A recent case teaches us a lot about dealing with one of the most uncomfortable office situations – porn at work.

When an employee is discovered viewing, downloading or enjoying (quelle horreur!) porn at work, the best course of action is pretty cut and dried.

Or is it?

Without a clear workplace policy for the proper use of equipment, a pornography policy or dismissal procedure, you might find yourself exposed to risks that could very well see you at fault.

Such an incident recently played out at Port Macquarie insurance broking business Smarter Insurance Brokers, which was penalised by the Fair Work Commission (FWC) after dismissing an employee for unsatisfactory performance, and later accusing him of storing hardcore pornography on a work computer.

The employee – who was dismissed with four weeks’ compensation – did not see his sudden termination supported by corresponding company procedures, resulting in the FWC’s ruling in his favour.

The company was ordered to pay the employee $10,000. The FWC ruled that while the revelations of pornography access (denoted under the umbrella of ‘serious misconduct’) are in-and-of themselves potentially valid grounds for dismissal, it found that “in the particular circumstances of this case, the subsequently discovered misconduct involving the accessing, downloading and storage of pornographic materials could not be properly held to represent valid reason for the dismissal.”

Where, exactly, did this company go wrong in their dealings?

To begin with, they didn’t actually have a policy against porn at work.

According to a report by FastCompany, Commissioner Ian Cambridge pointed out that “the business did not have a particular policy in place that stated employees should be using work equipment solely for work-related activities.”

Secondly, there was contested evidence suggesting that some of the employee’s directors also participated in downloading pornographic material in the workplace.

SexTracker has reported that 70 per cent of all internet porn traffic occurs between the hours of 9 to 5, and according to their research, one in five employees access porn at work.

Based on these stats, there’s a decent chance chance the issue of pornography will arise in your workplace, so it’s essential that you have a clear policy to guide your actions. It’s even more vital that they are acted on in a consistent fashion.

In the case of protecting against improper digital workplace practices, the onus needs to be placed on human resources to ensure that the organisation is protected against decisions that result from a company’s failure to execute procedural fairness.

According to a study by Craig Cameron at Griffith University, a company that fails to enforce an appropriate policy banning pornography might be liable to prosecution under discrimination and sexual harassment, as “such a failure would essentially be a breach of the employer’s duty of care to the health, safety and wellbeing of all of those in the workplace.”

And, as law firm Clayton Utz recommends, clear workplace policy must be communicated widely and enforced fairly and appropriately. Their recommendation comes off the back of another case involving Australia Post in which the company’s policy was not adhered to across the board, leading to rulings that compensated employees dismissed for accessing porn at work.

As this case shows, zero-tolerance policies can lead to another legal problem if they are not applied consistently and fairly.

To best protect your business, policies must be communicated widely and enforced appropriately.