Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - serious safety contravention - application dismissed

• [1] Daljeet Cheema has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Cheema was dismissed after his employer, Linfox Australia Pty Ltd (Linfox), concluded that on 2 May 2025 he had used a mobile telephone while uncoupling a prime-mover, contrary to company policy.

• [2] Mr Cheema's evidence was that he had been an honest and careful employee over the 15 months of his employment and that he should have received a warning. Mr Cheema acknowledged that video footage from the cabin of the truck showed that he had a mobile phone tucked under his shirt on his shoulder, and that he was talking on the phone in the cabin. He said however that he had been using Bluetooth, and when he got out of the cabin to attend to the decoupling, he put his telephone call on hold. Mr Cheema also said that although he had accidently pulled out the trailer cables when he drove the prime-mover away, this was not a 'big issue' and did not warrant dismissal. He said that he had not been trained on the decoupling procedure but had instead received only some 'induction'. Mr Cheema also said that he had undergone minor surgery in March 2025, and that when he returned to work he was not given as much work as previously, which he said was unfair. It is not clear how this was said to relate to the dismissal. Mr Cheema also said that he was a good driver and did not have any police demerit points. He said that in all the circumstances his dismissal was unfair.

• [3] Wesley Ku is the Linfox site manager at the facility where the incident of 2 May 2025 occurred. Mr Ku's evidence was that Mr Cheema, like all drivers of articulated vehicles, completed training on the company's Coupling and Uncoupling Safe Work Procedure (SWP). He produced a certificate of completion. The SWP states: 'Mobile phones MUST not be used and always remain in the cabin of the vehicle during this task.' Mr Ku said that Mr Cheema had also completed training on the Linfox 'Red Book' and the Driver Behaviour Policy (DBP). Section 3.17 of the Red Book states that coupling and uncoupling prime-movers and trailers can present serious hazards, including fatal injuries. Section 6 of the DBP defines 'serious motor vehicle incidents' as including the use of a handheld mobile phone or device while driving, and states that such conduct warrants termination of employment without notice.

• [4] Mr Ku said that on 2 May 2025, Mr Cheema was uncoupling a prime-mover from its trailer, but failed to detach the airlines and electrical cables before driving away, causing them to snap. Mr Cheema completed an incident report. Linfox investigated the matter. Mr Ku said that on 12 May 2025, he met with Mr Cheema and showed him video footage from the driver's cabin and the side mirror cameras. The footage was submitted to the Commission. It shows Mr Cheema in the cabin talking on a mobile phone which he wedges between his shirt and left shoulder. He climbs out of the vehicle and attends to the decoupling of the trailer. He then returns to the cabin with the mobile phone still under his shirt, and then can be seen with another mobile phone in his right hand. Mr Cheema maintained that he had only the one mobile phone. The footage also shows the cables snapping as the vehicle drives away from the trailer. Mr Ku said that during the meeting, Mr Cheema said that he had forgotten to disconnect the airlines. He also said that while speaking on the mobile phone he had been using the truck's Bluetooth, that he had not spoken on the phone while outside the cabin, and that he took the phone with him when he left the cabin in case he received a call from the office.

• [5] Mr Ku said that on 19 May 2025 a letter was sent to Mr Cheema asking him to show cause why his employment should not be terminated on account of his having used a mobile phone while operating a heavy vehicle and failing to follow the decoupling procedure. Mr Ku's evidence was that at a meeting on 22 May 2025, Mr Cheema said that he did not believe the incident was serious and that he had not been using his mobile phone while undertaking the decoupling. Mr Ku said that he did not consider that Mr Cheema had raised anything that justified or excused his actions, and decided to terminate his employment.

• [6] I accept Mr Ku's evidence about the training undertaken by Mr Cheema. I find that on 2 May 2025, Mr Cheema contravened the SWP by taking the mobile phone outside the cabin while he undertook the decoupling procedure. The SWP clearly states that mobile phones must remain in the cabin. I find on the balance of probabilities that Mr Cheema was talking on the phone for at least some of the time he was outside the cabin because the video shows his lips moving as he is getting out of the cabin, and also when he re-enters it, and therefore I conclude that he was using a mobile phone while undertaking the decoupling process. Even if Mr Cheema did place his call on hold while he was outside the cabin, he was still using a mobile phone because it was operational and sitting on his shoulder; and it was plainly not in the cabin, where it was required to be. I further find that Mr Cheema was talking on his mobile phone while his vehicle was moving - this can be seen in the video - and that this qualified as a serious motor vehicle incident for the purposes of the DBP. The phone was perched on Mr Cheema's shoulder rather than in his hand, but it was still a handheld device, and Mr Cheema was using it. I also find that Mr Cheema had a second mobile phone when he climbed back into the cabin; one can be seen in his hand, the other is protruding from his shirt. He was occupied with two mobile phones while driving the prime-mover. In my opinion, Mr Cheema's contraventions of the SWP and the DBP were serious matters. Each one of them was sufficient to warrant dismissal. These were reasonable and important safety rules. Mobile phones are a dangerous distraction for any driver, but particularly one in command of a heavy vehicle, including one that is parked and being decoupled from a trailer.

• [7] Clause 71.2 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2023 (Agreement) defines serious misconduct as including actions endangering health and safety. I find that Mr Cheema's failure to observe the above safety rules presented an obvious risk to workplace health and safety, and that this constituted serious misconduct within the meaning of clause 71.2 of the Agreement.

• [8] Based on my findings, I conclude that Linfox had a good and substantiated reason, and therefore a valid reason, to dismiss Mr Cheema (s 387(a)), of which he was notified and to which he had an opportunity to respond (ss 387(b) and (c)). There was no refusal of a support person (s 387(d)). Warnings for poor performance are not relevant (s 387(e)) because Mr Cheema was not dismissed for poor performance. The considerations in ss 387(f) and (g) carry no weight in this matter. As to s 387(h), I note that Mr Cheema had 15 months of service and an otherwise good record, and that the dismissal has had serious financial consequences for him. However, the safety contraventions in this matter were serious and deliberate ones. In my opinion, termination of employment was a proportionate response in the circumstances. I conclude that the dismissal was not harsh, unjust or unreasonable, and that it was not unfair. The application is therefore dismissed.

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