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Pornographic indulgences lead to unfair dismissal

Pornographic indulgences lead to unfair dismissal (Last Updated On: August 9, 2016)

If an employee accesses pornography on a work device, many would think this constitutes a decent level of misconduct, and a repeated offence could mean dismissal.

However, in a recent case, the boss of a BMW dealership in Perth who was caught looking at inappropriate sites on his work computer, after receiving a first and final warning for a similar incident, was awarded $25,341.13 for being unfairly dismissed.

The question all will be asking is, why?

Gerard Roelofs had been employed by Westcoast BMW in Perth for almost 10 years when a female colleague saw inappropriate images on his work computer. A few weeks later, a similar incident occurred and the same colleague complained. This resulted in a website block being placed on his computer, and a first and final warning handed down for Roelofs inappropriate behaviour.

The female colleague began to feel ‘vulnerable and uncomfortable’ after making the complaints, and felt Roelof was still using his computer to access inappropriate images. Following this, the colleague accessed Roelofs’s computer to check the internet history and found websites that featured women in bikinis and lingerie.

Roelofs was then sacked for serious misconduct, due to a contravene in the company’s policy and procedures, and due to the fact he had already received a first and final warning.

Throughout the trial, Roelofs argued that his computer was infected with a virus, meaning the inappropriate websites would just randomly open. Fair Work Commissioner Williams concluded that while Mr Roelofs had most likely accessed the websites himself, and this was a sackable offense, the company did not provide him any opportunity to respond to the accusations, meaning a fair and just process was not followed.

Commissioner Williams stated, ‘being unaware of the specifics of what he had allegedly done meant he was denied a real opportunity to respond’.

If faced with a similar situation in your workplace, or any other allegations of misconduct, it is your obligation as an employer to conduct a thorough investigation, ensuring the accused is well aware of the complaint and providing them ample opportunity to respond. Detailed records should also be kept to ensure evidence is available in the event of a claim.

Employsure is Australia’s leading workplace relations specialist and can advise on anything relating to employee management and work health and safety requirements. If you are unsure about meeting your obligations, call us today on 1300 651 415.

Source: Daily Mail Australia

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