As employees start to return to the office, they may find it increasingly difficult to leave their personal lives at home. Employees may be tempted to handle private affairs such as a side business or non-work related calls during working hours. While employers may be lenient to a certain extent, what happens when this compromises the quality of the employee's work? As an employer are you entitled to dismiss an employee simply because they were using their phone?

Such a scenario played out in Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373 (‘Lynda Murphy v Clear Day'). In Lynda Murphy v Clear Day, Ms Murphy was dismissed by Clear Day Pty Ltd (the Employer) for, amongst other reasons, taking excessive phone calls relating to her private business instead of performing her work duties.

A week prior to her dismissal, the Employer had a meeting with Ms Murphy where was warned that her conduct was not acceptable and was in breach of her contract. Ms Murphy's behaviour improved for approximately a week before returning to her old habits. As a result, Ms Murphy's employment was terminated with notice paid in lieu.

Pursuant to s 394 of the Fair Work Act 2009 (Cth), Ms Murphy applied to the Fair Work Commission (‘the Commission') for an order granting a remedy, arguing that she was unfairly dismissed. Ms Murphy's contention being that she was not provided with a written warning.

Unfair dismissal is defined by the legislation as dismissal that was harsh, unjust or unreasonable. In determining whether the dismissal was harsh, unfair or unreasonable, the Commission, assessed the various criteria set out in s 387 of the Fair Work Act 2009 (Cth).

When assessing this criteria, the Commission found that over a 29 day period, Ms Murphy had sent 1260 text messages related to non-work matters during working hours, indicating a failure on Ms Murphy's behalf to dedicate her full time and attention to her work responsibilities. The Commission found that this constituted valid reason for the Employer to dismiss Ms Murphy. The Employer was also found to have served valid notice of these reasons upon termination and provided sufficient warning of unsatisfactory performance prior to dismissal. However, in assessing the criteria found in s 387 of the Fair Work Act 2009 (Cth), the Commission found that certain procedural issues existed. This included the Employer's failure to provide a written warning as well as an opportunity for Ms Murphy to respond to the reasons for her dismissal.

Ultimately, the Commission stated that when considering the failures of the Employer, the seriousness of the reason for termination should also be taken into account. Having seen the volume of texts sent by Ms Murphy, the Commission believed that it would be impossible to believe that Ms Murphy did any work at all. As a result, the Commission found that the dismissal was not unjust.

Lynda Murphy v Clear Day is an important decision that demonstrates that when an employee uses work time to tend to personal matters, it can give rise to a right to dismiss the employee. However, employers should communicate very clear policies about what is allowed in the workplace and ensure that all procedures are correctly followed when dismissing an employee. That will ensure that an employer is best placed to defend any subsequent unfair dismissal claim.


1 Fair Work Act 2009 (Cth) s 385(b).

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