Case study: Unlawful dismissal

23 June 2020

An employee was subject to unlawful dismissal for using internet to run a side business.

An account manager fired for her excessive internet use and for using work time to run her two small businesses has been awarded $5000 by the Employment Relations Authority.

The authority ruled Antonina Knight was unlawfully dismissed by Printek Supplies Limited in December 2013. It heard 85% of Ms Knight’s role was internet-based, included finding and researching clients, using the MYOB accounting system, updating the business Facebook page and creating promotional material.

However, after the company began experiencing telephone connectivity problems, an investigation found it was due to excessive Facebook and YouTube usage. Authority member Tania Tetitaha said although Ms Knight was cautioned at a disciplinary meeting in November 2013 for excessive internet usage and for using work time to operate her own businesses, her subsequent dismissal was immediate and abrupt.

“There was insufficient investigation, no prior raising of the concerns with Ms Knight, no opportunity for Ms Knight to respond to the concerns about Facebook and excessive internet use before the dismissal decision was communicated to her.

“These defects were not minor and did result in Ms Knight being treated unfairly for non-performance and excessive use of the internet.”

Before the authority, the company accepted it did not have a policy about internet use and conceded Ms Knight’s dismissal did not follow due processes, but argued that it came against a background of concerns about dropping sales and customers being unable to access its phones.

They added that even if they had investigated Ms Knight’s actions, there were difficulties because Ms Knight had deleted her browser history. Ms Tetitaha said, “Standing back and looking at the evidence, it is at best equivocal. Ms Knight’s conduct was not misconduct a fair and reasonable employer could have dismissed her for.”

Ms Knight sought compensation for hurt and humiliation totalling $10,000, claiming that the company’s lack of process left her “shell shocked” and she had to endure the humiliation of leaving in front of other staff that had been told about her dismissal before she left.

She also said her dismissal had a financial impact upon her family and said she suffered depression requiring counselling.

However, due to the sparse evidence supporting her claim, Ms Tetitaha said $5000 was appropriate in the circumstances.

If you feel you have been subject to an unlawful dismissal, we urge you to contact us immediately, in confidence.