In a recent case the Fair Work Commission has upheld the dismissal of an employee for using a mobile phone while operating a vehicle once, despite a 27 year “unblemished” record.  This case has implications for all businesses engaging professional drivers as well as those who operate vehicles as part of their roles.  This weeks HR Highlight will review the case and the learnings that should be considered in the context of the downstream petroleum industry.

Case Review

In a recent decision Fair Work Commission Deputy President Alan Colman has rules the dismissal of a tram operator for the use of a mobile phone to be fair.

The tram operator was observed by a member of the public using her mobile phone for approximately 20 seconds, while stopped at a tram stop and reported this.  The business responded by first suspending the driver, then completing an investigation and later dismissing the driver for serious safety breaches including the general rules and the driving rules including breaching the “cardinal” rule prohibiting the use of mobile phones and other driver distractions while operating the vehicle.

The driver brought an unfair dismissal claim noting that she had worked in this capacity for 27 years and had an “unblemished” record in all areas including safety.  The driver outlined that she had indeed used her mobile phone while the tram was stopped.  She noted that mobile phone use was due to the fact that she was concerned over her husband and father in law, both of whom were unwell and in hospital at the time.

In defending their decision to terminate the driver, the business outlined that the seriousness of the breach warranted dismissal, and that the previous “unblemished” history illustrated that the employee was capable of compliance with the safety requirements but in this instance chose not to comply.  Further the business outlined that there were procedures in place to ensure that pressing matters, such as updates on unwell relatives, could be relayed to the drivers through the depot and radio without the distracting use of mobile phones.

The driver also argued that the dismissal was harsh as another driver was issued with a formal warning following mobile phone use.

Decision

In handing down his decision Deputy President Colman acknowledged that a rule requiring drivers to comply with a businesses “cardinal rules” is a fair and lawful instruction that employees must comply with.  He noted that the rules included prohibiting working under the influence of drugs and alcohol, tampering with safety devices, operating vehicles without a licence, and failing to wear seat belts as well as “never operating” a tram while using a mobile phone.

Deputy President Colman noted it was reasonable to expect a tram network operator to “seek to inculcate a rigorous safety culture with high standards”.  Further he found that the breaches were “serious matters, not minor breaches” resulting in dismissal being a proportionate response, and that breaching the mobile phone rule “constituted a valid reason [for dismissal] in its own right” as it “enshrined a fundamental safety principle”.

In addressing the treatment of other drivers use of mobile phones, Deputy President Colman noted that the employee who received the warning was seated in a parked tram in a terminus while on a break and that as such the breach was considerably less serious than the mobile phone use while in operation of a vehicle at a busy intersection demonstrated by the dismissed employee.

In handing down his decision Deputy President Colman expressed sympathy for the driver and the significant impact her dismissal had had on her life, particularly after such a long career.  Importantly Colman reiterated that the driver “understood the rules and the consequences of breaching them”.  He noted that the dismissal was a “heavy sanction” but confirmed that it was not, in his view, harsh, unjust or unfair and explained that “safety standards that apply to tram drivers protect the company’s workers and customers as well as the general public.”

Learnings

This case highlights the importance of clearly establishing expectations of behaviour and the need to communicate not only the expectations, but the repercussions of breaches.  This dismissal was upheld because the business had very clearly outlined what was not acceptable behaviour and had communicated that any such behaviours would not be tolerated.

It is often the expectation of employees that years of compliant service allows more “leeway” when it comes to current breaches.  This case reminds us that there are certain areas, cardinal rules, that are of such significance that years of faithful service does not outweigh the impact of breaches.

In the downstream petroleum industry, much like in the case of tram operation, the complete and strict adherence to driving rules including the use of mobile phones, is a necessity in the protection of employees, the public and the environment.  Indeed in the case of mobile phone use it is also a matter of legal implication.  In many cases the use of a phone is indeed against the law.  As businesses we do not prosecute employees, rather we have the obligation to clearly articulate our expectations and to treat all breaches seriously.

Whether employees are professional drivers, or operate vehicles incidental to their employment, it is imperative that business clearly communicate its own “cardinal rules” and the repercussions for breaches of same.  When there is a breach it is important that the business respond appropriately, complying with the requirements of procedural fairness, but also discharging its larger duty to the community and the environment to ensure the safe and compliant operation of its business.

This case reminds us that despite a long history of safe and compliant behaviour, some actions and breaches, are unforgivable.  In these cases, where the policy is clear, the repercussions are clear and the breach is clear, dismissal is warranted.

Here to Help

ACAPMA members are reminded that the ACAPMA Employment Department has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can access the advice and support of the ACAPMA Employment Professionals.

HR Highlights are things to consider, implement and watch out for in your business.  They are provided as general advice and you should seek further advice on your situation by  emailing employment@acapma.com.au it’s free for members.

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