Sacked employee wins online chat case, as Reith rallies Libs on IR

Fair Work Australia has ruled in favour of a landscape architect who was sacked after being accused by a Melbourne-based company of excessive online chatting during work hours, and of forwarding company information to an external email address.

Commissioner Anne Gooley said the company, Outdoor Creations, had failed to provide independent evidence about the internet use, and the ex-employer, Richard O’Connor, had permission to forward the emails.

The employee, who was fired after resigning from the job, was awarded $171 less tax, with the tribunal also noting leave entitlements should have been paid.

O’Connor received a letter of termination by his employer David Fitzpatrick stating: “Tonight I have gone through your records and found that for the last three months alone you have recorded over 3000 transactions on a chat line during work time.”

O’Connor disputed the allegation, saying he “rarely spent over 20 minutes chatting on any given working day”.

Industrial relations lawyer and adviser Peter Vitale says the dispute might have been driven by personalities rather than a heartfelt matter of dispute.

Vitale says the biggest problem in the case seems to be a lack of clear evidence of what the employer was asserting.

“Simply, the employer makes broad allegations about the conduct of the employer and didn’t produce sufficient evidence to back it up,” he said.

Vitale says the case demonstrates two things: employers must have clear policies about the use of company resources; and when a company is considering firing an employee, it must have solid evidence to back it up and afford the employee basic procedural fairness to respond to the allegations.

“In this case, the tribunal noted that some of the allegations made against the employee were allegations that he heard for the first time at the hearing, so they weren’t put to him before they were terminated.”

The ruling comes as Peter Reith, who recently narrowly lost a race to become Liberal Party president, accused Opposition leader Tony Abbot of neglecting industrial relations policy.

Writing for Fairfax, Reith says “too many people are worried about WorkChoices” and “ambivalence about workplace relations reform” by the Liberals is an ongoing concern “for a growing number of Australians running businesses large and small”.