The Fair Work Commission (‘Commission’) has recently found that a “mature” employee who “deliberately” failed to follow her employer’s lawful and reasonable direction to turn her personal mobile phone off while at work, and not attend to her private business matters during work time, was not unfairly dismissed.

Background

In December 2020, the employee was employed by a company associated with the earthmoving industry, and in the position of Health, Safety, Environment & Training Manager.  The employee was responsible for the review of all workplace health, safety, and employment related documents to ensure compliance with the applicable legislation.

Shortly after commencing with the company, the employee started renting out a cottage on her property and providing overnight accommodation to caravaners.   The employee then established a ‘farm stay’ business (‘Farm Stay’), and due to the popularity of the business, she subsequently engaged workers to assist in the management of her business.

In June 2021, a colleague of the employee informed the company’s Director that the employee had “been spending a lot of her time on the phone for her private business”.  A Farm Stay Action Plan and Map was subsequently discovered on the employee’s work laptop and an accommodation booking program had also been installed on the laptop.

In a meeting held on 12 July 2021, the employee was given a verbal first and final warning in relation to her conduct of private business during working hours.  She was also given three directives:

1. turn her mobile phone off whilst in the office to avoid Farm Stay calls;
2. not fill up jerry cans with client’s fuel to take home; and
3. not use the work vehicle for her business.

The employer’s evidence was that during this meeting the employee was advised that the only solution was for the employee to turn her personal phone off during work time because the employee’s mobile number was on all the advertising material for the Farm Stay.  She was advised that it was unnecessary to have her personal phone turned on, because there was a work phone available to her in the office.

According to the employer, after receiving the final warning, the employee continued to operate her business and attend to private matters during work time (turning her mobile phone off for only one week after the meeting).

The employer subsequently terminated the employee’s employment.

Unfair Dismissal Claim

The employee filed an unfair dismissal claim challenging the reason for her termination and alleging that her employer failed to follow a proper process.

Valid Reason

The employee argued that her employer did not have a valid reason to terminate her employment, claiming that she:

• did not hide her private business from her employer;
• often worked back 15 minutes to cover time lost due to personal dealings at work;
• had put “controls in place” to manage her business;
• had complied with her employer’s direction for one week.

A review of the employee’s telephone records concluded that the employee’s evidence that she had complied with her employer’s direction for one week, “was simply not true”.  Commissioner Hunt said that the phone records indicated that the employee “continued to send an extraordinary amount of text messages during work hours, in breach of the direction given to her” and stated that the “telephone data does not lie”.

Commissioner Hunt put to the employee that she had made a pledge to her employer (to not use her personal phone), and that she had not met that pledge.  In response, the employee said, “on the face of it, yes” and then went on to explain to the Commissioner that the reason she had disobeyed her employer’s direction was because she “didn’t respect [the Director] one little bit”, she “hated working there” and that the “goal posts kept changing”.

Commissioner Hunt concluded that the employee was unable to provide a “suitable explanation” for her conduct and that the employer had the following valid reasons to dismiss the employee:

• the “extraordinary amount of text messages” sent by the employee throughout her employment, particularly since the 12 July 2021 meeting;
• the employee’s failure to follow the lawful and reasonable direction issued on 12 July 2021 not to use her personal mobile phone during work time;
• the employee’s failure to “dedicate her full time and attention to her work responsibilities; and
• the employee’s conduct in “wasting a significant amount” of her employer’s time on her personal business matters (including ordering Coles online for the Farm Stay).

In addition, Commissioner Hunt noted that the employee had “deliberately” sent a “hostile email” on 27 July 2021 to her lawyers from her work email.  Commissioner Hunt said that this conduct carried the “risk of damaging the reputation” of the employer and agreed with the employer that the employee had sent the hostile email to her lawyers from her work email account “in an attempt to inflate her importance by noting her business title”.

In telling comments from Commissioner Hunt, she stated that “a person of [the employee’s] age and her position ought to know that an employee is required to dedicate their full time and attention to their working responsibilities”.  Commissioner Hunt noted that the employee was paid a “substantial hourly rate” and 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 pressing personal matters, she should have taken appropriate steps to end her employment”.

The nature of the final warning

During the hearing, the employer acknowledged that in hindsight the first and final warning could have been in writing.  The employer explained that it had thought that the issues were “straight forward” and that given the employee was 50 years old, the employee should have realised her conduct was inappropriate.

Commissioner Hunt said there was “no doubt” that the employer should have issued the employee with a “written warning in relation to her conduct” and confirmed that it is always “preferrable” to have “clear, undisputable evidence”.

However, Commissioner Hunt was satisfied that the employee was aware of the matters that needed to be addressed in order for her to avoid termination.  Firstly, because the employee sent a “confirmation email” after the 12 July meeting that confirmed that the discussion was more than a “talk”.  Secondly, the employee’s own evidence confirmed that the Director had spoken firmly to her and told her what to do (described by the employee as the Director “barking” at her).

Key take-aways for employers

Whilst ultimately the employer was successful in this case, it is very important for employers to note that had the Commission not been satisfied that the final warning had been given to the employee (in circumstances where the warning was provided verbally), the employee may have been successful in establishing that her dismissal was unfair.  Employers should always confirm warnings relating to an employee’s conduct or performance in writing.

It is also instructive for employers that Commissioner Hunt was critical of the employer for providing employees with the “choice” to work through their lunch break and leave work early, or be paid an extra 30 minutes.  Commissioner Hunt warned the employer that the arrangement was unlawful and that the “issue” required immediate attention.

Ultimately though, this case should provide employers with some comfort that employee misconduct, such as:

• misusing company resources for personal purposes;
• performing excessive personal tasks during work hours;
• failing to follow reasonable directions of the employer (including to keep personal phones away during working hours),

are grounds for employee conduct management and may ultimately amount to a valid reason for dismissal.

Of course, establishing a valid reason for dismissal is only part of the challenge when defending an unfair dismissal, with employers also having to establish that they followed an appropriate process in terminating the employee’s employment.

Employers should strongly consider contacting Aitken Legal to discuss their circumstances before making decisions to discipline and/or terminate an employee.

Further, for any concerns on Award interpretation and specially meal break arrangements contact one of Aitken Legal’s specialised employment lawyers today for guidance and assistance.