Can an employee be terminated from employment for excessive SMS texting?
Employers regularly notice and complain when their employees are distracted through texting on their mobile phones. But, can an employee be dismissed for such an action when an employer determines the amount of texting has gone too far? Following on from the recent decision of Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373, the Fair Work Commission (FWC) has given a clear answer to this question and it is yes.
From December 2020 to August 2021, Lynda Murphy (Employee) was employed as a Health, Safety, Environment and Training Manager at the Queensland earth moving business, Clear Day Pty Ltd (Employer).
In early 2021, the employee commenced her own private business (a Farm Stay with Airbnb) whilst still employed with the employer and began to take personal business enquiries during her working hours. She even used the company vehicle for these purposes.
The time spent on her phone was excessive and in July 2021 alone it was established that the employee sent 1260 text messages.
The employer attempted to control the situation and the employee was issued a verbal warning regarding, amongst other things, excessive calls relating to her personal business and was directed to switch off her phone while at the office.
It must also be noted that during this period, the employee was involved in a personal family law matter and did send a rather abusive email from her work email, which also added to the complexity of the matter.
However, only a matter of days after the verbal warning, the employee sent 73 messages in one working day. A short time later she was dismissed for continuing to tend to her Airbnb bookings while at work.
The employee then filed an unfair dismissal claim challenging the reason for her termination and alleging that her employer failed to follow a proper process.
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.
The matter was heard by Commissioner Hunt. The FWC 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).
Key takeaway points for employers
Monitor employee usage of company property;
Monitor and make enquiries of employees who either have a second job or are operating and own their own business and ensure it does not impact on their role;
Ensure that company property is not misused for the benefit of another business; and
Ensure you promptly act when management directions are not followed.
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
