A growing side business
A health and safety manager began full-time employment in December 2020. In February 2021, the manager listed her farm cottage on Airbnb, intending to rent it out. However, she was contacted by another company proposing for her to allow caravaners to park on her property nightly.
Her property began to be popular amongst caravaners so that she hired a caretaker for her farm and guests. She then hired a manager for her business. The H&S manager also maintained a vending machine as another side business. Her vending machine was installed in the company’s workshop.
Verbal warning given regarding conduct
On 12 July 2021, the company director called the H&S manager’s attention to the excessive phone calls she was making that was related to her business that took her attention away from her work duties. She accepted bookings for her side business and even downloaded the booking app on the company’s computers. This behaviour was a violation of clause 3.3 of her employment contract and was unacceptable. She also used the company vehicle when she went on holiday and filled up her personal jerry cans with the company’s client’s diesel and took the jerry cans home with her.
The company director then gave her a first and final verbal warning to turn off her mobile phone whilst at the office. to stop filling up jerry cans with the client’s fuel and taking them home, and to stop using the company vehicle for her business.
H&S Manager followed directive for a week
The H&S manager sent an email to the company director explaining that she had her phone on because she had not been issued a company phone and so, she used her own phone for office work. She was happy to direct all calls made to her mobile to the office phone and only answer phone calls on her mobile that she recognised as calls for the company. For about a week, the H&S manager seemingly followed the directive of the company director. A week after, the H&S manager was back to her usual conduct of sending an excessive amount of text messages and making phone calls related to her business whilst at work.
Summarily dismissed for serious misconduct
On 4 August 2021, the company director terminated the H&S manager effective immediately. The termination letter mentioned additional grounds such as sending personal emails using the company email signature and logo, doing online shopping for her business during work hours, and refusing to abide by the directive and instructions previously given to her with the warning. She was given one week’s pay in lieu of notice. The termination letter was delivered by hand to the manager’s home address by a co-worker and the manager was not given an opportunity to respond to the termination letter.
Assertions in the manager’s application for unfair dismissal
Written work contract did not align with verbal work contract. The H&S manager was not provided with a written contract but was hired on a verbal contract only. She was told she would have to work only 38 hours a week, but she worked 10 hours a day, four days a week at one worksite and one day at another worksite at a flat rate of $48 per hour. She had been provided a written work contract some 7 months after she had been working and the written contract did not reflect the verbal employment contract she had previously entered.
Provision for a work vehicle and laptop. She had been assured that she would be provided with a vehicle for her personal and work use as she herself did not own a vehicle. She was provided with an old utility vehicle that according to the maintenance manager, was a fuel guzzler. For this reason, the H&S manager stored two jerry cans in the back of the ute which she filled with diesel when she went to the worksite in Shoal Water Bay. She had also been promised a work laptop, but she used the company director’s laptop instead. When the company closed for Christmas break, she would be paid additional holidays.
Side business not hidden from the company. The property rental business was automated, and the H&S manager felt it would have no impact on her employment. She had not hidden the existence of her side business to the company, and it was surprising even to her that the rental property became popular. She often worked late at the company to make up for the time she had lost due to her personal dealings, but she acknowledged that her growing side business was interrupting her work.
No warning on 12 July 2021. The H&S manager admitted that there was one crazy Friday when she received so many phone calls but she and her director spoke. She assured the company director that it would not happen again. When she was directed not to bring jerry cans in the back of her ute, she felt that she was being accused of stealing diesel but she owned no vehicle that used diesel. There was no warning given to her, they just simply spoke and the company director expressed thoughts as to how they will work moving forward.
Use of her personal phone. The H&S manager used her phone to email timesheets to the company director and text deliveries to the company drivers. This was because the printers and scanners in the officer were archaic. She had been allowed to use her phone for personal calls and messages in emergencies.
Response after receiving the termination letter. The H&S manager emailed the company director asking for clarification of the reasons for her dismissal as stated in the termination letter. The company director clarified her points to which the H&S Manager said that she disagreed about using her personal phone for her side business when she also used it for company work because she had not been provided a work phone. She challenged the company’s lack of evidence to support her termination, and characterised her termination as a sham and a pretence as the company director wanted to replace her with her daughter and her daughter-in-law.
Findings of the Commission
The Commission was satisfied that valid reasons exist for the dismissal. The manager was informed of the reasons of her dismissal.
Verbal warning given was sufficient. The Commission that a verbal warning had been given about the manager’s inappropriate conduct in the workplace and by giving the warning, the company director laid down the law of what conduct she considered appropriate.
Accurate account of personal business phone calls and text messages. The account of the number of text messages and calls made and received by the manager was accurate. First, the account was not made by the company director but by a co-worker who had worked in the same office and had the opportunity to observe the manager. Second, the account showed that the manager did not heed the warning and the instructions of the company director about turning off her phone and not conducting her personal business during work hours.
Inappropriate use of office email account, signature and logo. The manager had opened her work email account on the company director’s laptop and so her emails were open for the company director to read. While she received a letter from her solicitor on her personal email, she used her work email to send her solicitor an abusive and hostile email. In doing so, the manager attempted to inflate her importance by using the company email account, email signature and logo that reflected her employment position as “manager.”
Breach of obligations to her employer. Even without a written work contract that stated specifically that she was not to conduct her personal side business during work hours, the manager was of an age and position to have known that she was expected and obligated to dedicate her time and attention to her work duties during work hours. If the manager had lost respect for the company director and hated her job, she should have resigned instead of drawing pay at $48 per hour when she was not willing to work for the company.
Sufficient warning of unsatisfactory performance prior to dismissal. The company director did not merely exhort the manager to improve her performance. The company director identified the relevant aspect of her poor performance that was of concern to her. The company director made it clear to the manager that her employment was at risk unless the issues identified by her employer was addressed. The manager testified that the company director’s tone was firm when they spoke, and she initially alleged that she complied with the directive but only in her application did she question whether the directive given to her by her employer constituted proper warning. This showed that she understood the warning and directive given to her. The small size of the company that employed only 20 workers impacted the procedures of the termination. The company had no dedicated human resource manager to advise them on the proper procedure.
Minor procedural unfairness. The manager was not given an opportunity to respond to the reasons forming the basis of her dismissal. And this would have normally weighed in favour of the harshness of the dismissal. However, the seriousness of the misconduct overrode any harshness of the dismissal. The manager had worked for a total of 8 months for the employer and her work performance was unsatisfactory from the time her period of probation ended. The manager deliberately failed and refused to follow a lawful and reasonable directive from her employer.
The application was dismissed.
Source:
Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373 (22 February 2022)
https://asset.fwc.gov.au/documents/decisionssigned/html/2022fwc373.htm
