If procedural fairness is not applied during the disciplinary process, a dismissal may be found to be unfair, even if for valid reasons.

The Fair Work Commission has ordered an employer to pay compensation to an employee who was dismissed for accessing pornographic material at work, in a case which demonstrates that a failure to afford procedural fairness can be fatal to an employer seeking to justify a dismissal (Roelofs v Auto Classic (WA) Pty Ltd [2016] FWC 4954).

The facts in Roelofs

The employer, Auto Classic (WA) Pty Ltd was notified by a female employee that the applicant, Mr Roelofs, was viewing pornographic material on his work computer. The female employee was able to view Mr Roelofs' computer screen directly from her own workstation and while she attended to filing documents in his office. The employer's IT department investigated the matter and found 33 instances of the Mr Roelofs accessing pornographic material on his work computer.

Mr Roelofs had signed a copy of the employer's Policy and Procedures Manual at the commencement of his employment, which contained a section on internet, intranet and email use. The employer subsequently held a meeting with Mr Roelofs to discuss the allegations and Mr Roelofs admitted to viewing the pornographic websites. As a result, the employer issued a first and final written warning to Mr Roelofs.

Several months later the same female employee notified the employer that Mr Roelofs was continuing to access inappropriate websites. She claimed that she felt uncomfortable working with him, and was seeing a psychologist. She informed the general manager that she had gone onto Mr Roelofs' computer and checked his browsing history and uncovered a website called “wanderlust, wildly beautiful women in nature”, which contained women in lingerie and see-through tops.

The employee made a further claim that Mr Roelofs was accessing her emails and recording the times and durations of her phone calls and whereabouts. She informed the employer that she felt it had not taken adequate action and made a formal written complaint. The employer then held a meeting with Mr Roelofs who responded that he arranged for the emails to be forwarded to him because the employee had been on leave and he needed to be kept in the loop and that he had been asked to monitor her work because he was her manager. He was asked if he had accessed any inappropriate sites since his first warning and he stated that he had not.

The employer engaged its IT department to again review a full report of Mr Roelofs' browsing history. The printout of Mr Roelofs' browsing history contained websites categorised as fashion and beauty including 5 pages of women in swimsuits. These websites were all accessed on one day over a five-minute period. As a result the employer determined that Mr Roelofs had “...gone from looking at pornography to looking at lifestyle type stuff with women with little clothing on because he could no longer access pornography.” This was the sole reason relied upon to terminate his employment, and not the complaint made by the female employee.

The employer then held a meeting with Mr Roelofs and notified him that his employment had been terminated without notice due to his breach of the earlier undertaking not to access inappropriate material at work. Mr Roelofs was afforded an opportunity to respond, however the Commission found that this was limited by Mr Roelofs not being forewarned about the allegations.

Mr Roelofs said that his defence would have been that around the time that he was alleged to have accessed the websites his computer had a virus. Mr Roelofs argued that he did not raise this at the termination meeting as he felt ambushed and unprepared. This defence was not raised until the hearing. He further argued that his computer was not locked during the day and neither was his office, and it was already known that the female employee who made the complaint admitted to accessing his computer regularly.

The Fair Work Commission finds flaws in the dismissal process

The Fair Work Commission was satisfied that it was for the employer to determine its own policies and what was and was not acceptable at work, and that a further breach of the policy and the written warning was a valid reason to dismiss the employee.

The Commission held that on the balance of the evidence it was likely that Mr Roelofs did access the websites himself after his first warning, despite his statement that it was a virus. The Commission held that "he was fully aware that any further misuse could result in his dismissal. Mr Brandon determined that accessing the swimsuit website was further misuse of the internet service contrary to the requirements of the first and final warning and for those reasons I accept there was a valid reason for Mr Roelofs’ dismissal."

However, the Commission found multiple failures in the procedure undertaken by the employer, which were "not merely a technical failure which common sense would suggest would not have changed the outcome".

Mr Roelofs had no practical opportunity to access a support person because he had not been informed of the reason of the meeting. The Commission held that Mr Roelofs was never notified of the specific reason for his dismissal before he was dismissed or even at the time he was dismissed. At the time of his dismissal, Mr Roelofs was simply told that he had contravened company policy and breached his promise not to access inappropriate material, whereas he should have been notified of the specific reason for his dismissal. Further, the decision to dismiss Mr Roelofs was made prior to putting the allegations to him.

Despite the Commission finding that on the balance of probabilities, Mr Roelofs likely did access the websites, it held he should have been afforded the opportunity to prove that he was not in his office at the time, or to provide some other explanation.

At no time was the female employee directed not to access the Mr Roelofs' computer without his consent, despite the employer knowing she was doing this regularly. The Commission was particularly critical of this action, because it supported an inference that she could have been incriminating Mr Roelofs.

Accordingly, the Commission found that Mr Roelofs' dismissal was unfair. Taking into account evidence that it was likely that Mr Roelofs may have been made redundant or redeployed shortly after his dismissal, and that he had obtained new employment, he was awarded $25,341.13, being the difference between the amount of remuneration he would have earned in his previous role and his new role if he had not been dismissed for a period of four months

Points for employers

Even in circumstances where there is a clear breach of policy or other misconduct by an employee that would warrant dismissal, employers should take care to afford the employee procedural fairness throughout the process.

Notably, the Commission found that the choice of a mid to large sized employer not to employ a specialist human resources staff member is a business decision and it may explain, but will not excuse, an employer who fails to apply procedural fairness in the disciplinary process. It could not be said that the cost of a business carrying those skills was prohibitive as the employer was not a small employer.