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Can you be terminated for personal texting during work hours?

It is not uncommon for an employee’s personal life and circumstances to arise or impact the employee during their work hours. Sometimes, there are circumstances where an employee must respond to personal matters and emergencies whilst at work. There are countless examples, such as a child needing to be collected from school because they are unwell, their elderly parent may need assistance, or a spouse need to know what groceries to pick up from the store on their way home.  

Most employers take a holistic approach to these matters because they understand that their employees are also mothers, wives, carers, fathers, friends and more. However, when an employee’s personal circumstances begin to take priority over completing their employment commitments, especially on a regular basis, issues may arise.  

The recent case of Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373 provides an example of this issue. In this case, an employee was dismissed for excessive personal texting and correspondence during work hours, as well as for sending a hostile email in a personal matter from her work email address.  

FACTS  

From December 2020 to August 2021, Lynda Murphy (Applicant) was employed as a Health, Safety, Environment and Training Manager at the Queensland earth moving business, Clear Day Pty Ltd (Respondent).   

After two months of employment, the Applicant commenced a private business (a Farm Stay with Airbnb) and began to take personal business enquiries during her working hours. 

According to the phone records supplied during the proceeding, it was established that the Applicant sent 1260 text messages for the period 1 July – 29 July 2021 during her working hours, all of which did not relate to the Applicant’s employment with the Respondent. 

On 12 July 2021, the applicant was issued a verbal warning regarding, amongst other things, excessive calls relating to her personal business and the Applicant was directed to switch off her phone while at the office. 

The Applicant followed the directives for one week and commenced using her phone thereafter for personal business matters.  

In addition to sending text messages regarding her personal business during business hours, the Applicant also sent correspondence from her work email on 27 July 2021 regarding her family law property settlement with her former husband, which was hostile and abusive. The Applicant had forwarded an email from her personal email account to her work email account to respond.  

The Applicant also engaged in other conduct such as online shopping and corresponding with her accountant on personal tax matters during work hours using her work laptop.  

As such, on 4 August 2021, the Applicant’s employment was terminated with notice paid in lieu.  

The Applicant applied for an unfair dismissal remedy under section 394 of the Fair Work Act (the Act).  

LAW 

Section 385 of the Act sets out the circumstances when a dismissal is unfair.  

A person has been unfairly dismissed if: 

(a) the person has been dismissed; and 

(b) the dismissal was harsh, unjust or unreasonable; and 

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and 

(d) the dismissal was not a case of genuine redundancy

Pursuant to s 387 of the Act, the criteria for considering dismissal as harsh, unjust or unreasonable includes:  

  • whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and 
  • whether the person was notified of that reason; and 
  • whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and 
  • any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and 
  • if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and 
  • the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 
  • the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and 
  • any other matters that the FWC considers relevant. 

DECISION  

The Commissioner held that the decision to dismiss the Applicant was not unfair.  

While the Commissioner considered that some factors for consideration may weigh in favour of a finding that the dismissal was harsh (such as no written warning and no opportunity to respond), these factors must be balanced against the seriousness of the reasons for why the Applicant was terminated.  

Valid reason for termination 

The critical issue in favour of the finding for the employer was the number of texts the Applicant sent during work hours.  

The number of texts the Applicant sent during her working hours was described by the Commissioner as being an ‘extraordinary and unacceptable’ amount, and the Commissioner found it ‘impossible to believe that [the Applicant] did any work at all’ on 14 June 2021, when she sent 73 text messages from 8.17am to 12.48pm. Further, the Commissioner formed a view that the Applicant did “practically no work at all” on other days she was meant to be working for the Respondent. 

In making her decision, the Commissioner referred to the balancing act for employees and employers regarding personal matters during work hours (noting that the Applicant should have understood the requirements of full-time working responsibilities), however the Commissioner was ultimately satisfied that the Applicant did not devote her full time and attention to her duties as required. 

Therefore, it was held that the Applicant “failing to perform her work to the reasonable standards required by [the Respondent]” was a valid reason for termination.  

Additionally, the Commissioner found that, after 12 July 2021 the Applicant was deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work, and the aggressive email regarding her private family law matter carried a risk of damaging the reputation of the Respondent.  

Verbal Warnings 

In assessing whether the dismissal was harsh, unjust or unreasonable, the Commissioner considered whether the verbal warning to the Applicant on 12 July 2021 was sufficient. The test for a warning is as follows: 
 

  • The warning must identify the relevant aspect of the employee’s performance which is of concern to the employer; and 
  • The warning must make it clear that the employee’s employment is at risk unless the performance issue identified is addressed 

The Commissioner stated that ”there is no doubt” that the Respondent should have issued a written warning in relation to the Applicant’s conduct as “it is always preferable to have clear, undisputed evidence”, however the direction given verbally on 12 July 2021 was lawful and reasonable, and a firmly issued direction. Therefore, it was accepted that the verbal directive on 12 July 2021 was a sufficient warning to the Applicant regarding the risk to her employment if she continued with her conduct.  

Lessons  

This case study provides important lessons for both employees and employers: 

Employees  

Employees are expected to dedicate their full time and attention to their work responsibilities during working hours. If you need to attend to personal matters during work hours, we recommend communicating promptly with your employer about your needs. Additionally, it is crucial that employees comply with all lawful and reasonable directions of their employer.  

Employers  

It is important that employers follow appropriate processes and procedures when dismissing employees for performance or conduct matters. It will not always be the case that procedural deficiencies, as they existed in this case, will be overlooked by the Commission.  

This case also highlights the importance of having a workplace policy regarding the use of personal electronic devices during work hours, including using work property for personal matters.  

Have you been unfairly dismissed? Need to dismiss an employee? We can help.  
Our experienced employment law team are here to help. Give us a call to discuss your situation & book in your appointment with an expert employment lawyer today.  

Helpful Links 

This article was written by Prini Avia 

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