This employee’s excessive texting at work crossed the line, the FWC found. To what extent should employees be allowed to tend to personal matters at work?

How many personal text messsages would amount to an excessive amount to send during the work day? Firing off five or 10 per day? What if it went higher than that? 

The Fair Work Commission (FWC) recently sided with an employer’s decision to dismiss an employee who was regularly sending more than 50 personal texts per day.

The employee’s phone use increased substantially after she started renting her property to Airbnb customers as a side business.

When this was noticed by the company director, the employee was told to put her phone away while at work. 

Two days after the warning, the employee sent 73 messages within four and a half hours. One month later, she was dismissed for continuing to tend to her Airbnb bookings while at work.

Although the employee said she wasn’t adequately warned that her job could be at risk, Commissioner Jennifer Hunt cast doubt on this assertion.

“I accept that [the employee] was verbally warned of her inappropriate conduct in the workplace… with [the company director] effectively laying down the law as to what she considered to be acceptable behaviour,” said Hunt, although she did note that a written warning should have been issued.

The employee told the FWC that she introduced steps to ensure her side business was looked after while she was at her day job, by engaging others to respond to the flurry of inquiries. She also said she didn’t take a lunch break and put in extra hours to account for the time spent on her side business.

“Employers need to emphasise that it’s not acceptable for people to be sitting on social media, sending text messages or running their side hustle while they’re at work. It cannot be done while they are being paid to do a job.” – Kathryn MacMillan CAHRI, Founder and Managing Director of CIRCLE Recruitment & HR

The employer also said she had sent personal emails with the company signature, made grocery orders during work hours and took a company vehicle with her on holidays.

Upon reviewing the number of messages the employee had sent – which Commissioner Hunt described as “extraordinary and unacceptable” – the FWC determined the employer’s decision to dismiss the employee was fair. 

Commissioner Hunt said the employee had engaged in “ferocious texting” and was “deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work”.

Although it’s unlikely that many employees would use work time to tend to personal matters to such an extreme, this issue could be cropping up in a milder form in your organisation.

Most employers would assume people would exercise common sense by keeping phone use to a minimum, but Kathryn MacMillan CAHRI, Founder and Managing Director of CIRCLE Recruitment and HR, says as a general rule, it’s best to establish your expectations from the outset.

“Employers need to emphasise that it’s not acceptable for people to be sitting on Facebook, sending text messages or running their side hustle while they’re at work. It cannot be done while they are being paid to do a job, unless in specific instances where there’s an arrangement established between the manager and their employee,” says MacMillan.

“And of course there might be a personal issue that needs to be prioritised from time to time.”

In recent years, our personal and professional lives have become increasingly blurred. As employees are now often encouraged to bring their full selves to work, does this mean they should be allowed to bring their personal communications too?

“It’s definitely a greater problem now than it was before. It’s down to employers to communicate really clear policies,” says MacMillan.

“You need a clear culture around what’s acceptable, and a fair and equitable disciplinary process that’s communicated clearly to your team.”

Grey lines

It’s all well and good to say employees can’t spend a large chunk of their days tending to personal matters, but exceptions may be permitted in certain circumstances.

If there’s a high-performing employee who runs a side hustle, could they be given the freedom to pursue their business at work so long as they make up the hours later?

“If you have a great employee who is genuinely putting in extra hours, and you are compliant with your industrial instrument, then it’s 100 per cent possible.”

With 70 per cent of young workers wanting to run a side hustle this year, according to Microsoft’s recent research, helping your people to balance both work and their personal business might work in your favour – and it could prove key to talent retention.

“If an employee is running a side business, and they’re allowed to make a few calls a day without cutting their work hours, it can build trust,” says MacMillan.

“It comes down to the psychological contract between an employee and their manager.”

But if an arrangement like this is established, it’s important to be open and transparent with your team.

“You might say that an employee is staying back because they’ve got X, Y and Z to attend to… It helps to ensure that others feel like they’re not missing out on something that another team member is getting.”

When an employee takes it too far

You might need to discipline an employee for poor conduct, but empathy should still be your first port of call.

“This is an employer’s number one tool,” says MacMillan. “Say that you understand it’s not easy to balance work and your personal life or side business, but explain why it’s not a situation that can continue.”

Rather than laying down the law and limiting employee’s ability to conduct personal matters at work, co-create a solution together, advises MacMillan.

“Don’t just say, ‘You’re not allowed to do that.’ Ask if there’s a way they could answer all of their side business calls during their lunch hour, for example.”

If the employees’ behaviour doesn’t shift after this initial meeting, it might be time to hold a more formal one.

“Say you’ve noticed that their behaviour has continued. You always need to ask an employee for the reasons they’re on their phone so much…  as there may be a family emergency, which may impact your decision-making. Then reiterate again, if it isn’t appropriate, that it needs to stop.

“Then look at formal warning letters or disciplinary action, which could include termination.”

If you’ve implemented preventative steps, such as rolling out robust policies, setting clear boundaries and communicating clearly with your team, then the odds are stacked in your favour, and you’ll likely minimise the risk of excessive personal texting leading to an unfair dismissal claim.

Have you had employees tend to personal matters while they’re at work?
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