A haul truck driver at a NSW open-cut coal mine has been dismissed after allegedly interacting with her mobile phone on 10 separate occasions over six months.

The employee contended the phone had been switched off but – while plugged into a portable battery pack – turned itself on after charging sufficiently.

She raised other possible explanations as to why she had been captured turning her face towards the passenger seat, and for flashes of light on her face.

Footage from an in-cabin camera was inconclusive.

There was no vision of a mobile phone or of the driver operating one.

However, a scientist gave expert opinion on whether an infrared light source, such as that emitted from iPhone Face ID technology, could explain the brights dots and flashes in the videos.

Background

Under the mine’s policy, employees are prohibited from interacting with mobile phones while driving haul tracks – or even having the devices turned on.

All truck cabs are installed with a Hexagon Operator Alertness System (OAS), which uses an infrared sensor/camera to detect fatigue and distracting events.

The mine relied on OAS video footage to determine that 10 times between January and June 2024, the employee engaged with her mobile phone while operating a haul truck.

The observations were based on:

• The employee repeatedly looking down at the passenger seat for prolonged periods of time.

• Flashes of light and bright spots on the employee’s face while she was driving the truck. Normally, the OAS did not produce footage showing bright dots. The mine’s technology coordinator said he had only ever seen the phenomenon as a result of mobile phone use, or in one case, an e-reader.

During an investigation, the driver denied the allegations. At first, she said the phone was turned off and in her bag. Alternative explanations for her head movements included looking out the window for “potential vehicle interactions”, removing food or drinks from her bag, her book dislodging from the bag and her preventing its fall or cleaning up or stopping a drink from spilling. She also said a headlamp may have flashed after her hard hat fell against the passenger door.

The employer decided none of these explanations could account for the particularities of the footage.

After the employee was terminated, she filed an unfair dismissal application with the Fair Work Commission.

Expert determines if light was from mobile phone

The mine called evidence from an optics physicist, skilled in measuring infrared light, who determined that five of the 10 alleged incidents were “clearly or likely indicative” of an active mobile phone.

He said Face ID technology used infrared light to establish the presence of a face.

Examining the first incident, the expert witness concluded “widespread use of Face ID on Apple iPhones, coupled with the fact that mobile phones are frequently carried on/near a person and kept within arm’s reach, mean that in all likelihood the flashes and dots observed in the video are caused by an infrared light source in a mobile phone”.

The employee maintained during her investigation interview and her show cause response that her phone was always turned off and kept in the back pouch of her crib bag on the cab seat.

However, the FWC hearing into her claim was adjourned on 3 December 2024 (recommencing with further submissions on February 2025) after the driver’s reply witness statement raised for the first time that her phone had inadvertently powered on in the truck cab while plugged into a portable battery pack.

The employee stated:

“The phone turns itself on automatically once it is sufficiently charged. I have noticed at times that the screen lights up when it is in my bag.”

Deputy President Saunders found the employee’s evidence on how often this had occurred was “unconvincing and inconsistent”.

He said:

“I do not accept (the employee’s) denial that she did not interact with her mobile phone while driving a truck at the mine. The interactions involved (the employee) looking at whatever information was displayed on her phone while it was turned on in the cab of the haul truck. Interacting with a mobile phone while driving a haul truck on the mine is a serious breach of the Policy. It provided (the mine) with a sound, defensible and well-founded reason to terminate … employment.

“I accept that the dismissal has been difficult for (the employee of 19 years’ service) both personally and economically. However, I consider that the seriousness of the conduct … outweighs the harsh consequences of the dismissal. Not only was it dangerous … to drive a haul truck at the mine while having her phone turned on and interacting with it, the extent to which (the employee) is seen in the video footage to be looking down and to her right [on the rear-facing camera] 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.

“There have been many instances where employees have been seriously injured or killed in the mining industry as a result of drivers of haul trucks not paying sufficient attention to the task of safely operating the truck.

“My assessment is that (the) dismissal was not disproportionate to the gravity of her misconduct. (It) was not harsh, unjust or unreasonable.”

Implications for employers

This decision aligns with other safety-focused findings and is a strong precedent for all businesses which employ drivers.

As technology improves, so does an employer’s ability to monitor employees. The surveillance was not carried out unreasonably, being utilised to reinforce safety protocols.

Introducing an expert witness to make intelligent and independent evaluations was a prudent step.

Despite a lengthy process, the decision to terminate was sound and not ultimately overturned.