Sacked: tram driver makes bad call

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Sacked: tram driver makes bad call

A tram driver who checked messages on her mobile phone while her tram was stopped at an intersection was validly dismissed for breaching company rules, according to the Fair Work Commission.

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A tram driver who checked messages on her mobile phone while her tram was stopped at an intersection was validly dismissed for breaching company rules, according to the Fair Work Commission.

Facts


CT stopped her tram at a tram stop near an intersection with a red light. While it was stationary, she took her phone out of her pocket and checked messages on it. A nearby cyclist saw her and reported the incident to her employer.

The employer then told her she was suspended pending an investigation. As a result of that investigation, it terminated her employment with pay in lieu of notice. CT then lodged a claim of unfair dismissal.

The employer claimed that CT had breached its rules for drivers, specifically Cardinal Rule 2 (that prohibited drivers from using mobile phones while operating a tram) and Rule 26 (that covered driver distractions). CT’s enterprise agreement provided for internal reviews of dismissals, and a review recommended a warning instead of dismissal. However, the employer stood by its decision to terminate employment, so she lodged a claim of unfair dismissal.

The arguments


CT argued that her dismissal was harsh for the following reasons:
  • Another driver had been more leniently treated for a breach involving phone use
  • Cardinal Rule 2 contradicted another company rule regarding handling of lost phones
  • She was not “operating” the tram at the time of using the phone, and
  • She had not contravened any road rules.

Other driver treated more leniently?


Another driver had received a warning after using his phone while seated inside the cabin of a tram that was at a terminus (the end of the line). However, he was not the driver and he was on a break at the time.

Rule covering lost phones


This rule allowed drivers to accept passengers’ lost phones handed to them by members of the public when a tram was stationary, provided that they immediately attempted to turn them off and placed them out of sight. CT claimed that her act of holding her phone to read messages was equivalent to this, and no more hazardous.

The FWC disagreed, finding that receiving a phone and turning it off was not “using” it. Other “distractions”, such as talking to passengers when necessary, were permitted by the employer’s rules.

Whether “operating” the tram


The tram had stopped to let passengers on/off. The doors were closed but unlocked. CT used her phone for about 15 to 20 seconds. CT claimed that this meant the tram was “parked” according to the road safety rules, and under those rules it was not illegal to have used the phone, nor was the tram being “operated” according to Cardinal Rule 2.

The employer claimed that it was stationary but not parked, with which the FWC agreed, adding that the employer’s rules made no reference to “parked”. As CT still had control of the tram, it was being “operated”.

Conflict between road safety rules and employer’s rules?


It was a condition of employment that drivers obey both sets of rules. CT’s termination letter only referred to breaching the employer’s rules, but CT claimed that if she had not breached road safety rules (because she claimed the tram was “parked”) then she had not breached the employer’s rules.

Cardinal Rule 2 prohibited operating a tram while using a handheld mobile device or any other unauthorised electronic device.

The issues


The following issues arose in this case:
  • whether CT’s conduct was serious enough to justify dismissal
  • whether she was actually “operating” the tram at the time of using the phone
  • whether road rules could take precedence over the employer’s own rules, and
  • whether she was treated harshly compared to another employee who breached the phone use rules

Decision


CT’s claim of unfair dismissal was rejected.

Cardinal Rule 2 applied at the time CT used her phone, and it prohibited her using it. She was “operating” the tram at the time, even though it was stopped. Rule 26(3) prohibited use of a phone while in control of a moving or stationary tram.

Breaching the employer’s rules was sufficient to provide a valid reason for dismissal. The FWC did not consider whether CT had also breached the road rules, and the employer did not refer to them in its reasons for dismissal.

The employer was not required to issue a prior warning to CT, as her dismissal was for misconduct, not job performance. The misconduct was serious, contrary to what CT argued, because she was distracted away from scanning the intersection and other surrounds for possible hazards for 15-20 seconds – for instance she did not see the cyclist who reported her. There was no “safe” level of mobile phone use.

The other driver’s breach of the rules was much less serious, as he was not operating a tram at the time.

The FWC took account of CT’s personal circumstances – she used the phone because her father and father-in-law were both ill at the time, she had been employed 27 years with an unblemished record, was aged 51 and was likely to find it hard to obtain other employment. However, it concluded that her breach of the rules was too serious to avoid dismissal. In the circumstances, dismissal was not harsh, unjust or unreasonable.

The bottom line: Using a mobile phone or other electronic device while driving in the course of employment is likely to be regarded as serious misconduct capable of justifying dismissal, although the relevant circumstances of each case must be considered. Company policies on use of vehicles in employment should set clear rules for non-use of devices and ensure employees are aware of them, as occurred in this case. Policies should also refer to compliance with road rules.

Read the judgment


Thomas v KDR Victoria Pty Ltd t/a Yarra Trams [2018] FWC 2698, 15 May 2018 
 
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