1,260 personal texts at work, and the dismissal was fair

What happened

Lynda Murphy started work on 1 December 2020 as the health, safety, environment and training manager for Clear Day Pty Ltd, a company associated with an earthmoving business. She worked full time and was paid $48 an hour.

Within two months of starting, she began renting out a cottage on her property through Airbnb. A camping platform then asked whether caravaners could stay overnight on her land, and she started a farm stay business. It quickly became popular, and she brought in a caretaker to help.

Much of it was run from her desk. Ms Murphy's phone records, produced later in the case, showed 1,260 text messages sent on personal and farm stay matters during working hours between 1 June and 29 July 2021. On one morning in June she sent 73 texts in about four and a half hours.

The warning

On 12 July 2021 the director spoke to Ms Murphy. A file note recorded that she gave a "verbal first and final warning" and directed that Ms Murphy's mobile phone be turned off while she was in the office. Ms Murphy emailed the director the same morning, acknowledging that before her leave her phone had been "feral with calls".

She was said to have kept to the direction for about a week. The phone records told a different story: 35 texts on 14 July and 38 on 15 July, rising to 57 on 26 July. In the same period she used her work email account to order aggregate for the farm, did an online grocery order for the farm stay's open day, and sent a hostile email to her own solicitors about a personal legal matter from her work account.

On 4 August 2021 a co-worker handed her a termination letter. Her employment ended that day, with one week's pay in lieu of notice. She was not asked for her side of the story before the decision was made.

The claim

Ms Murphy, who represented herself, applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Her main complaint was about process: she said the 12 July conversation was only a "talk", that she had never received a written warning, and that she was dismissed without any chance to respond. The company employed about 20 people, so it was not a small business.

Why: the legal test

Under s 385, a dismissal is unfair if it was "harsh, unjust or unreasonable". To decide that, s 387 requires the Commission to weigh a list of factors. The first is whether there was a valid reason related to the employee's conduct or capacity, meaning a reason that is sound, defensible or well founded.

The others are about fairness of process: whether the employee was told the reason, whether they were given a chance to respond, whether a support person was unreasonably refused, and, where the reason is unsatisfactory performance, whether they were warned first. A warning counts only if it identifies the problem and makes clear that the job is at risk if it continues. The Commission also considers the employer's size, whether it had human resources expertise, and anything else relevant. No single factor decides the case; they are balanced together.

What the Commission decided

Commissioner Hunt found "numerous valid reasons" for the dismissal: the extraordinary volume of texting during work hours, the failure to follow a lawful and reasonable direction to keep her phone off, the failure to give her full time and attention to her job, and the hostile email sent from her work account. Ms Murphy herself conceded there was a valid reason. The Commissioner rejected her evidence that she had put her phone away after the warning, saying the data showed it was not true.

On the warning, the Commissioner did not accept that the 12 July meeting was just a talk. The director had made it clear that the phone had to be off if Ms Murphy wanted to keep working there. The company should have put the warning in writing, but a firm oral warning had been given and Ms Murphy understood it.

There was a real flaw: Ms Murphy was not given an opportunity to respond before she was dismissed. That, with the lack of a written warning, could weigh towards finding the dismissal harsh. But both were outweighed by the seriousness of the conduct. "The telephone data does not lie," the Commissioner wrote, and since Ms Murphy could not explain the texts at the hearing, she was unlikely to have explained them to her employer either. Her short service, about eight months, and the employer's small size were also considered. The dismissal was found not to be harsh, unjust or unreasonable, and the claim failed.

What this means for you

If you run a side business or have personal matters on the go, your employer is entitled to expect your full attention during paid hours. An employer may allow some personal phone use, but a clear direction to stop can be a lawful and reasonable one, and ignoring it can be a valid reason for dismissal.

A missing step in the process, such as no chance to respond or no written warning, does not automatically make a dismissal unfair. The Commission weighs it against how serious the conduct was. If you have been dismissed, it is worth getting advice early. An unfair dismissal application must be lodged within 21 days of the dismissal taking effect.