Compensation for dismissal due to accessing inappropriate websites

The Fair Work Commission¹ has ordered an employer (Westcoast BMW) to pay $25,000 to its former financial controller who was dismissed for accessing inappropriate websites whilst at work.

The background to the dismissal included that the employee had previously been issued a first and final warning after admitting accessing pornographic websites at work, in breach of the employer’s internet usage policy. Four months later, the employer received a complaint from another staff member about the employee accessing inappropriate websites whilst at work.

Following an internal review of the employee’s internet use which found that he had accessed a swimsuit website, the employer dismissed the employee without notice.

The Commission held that the employee’s further misuse of the internet after receiving a first and final warning constituted a valid reason for dismissal.

However, the Commission otherwise held that “multiple” procedural failures on the part of the employer rendered the dismissal unjust and therefore unfair. In particular, the Commission found that the employee was not:

• properly notified of the reason for the dismissal (i.e. accessing the swimsuit website)
• notified of the reason before the final decision to dismiss
• afforded any real opportunity to respond to the reason for the dismissal.

The Commission found that the denial of procedural fairness by the employer was “not merely a technical failure”, but rather, may have changed the outcome.

In determining the appropriate compensation, the Commission gave consideration to the employee’s otherwise unblemished 10 year work history and the possibility that the employee’s position may have otherwise been made redundant. The compensation awarded to the employee by the Commission represented lost earnings over a four month period.

The decision highlights for employers the importance of:

• having in place a policy which regulates employee access to and use of company internet systems
• ensuring that employees are informed of conduct of concern and which may justify dismissal, and providing a real opportunity for them to respond to that issue.

¹Gerard Roelofs v Auto Classic (WA) Pty Ltd T/A Westcoast BMW [2016] FWC 4954.