In a recent decision, the Fair Work Commission found that an employee had been unfairly dismissed after he used his employer’s work computer equipment to access pornography during work hours.
The employee was a general insurance manager at an insurance broking firm. He had worked at the firm for just over a year. When he was dismissed, his employer alleged that his work performance was poor, and that he had been given previous written warnings.
However, at the time of the employee’s actual dismissal the employee was required to attend a meeting thathe was told nothing about, and was not allowed to bring a support person. The employer also did not at that time advise the employee of the reason for his dismissal.
As the employer was covered by the Small Business Fair Dismissal Code, it was required to give the employee a reason why he was at riskof being dismissed, and this reason must have been a valid reason based on his conduct or capacity to do the job if there was no serious misconduct. Under the code an employee must also be warned verbally or in writing that they risk being dismissed if there is no improvement in their conduct or work performance. The employer must also provide the employee with an opportunity to respond to the warning, and give them a reasonable chance to rectify the problem, having regard to the employee’s response. In this case, none of these procedures were followed.
Employers can rely on information that comes to light after a dismissal to justify that dismissal. In this case, following the dismissal the employer learnt that the employee had been using both a work mobile phone and computer to access the pornography. The employee then admitted to downloading the pornography, but claimed that it was done out of work hours, when he was on his lunch break.
The Commission ultimately found that because the employer did not have a clear policystating that the use of its computer equipment should be restricted to work related activities, and because the employee was given no valid reason for the termination (the Commission did not accept their reason of poor performance) the dismissal was found to be harsh, unjust and unreasonable. The fact that the employer did not follow the procedures in the Small Business Fair Dismissal Code related to warnings, and giving the employee an opportunity to respond, also meant that the dismissal was harsh.
Another interesting issue the Commission considered was that directors of the employee may have also accessed and downloaded pornography on company devices. The Commission said that even if there was a policy, if it wasapplied inconsistently itwill be difficult to rely on it to dismiss an employee.
Our employment law solicitors say a lesson to be learned from this case is that employers should have in place clear policies that address the conduct expected of employees in the workplace.
Employees should be made aware of the policies, and be provided with training on the policies. Employers should also make sure that employees understand the policies.
The polices should make clear the consequences if they are breached, and should be enforced consistently at all levels within the workplace.
