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Employee sacked for visiting swimsuit site wins $25,000 award in unfair dismissal claim

The Fair Work Commission (FWC) has recently awarded $25,000 to a former employee of a car dealership who accessed pornography and “lifestyle” sites, upon their findings that procedural failures could have affected the decision to dismiss him.

Early last year, the car dealership issued the financial controller, who otherwise had an unblemished 10-year work history, with a first and final warning when he admitted at the time to viewing pornographic sites. The accounts employee who made the initial complaint subsequently notified the company again, four months later, that he continued to access inappropriate websites.

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Her complaints led the company’s IT department to further scrutinise his web history and a company principal to conclude that he had "...gone from looking at pornography to looking at lifestyle-type stuff with women with little clothing on because he could no longer access pornography". 

Two weeks later, the principal and the General Manager came into his office unexpectedly and told him the company had received a formal complaint, that he had once again breached company policy on internet usage for which he had previously received a first and final warning for and that he was being immediately dismissed for serious misconduct.

Whilst Commissioner Bruce Williams agreed that the financial controller's further misuse of the internet even after receiving a first and final warning constituted a valid reason for dismissal, he found that the employee was not provided with details of the reasons for his termination and he “had no opportunity to know what these websites were or to explain his alleged actions” or request a support person.

FWC found that the company’s denial of procedural fairness was beyond a technical failure as it “possibly could have changed the final decision”, pointing out how the financial controller only became aware at the hearing that he was dismissed for accessing a swimsuit website.

Commissioner Williams said that had the employee been notified before the company’s decision to dismiss him, he would have been able to confirm whether he was actually in his office at the time the alleged access to the website was made. The IT department could have then confirmed his defence that the site was accessed by a computer virus.
FWC’s ruling further noted that the lack of a dedicated HR specialist could have explained the company’s multiple failures of procedural fairness, but said this was a “business choice” for the medium-to-large employer that should still be expected to follow proper procedure.

This recent FWC ruling is a cautionary reminder for employers to take heed of their responsibility; in particular, to keep the organisation in compliance with legislation as well as to provide procedural fairness in resolving any workplace complaints. Policies and procedure-driven practices can improve the way your employees interact, and minimise financial and litigation risk as a result of a breach of conduct in the workplace.

While well-documented policies communicate principles or rules all employees are expected to follow, procedures are just as crucial as they define the step-by-step instructions for carrying out a policy with objectivity and fairness.

iHR Australia understands that every workplace is unique and can assist with the design and development of individual policies, procedures and handbooks to meet the specific needs and requirements of your organisation. In particular, iHR Australia’s focus is to provide well-documented HR policies and procedures in Employee Handbooks / Manuals that will comprehensively cover key areas including, but not limited to, equal employment opportunity, anti-bullying and anti-harassment. This may involve tailoring different manuals for different groups or levels of staff. iHR Australia also has the expertise to develop a Guidelines and Procedures Manual for Managers covering guidelines, procedures and templates for human resources practices such as selection and recruitment, performance management, managing complaints and terminations.

To find out more about iHR Australia’s bespoke HR policy and procedures services call 1300 884 687 or make an online enquiry today.

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