Use of Mobile Phone while in control of a Bus: Tymoszuk v ComfortDelgro Cabcharge
Wednesday 17 July 2013 @ 11.10 a.m. | Industrial Law
In the case Janusz Tymoszuk v ComfortDelgro Cabcharge Pty Ltd T/A Westbus Region 1 [2013] FWC 3507 (delivered 6 June 2013) Deputy President Booth decided that bus driver Mr Tymoszuk had engaged in serious misconduct by way of having used a mobile phone while he was in control of a bus and that his dismissal by ComfortDelgro Cabcharge (CDC) on 10 October 2012 had not been "harsh, unjust or unreasonable". Mr Tymoszuk's application for "unfair dismissal" was dismissed.
At trial
Mr Tymoszuk did not dispute that he had used the phone in the manner contended by CDC and that he knew he was breaching CDC’s mobile phone use policy and the law; namely, the rules of the road. Mr Tymoszuk agreed that the employer CDC had a valid reason for dismissing him but contested the allegation of "serious misconduct". He asserted that the dismissal was harsh, unjust and unreasonable and further contended that there were extenuating circumstances giving rise to his use of the phone which did not present a safety risk. These contentions were dismissed by Deputy President Booth who found that the extenuating circumstances claimed by Mr Tymoszuk relating to concerns regarding the welfare of his adult son were "embellished for the purpose of justifying his use of the mobile phone and his evidence was at times disingenuous".
Deputy President Booth considered her decision in N v CDC t/a Hillsbus [2012] FWA 9617, a case where CDC was ordered to reinstate a driver who’d been dismissed for using a mobile while in control of a bus but concluded that the earlier decision did not assist Mr Tymoszu with his case because that case had turned on its own facts, in particular that the applicant in that case was not aware that the policy with respect to mobile phones had recently changed. There the Deputy President had ruled that, employees had to be given a reasonable opportunity to be aware of a policy before it is reasonable to discipline them for breaching it. In Mr Tymoszuk's case he had conceded that he was aware of the policy and in the Deputy President Booth's view, the evidence revealed a "disdain for the underlying purpose of the policy - to keep himself and others safe".
In reaching her decision Deputy President Booth concluded from the evidence that Mr Tymoszuk was putting the safety of himself, his passengers and road users at risk. Mr Tymoszuk missed two bus stops that the bus was meant to stop at while using his mobile phone and was seen to bring the bus into contact with leaves hanging from the branches of trees on the side of the road as he proceeded down the road in control of the bus while using his mobile phone.
Result
In all the circumstances Deputy President Booth concluded that the respondent’s decision to dismiss Mr Tymoszuk should not be disturbed by the Commission.
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