Tram Driver Dismissed for Texting While Driving

Friday 17 July 2015 @ 10.19 a.m. | Industrial Law

The Fair Work Commission has ruled that the dismissal of a tram driver caught texting while on duty was not unfair or unreasonable. Yarra Trams responded to the alleged misconduct after a disgruntled passenger took to Twitter to complain she had witnessed the tram driver using the mobile phone while driving.

Background

Gabriel Soares had been employed as a tram driver with Yarra Trams in Melbourne from June 2011 but was fired on April 29, 2014, for misconduct. Yarra Trams became aware of the incident on January 13 after reading the tweet from the passenger. It read:

“What happens when the @yarratrams rhino message is missed by its own? Driver on tram 114 on route 67 texting/FB as tram in motion! Not ok!”

The passenger, Fiona Sweetman was referencing Yarra Trams’ “Beware the Rhino” safety campaign. She had made the tweet shortly after alighting from the tram.

Yarra Trams immediately responded to Sweetman’s tweet the following morning and requested that she contact the company directly. Yarra Trams also sought a meeting with Soares on the same day and made him aware that using his phone while driving was a breach of one of Yarra Trams’ cardinal safety rules.

However, Soares said he was “just checking the time on my phone” and that he did not make a phone call at that time. The company requested Soares to complete a report about his conduct on January 13 and a subsequent discussion with his supervisor followed on January 23. Soares was given further opportunities to respond to the allegations at two subsequent meetings on February 14 and April 29.

Decision

Ultimately, the Commission decided the case on the facts. Fair Work Commissioner John Lewin preferred the evidence of Sweetman over that of Soares as he found Soares’ evidence inconsistent. The Commissioner said:

“Given the nature of the relevant Cardinal Rules, and the nature of Mr Soares’ conduct in breach of those rules, in the context where Mr Soares was responsible for the operation of a tram in a safe and lawful manner, I find that there was a valid reason for the termination of Mr Soares’ employment,”

Essentially, the evidence of the misconduct was given by a member of the public with no apparent motivation one way or another in the matter making her independent. Furthermore, she made the record of the event shortly after it occurred and she was in a position at the time to clearly see the event.

Lewin found the procedures followed by Yarra Trams ultimately resulted in a “fair go all round” and the complaints about Soares’ conduct were “of sufficient gravity” to rule that his dismissal was not harsh, unjust or unreasonable.

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