Regulating mobile phone usage in the workplace can be difficult for employers, especially if employees use their mobile phones excessively for personal calls and texts during working hours. But how many calls or texts are considered too many?
The Fair Work Commission (FWC) recently dismissed an unfair dismissal claim brought by an employee who was terminated for sending over 1,000 text messages while at work – an excessive amount according to the FWC.
In Lynda Murphy v Clear Day Pty Ltd  FWC 373, Ms Murphy worked full-time as a Health, Safety, Environment & Training Manager for Clear Day Pty Ltd (Employer). She also ran a farm stay on her own property.
Ms Murphy commenced employment with the Employer on 1 December 2020. Two months after her commencement, the Employer observed Ms Murphy taking excessive phone calls relating to her farm stay business instead of performing her duties.
On 15 June 2021, Ms Murphy sent 34 text messages between 8.19am and 12.30pm. The next day, she sent 76 text messages between 7.38am and 2.45pm.
On 12 July 2021, management spoke with Ms Murphy about their concerns relating to taking personal calls and personal texting during work hours, and that Ms Murphy had been:
- operating her own farm stay business during work hours
- making and receiving numerous phone calls to make accommodation bookings on her personal phone, ordering and booking amenities, arranging the collection of a septic tank, ordering water tanks, and purchasing animals
- making bookings using her booking app, which she had downloaded onto her work computer
- liaising with her solicitors by phone and email about her personal property settlement and finance
- using the company vehicle during periods of annual leave.
As a result, the Employer directed Ms Murphy to:
- turn off her mobile phone while she is in the office
- not to fill up jerry cans with client's fuel
- only use the company vehicle for business.
Two days after Ms Murphy received the direction, she sent 73 messages within four and a half hours. On the grounds that Ms Murphy continued to excessively use her phone for personal reasons while at work, the Employer terminated Ms Murphy's employment on 4 August 2021.
Ms Murphy then brought an unfair dismissal claim before the FWC against the Employer.
The FWC's decision
Commissioner Hunt found that Ms Murphy was "not only failing to perform her work to the reasonable standards required" but was "deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work".
Although there were a number of procedural fairness issues being presented (because the Employer failed to provide Ms Murphy with an opportunity to respond to the reasons for dismissal and that she was not given a written warning), Commissioner Hunt's view was that, on balance, the dismissal was not unfair given the seriousness of these reasons for dismissal.
Despite the harsh impact these failings may have had, Commissioner Hunt considered that the seriousness of the valid reason weighed against these failings.
Commissioner Hunt observed that, when presented with the phone usage data of outbound text messages, Ms Murphy had no explanation to provide to the FWC. Therefore, had she been asked to participate in a show cause process, she would have been unlikely to have been able to provide a suitable explanation to the Employer.
In conclusion, the FWC found that the dismissal was not unjust, nor was it otherwise unreasonable, taking into account the conduct engaged in by Ms Murphy and her deliberate failure to follow a lawful and reasonable direction. Commissioner Hunt commented that having "seen how regularly she sent text messages that morning, it is impossible to believe that she did any work at all".
To avoid these situations, employers should:
- review their policies and employment contracts to check if these documents contain suitable "conflicts of interest" clauses
- consider introducing a policy requirement for employees to disclose a "side hustle" or secondary jobs which may impact their work with the Employer
- ensure their employment contracts require employees to devote all of their time and attention to their duties during work hours.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.