Australian Employers Can Dismiss Workers for Personal Texting

​A workplace tribunal in Australia recently confirmed that employers can fire workers for excessive personal texting during work.

An earth-moving company in Australia fired a manager in August 2021 due to her spending too much time texting during work hours about personal matters, after she was warned about it. The employee filed a complaint citing unfair dismissal under the Fair Work Act. 

On Feb. 22, Australia's Fair Work Commission dismissed the complaint, finding that the employer's action was not harsh, unjust or unreasonable.

The commission considered several factors in deciding whether an employment termination was permissible:

• Whether there was a valid reason for the termination related to the employee's capacity or conduct.
• Whether the employee was notified about that reason.
• Whether the employee had an opportunity to respond.

Most employers give workers some leeway to address personal concerns in texts, e-mails or phone calls during work hours, so long as it doesn't take up too much time.

"HR professionals should take a pragmatic approach in light of the commission's decision and employ a holistic view in the development of workplace policies that acknowledge that there are exceptions and certain circumstances where personal matters may require an employee's attention during work time," said Antonia Tahhan, an attorney with Chamberlains law firm, based in Sydney. "However, personal matters should not take continuous priority over the commitments of their job and should not be a regular occurrence."

The commission's decision did not make a distinction between hourly and salaried employees in the application of the Fair Work Act.

What Counts as Too Much Texting?

It may be difficult for Australian employers to quantify what excessive personal texting means, as it is not defined clearly by law.

An excessive amount of texting "could be interpreted as receiving and sending so many messages that it prevents an employee from undertaking the ordinary duties and responsibilities of their role," said Fay Calderone, an attorney with Hall & Wilcox, based in Sydney. "HR professionals and employers could circumvent this by including a clause in employment contracts that provides a definition and requirements for employees to not use their phones during work for personal reasons unless in an extenuating circumstance."

In the recent case, the employer found that the employee sent 73 text messages between 8:17 a.m. and 12:48 p.m. on a workday, which included communications about renting her personal property to Airbnb customers. The employee didn't perform her work to the reasonable standards required by the employer and disobeyed the employer's instruction to turn her phone off at work.

"Misusing company resources for personal purposes, performing excessive amounts of texting and other personal tasks during work hours, and failing to follow reasonable directions of an employer are sufficient grounds for dismissal," Calderone said.

If personal communications are getting in the way of work, the employer should provide warnings in writing and give employees adequate time to change their behavior.

"Commencing disciplinary proceedings from the get-go may not be the best solution for employee retention. Instead, HR professionals should speak to both employees and employers to co-create a solution that facilitates transparency, support and trust," Calderone said.

"HR professionals should also consider reviewing their policies, regulations and employment contracts to ensure they sufficiently cover conflicts of interests relating to dual employment, provisions requiring employees to dedicate their time and attention to their duties during work hours, and discouraging personal phone and electronic device use during business hours," she added.

Employment contracts also can require all employees to disclose any secondary employment that may impact their work.

Effective communication is one of the best ways to avoid legal battles over this issue.

"HR professionals and employers need to ensure their expectations surrounding the devotion of work time to work-related matters are clear from the outset, so that employees are aware that tending to personal matters, such as scanning social media or operating a side-hustle business, will be considered unacceptable conduct," Tahhan said. "Clear policies that communicate what is acceptable and what is not are paramount to creating a positive and transparent workplace culture."

Gauge Employee Satisfaction

In recent years, employees have increasingly relied on texts and e-mails to conduct their work. Often that means personal messages are mixed in with work communications throughout the day.

"Ensuring that employers are not also monitoring every move their employees make will contribute to overall employee satisfaction," Calderone noted. "If an employee is checking their phone every now and then, but still delivering results, it is likely that phone usage will remain at a minimum. Being too heavy-handed and prescriptive about how employees use their time may have a negative effect on high-performing employees who are otherwise balancing autonomy and personal device use with the more than satisfactory performance of their duties."

Employers should weigh the overall impact on recruiting and retention, especially if they are short-staffed.

"Employee satisfaction and overall well-being has been at an all-time low, demonstrated by the mass exodus of employees characterized as the Great Resignation." Calderone said. "Studies have shown that employees are more likely to be distracted by their phones and personal messages when they are not as satisfied. Conversely, when workers feel satisfied at work, it is likely they will be less likely to check their phones."

Leah Shepherd is a freelance writer in Columbia, Md.