In a recent decision the Fair Work Commission found that a roofing business fairly dismissed a junior employee for excessive personal phone use during work hours.
The Facts
The employee commenced employment on 19 July 2024 as an apprentice.
He was spoken to by his supervisors on numerous occasions about his inappropriate phone use.
On 7 May 2025 he was issued with a final warning about personal phone use and told that if anyone saw him “bludging again” his employment would be over. He was also told, “We are all willing to help you become a successful tradesman, even if it is a slow process …”.
On 3 December 2025 his employment was terminated for further occasions of personal phone use.
He applied for unfair dismissal.
Small Business Fair Dismissal Code
The employer disputed the application on the grounds that it was a “small business employer” and the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
An employer was a “small business employer” if it has fewer than 15 employees at the relevant time. Casual employees are not included unless engaged on a regular and systematic basis.
The Fair Work Act provides that a person has not been unfairly dismissed if the Fair Work Commission is satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).
The Decision
The Commissioner accepted that the employer was a small business and the dismissal was consistent with the Small Business Fair Dismissal code, finding that:
The employee’s repeated mobile phone use over an extended period, when he should have been working, was a valid reason for termination of employment.
He had been provided sufficient training or support in his work.
He was warned about the matters which gave rise to the termination, and that he risked dismissal if there was no improvement.
Although the termination was abrupt, he had been given a reasonable chance to rectify his personal phone use.
He was not prevented from having a support person in discussions where dismissal was possible.
The employee’s application was dismissed.
Implications
Employees should be aware that repeated personal phone use during work time can amount to a valid reason for dismissal.
Small business employers should be aware of the requirements of the Small Business Code and follow them carefully.
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