Personal internet use unfair dismissal case fails due to poor investigation

An employee who was dismissed for accessing blocked websites from work and visiting personal websites has managed to win an unfair dismissal case, on the grounds he should have been counselled first.

Department of Defence employee Darko Gmitrovic, whose job was to maintain databases, was accused of using a search engine at work that could circumvent the department’s IT security, and using his work’s internet for personal use.

However, Fair Work ruled Gmitrovic was unfairly dismissed as the investigators within the department had already determined his guilt before the investigation began.

Gmitrovic was originally accused of using an anonymous search engine, called ixquick.com, to search for websites.

The department claimed the search engine was an example of a proxy service that could leave its firewall “defences rendered useless”, giving Gmitrovic the ability to access blocked websites or excessively looking at personal websites.

This was a clear violation of written rules banning the “masking of a sender’s identity from Defence investigators” and “web surfing and sustained accessing of non-work-related internet content”.

In his defence, Gmitrovic claimed that there was little evidence to show he was using work computers for personal use, and that accessing external sites was an essential part of his job.

Gmitrovic said he was also motivated to use anonymous search engines due to security concerns. The use of such services means that rather than a search appearing to Google as coming from the Department of Defence, it would instead look as though it come from the anonymous search engine.

During the Fair Work Commission hearings, an investigator from the department admitted that while they had looked at the employee’s internet records, they had not contacted his immediate supervisor.

“It might have been relevant to talk to the applicant’s supervisor about whether there were any problems with him completing his work if he was spending so much time doing personal activities on the internet,” the investigator admitted.

In his finding, Fair Work Commission Senior Deputy President Jonathan Hamberger found the dismissal to be unreasonable as the investigators failed to adequately investigate the claims against Gmitrovic.

“I accept that the Defence IT Security Operations area had some reason to be concerned about the way the applicant was using the internet. What I fail to understand however is why the issue was not brought to the attention of the applicant’s immediate manager to enable a sensible discussion with the applicant to take place,” Hamberger said.

Employment lawyer Peter Vitale told SmartCompany there were two major problems with the Defence Department’s case.

“First, the department was never really clear about what the alleged misconduct was, and second, they failed to interview all the witnesses,” says Vitale.

Vitale says there are three key lessons from the case small businesses need to be aware of.

“First, be very clear about what misconduct it is you’re alleging and give the employee an opportunity to respond to a clear allegation,” he says.

“Second, make sure you know what the allegation is before you go off half-cocked.”

“Third, make sure you know who all the relevant witnesses are and all the relevant evidence before an accusation.”