The Western High Court found that it was wrongful to dismiss an employee summarily due to his private use of the Internet during working hours. On the other hand, it would have been legitimate to dismiss the employee.

TWO HOURS' USE OF FACEBOOK AND THE INTERNET DURING NIGHT DUTY

The employee had been employed as a quality instructor with the company for 11 years. After a night duty, the employee was dismissed summarily as he had used two hours of his night duty to visit Facebook and to use the Internet.

According to the company's rules on data security the staff was entitled to use the company's e-mail and Internet for private purposes if such use only took place occasionally and in a very limited period, but the rules did not state the consequences in case of violation.

The district court found that the dismissal was legitimate and ruled in favour of the company.

WESTERN HIGH COURT RULING

 Based on the evidence, the High Court found that the employee had used the Internet for private purposes for approx. one hour in excess of his break, which violated what was acceptable according to the rules.

This was not sufficient, however, to justify a summary dismissal because the employee had not received a prior warning, and because his work that night did not give rise to any comments. The employee was therefore awarded salary in the notice period.

The company could, however, have dismissed the employee and he would therefore not have been entitled to severance pay.

REMEMBER TO STATE THE CONSEQUENCES OF VIOLATED POLICIES

 The principal obligation of an employee is to perform the work in accordance with the employer's instructions. When an employee spends working hours on private matters, he or she is neglecting the principal obligation under the employment contract, which is considered a serious breach.

A summary dismissal is a termination of the employment based on the employee's material breach. The breach must therefore be of a sufficiently serious nature before it can justify summary dismissal, in particular without a prior warning. This ruling determines that one hour's use of the Internet for private purpose during a working day is not that serious a breach that it may in itself justify a summary dismissal as the company's IT policy did not have any clear rules in this respect, and as the employee had not previously received any reprimands.

If stated in e.g. a code of conduct or a staff manual that a specific conduct will not be accepted, e.g. use of the Internet during working hours, this will be considered aggravating circumstances in relation to the assessment of the breach. It must be assumed, however, that if such a rule is to be considered a pre-warning that may justify summary dismissal in case of violation, the pre-warning must explain the risk of summary dismissal.

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Marianne Lage

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