No unfair dismissal after repeated mobile phone use when driving

In the decision in Ben Starkey v Cootes Transport Group Pty Ltd [2011] FWA 228, Fair Work Australia dismissed an employee's unfair dismissal application. The employee had been dismissed for serious misconduct when he was observed using a mobile phone while driving the employer's fuel tanker.

The employee had been previously warned about similar behaviour. The employer's policy on mobile phone use prohibited professional transport drivers from using hand held devices while driving. The employee admitted that he was aware of the employer's mobile phone policy.

The employee argued that he was not using his mobile phone at the time he was alleged to have been observed by three witnesses and maintained that he was cradling his head in his right hand and it may have appeared he was using his mobile phone.