​Bus driver reinstated despite phone calls made on-board

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​Bus driver reinstated despite phone calls made on-board

A government bus driver who was dismissed for making two mobile phone calls inside a bus has been reinstated after a commission took into account the circumstances in which he made the calls, as well as his past record and length of service.

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A government bus driver who was dismissed for making two mobile phone calls inside the bus has been reinstated after a commission took into account the circumstances in which he made the calls, as well as his past record and length of service.

Facts of case


The driver made the phone calls in the following circumstances.
  • He made them to cancel a doctor’s appointment that morning after agreeing the night before to work an unscheduled shift.
  • He had stopped the bus at a bus stop, applied the handbrake and opened the doors (which activates a second braking system). The engine remained on.
  • He was standing, with one foot in the driver’s cabin and one in the aisle. While he did not “leave the cabin”, the action was visible to bus passengers.
  • The call that successfully cancelled his appointed lasted only about 20 seconds.
The NSW State Transit Authority claimed that this conduct amounted to a breach of the NSW Transport Code of Conduct, the NSW Road Rules, the NSW Passenger Transport Regulations 2017 and the employer’s policy on use of mobile phones at work. For that reason, it dismissed him.

There was no dispute that the above breaches occurred, but the issue was whether they were serious enough to justify dismissal in the circumstances of the case.

Decision


The NSW Industrial Relations Commission found as follows:
  • The employee did breach the employer’s policy and the other documents listed above. He was still “operating” the bus when he made the calls.
  • However, the danger of the bus moving was very low with both brakes engaged, requiring simultaneous multiple system failures. The commission did not believe the driver had jeopardised passengers’ safety.
  • The driver had been employed for 12 years and had a good previous record. He had shown remorse and contrition for his actions.
While the employer was entitled to demand compliance with its employment and safety policies and the driver’s actions were “not a good look” for the employer and capable of causing damage to its reputation, the decision to dismiss him was too harsh in all the circumstances.

The commission ordered reinstatement, but with no compensation for loss of income due to dismissal. The latter reflected the commission’s view that the employee should be penalised for his misconduct.

The bottom line: This decision indicates that tribunals and courts may not regard compliance with an employer’s policies as a “black and white” matter, in that every breach justifies dismissal. There will be situations (such as no threat to customer safety, or a long-serving employee with a good previous record) where dismissal will be considered too harsh, and a lesser sanction such as a formal warning will be more appropriate.

This does not mean, however, that employees can claim they had an excuse for not complying with a safety-related policy. The employer is still entitled to issue sanctions for non-compliance.

Note also that the NSW Industrial Relations Commission issued this decision, and it does not automatically follow that the Fair Work Commission would reach the same verdict in a similar case before it.

Read the judgment


McAuliffe v The Transport Secretary on behalf of the State Transit Authority, [2020] NSWIRComm 1017, 16 March 2020 
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