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FWC gets gnarly with employer over sacking of web-surfing worker

A sacking of a web-surfing employee following an HR investigation described as “amateurish and unfair” has resulted in an unfair dismissal determination[1] by the Fair Work Commission.

The employer’s HR investigation had been initiated after the employee’s internet browsing activities at work were ‘red flagged’ by the employer’s internet security monitoring system.

In an HR investigation lasting just over 12 months, in which the Department of Defence conceded inaccuracies in the allegations put to the employee, it nevertheless determined the employee had breached the APS Code of Conduct.

Despite being one of the largest employers in the country, the Department was found to have failed to “approach allegations of serious misconduct in a relatively sophisticated way”.

Background

The employee in question (Mr Gmitrovic) was employed as a senior regional information officer.

His work required him to cover all aspects of IT services and included heavy internet use.

The problems start

In June 2012 it came to the Department’s attention that the employee had been utilising an anonymous search engine, deleting his browser cookies at the end of each day and also spending, in its view, excessive amounts of internet time for personal use.

In the employer’s eyes, the employee’s actions were suspicious and warranted investigation.

The employer also considered the employee had potentially breached a number of Department Codes and Policies.

In August 2012, the employee was provided with a formal notification of an HR investigation into suspected misconduct by him. At this stage, the nature of the allegations was not identified to the employee.

It was not until November 2012 that the employee was notified in writing of the specific allegations against him.

Inaccurate allegations

In his response to those allegations, the employee highlighted a number of inaccuracies which then lead to further delays from the employer.

Finally by late April 2013, clarification of the technical aspects of the allegations were available and in July 2013 the employee was issued with an Intent to Sanction notice based on the HR investigator’s finding that the employee’s conduct amounted to a breach of the APS Code of Conduct.

In late July, the employee responded in writing and maintained his denial of wrongdoing.

However, in August 2013 the employee was dismissed for alleged excessive internet use and use of an anonymising search engine at work.

The sacked employee then lodged an unfair dismissal application with the FWC.

The FWC’s verdict

The FWC denounced the Department’s entire handling of the workplace investigation as “a bureaucratic process… that appeared to take on a life of its own.”

Particular concerns of the FWC included the employer:

  • failing to allow the employee to properly respond to the eventual allegations used to justify his dismissal
  • having a pre-determined outcome of the sanction process
  • failing to conduct meetings with the employee or potential witnesses during the investigation process
  • making an assumption that the employee may have been using the anonymous search engine for a “nefarious” purpose

It was highlighted as “bizarre” that the lead HR investigator did not attempt to make inquiries with the employee’s supervisor or co-workers to ascertain the amount of actual time spent browsing the internet.

At best, the FWC considered this alleged excessive use “would have warranted some informal counselling”.

“Amateurish” investigation

The Department’s investigation process, described as “extraordinarily drawn out”, “amateurish” and “unfair”, in the end could not satisfy the FWC that the employee had in fact breached any of his employer’s IT policies.

While accepting that the employer had some reason to be concerned about the way the employee was using the internet, the FWC observed there was no convincing reason why the issue was not brought to the attention of his immediate manager in the first place.

The FWC found there was no valid reason for the employee’s dismissal and as such it was unfair.

At the time of publication, the FWC is yet to hand down a decision as to an appropriate remedy for the dismissal (e.g. reinstatement or compensation).

Lessons for employers

Procedural fairness during an HR investigation into workplace misconduct is a central requirement of unfair dismissal laws.

At no stage during this workplace investigation did the employer:

  • consult with the employee in person;
  • make relevant inquiries with the employee’s immediate supervisor and co-workers; or
  • ensure the investigation was conducted in a timely and efficient manner.

The allegations relied on for the employee’s dismissal had to be re-hashed, clarified and corrected, leading to an inappropriately drawn out and ultimately bungled HR investigation.

It may seem a simple proposition but prohibited workplace conduct that is regulated by workplace policies must be clearly spelled out in those policies.

Without a clarity as to the conduct prohibited or permitted, it will be easy for good employees to become confused (about their employer’s expectations) and easy for less than honest employees to escape liability over those prohibited workplace activities.

As a final word and perhaps as this case demonstrates, in order avoid the embarrassment and expense of dismissal action being overturned by the FWC, it is critical that key HR staff have proper training in workplace investigation procedures.

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[1] Mr Darko Gmitrovic v Australian Government, Department of Defence [2014] FWC 1637 (13 June 2014)

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