Defence Force worker who used vulgar, explicit language and watched porn dismissed

NZDF justified in dismissing worker who viewed pornography at work and used vulgar language of a sexual nature. Photo / NZME

A former Defence Force worker claims his vulgar language, inappropriate behaviour and use of pornography in a workplace were not serious enough to warrant his dismissal.

Nilesh Prakash was first employed by the New Zealand Defence Force in May 2016 before he was dismissed for serious misconduct in November 2020.

A complaint raising concerns about Prakash's harmful and inappropriate behaviour was made by a junior worker and he was suspended while the NZDF launched an investigation.

One part of the complaint involved a video containing objectionable material. The complainant claimed Prakash would watch the video and tried to convince others to watch it with him.

Prakash was suspended for four months before he was officially dismissed from his job in November 2020.

But earlier this year, after being unsuccessful in his attempt at interim reinstatement, Prakash claimed to the Employment Relations Authority [ERA] that he was unjustifiably dismissed from his role at the NZDF.

He told the ERA his actions were seen as a part of the work culture and were not severe or serious enough to warrant his dismissal.

"No other co-worker complained about me during my employment, including any female colleague or any third party," Prakash said.

"I accept asking the complainant personal questions of a sexual nature, but this kind
of talk was normal and everyday for us.

"Given the complainant claimed to have ignored this talk or tried to ignore it indicates a degree of tolerance on their part."

He said that banter, including the use of vulgar language, was part of the workplace culture and the complained conduct was within the usual scope of tolerated
behaviour.

"We have a general tolerance of the use of explicit language and pornography in the workplace."

Prakash addressed the video allegations, telling the ERA that "the complainant never actually viewed the video".

"I did not force the complainant to view the video but merely offered to show it to them."

But NZDF said the dismissal was not unjustified.

"Following receipt of a serious allegation of sexual harassment and bullying, we undertook a fair investigation process, after which Prakash was dismissed," NZDF told the authority.

"Our decision to dismiss was a decision a fair and reasonable employer could make in all the circumstances."

The NZDF also provided the ERA with signed documents showing Prakash's acknowledgement of the company's code of conduct and the consequences of breaking it.

The copy included sexual harassment and bullying. He also signed a policy called "develop positive culture" and "mission statement".

ERA member Marija Urlich said it was clear Prakash had found his dismissal devastating and it had a profoundly negative impact on his life.

"However, the decision to dismiss was one a fair and reasonable employer could have made in all the circumstances at the time the dismissal occurred," Urlich said.

"Prakash's application has been unsuccessful."