The lines between our work and personal lives are increasingly blurred with people working under a hybrid model due to the coronavirus pandemic. Employees are using personal devices at work, and work devices for personal matters. Where is the line and when does this become problematic? Most employers understand that emergencies or personal situations will arise during work hours that an employee may be required to deal with. However issues can arise for employers when employees excessively attend to personal matters to the extent that it impacts the employee’s ability to complete their duties during work hours.
The Fair Work Commission has recently held that an employee who failed to follow her employer’s lawful and reasonable direction to turn off her personal mobile phone whilst at work, and not attend to matters concerning her private business during work hours, was not unfairly dismissed despite procedural deficiencies.
In Lynda Murphy v Clear Day Pty Ltd  FWC 373, Ms Murphy was employed full-time by Clear Day Pty Ltd as a Health, Safety, Environment & Training Manager. Outside of her employment with Clear Day, Ms Murphy ran a farm stay business on her property and was consistently using other electronic devices and her personal mobile phone during her working day to deal with the farm stay.
Clear Day spoke to Ms Murphy on a number of occasions about her excessive use of her personal phone during work hours and directed her not to attend to personal matters related to her farm stay business and to switch off her phone during work hours. These directions did not change Ms Murphy’s conduct and she continued to attend to personal matters during work hours.
Clear Day terminated Ms Murphy’s employment as a result of Ms Murphy’s behaviour above. Clear Day also relied upon its warnings to Ms Murphy regarding:
- other personal matters including her supermarket shopping during work hours and sending an email with Clear Day’s company logo to send intimidating emails to her solicitors discussing a person family law matter;
- its directions to her to utilise her work vehicle for work purposes only; and
- not filling up her own personal jerry cans with Clear Day’s fuel in circumstances where there was no business requirement for her to do so.
Fair Work Commission Decision
Commissioner Hunt considered a number of procedural fairness deficiencies in the termination process, including that Clear Day failed to give Ms Murphy a written warning about the personal texting during business hours and failed to provide an opportunity to her to respond to the reasons for the dismissal. Despite these procedural deficiencies, when considered in conjunction with the seriousness of Ms Murphy’s conduct the Commission found that the dismissal was not unfair.
Given Ms Murphy’s inability to provide a clear explanation about her phone usage data (which she presented it to the Fair Work Commission during the proceedings), Commissioner Hunt considered that if she had been asked to provide an explanation during a show cause process, she would have been unlikely to provide a suitable explanation to Clear Day and maintain her employment.
Commissioner Hunt found that Ms Murphy “not only fail[ed] to perform her work to the reasonable standards required” but was “deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work”. In addition, Commissioner Hunt noted that it was “impossible to believe that Ms Murphy did any work at all”.
As a result, the dismissal was not harsh, unjust or unreasonable given Ms Murphy’s continued failure to follow lawful and reasonable directions.
Key Take Aways
- Employers should consider reviewing their policies, procedures, and employment contracts to ensure they sufficiently cover any matters arising in respect of conflicts of interest, the use of work property for personal matters, and fair use of personal electronic devices during working hours.
- Procedural deficiencies will not always be overlooked, as the Fair Work Commission did in this matter. Employers need to follow appropriate processes and procedures when dismissing employees for performance or conduct matters.
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