Media Release 11 October 2008

The Society is delighted that the Employment Court in Wellington has recently issued a robust landmark decision that defends the rights of employers to enforce any company rules they have prohibiting their employees from accessing, downloading, uploading, saving, requesting, transmitting, storing or purposely viewing sexual, pornographic, obscene, racist, profane or other offensive and inappropriate material, using the workplace internet or intranet. The Court’s decision overturns a determination of the Employment Relations Authority (ERA) issued last year that was extensively covered in the media and featured in July 2007 on John Campbell’s TV3 Nightline programme.

“Employers have always had a right to dismiss employees who breach company policies relating to conduct in the workplace,” says Society Executive Director David Lane. “However, this Court decision, Arthur D Riley & Co Limited v Jessica Sharon Wood (WC 18/08; WRC 25/07) issued by Judge CM Shaw on 8 October 2008, underlines in case law, for the first time I am aware of, the rights of employers to tie their company policies to their own community/workplace standards in relation to objectonable/pornographic or offensive content, without relying on the liberal and flaky definition of what constitutes offensive and obscene content issued regularly by the Chief Censor’s Office – the so-called enlightened  ‘objective view’. Of course companies must set out fair and reasonable procedures that allow an employer to effectively deal with breaches of conduct in the use of the internet, clearly define inappropriate content and notify and warn employees of the consequences of all misconduct.”

Employment Court Judge Coral M Shaw has overturned an earlier determination that was issued by the Employment Relations Authority (ERA) that upheld a wrongful dismissal claim by a Wellington woman Miss Jessica Sharon Wood against her employer Arthur D Riley & Co Lts (ADR). The substantial financial compensation awarded her by the ERA, made against ADR, has now been negated by the Employment Court which has ruled that all of it (paid in full by ADR into the Court, pending appeal result) – 75% of her lost wages from 18 September 2006 to January 2007 and $9,000 damages for humiliation – must be returned with interest to the plaintiff (ADR). The Court has reversed the decision of the ERA by now reserving costs in favour of the plaintiff, which has 28 days from the date of the Court’s decision, 8 October, to submit its claims against Miss Wood.

The Society Director David Lane praises Mr Garth Mickell, Director of a private electricity and water metering business, Arthur D Riley & Co Ltd (ADR), the plaintiff, for challenging the appallingly incompetent and flawed decision issued last year by Mr Denis Asher of the ERA.

In an email dated 10 October Mickell wrote to the Society:

“First thank you for your support, and advise. Attached for your reference is the employment court determination. We are thankful that commonsense has prevailed, and there is now the ability of places of work to be able to determine their level of  morality and ethics, without influence from central government.”

To reiterate: employers now have a right, recognised by the Employment Court, to enforce company policy relating to what they consider constitutes objectionable/pornographic or offensive content without having to get an “objective” determination from the Chief Censor’s Office. Employers can also determine what constitutes “serious misconduct” relating to such material without having to have the liberal Chief Censor’s Office effectively negate the fair and reasonable community standards they seek to uphold in the workplace.

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