Mixed pol­icy mes­sages

Em­ploy­ers must en­sure dis­ci­plinary mea­sures are ap­pro­pri­ate for the con­duct, write Am­rita How­ell and Tim Capelin

ABC (Australia) - - INDUSTRIAL LAW - Tim Capelin Piper Al­der­man part­ner Am­ri­taHow­ellisanas­so­ci­ate­andTimCapeli­na­part­ner atPiperAl­der­man 02 9253 9936 e: tcapelin@ piper­al­der­man. com.au w: piper­al­der­man. com.au

“Con­sider whether a ze­ro­tol­er­ance pol­icy is more ap­pro­pri­ate given the known risks in­volved”

In Zang v Toll Trans­port Pty Ltd [2016] 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 reex 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 signicant safety rule and there were no ex­cep­tions to that rule. Com­mis­sioner Peter Hamp­ton was satised 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 reex 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.


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.

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