Mobile phone use during work hours can cause an unwanted distraction. Other times, the use of mobile phones may be restricted due to safety reasons.
Similar to our blog “Distraction reaction: Site operator shares liability with negligent heavy machinery operator distracted by mobile phone call” the following case is a timely reminder for employers about the need for specific and clear mobile phone and safety policies.
In Robert Drysdale v John L Pierce Pty Ltd [2017] FWC 1251, the employer summarily dismissed the employee for using his mobile phone, failing to observe the fuel hose connection point and for failing to establish an exclusion zone in accordance with the employers’ policies and procedures when unloading fuel at a petrol station.
The employee was employed as a fuel delivery driver. On 14 October 2016, he was making a fuel delivery at a petrol station. At the time of the delivery, another employee drove by the petrol station and after entering the station, observed that a proper exclusion zone around the tanker had not been set up and that the employee was talking on his mobile phone whilst the fuel was being unloaded. Both these actions were in breach of the employer’s policies and procedures and resulted in the employee’s dismissal.
The employee lodged an unfair dismissal application with the Fair Work Commission (FWC). The FWC found that there were valid reasons for the termination of the employment given the circumstances of the breaches and that the termination of employment was not harsh, unjust or unreasonable.
In relation to mobile phone use, the Employee Reference Manual, Safe Work Method Statement (SWMS) and Driver Competency Assessment, all of which the employee was trained in, specifically stated that mobile phones were not to be used when unloading fuel. The employee admitted that he was on his phone to his wife but argued that the breaches were minor, he did not do so wilfully or deliberately, and his actions were an “error of judgment”.
In relation to the exclusion zone, the employee denied that he did not fully establish an exclusion zone and submitted that safety cones were appropriately placed given the site. The employee also submitted that any failure to comply with the policy was inadvertent. The FWC preferred the evidence of the employer that the employee did not fully comply with the SWMS and Employee Reference Manual and did not adequately set up an exclusion zone around the tanker.
The FWC considered the context in which the breaches occurred and held that the employee’s breaches of the policies and procedures were significant and his conduct caused serious and imminent risk to the health and safety of others. In particular, the FWC held that the fuel transportation industry was dangerous and the policies and procedures were developed by the employer to minimise the risks to employees, customers, the public and the environment. The FWC declared that the employee’s breaches were not “minor” as there could be serious consequences for non-compliance with the employer’s policies.
The FWC concluded that the employer had “sound, defensible and well founded reasons for dismissing Mr Drysdale on the basis of his conduct”. The FWC was also satisfied that the employer’s termination process was fair and that the employee was afforded procedural fairness. Accordingly, the employee’s unfair dismissal application was dismissed.
Where employment has been terminated due to an employee breaching a workplace policy the FWC will consider the nature of the breaches of workplace policies, the impact of those breaches, the employment record of the dismissed employee and the employer’s disciplinary/termination procedures in determining whether a dismissal is harsh, unjust or unreasonable.
