One Minute Summary

• Employers need to take a comprehensive approach when implementing important policies and procedures, providing clear reasoning and what could occur if the policy is breached. This must also take into account potential language barriers.
• What constitutes a ‘genuine emergency’ is highly questionable and potentially subjective. Some employees will simply state they need to be contactable in an emergency on the pure chance something could happen at school etc. This would be quite different where an employee’s partner was overdue and could go into labour at any time.
• Where mobile phones are banned there may be a need to provide alternative options for contacting employees in emergency situations.
• This case provides interesting commentary on implementing policies and procedures and issuing reasonable and lawful directions.

Personal calls, social media, shopping, games, youtube, message apps...

Employers often complain about employees wasting time on personal calls or scrolling on their mobile phones at work. This case examines what employers need to consider in dealing with such matters and how the Fair Work Commission may approach this issue in any unfair dismissal proceedings.

While this case related to concerns about contamination in a food production environment the Commissioner’s analysis takes a useful broader perspective.

The Applicant, Mr Keifa, was terminated from his employment after several breaches of the employer’s mobile phone policy.

The employer (Lifestyle Bakery) had a policy of not allowing production employees to carry or use their mobile phone in the production area. Two of the employer’s major clients had strict hygiene policies which included not allowing employees to have mobile phones in the production area. They undertook regular unannounced workplace hygiene audits which included checking for phones.

Mr Keifa insisted he needed to take his mobile phone into the production area as responsibilities to his family and young children required him to be available by telephone for emergencies while he was at work. He insisted that because of this he should be exempt from the employer’s ‘no mobile phone policy’.

The new employee induction process clearly highlighted the no mobile phones policy and explained the reasoning behind it. Posters showing a production employee holding a mobile phone with the words “What’s wrong with this picture?” in several workplace languages were prominently displayed.  Employees were also reminded on a regular basis that mobile phones were not allowed due to hygiene reasons and to ensure employees were free from distractions while working.

The reminders stated a breach of the policy may lead to disciplinary action including termination of employment.

Mr Keifa was observed on CCTV footage talking on his phone in the production area. He was spoken to and promised it would not happen again. A note was placed in his file.

Some months later he was again caught talking on his phone to his social worker cancelling an appointment. He was instructed to place his phone in his locker and not to bring it to the production area again. When he attended a meeting two days later to discuss this breach he had come directly from the production area and, when asked, admitted he had his phone with him stating he had a duty of care to his children and his family.

When the matter was brought to the attention of the CEO, he decided that after three instances of the policy being breached it was time to terminate Mr Keifa’s employment.  

Fair Work Commission Proceedings

During the unfair dismissal proceedings Commissioner Thornton accepted the employer’s argument that the ban on mobile phones in the production area was appropriate.

The applicant, Mr Keifa, stated that the policy preventing the use of mobile phones in the production area did not accommodate family emergencies, that the rigidity of the policy was discriminatory and that the inflexible enforcement of the policy was unreasonable. As a result, the dismissal was ‘unjust and discriminatory’ and he was ‘unfairly penalised’ for attending to an urgent family situation (being the phone call to cancel a meeting with his social worker).

In her decision Commissioner Thornton accepted that Mr Keifa had significant caring responsibilities for his family; adding “I have sympathy for his personal circumstances and the impact that his caring responsibilities have on his work”. However, she also stated that it was difficult to see how the cancellation of an appointment with his social worker amounted to a family emergency.

Commissioner Thornton acknowledged the employer had undertaken a range of actions to ensure that Mr Keifa was aware of the policy requirements and the implications of a breach. However she also stated the posters did not effectively communicate the requirements of the policy by simply asking a question “What’s wrong with this picture?"

The Commissioner stated she did not accept Mr Keifa’s assertion that no reasonable accommodation or alternative solution had been provided by the employer in relation to urgent contact with him at the workplace. The employer had provided alternatives including managers and team leaders who could be a contact point for Mr Keifa. Such arrangements had taken into account that Mr Keifa needed to be available for emergencies.

The decision then provides this important paragraph:

“The Respondent is entitled to set expectations for the conduct of their employees. They are entitled to create policies and procedures and convey their requirement that such policies are followed by their employees. They are also entitled to issue reasonable and lawful directions to employees that they do or refrain from certain conduct at work.”

“Mr Keifa had been given a reasonable and lawful direction by the Respondent (the employer) on a number of occasions, had weighed competing priorities and then determined not to follow the direction.”

The Commissioner concluded that the dismissal was not harsh, unjust or unreasonable.

Commentary

While this case did relate to contamination in a food production environment there are a range of learnings in relation to dealing with personal mobile phone use as well as employer policies in general.

In this matter the employer had taken a fairly comprehensive approach to informing employees of the policy, the reasons behind it and what would occur if it was breached. The Commissioner did raise a concern about the posters reminding employees not to take their mobile phones into the production area. I have come across a number of situations where a graphic designer’s artistic prowess distorted important workplace messaging. Such posters should have a clear direct message and not leave room for misinterpretation.

Where employers are having difficulties with employees making excessive personal calls, utilising communication apps, scrolling on social media or playing games during work time, they are entitled to put in place policies around this problem. Ultimately the employee is attending work and being paid to fulfill the requirements of their employment contract.

The implementation process would involve a number of steps taking into account key points mentioned above.  

In implementing such policies employers will face the response from some employees stating they need to be contactable in an emergency. The question is - what is a genuine emergency? Some employees will state they need to be contactable on the pure chance there might be an emergency. It would be prudent to address this question with the organisation’s landline.

It does beg the question of how this issue could be addressed in working from home situations.

Please contact Hunter Employee Relations for drafting and implementation of key workplace policies and procedures.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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