The Fair Work Commission has upheld the dismissal of a health and safety manager who was fired for sending too many personal text messages during work hours.
The Employer alleged that the employee was sending too many text messages from her work phone relating to her personal business while also managing the company’s health and safety program.
The full-time health, safety, environment and training manager accused her employer of unfairly dismissing her over her personal phone use and alleging that it had failed to properly warn her that she may lose her job.
However, the company alleged that her phone records revealed that she was sending an “extraordinary and unacceptable” amount of texts during work hours, resulting in her dismissal for excessive personal use of company property.
Following an internal investigation, it was found that the employee took numerous daily calls and messages, and also did her Coles shopping and sent personal emails while at work.
Ultimately, the FWC found that while the employee’s personal phone use had been excessive, she had not been given a “clear and unambiguous” warning that her employment could be terminated if she did not stop.
While the FWC held that the Company’s policy on personal phone use during work hours was too vague to form the basis of a fair dismissal, the FWC’s view was that it is “impossible to believe [the employee] did any work at all”, given the amount of time she spent on her phone.
This case serves as a reminder to employers to have clear and ‘unambiguous’ policies in place regarding personal phone use during work hours, and that employees should be made aware of these policies, in the event that you may need to defend an internal or external claim.
And if you’re an employee, be aware that spending too much time on your personal phone at work could cost you your job. It’s always best to err on the side of caution and limit your personal phone use while at work.
The most important takeaway from this decision though, is that the FWC is willing to find that an employee’s conduct amounts to a valid reason for dismissal, even if the employer has not followed correct procedure.
If you’re looking for expert help in setting up great employment law policies to protect you and your business, contact Natalie Knight at Lotus Legal on (08) 9305 9529