The Fair Work Commission (FWC) has upheld the dismissal of an Electrician who was "deliberate in trying to hide his whereabouts and deceive his employer" by using a Twisties packet to cloak his work device's GPS function.
Fair Work Commissioner Riordan said placing his PDA in a foil bag to create a faraday cage clearly showed that the Electrician went out of his way to hide his whereabouts and that he did not want to be tracked.
The Electrician had been employed with the same company for 20 years and was also a senior delegate for the Electrical Trades Union (ETU). As part of his duties, the Electrician was required to carry and use a Personal Digital Assistant (PDA). This device is approximately the size of a smart phone. The device shows all of the work tasks that an employee has to complete during a day. The employee has to click on the “select” button twice to show that he is performing the task. The device also has a GPS location function which operates automatically when the device is operational. The Electrician had previously raised his concerns about privacy when the PDA technology was first introduced
Background
An anonymous letter was sent to the Employer claiming that the Electrician had been playing golf when he was supposed to be working.
The Employer investigated this accusation, and although it could not substantiate the allegations contained in the anonymous correspondence, a subsequent investigation uncovered a large number of workplace attendance irregularities.
The Employer alleged that the Electrician had made fraudulent work claims on the basis that PDA GPS co-ordinates identified him being at home rather than at the appropriate worksite for the task that he claims he was undertaking. Further investigation of electronic gate logs showed the Electrician had not entered a water treatment site where he was contracted to perform work.
The Electrician openly stored his PDA device in an empty foil “Twisties” bag. As an experienced electrician, he knew that this bag would work as a faraday cage, thereby preventing the PDA from working properly – especially the provision of regular GPS co-ordinate updates.
However, Fair Work Commissioner Riordan said he could find no plausible explanation why the Electrician would create a faraday cage around his PDA, except to obstruct the GPS collecting capacity of the device. The Electrician “appears to have been deliberately mischievous in acting in this manner." commissioner Riordan said.
Commissioner Riordan did not agree with the Electrician’s argument that the investigation of his conduct was "half baked", however he stated that he was “surprised by the limited investigation” that was conducted and accepted that the level of enquiry was “suboptimal” and that some aspects of the investigation were “inadequate”.
However, Commissioner Riordan was not convinced that the PDA GPS data proved anything except that the Electrician had found a way, either inadvertently or otherwise, to function the PDA device whilst not allowing it to record his location.
The device shows all of the work tasks that an employee has to complete during a day. The employee has to click on the “select” button twice to show that he is performing the task. The device also has a GPS location function which operates automatically when the device is operational
On particular days a number of work tasks that an employee had to complete required the Electrician to telephone an Operator to advise of his attendance at a worksite due to a security switch/alarm being activated.
However Commissioner Riordan said he couldn’t find any evidence of the Electrician making the required phone call to the relevant Operator on any of the dates.
While the PDA data showed that over two days the Electrician performed tasks which required him to contact the Operators, an analysis of the Electrician’s mobile phone data showed that no phone calls were made by his phone on those days.
Commissioner Riordan found whilst the PDA GPS data was open for interpretation, no such allegation has been raised in relation to the accuracy of the actual telephone calls that were, or were not made from the Electrician’s mobile phone.
Commissioner Riordan found that the Electrician was not performing work on two of the days that he claimed he was working, and for which he was paid.
He concluded that there was a valid reason for dismissal and the Electrician’s termination not harsh, unjust or unreasonable.
Implications for Employers:
This case serves as an important reminder to employers to ensure that misconduct by employees is dealt with thoroughly, and that appropriate disciplinary action is taken at the time. In this instance the Fair Work Commissioner noted that the Electrician’s supervisors knew that he placed his PDA in the foil bag and that they should have known the effect that this action would have on the PDA device. It may be harsh for an employer to dismiss an employee for misconduct when they have not formally investigated or warned the employee for similar behaviour in the past.
An investigation does not need to be perfect for an employer to be able to rely up it to dismiss an errant employee so long as appropriate processes are followed. The Employer was also criticised for not providing the Employee with all the information as to the allegations levied against him. It is therefore essential that an Employee is provided with all the information that is being relied upon by the Employer.
Colella v Aroona P&T P/L t/a Aroona Alliance U2016/12172
About the author: Craig McFadden is the founding director of Savvy HR. Craig's clear, practical counsel and ability to influence others into action and to rethink traditional HR practices with a business oriented lens, has gained him credibility with CEOs and executive leaders and he is frequently called on to serve as a strategic partner with the primary focus of defining, building and influencing the talent within leadership teams to drive business objectives.
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