By Gaby Grammeno Contributor

The worker was employed by a mining company as a production employee, mainly operating water trucks and haul trucks at the company’s open cut coal mine in Muswellbrook, New South Wales.

She was dismissed for serious misconduct, and applied to the Fair Work Commission for relief from unfair dismissal.

 

In the Commission

The employer alleged that she’d used her mobile on 10 occasions between January and June 2024 while driving a haul truck, and that she’d breached the company’s policy by having her phone turned on and in the cab with her while operating equipment.

The worker claimed she’d inadvertently had her mobile phone turned on in the cab while driving. She said it was turned off and its battery was flat, but she’d plugged it into a portable battery pack during a crib break and it had turned itself on after reaching a certain level of charge.

Deputy President Tony Saunders had to consider whether the employer had a valid reason for the dismissal.

In order to be ‘valid’, he said, the reason for the dismissal should be ‘sound, defensible and well founded and should not be ‘capricious, fanciful, spiteful or prejudiced’.

The company’s policy provided that while at work, mobile phones must be turned off and not stored on an employee’s person. During crib breaks, they could only be used in the crib hut. Exceptions related to work phones, or use as approved by a supervisor.

The worker had been trained in, and was aware of, the requirements of the mobile phones policy, and numerous employees had been dismissed for using mobile phones in breach of the policy.

Her phone use had been revealed by an operator alertness system installed in the haul trucks. The system filmed the driver’s head and shoulders and used an infrared sensor/camera to detect fatigue and distraction events. A review of the video footage from the system indicated the worker had interacted with her mobile phone while driving a truck.

Though no mobile phone was visible in the footage, it showed her repeatedly looking down at the passenger seat for prolonged periods, in contrast to the appearance of an employee looking horizontally out the window at something outside the truck. The footage also showed flashes of light and bright spots on the worker’s face while she was driving.

The worker speculated during the investigation into her conduct that there may have been other reasons why she’d been looking down at the passenger seat, such as getting food or drinks out of her bag or looking out the passenger window.

At the conclusion of the investigation she was given a show cause letter, to which she responded by denying the allegations and offering a variety of other possible explanations for what the video footage showed.

The company then conducted a re-enactment of the alternative explanations provided by the worker to see whether they could account for the relevant features observed in the footage.

The re-enactment appeared to have been conducted in good faith, as the company had previously exonerated a worker accused of mobile phone use, after the re-enactment gave credibility to his explanation that he’d used an e-reader in the cab while the truck was stationery, which was not in breach of the policy.

The worker in the present case was summarily dismissed.

Following the termination of her employment, the company engaged an expert to assess whether the light and bright spots on the worker’s face, as shown on the video footage, could have been caused by her phone or another source. His conclusion was that the flashes of broad illumination on the driver’s face in the footage were clearly consistent with Face ID technology from an iPhone, and he could not identify any plausible alternative explanations.

Deputy President Saunders was satisfied that the expert’s evidence was reliable and that he had not become biased or an advocate for the company. He also expressed reservations about the worker’s credibility in relation to her phone and whether it always turned itself on while recharging, and did not accept her denial that she’d interacted with her phone while driving.

Her serious breach of the company’s policy gave the employer a sound, defensible and well-founded reason to terminate her employment, given ‘the safety critical nature of the mining industry and the significant risks which may be created if a mobile phone, turned on, distracts an operator while driving a haul truck’.

Deputy President Saunders accepted that the dismissal was difficult for the worker – she’d worked at the mine for 19 years and had a good record – but that the seriousness of her conduct outweighed the harsh consequences for her.

‘Not only was it dangerous for [the worker] to drive a haul truck at the Mine while having her phone turned on and interacting with it, the extent to which [she] is seen in the video footage to be looking down and to her right while driving the truck is concerning. It shows an operator who is distracted and not paying sufficient attention to hazards which may be in front of the truck.’

Under the circumstances, she had been afforded procedural fairness by the company.

The Commission found that the termination of her employment was not harsh, unjust or unreasonable, and dismissed her application.

 

What it means for employers

Use of mobile phones while operating a vehicle can distract a driver and increase the risk of serious accidents involving death or injury. Employers are justified in enforcing policies restricting the use of phones in such circumstances.

 

Read the decision

Katrina Saunders v Bengalla Mining Company Pty Ltd [2025] FWC 658 (5 March 2025)