No unfair dismissal after repeated mobile phone use when driving

01 April 2011 Topics: Workplace relations and safety

In the decision in Ben Starkey v Cootes Transport Group Pty Ltd [2011] FWA 228, Fair Work Australia dismissed an employee’s unfair dismissal application. The employee had been dismissed for serious misconduct when he was observed using a mobile phone while driving the employer’s fuel tanker.

The employee had been previously warned about similar behaviour. The employer’s policy on mobile phone use prohibited professional transport drivers from using hand held devices while driving. The employee admitted that he was aware of the employer’s mobile phone policy.

The employee argued that he was not using his mobile phone at the time he was alleged to have been observed by three witnesses and maintained that he was cradling his head in his right hand and it may have appeared he was using his mobile phone.

The employee’s phone records did not show that he had made a call at or around the time he was observed using the mobile phone. However, the employer argued that the employee’s phone records would not disclose a call made to his phone and answered by him. The GPS report for the tanker driven by the employee showed that, on the same day, the employee had made nine calls or texts while driving the tanker, which the employee admitted to.

In dismissing the employee’s application DP Sams found that the employee’s repeated and flagrant breaches of the employer’s policy and the driving laws were extremely serious matters and constituted gross and wilful misconduct. DP Sams also found the employee’s argument to be “implausible and ridiculous”.

Sams DP referred to an earlier Australian Industrial Relations Commission decision of Mihajlovski v IR Cootes Pty Ltd [2004] AIRC 173 and observed that a failure to terminate employment in such cases may:

  • adversely impact on the employer’s insurance premiums or cause the insurer to decline indemnity in the event of an accident;
  • impact adversely on the employer’s reputation and thus upon its business; and
  • have adverse consequences in relation to the employer’s duty of care and other obligations to fellow employees and members of the public including, potentially, exposing the employer to liability.

DP Sams also found that the employer had afforded the employee procedural fairness by investigating the matter, notifying him of the reason for the dismissal, giving him an opportunity to respond and to be represented by the TWU at his termination meeting.

For more detailed information about how this may impact on your business please contact a member of the workplace relations team at Cooper Grace Ward Lawyers.

Lessons for Employers

  • It is important to have clear and consistent policies dealing with employee conduct.
  • Employers should ensure that they adequately investigate employee misconduct.
  • Fair Work Australia will consider the onerous obligations, for example workplace health and safety obligations, imposed on employers in “high risk” industries in terms of employee conduct and the seriousness of that conduct.


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