Conduct and Performance

The Boss is Out – Let’s Chat: Mobile Phones in the Workplace

The mobile phone is now ubiquitous and almost everyone has one. Like parents with teenagers, who struggle to engage with their children who are constantly on the phone, how do employers ensure that employees are not placing themselves and the business in danger by using their mobile devices?

Many employers struggle with employees who use their mobile phones excessively during work hours or employees making excessive personal calls on their mobile phones while at work. Employers should also consider the safety implications of employees who are required to drive as part of their duties, and the use of mobile devises.

While a mobile phone may be of significant benefit to organisations by providing greater access to employees, it isn’t always ideal. There are number of legitimate business reasons any employer may want to restrict the use and even the possession of mobile devices in the workplace. These may include:

–          The safety of employees when driving or operating vehicles;

–          The safety of employees when operating equipment and machinery;

–          Promoting productivity, quality and efficiency;

–          Preventing inappropriate behaviour;

–          Maintaining confidentiality and protecting important business information; and

–          Ensuring privacy of employees and others.

Safety and Productivity

The constant growth in technology, smartphones and highly addictive applications like Pokemon Go and various other social media crazes are increasingly impacting and affecting workplaces across Australia. Needless to say, while a few minutes won’t hurt, excessive mobile phone use can affect many people’s productivity and raises a number of WH&S concerns for organisations.

There have been numerous reports over the years indicating a steady increase in injuries and accidents in the workplace as a result of smartphone distractions. Employers should pay particular attention to workplace areas thought to be high risk due to traffic or machinery. Any employees operating equipment, machinery or any type of vehicle that are distracted by text messages, telephone calls and checking social media sites such as Facebook increases the risk to employees and the public generally. As a result, some organisations have gone as far as banning mobile phones during work time altogether.

Not only do employers need to consider the dangers of employees being distracted while in the workplace but in certain circumstances a worker does not need to be at work to suffer a work-related injury. In one interesting Queensland case, a trucking manager who was injured when he slipped getting out of a shower at home to answer his work phone won his appeal for workers’ compensation. Mr Ziebarth was showering when he heard his work mobile ringing on his bed side table. Mr Ziebarth moved out of the shower and slipped on wet bathroom tiles falling forward. He claimed he had previously been chastised by his employer for not answering his work phone and felt obliged to answer it as soon as it rang while on call. As a result of the fall Mr Ziebarth sustained a disc protrusion. The Queensland Industrial Relations Commissioner held that his injury was work-related, because he was on call and was expected to answer his work phone.

Confidentiality and Security

The issue of protecting an employer’s confidential information, client contacts and other valuable information becomes increasingly important with the introduction of mobile phones, ipads and computers. What happens if an employee has been with your business for a number of years and has developed long standing relationships with clientele who directly contact the employee by mobile phone. Most employees with smartphone capacity, also receive work emails on their personal phone as well as various other work-related confidential information. The security of this information is often overlooked by employers and very little is done to ensure that the confidentiality of such information is properly protected, other than relying on the smart phone’s limited security and the employee to implement such security features.

If the employee leaves the organisation these matters can create significant difficulty and risk for the employer. If the employee has been using their personal mobile phone and telephone number the employer has no rights over the mobile phone and little ability to stop clients from contacting that employee, other than ensuring the employee has enforceable post-employment obligations. In addition, there is little an employer can do to ensure confidential documents are deleted and email correspondence removed from the phone. In such circumstances, it would be advisable that before an employee is entitled to access work emails and the like on a personal mobile phone they acknowledge that at the conclusion of the employment, they will provide the phone to the employer to ensure all company information is removed.

One way to ensure that the employer has control over a mobile devise is to provide employees with company phones. The organisations would then have ownership of the mobile device and as such can make directions regarding the use of the device and also require its return on termination of employment. In addition, employers may, subject to notifying employees, then track the device and monitor all aspects of its usage.

The Mobile Phone Policy

It is imperative that employers are proactive in having appropriate IT and mobile phone usage policies implemented in the workplace. An appropriate policy should set clear guidelines on what is expected of employees. The key in dealing with these issues lies in communicating what the expectations are regarding mobile phone use, but also keeping in mind that for many employees, the mobile phone forms an integral part of their daily lives. A mobile phone policy should address the specific and unique nature of your workplace as well as the reasons for the restrictions on use and possession. The policy should also clearly address circumstances when an employee is required to use a mobile phone for work purposes and when it is appropriate to use mobile phones for personal use (i.e. during breaks and before and after work). Further, the policy should also indicate the business’ guidelines for employees that are engaged in driving company vehicles. Given the inherent risks associated with driving and mobile phone use, we recommend a policy that makes it a terminable offence to use a mobile devise while driving, regardless of hands free capability. Notably, policies will be less effective if change does not come from the top down, so a good place to start is to ensure management lead by example.

Recent Decisions

The importance of clear policies that are updated and provided to employees can be demonstrated through the following two cases:

In Applicant v NBN Co Ltd [2015] FWC 7412 an employee of NBN Co incurred $23,000 in charges on his employer-provided mobile phone by calling his family in India and then refused to agree to the company’s proposed repayment plan. Deputy President Gooley stated the mere existence of a debt does not provide an employer with a valid reason to dismiss an employee and requiring an employee to repay a debt could be ruled unfair if there is a legitimate basis for the debt to be disputed. Initially the worker repaid $7,500 but then refused to enter into any of the NBN repayment schedules offered to him. At first, the worker argued that he could not afford the repayments but he later challenged the requirement to pay the remaining amount because he said he had not been aware of NBN’s excessive use policy for mobile phones. Deputy President Gooley stated there was insufficient evidence to show that the worker had been aware of the policy, but he clearly had been aware of the IT equipment policy, which provided NBN with the right to recover call charges where blatant misuse was identified. She also stated that NBN had failed to abide by its own policy to notify employees if it detected more than $75 per month of non-work calls. The Deputy President stated that if the worker had been advised earlier he may not have accrued such a significant debt. However, the Commission ultimate observed that NBN had spent nine months trying to negotiate with the worker and had changed its position significantly in that time to allow the worker more time to repay the debt. It was further noted that had NBN not responded as it did she may have considered the termination harsh but NBN acted reasonably while unfortunately the employee’s position hardened.

Alternatively, in Perry v Hillsbus Co Pty Ltd [2016] FWC 1901 the employer dismissed a bus driver after receiving a complaint from a commuter alleging that the driver appeared to be looking at his phone while driving. Hillsbus confirmed the allegation when it reviewed CCTV footage. The company policy reflected the position that the use of mobile phones by drivers was illegal as per the NSW road rules. The policy specifically stated “under no circumstances are employees who are in control of a bus or maintaining buses permitted to use a mobile phone or similar devices (including the use of bluetooth earpieces, etc) for any function or purpose”. The driver, however, claimed he was using an old mobile phone as a music player and the phone had no sim card. Senior Deputy President Drake determined that despite being used as a music player, it was still a mobile phone and its use was prohibited by the regulation. She found that while Hillsbus had a valid reason for dismissing the driver, the conflicting policies and ambiguity arising from inadequate information and inadequate explanation by Hillsbus as to its policy on the use of music devices while driving made the dismissal harsh. Hillsbus was ordered to reinstate the driver and compensated him for lost wages.

Employers should carefully consider whether they provide mobile phones to employees, or allow employees to use their own devices for work purposes. In all circumstances, employers need to be clear and unambiguous regarding the appropriate use of mobile devices and the consequences for failing to adhere to these requirements.

In light of the above authorities, it is also essential for businesses to remember to review and consider whether their company policies create enforceable and clear obligations and consider to what extent their policies are binding on the company and the employee. It is recommended that employers seek advice on drafting and implementing appropriate policies specific to their workplace.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

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