Employment law update for Employers
Driven to distraction: FWC upholds sacking for phone-use while driving
A truck driver has been left wheeling after the Fair Work Commission (FWC) upheld the employer’s decision to summarily dismiss her after breaching its mobile phone policy on 10 occasions whilst driving. The employer’s water and haul trucks that operated at the coal mine at which she worked were installed with “operator alertness systems”, whose infrared sensors and cameras detected fatigue and distraction, and detected a ‘distraction event’ that led to the suspected the mobile phone use while driving.
The FWC found that whilst the employee’s phone was not itself visible in the footage, the employee’s head and neck was repeatedly seen looking down at the passenger seat for prolonged periods with flashes of light and bright spots appearing on her face. Further, that the Employer’s investigation was fair, having had several meetings with the employee, invited her to show cause why it should not dismiss her, and provided her with a copy of the video footage. Also, when the employee claimed that the flashes of light in the footage were from outside the truck’s cab and the distractions detected were her looking out the passenger window, the employer conducted a re-enactment for the alternative explanations provided and found none could account for the distractions observed in the footage. Accordingly, the claim was dismissed.
Katrina Saunders v Bengalla Mining Company Pty Ltd [2025] FWC 658 (5 March 2025)
Director ruled a ‘worker’ within anti-bullying provisions
The Murray Grey Beef Cattle Society Limited recently unsuccessfully objected to a director having jurisdiction to seek a stop bullying order against the President of the Society under the Fair Work Act 2009 (Cth) (FW Act). These applications are available to workers ‘who reasonably believe that he or she has been bullied at work’, but the Society objected asserting that she was not a ‘worker’ given that she was not paid and did not receive any other benefits from the position. The FWC said that who is a ‘worker’ under the Work Health and Safety Act 2011 (Qld) is very broad, and that a person need only perform work ‘in any capacity’ for a PCBU in order to satisfy the definition. A contract or payment for the work is not required. Accordingly, the two primary elements are that the person must carry out work, and that work must be performed for a PCBU.
On this basis, the director was a ‘volunteer’ making her a worker under the WHS Act and who has access to bring the stop bullying application.
Application by Jacqueline Laughlin [2025] FWC 668 (6 March 2025)
Overdue wages and superannuation can amount to “forced resignation” says FWC
A burlesque performer successfully overcame her employer’s jurisdictional objection to her adverse action claim, asserting that she was not ‘dismissed’ and rather resigned from her “dream job” at the Emerald Room in Sydney. The FWC found that she was forced to resign following the employer’s late payment of wages and “persistent disorganisation”. Specifically, that persistent failures to pay her wages on time’ in the months prior was a ‘course of conduct the probable result of which was [the performer’s] resignation’, ‘she had no effective or real choice but to resign’. That her pay was up to date at the time she resigned was immaterial given the significant stress caused by the persistent past failures.
Alicia Quinn v Harbour City Hospitality Pty Ltd [2025] FWC 613 (28 February 2025)
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