In the decision in Ben Starkey v Cootes Transport Group Pty
Ltd  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
Sams DP referred to an earlier Australian Industrial Relations
Commission decision of Mihajlovski v IR Cootes Pty Ltd 
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
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
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
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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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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