Mobile Phones – a bane in the workplace

In a recent newsletter we highlighted how the employer had the right to prohibit employees from having mobile phones with them during working hours due to safety reasons.

In another case to go before the Fair Work Commission an apprentice claimed unfair dismissal after having his employment terminated for excessive mobile phone use during working hours.

The apprentice was observed using his mobile phone at work on numerous occasions when he should have been working. The employer had spoken to the apprentice on many occasions and was even issued with a formal warning advising him he was at risk of dismissal if the conduct continued. The employer continued to talk to the apprentice about his phone use before eventually terminating his employment for his continued phone use at work when he should have been working.

The Commission dismissed the apprentice’s unfair dismissal application on the basis that the employer was a small business and had complied with the Small Business Fair Dismissal Code, there was a valid reason for the termination based upon misconduct, and the apprentice had been provided with many opportunities to correct his behaviour and did not make the required changes, despite counselling and a formal warning.

It is important to remember that whether or not mobile phone use is excessive or not depends on such things as the type of workplace, the nature of the employee’s role, the mobile phone use required to perform the role, and other factors relevant to the workplace and employee’s circumstances.

However, notwithstanding the above, if you are looking to terminate the employment of an apprentice or trainee an employer needs to keep in mind there are two contracts in place. The employer not only has to terminate the employment contract but also terminate the training agreement. This involves different steps completely.