Here's a scenario you may be familiar with. An employee is
cyberslacking. Let's call him Robert. The employer knows it.
Let's call it Outdoor Creations. How does Outdoor Creations
know? Because a search of Robert's computer usage reveals he
has recorded 3,000 transactions on a chat line during work time.
Robert also seems to have emailed copyrighted architectural plans
to an external email address and changed the labels on the plans to
show he did the work which he hadn't.
Outdoor Creations is not happy. Outdoor Creations summarily
dismisses Robert once the discovery is made, even though Robert has
resigned and his employment will cease the next day. Robert brings
an unfair dismissal claim with Fair Work Australia
(O'Conner v Outdoor Creations Pty Limited).
What exactly was the reason for summarily dismissing him?
Outdoor Creations viewed the excessive time spent online chatting
as "theft" of its time and money. Outdoor Creations also
alleged that Robert had illicitly removed material from the office
and had not returned a pricey mobile phone.
Robert denied using the chat line to the extent alleged by
Outdoor Creations. Robert explained that he had been using the
online chat account since 2006 and that he rarely spent more than
20 minutes chatting on any given working day. Robert also reasoned
that given he did not take his full lunch break, he saved Outdoor
Creations both time and money by working through his lunch break.
Robert also had explanations for the copyright issue and the mobile
Surely the dispute about Robert's time spent chatting online
could be resolved by looking at the cold hard evidence showing
Robert's internet use? One would think so. But in this case,
neither Robert nor Outdoor Creations backed up their versions of
the story with objective evidence like internet use reports.
The upshot was that Robert successfully demonstrated that his
dismissal was unfair, largely due to Outdoor Creations' lack of
The lesson? Gather sufficient evidence before pulling the
And if that evidence relates to internet use, don't forget
you need to ensure you've complied with your obligations under
the Workplace Surveillance Act. But that's for another
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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