You would think it was a clear cut case: an employer dismissing an employee for accessing questionable images on his work computer, after he had been warned not to do so.

But in this case the Fair Work Commission (FWC) ruled the man’s dismissal was unfair because the employer had failed to follow the correct procedure, and awarded him over $25,000 in compensation.

 The man in question was a financial controller at a car dealership who had been given a formal warning over accessing objectionable websites at work. A female colleague had seen him viewing the sites and had made a complaint. She felt uncomfortable working with the man after this and brought a further complaint to the employer that he had again accessed inappropriate websites at work. The employer investigated and found that the employee had breached its Policy and Procedures Manual and immediately dismissed him.

Computer virus not responsible

The man’s evidence before the FWC was that he had not deliberately viewed the additional websites; instead a computer virus was responsible. The FWC did not accept this evidence and agreed with the employer that it had a valid reason for dismissing the man. However, it found the dismissal was unfair because he was never properly notified of the reason for which he was to be dismissed and was not given any real opportunity to respond to the reason.

 Fair Work Commissioner Williams said the employer should have advised the man that it was considering dismissing him, as well as given him a copy of his internet history and explained that it contained a swimsuit website which it viewed as inappropriate and warranting his dismissal. It should then have allowed him time to review this history and provide an explanation.

 Commissioner Williams went on to say that if the employer had followed this process, it would then have been able to investigate whether a computer virus was a plausible explanation and “a different outcome may have occurred if this had taken place”.

Instead the Commissioner ordered the employer to pay $25,341 compensation to the man.

What does this mean for your business?

You not only need to have appropriate policies for employee conduct and termination (downloadable from HR Advance), but it’s important to remember that a dismissal must not only be for a fair reason, but also must be procedurally fair. This means the employee must be notified of the reason and given an opportunity to respond. The employee must also be allowed to have a support person present, if requested.

 If you need assistance with employee termination, contact Australian Business Lawyers & Advisors.