Unjustified dismissal for computer pornography

A Wellington man's dismissal for having pornography on his work computer was unjustified, the Employment Relations Authority has held.

The dismissal occurred after the ANZ bank ran a new automated scanning system designed to find pornography and other objectionable material on its computer systems. The Bank had an established zero tolerance policy, and the first scan in Auckland resulted in the dismissal of one worker for breaching it.

Shortly afterwards, the Bank issued a memo to all staff advising them of the dismissal, and reiterating the zero tolerance policy. It immediately began a scan of its Wellington servers.

The scan revealed that three other staff members had pornography on their computers, including Christopher Bingham. Mr Bingham was called to a meeting and asked to explain. He denied all knowledge of the material and said that the picture viewer on his computer was not working. As a result, he could not view incoming emails, so he saved them to his inbox so he could read them later. However, he had not been able to do this. He also said that other staff knew his password and used his computer, but that he did not think anyone would have saved the pornography on it.

The Bank adjourned the meeting and bank executive, Colin MacDonald, accessed Mr Bingham's computer. He discovered that the pornographic files identified by the scan had been deleted. He was also unable to operate the picture viewer as there was no jpg file stored on the computer. He concluded that the computer was a standard build and there was no reason why the picture viewer should not be working. Mr MacDonald reconvened the meeting and, after advising Mr Bingham of his conclusions, summarily dismissed him.

Mr MacDonald then met with staff and advised them that the Bank had dismissed three of their colleagues for having objectionable material on their work computers. He told them that if they had similar material on their computers, then they should delete it. He confirmed that the Bank would not search its back up files for any such material, nor would it discipline anyone who deleted it from their system immediately after the meeting.

Mr Bingham brought an unjustified dismissal claim against the Bank, and the Employment Relations Authority upheld his claim.

The Bank's investigation was seriously defective and Mr Bingham had been disadvantaged by disparity of treatment, Authority member Denis Asher said.

The bank did not properly check Mr Bingham's claim that his picture viewer was not working. While the picture viewer could not be properly tested because the jpg file appeared to have been deleted, another jpg file should have been transferred to his computer so that testing could occur.

The bank also failed to investigate whether other staff could have stored the pornography on Mr Bingham's PC, particularly as some of them knew his password. It had also subjected him to disparate treatment by dismissing him and immediately afterwards, and while the scan was still underway, giving other staff the opportunity to delete offending material from their computers without fear of disciplinary action being taken against them. Mr Bingham should have been given the same opportunity, the Authority said.

The Authority awarded Mr Bingham 3 months lost wages plus $3000 compensation for humiliation and distress.

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Expired contracts continue with same terms and conditions

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