The Fair Work Commission has supported the fair dismissal of a road train driver, who was caught holding their phone while driving.
In its weekly e-alert, the Queensland Trucking Association (QTA) revealed that the Commission found the employer had a valid reason for terminating the employee, as he had wilfully violated an important safety obligation.
Mr Stewart had worked for Linfox for six years as a fuel driver. In May 2020, he reported the need to brake hard to avoid hitting cattle on the road while driving a road train.
Investigation into the incident failed to uncover an incident involving cattle, but instead found a window of 10 seconds where Stewart was holding his phone.
Stewart was interviewed surrounding the event and was provided the opportunity to view in-cab footage showing him holding his phone. Initially, he admitted to looking at his phone while holding it, then denied that he was looking at it, before eventually responding that he was selecting music to play through the vehicle’s bluetooth.
Examination of the footage did not indicate this to be correct and, instead, he was making a call – an action he had denied doing. Linfox dismissed the employee for his breach of policy and unsafe conduct.
Linfox, in its decision to dismiss Stewart, relied on his decision to willingly pick up and use his mobile phone and that he was distracted by doing so.
According to the decision of Deputy President Lake, the dismissal was not harsh, unjust, or unreasonable.
The Deputy President considered that Stewart should have had a clear understanding of his obligations to his employer to act in a safe manner and that his conduct would be unsafe and in breach of the employer’s policies.
The Deputy President appeared to form this view after having reviewed evidence that the employer had gone to considerable lengths to notify and reinforce the message that mobile phones were not to be used while driving and that it was unsafe. It also did not help Stewart’s case that he was not forthcoming about why he picked up the phone, and his lack of contrition.
Similarly, in considering whether the decision was harsh or unjust, the Deputy President commented that the employer had followed a fair and reasonable procedure, including allowing the employee a witness, notifying him of the allegations and providing him a fair opportunity to prepare and provide a response to the allegations, and finally considering that response for determining the dismissal outcome.
The QTA said that although obvious, costly and uncommon safety breaches are often taken as reasonable grounds to dismiss an employee, the smaller more common breaches can be overlooked, especially when they have not led to an incident.
“This approach, however, fails to recognise that disciplinary action is as much about preventing future action as it is to punish past actions. It is recommended that where a safety policy is in place, that breaches be treated the same no matter the severity of the outcome or the commonplace nature of the behaviour in a non-work environment e.g. Using mobile phones while driving and speeding,” explained the QTA.
“Treatment can include dismissal, so long as this outcome is reasonable. Only by treating these behaviours the same as other safety policy breaches are they likely to stop, and the policies have their intended effect to make the workplace safer for all.”