In a recent decision, Fair Work Australia has confirmed again that proof of excessive use of social media during work hours may constitute a valid reason for termination of employment.
Richard O'Connor had been employed as a landscape architect by Outdoor Creations Pty Ltd since January 2009. In February 2011, Mr O'Connor's employer accessed his work computer, to find that he had been using the Google Mail chat service while at work, and that he had engaged in some 3,000 chats online.
In a dismissal letter, Mr O'Connor's employer stated that he had been:
… accepting wages and not undertaking the work but instead engaging in personal activities … to the point where [he had] in effect, justified to [himself], the theft of hundreds, if not thousands of dollars worth of paid time from this office.
Given that this view had been reached, unsurprisingly, Mr O'Connor was summarily dismissed.
At the hearing of a subsequent unfair dismissal application, Mr O'Connor denied the extent of the social media usage at work attributed to him. He claimed that his records showed that he had engaged in 3,061 chats since opening his Gmail account in 2006 – not since the commencement of his employment in 2009. He also stated that he rarely spent over 20 minutes chatting on any given day, and often worked through his lunch break to compensate.
Commissioner Anne Gooley observed that excessive social media use during work hours could indeed be a valid reason for termination. However, in this case, because the employer had failed to comply with the directions of Fair Work Australia to file the evidence it relied upon, she found that the employer had not proven that misconduct justifying dismissal had occurred.
Partner: Amanda Watt
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