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Driver dismissed: distracted by phone

The driver claimed his dismissal was unfair.
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Driver dismissed: distracted by phone

Driver dismissed: distracted by phone

4 February 2021

By Gaby Grammeno

When it emerged that the driver of a large articulated road tanker had used a mobile phone while driving, he was sacked. He claimed his dismissal was unfair, but a commission has found that the company had a valid reason for terminating his employment, as he’d wilfully violated an important safety obligation.

The incident

The driver was employed by a major transport and logistics business. His job involved driving a large articulated road train transporting fuel to a mining site in Western Australia’s Pilbara region.

On 10 May 2020, he reported an incident to the Site Manager, stating that during his shift the previous day while driving a road train, he had to brake hard to avoid hitting cattle on the road.

The cab of the road train he was driving was equipped with video cameras that recorded footage of him in the cab while driving.

When his employer followed up the incident report, the video footage showed him in the cab of the road train picking up his mobile phone for approximately 10 seconds while driving. The footage had been reviewed to investigate the alleged hazard of cattle on the road, but the telematics team could not find any evidence of cattle on the road or any evidence of hard braking from the footage.

When he was shown the footage, the driver admitted that he had used the phone, but said it was only to change the music, not to make or receive a call.

His having used the phone for any purpose was in direct contravention of the company’s policies and safety requirements for driver conduct, and he was dismissed on 30 May 2020.

The driver claimed his dismissal was harsh, unjust and unreasonable, and applied to the Fair Work Commission for a remedy.

In the Commission

The commission heard evidence that this was not the driver’s first transgression of his employer’s policies.

Several months before the incident involving the use of the phone, one of the wires connecting a data unit (including the camera in the cabin) to the prime mover had been cut. The driver admitted to having cut the wire. When asked why he had not reported the defect immediately to management, he had not provided a satisfactory explanation, and his failure to follow the procedures in which he’d been trained resulted in the issue of a written warning on 9 March 2020.

Evidence was also heard in relation to the video footage of the incident on 9 May. Though the driver claimed he was using the phone to change the music playing in the cabin, the video evidence suggested the phone was being used for communication, as the screen was visible to the internal video camera and showed that a call was underway.

The commission also heard evidence of the training the driver had received at induction, at subsequent toolbox safety meetings, and in the form of a written document setting out requirements for driver safety behaviour. In relation to using a mobile phone, the instruction explicitly prohibited the use of a mobile phone while driving.

This instruction had been repeated as recently as 21 April 2020 at a toolbox talk on the company’s driver behaviour policy procedure. This policy included ‘using a handheld mobile phone/device while driving’ under the heading of ‘Fundamental or serious breaches of employee driver conduct or behaviour/obligations, that warrants termination without notice’.

After reviewing the driver’s interview responses and disciplinary history, the dashcam footage and the training the company had provided, management concluded that the driver had acted unprofessionally and highly inappropriately in taking his eyes off the road to look at his phone while in control of a triple road train.

The deputy president found that the employer had made a balanced decision to terminate the driver’s employment for wilfully violating an important employment obligation and further, potentially a state road regulation.

The deputy president was satisfied that the driver’s sacking was not harsh, unjust or unreasonable. His application was therefore dismissed.

The bottom line: Being distracted for even a few seconds while driving a large articulated road tanker is all it might take to cause a catastrophic accident.

Read the judgment

Stewart v Linfox Australia Pty Ltd [2021] FWC 354 (25 January 2021)

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