Lawyers say the fate of Macquarie Bank employee David Kiely, caught on live television looking at images of scantily clad women, will depend on how strict the bank's policies are and how well they were communicated to staff.
Kiely was inadvertently filmed scrolling through images a bikini-clad Miranda Kerr, while a colleague delivered a live finance report to Channel Seven on Tuesday.
Speaking to Lawyers Weekly on Thursday, Sparke Helmore partner Roland Hassall said the content of the bank's policies, as opposed to the images themselves, will be a determinative factor for the bank when deciding what disciplinary action, if any, will be taken.
"There have been cases where employees have accessed pornography and the outcomes have been different because of the different policies employers have in place. The courts don't tend to make a moral judgment about the material. They focus more on what the content of the policy is and how that policy has been communicated," he said.
However, a breach of the bank's policy in relation to the use of the internet may not be the only issue facing Kiely when he meets with his employers to hear his fate.
"Many [employment] contracts have a requirement that you don't bring the [employer] into disrepute. There have been allegations that Channel Seven viewers were offended ... so that could be a matter for him to answer," said Hassall.
If Kiely does find himself on the wrong side of the door, it is likely that he will not have recourse to a claim for unfair dismissal under the Fair Work Act 2009, because under the legislation he must be earning less than $108,300. Any recourse would have to come under the common law.
"[Kiely's] rights would be at common law to seek a remedy for breach of contract, depending on the way that any potential dismissal occurred," said Hassall.
Whatever the potential allegations, Kiely will have the option of presenting mitigating circumstances to support his case.
"There have been references [in the media] to the fact that he may have opened an email. There might have been a mistake in opening the email or there may have been no clear guidance as to what was in the email. And whether any actions bringing the company into disrepute were done wilfully, or through negligence ... would be a matter for consideration, as well as how severe the consequences were," said Hassall.
- Claire Chaffey