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Driver sacked for calling talk back radio gets compensation

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 98, 21 February 2006

A recent decision of the Australian Industrial Relations Commission in Julian Bizdoaca v Greyhound Australia Pty Ltd highlights the need for employers to have a valid reason, based in fact, when terminating employees.

Mr Bizdoaca was employed as a Greyhound coach driver. During a journey from Melbourne to Sydney, he phoned the ABC Nightlife programme on his mobile phone and participated in a telephone interview. He said that truck drivers were dangerous and identified himself as a Greyhound driver. Mr Bizdoaca was summarily dismissed for misconduct.

The Company sought to rely on its Media Policy, preventing employees from contact with the media, to establish a valid reason for termination. However, the Commission found that Mr Bizdoaca’s comments were of a personal nature and that comments of a personal nature were not covered by the Company’s Media Policy. Accordingly, the Commission rejected the Company’s argument concerning a breach of the Media Policy constituting a valid reason for termination.

The Company also argued that Mr Bizdoaca’s use of a mobile phone whilst driving was a breach of the law and accordingly constituted a valid reason for termination. During the Commission proceedings, evidence was unchallenged that Mr Bizdoaca used a “bluetooth” voice activated, handsfree device when participating in the radio interview.

The Commission found that although the use of “bluetooth” whilst driving the coach may have had the potential to distract Mr Bizdoaca, it would only be a breach of the law if its use prevented Mr Bizdoaca from having proper control over the vehicle. There was no evidence of this.

Ultimately, the Commission found that although Mr Bizdoaca’s conduct in identifying himself as a Greyhound driver was inappropriate, indiscrete and worthy of discipline, there was no valid reason for his termination. The Commission stated that the Company’s decision to terminate was a harsh overreaction and that a final warning would have been more appropriate.

The Commission awarded compensation of two months’ pay. Reinstatement did not occur in this case due to Mr Bizdoaca’s failure to acknowledge the inappropriateness of his actions and the Commission’s finding that there had been a breakdown in the employment relationship.

HR Tips

Where an employer relies upon a breach of Company policy or a breach of the law as a reason for termination, it should ensure that the employee has, in fact, breached the particular policy or law. As the above case demonstrates, this will often require a detailed analysis of the circumstances of the alleged misconduct and the policy or law that the employee is said to have breached. It will assist employers in this regard if policies are clearly drafted and properly communicated to employees.

Employer’s should also appreciate that the Commission considers termination to be a sanction of the last resort. In all cases the severity of the punishment should fit the offence.

Jason Donnelly
Senior Associate
Australian Business Lawyers