FWC examines alleged safety policy breach in unfair dismissal case
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a bus driver with 17 years of service challenged his dismissal for allegedly using a mobile phone while operating a public transport vehicle.
The worker, who started his employment in August 2007, was dismissed in August 2024 after his employer discovered CCTV footage that appeared to show him handling an object while driving. He maintained throughout that he was consulting a religious devotional diary, not using a mobile phone.
Throughout the case, the worker emphasized his lifelong Sikh faith, stating that giving untruthful evidence would constitute both a serious blasphemy and a secular offense. He sought reinstatement to his position, citing his previously unblemished record of over 17 years.
The case originated when the worker reported shoulder pain after completing his shift on Sunday, May 5, 2024. When reviewing CCTV footage to investigate this injury report, the employer identified footage showing the worker handling an object while driving.
The employer's policy explicitly prohibited mobile phone use, stating: "In the interest of abiding with the law and upholding public safety, under no circumstances are employees who are in control of a bus or maintaining buses permitted to use a mobile phone or similar devices... for any function or purpose whilst they are operating or working on a [employer] Bus."
The policy aligned with New South Wales Road Rules, which stated that drivers must not use mobile phones while vehicles are moving or stationary but not parked.
Under Regulation 300, "use" included "any action by a driver including holding the body of the phone, sending, or looking at anything that is in the phone, or operating any other function of the phone."
The Commission's detailed analysis of the CCTV footage from May 5, 2024, noted specific actions: "At 08:08:14 - [the worker] reached into his right pocket of his shirt with his left hand and removes an object. The bus is still moving at this point but [the worker] has neither of his hands on the steering wheel."
Further significant observations included: "At 08:08:19 - [the worker] returns his left hand to the object to hold it whilst his right thumb is actively moving up and down, but not left to right as if he was actually turning a page."
The worker later produced his religious diary and demonstrated its use in a re-enactment video. However, the Commission found the movements shown in the re-enactment did not match those captured in the original CCTV footage.
The employer issued a show cause notice on May 13, 2024, detailing the allegations and evidence from the CCTV footage. A meeting was scheduled where the worker could respond to these allegations, which eventually took place on August 1, 2024.
During this period, the worker consistently denied using his mobile phone while driving. He argued that the object was his devotional diary and provided phone records to support his position.
However, the Commission noted that the worker did not mention the diary during the initial investigation or show cause meeting.
The worker also questioned the employer's right to view the CCTV footage, arguing there were limitations on viewing times around workplace incidents. The Commission found the employer was justified in reviewing the footage as part of their investigation into the reported injury.
The Commission's decision rejected the worker's explanation based on several observations. It stated: "I am satisfied and find that the object in [the worker's] hand at 08:08 on 5 May 2024 is a mobile phone for the following reasons... His hand actions and the use of his thumb are consistent with the use of a smart phone and not the actions of opening or turning a page of a paper diary."
The Commission further explained: "The object [the worker] takes out of his pocket looks like a phone. [The worker's] hand movements whilst he has hold of the object are consistent with operating a phone and totally inconsistent with opening a diary. I am satisfied and find that [the worker's] claim that he was holding and opening his diary is a fabrication."
In dismissing the unfair dismissal application, the Commission concluded: "[The worker's] conduct blatantly breached the policies of [the employer] and the NSW Road Rules. His conduct cannot be condoned."
