Phone use in the workplace – is it a termination event?

Managing personal mobile phone use continues to present challenges for employers, particularly where it begins to impact productivity or workplace safety. This is especially critical in industries such as construction, where employees are often engaged in hands-on work and lapses in attention can create serious health and safety risks.

Two decisions of the Fair Work Commission highlight how excessive phone use may justify dismissal in certain circumstances, and the importance of following a fair process.

Recent caselaw:

Excessive phone use on site

In Mr Sam Murray v The Trustee for SDM Trust [2026] FWC 896 (24 March 2026), a minor apprentice employed by a small roofing business was dismissed for repeatedly using his mobile phone during work hours.

Over an 18-month period, the employee was observed using his phone “over and over again,” including while on site. He was also described as “hiding and bludging,” and the employer received multiple client complaints. The employee had been issued a final warning regarding his conduct prior to dismissal.

The Commission dismissed the unfair dismissal application, finding that the employer had complied with the Small Business Fair Dismissal Code. In particular, the employer:

1. Provided the employee with a reason that he was at risk of being dismissed.
2. Provided a warning, in this case verbally (but preferably in writing) that there is a risk of dismissal if there is no improvement, and a reasonable chance to respond to the warning.
3. Provided the employee with a reasonable chance to rectify the problem

This case reinforces that, where a small business follows the Code, dismissal for repeated misconduct of this kind can be lawful.

Excessive phone use in the office

In the case of Lynda Murphy v Clear Day Pty Ltd [2022] FWC 373 an office-based employee sent more than 1,000 personal text messages during work hours and regularly attended to a separate business while at work.

Examples of her conduct included sending 34 messages in one morning and 76 the following day. After being directed to turn off her phone during work hours, she sent a further 73 messages within 4.5 hours shortly thereafter.

Her employment was terminated for ongoing excessive phone use and failure to follow a reasonable direction. Although there were procedural deficiencies in how the dismissal was carried out, the Commission ultimately found the dismissal was not unfair given the seriousness of the conduct.

The Commission observed that the level of phone activity was incompatible with the proper performance of her role and indicated that little meaningful work could have been completed during those periods.

Key Takeaways for employers:

• “Excessive” use is context-specific
  There is no fixed threshold for what constitutes excessive mobile phone use. The key consideration is whether the behaviour interferes with an employee’s capacity to perform their duties or comply with reasonable directions.
• Workplace safety is a critical factor
  In high-risk environments, such as construction sites, phone use may pose a direct safety hazard, strengthening the justification for disciplinary action.
• Clear direction and policy are essential
  Employers should ensure expectations around mobile phone use are clearly communicated through workplace policies and reinforced with employees.
• Follow a fair and compliant process
  Particularly for small businesses, compliance with the Small Business Fair Dismissal Code is critical. This includes:
  • Providing a valid reason for potential dismissal
  • Warning the employee that their job is at risk
  • Giving the employee an opportunity to respond
  • Allowing a reasonable chance to improve
• Serious misconduct may outweigh procedural flaws
  As seen in Murphy, significant misconduct may justify dismissal even where there are some procedural shortcomings—although best practice is always to follow a fair process.

If you have any questions about your rights as an employer or your obligation when considering the termination of an employee, please contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au