and IHUG had no clear cut e-mail policy.
As a rule of thumb, the statutory definition from the Act which the film censor operates under is used. A publication is objectionable if it “deals with sex, horror, crime, cruelty or violence” so to be “dangerous to the public good”. The definition includes exploiting children for sexual purposes, sex with a dead person, bestiality and a litany of life’s unspeakable depravities.
Like theatres showing R18 movies, a boss that does not stop objectionable material getting into the hands of youth workers may be criminally liable, or else up for failing to provide a safe workplace. Mr O’Brien complained to the boss about the gay and bisexual pornography which could be easily viewed at his workplace – Renton Chainsaws & Mowers Ltd. He resigned as his boss did nothing to stop it and was successful in getting compensation for having no other option but to resign.
Concerned bosses should have clear internet use policies, and make them widely known. Just hiding them in the house rules has been found to be insufficient. Also, the sudden clamping down on pornography, after having previously been lax about it, requires careful handling to avoid the risk of personal grievances.
Case law shows if pornography is found on a work computer its wise to engage a reputable IT forensic expert to establish actually what was seen. This can be costly, around $1000 for a full report. The allegation and slur on a workers character for accessing pornography is no light matter. The fact a workers computer log may indicate visits to a dodgy web site is in no way clear evidence a worker intentionally or actually viewed the objectionable stuff.
In the Air New Zealand case referred to earlier the Employment Court painstaking went through the technical evidence. It found that hits on a pornographic site, whilst been recorded as three minutes in the log, could translate to less than a seconds access. In addition, other workers had access to the passwords of the accused engineers. Surprisingly, notwithstanding the lengthy amount of time the engineers spent on personal computer use, there had been no complaints about their productivity. Air New Zealand’s computer policy allowed personal computer use provided it did not interfere with work.
Workers prosecuted for having illegal pornographic material on their home computers can lose their jobs because of the damning publicity that can surround such convictions. This is what happened to Mr Hodgson an exemplary manager at the Warehouse. He lost his unfair dismissal case because it could bring the place “Where everyone gets a bargain” into disrepute.
The porno viewing Judge – whose actions were not illegal – has since retired but does inquiries, and the genital photographing doctor got his job back permanently – but may yet face the likely ignominy of his name being published.
This emerging area of employment law all goes to show that pervy and errant behaviour in workplaces knows no occupational bounds. Take care; the Employment Court normally frowns on “pedantic scrutiny” but not in this area. Reputations can be so easily be destroyed, and first impressions misleading, about computer use and viewing objectionable stuff at work.
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