The employee began working as a health and safety manager for the company in 2020. In August 2021, she lodged a claim with the FWC accusing her employer of unfairly dismissing her. The employee argued that her phone usage was not excessive and her employer failed to formally warn her that her job was at risk.

Initially, the employee was instructed by management to put her phone away after excessively texting whilst at work. She informed Clear Day management that her phone went ‘crazy’ after starting a farm stay business and that she had to employ others to assist with the overwhelming number of enquiries.

The employee regularly worked extra hours to make up for her time spent managing enquiries and frequently worked throughout her meal breaks.

However, the business observed the employee was still failing to perform her work to the reasonable standards required.

After failing to follow reasonable business directions, the employee was dismissed for managing her personal business enquiries, online shopping, damaging the reputation of the business and excessively using her phone during working hours.

Decision

Once phone records were revealed, the FWC held that the amount of text messages sent and received during this period were ‘extraordinary and unacceptable’.

The employee maintained that she did not use her phone one week after being directed to, however the phone records revealed otherwise. Just two days after receiving a warning, the employee sent over 70 messages within five hours.

Ultimately the FWC found the employee spent a significant amount of time on personal matters and failed to focus on her work responsibilities, which were the primary reasons for dismissal.

The employee’s claim that her employer failed to adequately warn her that her actions may result in dismissal was rejected by the FWC. Whilst a written warning should have been issued, management provided the employee with a firm oral warning about expectations and behaviour.

While the employer failed to allow the employee an opportunity to respond, since the employee couldn’t provide any suitable explanation to the FWC, it is unlikely that she had any other explanation prior to dismissal.

Additionally, the employee admitted that she failed to devote herself to her duties since she ‘hated’ her job and had no respect for management.

Learnings for business

This case highlights the importance of affording procedural fairness to employees despite their inappropriate misconduct in the workplace. An employee should have the right to respond and be clearly communicated to.

How the Victorian Chamber can assist

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

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