Mr Francis Owusu-Ansah v Danoz Direct Pty Ltd

[2010] FWA 6340

[2010] FWA 6340

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Francis Owusu-Ansah
v
Danoz Direct Pty Ltd
(U2010/6630)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 18 AUGUST 2010

Termination of employment.

[1] I heard this application on Tuesday, 17 August 2010 in Sydney.

[2] Mr Owusu-Ansah appeared on his own behalf and Ms Tyler, solicitor, appeared for Danoz Direct Pty Ltd (Danoz).

[3] For the purpose of considering this application I am required by the Fair Work Act 2009 (the Act) to consider the criteria set out below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[4] This is a very straightforward matter. Mr Owusu-Ansah’s employment was terminated for allegedly “being on the internet” when he had previously been directed not to be. Mr Owusu-Ansah was aware that he was not supposed to be on the internet but, he said that somebody had told him that if a different prefix was used then Yahoo could be accessed. He endeavoured to access Yahoo but his access was limited to the first page and nothing further was able to be further accessed. Mr Owusu-Ansah submitted that he had not actually surfed the net, because his further access had been blocked in this fashion.

[5] I have determined that it is irrelevant that Mr Owusu-Ansah could not go further than the front page of Yahoo in accessing the internet. The fact is that he was not supposed to be accessing the internet at all.

[6] Mr Owusu-Ansah was therefore guilty of the misconduct for which he was dismissed. There was a valid reason for his dismissal. I am satisfied that Mr Owusu-Ansah was notified of that reason. No other criteria outlined in s387 appears to me to be relevant.

[7] Danoz did not pay Mr Owusu-Ansah an appropriate payment for notice which would have been one week. Ms Tyler sought instructions about that matter and has given an undertaking on behalf of her client, that no matter what the outcome of this hearing, her client will attend to payment of that outstanding amount.

[8] For the reasons I have already expressed this application is without merit and is dismissed.

SENIOR DEPUTY PRESIDENT

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