Fair Work Act 2009
s.394—Unfair dismissal

Lynda Murphy
v
Clear Day Pty Ltd
(U2021/7558)

Application for unfair dismissal remedy – employee with eight months’ service – excessive amount of text messages sent by Applicant during work hours to family and in relation to her own private business concern – verbal warning issued to Applicant – failure to follow lawful and reasonable direction issued by the Respondent – application dismissed

[1] On 25 August 2021, Ms Lynda Murphy made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been dismissed from Clear Day Pty Ltd (the Respondent) and that her dismissal was harsh, unjust or unreasonable. The Respondent is associated with Barlow’s Earthmoving Pty Ltd (Barlow’s Earthmoving).

[2] Ms Murphy commenced employment with the Respondent on 1 December 2020 as a Health, Safety, Environment & Training Manager (HSEQ Manager). She was dismissed from her employment on 4 August 2021 for reasons including performing non-work-related activities on multiple occasions during her work hours with the Respondent.

[3] The matter was heard before me by Microsoft Teams video on 4 November 2021. After hearing from the parties, I conducted the matter as a determinative conference. Ms Murphy represented herself. Ms Paula Barlow, Director represented the Respondent. I had earlier issued directions for Ms Murphy to produce telephone records for the period 1 June 2021 to 25 August 2021 as the amount of time Ms Murphy spent on the phone on non-employment related matters was an issue in this application.

Background

[4] Ms Murphy was employed by the Respondent on a full-time basis. Her responsibility primarily included reviewing all workplace health and safety and employment related documentations to ensure the Respondent complied with legislation. She was paid $48 per hour.

[5] Within two months of her employment commencing, Ms Murphy 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. Ms Murphy agreed and commenced a private business called Shiralee Clydesdale & Farm Stay (Farm Stay). According to Ms Murphy, the business quickly became popular, requiring her to engage a caretaker to look after the farm and guests, as well as engage individuals to take over management of the farm on her behalf. She considered that this did not have an impact on her ability to fulfil her duties for the Respondent.

[6] According to the Respondent, Ms Murphy had been taking excessive phone calls relating to her private business instead of performing active and meaningful duties. On 12 July 2021, Mrs Barlow spoke to Ms Murphy to discuss her concerns of Ms Murphy’s conduct in taking calls during work hours, as well as filling up her personal jerry cans with the Respondent’s client’s diesel and taking the jerry cans home.

[7] At some point the following file note was prepared to record the conversation between Mrs Barlow and Ms Murphy on 12 July 2021. I cannot be satisfied that it was made contemporaneously. On the evidence before the Commission, the file note was prepared by Mrs Karen Sheen, the Administration Officer of the Respondent, at the direction of Mrs Barlow. The properties on the PDF document supplied to the Commission demonstrate it was created on 30 August 2021, however it is possible the word version was created earlier than that date. Having heard from both Mrs Barlow and Ms Murphy, I accept that the conversation is accurately reflected in the file note below, however Ms Murphy’s substantive contention before the Commission is that she was not provided with a written warning:

“12 July 2021
RE: Record of Meeting with Lynda Murphy – Poor performance at work – Breach of Clause 3.3 of Contract

Today at 7am in the Coorooman Office I discussed with Lynda that her conduct at work is not acceptable and in breach of clause 3.3 of our contract.

She has been operating her own business “Shiralee Clydesdale & Farm Stay” while employed by me. Numerous phone calls have been received to make accommodation bookings on her personal phone and then she has booked them using her booking app which she has loaded onto our work computer.

A significant amount of calls have been received and made by Lynda on her personal phone during working hours for the process of building up her farm stay business. Eg: ordering and booking amenities, arranging the collection of a septic tank, ordering water tanks, purchasing animals. Lynda received a lot of calls enquiring about her farm stay and also making bookings.

Lynda has also been liaising on the phone and via email to her solicitors about her personal property settlement and finance for the purchase of her property and business.

Company vehicle should be returned to the depot during any type of leave. This was advised to her via email but she still took the vehicle while on holidays as she stated she did not have her own car.

Lynda had been filling up her personal jerry cans with our client’s diesel and taking the jerry cans home with her.

I gave Lynda a verbal first and final warning and I made the following directives.

•  Her mobile phone is to be turned off whilst she is in the office to avoid the constant phone calls related to her Farm Stay business.

•  No filling up Jerry cans with client’s fuel and taking them home.

•  Work Vehicle is not to be used for her business.

PAULA BARLOW
DIRECTOR”

[8] Following the discussion, that same morning, Ms Murphy sent the following email to Mrs Barlow:

“Morning again Paula,

Just wanted to clarify the phone issue – I do acknowledge that before I went away my phone was feral with calls – but as discussed I’ve put controls in place now to stream that away from me.

However, I just checked my phone over coffee and had calls from trainers etc, and had missed them, then contacted Tub to see if they can go to site today.

In previous employment, I’ve either been issued a work phone or used my own phone and charged back. This has been the way for the last 10+ that I’ve experienced Companies communications.

I have no problem using my own phone, but would like to know if you want all calls directed through the office, or if I have my phone and only answer calls that are recognised as Barlow calls (i.e. saved contacts)?

I’m happy either way.

thanks

Lynda Murphy
HR / HSEQ Manager”

[9] Ms Murphy was said to have followed the directive issued by Mrs Barlow for approximately one week before the conduct continued again. As a result, Ms Murphy was issued with correspondence on 4 August 2021, terminating her employment that day, with the payment of one week’s payment in lieu of notice. The termination letter is produced below:

“Dear Lynda,

Termination of your Employment

I am writing to you about the termination of your employment with Clear Day Pty Ltd and your position based with our client, Barlow’s Earthmoving.

On Monday 12^th July 2021, I spoke with you about your unacceptable behaviour at work and warned you it would not be tolerated anymore.

During this discussion we spoke about the following:

•  You are not permitted to operate your personal business, namely “Shiralee Clydesdale & Farm Stay” whilst working for Clear Day Pty Ltd & Barlow’s Earthmoving Pty Ltd.

•  Your mobile phone is to be turned off while at work except during morning tea break when you can make your personal call at that time.

•  No personal calls are to be received or made unless for an emergency and these are to be done via the work phone.

For a period of 1 week, you followed my directions and warning but then the misconduct continued.

I consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons:

•  You continued to operate your personal business by booking appointments for accommodation at your “Farm Stay”.

•  Receiving multiple personal phone calls regarding your business, ie: delivery of items for your business, items to be collected, payments to be made to suppliers etc

•  Receiving and making personal calls and emails to solicitors regarding your Property Settlement.

•  Doing your Coles online shopping order for your Impending farm stay open day.

•  Sending personal emails with the “Barlow’s Earthmoving” company signature and Logo to persons that have no association to Barlows Earthmoving business and may cause our company serious implications to our reputation.

•  You have refused to carry out lawful and reasonable instructions that is consistent with your contract of employment.

Your employment will end immediately.

Based on your length of service, your notice period is one week.

In lieu of receiving that notice, you will be paid the one week’s pay, along with your accrued entitlements and any outstanding pay up to including your last day of employment.

As agreed during the hiring interview, you will be paid 56 hrs “additional leave”, separate to the standard annual leave as per your pay award. (Clerks – Private Sector Award 2020 (MA000002).

If you have been paid annual leave in advance, any amount still owing will be deducted from your final pay.

Money owing to Barlow’s Earthmoving for quarry products purchased and not paid for will be deducted from your final pay.

We require you to remove your vending machine from our workshop by the 13^th August or it will be dumped. Collection is to by a qualified and registered operator and notice of date to be collected to be advised. It will not be loaded onto a trailer by us.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at www.fairwork.gov.au.

Kind Regards

PAULA BARLOW
DIRECTOR”

Relevant legislation

[10] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[11] Further, ss.385 and 387 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[12] There are no jurisdictional issues preventing the Commission in determining if the dismissal was unfair. The application has been made in time. Ms Murphy has been dismissed and has met the minimum employment period. The Respondent is not a small business, and the dismissal was not for a genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.

Evidence of Ms Murphy

[13] Ms Murphy stated that she did not enter into a written contract; rather she verbally accepted the role. She stated that she was led to believe the following terms and conditions were part of her employment:

•  She would be based at Shoal Water Bay for approximately four days a week, and at the Coorooman office for the remaining one day. Ms Murphy advised that this was so Mrs Barlow could spend more time in the Coorooman office.

•  She would work 10 hours a day whilst at Shoal Water Bay.

•  She would be provided a vehicle for work and personal use. She did not own a vehicle as she had been supplied with one in her previous roles.

•  She would be paid a flat rate of $48 per hour.

•  She would be paid additional holidays to cover the Christmas period when the business closed for the Christmas break.

Shifting goal posts

[14] Ms Murphy stated that in December 2020, she offered to research novated leases and car supplies over the Christmas break. She sent her research to Mrs Barlow on 29 December 2020. Ms Murphy had been advised she would be driving an old Mazda utility to use when she came back in the new year and would be working 38 hours a week.

[15] However, on 1 February 2021, Ms Murphy was given a Toyota Landcruiser utility (ute) with nearly 700,000 kms on it. She discovered that the odometer had not been working for some time, and she speculated it more than likely had around 900,000 kms on the odometer.

[16] Ms Murphy noted that a fuel card was not supplied with the ute. With the Maintenance Manager claiming that the ute was a fuel guzzler, Ms Murphy supplied two of her own jerry cans in the back of the ute which she would then fill with diesel for when she was to go to Shoal Water Bay.

[17] As Ms Murphy was not yet provided a laptop, Ms Murphy used Mrs Barlow’s laptop in the main office. She said she did a trip with Mrs Barlow to Shoal Water Bay and used Mrs Barlow’s laptop on site for this occasion.

[18] Ms Murphy stated that her standard work week, as agreed between herself and Mrs Sheen was 7:00am to 3:00pm from Monday to Thursday (working through smoko and lunch), and 7:00am to 1:00pm on Friday. Ms Murphy noted that these hours varied based on business needs and Ms Murphy’s medical needs for six weekly infusions.

[19] Sometime in July 2021, Ms Murphy found an employment agreement left on her desk. She emailed Mrs Barlow stating she would look at it over the weekend and get back to her. Ms Murphy advised that the document had been back dated to March 2021 with no position description attached. She considered the document did not align with her original verbal agreement with Mrs Barlow. The major item identified by Ms Murphy was that the document was a fixed term agreement, however Ms Murphy advised she was a full-time permanent employee. Ms Murphy asserted that Mrs Barlow learnt about fixed term agreements from Ms Murphy.

Private Business

[20] Regarding Ms Murphy’s property and the visitors to it, Ms Murphy believed that the automated nature of AirBnB and HipCamp seemed easy and had no impact on her employment. She stated that she was home during daylight hours to attend to anything that was required. Ms Murphy advised that at no point was this extra source of income hidden from Mrs Barlow, or from anyone else on the team.

[21] Ms Murphy advised that the business became popular fast. She had to engage a Caretaker to look after the farm and guests on her behalf. Soon, she engaged a couple to take over the management of the farm and they were provided access to Ms Murphy’s email, Facebook HipCamp and AirBNB accounts. Ms Murphy stated that nine times out ten, she would always be working until 3:15pm to cover for any time lost due to personal dealings. Mrs Sheen would often need to remind Ms Murphy that it was past 3:00pm.

[22] Ms Murphy advised that she was receiving enquiries for local people to visit the farm as day visitors. Accordingly, she arranged a one-off open day on Sunday, 1 August 2021. She acknowledged that her employment was being interrupted by her growing business. She spoke with her daughter about taking on a bookkeeping role.

Discussion on 12 July 2021

[23] Ms Murphy recalled that when arriving to work on Monday, 12 July 2021, Mrs Barlow spoke to her about the number of phone calls she received on Friday, 2 July 2021. Ms Murphy admitted that the Friday was “crazy” and advised she had put plans in place to ensure it did not happen again. Mrs Barlow instructed Ms Murphy to put her phone away while at work as she was not being paid to run her own business. She was also told by Mrs Barlow that she cannot have jerry cans at the back of the ute either. Ms Murphy felt that Mrs Barlow was implying that Ms Murphy was stealing diesel. Ms Murphy does not own a vehicle which takes diesel fuel.

[24] Ms Murphy’s evidence is that at no time during the discussion on 12 July 2021 did she believe she was receiving a first and final warning, or any warning at all. She considered it was a “talk”, with Mrs Barlow expressing her thoughts about how it was going to be from this point forward.

[25] Ms Murphy said that there was no allowance for any discussion, except after when Mrs Barlow finished speaking when Ms Murphy then advised she had plans in place to ensure it did not happen again.

Events leading up to the dismissal

[26] Ms Murphy described the printers and scanners at the office to be archaic, and therefore she started using her phone to PDF the timesheets and email them to Mrs Barlow. She would also text the deliveries to drivers. Ms Murphy advised that she would ensure that Mrs Barlow was aware that she was using her phone for these purposes. She stated that she never received an alternative option or a comment about using her phone.

[27] When Ms Murphy arrived to work on 4 August 2021, she said she was handed the dismissal letter by Mrs Sheen. Ms Murphy stated that her dismissal was instant, and she was paid a week in lieu of notice.

Post-dismissal correspondence

[28] After receiving the termination correspondence, Ms Murphy sent an email to Mrs Barlow that same morning. The email is extracted below:

“Morning Paula,

Thank you for having Karen deliver the Termination of Employment letter this morning.

In order to clarify within myself could you please clarify:

•  I did not continue to book appointments for the Farm Stay at work – I did take one call at work in error, and asked them to text me details, I completed the booking on my own time at home. I remember commenting to Karen, “Oops, that’s probably a sackable offence”. Other than this, I do not believe there were bookings taken at work or in work hours – in our discussion I had stated that I had started to put controls in place. Is this the situation you speak of or do you believe there were others?

•  Receiving multiple calls re my business – please advise (I did take a call from home for an emergency when the on-hire excavator broke down – is this what you’re speaking of?)

•  There were two emails sent to my solicitor & accountant – regarding property settlement – these were of an urgent nature.

•  What emails were sent with Barlows Earthmoving logo ?? Please advise??

•  What have I refused to carry out that was lawful and reasonable instructions?

•  You singled me out with the no phone at work except in smoko;

•  as per my email to you post our discussion the carrier for gravel required text messages confirming orders – and I used my personal phone for this business dealings.

I look forward to your clarification I the above.”

[29] Mrs Barlow responded to Ms Murphy’s email advising the following, in the order of Ms Murphy’s dot points above:

•  Mrs Barlow had asked Ms Murphy to keep her mobile phone turned off whilst in the office to prevent her business calls distracting Ms Murphy constantly during the times in which Ms Murphy is being paid for.

•  Mrs Barlow advised that phone was meant to be turned off. “Jonny rang constantly as well as other people carrying out work at” Ms Murphy’s business.

•  Ms Murphy should have left her emails to her solicitor and accountant until after she left work. Ms Murphy finishes at 3:00pm which is plenty of time to respond to Solicitors and accountants in her own time.

•  An email was sent with Barlows Earthmoving logo to her solicitor, which Mrs Barlow described to be aggressive, is one example.

•  Mrs Barlow advised that Ms Murphy refused to carry out a lawful and reasonable direction which was to turn her mobile phone off whilst in the office and not conduct her business whilst being paid by Mrs Barlow.

•  Ms Murphy was the only employee who was abusing the phone use.

[30] The following day, Ms Murphy replied to Mrs Barlow’s clarification, as follows:

“Thank you for your clarification, however, I disagree with the telephone as it was a requirement for my roll. IE to text the drivers as per you not supplying a cell phone or texting service (which I showed you what was available).

My phone records and texting records are proof of my communications during work hours, and I actually challenge you as to how you know my activities due to you never being in the office, never having meetings as I requested numerous times. I also have records from after our ‘conversation’ informing you that I was using my phone to text truck drivers and scan documents to you etc.

I took a phone meeting with my solicitor in my own time it was even logged in the calendar. You made it hard to do my roll but I persisted.

Paula, don’t make me, as Jess and your sister in law would say, your ‘dead wood’ because your daughter wanted an office job. You stated to me that there were culture issues at Shoal Water Bay, and I offered some advice, but you took it as a personal insult; stating none of my indicators were relevant (or something like that). Unfortunately for you people are not cattle, or dogs and won’t ‘just do their job’ as you put it. Bullying is not leadership.

Also, I note that I have evidence that you agreed, during the interview period and subsequent communications, to provide me with a BT50 to use (ex workshop). I have documented evidence of this, as so will you.

You also had indicated that my main work would mainly be at SWB @ 10 hours per day.

Most recently, you changed the agreement of a car with personal use to work purposes only. You also stated that the car I was allocated was not fit or safe to drive out to Moura and back, yet it was perfectly safe enough for me to drive to Precinct B – you can’t have it both ways.

You have no evidence to terminate me, as your claims are without proof, no written warnings were given and I suggest that this sham is so Rowena, your daughter and Karen’s daughter-in-law now required a job and I was ‘dead wood’.”

[31] Mrs Barlow replied later that morning:

“Hi Lynda

I gave you a verbal warning and I have proof of this as you sent me an email to clarify the conversation that we had, in this warning I was very clear with what I expected of you.

I have plenty of proof of what you were doing during work time, on my laptop I see all your emails that are received and sent as you are doing them and receiving them. I also had access to your outlook (for some reason it was linked to my lap top) as you were doing a lot of personal and your business documents during work hours, I have all these documents as proof with the time and date they were worked on.

I asked Karen to document all personnel calls that were received when I was absent as I suspected that you were not following my direction.

Rowena has been working with us since she left school and has been studying to be an 5SE for a couple of years now to take Jeffs position as SSE not yours. I will now need to find someone else to fill your role.

It was unfortunate that you choose to operate your business during the hours that you were working for us, because when you did give us your attention you were good at your job and I was disappointed when it didn’t work out.

I wish your farm stay all the success, I know the amount of effort you have put into it.

Please take car and happy to talk on the phone if you need.”

[32] Ms Murphy advised that after her dismissal, she had made the following applications for employment:

•  HSE Advisor (Foxleigh – full time) – 6 August 2021

•  HSE Advisor (Full Time) – 16 August 2021

•  WHS Advisor (Achieve) – 1 September 2021

•  Training Coordinator (Glenore) – 1 September 2021

•  Document Controller (Batchfire) – 2 September 2021

•  Casual Teacher (People in Custody) – 2 September 2021

•  HSE Advisor (Bravus) – 3 September 2021

•  HSE Advisor (LOR) – 8 September 2021

•  Project Administrator – 9 September 2021

[33] Ms Murphy commenced alternative employment within a short number of weeks from being dismissed by the Respondent.

Submission in reply

[34] Ms Murphy denied that she spent “a lot” of time performing work for her personal business during work hours. She concurred that she undertook duties for her private business at work, but this time was offset by working over her nominal finish time. Ms Murphy said she had an alarm set to go off at 3:15pm as she would forget to finish work for the day.

[35] Ms Murphy further denied taking excessive personal phone calls. She said that she received more personal calls due to attending to a woman named Marg’s health issues where she had to take three trips to the hospital in an ambulance. Ms Murphy conceded sending text messages to her son, Mr John Matschoss, but advised that Mr Matschoss does not work at the Farm Stay. She denied that Mr Matschoss rang her constantly while she was at work.

[36] Ms Murphy denied that she sent “a lot” of text messages to Mr Wayne New as asserted by the Respondent. She acknowledged that she was given the opportunity to take annual leave or unpaid leave when her Farm Stay business required her attention.

Remedy sought

[37] Ms Murphy seeks payment of wages from the time of the dismissal to the day of starting her new employment being 2.5 weeks. Ms Murphy calculated this to be $4,560, plus $456 for superannuation.

[38] Ms Murphy further sought compensation for the loss of earnings in her new role as compared to the role with the Respondent until the end of June 2022. Ms Murphy calculated the difference to be $94 per week for 41 weeks. This came to $3,854, plus $385.40 for superannuation.

[39] Lastly, Ms Murphy sought compensation for the loss of use of the company vehicle based on the value of $15,000 per year in the 41 weeks. She calculated this to be $11,826, plus $1,182.60 for superannuation.

Evidence and submissions of the Respondent

[40] The Respondent advised that Ms Murphy spent most of her time working from the Coorooman office as she lived only 15 km away from the office. Ms Murphy was only required to travel to Shoalwater Bay Office, being 120 km away, when required. Ms Murphy was given a work vehicle for the purpose of driving to and from work. The Respondent’s position is that there was no agreement for the vehicle to be used for Ms Murphy’s private business.

[41] The Respondent submitted that Ms Murphy was performing several tasks related to her private Farm Stay business during work hours. This included receiving phone calls from people enquiring or booking at her Farm Stay.

[42] According to the phone records supplied by Ms Murphy, she sent 80 text messages during work hours on 1 July 2021 and 59 text messages during work hours on 2 July 2021. The Respondent asserted that these text messages were not related to her employment with the Respondent.

[43] Whilst the phone records do not show what calls and text messages were made to her, the Respondent asserted that during her hours of work with the Respondent:

•  Ms Murphy would receive multiple calls in relation to booking and enquiries about the Farm Stay.

•  The majority of the text messages on 1 and 2 July 2021 were sent by Ms Murphy to Mrs Jammah Wyld and Mr Phillip Wyld. The Respondent advised that Mr and Mrs Wyld live at and assist with the management of the Farm Stay.

•  Ms Murphy sent several emails relating to the Farm Stay, including sending the Farm Stay Action Plan to Mr Wyld.

•  Ms Murphy would send a number of text messages to her son, Mr Matschoss, who also lives and works at the Farm Stay.

•  Mr Matschoss would constantly ring Ms Murphy.

•  Ms Murphy would also send text messages to Mr Wayne New. The Respondent clarified that Mr New is Ms Murphy’s caretaker at the Farm Stay.

[44] On 12 July 2021, Ms Murphy was warned about this behaviour and was instructed to switch her mobile phone off and not run her business during working hours. The Respondent advised this was made very clear and gave Ms Murphy her first and final verbal warning. Ms Murphy was also given the opportunity to take annual leave, or unpaid leave, when her Farm Stay business required her attention.

[45] Ms Murphy’s behaviour had only improved for approximately one week until 26 July 2021 where Mrs Barlow noticed that Ms Murphy was running her business during work hours again, ignoring the warning. The Respondent is of the view that Ms Murphy’s conduct was in breach of clause 3.3 of her employment contract, which may be considered cause for termination.

[46] On 4 August 2021, Ms Murphy’s employment was terminated. On the same day, Ms Murphy sent Mrs Barlow an email clarifying the termination and acknowledging that she had her mobile phone at work and received camp bookings, noting that Ms Murphy acknowledged this could be a “sackable offence”.

Witness Statement of Mrs Barlow

[47] Mrs Barlow gave evidence that in 2020, Barlow’s Earthmoving Pty Ltd (Barlow) won a large project which required extra staff and assistance. Ms Murphy’s responsibility was to review all the workplace health and safety and employment related documentation and ensure the business was compliant with current legislation. Ms Murphy was based in Barlow’s office, which was located 15 km away from her residence. Mrs Barlow advised that she has mostly been working at Barlow’s office which was 120 km away located at Tilpal Quarray.

[48] The agreement between Ms Murphy and the Respondent was that Ms Murphy would work a minimum of 38 hours a week at $48 per hour and would be supplied a company vehicle to get to and from work. Ms Murphy worked in the Coorooman office with Mrs Barlow’s Assistant, Mrs Sheen. Mrs Barlow gave Mrs Sheen and Ms Murphy the choice to choose their own working hours to suit their home life, with her only stipulation that the office be manned from 7:00am to 4:30pm.

[49] Due to the COVID-19 pandemic, the supply of new work vehicles was significantly delayed. However, Ms Murphy was supplied with a Landcruiser ute until the new vehicles arrived. Mrs Barlow’s evidence is that whilst the vehicle had clocked up a significant amount of kilometres, it was well maintained, safe and reliable. Ms Murphy was to fuel the vehicle at the Bulk Fuel Tanks supplied by Barlow. One was located 15 kms from Ms Murphy’s residence at the Coorooman Depot, and at all the quarries that Ms Murphy needed to drive to and from. As such, Mrs Barlow considered that there was no requirement to supply Ms Murphy with a fuel card.

[50] Mrs Barlow advised she had Mr Simon Lever of Cross Asia Pacific Pty Ltd draft an employment contract. Ms Murphy was then asked to review the draft and to prepare employment contracts for her and other new employees. On 23 March 2021, Ms Murphy emailed Mrs Barlow confirming that she was working through the drafts.

[51] On 31 March 2021, Mrs Sheen telephoned Mrs Barlow, encouraging her to proofread Ms Murphy’s contract as Ms Murphy had informed Mrs Sheen that she had changed her contract conditions and Mrs Barlow would not notice. On the same day, Mrs Barlow texted Ms Murphy to ask if she could proofread the contract. Ms Murphy replied stating that they were sitting on her desk in an envelope.

[52] After reviewing the contract, Mrs Barlow said she emailed Ms Murphy the reviewed contracts with minor changes to her employment status compared to what had been agreed when Ms Murphy commenced work. The Letter of Offer is extracted below:

“Dear Lynda,

I am pleased to offer you employment in the position of with us at Clear Day Pty Ltd on the terms and conditions outlined in this letter.

Your position shall be based with our Client that is identified below. The duties of this position are set out in the attached position description. You will be required to perform these duties, and any other duties our client may assign to you, having regard to your skills, training and experience. You will be deemed to have accepted the terms and conditions of this Agreement, regardless of whether you have signed it and / or returned it.

The Terms and Conditions of our Employment Agreement are attached. Please read this document carefully and contact me to discuss any queries you may have.

1. Position

The majority of this role will be based on our Client’s site as follows:

Role:

Client: Barlows Earth Moving Pty Ltd

Site Contact/Line Manager: as per schedule & / or Position Description

Site Details: Office / Sites as required

Site Entry Requirements: As per position description

PPE Requirements:

•  Long Sleeved Shirt (Supplied)

•  Long Pants / Jeans

•  Gloves (Supplied)

•  Steel Cap Boots -Lace Up

•  Hard Hat – Brim (Supplied)

•  Safety Glasses (Supplied)

…”

[53] The key terms and conditions of the Employment Agreement (Terms & Conditions) are extracted below:

“3. Responsibilities

3.1 Your responsibilities are:

1) those set out in your attached Position Description which may be varied from time to time;

2) any other lawful duties nominated by us from time to time and as directed by us during your employment.

3.2 During your employment, you must:

•  perform your duties in a safe, proper and efficient manner;

•  report promptly and fully to whom you report, and any other person to whom we direct you to report, with the information that they may require from time to time;

•  comply with all reasonable and lawful directions that we give to you; at all times use your best endeavours to promote the interests of our business and not intentionally or recklessly do anything which is, or may be, harmful to those interests;

•  work in a manner to ensure zero-harm to you, others, the environment; and

•  immediately disclose to us any interest of yours that may conflict with our interests.

•  Understand and work within the company expectations which are described in the Position Description.

3.3 While employed by us, you must not:

•  perform duties other than for us or on our behalf;

•  discuss your remuneration arrangements with your colleagues;

•  without our prior written permission, engage in any other employment, business or profession; or

•  engage in any activities that may lead to a conflict of interest, including accepting any benefit as an inducement or reward for an act or omission for the benefit of another person.

Breaches of Clause 3.3 may be considered cause for termination.

3.4 We may direct you to perform or not perform any part of your duties at any time.

3.5 You warrant that you have the expertise and qualifications necessary to perform your duties, and you agree that you will undertake any training, education or other activity necessary to maintain your expertise and qualifications during your employment.

…

14 Motor Vehicles

14.8 During the course of your employment, you may be assigned a company owned or leased vehicle to assist you with your duties.

…

14.10 Personal use of company vehicles is not permitted unless expressly authorised by your manager in a particular case.

…”

[54] Ms Murphy’s probationary period ended on 31 May 2021.

[55] On 29 May 2021, Ms Murphy took ownership of the property “Prado Downs” where her private business is located. On 17 June 2021, Mrs Sheen advised Mrs Barlow that Ms Murphy had been spending a lot of work hours attending to her Farm Stay business. As Ms Murphy was not getting any work done for her HSEQ Manager role, Mrs Barlow texted Ms Murphy and asked her to review their safety management plan. This was a task that Mrs Barlow advised that should have already been completed. The text message is extracted below:

“Thu, 17 Jun, 7:59am

Hi Lynda can you review our safely management plan for Coorooman and tanby and make sure its up to date with the latest legislation and regulations and then we need to make it available to everybody that needs it”

[56] On 28 June 2021, Mrs Sheen informed Mrs Barlow that Ms Murphy has been spending a lot of her time on the phone for her private business. Mrs Barlow was told she needed to come and spend the day in the Coorooman Office to witness for herself what was going on, which she did on 2 July 2021. On this day, Ms Murphy received what Mrs Barlow described to be a ridiculous amount of phone calls and text messages, none of which were related to work with the Respondent. Ms Murphy’s phone records indicated that she sent a total of 138 text messages on 1 and 2 July 2021 during work hours, none of which were related to her employment with the Respondent. Mrs Barlow advised that the text messages were sent to caretakers, Farm Stay guests and other workers at her Farm Stay. Ms Murphy finished work that day at 3:00pm and commenced a period of leave for one week.

[57] During this week, Mrs Barlow said that she and Mrs Sheen went through Ms Murphy’s work laptop to discover an accommodation booking program called Camp Master, installed on the computer for Ms Murphy’s business. They had also discovered a Farm Stay Action Plan and Map. Mrs Barlow noted that the action plan was sent to Mr and Mrs Wyld by email. After receiving Ms Murphy’s phone records in the course of these proceedings, Mrs Barlow noted that there were over 500 text messages in the month of June and July sent to Mrs Wyld during work hours.

[58] On 12 July 2021, when Ms Murphy returned to work, Mrs Barlow spoke to Ms Murphy about her running her private business during working hours and the ridiculous amount of phone calls. Mrs Barlow told Ms Murphy that if she wanted to continue working for the Respondent, she needed to stop performing tasks for her private business and switch her mobile phone off whilst at work. Mrs Barlow explained that turning Ms Murphy’s phone off was the only way to prevent the Farm Stay calls as Ms Murphy’s number was advertised on Facebook, Google, Wikicamps, Hipcamps, other camping forums and even the brochure she had produced. Ms Murphy acknowledged that her business had gone “crazy” and that her phone was “feral” with calls.

[59] Mrs Barlow explained that Ms Murphy had a work phone in the office, and she did not need her mobile phone on at work. Ms Murphy told her that she would put controls in place to stream the Farm Stay calls away from her by placing a recording on her message bank to tell callers to ring her daughter, Mrs Bethany Jones, for all enquiries and bookings. Mrs Barlow advised that the only way this control would work is if Ms Murphy had her mobile phone turned off. Mrs Barlow gave Ms Murphy the option to take annual leave or unpaid leave when she needed to attend her own business.

[60] Mrs Barlow also advised that Ms Murphy was seen a few times on the CCTV filling her own jerry cans up with fuel and taking them home. Mrs Barlow gave Ms Murphy a verbal warning about not taking fuel in jerry cans. When Mrs Sheen arrived at the Coorooman office on 12 July 2021, Mrs Barlow told Mrs Sheen that she had given Mrs Barlow a verbal warning and asked Mrs Sheen to document the meeting for her, reproduced at [7].

[61] On the same day, Ms Murphy sent an email to Mrs Barlow, reproduced at [8], acknowledging that in the days leading up to her taking annual leave, her phone had been “feral” with calls.

[62] Mrs Barlow advised that her laptop had Ms Murphy’s work mailbox installed on it and she could see when Ms Murphy received and sent emails. During the week starting 26 July 2021, Ms Murphy started to send and receive personal emails again related to her private business. This included ordering of material for amenities, account applications, and more, notably from her work email account: 1

“From: Lynda Murphy – Barlows Earthmoving
Sent: Monday, 26 July 2021 8:58 AM
To: Anna … @hopkinsbros.com.au>
Subject: 20mm aggregate

Hi Anna,

I sent an email this morning through your website to see if I could get 20mm aggregate delivered (for me personally) to my place… - 14 km from the old bridge).

I’m putting in a septic system and the guys are working on it this morning.

Is this possible to get a truck there this morning?
Invoice to Shiralee Clydesdales & Farm Stay…
I can fix it up straight away.

Thanks

Lynda Murphy
HR / HSEQ Manager”

[63] On 27 July 2021, Ms Murphy received an email from her lawyer regarding her property settlement with her former husband. This email was sent from her lawyers to her personal email address. During work hours, Ms Murphy forwarded the email from her personal email address to her work email. Ms Murphy then, from her work email, replied to her lawyer in what Mrs Barlow classed as a somewhat abusive email, 2 where Ms Murphy made the following comments in her email:

“WOULD YOU NOT DO THIS PART OF YOUR SERVICE TO YOUR CLIENT??

…

THERE IS AN ISSUE – AND YOU KNOW ABOUT IT. I’M SORRY BUT IT APPEARS YOU ARE WIPING YOUR HANDS FROM THIS CASE YOU’VE GOT YOUR MONEY AND ARE DONE…

SOMEBODY (NAMELY ME) IS INJURED DUE TO YOU NOT FOLLOWING THROUGH WITH MY EARLIER REQUEST…”

RELEASE YOURSELF AND I’LL BE SELF REPRESENTING FROM HERE ON IN. ALL YOUR ADVISE … WAS WRONG. Now I’M PAYING FOR IT.”

SLEEP WELL TONIGHT KNOWING YOUR FIRM HAS NOT BEEN ETHICAL.”

[64] I note that legal professional privilege would attract to the communication between Ms Murphy and her lawyer. Ms Murphy did, however, choose to communicate with her lawyer through her work email account instead of her personal account and this communication was then read by Mrs Barlow. I accept Mrs Barlow’s evidence on this issue, given during the determinative conference, that Ms Murphy provided access to Mrs Barlow to Ms Murphy’s emails by installing Ms Murphy’s emails on Mrs Barlow’s computer. Accordingly, on account of Ms Murphy’s actions in communicating with her lawyers via her work email account, Ms Murphy has, in my view waived legal professional privilege over the communication. Her action was either intentional or unintentional. During the determinative conference, Ms Murphy stated that she had told everybody about her long-running family law matter and she did not care and she considered the matter to be an “open book”.

[65] It is Mrs Barlow’s contention that there was no need for Ms Murphy to reply to her lawyer using her work email when it was originally sent to her personal email. Ms Murphy had deliberately forwarded it to her work email to reply. Mrs Barlow’s view was that Ms Murphy sent this abusive email to her lawyer from her work email account to give greater weight to her title and position within the Respondent. Mrs Barlow considered that the email sent by Ms Murphy could cause serious implications to the reputation of Barlow’s Earthmoving.

[66] It was found that Ms Murphy also sent an email to her accountant that same day responding to “2019 Tax Queries” from her work email. On 28 July 2021, Ms Murphy’s accountant responded to the same work email, in which Ms Murphy wrote back shortly after at 8:41am and again at 10:49am using the Barlow’s Earthmoving email.

[67] On 28 July 2021, Mrs Barlow was informed by Mrs Sheen that Ms Murphy was shopping online for her Farm Stay open day that was being held on 1 August 2021. Two confirmation emails for separate orders were later received by email at 9:41am and 3:01pm with the order being sent to her private residence. 3 It is noted that both confirmation emails from Coles were sent to Ms Murphy’s personal email, in which she forwarded to her work email. On the same day, Mrs Barlow asked Mrs Sheen if Ms Murphy had her mobile phone on at work again, and Mrs Sheen said yes and that she was receiving numerous calls and sending text messages. The following day, Ms Murphy went on holidays.

[68] Due to Ms Murphy continuing to operate her business during work hours, it was clear to Mrs Barlow that her directive was not being followed after receiving a verbal warning. Along with the abusive email sent to her lawyer from her work email, Mrs Barlow made the decision to terminate Ms Murphy’s employment. On 2 August 2021, Mrs Sheen was asked to prepare the termination letter which was subsequently issued to Ms Murphy on 4 August 2021.

[69] On 4 and 5 August 2021, Ms Murphy emailed Mrs Barlow seeking clarification of her termination. Mrs Barlow supplied these emails as evidence that Ms Murphy received a verbal warning but had not followed her directive. In this email, Ms Murphy confessed to having her phone turned on during work, and acknowledged to have received a booking, mentioning to Mrs Sheen that receiving a booking was probably a sackable offence. Mrs Barlow ensured that Ms Murphy received all her entitlements owed to her.

Witness Statement of Mrs Sheen

[70] Mrs Sheen confirmed she was told by Mrs Barlow to work out what hours to work with Ms Murphy to suit both of their home lives. Ms Murphy chose to start at 7:00am so that she could attend to her animals in the afternoon. Mrs Sheen stated that more times than not, Ms Murphy was running up to 10 minutes late.

[71] On 31 March 2021, Ms Murphy informed Mrs Sheen that she had altered her contract conditions, stating, “Paula wouldn’t notice”. Mrs Sheen called Mrs Barlow, informing her to ensure she proofreads all of the contracts Ms Murphy had drawn up.

[72] On 17 June 2021, Mrs Sheen told Mrs Barlow that Ms Murphy was not working hard, and that Ms Murphy was doing an online auction to buy amenities, making and receiving calls and texts about other items for her Farm Stay, and organising a loan with her broker to purchase these items. Mrs Barlow said that she would need to have a talk with Ms Murphy as she was supposed to be developing their safety system and therefore should be busy.

[73] Mrs Sheen observed Ms Murphy every day receiving and making her own personal phone calls and text messages, making bookings for tourists to stay at her Farm Stay and addressing other issues in work time. On 2 July 2021, Mrs Sheen was in the office with Mrs Barlow and Ms Murphy. Ms Murphy received numerous phone calls regarding booking accommodation at her Farm Stay and other personal calls and text messages. Ms Murphy’s mobile was extremely busy; as busy as it had been for the last couple of weeks. At one stage, Mrs Barlow asked, “Does this happen often?”, to which Mrs Sheen replied, “Yes, all the time. Lynda’s business is getting busier and busier”.

[74] When Ms Murphy left for home that day, Mrs Barlow looked at Ms Murphy’s computer to see what Ms Murphy had been working on. Mrs Barlow discovered there was a booking system for Ms Murphy’s Farm Stay and other documentation related to Ms Murphy’s private business.

[75] On 12 July 2021, Ms Murphy returned from holidays. Mrs Barlow spoke to Ms Murphy that day about running her own private business during work time and the amount of time Ms Murphy has been spending time on the phone for non-work-related matters. Mrs Barlow advised Mrs Sheen that she had given Ms Murphy a warning and that it would not be tolerated. Ms Murphy was told that her phone was to be turned off and only turned on during her breaks so she could check her messages. Mrs Barlow told Mrs Sheen that she had informed Ms Murphy she was to use the work phone in the office for all future calls and not use the work vehicle for her private business, or whilst on holidays, nor was she to use fuel to fill jerry cans.

[76] On 12 July 2021, Mrs Barlow asked Mrs Sheen to type details of the verbal warning for record.

[77] On the same day, Ms Murphy told Mrs Sheen about her discussion with Mrs Barlow. Ms Murphy stated, “I think Paula could be accusing me of stealing fuel as I’m not allowed to fill up jerry cans anymore”. Mrs Sheen replied there was no need to have jerry cans in the car as they have a fuel bowser at work and at all other quarries, and that the car could make it to Shoal Water Bay and back without having to be filled. She said to Ms Murphy that if she can take jerry cans, everyone else would want to as well and there needs to be one rule for everyone.

[78] Mrs Sheen considered that Ms Murphy worked very well for one week after the warning, keeping her phone off and only checking it on breaks. Ms Murphy had informed Mrs Sheen that she had given the bookings for her Farm Stay to her daughter, Mrs Jones, to complete while Ms Murphy was working. Ms Murphy placed a message on her phone for people to ring Mrs Jones for Farm Stay enquiries.

[79] Mrs Sheen’s evidence is that by the second week, Ms Murphy returned to having her phone on and answering it all day long. Her evidence is that each time Ms Murphy answered her mobile she would say to Mrs Sheen, “Whoops, that wasn’t who I thought it was”. On one occasion, Ms Murphy said to Mrs Sheen, “That could be a sackable offence, but I don’t care”.

[80] Mrs Sheen stated that on 26 July 2021, everything to do with Ms Murphy’s private business escalated. Ms Murphy was having an open day on 1 August 2021 and was also having a shower and toilet blocks built for the guests. Ms Murphy ordered drainage aggregate for her business and received a lot of calls and texts regarding the open day and other issues. On 27 July 2021, Mrs Barlow was at Tilpal and asked Mrs Sheen what Ms Murphy was doing. Mrs Barlow told her that she could see Ms Murphy was filling in an application for food for her business.

[81] The following day, Mrs Barlow asked Mrs Sheen to document every personal call she heard Ms Murphy taking. That same day, Mrs Sheen walked into the office after coming back from the toilet and could see Ms Murphy had Coles online on her computer and was making an order. This too was for Ms Murphy’s business and the open day that was coming up on the Sunday. Ms Murphy took camp bookings, and her son, Mr Matschoss, rang multiple times throughout the day. Mrs Sheen observed Ms Murphy texting a lot and organised something to be delivered to her farm.

[82] On 29 July 2021, Mrs Sheen continued to document Ms Murphy’s calls. Ms Murphy received camp booking requests, phone calls from Mr Matschoss and multiple text messages. Ms Murphy told Mrs Sheen that she had booked in an excavator and arranged for soil to be delivered to her farm.

[83] Ms Murphy took leave over the next three days from Friday, 30 July 2021 to Tuesday, 3 August 2021 for her Farm Stay’s open day.

[84] On 30 July 2021, Mrs Barlow informed Mrs Sheen that she went through all the documents and emails on Ms Murphy’s work computer, where she then realised the extent to which Ms Murphy had been running her own business. There were personal documents saved on the work computer, such as court documents, bid food application, email to brokers, personal emails to her solicitors, accountant, loan applications, buying stock for the farm and horses. All these emails had been sent using the Barlow Earthmoving email and logo, and not her personal email.

[85] On 2 August 2021, Mrs Barlow asked Mrs Sheen to type up a termination letter for Ms Murphy. Mrs Barlow suggested that she would ring Ms Murphy and then email the termination letter to her as she was extremely busy at Tilpal with consultants the day Ms Murphy was due to return to work. Mrs Sheen offered to give Ms Murphy the letter personally on 4 August 2021, and then she could also drive Ms Murphy home following the termination.

[86] On 4 August 2021, Ms Murphy arrived at the office. Mrs Sheen told her that Mrs Barlow had asked her to give Ms Murphy a letter. Ms Murphy immediately asked, “Is Paula sacking me?” in which Mrs Sheen replied, “Yes”. Ms Murphy read the letter and said to her, “This is good, I’ve been contemplating leaving for a while I hate this job.” Mrs Sheen then drove Ms Murphy home.

Ms Murphy’s phone records

[87] Ms Murphy supplied a copy of her phone records as per my direction. On receipt of the phone records, Mrs Barlow spent a considerable amount of time summarising the calls and text messages made by Ms Murphy within the relevant period of time. Mrs Barlow annotated the records to the best of her ability, noting which communications were personal, business-related or unidentified. Ms Murphy was supplied with Mrs Barlow’s assessment of the records prior to the determinative conference.

[88] The following table records the number of text messages sent by Ms Murphy of each day from 12 July 2021 to her dismissal during her nominal work hours:

[89] For the period 1 June 2021 – 29 July 2021, the phone records demonstrate that there were 1260 text messages sent by Ms Murphy on personal/Farm Stay matters during working hours.

Determinative Conference

[90] At the determinative conference, Mrs Barlow provided additional evidence that she waited until Ms Murphy returned from holidays on 4 August 2021, after her business’ open day, to terminate Ms Murphy’s employment. She considered this was the right thing to do. In relation to the verbal first and final warning, she advised that in hindsight she could have issued a written warning. However, she believed she had a good relationship with Ms Murphy and did not think it was necessary. It is noted the Respondent employs 20 employees.

[91] Ms Murphy gave evidence confirming that she was told to put her phone away, not to run her business at work and was not to fill up the jerry cans and leave them at the back of the ute. In relation to the verbal warning, Ms Murphy stated that by 12 July 2021, she had lost a fair bit of respect for Mrs Barlow.

[92] Ms Murphy stated that five weeks after her dismissal she commenced work in a comparable role with comparable remuneration.

[93] At the determinative conference, Ms Murphy stated that the reason why she sent the email to her lawyer on 27 July 2021 in the manner that she did is because she was extremely hot-headed and was angry. She agreed that she should not have sent the email from her work email account. She agreed that she could have logged onto her hotmail account from her work computer and corresponded in that manner.

[94] Ms Murphy denied that she sent it from her work account to afford more weight to her communication. She stated that she was angry at her ex-husband and angry at her lawyers, but they had been her lawyers for four years, so sending it from the Respondent’s email account would not have afforded more weight to her communication.

[95] Mrs Barlow felt that Ms Murphy did send it from her work email address to provide more weight or importance to the communication. Mrs Barlow considered the email to be very hostile. The Respondent has used those particular lawyers in the past and would not discount using them again. She didn’t think it appropriate for Ms Murphy to have used her work email address to send that type of email.

[96] Ms Murphy considered that if Mrs Barlow was so concerned with her email, she should have acted straight away. Mrs Barlow responded that she did consider this to be the cherry on top of the enormous amount of communication Ms Murphy was having on her phone. She did not, however, wish to interfere with Ms Murphy’s upcoming open day on her Farm Stay, so she wanted to wait until that had concluded before she dismissed her.

[97] Mrs Barlow wanted for Ms Murphy to have her holidays and her open day. She also needed, she said, to have the termination letter prepared.

[98] Ms Murphy stated the following in answering questions from me:

“I’m not sorry I’ve left Barlows, I just think there’s a process and it wasn’t followed.”

[99] During the determinative conference the parties were taken to the text messages sent by Ms Murphy on 17 June 2021. Ms Murphy stated that she could not imagine that anybody could text that amount of times unless it was a thumbs up. I suggested to her that there was ferocious texting by her that day. I put it to her that she’s not 19 years old; she is a mature woman with a long work history. Ms Murphy agreed.

[100] Regarding the Coles shopping order on 28 July 2021 at 9:41am, Ms Murphy suggested she probably did an order the night before but chose to pay for it the next morning while at work. She did not provide any evidence of this.

[101] Ms Murphy submitted that she was treated differently because she wasn’t related to Mrs Barlow. She said others were allowed to use their phone, but it became an issue when she used her phone. She said during the hearing:

“Sack me! I’m glad she sacked me. Because the atmosphere there was not nice. I’m glad she sacked me. So yep, I’m glad she sacked me. Did she do it in the correct manner? Let’s move to that. Let’s move to the fact that yep, she sacked me. I was a bad girl. I’m happy to accept that. Let’s just move forward.”

[102] Ms Murphy stated that after the meeting of 12 June 2021 she only brought her phone out when she needed to print or scan documents and she told either Mrs Sheen or Mrs Barlow when this was occurring. The evidence, of course, demonstrates that this is not true.

[103] Mrs Barlow stated that she didn’t think Ms Murphy was using her phone as much as she was doing more work than she had been doing earlier. But having discovered the records, Ms Murphy was using her phone for an enormous period of time during the work day.

[104] I took the parties to the phone records of 14 July 2021, where Ms Murphy sent around 30 messages during work hours. Ms Murphy said there would be a good reason for it, but she doesn’t know what the reason is. I put it to her this was exactly what she was told not to do only two days earlier. I asked her if she had, by sending these many text messages, disobeyed a lawful and reasonable instruction of Mrs Barlow. She responded, “I didn’t respect her one little bit.” She said she can’t explain why she sent that many text messages during work time.

[105] I put to Ms Murphy that for some of the days in July 2021 she was not giving her full time and attention to the role. She responded, “No I wasn’t, no I wasn’t, I hated working there, I didn’t want to be there and the goal posts kept changing. I was pissed off I threw away a job I had been offered.” She agreed that she was not giving her full time and attention to the role and said her heart was not in the job.

[106] She said she wasn’t given a written warning and that is why she brought the unfair dismissal claim. I noted that she had made pledges to Mrs Barlow not to use her phone but had not met that pledge. She responded, “On the face of it, yes.”

[107] Mrs Barlow was asked why she did not issue a written warning to Ms Murphy. She responded, “I was straight forward with my concerns and I got straight to the point. She acknowledged her phone was crazy and she said she wanted to continue working for us. She’s 50 years old and she should have realised it wasn’t right.”

[108] Mrs Barlow said that Ms Murphy had been the one to install Ms Murphy’s email account so that Mrs Barlow could see it.

[109] In cross-examination, Mrs Barlow took Ms Murphy to her statutory declaration where she had sworn that she had put her phone away following the 12 July 2021 meeting. Mrs Barlow put it to her that the evidence demonstrated this was simply not true. Ms Murphy responded that she would only have used her phone for an emergency. She agreed that on face value, the telephone data looked bad for her.

[110] Mrs Sheen gave oral evidence that she considered that Ms Murphy was not working hard when she should have been, considering she was being paid more than Mrs Sheen. Mrs Sheen overheard all of the private things she was doing.

[111] Mrs Sheen became privy to the following activities Ms Murphy was engaged in; she was finalising her settlement, she was getting a loan for a caravan, ordering things for her Farm Stay, putting in a septic tank, and the things for the Farm Stay open day. She considered it to be unfair and was of the view she should be doing those private things after 3pm. Mrs Sheen was annoyed and could hear her in the background, and knew it was not the right thing for Ms Murphy to be doing.

[112] She stated that she could hear her receive a lot of phone calls. She considered that Ms Murphy was not young, and therefore shouldn’t need to be told that it wasn’t right.

[113] I asked Mrs Sheen if she takes a meal break when at work. She said no, she eats lunch at her desk and works through the meal break. She said she chooses to do it and gets paid an additional 30 minutes afterwards. She prefers not to sit in the table out the back by herself. She knows she is required by law to take a 30 minute meal break. She agrees that Mrs Barlow has told her to do so but she prefers to sit in the air-conditioning and work through her lunch.

[114] Mrs Barlow said she gives employees the choice and it gets them home earlier. She said it makes more sense. I informed Mrs Barlow that she is not protected by the law and must immediately look into this issue.

[115] The parties made oral submissions as I took them through the s.387 considerations. Both Ms Murphy and Mrs Barlow said that there was a valid reason for the dismissal. This was an appropriate concession made by Ms Murphy.

[116] Both parties agreed that there had been notification for the reasons for the dismissal.

[117] Ms Murphy stated that she had not been afforded an opportunity to respond. Mrs Barlow stated she had earlier informed Ms Murphy she could take annual leave or unpaid leave to attend to her personal affairs.

[118] There was no meeting held by Mrs Barlow to communicate the dismissal, so s.387(d) is not a relevant consideration. In relation to earlier warnings, Ms Murphy stated that she likes things in writing. She said she’s unable to talk back to somebody who is barking at her, which I take to refer to the meeting of 12 July 2021. Ms Murphy stated that she had lost respect for Mrs Barlow at this stage. She said following this meeting she did put her phone away. She stated that she told the people close to her not to call her at work and she asked Mrs Jones to take the calls relating to the Farm Stay. She conceded in the questionings from me that the texts made by her ramped up in late July 2021.

[119] Mrs Barlow submitted that Ms Murphy had been warned and she was very clear with her instructions.

[120] In relation to the size of the business and lack or HR expertise, Mrs Barlow stated that she had been undertaking the Respondent’s HR matters since 2004. She said she read pages from the Commission’s webpage to learn what she needed to do. She feels it was the correct procedure, however in hindsight, should have issued a written warning. She said she thought that they had a good relationship, and she is unsure why Ms Murphy is now stating that she didn’t respect her.

Consideration

[121] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:⁴

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[122] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.⁵ I will address each of the criteria set out in s.387 of the Act separately.

s.387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[123] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly’.”

[124] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁶

[125] I accept that Ms Murphy was verbally warned of her inappropriate conduct in the workplace on 12 July 2021, with Mrs Barlow effectively laying down the law as to what she considered to be acceptable behaviour. I accept that Mrs Barlow informed Ms Murphy that she was not to have her mobile phone on while at work because she had been abusing the privilege to do so.

[126] Mrs Barlow had received accurate accounts from Mrs Sheen as to the excessive usage of Ms Murphy’s private phone. Mrs Sheen certainly was not making this story up. The amount of text messages Ms Murphy made alone, let alone received and read, was extraordinary and unacceptable. On 14 June 2021, Ms Murphy sent 73 text messages between 8:17am and 12:48pm. Having seen how regularly she sent text messages that morning, it is impossible to believe that Ms Murphy did any work at all. She was constantly texting Ms Jemma Wyld, together with a Farm Stay guest.

[127] Ms Murphy followed this up the very next day with 34 text messages sent, mostly to Ms Wyld between 8:19am and 12:30pm.

[128] It appears to me that Ms Murphy did practically no work at all on 16 June 2021, having sent 76 text messages between 7:38am and 2:45pm. The days that followed demonstrated that Ms Murphy was, in my view, present at work, but largely preoccupied with her Farm Stay business. It was not uncommon for her to send 50+ text messages daily on account of her personal and Farm Stay matters.

[129] Ms Murphy was not only failing to perform her work to the reasonable standards required by Mrs Barlow, after 12 July 2021, she was deliberately failing to follow a lawful and reasonable direction to have her phone turned off while at work. It is clear that even if Ms Murphy did not make or receive phone calls for the week after 12 July 2021 after she had been warned by Mrs Barlow, she continued to send an extraordinary amount of text messages during work hours, in breach of the direction given to her.

[130] Ms Murphy’s evidence within her statutory declaration and her statements to the Commission that she considered she put her phone away for around one week after the 12 July 2021 meeting are not true. The table at [88] demonstrates that in the week following 12 July 2021, Ms Murphy continued to send an excessive amount text messages during working hours. Ms Murphy could not provide a suitable explanation for the evidence given by her when presented with the data from her mobile phone.

[131] Further, she used her business email address to send an aggressive email to her then-solicitors in relation to a family law matter on 27 July 2021. Doing so strikes me as very odd; why did Ms Murphy forward her email from her personal email to her business email and then send such an aggressive email from that account? During the determinative conference, Ms Murphy stated that there was no secret between herself and what was going on with her lawyer. It was never kept private from anybody at work. She said she was at the end of an ugly divorce.

[132] I agree with the Respondent on this issue and consider that Ms Murphy did so in an attempt to inflate her importance by noting her business title. I consider it did carry the risk of damaging the reputation of the Respondent. There is no reason why Ms Murphy could not have waited until she finished work and responded to her family law matter in her own time and from her own email account. If she had later wanted to print out such communication she could have then forwarded the email from her Hotmail account to her work email account. The email did not need to come from her work email account, and I consider Ms Murphy deliberately sent the hostile email from her work email account.

[133] One fortnight after Mrs Barlow’s directive to not attend to personal business during work time, Ms Murphy was using her work email account to chase up an order for a product for her Farm Stay business.

[134] It is not clear if Ms Murphy did, in fact, sign an employment agreement later in her employment period, however it appears it was certainly put before her. The material provided by the Respondent suggests it was electronically signed on 31 March 2021, however Ms Murphy’s evidence is that it was still being discussed some months later and perhaps backdated. Ms Murphy prepared the employment contracts for other members of staff, so presumably she knew of the obligation within each of the employment contracts.

[135] In any event, I am satisfied that a person of Ms Murphy’s age and her position ought to know that an employee is required to dedicate their full time and attention to their working responsibilities. Of course, where suitable, employers can afford 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. That is true if the employee’s work can be performed having access to their mobile phone or internet usage. Not all roles can be accommodated in this manner.

[136] Mrs Barlow’s evidence is that she would always afford employees the ability to have a reasonable amount of work time to attend to personal matters. In direct questioning from me, Ms Murphy confirmed that she did not devote her full time and attention to her duties, and the reason offered by her was that she had lost respect for Mrs Barlow.

[137] Mrs Barlow, through the Respondent, was paying Ms Murphy a substantial hourly wage of $48. If Ms Murphy was not interested in devoting her full time and attention to the duties required of her, knowing of the allowance to attend to pressing personal matters, she should have taken appropriate steps to end her employment. For the first time in the proceedings, Ms Murphy revealed during the determinative conference that she hated the job and didn’t respect Mrs Barlow and that is why she didn’t dedicate herself to the role.

[138] Regarding the Coles online order made by Ms Murphy, I do not accept her evidence that she prepared the order the night before and simply paid for it the next day at work. Mrs Sheen’s evidence that she saw Ms Murphy ordering online is preferred over Ms Murphy’s evidence. Ms Murphy’s evidence was inconsistent in many respects.

[139] I am satisfied that there were numerous valid reasons for the dismissal including:

(a) Ms Murphy’s extraordinary amount of text messages sent by her during work hours throughout her employment, and particularly since 12 July 2021;

(b) Ms Murphy’s failure to follow a lawful and reasonable instruction given by Mrs Barlow on 12 July 2021 to not use her mobile phone during work hours;

(c) Ms Murphy’s failure to dedicate her full time and attention to her work responsibilities and her conduct in wasting a significant amount of the Respondent’s time on her personal business matters; and

(d) The hostile email sent by Ms Murphy to her solicitors on 27 July 2021 from her work email account when there was no suitable explanation for sending the email from her work email account.

s.387(b) - Notification of the valid reason

[140] Having regard to the termination letter issued to Ms Murphy, I am satisfied Ms Murphy was informed of the reasons for the dismissal.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[141] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 7

[142] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 8 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.9

[143] Ms Murphy was not provided with an opportunity to respond to the reason related to her conduct forming the reasons for the dismissal. Mrs Sheen volunteered to hand to Ms Murphy the termination letter which had been prepared some days earlier, and then drive Ms Murphy home. Mrs Sheen considered this was a more appropriate way to inform Ms Murphy of the dismissal, rather than Mrs Barlow’s suggestion of emailing the letter to Ms Murphy.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[144] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[145] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 10

[146] There was no relevant meeting and therefore no unreasonable refusal to allow a support person.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[147] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:

•  identify the relevant aspect of the employee’s performance which is of concern to the employer; and

•  make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.¹¹

[148] I do not accept Ms Murphy’s evidence that she considered the conversation of 12 July 2021 to be no more than a “talk”. I accept that Mrs Barlow made it very clear to Ms Murphy that she must refrain from having her mobile phone on at work as she was not performing her duties. Ms Murphy understood that and sent a confirmation email.

[149] I am satisfied that the directive given by Mrs Barlow was lawful and reasonable and firmly issued to Ms Murphy. Further, I accept Mrs Barlow’s evidence that she said to Ms Murphy, words to the effect of, “if you want to continue working here” the phone must be turned off during work time. Again, Ms Murphy’s confirmation email notes that it could only be turned on during “smoko”.

[150] Ms Murphy’s oral evidence reveals that she was being firmly spoken to by Mrs Barlow, as she considers she was told what to do and Mrs Barlow was “barking” at her. Ms Murphy’s evidence to the Commission is that she understood Mrs Barlow’s directive; the mobile phone needed to be put away. Ms Murphy’s evidence is that she did put her mobile phone away, as directed, however the phone usage data demonstrates this is not true.

[151] Curiously, Ms Murphy’s evidence is that she understood Mrs Barlow’s directive, she says that she complied with the directive (when she did not), and she now submits that the directive does not constitute a proper warning to her.

[152] There is no doubt that the Respondent should have issued to Ms Murphy a written warning in relation to her conduct. It is always preferable to have clear, undisputable evidence between parties and for Ms Murphy to know exactly the matters she needed to address in order to prevent a dismissal if she repeated her conduct. I accept, however, that a firm oral warning was issued to Ms Murphy by Mrs Barlow. I accept that Mrs Barlow made it known to Ms Murphy during this discussion that her employment was at risk if she did not comply with the directive issued to her.

s.387(f) - Whether the employer’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[153] The Respondent is not a large organisation, employing only 20 employees. Where Mrs Barlow stated that she has been in charge of its HR function since 2004, I consider that she is quite unsophisticated in the discipline. This is apparent with her willingness to allow employees to work during their meal breaks so that they can go home early because it is what, she has been informed, is the employees’ wish. She has been cautioned by the Commission with respect to this practice.

[154] I do consider that the Respondent’s size impacted on the procedures followed and that the Respondent’s absence of a dedicated human resource management specialist impacted on the procedures followed.

s.387(h) - Other matters

[155] Ms Murphy had only around eight months’ service.

Is the Commission satisfied that the dismissal of Ms Murphy was harsh, unjust or unreasonable?

[156] I have determined that there was a valid reason for the dismissal.

[157] I consider that Ms Murphy was informed of the reason for the dismissal.

[158] I am satisfied Ms Murphy was not given an opportunity to respond to any reason related to her conduct.

[159] There was no unreasonable refusal by the Respondent to allow Ms Murphy a support person because no meeting occurred.

[160] The reason for the dismissal was performance. Ms Murphy was orally informed of a warning, however she was not issued with a written warning.

[161] The Respondent’s small size (albeit not a small business in accordance with the Act) and the absence of a dedicated human resource specialist impacted on the procedures followed.

[162] I have had regard for the short period of service Ms Murphy worked with the Respondent.

[163] I have made findings in relation to each matter specified in s.387 as relevant.

[164] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 12

[165] The matters for consideration in s.387(c), together with s.387(e), (where a verbal warning was issued and not a written warning), which might weigh in favour of a finding that the dismissal was harsh are, however, to be balanced against the seriousness of the reason why Ms Murphy was dismissed. The telephone data does not lie. Despite Ms Murphy’s assurance that she would turn her phone off during work time, Ms Murphy spent a very considerable amount of time on her mobile phone sending text messages during work time. The telephone data only records the text messages sent by her. As I stated to Ms Murphy during the determinative conference, she must have been receiving text messages and she would have taken time from her duties to read those text messages in order for her to respond so voluminously.

[166] The failure by the Respondent to allow Ms Murphy an opportunity to respond to the matters it could have raised with her in early August 2021 would no doubt have had some harsh impact on Ms Murphy. However, this does not weigh so heavily when account it taken of the seriousness of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. When presented with the telephone data of outbound text messages only, Ms Murphy could not provide any suitable explanation to the Commission, so she would have been unlikely to have provided any suitable explanation to the Respondent in early August 2021 if discussions had been held with her.

[167] I am not satisfied that the dismissal was unjust, nor was dismissal disproportionate or otherwise unreasonable considering the conduct engaged in by Ms Murphy and her deliberate failure to follow a lawful and reasonable direction issued by the Respondent. The dismissal was not unreasonable.

[168] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Ms Murphy was not harsh, unjust or unreasonable.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR738603>

 1   See ‘Annexure 013’ of Mrs Barlow’s Witness Statement.

 2   See ‘Annexure 014’ of Mrs Barlow’s Witness Statement.

 3   See ‘Annexure 015’ of Mrs Barlow’s Witness Statement.

4 (1995) 185 CLR 410, [465].

5 Sayer v Melsteel [2011] FWAFB 7498 at [20].

6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 7   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 8   RMIT v Asher (2010) 194 IR 1, 14-15.

 9   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 10   Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

11 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

 12   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].