Fair Work case discusses the limits of an employee who runs her own business
The Fair Work Commission (FWC) had recently ruled in a case involving an employee who filed for an unfair dismissal claim when she was terminated for devoting time to her personal business during work hours.
The employee was a Health, Safety, Environment & Training Manager (HSEQ Manager). Her work involved reviewing all workplace health and safety and employment-related documentation to ensure the employer complied with relevant laws.
Within two months of her employment, she began renting out a cottage on her property to Airbnb customers. A digital platform called Hipcamp then contacted her and inquired if she would allow caravaners to park on her property nightly before they travelled to their next destination. The employee agreed and started a private business.
Afterward, the employer then noticed that she had been taking “excessive phone calls” relating to her business instead of performing “active and meaningful duties” and filling up her personal jerry cans with the employer’s client's diesel and taking the jerry cans home.
The employee was verbally warned of her inappropriate conduct but was then dismissed due to performing “non-work-related activities” on multiple occasions during her work hours.
Before the FWC, she denied that she spent “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 Commission found the employee was not only failing to perform her work to the reasonable standards required by the employer but she was also deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work.
It said that even if the employee did not make or receive phone calls for the week after she had been warned, she continued to send an “extraordinary amount of text messages” during work hours, in breach of the employer’s direction.
The FWC was satisfied that there were “numerous valid reasons” for her dismissal, including her failure to dedicate her “full time and attention” to her work responsibilities and her conduct in “wasting a significant amount of the employer's time” on her business matters.
The FWC’s decision explained 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.
Thus, the FWC ruled that the employee’s dismissal was not unfair nor unjust, saying that the employee “deliberately failed” to fulfill her duties and obligations to her employer.
The decision was handed down on 22 February.
