Another Unfair Dismissal Win - Mobile Phones and Policy

Recently, a member of DJMIR had to face an unfair dismissal claim by a staff member, dismissed for using her mobile when she was supposed to be supervising and engaged with children.

THE EXCUSE

The employee maintained that she was using her mobile as an access point for various educational tools to enhance the educational experience for children ...... yeah right !!!

One witness advised that she had been texting and on telephone calls for almost 3 hours.

DON'T FORGET THE REGULATIONS

The Education and Care National Law and Regulations is very clear about the responsibility of staff to maintain a healthy and safe environment for all children in a services care. Distractions such as mobile phones, although not specifically named in the legislation, provide a tool where staff could neglect their obligations placing children at risk of harm or hazard.

THE POLICY

Make sure you have well developed policies and procedures for staff to follow. In this case our member had a well developed mobile phone policy that specifically forbade employees to have their mobiles with them when they were undertaking activities.

PROBLEMS WE OVERCAME

Firstly, the employee had done this (unfair dismissal) to another employer before and had been paid a settlement amount, so she was very sure of herself. The mobile phone policy was in place but clear evidence showed that it had not been previously enforced when breached in minor ways on multiple occasions. Sketchy as to the employee being aware her ongoing employment was in jeopardy or not or that she had been given a reasonable opportunity to respond, this then falls short in procedural fairness.

THE OUTCOME WE NEGOTIATED

BOTTOM LINE

Enforce policy when it is breached otherwise the power of that policy to dictate staff behaviour is diminished and in time, becomes ineffective.

DON'T FACE IT ALONE

If you are struggling with staff performance issues, call DJMIR on (02) 61 500 800 to help get them back on the right track or, if necessary, terminate their employment fairly and minimise your exposure to successful unfair dismissal claims.