The Fair Work Commission (the “Commission”) has made a ruling an employee of 16 years was unfairly dismissed for using his mobile phone during his shift.
The long-term employee commenced work at 6am on 16 August 2017. At around 8 or 9 am, his supervisor told him there was not enough work in the area and asked him to go and make boxes outside. While the employee was making boxes he noticed his wife, who at the time was caring for her mother with dementia, was calling his mobile phone. The employee was concerned so walked into a freezer room used as a storage area for empty boxes and called his wife. The conversation lasted for around three minutes. After the call a colleague walked in and questioned the employee.
The employee was aware mobile phones are not permitted in the work production area. However, the employee did not consider the storage room to be part of that area. The next morning, approximately two hours after the employee’s shift had started he was called into a meeting with the Human Resources (HR) Manager and the Operations Manager. The employee was summarily dismissed. The employer considered the use of the mobile phone was serious misconduct and a serious breach of company policy and guidelines.
The employer submitted the workplace policies and employee handbook, confirming mobile phones must not be used in production areas. The employer also submitted all employees were advised of this at induction and reminded in a tool box meeting on 9 August 2017, approximately a week before the employee was dismissed.
The employee submitted the HR Manager stated he wanted to make an example out of him. The employee denied attending a tool box meeting on the mobile phones policy on 9 August 2017 and submitted he did not receive an employee handbook when he commenced employment in 2001. The employee knew it was against the rules to use his mobile phone in a ‘production area’. The employee admitted using his phone but maintained where he took the call was not a ‘production area’. The employee also argued he was not aware he could be dismissed without notice for using his phone.
The 2016 version of the employer’s code of practice defined ‘production area’. The definition included storage areas. However, the HR Manager could not confirm the employee had been provided with a copy of this version. There were no records to evidence the employee had received or reviewed the document. Similarly, there was no record of attendance evidencing the employee attended the tool box meeting.
The employer did not have a disciplinary procedure policy. The HR Manager admitted he discussed the policy breach with the company directors and advised he was going to terminate the employee’s employment. The HR Manager subsequently organised a disciplinary process which comprised the Operations Manager giving the employee 5 to 10 minutes notice of a meeting with the HR Manager. The employee was not advised of the purpose of the meeting or that he may have someone present with him. It was during this meeting the employee’s employment was terminated.
The Operations Manager gave evidence that other employees had used their phones in the production areas. Those employees were not disciplined. Instead they were told to simply put their phones in the lockers. The Operations Manager also admitted he himself had regularly used his phone to relay information to supervisors.
The Commission was of the view that the employer had not consistently applied their mobile phone usage policy. The Operations Manager’s evidence in relation to the use of phones indicated a lenient approach had previously been taken. There was no evidence the employee had ever been provided with an up to date version of the handbook.
The Commission was not satisfied there was a “no tolerance approach” to mobile phone use. Even if the employee was present at the tool box meeting a week earlier, the Commission was not satisfied there would be a valid reason to terminate the employee’s employment.
The Commission found the dismissal was harsh as there was not a valid reason for the dismissal. The employee was not given an opportunity to respond as the HR Manager made his intention clear prior to the disciplinary process. The employee was not afforded a reasonable opportunity to request a support person. In a scathing review, the Commission noted the HR Manager had significant practical and academic experience and yet failed to follow a proper process which resulted in a long-standing employee being unfairly dismissed.
The Commission highlighted an important lesson for all employers. An employer cannot simply produce policies and procedures and expect to rely on them to defend a claim. They must be able to produce evidence to demonstrate the employees were made aware of those documents, received training, and had access to the documents. In addition, an employer must be able to demonstrate the policies are followed fairly and consistently. Notably, the Commission confirmed “[t]he onus is on the employer to adequately operationalise their policies and procedures if they seek to rely on them to defend an unfair dismissal application”
Good HR practices help to ensure your business is legally compliant, they attract high-quality staff, increase output and efficiency and creates a strong and positive workplace culture. Attend our New to Human Resources training to increase your knowledge of effective policies, performance management techniques and payroll and record keeping requirements.
Written by Laura Quinlan, Workplace Relations Advice Line Advisor
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