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[2025] FWC 142
General information, not legal advice.
Fair Work Commission
2025-02-04
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
We write to you in relation to a serious incident that occurred during your employment with CDC NSW and confirm that we are proceeding to Show Cause, for the reasons as set out herein.
Specifically, we refer to an incident involving you that occurred on Sunday 5 May 2024, at approximately 8:07 am whilst driving bus MO6153. We note relevantly as follows:
a) Our review of relevant CCTV footage whilst investigating a report of a workplace injury, shows that whilst you were approaching the Foundry Rd/Abbott Rd intersection you reached into your shirt pocket and grabbed your mobile phone.
b) You take both hands off the steering wheel to use your phone, looking away from the road whilst the bus is in motion,
c) You use your mobile phone whilst the vehicle is not safely parked and secured with the handbrake applied.
Objectively, the CCTV footage clearly depicts that you reached into your shirt pocket and used your mobile phone whilst the bus was in motion. Your conduct is proven, and simply cannot be refuted.
Noting our investigations - including our review of the CCTV footage - it is CDC's position that your actions are not only in violation of relevant road safety regulations but also severely compromises the safety of road users.
Driving is a complex task and anything that takes your mind or eyes off the road impacts the safety of everyone on the road. Being distracted increases your chances of having a crash. It slows down your reaction time and puts you and others in danger.
We have therefore determined, based on all available evidence, that you have acted inconsistent with your legal obligations (being obligations imposed upon all road users) and including your obligations under our established Policies and Procedures (as referred to, below).
It is our position that you were acutely aware of CDC's established Policies and Procedures (based on training provided to you) and that non-compliance with your legal obligations and expected standards of behaviour pursuant to our Policies (if substantiated) may result in disciplinary action (including up to the termination of employment). The obligations imposed upon you by virtue of our established Policies and Procedures were lawful and reasonable.
In CDC's considered view, your departure from our established Policies and Procedures constitutes serious misconduct that may be inconsistent with the continuation of employment. Specifically, we confirm that we have established the following contraventions:
Having substantiated the offending conduct arising out of the incident (which we say is reasonable based on an objective analysis of the CCTV footage) CDC advises that there are sufficient grounds to terminate your employment and that we are considering such disciplinary action. However, notwithstanding breaches (and serious misconduct) having been substantiated, the precise disciplinary action has not been determined.
In the circumstances, we have determined it appropriate to proceed straight to Show Cause, and we hereby invite you to attend a Show Cause meeting, the details of which are as follows:
Attendees: Darren Baker, Depot Manager and Erin Calder, People and Culture Advisor
You are directed to attend this Show Cause meeting. At this meeting, you will be given an opportunity to show cause as to why your employment should not be terminated. You are invited to bring a support person or representative to the meeting, should you wish to do so.
At this meeting, you will be asked to provide a response in relation to our findings. If you choose not to attend this meeting, the meeting may progress in your absence and a decision will be made based on all available evidence (and assuming there is no response or defense).
You will remain stood down with pay whilst this process continues.
We remind you that CDC has a free and confidential Employee Assistance Program (EAP) should you feel it helpful to obtain counselling services. They can be contacted on [redacted].
If you have any questions, please contact me on [redacted].
We refer to your email to Mr Darren Baker, Depot Manager, dated Monday 29 July 2024 regarding a Show Cause meeting which you are required to attend.
The meeting has been set up with regard to an incident that occurred on Sunday 5 May 2024, at approximately 8.07 am whilst driving bus MO6153 where you use your mobile phone whilst driving.
We note that you have requested further information with regard to this meeting, therefore please find answers to your questions below:
Question: Relevant documents which supporting viewing CCTV to investigate injury
Answer: Given you reported concerns about a safety incident that occurred during work hours, it is our responsibility to review CCTV relating to the incident. Our review is not intended to extend to consideration of CCTV footage to events that are not reasonably approximate to the incident reported. Whilst we respect the privacy of all our employees, we have a duty of care to fellow team members, customers, and our community when reviewing reported safety incidents.
Question: What is the relevant purpose to view my footage for 05/5/24 without my consent.
Answer: To investigate the nature of the reported workplace safety incident.
Question: Please provide me the CDC "usual process" policy / law which gives you permission to view the whole shift footage (it is only time bound process). I reported pain not any mechanical injury/incident
Answer: The entire shift footage has not been viewed by CDC.
Question: what is the time and place of injury according to your cctv footage?
Answer: No frank incident or injury was seen on the CCTV footage.
Questions: Where I reported the injury during driving according to your cctv footage?
Answer: You did not advise us of a time of your injury.
Question: According to cctv footage you viewed, Why I am driving after the injury and what protocol supervisor followed when I reported it on 05/5/24
Answer: You spoke to the Supervisor, Patrick Bedeux, on Sunday at the completion of your shift and reported a workplace safety incident. Mr Bedeux documented the reported injury in CDCs injury management database, Solv. You did not advise CDC that you were unfit to perform your role the following day, Monday 6 May 2024.
Question: You wrote I reported "sore shoulder" at end of shift, please match the words with doctor report and the last email sent to HR (about pain and place)
Answer: You reported a workplace safety incident at the end of your shift to Mr Bedeux. The diagnosis from doctor was not provided until a later date.
Question: Why I worked on Monday (6/5/24) if I was injured on Sunday (5/5/24) and reported it to supervisor
Answer: You did not provide a medical certificate to the business advising CDC that you were unfit to fulfil your role as a bus driver on Monday 6 May 2024. Moreover, when you signed on at the kiosk on Monday 6 May 2024, you declared that you were fit to drive your shift.
Question: Why I was not send to doctor/hospital on Sunday (5/5/24) when I reported pain instead of Monday
Answer: The nature of your reported workplace safety incident on Sunday 5 May 2024, was not assessed by Mr Bedeux as a life-threatening emergency, and you did not request an ambulance be called, therefore it was not recommended that you attend a hospital emergency department. It is also your responsibility to seek medical attention and attend a General Practitioner appointment should you feel pain that you believe needs a medical opinion.
As per our previous letter dated 13 May 2024, it remains CDC's position that your behaviour is a breach of our policies, which if validated by the investigation results could demonstrate serious misconduct.
In CDC's considered view, your departure from our established Policies and Procedures may constitute serious misconduct. Specifically, we refer to the following policies (attached for your reference):
As a result, we have deemed you to be stood down with pay pending further investigation. Please note the CCTV footage will be available for you to view should you wish.
We have now rescheduled the Show Cause meeting, which you are required to attend to respond to the allegation and to submit any information you consider relevant to our decision on Thursday 1 August at 1:00pm at Foundry Road Depot.
You are welcome to attend this meeting with a support person or representative. If you fail to attend the meeting without reasonable explanation, CDC NSW reserves the right to make a decision in respect of the allegation based on the evidence available and assuming there is no response or defence.
We remind you that the Employee Assistance Program (EAP) is available to you at this time. The EAP offers confidential independent counselling support to employees and may be of assistance to you. The contact number is [redacted].
If you have any questions, please contact me on [redacted].
RE: OUTCOME OF INVESTIGATION - TERMINATION OF EMPLOYMENT
We refer to our letters dated 13 May 2024 and 31 July 2024 and the Show Cause meeting held on Thursday, 1 August 2024, which also included Darren Baker - Depot Manager, and Joseph Antony as your support person.
The letters and the Show Cause meeting were regarding an incident involving you that occurred on Sunday 5 May 2024.
Our investigations led us to review the relevant CCTV footage. Objectively, the CCTV footage clearly depicts that you were using your mobile telephone whilst driving. Your conduct is proven, and simply cannot be refuted.
Noting our investigations - including our review of the CCTV footage - CDC formed the considered view that your actions were not only in violation of relevant road safety regulations but also severely compromised the safety of road users.
CDC determined, based on all available evidence, that you acted inconsistently with your legal obligations (being obligations imposed upon all road users) and your obligations under our established Policies and Procedures (as referred to, below).
In CDC's considered view, your departure from our established Policies and Procedures constituted serious misconduct. Specifically, we confirm that we established the following contraventions:
Having substantiated the offending conduct arising out of the incident (and which we say is reasonable based on an objective analysis of the CCTV footage) CDC advised you, by virtue of our Show Cause letter, that there were sufficient grounds to terminate your employment, and that we were considering termination of your employment, however, no determination had been made as to the precise disciplinary action, subject to providing you with the opportunity to respond and present any mitigating circumstances for our genuine consideration.
At the Show Cause meeting, we note that you stated the following matters:
Having regard to your serious misconduct and your responses - which we have genuinely considered - CDC has determined that your employment will be terminated summarily effective today, Wednesday, 7 August 2024. CDC cannot overlook the breaches of our established Policies and Procedures and consider that you have breached the trust and confidence that we must have with all our employees. Put simply, your actions are inconsistent with the continuation of your employment. As we have determined to terminate your employment for serious misconduct, justifying summary dismissal, no payment in lieu of notice will be made to you.
You will be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment.
We remind you that CDC has a free and confidential Employee Assistance Program (EAP) should you feel it helpful to obtain counselling services. They can be contacted on [redacted].
If you have any questions, please contact me on [redacted].
"396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(b) to establish procedures for dealing with unfair dismissal that:
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee's period of employment with the new employer.
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant."
Section 387(a) - whether there was a valid reason
"a. He took the vehicle on its usual route on 5 May.
b. As can be seen from the bus-mounted video, when the bus was stopped (which is to be determined by looking at the moving - and then stationary - background in the video), he took an object from his pocket, glanced at it and put it back in his pocket. It was his devotional diary. Not a phone.
c. We refer to the "re-enactment video" made by the Applicant. It shows the exact personal movement using the religious diary. It is the same size as a phone. It, however, is not a phone.
d. By comparing the two videos, one can see at about point 46,47,or 48 on the bus video, a "flash" of white on the phone, which corresponds to the diary, which has a white panel on its back. Phones, one may assume, do not."
Section 387(b) - whether the person was notified of that reason and 387(c) - whether the person was given an opportunity to respond
"You are directed to attend this Show Cause meeting. At this meeting, you will be given an opportunity to show cause why your employment should not be terminated"
"At this meeting, you will be asked to provide a response in relation to our findings".
"It is entirely logical that, as one who routinely through the day engages in frequent and brief religious observances, [the Applicant] would not specifically recall doing that at that moment. If [the Applicant] had been given the correct level of opportunity (including viewing the footage) [the Applicant's] answer would have then seemed, as it should now, "unremarkable"."
"[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination".
"Trust and confidence is a necessary ingredient in any employment relationship.... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."
Section 387(a) - whether there was a valid reason
"(a) The Applicant acted inconsistently with his obligations under the Respondent's National Code of Conduct and Use of Mobile Phones (Buses) Policy (and other relevant Policies) including NSW Road Rules...;
(b) The Applicant was aware of these obligations (having been trained on those obligations and the existence of the relevant Policies and Procedures) and was acutely aware that his non-compliance might result in the termination of his employment; and
(c) The requirements of the National Code of Conduct (and other relevant Policies) were lawful and reasonable."
"any actions by a driver including holding the body of the phone, sending, or looking at anything that is in the phone, or operating any other function of the phone".
"A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."
"(a) The Respondent (as with other bus operators) has positive reporting obligations to Transport for New South Wales ("the Regulator") to report the use of mobile telephones by drivers - obligations predicated on health and safety.
(b) The Regulator's "Conditions and Responsibilities" (as published on their website) clearly states, inter alia, the following:
(i) 'If you are the holder of a bus driver authority, your authority is subject to the conditions prescribed in the regulations and the following additional conditions.'
(ii) 'All...functions including texting, video messaging, online chatting, reading preview messages and emailing are prohibited.'
(iii) 'The law makes it clear that a driver in a moving or stationary vehicle (unless parked) MUST NOT HOLD a phone in their hand other than to pass the phone to a passenger or use a mobile phone on loudspeaker while resting it on their lap.'"
"(a) At no time during the Show Cause process (nor, at any stage during the investigative and disciplinary process) did the Applicant assert that the item captured in the CCTV footage was a diary (or, for that matter, any other item).
(b) There was ample opportunity to raise such matters (whether in writing or otherwise) before the decision to terminate. The Respondent says that the time between the initial allegations letter and any subsequent meeting is not a relevant consideration, as there was a genuine and reasonable opportunity to raise matters at any stage before the decision to terminate.
(c) The first time any such denial (any "use" of another item) was asserted, was in the Applicant's Form F2 Application, filed more than three (3) months after the allegations and findings were first put to the Applicant, wherein it was asserted that:
(i) "The Applicant frequently carries other items in his pocket (e.g. diary and his calculator), and thus he may have picked something else rather than a phone. It is the Respondent's position that the Applicant's evidence cannot be accepted, supported by his claim having changed from "may" have been "something else" to now, a definitive position.
(ii) Further, the Applicant now asserts that the diary was a "devotional diary". Notably, again, this was not raised in the Form F2."
"(a) The CCTV footage clearly depicts the Applicant using his thumbs on the item (with his arms clearly in motion) and that such use is indicative of mobile telephone use, in contravention of the Respondent's Policies and significantly, the Road Rules.
(b) The actions shown by the CCTV footage are not consistent with the ordinary, customary use of a diary. The Respondent's position is that the "re-enactment video" as lodged in support of the application, is of no probative value.
(c) Shortly after accessing the item (for which the Respondent says it cannot be refuted is a mobile telephone, despite the Applicant's claims) in plain sight of the CCTV camera:
(i) The Applicant proceeds to place the device next to his right leg (deliberately and consciously out of sight of the CCTV camera) and continues to use the mobile telephone for more than twelve (12) seconds (that is, from approximately 08:08:14 to 08:08:26. That period is not insignificant.
(ii) In doing so, the Applicant takes both hands off the wheel and thus, is not in control of the Heavy Vehicle, posing a significant health and safety threat.
(iii) The Respondent says that it is far-fetched and fanciful to assert the item is a "devotional diary' (or any item other than a mobile telephone) as the action(s) depicted are not consistent with the "use" of a diary."
"(a) Significantly, by virtue of the Form F2, or during the Show Cause Process, the Applicant did not deny using the mobile telephone - rather, his position was that he did not make any calls or texts, at the relevant time.
(b) In fact, it is the Respondent's evidence the Applicant expressly acknowledged the existence of the established Policies and Procedures, and their significance."
Section 387(b) and (c) - whether the employee was notified of the "valid reason" and whether the employee had an opportunity to respond
"(a) Honestly and genuinely believed that it had reasonable grounds for finding that the Applicant was guilty of the misconduct alleged (per the CCTV footage, which was shown to the Applicant at the Show Cause Meeting); and
(b) That even taking into account mitigating circumstances (including the Applicant's length of employment) such misconduct still justified dismissal."
Section 387(d) - any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions related to dismissal
Section 387(e) - if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal
Section 387(f) and (g) - the degree to which the size of the employer's enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
"a. Reinstatement would not be appropriate in the circumstances (even if the item were found to be a diary (or, not a mobile telephone)) because the Applicant made a decision to take his hands off the wheel, was distracted and loss concentration for a not insignificant period, and so, was not in control of the heavy vehicle.
b. Mr Baker's evidence is that given the Applicant's disregard for safety (in taking both hands off the wheel) there is no confidence that the Applicant would follow the Respondent's established safety policies and procedures (including the Road Rules) in the future.
c. Reinstating the Applicant would present a safety risk to other employees, and the public who rely on the Respondent's services (including other road users). It would serve to undermine the Respondent's safety policies, including the requirements of the Regulator for which the Respondent is answerable to."
(a) As to the Respondent's submission that "At no time during the Show Cause process (nor, at any stage during the investigative and disciplinary process) did the Applicant assert that the item captured in the CCTV footage was a diary (or, for that matter, any other item)", the Applicant submitted that:
"We believe this point has been addressed in the original statement of Mr Singh and his Statement in Reply filed with these submissions. He was stumped/flabbergasted/caught off guard. If he had been shown the video footage on 6 or 7 May instead of 1 August, he probably would have had it clearer in his mind that the object was what it was. Getting a "finding" without warning on 7 May, though, was not reacted to with complete presence of mind. He did, though, bring the issue up on 9 October at conciliation. The reaction is recorded in his attached statement."
(b) As to the Respondent's submission that "There was ample opportunity to raise such matters (whether in writing or otherwise) before the decision to terminate. The Respondent says that the time between the initial allegations letter and any subsequent meeting is not a relevant consideration, as there was a genuine and reasonable opportunity to raise matters at any stage before the decision to terminate", the Applicant submitted that:
"A confused, medicated, and unwavering "denier" thought that producing the mobile phone records showed enough. His evidence is that he simply did not think of the diary. It was such an incidental part of life that he did not have it in the forefront of his mind in this context."
(c) As to the Respondent's submission that "The first time any such denial (any "use" of another item) was asserted, was in the Applicant's Form F2 Application, filed more than three (3) months after the allegations and findings were first put to the Applicant..." the Applicant submitted that:
"It is wrong to say that "denial" came late in the day. It has not been disputed that "denial" was immediate, consistent, and backed up with phone records. The F2 was within 21 days of 7 August, and was the first contact after the "quick fire" termination of that day. A worrying consistency in this respect is that the "finding" of 7 May remained the "finding" no matter what was offered in response."
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
"The above extract is authority for the proposition that a termination of employment may be:
"[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination".
"In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee's capacity or performance or based on the operational requirements of the employer. ...
In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly...".
"... the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason."
"The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved."
"The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.'"
a) At 08:08:08 - the Applicant makes an involuntary movement with his right hand from his lap to his chest;
b) At 08:08:13 - the Applicant grabbed the right hand collar of his v-neck jumper to pull it down whilst the bus is still moving;
c) At 08:08:14 - the Applicant reached into his right pocket of his shirt with his left hand and removes an object. The bus is still moving at this point but the Applicant has neither of his hands on the steering wheel;
d) At 08:08:15 - the Applicant looks directly at the face of the object that he cradles in both hands and taps the front of the object with his right thumb;
e) At 08:08:16 - the Applicant moves the object down and to the side of his right knee out of sight of the CCTV camera and below the level of the window. The Applicant then removes his left hand off the object;
f) At 08:08:19 - the Applicant returns his left hand to the object to hold it whilst his right thumb is actively moving up and down, but not left to right as if he was actually turning a page;
g) At 08:08:26 - the Applicant returns the object to his right shirt pocket.
ComfortDelGro Australia recognises that mobile phones are a widely used and valuable tool for communication. CDC also recognises that many of our employees carry their private mobile phone with them while at work.
It is illegal in Australia to drive any motor vehicle while using a hand held mobile phone. Further, the use of hands free devices such as Bluetooth headsets is considered an offence if it causes a driver to lose proper control of a vehicle.
In the interest of abiding with the law and upholding public safety, under no circumstances are employees who are in control of a bus or maintaining buses permitted to use a mobile phone or similar devices (including the use of Bluetooth earpiece etc) for any function or purpose whilst they are operating or working a CDC Bus.
During break times or in the event of an emergency, a mobile phone can be used only after the vehicle has been safely parked and secured with the handbrake applied.
Any breach of this policy will be considered a serious safety breach which will result in summary dismissal.
"[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."
_(1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless - _
_(a) the phone is being used to make or receive an audio phone call or to perform an audio playing function and the body of the phone - _
(i) is secured in a mounting affixed to the vehicle while being so used, or
(ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone, or
(b) the phone is functioning as a visual display unit that is being used as a driver's aid and the phone is secured in a mounting affixed to the vehicle, or
(c) the vehicle is an emergency vehicle or a police vehicle, or
(d) the driver is exempt from this rule under another law of this jurisdiction.
a) His hand actions and the use of his thumb are consistent with the use of a smart phone and not the actions of opening or turning a page of a paper diary.
b) There was no need to hide the object out of view of the CCTV camera if the object was a diary. There is no law against reading a paper document if the vehicle you are driving has stopped.
c) There would also have been no need to struggle to open the diary with one hand, as demonstrated by the Applicant in the reenactment video, if he was simply looking to read his diary.
Section 387(d) - Any refusal of a support person
Section 387(f) - Size of Employer and Section 387(g) - Dedicated HR specialists
[1] Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000).
[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
[4] Michael Hudson v Metcash Trading Limited [2021] FWC 2765; Robert Drysdale v John L Pierce Pty Ltd [2017] FWC 1251.
[5] Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 (Hatcher VP, 10 June 2014) at para. 62; citing B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 (Lawler VP, Hamberger SDP, Cribb C, 28 August 2013) at para. 36, [(2013) 238 IR 1].
[6] CDC's "Use of Mobile Phones (Bus) Policy" (Effective Date 24 August 2020).
[14] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) [1938] HCA 34; 60 CLR 336]; cited in Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services [2011] FWA 4092 (Thatcher C, 6 July 2011) at para. 33, [(2011) 212 IR 1].
Printed by authority of the Commonwealth Government Printer
Manjeet Singh
CDC NSW Region 4 Pty Ltd T/A CDC NSW [2025] FWC 142
(1995) 62 IR 371
(2013) 238 IR 1
(1995) 185 CLR 410
(1998) 84 IR 1
(1998) 84 FCR 483
(2011) 212 IR 1