A common issue faced by employers is when employees seem unable to detach themselves from their mobile phones when they should be working.
Not only is this an unwanted distraction, but it can also negatively impact productivity, engagement and collaboration in the workplace. It is for these reasons why it is important for employers to set clear behavioural expectations around appropriate mobile phone use during working hours.
In Murray v The Trustee for SDM Trust [2026] FWC 896, the Fair Work Commission (FWC) was required to consider the dismissal of an employee for his inappropriate mobile phone use while at work.
The employee worked as an Apprentice for SDM Roofing (the Employer).
Since he commenced employment in July 2024, the employee was observed using his mobile phone at inappropriate times and when he should have been working. The Employer spoke to the employee on numerous occasions about his mobile phone use and its expectations of him, including what was and was not appropriate phone use at work.
In or around May 2025, a client reported that it had observed the employee using his phone “over and over again” and “hiding and bludging”.
The employee was issued with a formal warning about this incident and was advised that if anyone from the team or a client saw the employee “bludging” again, his employment would be terminated.
Despite this warning, the employee continued using his mobile phone at work when he should have been working. The Employer continued raising these issues with the employee and counselling him on appropriate mobile phone use.
Then, in December 2025, a supervisor went to check on the employee’s progress on a job and observed him walking away from the worksite with his phone in hand, towards the direction of his car. The employee returned around five minutes later, still with his phone in hand. The supervisor directed the employee to pack up his tools and go home.
Later that day, the Employer sent an email to the employee stating that his employment was terminated due to his continued mobile phone use and cited the incident that day, describing him as “hiding” in his car or behind his car to use his mobile phone when he should have been working.
The employee subsequently filed an unfair dismissal application with the FWC.
The FWC noted that as a small business, the Employer was required to comply with the Small Business Fair Dismissal Code (the Code). The Code provides that for dismissals other than for serious misconduct, there are several elements that must be fulfilled to demonstrate compliance.
Ultimately, the FWC held that the dismissal was not unfair because the Employer had complied with each of the elements set out under the Code.
The FWC considered the reason relied on in both the warning and on termination (i.e. inappropriate mobile phone use) constituted a valid reason for dismissal based on the employee’s conduct to perform his role.
The FWC also found that the employee was provided with ample opportunity to rectify his behaviour but did not do so.
Specifically, the evidence showed that following the warning in May 2025, the employee continued to use his mobile phone and was counselled by the Employer in relation to this behaviour but showed no improvement. For the FWC, this indicated that the Employer continued to tolerate the employee’s behaviour in such a way that he was provided a chance to rectify it but chose not to do so.
The FWC was critical of the Employer terminating the employee by email while sighting a second-hand account, describing it as abrupt and a “less than satisfactory way” to dismiss a young apprentice.
However, the FWC did not consider the dismissal to be inconsistent with the Code in circumstances where for some months the employee had been provided with a reasonable opportunity to rectify the conduct raised with him in a formal warning and on numerous occasions thereafter.
As the dismissal was consistent with the Code, the FWC held that the dismissal was not unfair and made orders dismissing the application.
Setting clear behavioural standards around appropriate mobile phone use in the workplace will go a long way in ensuring employees are utilising their working hours productively. If an employee fails to uphold these standards, then it may be grounds for disciplinary action, as seen in this decision.
Of course, the behavioural standards around mobile phone use will vary depending on the particular workplace. For example, if the employer operates in safety-critical workplaces, a “zero-tolerance” policy may be appropriate. Conversely, if employees are in regular contact with clients or customers using their mobiles, a distinction will need to be made between business use and reasonable personal use during work hours.
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