Manager dismissed for excessive texting during work hours

Manager dismissed for excessive texting during work hours

The dismissal of a manager primarily for performing non-work-related activities during work time has been upheld by the Fair Work Commission.

The employee commenced employment with Barlow’s Earthmoving Pty Ltd (Barlows) as a Health, Safety, Environment and Training Manager (HSEQ Manager) on 1 December 2020 and was paid $48 per hour. Her primary responsibilities included reviewing all workplace health and safety and employment-related documentation to ensure the company was fully compliant with relevant legislation.

The employee was primarily based at the company’s Coorooman office, as she lived only 15kms from the office. Her employer, Mrs Barlow, was based at the company’s Shoalwater Bay office, being 150km away.

Within two months of her employment, the HSEQ Manager began renting out a cottage on her property to Airbnb customers. A digital platform called her and asked if she would allow caravaners to park on her property nightly en route to their next destination. She agreed and commenced a further private business called Shiralee Clydesdale & Farm Stay.

Shortly thereafter, Barlow management became concerned that the HSEQ Manager was taking excessive phone calls relating to her private businesses instead of performing active and meaningful duties.

A file note dated 12 July 2021 was prepared, and a discussion was held with the HSEQ Manager. The concerns raised included excessive personal phone calls, loading a booking application for her Homestay onto a work computer, emailing private legal matters to her solicitor using her work email address, failing to return a company supplied vehicle while on leave and filling up jerry cans with company diesel fuel.

She was also directed to put away and turn off her personal mobile phone while at work.

Barlows believed that the HSEQ Manager’s behaviour improved for a period of one week but then deteriorated.

She was summarily dismissed on 4 August 2021.

In hearings before Commissioner Jennifer Hunt, the HSEQ Manager denied making excessive personal phone calls, claimed to have regularly worked past her normal finishing times, and claimed that the previous meeting held with management did not constitute a first and final warning.

According to phone records supplied, the HSEQ Manager sent 80 texts messages during work hours on 1 July 2021 and 59 text messages during work hours on 2 July 2021. Further, the phone records overall demonstrated that during the period 1 June 2021 – 29 July 2021, she had sent 1260 text messages on personal or Farm Stay matters during working hours.

As the Deputy President noted,

“It appears to me that Ms (M) did practically no work at all on 16 June 2021, having sent 76 text messages between 7:38 am and 2:45 pm. The days that followed demonstrated that Ms (M) was, in my view, present at work, but largely occupied with her Farm Stay business…Ms (M) was not only failing to perform her work to the reasonable standards required by Mrs Barlow, after 12 July 2021, she was deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work”.

It is interesting to note the Commissioner’s comments about Barlows not supplying the HSEQ Manager with a written warning. As she noted,

“There is no doubt that the Respondent should have issued to Ms (M) a written warning in relation to her conduct. It is always preferable to have clear, undisputable evidence between parties and for Ms (M) to know exactly the matters she needed to address in order to prevent a dismissal if she repeated her conduct. I accept, however, that a firm oral warning was issued to Ms (M) by Mrs Barlow. I accept that Mrs Barlow made it known to Ms (M) during this discussion that her employment was at risk if she did not comply with the directive issued to her”.

The application was dismissed.

LM v Clear Day Pty Ltd (U2021/7558) 22 February 2022

For queries about misconduct, reasonable personal use, discipline investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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