Most employers understand that personal situations or emergencies may occur during work hours that an employee may be required to deal with. However, outside of ad hoc personal emergencies, employers expect that during work hours their employees dedicate their full time and attention to their work responsibilities. When an employee’s personal circumstances start becoming prioritised over work responsibilities issues will undoubtedly arise.

The Fair Work Commission (FWC) has recently upheld an employer’s decision to dismiss an employee due to excessive personal phone use, during work hours.

Background

In Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373, Ms Murphy was employed full-time by Clear Day Pty Ltd as a Health, Safety, Environment & Training Manager. Outside of this, Ms Murphy also ran a farm stay business on her property and was consistently using her phone and other electronic devices during her working day to deal with the farm stay business.

Prior to her dismissal, management had spoken with Ms Murphy about attending to personal matters during work hours, however no changes in Ms Murphy’s conduct had occurred.

Clear Day Pty Ltd claimed that despite being directed to turn off her mobile phone whilst in the office, Ms Murphy continued to neglect her professional duties and spend her work hours attending to personal matters including:

  • making and taking phone calls in relation to her farm stay business;
  • using her work issued computer to make bookings;
  • doing her personal online Coles shopping; and
  • sending personal emails with the company signature including hostile emails to her solicitors discussing a personal Family Law matter.

As a result of her failure to comply with Clear Day Pty Ltd’s direction, Ms Murphy’s employment was terminated.

Decision

Commissioner Hunt found that the number of text messages sent by Ms Murphy were “extraordinary and unacceptable”. Further Commissioner Hunt stated that Ms Murphy’s conduct not only exhibited a failure to perform her work to a reasonable standard but that she deliberately failed to follow a lawful and reasonable direction given by Clear Day Pty Ltd to turn her mobile phone off at work. In this regard, the Commissioner stated that it was “impossible to believe that Ms Murphy did any work at all”.

Although the Commissioner highlighted that Ms Murphy was only given verbal warnings and absent a written warning it could be said Ms Murphy was not afforded the opportunity to respond to the reasons for dismissal, given the extent and seriousness of the basis of dismissal, the Commissioner held it was not unfair. In this regard, the Commissioner also found that when presented with the issue of excessive personal texting Ms Murphy had no response or explanation to provide the FWC and therefore it was unlikely she would have provided a sufficient explanation to Clear Day Pty Ltd had a show cause process been carried out in any event.

Key Take Aways

Procedural deficiencies will not always be overlooked by the FWC. Employers should ensure they:

  • follow the appropriate processes and procedures, particularly when dismissing employees due to conduct or work performance;
  • Consider reviewing their policies, regulations and employment contracts to ensure they sufficiently cover conflicts of interests and personal phone and electronic device use.
  • Ensure that employment contracts provide requirements and obligations of employees to exercise diligence during work hours and performing duties, including dedicating all their time while at work.