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The Fair Work Commission has upheld the sacking of an employee after phone records revealed she sent an “extraordinary and unacceptable” amount of text messages at work while overseeing her growing side business.

The full-time health, safety, environment and training manager accused earth moving company Clear Day Pty Ltd of unfairly dismissing her over her personal phone use by wrongly deeming it excessive and failing to properly warn her she might lose her job.

When confronted by Clear Day’s director and told she had to put her phone away while at work, the employee admitted her phone went “crazy” after she started a Farm Stay business on her property soon after it engaged her and it quickly became popular.

But she told Clear Day she had since put measures in place, such as engaging others to look after the business and respond to enquiries.

The employee told the tribunal she regularly put in extra hours to make up for any time lost and worked through her lunch breaks.

Clear Day dismissed her a month later for again making bookings and taking multiple calls for her Farm Stay while at work, doing her online Coles shopping during working hours, sending personal emails displaying the company signature and failing to keep her phone off.

The employee challenged Clear Day’s claims, telling the director her “phone records and texting records are proof of my communications during work hours”.

“Impossible to believe she did any work at all”

Commissioner Jennifer Hunt found after directing the employee to produce her phone records that the amount of text messages she sent, “let alone received and read, was extraordinary and unacceptable”.

While the employee maintained in a statutory declaration that she put her phone away for about a week after being instructed to, the records revealed this was “not true”, the commissioner said, finding she continued to send an excessive amount of text messages.

Noting that two days after the warning she sent 73 messages within four and a half hours, Commissioner Hunt said that having “seen how regularly she sent text messages that morning, it is impossible to believe that the employee did any work at all”.

Also sending 76 messages in seven hours a couple of days later and doing “practically no work at all”, the commissioner said it was “not uncommon for her to send 50+ text messages daily on account of her personal and Farm Stay matters”.

Commissioner Hunt said the employee was “not only failing 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”.

Verbal warning “laid down the law”

Holding that Clear Day had “numerous valid reasons” to dismiss the employee, she said these included wasting a significant amount of Clear Day’s time on her personal business matters and failing to dedicate her full time and attention to her work responsibilities.

Using her work account to send a “hostile” email to her solicitors about a family law matter constituted a further valid reason, the commissioner said, finding “in an attempt to inflate her importance by noting her business title” she risked damaging Clear Day’s reputation.

Commissioner Hunt meanwhile rejected the employees claim that the company inadequately warned her and that the discussion about her conduct and the employer’s expectations had merely been a “talk” with no proper warning that she faced potential dismissal.

While she found “no doubt” Clear Day should have given her a written warning, the commissioner found the director provided the manager a “firm oral warning”, effectively “laying down the law as to what she considered acceptable behaviour” and made it known her job was at risk.

No chance to respond

Commissioner Hunt agreed with the employee, however, that Clear Day failed to give her an opportunity to respond to the reasons for dismissal before carrying it out.

She said this would “no doubt have had some harsh impact” but it did not “not weigh so heavily” given the seriousness of the valid reason and other matters.

Given she could “not provide any suitable explanation to the Commission” when presented with data relating to the text messages she sent, Commissioner Hunt said the employee would have been “unlikely to have provided any suitable explanation” to Clear Day if it gave her an opportunity in the lead up to her dismissal.

The employee ultimately admitted during the hearing that she had not properly devoted herself to her duties, explaining she hated her job and “lost respect” for the director.

But with Clear Day paying a “substantial hourly wage of $48”, Commissioner Hunt said if she 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”.

Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373 (22 February 22)