By
Mike Toten
Mike Toten is a freelance writer, editor and media commentator.
An employer who seemed determined to find a reason to dismiss an employee initially warned him for poor performance and customer complaints ... but then dismissed him for his website browsing history, claiming he had been dishonest.
However, the Fair Work Commission (FWC) found that, while job performance and conduct were valid reasons to dismiss, the employer had bungled the process by acting too quickly and made the dismissal unfair.
Facts of case
The employee was an attorney in an intellectual property business. When a customer complained he had been too slow handling the patenting of a new invention, he said "fair enough" and offered to hand the work over to another employee. He also expressed doubts about the customer’s integrity and ability/willingness to pay.
The employer arranged a meeting to “discuss his poor performance”, then suspended him for his alleged “aggressive and abusive manner” during that meeting and arranged a second meeting. The employee disputed the latter accusation, relying on notes from his support person at the meeting – his girlfriend. The employer countered that he had not told them she was his support person.
The employer then issued a final warning, claiming that the employee’s lack of communication with both the employer and its customer had damaged the reputation of the business. The employee gave a response, but the employer summarily dismissed him four days later. Its reason was that he had delayed responding to the customer because he had been busy doing other things at work that were not work-related. To support the latter claim, a spreadsheet of his website browsing history at work was attached. The history, it was claimed, proved the employee had been dishonest.
Decision
The FWC found that the employer had made the dismissal unfair by changing the reason for it and not giving the employee an opportunity to respond to the “amended” reasons, then dismissing him too quickly.
The employer’s concerns about job performance and conduct during the meetings could have been a valid reason for dismissal with notice or payment in lieu but did not amount to serious misconduct justifying summary dismissal. The employer then relied on the additional reasons of personal website browsing at work and alleged dishonesty about doing so.
The FWC said that personal website browsing during work hours was commonplace among employees, and the time this employee had spent doing so was much less than the time required to perform the delayed work tasks. In any case, the employer did not notify him of the actual reason for his dismissal nor provide him with an opportunity to respond to the allegations of website browsing and dishonesty.
However, the amount of compensation awarded to the employee was halved because of his misconduct.
What this means for employers
To avoid the possibility of dismissal being unfair, an employer must notify an employee of all the real reasons for the proposed dismissal and provide them with an opportunity to respond to the allegations. In this case, the employer went looking for extra reasons to make its case appear stronger and then dismissed the employee too abruptly.
It would also seem, from the FWC’s comments, that it regards random browsing of non-work-related websites while at work as “normal” behaviour, and not, on its own, a ground for serious disciplinary action such as dismissal.
Read the judgment
