Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288

Industrial Relations Commission of New South Wales

CITATION: Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288

APPELLANT Richard Edward Budlong PARTIES: RESPONDENT NCR Australia Pty Limited

FILE NUMBER(S): IRC 2413 of 2006

CORAM: Walton J Vice-President; Boland J; Grayson DP

Appeal - Leave to appeal - Unfair dismissal - Employee dismissed for having pornographic material on his laptop computer at work - Held at first instance dismissal was not harsh, unreasonable or unjust - Observations regarding approach to be taken in cases involving dismissal where pornography involved - Whether Commissioner at first instance erred in relying on what the respondent claimed to be a zero tolerance policy in respect of pornographic material being on its infrastructure systems, there being no such policy in existence - Whether Commissioner failed to take into account the similar conduct of other employees and the respondent's failure to take any or similar disciplinary action against them, or even investigate their conduct - Whether Commissioner erred in failing to take into account the culture in which the appellant worked over many years which permitted and encouraged the appellant to view pornography in the workplace - Dismissal found to have been harsh, unreasonable and unjust - Held summary dismissal not justified - Reinstatement held not to be impracticable - Reinstatement ordered on conditions CATCHWORDS: Unfair dismissal - Appeal - Leave to appeal - Employee dismissed for having pornographic material on his laptop computer at work - Held at first instance dismissal was not harsh, unreasonable or unjust - Observations regarding approach to be taken in cases involving dismissal where pornography involved - Whether Commissioner at first instance erred in relying on what the respondent claimed to be a zero tolerance policy in respect of pornographic material being on its infrastructure systems, there being no such policy in existence - Whether Commissioner failed to take into account the similar conduct of other employees and the respondent's failure to take any or similar disciplinary action against them, or even investigate their conduct - Whether Commissioner erred in failing to take into account the culture in which the appellant worked over many years which permitted and encouraged the appellant to view pornography in the workplace - Dismissal found to have been harsh, unreasonable and unjust - Held summary dismissal not justified - Reinstatement held not to be impracticable - Reinstatement ordered on conditions