Just because an employer thinks the workers are chatting like chipmunks online doesn't stop the employer having to provide proof.

A landscape architect sacked over his use of an email chat service has been found to have been unfairly dismissed, in the latest case in Fair Work Australia to deal with internet and social media use in the workplace.

Richard O’Connor was employed by Eltham-based Outdoor Creations but had resigned and was about to leave the company when he was abruptly sacked for more than ”3000 transactions on a chat line during work time”.

His employer claimed after searching his computer that he had used the Google Mail chat service when he was supposed to be working and that he had emailed copyrighted plans to an external email address.

Employer David Kirkpatrick said in a letter of termination that in the last three weeks of Mr O’Connor’s work he had noticed ”a serious decline in your productivity”.

”Tonight I have gone through your records and found that for the last three months alone you have recorded over 3000 transactions on a chat line during work time,” he said.

He accused Mr O’Connor of ”accepting wages and not undertaking the work but instead engaging in personal activities” – a move he described as akin to the theft ”of hundreds if not thousands of dollars worth of paid time”.

But Mr O’Connor denied using the chat service to the extent claimed and said he ”rarely spent over 20 minutes chatting on any given working day”.

Commissioner Anne Gooley said neither party had provided independent evidence about the internet use and that Mr O’Connor said he had permission from his employer to send the plans to an external email address.

This is another case where the employer thinks it is ‘open and shut’ so has not given too much thought to correct process. The quotes from his letter certainly have an emotive flavour to them.

Sometimes it is better to have another professional draft a disciplinary letter. Someone his is not directly involved in managing the employee. This eliminates the danger of making claims about an employees performance that are not backed up by facts.

There is no word yet on what remedy has been applied in this case. It seems unlikely that Outdoor Creations would want Richard O’Connor back at work, so a financial settlement would seem the best result for all parties.