I started working a long time ago. It wasn’t exactly the time of dinosaurs roaming the earth, but smoking was allowed inside the office (can you imagine!!) and it certainly was pre mobile phones, email and the magical world wide web. Time marches on and instead of reaching for a gasper while waiting on the client order to be confirmed via fax, we are standing up at our desks, tapping away at our computers and accessing files from ‘the cloud’ while communicating instantaneously via text message.
The speed and methods we can access for communication have obviously changed the way we do business but it has also impacted the ways in which employees also operate. Back in the day, most of us only had access to landlines and it was extremely obvious if you abused the privilege by overindulging in personal calls instead of working. While personal calls were often allowed, it could be awkward if the whole office could hear you having a chat with your mum about why you came home so late last night.
Thanks to Nokia developing the first true texting phone in the late 90s, SMS’s can be shot off without anyone else being any the wiser as to whether the subject matter relates to work or is a personal matter. Public humiliation seemingly averted as we can text our retorts to mum’s questions.
Text messaging - convenient yes, but can you direct employees when it comes to personal mobile use during work hours?
A recent case confirms that you can. In February this year a case was upheld verifying that an employee was not unfairly dismissed for sending an excessive amount of text messages during work hours. Further, she had sent an aggressive personal email from her work account but we’ll deal with that behaviour and what you can do about it on another day.
The employee in question started her own small business outside of her full-time work two months after commencing with the employer. It all started as an Airbnb opportunity enabling her to easily book out a cottage on her property. It soon grew when a different digital booking platform contacted her and asked if she would be interested in allowing caravaners to park on her property nightly while moving through to their next destination. Very quickly, what was a one cottage, mainly online, easy to manage side hustle soon become a popular business that required her to employ a caretaker and property managers. The employee still felt it was not impacting her ability to fulfil her duties to the employer.
Her employer thought otherwise and in fact, sat down with her to discuss concerns relating excessive personal text messaging during work hours. The employee was advised that she was required to have her mobile turned off during work hours and that other activities relating to running her Farm Stay business were not to continue during her agreed hours of employment. Such directions made by an employer are considered lawful and reasonable and failure to follow such requests can lead to serious consequences.
The employee in question adhered to the directions for about a week but then slipped back into previous habits and had her employment subsequently terminated.
The Commissioner hearing the unfair dismissal complaint denied the application and was also of the view that the sheer volume of text messages was “extraordinary and unacceptable” and “it is impossible to believe that [the employee] did any work at all”. A reasonable assessment given the employee sent 1260 text messages during working hours during a two month period. The Commissioner also noted that “she would have taken time from her duties to read those text messages in order for her to respond so voluminously.”
The Commissioner determined that the dismissal was fair as the employee had deliberately failed to follow a lawful and reasonable directive which answers our earlier question - can you direct employees when it comes to personal mobile use during work hours? Yes you absolutely can and a deliberate failure to comply with a lawful and reasonable directive is grounds for termination of employment.
As always though, at HR Staff n’ Stuff we prefer to be on the front foot in areas such as these as clarity regarding your expectations around employee behaviours is vital. Avoiding confusion and reducing the potential to end up at the Fair Work Commission can be achieved through policies that outline whether you will allow reasonable levels of personal communication or if you require phones to be turned off completely and only accessed within break times.
Your decision may be based on a matter of safety due to your industry or simply because it provides a clear delineation between working hours and personal time. Whatever the reason, clear, upfront communication will help you minimise issues and ensure your team understand conduct expectations.
Whether you need help in managing an employee’s failure to follow reasonable direction or you want to establish policies that support a positive and productive workplace, HR Staff n’ Stuff is here to help when you need us. Contact us now for a chat about your individual business needs.
The HR Staff n' Stuff team all contribute to our blogs. Enjoy the read!