WRONGFULLY sacking a senior employee over p0rnographic material allegedly found in a company laptop has cost Willdale Bricks over $129 000 in damages. Willdale sacked Andrew Dzuda, an engineer, after it allegedly found p0rnographic material in the company laptop he was using.
This was after the company’s IT department had reportedly inspected the laptop and discovered p0rnographic material in its hardware. Willdale’s allegations failed to stick when the court noted that the laptop was withdrawn from Dzuda for two months before the charges were levelled against him.
Labour Court Judge Euna Makamure ruled that someone could have planted the p0rnographic material in the laptop and ordered Willdale to either reinstate Dzuda or pay him damages.
“The appellant was employed by the respondent. In accordance with the requirements of his job, the appellant was in possession of a laptop computer belonging to the respondent, his employer. This was for official use. It appears common cause that the respondent used to conduct periodic inspections of its laptop and that such inspections were conducted in the presence of the user. The laptop allocated to the appellant was withdrawn from him on 8th October 2010 at 1750 hours. More than two months later, on 20 December 2010, the respondent wrote to the appellant advising him that undesirable programmes (p0rnographic) were found to have been in his laptop,” noted Justice Makamure.
Justice Makamure said loading such material on company property was tantamount to abuse.
“What is of concern however, is the period between when the laptop was taken from the appellant and the time when a report regarding the abuse was lodged,” he said.
Justice Makamure noted that a report compiled by a technician hired by Willdale showed that the offensive material dated back to April 4 2008.
Dzuda was asked to submit a report by the employer explaining why the laptop had p0rnographic material.
He professed ignorance over the matter.
Charges were formally laid against him, a hearing was conducted and he was dismissed.
Justice Makamure did not rule out the fact that someone could have planted the offensive material in the laptop.
“What is of concern to this court is that the laptop in question was withdrawn from the appellant for 72 hours. This is a period in excess of two months. . . The question is why the laptop in question was not inspected during the presence of the appellant. This question alone creates doubt in the mind of the court. Had such an inspection been carried out in the presence of the appellant, then any doubt even on balance of probabilities, would not have been created in the mind of the court.
Justice Makamure ordered reinstatement of Dzuda “to his post with no loss of salary and benefits with effect from date of dismissal”.
He said in the event Willdale did not want to reinstate Dzuda, the company was supposed to pay damages.
After Dzuda and Willdale failed to agree on the amount of damages, the court directed that he be paid $129 260.86 in damages.