An employee has successfully challenged the termination of his employment, which had occurred on the grounds of excessive personal use of the internet during work hours, and the use of an 'anonymous' search engine.

The employer had conducted an investigation into the employee's internet use. The applicant was dismissed as a result of the employer concluding that his use of an anonymous search engine was a deliberate attempt by him to hide his search activities, which in addition to his excessive internet use amounted to a breach of the employer's Code of Conduct. The applicant maintained that he had done nothing wrong, and that there was no policy prohibiting the use of an anonymous search engine whilst in the workplace.

Senior Deputy President Hamberger found that the applicant's dismissal was harsh, unjust and unreasonable, and that the employer's investigation was unfair, drawn out and lacked evidence to support the decision to terminate the applicant's employment.

In particular, SDP Hamberger noted that there were only "vague and contradictory" employer policies surrounding internet usage. As such, even if the applicant had engaged in excessive personal internet usage, the matter would have "warranted at best some informal counselling". SDP Hamberger also added that if the employer had wanted to make using anonymous search engines a sackable offence, then this should have been clearly set out in relevant policies.

The employer's defence also suffered because no evidence was adduced to suggest that the applicant's work performance had suffered as a result of his internet search activities, or to refute the applicant's submission that his internet searches were predominately work-related.

At first glance, this decision may be taken to suggest that excessive internet use and anonymous browsing will not justify dismissal. However, this is not necessarily the case.

Rather, employers should take caution from this case and ensure that:

  • their IT policies adequately describe prohibited conduct, and the potential consequences of excessive personal use;
  • any workplace investigations are conducted in a timely and appropriate manner; and
  • if breach of policies or procedures is to be relied upon as a basis for termination, there is sufficient evidence to demonstrate breach (based on the relevant language of the policy itself). 

It is these factors that will ultimately determine the fairness or otherwise of a dismissal arising as a result of excessive personal internet use and other questionable conduct on employer systems.

Mr Darko Gmitrovic v Australian Government, Department of Defence [2014] FWC 1637