Mobile phone, social media policies: dismissal valid

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Mobile phone, social media policies: dismissal valid

The Fair Work Commission has upheld the dismissal of an employee who used his mobile phone at work in breach of company policy and who refused to sign an acknowledgement that he had undertaken social media training.

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The Fair Work Commission has upheld the dismissal of an employee who used his mobile phone at work in breach of company policy and who refused to sign an acknowledgement that he had undertaken social media training. These were among a number of failings pointed to by the tribunal in rejecting his unfair dismissal application.
 
[Ed note: The commissioner's decision was supported on appeal by a Full Bench of the Fair Work Commission ]

Commissioner Gregory considered a number of policy breaches alleged by the man’s employer, Linfox, in justifying the man’s dismissal, in particular its:
    • policy requiring contact with a relevant Supervisor/Manager when absent from work
    • mobile phone use policy
    • social media policy
    • Safe Working Procedures policy.
Failure to obey lawful directions
 
The employer, Linfox, submitted that it had a valid reason to terminate Mr P’s employment; namely, his persistent failure to obey lawful and reasonable directions on a number of occasions.
 
Absentee notification policy
 
The Commissioner agreed with Linfox’s submissions in relation to two occasions when Mr P did not provide adequate notice in relation to failing to adequately notify his absence from work. The reasons that Mr P advanced in support of his failure did not excuse him from the requirement to adequately notify his supervisor or manager.
 
Mobile phone use
 
The evidence showed that Mr P breached Linfox’s mobile phone policy on a number of occasions. Employees in its Distribution Centre were required to have their mobile phones switched off during working hours.

Mr P argued that he needed to be available to assist an unwell relative and on a number of occasions kept his mobile phone on at work.
 
The Commissioner noted that he accepted that ‘an employee might want to be contactable during working hours’; however, this could have been achieved in a different manner, which was acceptable to his employer. For example, he could have sought authorisation to have his mobile phone switched on, or could have nominated a person in a nearby area to receive messages on his behalf.
 
Safe work procedure
 
A further issue related to a breach of a safe work procedure during the unloading of a vehicle. Mr P maintained that he had not been trained in the procedure, but Linfox provided evidence that he had in fact been trained several times in the correct procedure.
 
Failure to sign acknowledgement of completion of social media policy training
 
Mr P attended a group training session on Linfox’s social media policy but failed to sign the acknowledgement after the session that he had attended. He then received one-on-one training on the policy. However, at the conclusion of the training, he ‘crossed out the word “understand” where the acknowledgement stated, “I _______ have read and understand ...”, and in the signature space wrote “refused to sign” …’ 
 
The Commissioner noted that his signature on the acknowledgement was not committing him to abiding by the policy, rather it was merely an acknowledgement that he had read and understood the policy.
 
He went on to find that Mr P’s behaviour was objectionable because ‘clearly there are some obligations employees accept as part of their employment relationship that have application whether they are at work or involved in activities outside of working hours’.
 
The Commissioner found that Linfox’s request for him to sign the acknowledgement ‘was neither unlawful or unreasonable’ and, therefore, it was within its right to dismiss him for failing to do so.
 
Policies were clear as were consequences of breach
 
The Commissioner noted that it was also relevant in relation to whether Linfox had a valid reason’ for terminating Mr P’s employment, that the evidence showed that its policies had been promulgated to employees and that Mr P had been warned of the consequences of further breaches of its policies and procedures.
 
Message: The employer in this case was able to demonstrate that it had clear policies on a number of issues and that these were provided to employees. Employees were trained in the policies and required to provide acknowledgement that they had understood them. These policies and procedures were able to support the employer's evidence before the FWC, with the tribunal agreeing with the employer that the behaviour of the employee justified dismissal.
 
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