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Out of contact while googling on his mobile: dismissal justified

Found in the first-aid room with his feet on the desk, looking at his mobile.
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Out of contact while googling on his mobile: dismissal justified

Out of contact while googling on his mobile: dismissal justified

24 February 2021

By Gaby Grammeno

When security personnel were unable to contact a stevedore with first-aid duties, his manager found him in the first-aid room with his feet on the desk, looking at his mobile phone. His failure to be available for first-aid duties when required capped off a series of failures to comply with the requirements of his role and justified his sacking, a commission has found.

The incidents

The worker was employed as a stevedore with a major operator of marine cargo handling services. His primary duties involved the provision of first-aid, and he mainly performed the ‘first-aider’ role at the Port Botany Site in Sydney. With the advent of the pandemic, he was made responsible for some additional COVID-19 cleaning tasks.

During his employment, and before the incidents that resulted in his dismissal, he had been the subject of numerous disciplinary actions, including a series of warnings with respect to his many failures to report for his allocated shifts, his lateness and unauthorised departure from a shift, his reckless driving of his employer’s property resulting in a three-month suspension, his excessive leave and his mobile phone usage.

These failures to carry out his duties as required had resulted in repeated requirements to attend meetings, letters clarifying the expectations of his role, counselling, verbal and written warnings.

On 28 June 2020 after his meal break, a security contractor phoned the shift manager saying they had been unable to contact the first-aider, who was needed to respond to a request from a vessel.

The manager found the first-aider with his feet on the desk, leaning back looking at his mobile phone. He’d forgotten to turn his communications radio back on, which was why he’d been out of contact.

In his reply to the final written warning he’d received, the worker offered some explanations, noting that on 28 June he’d been using his phone to research cancer treatments, as his father had recently been diagnosed with cancer.

The shift manager told him to turn his radio on and go and pick up a crew member from a vessel.

An hour later, the shift manager returned and found him on his phone again, having neglected one of his COVID cleaning tasks and another task as well.

The company’s policy prohibited the use of mobile phones in operational areas unless authorised by a senior manager when a worker had no tasks allocated.

The first-aider was dismissed on 1 July, having already received three final written warnings.

He believed his dismissal was unfair, and applied to the Fair Work Commission seeking remedies. His first preference was to be reinstated in his job, with continuity of employment and reimbursement for lost remuneration. Alternatively, he sought compensation for what had happened.

In the commission

The commission’s task was to consider whether his dismissal had been ‘harsh, unjust or unreasonable’ and therefore unfair.

After hearing the evidence, the commissioner concluded that the worker had not breached the COVID policy. However, he could not accept the worker’s characterisation of his failure to turn on the communications radio as ‘minor in the circumstances’, noting that as a first responder, this failure could have had serious safety consequences.

The first-aider said that if he was reinstated he’d comply with company policies in future, but the commissioner considered that this assertion would not give the company confidence, particularly in the light of the worker’s disciplinary history.

While accepting that the worker’s personal circumstances - including his anxiety in relation to his father’s illness – must weigh in his favour, the commissioner found that these did not excuse the worker’s repeated failures to comply with role requirements and policies, failures which could have had significant safety consequences.

The commissioner found that the worker’s sacking was not harsh, unjust or unreasonable, and his claim was dismissed.

The bottom line: The gravity of an employee’s misconduct and the employee’s disciplinary history will be key factors considered in determining whether a dismissal is unfair.

Read the judgment

Keane v Sydney International Container Terminals Pty Ltd [2021] FWC 636 (8 February 2021)

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