Budlong and NCR Australia Pty Limited [2006] NSWIRComm 1075

Budlong and NCR Australia Pty Limited [2006] NSWIRComm 1075

The dismissal was not harsh, unjust or unreasonable because the applicant knowingly and repeatedly breached the respondent's Code of Conduct by receiving, storing, retrieving and viewing a very large quantity of extreme pornographic material on the respondent's IT infrastructure after certifying awareness of the Code and possible dismissal for breach. The asserted workplace culture, alleged inconsistent treatment, delay, absence of filtering software, contrition and long service did not excuse the misconduct or make dismissal disproportionate.

Jurisdiction
Australia
Judgment Date
09 May 2006
Procedural Posture
Application by Richard Edward Budlong Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Decision After Unsuccessful Conciliation and Three Day Hearing
Outcome
Application dismissed.
Legal Topics
['serious Misconduct' 'workplace Pornography' 'employer Code of Conduct' 'use of Employer IT Infrastructure' 'procedural Fairness' 'inconsistent Treatment' 'reinstatement']
['industrial Relations' 'employment Law' 'unfair Dismissal'] ['serious Misconduct' 'workplace Pornography' 'employer Code of Conduct' 'use of Employer IT Infrastructure' 'procedural Fairness' 'inconsistent Treatment' 'reinstatement']

Case Brief

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Procedural Posture

Application by Richard Edward Budlong Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Decision After Unsuccessful Conciliation and Three Day Hearing

Legal Issues

  1. 1 ["Whether the applicant's receipt, storage, retrieval, viewing and one instance of sending pornographic material on the respondent's computer system constituted serious and wilful misconduct warranting dismissal." "Whether the dismissal was harsh, unjust or unreasonable in light of the applicant's long service, workplace culture, alleged inconsistent treatment, delay, lack of filtering software, contrition and personal and economic consequences." 'Whether the respondent afforded procedural fairness and had a factual basis for dismissal.' 'Whether reinstatement would be appropriate if the dismissal were found unfair.']

Ratio Decidendi

The dismissal was not harsh, unjust or unreasonable because the applicant knowingly and repeatedly breached the respondent's Code of Conduct by receiving, storing, retrieving and viewing a very large quantity of extreme pornographic material on the respondent's IT infrastructure after certifying awareness of the Code and possible dismissal for breach. The asserted workplace culture, alleged inconsistent treatment, delay, absence of filtering software, contrition and long service did not excuse the misconduct or make dismissal disproportionate.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']