Before commencing employment as a Rail Transport Technician in 2014, the employee was living in Thailand. As he was working two-weeks-on and two-weeks-off, the employee would return home to Thailand in his off-time.

During the height of the COVID-19 pandemic in Australia, the employee was unable to return home. It was agreed the employee would work two-weeks-on and one-week-off - spending his free time in accommodation the organisation had leased in Perth.

In August 2020, the employee started experiencing stomach problems, however, did not inform his employer until 23 September 2020 when he advised his doctor in Perth wanted him to have a scan. The employer requested he let them know once the scan had been booked so his absence could be accommodated.

The incident

On 29 September, whilst operating a train travelling at 21km/hr, the employee attempted to call his employer to discuss the scan. There was no answer, so the employee left a voicemail.

The following day, the employer held a meeting and asked the employee to explain why he had used his mobile phone whilst operating a train. The employee explained he called to request a flight back to Perth later in the week for his scan.

That same day, a second meeting was held to notify the employee his conduct was a serious breach of the business’ operating instruction procedure which prohibited the use of mobile phones. The employee was informed a disciplinary meeting would be held the following day.

In the meantime, the employee was advised he may remain in the workplace, however, he was only to perform non-rail safety work.

On 1 October, the disciplinary meeting was convened. The employee admitted the allegations and apologised. On 6 October 2020, the employee was informed he would be required to attend a ‘show cause’ meeting. The meeting took place the same day and the employee was informed the employer was considering dismissal.

On 8 October 2020, having considered the employee’s response, he was notified the decision had been made to terminate his employment on the basis he had engaged in misconduct.

The employee was paid 5 weeks in lieu of notice. In addition, the employer provided 30 days paid accommodation together with his accrued annual leave and long service leave. Whilst the organisation viewed the conduct as extremely serious, they did not summarily dismiss the employee.

The parties agreed there was a valid reason for the dismissal and that a fair process had been followed, however, the employee argued the dismissal was harsh.

The decision

Having examined the evidence, the Fair Work Commission accepted the employee failed to comply with a lawful and reasonable policy which was in place to protect safety. The Commission was not convinced the employee’s circumstances rendered the dismissal was harsh, unjust, or unreasonable.

The claim was dismissed.

Learnings for business

For all businesses, this case highlights the importance of following appropriate termination procedures and having documentation to evidence the steps taken. It also acts as a reminder that when conducting a disciplinary process, employers must not only give an employee an opportunity to respond, but they must also consider that response before concluding what action, if any, is appropriate.

This case also demonstrates the benefit of having clear workplace policies and procedures and the role these play in the workplace.

How we can help

The Victorian Chamber Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements;
• Disciplinary processes, performance management and termination;
• Personal illness and injury;
• Parental leave and flexible working arrangements;
• Redundancy;
• Occupational Health and Safety and WorkCover.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

[2021] FWC 450