A man who was sacked for looking at pornography on his work computer argued that it was not serious porn because it was "only people".
In her determination, released today, Employment Relations Authority (ERA) member Anna Fitzgibbon said that in May 2011, Reginald Hiha began accessing a website called tumblr from his work computer at Crane Distribution NZ, where he was employed as a storeman.
He regularly viewed pornographic images over a period of at least three months, "to take his mind off work, which he was finding demanding''.
In August, a female employee saw him looking at pornography and complained to manager Malcolm Peden, who wrote Mr Hiha a letter to arrange a disciplinary meeting.
"You (Mr Hiha) stated in the investigation meeting you knew of the Crane Distribution NZ Ltd policy and and that internet was not for personal use and that you didn't think viewing pornography was allowed,'' he wrote.
"You confirmed that the pictures were of female sexual content ('adults only, not harsh and was only people'). You agreed that you had been using the internet during work time for personal use, but believed it to be less than 1 hour a day (which you agreed was high use)."
The company deemed his actions had amounted to serious misconduct and decided to terminate his employment.
Mr Hiha argued that he had been treated differently from other employees, referring to another eworker who had misused the internet - but not to view pornography - and only received a warning.
He also argued that the company's policies "should have set out which type of pornography was serious and could result in dismissal and which was less serious and could result in rights to internet access being remove".
To determine whether Mr Hiha's conduct constituted serious misconduct, Ms Fitzgibbon said she had viewed a report on his internet usage which contained 164 images "depicting images of naked women, naked women and men in lewd poses and performing sex acts".
"The images are graphic and objectionable."
She found that the pornography viewed by Mr Hiha was "seriously offensive" and "destroyed the trust and confidence that Mr Peden had in Mr Hiha".
"Mr Hiha says he was not aware that his conduct could be regarded as serious misconduct despite what, he agreed, is set out in the code of conduct, employment agreement and internet email policy. I find this hard to believe," she said.
She found that the company complied with all its obligations as a fair and reasonable employer in sacking Mr Hiha.
- APNZBy Matthew Theunissen Email Matthew