Introduction

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Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad.

Background

In this application for unfair dismissal remedy, the applicant employed as a Licensed Aircraft Engineer (LAME) since January 1978. In 2016 Qantas issued LAMEs with iPads for use at work. The LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees.

Upon being issued with the iPad in May 2016 and in accordance with instructions from Qantas, the applicant enrolled it into the then MDM system. Qantas subsequently changed the MDM system and the applicant enrolled his iPad into the new system known as ‘Comp Portal’. The Comp Portal app had two settings: ‘corporate’ and ‘personal’, regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed.

The Comp Portal privacy statement informed applicant that Qantas could not see a range of personal material stored on the iPad including his web history and photographs. The applicant used the iPad to view and store pornographic and offensive material. Qantas became aware of the applicant’s use of the iPad to view pornographic material following reports made by a female refueller employed by Caltex who alleged that on two occasions during working hours, she had seen the applicant viewing a video selection page containing pornographic images on his iPad. The applicant’s iPad was seized by Qantas and forensically examined.

The investigation

Following examination an investigation commenced in relation to allegations. During the investigation, another female refueller alleged that on three occasions she witnessed the applicant viewing pornographic images in the workplace during working time. These allegations were substantiated and following a show cause process the applicant was dismissed.

The applicant maintained that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The applicant further contended that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad.

Qantas maintained that its investigation substantiated that the applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy.

Outcome

The Commission found a lack of clarity in the SOC and IT Policies in relation to personal use and on the basis that the original Mobility Terms and Conditions suggest that private material can be stored on the iPad. It was also found that the lack of clarity was compounded by unsatisfactory training provided to the applicant when issued with the iPad.

The Commission considered distinction between private use and viewing pornographic and offensive material at work and held that regardless of lack of clarity in relation to private use of the iPad on his own Wi-Fi when the applicant was at home, the applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace.

The Commission found the applicant’s conduct in viewing and storing pornographic and offensive material was a breach of the SOC and the IT Policies and despite the applicant’s apologies and expressions of regret to the female refuellers, the applicant’s denial he was viewing pornography implicitly impugned the credit of the witnesses. The Commission was satisfied there were valid reasons for the applicant’s dismissal and that his dismissal was not harsh, unjust or unreasonable. The application for unfair dismissal remedy was dismissed.