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22Jul, 16

Now before you call me old-fashioned, understand that using mobile phones particularly when you are driving is not only illegal and inherently dangerous but can cost you your job (potentially).

A recent case in the Fair Work Commission (20 May 2016) highlighted the importance of employers ensuring that to successfully avoid applications for a relief from unfair dismissal (s.394(1) of the FWA 2009) all circumstances of the case need to be carefully and objectively considered to ensure that all parties can be seen to have been given ‘a fair go all round’.

In this case, Con, a driver for private bus company Hillsbus Co. Pty Ltd who had been employed since 3 September 2015, was seen by passenger on 19 October 2105 to be using a mobile phone while driving a bus along the M2 between Wynyard to Baulkham Hills near Sydney.

The passenger observed Con tilt the phone towards him to see the screen. While he did not place the phone to his ear, the passenger complained that it was entirely inappropriate for driver to look at anything other than the road while driving. This was given to the bus company as written feedback on 21 October 2015.

Con received a letter from his employer advising of the suspension on 4 November 2015 which amongst other things, required him to attend a meeting to show due cause why the employee should continue with his employment. The employer had a clear policy which prohibited the use of any hand-held mobile phones and also included the use of hands free devices. The policy provided that any breach would be deemed serious enough to result in a summary dismissal.

Con had been provided with a driver’s guide during his induction which also referred to the prohibition of the use of mobile phones while in charge of a moving vehicle. However, and the BIG But was that Con was not using it for making a call (it had no SIM card being his old phone) but was being used solely for use as a broadcasting music function to which the driver’s guide was silent.

The policy provided that mobile phones could only be used during meal break times and only after the vehicle has been safely parked and secured. Con attended an interview with the Branch Manager and pleaded his case and was accompanied by a fellow employee as a support person.

Con received a termination letter on 5 November 2015 which provided him three weeks’ pay in lieu of notice and Con used an internal appeal procedure made available by the employer. However, Con was again unsuccessful.

It is interesting to note that at no time prior to his dismissal did Con notify the employer that he was using the mobile phone for the purposes only to play music. Con only admitted this during a meeting with the employer at the appeal on 11 November 2015.

Con appealed to the Fair Work Commission and represented himself whilst the employer was represented by a Solicitor.

Senior Deputy President Drake determined that Con’s conduct amounted to no more than a ‘quick glance and tap’ and ‘presented no greater danger than a driver’s ordinary observation of the dashboard or other implements in a moving motor vehicle and thus concluded that it was not unsafe.

The Commission determined that the termination was harsh just or unreasonable notwithstanding that the employer had a valid reason to terminate for notice and after determining that Con had been provided the opportunity (and was allowed to bring a support person to the initial meeting and the internal appeal hearing).

In the end the Commission determined that there was ambiguity and conflicting evidence about the applicability of policies to drivers notwithstanding that all drivers knew that use the mobile phone was a breach of the law.

The Commission took into consideration a previous offence of Con driving a vehicle whilst using a hand-held mobile phone and warnings given to Con relating to ‘fault ‘accidents’ (including a final warning) but determined that these were ‘not in the same category of offences as that for which he (Con) was dismissed’ .

The Commission also gave weight to the delay in the employer investigating the customer complaint which contrasted with the employer’s avowed reason for terminating (upon the basis of a risk to public safety) and matters raised by Con in mitigation by way of submissions on penalty as well his potential loss of income and Con’s misconduct which involved issues of public safety.

Ultimately, the Commission found in Con’s favour and ordered reinstatement and ordered compensation for period of time since Con’s termination of employment including Con’s efforts at mitigating his loss by finding alternative employment.

Clearly this was a finely balanced case but should alert readers and particularly employers that there is no open and shut case simply because there has been breach of policy or even in fact where the employer was validly entitled to terminate.

If you require any further advice regarding Employment Law, please contact our Commercial team on 03 5445 3333.

Written by Geoff Bowyer, Director at Beck Legal

[email protected]

 

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