Linfox employee sacked for using mobile at work: Fair Work upholds dismissal

The Fair Work Commission has upheld the dismissal of a Linfox employee who used his mobile phone at work in breach of company policy.

Malcom Pearson’s employment was terminated after he breached Linfox’s policies, which required him to have his mobile phone switched off during work hours.

Pearson argued he needed to be available to assist an unwell relative and on a number of occasions kept his mobile phone on at work.

Pearson was also found to have breached Linfox’s policies on contacting a relevant supervisor when absent from work, social media and safe working procedures.

Linfox claimed it had a valid reason to terminate Pearson’s employment; namely, his persistent failure to obey lawful and reasonable directions on a number of occasions.

But the Fair Work Commissioner found while “an employee might want to be contactable during working hours”; this could have been achieved in a different manner, which was acceptable to Linfox.

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.

Pearson 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 found Linfox’s request for Pearson to sign the acknowledgement “was neither unlawful or unreasonable” and, therefore, it was within its right to dismiss him for failing to do so.

M+K Lawyers partner Andrew Douglas told SmartCompany the Fair Work Commission’s decision sets out “clear and lucid commentary” on appropriate use of mobile phones and social media.

“This does recognise that social media is an important part of all business operations and businesses are entitled to protect their reputation and protect their employees from misuse of social media by other employees,” Douglas says.

“If you create a policy around safety which is based on protecting the individual and fellow workers, breaching that means termination of employment.”

This isn’t the first time Linfox has come under Fair Work’s spotlight with an unfair dismissal claim made by a Linfox employee upheld two years ago.

The employee was sacked for making comments against two managers on Facebook – comments which both managers claimed were sexist and contained racial vilification.

At that time Linfox did not have any social media policies in place and so Fair Work backed the employee.

It’s a failure which Linfox has made sure not to repeat by setting out clear policies.


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