Hello? This is Cootes, you're fired


Truck driver who repeatedly spoke on the phone while driving has been described as "irrational", "breathtaking" and "ludicrous"

Hello? This is Cootes, you're fired
Hello? This is Cootes, you're fired
By Brad Gardner | January 31, 2011

A truck driver who sought financial compensation after being sacked for repeatedly talking on his mobile phone while driving has been called "irrational", "breathtaking" and "ludicrous".

Fair Work Australia Deputy President Peter Sams threw out an unfair dismissal claim from Ben Starkey but not before criticising the fuel tanker driver for his actions.

Starkey worked for Cootes Transport, which in accordance with driving laws has a strict policy against using handheld phones while driving.

Starkey admitted to breaching Cootes’ policy – and the law – on nine separate occasions on March 25 last year after phone records showed he sent text messages and made calls while behind the wheel.

He was sacked when witnesses reported him talking on the phone at 12:08pm on the same day while driving through a local NSW town, but the time did not show on the company’s phone records.

Starkey claimed he was unfairly dismissed because he lost his job for an unrecorded breach instead of the other nine offences. He wanted compensation of three weeks pay to cover the time spent finding another job.

"The applicant’s arguments were boldly breathtaking – some might say, even quite ingenious. However, in my view, they are completely irrational and utterly implausible," Sams says.

"Surprisingly, the applicant’s defence was that because these nine occasions were not the times identified by the respondent as the basis for his dismissal that he had been dismissed for the wrong reason and consequently his dismissal was unfair."

Starkey claimed the witnesses had seen him cradling his head on his hand and that he was the victim of union "collusion" with the company to get rid of drivers that were not part of a "favoured clique".

"The propositions he advanced only need to be stated to demonstrate how ludicrous they are. Given the applicant’s own admissions, it is patently obvious that he was in flagrant breach of the respondent’s policy, and the law, on numerous occasions," Sams says.

"Even if he had not been using the mobile phone at the exact time the respondent had alleged (which I very much doubt), it is simply nonsense to submit that the respondent ‘got it all wrong’ and he had been unfairly dismissed."

Documents show Starkey sent a text message and made an 11 minute call on separate occasions while driving at speeds of 100km/h.

"It cannot be emphasised enough that the applicant’s repeated and flagrant breaches of the respondent’s policy and the driving laws are extremely serious matters and must, on any objective view, constitute gross and wilful misconduct," Sams says.

"His misconduct not only put his own safety in peril but that of the road travelling public and the general community…It cannot be condoned or explained away by implausible and ridiculous explanations."

Starkey had previously breached the company’s policy on mobile phones and had been warned in 2009 against reoffending.

Sams says Starkey had a "single minded objective to defend the indefensible and built his case on "a totally flawed and illogical premise". He also labelled "incomprehensible" Starkey's refusal to accept a settlement offered by Cootes.

In its dismissal letter to Starkey, Cootes accused him of a wilful disregard for company policy and the law despite previously assuring the company the behaviour would not happen again.

"I conclude that the applicant’s dismissal was for a valid reason, in that he frequently breached the respondent’s reasonable and lawful policy of not using the mobile phone while driving," Sams says.


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