In a recent case brought before the Employment Relations Authority (ERA) the applicant, an Auckland based accounts manager claimed to have been unjustifiably dismissed by respondent Printek Supplies Ltd.
The Employee ran her own two online businesses while at work with her Employer. Printek customers began to complain they couldn't get through on the phone so the Employer investigated and it was found to be due to excessive Facebook and YouTube usage. The investigation was further hampered by the Employee deleting her internet history from her computer.
The Employee was called to a formal meeting, cautioned about excessive internet usage and for using work time to operate her own businesses. However her subsequent dismissal was deemed 'immediate and abrupt' by the ERA.
The Authority said that the employer had failed to raise concerns prior to the dismissal decision, and did not give the applicant the opportunity to respond. The authority member also noted that Printek Supplies had no policy on internet use – thus the applicant’s behaviour could not be defined as misconduct.
In so far as the latter was concerned the authority held that the deletion of the internet browsing history was inconclusive. An employer may speculate that there is something to hide by deleting the internet browser history but without anything more, it is at best speculative. It does not reach or meet the balance of probabilities that is required for an employer to take further action.
The authority held that the applicant’s behavior was not misconduct for which dismissal was appropriate and therefore the dismissal was unjustified.
The applicant was awarded only $5,000 compensation of her $10,000 claim from her inability to prove losses for the costs of her counselling due to humiliation, and her inability to get another job.
Apart from the breaches of process in the dismissal, companies who have staff working on computers with internet access should have clauses in the employment agreement or an ICT policy governing what is acceptable use. Without such provision it is always going to be difficult to argue what is unacceptable behavior with respect to internet usage.
If you don't have a policy download and customise our template from the Library in the Employers Toolbox.
Introduce it and inform your staff.