A Disaster Waiting to Happen
Using handheld mobile phones while driving - the law is clear but many of us have done it and many of us get away with it. Here's a story about a driver who didn't get away with it - as reported in a recent case before the Fair Work Australia tribunal.
A professional truck driver was seen by several witnesses using a mobile phone while at the wheel of a fuel tanker - you know, those steel missiles containing umpteen thousand litres of high octane fuel.
The driver had been previously warned by his employer for 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 and was duly sacked for serious misconduct.
The employee took his employer to the Fair Work Australia tribunal on the grounds of unfair dismissal.
Evidence at the tribunal heard testimony from 3 witnesses and other evidence which included a GPS report for the tanker, driven by the employee, showing that on the same day the employee had made nine calls or texts while driving the tanker, which the employee admitted to. This and other evidence clearly demonstrated that the employee had been in breach of his employment conditions and that the employer had done everything fair, legal and by the book in sacking him. In fact, had he not done so, the consequences to the employer company could have been very serious had an accident occurred subsequent to the employer being aware of the employee's misconduct. It could:
• adversely impact on the employer's insurance premiums or cause the insurer to decline indemnity in the event of an accident;
• 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 liability.
In dismissing the employee's application the tribunal 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.
Lessons for Employers
• It is important to have clear and consistent policies dealing with employee conduct.
• Employers should ensure that they adequately investigate employee misconduct.
• 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.
Reference: Ben Starkey v Cootes Transport Group Pty Ltd [2011] FWA 228
Information in this article is provided by the Queensland Council of Insurance Brokers - CQIB
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