In a recent case the Fair Work Commission (FWC) discussed the limits that an employee is able to conduct a business external to the employer’s business during work time. The FWC has recently ruled in a case involving an employee who filed for an unfair dismissal claim after she was terminated for devoting time to her personal business during work hours.
The employer claimed that the employee was spending a considerable amount of work time performing work on her own business. Within two months of her employment, she began renting out a cottage on her property to Airbnb customers as well as renting out space for caravans on the property.
The employer then noticed that she had been taking “excessive phone calls” relating to her business instead of performing “active and meaningful duties” for her employer. The employee was verbally warned of her inappropriate conduct and was later dismissed due to performing “non-work-related activities” on multiple occasions during her work hours.
The employee argued that she did not spend “a lot” of time performing work for her business during work hours but admitted that she performed duties connected to it. She argued that “this time was offset by working over her nominal finish time.”
The FWC found the employee was failing to perform her work to reasonable standards required by the employer and that she was also deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work. Further the FWC found that she continued to send an “extraordinary amount of text messages” during work hours, in breach of the employer’s direction.
The FWC was stated that there were “numerous valid reasons” for her dismissal, including her failure to dedicate her “full time and attention” to her work responsibilities. Thus, the FWC ruled that the employee’s dismissal was not unfair stating the employee “deliberately failed” to fulfill her duties and obligations to her employer.
In consideration of the matter, the FWC stated that an employee is “required to dedicate their full time and attention to their working responsibilities,” saying that “where suitable, employers can afford an opportunity to their employees to attend to personal matters during work time, including urgent family matters and some less urgent personal matters that may arise.” The FWC clarified that this time must be within a “reasonable” period.
The take-away for employers from this matter is that whilst it may be acceptable for employees to attend to personal matters during work time, employers should be vigilant to ensure that the attendance to any such matters is reasonable and not burdensome for the business. Clearly from this decision, employers are within their rights to warn, and if necessary, dismiss an employee for devoting excessive time on personal matters. Contact us for more information on this or other employment law matters.
Greg Arnold – Director & Principal Consultant
Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.