Phone call from mum triggers dismissal

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Phone call from mum triggers dismissal

A woman who was sacked for using her mobile phone while operating a forklift has failed to convince a tribunal she was unfairly dismissed.

When a woman answered her phone while driving a forklift in a liquor warehouse, she was sacked for flouting the company’s policy, which stipulated that mobile calls while working were not permitted.

She claimed the dismissal was unfair because she thought the 10pm phone call from her mother must be an emergency, since her mother had been unwell and was usually in bed by 8pm. Moreover, she’d cut the call short as soon as she realised it was not an emergency.

Her managers had a different perspective. They considered that using her mobile was contrary to the applicable policies and the training she’d received in the safe use of forklifts, and that her temporary distraction could have had dangerous consequences.

Several discussions were held about whether management’s response should be a warning letter or dismissal. An attempt was made to discuss the incident with the employee, but the meeting became heated and was concluded prematurely.

This resulted in a management decision that the incident amounted to serious and wilful misconduct, and that it justified the termination of her employment.

The woman then filed an unfair dismissal claim in the Fair Work Commission.

Policy 'somewhat inconsistent'

The commission noted that the company’s policy regarding the use of mobile phones appeared to be somewhat inconsistent. The business permitted employees to use iPods and iPads for taking photographs or checking barcodes in the course of their work, including while operating machinery, and this use of handheld devices could potentially be just as distracting as taking a phone call on a mobile.

The commission was satisfied that the woman’s action in answering her phone amounted to serious misconduct, particularly because video footage suggested she was not stationary when she took the call, that she was within a few metres of a person on foot while she used the phone, and that a three-tonne loaded forklift could kill a worker if not used safely.

Consequently, there was a valid reason for her dismissal.

The commission also found the dismissal had not been unfair as there had been no procedural failings.

The application was dismissed.

The bottom line: Using a mobile phone to take calls and talk while operating machinery presents a clearly foreseeable safety risk.

Read the judgment

Ford v Marlau Nominees Pty Ltd T/A Paramount Liquor [2019] FWC 4178 (21 June 2019)
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