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 phone too.
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 evidence.
The lesson? Gather sufficient evidence before pulling the dismissal trigger.
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 time...
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