Boss who told worker to get off his phone ordered to pay $1350

Southern Fencing, a Queenstown-based company in New Zealand, has been ordered to pay an employee NZD 1,500 (approximately AUD 1,350) after its owner, Michael Andrews, took issue with the employee's frequent mobile phone use. The reason for the penalty is that Andrews put the employee on a trial period without a signed employment agreement.

In October 2023, Reihana McGregor applied for a job after Andrews posted a recruitment advertisement. McGregor had no prior experience in fence installation, but Andrews offered him a trial opportunity to see if he was a good fit. They reached a verbal agreement that McGregor would undergo a trial period of a few days, and if he showed ability and willingness, he would be offered full-time employment. This was not a formal 90-day trial period as stipulated by the Employment Relations Act.

McGregor began working at Southern Fencing on October 24, 2023. Initially, Andrews thought McGregor's work performance was good, but he was concerned about the amount of time McGregor spent vaping or using his mobile phone. He told McGregor not to vape, but did not interfere with his phone use. The following week, Southern Fencing was working on a retaining wall on a property near Arrowtown, and McGregor mainly worked with another Southern Fencing employee. That employee informed Andrews that McGregor had been using his phone extensively when Andrews was not present. Andrews became increasingly dissatisfied with McGregor's phone usage.

On November 3, 2023, on the 12th day of McGregor's trial period, tensions escalated. The two sides gave conflicting accounts of what happened, and a hearing was held at the Employment Relations Authority late last year. McGregor claimed that he received an important phone call at the time, so he decided to answer it. Andrews saw him using his phone and yelled at him to "get off the phone." McGregor claimed that he told Andrews it was an important call and he needed to take it, but Andrews responded by telling him to "get out" and that people like him would never learn and should stay in Invercargill. McGregor stated that he then left the workplace and did not return. Andrews described a different version of events. He told the Authority that he saw McGregor using his phone and yelled at him to put it down. He said McGregor mocked him and then walked away. He asked McGregor who he was talking to, and McGregor replied that it was his girlfriend and they were discussing weekend plans. Andrews said he did not pursue the matter at the time and continued working, but 30 minutes later, when McGregor was using his phone again, he yelled at him again to put it down, which led to McGregor mocking him and then leaving the workplace. Andrews stated that he never swore at McGregor.

Shortly after McGregor left the workplace, Andrews sent him a text message that read: "I pay you to work, not sit there on your phone. I don't accept rubbish, people like you never learn." McGregor replied with a text message: "I was on an important phone call," and then another: "You were yelling at me." The next day, Andrews sent McGregor a text message: "I am sorry about the way I spoke, no excuse, but last week was really hard at home. I am willing to give you another chance, but you can't answer the phone at work." McGregor responded: "No, I'm good, to be honest I don't want to work for people like you. You fired me and now you want me to come back to work because you realize you have put more pressure on yourself." In further text exchanges that day, McGregor admitted that he used his phone for an hour that day. Then in another text exchange, he called Andrews "rubbish" and said he had not been on his phone at all, but "left once there was an issue."

Southern Fencing paid McGregor for his working hours and accrued holiday pay on November 9, 2023. McGregor filed a complaint with the Authority, claiming that he was dismissed by Southern Fencing and questioning whether the dismissal was justified. Authority member Peter van Keulen found Andrews' account of the events leading to McGregor's departure from the workplace to be more credible. "Overall, McGregor's attitude is that if he can justify himself as being right, he can do as he pleases, and he will stick to that - even in the face of evidence, he is somewhat combative in that regard," van Keulen said. "What I can determine from McGregor's messages and oral evidence is that he is more likely to continue doing what he thinks he can justify, rather than comply with instructions he doesn't think are correct. This is not consistent with someone who took 'get out' literally as meaning leave, you're fired," he said. Van Keulen said he could not conclude that Andrews used the words "get out," and that "there was no express conduct by Andrews that amounted to sending [McGregor] away." He stated that McGregor had failed to prove that he was dismissed by Southern Fencing.

However, van Keulen found that Southern Fencing was fined $1,500 for failing to provide McGregor with an employment agreement before he started work, which the company must pay to McGregor. "Although Southern Fencing wanted to help McGregor and 'give him a chance', it was obligated to formalize the employment relationship and meet the requirements of the Act. Despite the mutual intention of the parties as to the 'trial' nature of the relationship, this was still unavoidable," van Keulen said.