Staff retaliate with unfair dismissal actions

Staff dismissed as a result of Internet misuse are increasingly taking a tougher stance against employers and are more likely to file an unfair dismissal claim than they were a few years ago.

Despite the prevalence of e-mail usage policies in the workplace, the number of cases being heard before the Australian Industrial Relations Commission (AIRC) continues to rise and the latest spam index from Clearswift shows that pornographic e-mails have shot up by almost 350 percent since June 2004.

Clearswift managing director, Peter Croft, said there is a greater awareness generally about workplace e-mail usage but employees are also more aware of their rights.

In addition to unfair dismissal claims, Croft said employees are also aware of their rights under the NSW Workplace Surveillance Bill that states that employers cannot undertake any covert surveillance in the workplace.

"Organizations need to be consistent with their Internet usage policies by always enforcing it and reminding staff of penalties if there is a breach," he said.

Only last week the AIRC overturned the sacking of a Country Fire Authority (CFA) employee in Victoria who was sacked when sexually explicit material was found in his office.

The CFA said it sacked the employee for misusing computer facilities and storing inappropriate images in his computer files.

However, the employee filed for unfair dismissal denying knowledge of the pornographic images found on a computer disk in his office. AIRC senior deputy president Brian Lacy found there was no evidence it belonged to the employee as up to 45 staff had access to his work area.

While the presence of unauthorised software and music files found on the employee's computer was a violation of CFA rules, Lacy said this was not grounds for sacking and his dismissal was harsh and unreasonable.

The commission will consider at a later date whether the sacked employee should receive compensation or get his job back.

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