Dismissal of train driver for single phone call upheld

Dismissal of train driver for single phone call upheld

The FWC has upheld the dismissal of a train driver who breached company safety policies by making a single mobile phone call while operating a train. His attempts to claim mitigation for his action based on his length of service and employment record did not persuade the Commission to exercise discretion in the matter.

The employee had been continuously engaged by BHP Billiton Iron Ore Pty Ltd (BHP) since June 2014 as a Rail Transport Technician. He was employed to drive iron ore trains between Port Headland and Yandi / Newman mines in the Pilbara region of Western Australia. He worked a `2-week on/2-week off’ roster from his home in Thailand, although this had been modified to a 2:1 roster during the pandemic with his R&R spent in Perth as he could not return to Thailand.

In November 2019, a separate incident occurred at BHP in which a driver’s use of a mobile phone while driving a locomotive resulted in a derailment, hospitalisation of the driver, and significant financial loss to the company.

Subsequently, all drivers were banned by BHP from using any audio-visual equipment (including mobile phones) while operating a moving train. They were allowed to use devices while trains are stationary. This revised `Operating Instruction’ had been communicated to all employees, including the driver.

On 29 September 2020, while driving a moving train, the employee made a call on his mobile phone. His evidence was that he was trying to contact his Supervisor, primarily to alert him that he may need to interrupt his normal swing to attend a medical examination in Perth. The call was not answered, and he left a message, which took approximately 4 seconds.

Following an investigation, he was dismissed on 8 October 2020 for breaching the policy by making the phone call.

At trial, the employee claimed the decision to terminate him was harsh in the circumstances. He explained that he “was (only) travelling at 21 km/hr…that there were no other trains nearby or anyone working…that his train was under control, travelling at a safe speed and he was only on green signals.”   He also cited his lengthy period of service, receipt of certificates of outstanding service, and the hardship he would face with his primary residence in Thailand.

Unfortunately for the employee, Deputy President Abbey Beaumont was not persuaded by the arguments presented. She noted the validity of the prohibition of audio-visual equipment, commenting,

“the Operating Instruction sought to avoid an incident or catastrophe due to inattention while driving a locomotive. This was an occurrence that had already occurred in 2019”.

 In addition, she noted in her decision,

“there was not a blanket prohibition on having mobile phones in specified circumstances whilst on the locomotive. At all times, it had been open to Mr M to use his mobile phone when the locomotive was stationary”.

Essentially, she determined that there was ample opportunity for the employee to contact his Supervisor within the policy requirements, but he chose to do otherwise. Critically, “he made no assessment of the risk placing the phone call while driving the locomotive on that day”.

Commissioner Beaumont regarded the mandate introduced by the company as reasonable and viewed the employee’s behaviour, “constituted a critical safety breach..”. She viewed his conduct as failure to comply with a lawful and reasonable policy, and therefore a breach of the obligation on employees to comply with lawful and reasonable directions of their employer.

His application for unfair dismissal was dismissed.

PM v BHP Billiton Iron Ore Pty Ltd & Anor [2021] FWC 450 (26 February 2021)

For queries about safety investigations, misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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