Mixed policy messages
Employers must ensure disciplinary measures are appropriate for the conduct, write Amrita Howell and Tim Capelin
“Consider whether a zerotolerance policy is more appropriate given the known risks involved”
In Zang v Toll Transport Pty Ltd  FWC
7952, the Fair Work Commission recently considered an unfair dismissal application involving a driver who was dismissed for answering a phone call while driving.
The employer dismissed the driver due to a serious breach of one of its safety policies.
The Commission found the dismissal to be unfair, but if handled differently by the employer the result may have been different.
In about July 2016, Zang, driving an A-B Triple rig, heard an alarm which he realised was a call on the satellite phone.
Zang said that, as a reex action, he answered the call. The call was made by his acting supervisor and involved an inquiry about Zang’s location. The call lasted approximately 10 seconds.
It was undisputed that Zang could have pulled over off the road and parked his vehicle to take the call or not answered, pulled over and then returned the call.
Zang claimed that his dismissal was unfair on a number of grounds, including: • His understanding was that the satellite phone was only to be used in an emergency and assumed there was an emergency and information needed to be communicated with him urgently • The call, initiated by Toll, was used to ascertain his
location, and lasted 8.5 seconds • He had a relatively unblemished employment
history • Toll allowed him to return to normal duties after the incident and the show cause interview, which suggested that they trusted him to act appropriately. Toll argued that Zang’s dismissal was not unfair on a number of grounds, including: • Driving is a critical risk activity and Toll’s safety systems and policies are directed at minimising or eliminating the risk of injury or death associated with vehicular accidents • Zang’s employment contract states that compliance with Toll’s policies and procedures form part of his conditions of employment, and failure to comply may result in disciplinary action, including termination of employment • The safety rules and the mobile phone policy
prohibit the use of a mobile phone device while driving a Toll vehicle, unless the vehicle is safely parked and is completely turned off. This could have been done readily by Zang • There were no mitigating circumstances for what was a breach of a signicant safety rule and there were no exceptions to that rule. Commissioner Peter Hampton was satised on balance that there was a valid reason for the dismissal. He found that Zang was aware that he should not be using or answering the satellite phone without parking the vehicle, and that Toll’s policies were reasonable given the potential consequences of a serious breach.
However, Hampton ultimately determined that there were certain factors that made the dismissal harsh and unjust.
These included Zang answered the phone as a reex response, he demonstrated immediate contrition, and the fact that Zang was permitted to return to normal duties and shift arrangements after Toll became aware of the conduct.
Hampton did not make an order to compensate Zang, noting the desirability of reinforcing the need to comply with safety policies, but ordered that Zang be reinstated having regard to Toll’s response following the discovery of the conduct.
NOTES FOR EMPLOYERS
Employers are reminded to review their safety policies, consider penalties for breach, and ensure disciplinary measures are appropriate for the conduct. Toll’s policy in this instance was not a zero-tolerance policy for mobile phone use while driving, but suggested that there could be a number of disciplinary options available depending on the circumstances of the case. Consider whether a zero-tolerance policy is more appropriate given the known risks involved.
Further, this case is a reminder that where there has been a serious breach of a safety policy, it is usually appropriate to suspend an accused employee with pay while an investigation is undertaken. This will assist in avoiding a later argument that, notwithstanding the conduct, the employee was trusted to act appropriately.