Fair Work dismisses dad’s plea to carry phone for sick kids

The Fair Work Commission has dismissed a Melbourne warehouse worker’s request to carry his mobile phone at work in order to be contactable for his kids’ medical emergencies. The worker, whose kids suffer from severe asthma and anaphylaxis, was told by his doctor to carry his phone “at all times.” He submitted a Fair Work flexible working arrangement after his employer told him to stop carrying his phone, despite having done so for three years without incident. In a first, the Commission ruled that the mobile phone request fell under the statutory definition of a flexible working arrangement. However, it decided the employer’s safety policy amounted to reasonable grounds to refuse the request.

In this article, we look at the events of this Fair Work flexible working arrangement case: Thanh Long Duong v DHL Supply Chain (Australia) Pty Ltd [2026]. Later, we look at the Fair Work unfair dismissal case of an apprentice roofer who was fired for repeatedly “bludging” on his phone.

Case Summary: Thanh Long Duong v DHL Supply Chain Pty Ltd [2026]

• Jurisdiction: Fair Work Commission Victoria
  
• Key employee argument: He should be permitted to carry his personal phone while working so he could be notified of any emergency involving his children, who suffer from severe asthma and anaphylaxis.
  
• Key employer argument: The company’s policy prohibited personal devices in operational areas. The need to reduce risk of warehouse collisions constituted reasonable grounds to refuse the request.
  
• Fair Work outcome: The employer had reasonable business grounds to refuse the request for safety reasons.

Read More: Parental Discrimination and The Reality Many Workers Face After Becoming Parents

Worker carried phone informally for years before formal ban 

Thanh Long Duong has worked as a storeworker at a DHL warehouse in Melbourne since 2018. His duties involve operating machinery such as forklifts. Mr Duong’s two school-aged children suffer from severe asthma and anaphylaxis. Medical records provided to the Fair Work Commission showed hospital presentations for both conditions since 2020.

DHL has long prohibited employees from carrying personal mobile phones in operational areas. This prohibition was formalised in 2022 with the company’s electronic devices policy, but a general rule to this effect had existed since at least 2021. In July 2021, Mr Duong obtained a letter from his doctor that said he must have his phone on him “at all times” in case of updates about his children’s conditions. He showed this letter to his manager, and for the next three years he carried his phone at work without incident.

In December 2023, DHL directed Mr Duong to stop carrying his phone. He was offered an alternative system, whereby his wife or his children’s school could contact DHL, which in turn could contact him. Mr Duong told the Fair Work Commission that this system had occasionally worked imperfectly. However, the Commission found the specific examples provided showed contact was ultimately made.

Formal request refused following dedicated risk assessment

On 7 November 2024, Mr Duong submitted to DHL a formal flexible working arrangement request under section 65 of the Fair Work Act 2009. He sought permission to carry his phone on silent or “do not disturb” mode. It would be set to ring only for calls from his wife or his children’s school, and he would leave the floor safely before answering.

DHL subsequently conducted a risk assessment. This identified a “possible” likelihood of a “major” consequence should a phone call cause an emotional reaction leading to a collision with machinery. On 9 December 2024, DHL formally refused the flexible working arrangement request. The company cited its safety obligations under Victorian workplace health and safety law. Mr Duong then escalated his request to the Fair Work Commission.

Why did the worker argue his request should be granted?

In his Fair Work flexible working arrangement claim, Mr Duong argued:

• He had carried his phone at work for approximately three years without any safety incident occurring.
  
• He used forklifts infrequently, and dangerous goods were stored in a different part of the warehouse to where he normally worked.
  
• Under his proposed arrangement, his phone would only ring for calls from his wife or his children’s school, and he would safely leave the floor before answering.
  
• DHL had failed to properly consider the mental health impact of refusing his request, including the stress it caused him.

Why did Fair Work agree with the flexible working arrangement refusal?

The Fair Work Commission handed down its decision on Mr Duong’s flexible working arrangement claim in August 2026. It had to decide if DHL’s ban on mobile phones fell under the definition of a “working arrangement” as per section 65 of the Fair Work Act 2009.

The Commission found, “with some hesitation,” that the ban was sufficiently connected to work to constitute a working arrangement. It was therefore capable of being subject to a flexible working request. On the merits of Mr Duong’s request, the Commission found DHL had reasonable business grounds to refuse it. This was based on the following findings:

• It had “very real reservations” as to the connection between Mr Duong’s request and the caring circumstances he relied upon. It was noted that his wife could and did receive calls from their children’s school, and Mr Duong was not himself providing medical care by phone.
  
• Medical evidence suggested the primary purpose of the request was to alleviate Mr Duong’s anxiety. While this was “entirely understandable,” it did not have a sufficient connection to the statutory grounds relied upon.
  
• DHL had genuinely discussed the flexible working arrangement request and had proposed an alternative contact system.
  
• DHL’s safety policies were “not arbitrary” and had been in place for some time. The distraction caused by using a mobile was “self-evidently so well known it does not need stating.”

‘Hiding and bludging’: Apprentice sacked over phone loses unfair dismissal claim

In Sam Murray v The Trustee For Sdm Trust [2026], an apprentice roofer was fired for repeatedly using his mobile phone while he should have been working. The apprentice argued his termination of employment was unfair as he had been fired via email and was not given an opportunity to plead his case beforehand. However, the Fair Work Commission found his inappropriate phone use was a valid reason for his sacking, noting the conduct had continued despite warnings. The employer was found to have complied with the Small Business Fair Dismissal Code, and the Fair Work unfair dismissal claim was thrown out.

Case Summary: Sam Murray v The Trustee for SDM Trust [2026]

• Jurisdiction: Fair Work Commission Victoria
  
• Key employer argument: The apprentice had been repeatedly warned about his inappropriate mobile phone use. He was given a formal final warning and continued the same conduct.
  
• Key employee argument: He had been unfairly sacked as he had been fired by email, based on a second-hand account of his conduct.
  
  
• Fair Work outcome: Justified dismissal. The apprentice’s conduct, which continued after several warnings, was a valid reason for termination of employment.

Apprentice repeatedly caught on phone during work hours

Sam Murray started working as an apprentice roofer for Tasmania-based SDM Roofing in July 2024. As he was a minor at the time, his father signed his employment contract on his behalf. During Fair Work unfair dismissal proceedings, Mr Murray admitted that he had used his personal mobile phone at work on numerous occasions when he should not have. This resulted in his supervisors having a word with him several times. Mr Murray told the Commission that he had briefly tried leaving his phone in his tool bag to manage the issue. However, he stopped doing this as he needed to be reachable for work calls.

On 7 May 2025, SDM’s owner gave Mr Murray a formal “final warning” after a client reported observing Mr Murray on his phone “over and over again” and “hiding and bludging.” The warning stated there was “zero grey area from here on in.” Mr Murray was told that if anyone saw him “bludging again,” he would face termination of employment.

Unfair dismissal VIC: Final incident led to termination of employment by email

In early December 2025, Mr Murray was directed by his foreman to prepare a chimney for flashing. When the foreman checked on Mr Murray’s progress, he could not find him at the work site. Later, he spotted him walking up the street towards his ute with his phone in hand. Around five minutes later, the foreman saw him walking back, still holding his phone. When Mr Murray noticed he was being observed, he put his phone away and said “sorry.” The foreman directed him to pack up his tools and go home.

Later that day, SDM’s owner dismissed Mr Murray in an email. He wrote that Mr Murray had been “hiding in his car or behind his car again on his phone” while he should have been working. The email also referenced a separate incident the previous Friday, where a job expected to take two hours had instead taken five. Mr Murray replied a few days later, disputing the allegation. He said that he had gone to his car to put away his pipe gear and was on his phone only on his way back to the job site.

Mr Murray told SDM’s owner that “you didn’t really give me a chance at all to defend myself.” The owner responded the next day, admitting he did not know exactly what had occurred, only what he had been told. He suggested they “catch up in person and have a proper chat about what happened here.” Mr Murray did not reply.

Why did the apprentice argue unjustified dismissal?

Mr Murray pursued a Fair Work unfair dismissal claim with the assistance of his father. They argued:

• He was dismissed abruptly by email, based on a second-hand account, without being given a proper opportunity to respond before the decision was made.
  
• SDM failed to properly inform Mr Murray senior or the apprentice training provider of concerns about his son’s conduct before deciding on termination of employment.
  
• Mr Murray, who has a learning difficulty, had not been provided with sufficient support during his employment.
  
• He was not offered the opportunity to have a support person present during discussions about his conduct.

In response to the Fair Work unfair dismissal claim, SDM Roofing maintained that Mr Murray’s conduct had been a persistent problem addressed with him repeatedly. The business said he had been given a clear formal warning in May 2025, and that his continued phone use despite justified termination of his employment.

Why did Fair Work rule the dismissal was justified?

Mr Murray’s Fair Work unfair dismissal claim was heard by the Fair Work Commission in March 2026. It found that SDM, as a small business employer, had complied with the Small Business Fair Dismissal Code. Mr Murray’s claim was therefore thrown out based on the following findings:

• Mr Murray himself conceded the reason he was given for his termination of employment was “valid.” The Commission agreed, finding his “repeated conduct” in using his mobile phone justified dismissal.
  
• SDM had provided Mr Murray with “a supportive and tolerant environment.” There was no failure to provide sufficient support.
  
• Any failure by SDM to inform Mr Murray senior or the training provider about the concerns did not affect the validity of the reason for termination of employment.
  
• Mr Murray had been given a clear written warning on 7 May 2025 and an opportunity to respond to it, satisfying this requirement of the Code.
  
• He was given a “reasonable chance” to rectify his conduct, but continued using his phone inappropriately. Mr Murray “knew full well” that his continued phone use “was a problem.”
  
• It was “less than satisfactory” for SDM to have dismissed Mr Murray via email and based on a second-hand account. However, this did not make it inconsistent with the Code.
  
• There was no evidence Mr Murray had been prevented from bringing a support person to any relevant disciplinary discussion.

Unfair dismissal FAQs

1. Can you get sacked for being on your phone?

Yes, an employer can lawfully dismiss a worker for repeated inappropriate mobile phone use that interferes with their ability to perform their job. Also, if it causes a safety risk or breaches a workplace policy. Termination of employment for such conduct can be fair if the employee was clearly warned and given a genuine opportunity to improve. 

In Sam Murray v The Trustee for SDM Trust [2026], the Fair Work Commission found an apprentice roofer’s repeated use of his phone during work hours, despite receiving a formal warning, was a valid reason for his sacking.

2. Can I be fired by email or text message?

Yes, an employer can provide written confirmation of termination through electronic channels, including email and text messages. The employee must have consented to receiving electronic communications from their employer. Also, the notification of dismissal must be readily available to the employee. However, the Fair Work Commission has often looked upon electronic dismissal notifications negatively. 

In Sam Murray v The Trustee for SDM Trust [2026], the Commission found that email was a “less than satisfactory” way for the employer to dismiss an apprentice. However, it was still acceptable and did not outweigh the valid reason the employer had for termination of employment.

Have you been unfairly dismissed?

When something goes wrong at work, it can be difficult to know whether your employer has crossed the line and if you can lodge a Fair Work claim. Getting advice early can help you understand your options. We at A Whole New Approach assist employees across Australia with unfair dismissal, general protections claims, workplace bullying, sexual harassment, discrimination, forced resignations and other employment disputes.

Your initial consultation is free and private, and we offer a no win, no fee service. Call us any day of the week on 1800 333 666.