Personal mobile phone use has long been an issue for businesses to manage. A recent case has hinged on how much phone use is excessive, and is it ever ok to terminate someone for phone use alone. We will explore this hot topic in this weeks Case Review.

Case Review

After being terminated for excessive personal phone use on company time the employee lodged an unfair dismissal claim.

The employee claimed that her termination was unfair as her phone use was not excessive and the business did not properly warn her that she might loose her job if she didn’t curtail her phone use.

In making the claim the employee acknowledged that there was a discussion about the use of the phone while at work and that the employee acknowledged that her phone was going “crazy” with her growing accommodation rental side business but that she had implemented changes by appointing a manager and that would mean the crazy phone use would disappear. The worker outlined that she worked extra hours and through breaks to offset the time she spent on the side business.

A month after the initial warning the employee was terminated for; excessive phone use during work, personal shopping during work, personal emails during work and displaying the work signature, all amounting to a failure to follow lawful instructions and failure to perform work to reasonable standards.

On notice of the termination the employee commented to the business that she had in fact been a diligent worker, noting that “my phone records and texting records are proof of my communications during work hours”.

The claim made it to the Commission for determination.

The Commissioner noted that while the employee provided a statutory declaration that she had complied with the warning and put her phone aside for at least a week, the records revealed this to be a false statement.

As part of the process the employee was required to produce her phone records. The records highlighted that “it was not uncommon for her to send 50+ text messages daily on account of her personal and Farm Stay matters”. Specifically the Commissioner noted that only two days after the warning the employee sent 73 messaged in four and a half hours, leading the Commissioner to note that having “seen how regularly she sent text messages that morning it is impossible to believe that [she] did any work at all”.

In rejecting the claim of unfair dismissal the Commissioner noted that the employee was “not only failing to perform her work to the reasonable standards required” but was further “deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work”.

In rejecting the claim the Commissioner addressed the employees assertion that the dismissal was unfair because a written warning that stipulated continued phone use would result in termination was never issued, along with the fact that termination was issued without the opportunity for the employee to respond to the decision.

To the matter of the lack of written warning the Commissioner noted that even without a written warning the employee was in no doubt of the outcome should the identified breach behaviour continue and so the lack of written warning in this case did not make the dismissal unfair.

To the matter of the lack of opportunity to respond the Commissioner noted that there was an element of harshness to the dismissal because the business did not give the employee an opportunity to respond, but noted that the impact of that harshness was minimal as it was unlikely, given the nature and scope of the breaches, that any response would have constituted a reasonable explanation to the business for the conduct.

Faced with the full evidence and the Commissioners comments the employee did accept that she did not devote herself to her work duties, which she explained as being a result of her hating her job and having no respect for the director. The Commissioner noted that if the employee was “not interested in devoting her full time and attention to the duties required of her, knowing of the allowance to attend to personal matters, she should have taken appropriate steps to end her employment”.

Lessons to all businesses

“This case has a few lessons and take-aways for businesses. Firstly if behaviour is worth discussing and telling an employee to stop, it is worth a formal warning, that also includes notation of what is the possible and likely outcome if the employee does not stop. Secondly it is worth noting that while the overwhelming phone record evidence in this case outweighed the harshness, the business really should have made the time and space to present the employee with the standard business response, which is termination, and then hear the employees comments before it made the final decision on how to proceed, that is the purpose of a performance management meeting and this termination would have been cleaner with that step done right” explains ACAPMAs Elisha Radwanowski.

“What is interesting though is the combination of the need for staff to follow lawful instructions and the need for staff to devote themselves to work while at work. All staff are humans and daily family and personal emergencies come up, it is part of life, and businesses must prepare for, and accommodate that. But this case is a reminder that there is a line, and as long as the business has communicated that line to staff, along with outlining what happens if they cross the line, then the business is entitled to manage performance to that standard. None of these elements are new, but this case is the first in a while to bring them together so clearly” adds Elisha.

Here to Help

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice, Members are reminded that they can seek further advice on their situation by emailing employment@acapma.com.au its free for members. ACAPMA membership is affordable at only $810 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA membership.

Elisha Radwanowski BCom (HRM & IR)
ACAPMA

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