The Fair Work Commission has ordered a Melbourne traffic management business to pay a former employee $10,000 in compensation, after he was dismissed from his role due to claims he was using his phone and internet for personal use during work time and had sent work files to his personal email address to help with finding another job.
The employee worked as a graphic designer at Amber Traffic Management between March 2016 and his dismissal in May 2017, and his role involved marking up maps to take to clients of the company for traffic management project work.
In making an unfair dismissal claim to the Fair Work Commission, the worker argued he was regularly criticised by his employer for performance issues and was threatened with dismissal from about seven months into the role. However, those threats didn’t eventuate until May 2017.
The Fair Work Commission heard that the employee had started looking for a new position in May 2017 for a variety of reasons, including a planned relocation of the business from Trugunina in Melbourne’s west to Richmond in the east, which would have resulted in a long commute for the worker.
As part of building a folio of work, the employee was making copies of work files used at Amber Traffic Management and emailing these to himself. This fact was discussed with the owner of the business, who was very concerned about this and reminded the worker those files were not to be distributed to anyone else.
The employee said upon hearing these concerns, he deleted the emails.
Around the same time, the Commission heard the employer was worried the worker was using a company phone and computer, and his own music player, to conduct personal matters on work time. On May 16 2017, the owner confronted the worker and warned him again about the use of his music player at work. The employee alleges he was told to show the owner all his personal emails, including emails that had been deleted.
The employee says he thought his boss didn’t believe he had deleted the files from work that he had emailed himself for his folio, and asked, “are you happy with invading my privacy?” He was then told if he didn’t like the company’s policy he should leave, and he subsequently left the office for the day that morning.
The worker said he was then sent a text message informing him he was dismissed, effective immediately, for issues including continuous use of devices at work for personal matters, for improperly using the company’s intellectual property without permission, and for a failure to improve his standards at work.
In deciding the case, Fair Work Commissioner Nicholas Wilson examined whether the company was right to fire the worker for “serious misconduct and continuous failure to perform to expected standards”, noting that messages sent to the worker implied both issues were a reason for dismissal.
When considering the failure to perform at work, Commissioner Wilson decided that while the employer did show some concerns about the staff member’s work, he “put up with the performance defects he perceived on the part of [worker]” and did so over some time.
Instead of the employer taking action when warnings of dismissals were delivered, Wilson found the “claimed errors or poor work performance can hardly be such”.
Wilson also considered whether an employee sending work files to themselves to create an employment folio amounted to serious misconduct in this case. He decided the worker did not deliberately breach company policies because he wasn’t initially aware it was a breach of his contract of employment, and that the files weren’t actually sent to anyone.
However, Commissioner Wilson found there was no evidence that “even if they were, that their distribution would have caused significant or irreparable detriment” to the business.
Given these to elements, he ruled there was no valid reason found for dismissal and that Amber Traffic Management should pay $10,374 in compensation to the former worker.
SmartCompany contacted the company for comment but did not receive a response prior to publication. The worker could not be contacted for comment his morning.
Edmund Burke, a senior associate in workplace relations and safety at Holding Redlich, tells SmartCompany that while this type of case is unusual, there are lessons for businesses about the importance of communicating policies to workers about the use of files and devices at work.
“These things are really the sort of thing you’d need to specifically identify as something you didn’t want people to do,” Burke says of using work devices for personal tasks.
While using the internet for personal tasks was seen as unacceptable when the internet first arrived in workplaces, it is now more accepted, says Burke. This means businesses must spell out to employees what they can and can’t do at work.
“Make sure the employee knows what is acceptable and what is not,” he says.
Employees are restricted when it comes to sharing confidential work information with others, but when it comes to job hunting while at work, Burke says it can be a difficult area to enforce.
“One thing is that you could block certain job-seeking sites,” he suggests, but says staff can circumvent this through use of their own devices.
A better option is to make it very clear to staff that they are not permitted to look for other roles or complete personal tasks at work, and jump on any concerns as soon as they arise, Burke says.
“Address problems as they arise,” he advises.
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