Mobile phones have become somewhat of a permanent extension of the individual in this day and age. It is rare to come across someone who does not have their mobile phone in their hand, pocket, bag or otherwise within reaching distance at all times.
It is concerning, however, when employees seem unable to detach themselves from their mobile phones during work hours. In white-collar industries, employers often face the problem of employees spending too much time at work taking personal calls, sending text messages or checking apps which results in reduced engagement and productivity. In safety-critical workplaces, the use of mobile phones poses an even greater problem – a risk to the health and safety of workers.
In order to combat these concerns, most employers will have strong policies in place that set out the reasonable and unreasonable use of mobile phones in the workplace. In a previous blog "Employee phone home: Truck driver not unfairly dismissed for failing to adhere to mobile phone policy" we discussed the importance of having these policies in place particularly for safety-critical workplaces.
Two recent cases in the Fair Work Commission (FWC) have highlighted the importance of not only having these strong policies in place but also implementing them and making sure that employees are aware of the consequences of non-compliance.
In Hansen v Ceres Natural Goods Pty Ltd T/A Pure Harvest [2018] FWC 1052, a forklift operator was dismissed for breaching his employer’s zero-tolerance mobile phone policy twice in two hours.
The policy clearly stated that the use of mobile phones whilst performing operational tasks (whether they were on the production line or using any form of machinery or equipment) was prohibited.
The employee received the first warning after his phone fell out of his pocket and onto the operator seat of the forklift. Two hours later, the employee was seen with his phone in his hand again whilst on the forklift. The employee argued that the forklift was not operational at the time and that he had merely pressed the power button to check if his wife was contacting him about their son who was unwell.
According to the employer, these incidents, together with the fact that the employee was on a third and final warning, warranted his dismissal.
The FWC agreed with the employer and upheld the dismissal. The FWC stated that, had it not been for the warning he received two hours earlier, the FWC might have concluded that the dismissal was harsh. However, the employer had a clear policy on the use of mobile phones and the employee made a choice – knowing he was on a final warning – to take his phone out of his pocket. It confirmed that the employer was entitled to take a stand and say enough was enough.
In contrast, the FWC in Condello v Fresh Cheese Co (Aust) Pty Ltd [2018] FWC 2025, found that an employee who had been summarily dismissed for using his mobile phone whilst in a freezer room was unfairly dismissed.
In this decision, the employee was summarily dismissed after 16 years of almost unblemished service after he was seen taking a call in a freezer room (that was unrefrigerated and stored empty boxes) from his wife who was caring for his mother-in-law who had dementia. He claimed that his dismissal was unfair because:
The employer claimed that the employee’s conduct was in breach of dairy food safety regulations as well as the employee handbook. The employer also sought to argue that its employees had participated in a toolbox meeting about the use of mobile phones only one week before the incident, even though it could not produce any records arising out of that toolbox meeting.
The FWC rejected the employer’s arguments and found that the employer had not consistently applied the rules about mobile phone usage previously in a number of areas in the workplace. It also found that the implementation of the policy about the use of mobile phones was poorly organised and the employees had been provided with insufficient detail.
The FWC stated that:
“A company cannot simply produce policies and procedures and expect to rely on them to defend a claim if there is no evidence to support that its employees have been made aware of those documents, trained in the content of the documents, and provided with access to those documents. The 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.”
Lessons for employers:
The drafting and implementation of a mobile phone policy will depend largely on the particular workplace. For example, if your employees are in regular contact with clients or customers using their mobiles or must have regular access to their emails, it may be appropriate to have a policy that allows access to mobile phones in the workplace but draws a distinction between business use and “reasonable personal use” during work hours. Of course, in safety-critical workplaces, a “zero-tolerance” policy will likely be more appropriate.
Once the contents of the policy have been settled, it is not enough for employers to have the policy in place if it is not implemented and employees are not made aware of it. The FWC has shown that it is unlikely to allow employers to rely on a breach of a policy as a reason for dismissal if they have not adequately advised employees of its existence and trained them in its contents.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
