The Fair Work Commission recently found that the dismissal of a Sydney bus driver for using his mobile phone while driving was unfair because of the employer’s unclear safety policy.

The Background

In November 2015, a bus driver employed by Hillsbus Co was dismissed for creating a serious safety risk by using a mobile phone while driving. The employee claimed unfair dismissal because he was not speaking on the mobile phone but was using it to play music. In fact, the phone did not have a SIM card installed and the employee did not consider himself to be using a phone. The phone was on the dashboard and the driver admitted to tapping the phone and looking at it a few times during the journey.

The finding

Senior Deputy President Lea Drake found that a mobile phone without a SIM card was covered by regulation 300 of the Road Rules 2014 (NSW). The regulation states that a driver must not use a mobile phone while the vehicle is moving or not parked unless it is secured in a mounting device.

Reinstated

Senior Deputy President Drake found that the dismissal was harsh because the employee genuinely believed that he had converted the phone into a music broadcasting device. Hillsbus was ordered to reinstate the employee, and both parties were advised to agree on compensation, or if no agreement could be made, Fair Work Australia would review submissions from both parties.

Hillsbus had amended its mobile phone policy to prohibit the use of mobile phones or similar devices “for any function or purpose” while driving, but this revised policy was never provided to the driver and he was unaware of the change.

Keeping policy clear

This case demonstrates the need to keep workplace safety policy clear and to ensure that employees are notified of changes to policy as they occur. If you need advice on workplace safety or preparing safety policy please don't hesitate to contact us by clicking here.