The Fair Work Commission (FWC) has criticised the Department of Defence for its dismissal of an employee for excessive personal internet browsing, and the use of an anonymous search engine. The dismissal took place after a workplace investigation which the commission deemed to be unfair and unreasonable.
During the investigation of the employee, the Department failed to speak to the employee’s manager or work colleagues about his internet usage, and whether or not it was having an impact on his work. Senior Deputy President of the FWC Jonathan Hamberger made the point that it was fairly evident that co-workers and the employee’s direct manager would have a strong idea of whether he was spending the majority of his time browsing the internet for non work-related reasons
The original allegations against the employee stated that he had visited non work-related websites up to 1,822 times per day but this figure was later amended after it was found to be incorrect. The issue was never raised with the employee’s manager, but instead a bureaucratic process was put into action which was described by the deputy president as “bizarre” and as taking on a life of its own.
Reasons for the findings
Some of the reasons for finding the dismissal to be unfair and harsh included the severity of the penalty compared to the severity of the alleged behaviour. There was no clear evidence that the internet usage was affecting the employee’s work and even if it had been excessive, informal counselling would have been a more appropriate penalty than dismissal, the commission found.
In the employee’s defence he was described as an honest witness with a genuine interest in IT security issues, which explained his motivation in deleting cookies and using anonymous search engines. According to the employee, his reason for using anonymous search engines and deleting cookies was to protect the Department’s IT network rather than as a way of hiding his usage and internet activities.
He admitted to sometimes using the internet for personal reasons but no evidence could be found that his internet usage was adversely affecting his work.
Defence policies criticised
The investigation, as well as not taking into consideration the statements of the employee’s colleagues and manager, was found to have been excessively drawn out and there were no clear policies to provide a valid reason for the employee’s dismissal.
The Defence Department was advised by the commission that if it wanted the use of anonymous search engines to be punishable by dismissal then that needed to be stated clearly in its policies. The current policies were found to be vague and contradictory on the subject of anonymous internet usage.
No remedy has so far been determined, with the parties due to meet at a future date to discuss the options for providing reparations to the employee.
Content retrieved from: http://www.wiseworkplace.com.au/_blog/WISE_Blog/post/DefenceDepartment/.