Worker unfairly sacked for looking at women in bikinis
A BMW dealership manager with a history of viewing pornography at work was unfairly sacked for looking up swimsuit models on his computer, the workplace tribunal has ruled.
Gerard Roelofs, financial controller at Perth's Westcoast BMW, was given a "first and final warning" and had access to pornography blocked on his computer early last year after a female staff member saw an image of a naked woman on his screen, the Fair Work Commission was told.
Account Coordinator Jennifer Jeffery said she was left feeling vulnerable and uncomfortable working with Mr Roelofs after a second similar incident and was concerned her manager continued to view inappropriate material at work despite the warning.
Having become suspicious, Ms Jeffery checked Mr Roelofs' internet history when he was out of his office and found a website called Wanderlust, wildly beautiful women in nature, which featured pictures of women in lingerie, bikinis and see-through tops, the tribunal was told.
The company reviewed Mr Roelofs' internet history and concluded he had "...gone from looking at pornography to looking at lifestyle-type stuff with women with little clothing on because he could no longer access pornography."
The dealership sacked Mr Roelof but did not tell him what websites he was accused of accessing.
Mr Roelof, who told his boss he had "been set up", said his computer had been infected with a virus that randomly opened different internet pages and denied accessing the Wanderlust and The best of the year's new swimsuit styles websites.
Commissioner Bruce Williams concluded that while "on the balance of probabilities" Mr Roelofs had accessed the swimsuit websites and that doing so was valid reason to sack him, the company should have given him a better chance to respond to the charges.
"At the time he was dismissed, he did not know he was being dismissed because he had apparently accessed the swimsuit website," Commissioner Bruce Williams said.
"Being unaware of the specifics of what he had allegedly done meant he was denied a real opportunity to respond. If Mr Roelofs had been able to prove... that on that date at that time he had not been in his office... this would have meant he had not accessed the swimsuit website.
"Similarly, if Mr Roelofs had been given a proper opportunity to respond... he would have had the opportunity to raise the issue of the virus on his computer."
Commissioner Williams found that the dismissal was unfair and unjust and ordered the car dealership to pay Mr Roelofs $25,341 in compensation.
“Although the Fair Work Act imposes very few legal obligations with reference to the management and subsequent termination of underperforming employees, unfair dismissal claims cost businesses precious time and money.
A concise performance management policy based on best practice guidelines mitigates legal risk by establishing clear performance and behavioral expectations for employees. It also provides a structured process for raising, addressing and resolving issues and empowers employers to pragmatically navigate the more challenging and unpleasant aspects of people management with confidence.”
Jason Wales - Employer Assistance Services Manager
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This is a copy of an article from www.smh.com.au posted on 27 July 2016.