Note: Appeals pursuant to s.604 (C2011/6900, C2012/2927) were lodged against this decision - refer to Full Bench decision dated 8 December 2011 [[2012] FWAFB 5776] for result of appeal.

[2011] FWA 8025

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Paul Carter
Qantas Airways Limited



Termination of employment - Arbitration


[1] This decision relates to the application made by Mr Paul Carter (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) seeking reinstatement on the basis that the termination of his employment by Qantas Airways Limited (the Respondent) for serious misconduct was harsh, unjust and unreasonable.

[2] The Applicant was represented, by Ms Jennifer Beck, Counsel, instructed by Mr Bogan. The Respondent was represented by Mr Chris Murdoch, Counsel, instructed by Mr Li of Blake Dawson Solicitors.

[3] The matter proceeded to conciliation before Fair Work Australia (FWA) but was unable to be resolved and was therefore referred for arbitration. Several conferences were held on issues relating to the discovery of documents.

[4] Directions were set for the filing of evidence and submissions. The matter was heard over six days. The dates were set by consent with Counsel. Further directions for the filing of final submissions were set by agreement. Whilst not all of the material that has been provided is referred to in this determination, all of such has been considered. It is particularly noted that whilst 2 volumes or “tender bundles” were provided for the Applicant, only those documents that have been tendered as exhibits have been taken into account in the matter.

[5] The hearing dates in this matter were held over by consent whilst a related matter was dealt with in another jurisdiction. The related matter was in relation to the alleged fraudulent activity of another employee. It was considered that the Applicant’s conduct was initially associated with this ‘other employee’. The matter of ‘the other employee’ went before a Magistrate for a committal hearing but was dismissed. 1


[6] The Applicant had been employed by the Respondent since 1985 in various positions; initially as a cargo clerk at Cairns Airport, then in Reservations and the retail office.

[7] In 1990, he was transferred to Brisbane to the Reservations Department. In 1996 he was transferred to the Qantas Domestic Terminal at Brisbane Airport as a Level 3 Customer Service Agent (CSA).

[8] The Applicant provided detail regarding each of these roles, the associated duties, the reservation systems used and the level of associated training he was provided.

[9] In 2005 the Applicant became ill with head and neck cancer, and had extended paid sick leave of 180 days from his accrued entitlements. A further 76 days of sick leave entitlement remained after this. In September 2006 he made a partial return to work and resumed working 8 hour shifts on 27 August 2007.

[10] The Applicant was employed by the Respondent as a full-time Customer Service Agent (CSA); until 31 March 2009, when he was suspended from duties (with pay but without travel benefits). The Applicant’s employment was terminated for allegations of serious misconduct on 28 August 2009. The Applicant denied the allegations, that his conduct was in breach of company policy or was serious misconduct and has sought reinstatement.

[11] The Respondent alleged that the Applicant had engaged in breaches of company policy in relation to numerous bookings or alterations, that had resulted in a loss of revenue for the Respondent. The Applicant had at all times denied the allegations. It was submitted that the Applicant’s dismissal; was not undertaken in accordance with the Respondent’s Disciplinary Policy or Appeals Policy.

[12] The Respondent in the ‘Show Cause’ letter to the Applicant, set out the findings regarding misconduct, as follows:

[13] In the ‘Further Transactions Identified for your Response’ correspondence to the Applicant, the Respondent stated:

[14] The Applicant provided detailed responses to these letters, (the following is an extract):

[15] The ‘Outcome’ in the letter of termination of 28 August 2009 to the Applicant, stated as follows:


[16] This application was made pursuant to s.394 of the Act. Section 387 of the Act specifies the criteria that FWA must take into account when considering whether a dismissal was harsh, unjust or unreasonable. The relevant sections are set out as follows:


[17] The following witnesses provided evidence on behalf of the Applicant’s case, in the form of Witness Statements:

[18] The following witnesses provided witness statements on behalf of the Respondent:

Summary of the Submissions of the Applicant

[19] The following summary does not provide an account of all matters raised in the series of written submissions in the matter, but all have been considered. It was submitted on behalf of the Applicant, that the allegations against him that led to the dismissal, arose against a background of advice provided in December 2008, to Ms Lyn Preston, Customer Services Manager. The advice indicated that customer service staff may have been accepting goods for upgrades on flights. The rumours did not refer to the Applicant and it was submitted that he had not been accused of upgrading passengers.

[20] As a result of the advice to Ms Preston, it was submitted that Mr Tregarthen, the Regional Security Manager, commenced monitoring the online activity of three staff members. The Applicant was not one of these staff initially investigated.

[21] It was argued on behalf of the Applicant that:

[22] It was argued that the Applicant’s dismissal was harsh, unjust or unreasonable and that the Respondent had not met the evidentiary onus, to support its contention, that the termination was on grounds of serious misconduct. Further, the Applicant submitted that the Standards of Conduct Policy and the Qantas Airways Disciplinary Process, which provide for alternatives to dismissal and appeal rights, had not been appropriately applied to him.

[23] The Applicant submitted that no allegations or findings of fraud or dishonesty had been made against him. It was stated that, had his case, been assessed separately to the significant allegations made against “the other employee”, his employment would not have been terminated, but he would have been subject to counselling or warnings. It was submitted that the Applicant’s behaviours would have been either ignored, if it related to staff rebooking or, treated similarly to the approach on 10 February 2009, where he was commended for his work in rebooking passengers and certainly no disciplinary action taken against him.

[24] It was argued that the consequences of his treatment in linking him to the possible fraudulent conduct of others and terminating his long-term career, were grossly disproportionate to his actual offences.

[25] Predominantly it was stated on behalf of the Applicant that his conduct amounted to: rebooking tickets in circumstances where there “is no evidence that Mr Carter has broken any policy, no evidence of dishonesty and no evidence that Mr Carter received any benefit.” 6

[26] The Applicant’s submissions were generally dismissive of the Respondent’s evidence as follows:

[27] It is noted that those matters of alleged collusion of witnesses, were not specifically put to the witnesses, nor their responses sought. The submission that Mr Waddell’s (Head of Domestic Networking and Pricing) evidence be excluded on the basis that it was in contravention of section 76 of the Evidence Act (Cth), on the basis that it does not “come within any recognised exception,” was also not specifically put to him in the terms set out below. 8 The Applicant’s submissions stated that:

[28] These issues relating to the credit of this witness evidence, that is if his evidence, or the manner in which he reached his conclusions, had no foundation, were issues to be substantiated in cross-examination of this witness.

[29] The Applicant’s submissions stated in relation to Mr Waddell’s evidence:

[30] The Applicant emphasised that these issues were raised in the initial submissions in reply, prior to the hearing and that the Respondent did not address these factors. The Applicant bears an onus to conduct the case to demonstrate the unfairness of the termination. These were all issues that should have been part of the cross-examination of this witness. However, it was submitted for the Applicant, that no basis for the particulars were adduced, to establish the basis of Mr Waddell’s reasoning process in relation to the Applicant’s booking activity impacting on revenue. If the Applicant took issue with this evidence, it was necessary to challenge the evidence in cross-examination; to establish that Mr Waddell’s evidence lacked proper reasoning. Having made this assessment; the submissions on behalf of the Applicant in relation to the evidence have been carefully considered, as follows:

[31] The Respondent has an onus to demonstrate; the loss of revenue; where part of the reasoning for the basis for the termination, was that the bookings resulted in a loss of revenue.

[32] A number of witnesses provided evidence in support of the Applicant’s reference to the established culture. It is also acknowledged that a number of these witnesses were no longer in the employ of the Respondent. Mr Edmund Fordham, a former CSA who retired in 1997, Supervisor at Brisbane Airport stated:

[33] Mr John Gibson, a current telephone Sales Supervisor stated:

[34] Mr John Lacey, a Qantas employee of 22 years (retired in March 2009), stated:

[35] Mr Brenan Hole, a CSA of more than 20 years stated:

[36] Mr Hole had received a warning, he had been found to have engaged in several unauthorised booking changes (fewer than the Applicant) but also upgrades for passengers.

[37] It was contended on behalf of the Applicant that he had never been trained in the requirement to seek authorisation prior to exercising the discretion to make booking changes. Further, that his actions were in accordance with the Respondent’s workplace operations, his experience, the culture and accepted practice at the workplace. He stated he had no knowledge of, and had not been trained in fare differences. He had also not received the Airport Product Services Manual, or the Standards of Conduct Policy and had not received any contrary directions to the ticketing practices he had undertaken (apart from the US related bookings).

[38] The Applicant stated that his last performance appraisal had occurred for the period 1 July 2001 to 30 June 2002, for which he was assessed as a sound overall performance.

[39] In defence of his actions in changing the bookings the Applicant stated:

[40] It was argued on behalf of the Applicant that the real reason, that the Respondent activated his dismissal was that they had formed a premature view, that he had engaged in fraudulent conduct via association with ‘the other employee’. The Applicant argued that even though the Respondent had paid the Applicant 5 weeks wages in lieu of notice, the dismissal was stated to be based on ‘serious misconduct’. The Applicant submitted this was unsubstantiated.

Summary of the Respondent’s Submissions

[41] The following provides a summary, of a range of the arguments, raised in the series of submissions filed, all of which have been considered. The Respondent contended there was a valid reason for the termination of the Applicant’s employment, for serious misconduct based on the numerous unauthorised booking changes; in circumstances, where his actions were in breach of the Respondent’s fare rules.

[42] The Respondent stated that the unauthorised booking changes, prevented the Respondent from achieving the best revenue yields for its flights. They also submitted that the ticket alteration actions by the Applicant, provided advantages to selected customers only.

[43] The duties of the Applicant which were outlined by the Respondent as part of his CSA role; included face-to-face check in of passengers travelling out of Brisbane at that time at the check-in counter; by checking-in passengers, issuing boarding passes, baggage tags and excess. Reservations were not part of his duties at that time. The Applicant agreed with this assessment of his duties.

[44] In particular from 27 August 2007 to 3 March 2009 he undertook 2 hours of these check-in duties as outlined in his 8 hour shift. For the other 6 hours of his shift he undertook ‘coupon work’. This work was conducted in a room upstairs and did not involve customer contact. The work involved reconciling hard copy tickets against the names of passengers who had boarded a flight.

[45] The Respondent set out their fare rules as follows:

[46] When booking, customers confirm they have read the fare rules and are aware of the associated ticket conditions. The fare rules for domestic economy class tickets have predominately remained the same since 2003 in relation to restrictions and penalties. The Respondent set out the booking process and how the Applicant’s conduct repudiated the process and booking conditions:

[47] The Respondent emphasised that the fare rules prohibited particular changes with the class of tickets. Passengers were aware of these conditions at the time of purchase. The changes the Applicant made; ignored the conditions.

[48] The Respondent submitted further that the implications of a CSA, changing bookings without abiding by the fare rules and conditions were as set out below:

[49] The Respondent also specified a number of ways a passenger’s flight booking can be altered as follows:

[50] The Respondent submitted:

[51] The Respondent stated, the Applicant’s evidence indicated his disregard for the ‘flow forward’ situation and the announcements that indicated a changed status of operation, and that he engaged in this conduct without such an authorisation.

[52] The Respondent submitted:

[53] There was contrasting evidence between, the Respondent’s witnesses (and some of the witnesses for the Applicant), in comparison to that of the Applicant’s evidence, in that they had a knowledge, of the range of different tickets for domestic travel, with accompanying conditions.

[54] The Respondent stated:

[55] The Respondent also emphasised that the Applicant was aware that there was a ticketing counter within the Brisbane terminal. He acknowledged the CSA’s had no capacity at the check in counter to make monetary transactions in relation to their fare changes. However, his evidence was that he had no knowledge of the work performed at the ticket counter and he had no knowledge of the necessity to collect ‘change fees’ from customers.

[56] Whilst previously working in the reservations system, the Applicant had used the Amadeus system. He continued to rely on this. However, at the time of his dismissal CSA’s at airport check-ins used the ALTEA CM computerised system. The Respondent compared the two systems as follows:

[57] The Respondent set out the Applicant’s knowledge of the ‘Amadeus’ system as follows:

[58] The Respondent submitted that the Applicant’s consistent stated position, that he was not aware of the fare rules and implications; discredited him as a witness and undermined any trust and confidence the Respondent could have in him in discharging his CSA duties.

[59] The Respondent referred to the Applicant’s evidence, in relation to his stated lack of knowledge on the fares and that such discredited him:

[60] In this regard the Respondent referred to Booking Q as evidence of the Applicant making such alterations.

[61] The Respondent argued that the Applicant’s conduct with this overseas travel and fare activation beyond 12 months, demonstrated the disregard the Applicant had for the Respondent’s core business requirements of him.


[62] The evidence of Ms Jasmine Sharrock, Senior People Advisor - Brisbane Airport, stated that 10 employees of the Respondent were being investigated for being involved in unauthorised changing of flight bookings exposing the Respondent to a loss of revenue. Various disciplinary outcomes occurred in relation to these employees.

[63] In relation to these employees Ms Sharrock stated:

[64] Ms Sharrock noted that throughout the investigation, she did not find the Applicant showed any remorse for his actions. This was in contrast to other employees who had (fewer unauthorised bookings) but had expressed remorse and had received warnings. The Applicant had not expressed remorse, as he consistently maintained the bookings were undertaken openly in accordance with the discretion afforded to CSAs.

[65] Ms Sharrock stated that it was decided that no further questions would be put to the Applicant at the termination meeting and therefore not having his barrister present at this meeting, would not prejudice him.

[66] Part of the case on behalf of the Applicant was that the Respondent could not definitively state whether a loss had been suffered as a result of the Applicant’s fare and ticket changes. It was proposed that if the Respondent undertook an elaborate exercise of assessing whether detriment was actually suffered by the Respondent, it may have found that his ticketing/booking changes may have actually improved revenue yields. That is, the Applicant contended that the Respondent needed to check whether, after the point of the Applicant changing the ticket, a full-fare paying customer had ultimately filled the seat vacated by virtue of the fare change. To avoid such detriment generally, the Respondent had the fare rules in place and expected them to be observed, except in cases where emergent circumstances of weather or the necessity of getting flights to depart on time, meant that “flow forward” directives were given.

[67] However, in stating such, it has been necessary to consider the circumstances of the Applicant’s conduct, against a background of what has been described by the Applicant, as an “established culture” at the Brisbane domestic terminal. The Applicant’s case was that CSAs had a discretion to alter ticketing to generally assist customers, such as ‘late’ customers. The re-booking activity had been condoned at this workplace for some time (as generally part of customer service to passengers depending on the circumstances CSAs were met with), until these matters involving ‘the other employee’ arose.

[68] It is recognised that evidence was presented, where the Applicant had successfully assisted customers, by rearranging their travel, by changing tickets (outside of the fare rules). His ability to do this, had been known by the Respondent, and he had been commended by customers and the Respondent for such activity. In this regard, the Applicant had certainly not received a consistent message about his conduct.

[69] However, it was also part of the evidence, that he had been advised to discontinue particular ticketing practices (related to US travel) via a record of discussion. The Applicant’s conduct must also be considered in accordance with that of other employees, who had received an alternative disciplinary course to dismissal, for fare rule breaches. The Applicant, had not been afforded an alternative to termination, nor had an opportunity to appeal such.

[70] The Applicant’s insistence that he was unaware of the different ‘Qantas’ fare types (apart from the variety of letters) and the associated fare rules is difficult to reconcile. The Applicant’s explanations for this lack of knowledge, have been taken into account. That is, he stated he had a lack of training in the tickets, new ticketing systems, the fare types and rules and a limited need to know the distinctions between the tickets.

[71] The Respondent stated that the Applicant’s “repeated denials of his awareness of his wrongdoings prior to his stand-down are unpersuasive”. However the Respondent could not provide a record of training for the Applicant in the ALTEA CM or the fare rules and conditions. The Applicant also could not recall being trained on the ALTEA CM. 30 Exhibit 22 ‘Training Records’ only provided evidence of training in the Amadeus system, the system the Applicant deferred to. Ms Simone Kennedy, Training Co-ordinator, confirmed she could not see any record of ALTEA CM training for the Applicant.31 She also conceded the “check-in system training was provided at a very, very basic level”.32

[72] The Respondent argued that the Applicant was aware of the differences between fares, and the evidence supported, that the Applicant ignored the “numerous systems and signposts” in the ticketing system, that made the Applicant aware that he was breaching the fare rules. The Respondent emphasised that whilst the old Amadeus System allowed the changes, a number of the fare changes cannot be amended in ALTEA CM and a number required the payment of fees and charges.

[73] The Applicant’s reasoning, justifying his ignorance of the different fare categories has been considered. He argued that his ignorance related to his lack of training in the current ALTEA CM ticketing system, and his reliance on the old Amadeus system, which he had been trained in, he was experienced in using and was still available. Further, he stated, he had little need to know the difference between fares as the CSAs had a discretion to change the tickets and that such ticketing changes were condoned over a long period by the Respondent, at Brisbane airport. In addition, the Applicant stated, whilst he was not aware of the difference between the fare categories or associated conditions, he would mainly match the letters for fare changes; that is, changing like with like.

[74] Although, it is difficult to comprehend that the Applicant had no knowledge, that there were different fare categories; given his length of service with the Respondent, his work in the reservations department, the retail office, the ticketing department and as a CSA in the terminal, the Respondent has not demonstrated that training was provided to the Applicant or that the culture did not actually exist.

[75] The Applicant had engaged in this conduct for sometime without audit by the Respondent. It is recognised that the Applicant’s rebooking activities provided an inequity between the treatment of passengers and disregarded the nature of their tickets. The Applicant’s consistent evidence was that; he had operated to assist customers with their travel requirements and it had not been an issue previously at the domestic terminal. In fact the Respondent had been aware of his activity in re-booking and his use of Amadeus. They had commended him for such conduct, related to re-booking of a family on 10 February 2009.

[76] The Applicant rebooked late passengers without authority or referral, to the tickets desk, or the Duty Airport Manager for permission. Penalties may have been applicable for the rebooking. However the evidence reflected that he and other CSAs had engaged in this activity on an open basis for some time, without being checked, appropriately counselled, disciplined or stopped. This activity, on the evidence, as related to the employees in question, referred to a minor number of alterations overall and does not undermine the confidence in the Respondent’s fare system.

[77] Of significant concern to the Respondent, was the Applicant’s involvement in amending a customer’s flight booking, weeks or months in advance of the travel date. Further it was difficult to comprehend why the Applicant would have been moved to alter a customer’s ticketing arrangements when this did not include travel through Brisbane Domestic Airport, or outside of the 12 month period of the ticket.

[78] However, the evidence suggested that the CSA alterations were occurring without the authorisation the Respondent expected. It was open to the Respondent to audit the work of the CSAs and also to assess why the Amadeus system was still being utilised, if this was not their preferred operational system. The Respondent was able to produce detailed information of the CSAs’ activities with PNRs, accordingly this information could also have been used to ensure regular compliance. There was also a minimum of information provided by the Respondent on the training the Applicant had received in ACTEA CM, and a lack of information regarding the provision to the Applicant of the Respondent’s policy documents and, Product Services Manual; that set out the required conditions and authorisations for the fares.

Section 387

[79] As required of s.387 of the Act, the following matters must be taken into account by FWA when considering whether a dismissal was harsh, unjust or unreasonable:

s.387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

[80] The Respondent stated the evidence of the numerous unauthorised booking changes provided a valid reason for the dismissal.

[81] Whilst no case of fraudulent activity can be sustained against the Applicant; it is questionable whether valid operational reasons existed to support the Applicant exercising a discretion, he maintained he held, in relation to each incidence of booking alterations. However, in the main, the booking changes were activated openly, with a motivation by the Applicant, that demonstrated his naive enthusiasm towards service to customers and colleagues, with disregard to any restrictions. He had been commended for this customer service, for using his initiative in this way, without authorisation. His activity was undertaken in accordance with this discretion, he understood he held. There was no evidence of the Respondent monitoring the CSAs work prior to the issues arising with the ‘other employee’. In fact the ‘established culture’ had as a basis, the aim of customer service and timely departures and this was the overarching basis that the Applicant stated for the changes. Taking into account, all of the circumstances; no valid reason was made out and none that demonstrated that the Applicant had engaged in serious misconduct.

s.387(b) whether the person was notified of that reason; and

[82] The Applicant was provided with a ‘show cause’ letter setting out the allegations. The further allegations were provided to him with attachments including the PNR’s or the computer tracking changes of the booking changes, and a guide to the different fares. The Applicant was made aware of the nature of the bookings in question. The association of these bookings with that of ‘the other employee’ was also included in the allegations. The letter of dismissal set out the reasons for the termination of his employment, but did not refer to the Applicant’s avenue of appeal to the decision. Whilst the Applicant was properly notified of the reason, he was entitled to have his appeal rights set out.

s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[83] The Applicant was stood down on pay, on a without prejudice basis, to allow him to respond. The Applicant then received a ‘letter of allegation’ from the Respondent, detailing 10 allegations to which he responded.

[84] The Respondent further wrote to the Applicant detailing their findings. At this point the Applicant engaged a lawyer to act for him. The lawyer wrote on his behalf to the Respondent. The Respondent wrote to him again setting out a further 23 booking changes for his response. Two further responses were provided. The Applicant received notice that the Respondent had terminated his employment.

[85] The Applicant was provided with a series of opportunities to respond to the allegations. It is recognised that the Applicant considered that he was at a disadvantage at particular stages, in providing a response to the series of entries, that formed part of the allegations. When the matter came to hearing in these proceedings, he had had access to a comprehensive set of discovered documents and had the ability (with his barrister) to fully assess the entries and provide his appropriately considered responses to the allegations. His position, as provided in his responses, was not significantly altered at hearing, from the original responses he presented, prior to the termination.

[86] The Applicant contended, denying him the ability to provide appropriate responses without his barrister was a significant procedural flaw. 33 However this was only potentially an issue at the dismissal meeting, when his barrister was not available. Having assessed the material regarding the original responses; his later responses provided with the assistance of his barrister and his responses in cross-examination, evidence has not emerged that demonstrated that the procedure provided to the Applicant (regarding his opportunity to Respond) was deficient to such an extent that his awareness of the allegations, or his ability to respond was compromised.

s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

[87] In relation to s 387 (c) and s 387 (d); the procedural flaws in the termination process that have been emphasised on behalf of the Applicant, have been taken into account. These include the manner of the dismissal, the inability of the Applicant to have his representative, his barrister present, and the lack of communication about his appeal rights to the Applicant at the termination meeting and in the associated correspondence.

[88] It is necessary to assess the Applicant’s conduct and the nature of the procedural flaws. Given the nature of the Respondent’s corporate entity and size, and their ability to access dedicated human resource specialists; it is noted that such procedural flaws arose in the process. Consideration has been afforded to the process deficiencies (regarding the omission of the appeal avenue and the lack of consideration to alternatives to dismissal), particularly given the gravity of the dismissal decision for the Applicant, and his significant length of service.

[89] The Applicant’s evidence regarding the immediate impact of the termination decision; on him, has been considered also. The Applicant described the effect of the dismissal decision. He described how his reaction was all the more stark; given he had no representative or support person with him.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

[90] The Respondent set out the context of the Applicant’s conduct in undertaking numerous unauthorised booking changes as a CSA at Brisbane Domestic Airport. The Respondent submitted that based on the Applicant’s areas of work, length of service and experience he knew his actions were in breach of the Qantas fare rules.

[91] The Applicant was a long serving employee, whilst he had received correspondence to desist from certain of the re-booking actions, he had not received any counselling and/or warnings for the conduct complained of. This was a matter that required the proper application of the disputes procedure. Disciplinary steps, prior to dismissal were appropriate

s.387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and s.387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[92] The Respondent is a large employer with dedicated human resource management specialists available. The final termination advice and process (without a required reference to the appeal process) should not have occurred; given the repercussions of the decision for the Applicant.

s.387(h) any other matters that FWA considers relevant.

[93] Consideration has been placed on the Applicant’s significant length of service. He and his wife have been part of the employees of the ‘Qantas family’ for many years. Other factors submitted as relevant to the Applicant’s circumstances were his age; his prior ill health; that they have a teenage son; and that this is the nature of the work he has undertaken for many years.

[94] In addition; the Applicant raised as a relevant consideration, the embarrassment and damage to his reputation, the Applicant stated he experienced, in being falsely accused by the Respondent and associated with the suspected fraudulent activity of the ‘other employee’; without receiving an apology for such.

[95] Further, the importance of the Respondent, offering equitable treatment to its customers, by ensuring CSA’s honour the fare rules, to ensure no customer receives an unfair advantage, was taken into account. In addition, the reasonable expectation of the Respondent to have trust and confidence in the manner in which employees discharge their duties was considered.

[96] The Applicant’s denial of any knowledge of the variety of fares and associated conditions was considered to be a very remote position, based on his service, roles and experience. However in parallel to this, the evidence that an ‘established culture’ existed, whereby the Respondent countenanced the fare changes was examined against the allegations. The circumstances where the Applicant was afforded a commendation for service in assisting passengers where alterations were required, without seeking authorisation; was attributed weight in the circumstances.

[97] The proper application of the Respondent’s Disciplinary Procedure is an important and relevant consideration. The Applicant referred to the deficiencies in the application of the Respondent’s ‘Employee Misconduct and Disciplinary Policy’ to the Applicant. The policy states:

[98] The policy also states:

[99] The policy provides for a range of formal and informal disciplinary processes to address misconduct or unacceptable behaviour. Within the formal process;

[100] In selecting the appropriate disciplinary action the policy states:

[101] With regard to dismissal, the policy requires consideration of the alternatives to dismissal first. No proper consideration of alternatives was demonstrated:

[102] In addition the policy includes appeal rights for employees as follows:

[103] The Employee Appeals Policy sets out the internal process, which states in particular:

[104] There was a lack of proper application of the disciplinary policy, in terms of the omission of a support person, the communication of appeal rights and the lack of considerations of alternatives to dismissal; particularly given the Applicant’s 24 years of service.


[105] The dismissal for ‘serious misconduct’ on the basis of the material presented is not commensurate with the definition of such in Regulation 1.07 of the Fair Work Regulations 2009. There was no evidence that the Applicant acted to gain any personal or pecuniary or other advantage or acted directly to deprive the Respondent of an interest. There was no evidence to sustain a breach in terms of Regulation 1.07 such as theft, fraud, or direct evidence of refusal to carry out a lawful or reasonable instruction. The Respondent reacted prematurely to the information that the Applicant was associated with the alleged conduct, of the ‘other employee’ suspected of fraud.

[106] There was evidence that the Applicant engaged in the conduct of unauthorised booking changes in the context of the Respondent’s strong focus on customer service which was instilled in employees. In accordance with this the Applicant stated, that he engaged in the re-bookings; simply to assist passengers and co-workers. This evidence revealed his drive to provide customer service, for which the Respondent had commended him.

[107] Whilst, a number of re-bookings relate to simply amending travel bookings in line with customer’s travel preferences, in situations where although he provided reasons for the amendments, it was apparent there was no valid operational basis for his involvement or for him to be drawn into changing the fares. The Applicant via this activity contributed to the situation; it was open to the Respondent to commence a disciplinary process on this basis.

[108] The initial suspicions of the Respondent that ‘the other employee’ and by association the Applicant; were involved in fraudulent conduct in the re-bookings being undertaken, have not been made out.

[109] Whilst, the Applicant had engaged in re-booking in breach of the fare rules; with the Respondent stating a possibility that such equated to a revenue loss of ‘$4000.00’, 34 there was no direct causal link to such a loss, made out.

[110] The Applicant’s conduct in changing the bookings in breach of the fare rules; which should have been known to him cannot be condoned. The possible level of loss does not diminish the activity. However these are performance issues that given the Applicant’s length of service, that in the first instance should have been the subject of performance management to remedy the conduct; prior to the direct escalation of the disciplinary policy to dismissal.

[111] The conduct also has to be measured in the context of the positive sanction for some re-booking activity, that the Applicant had received. The conduct does not equate, in all the circumstances to ‘serious misconduct’.

[112] There was evidence regarding the ‘established culture’ existing at the workplace for some time. The culture provided the CSAs, with a discretion to assist customers to ensure their travel was effected and planes departed in a timely manner to avoid the Respondent incurring penalties. Having stated that, a range of the Applicant’s amendments to bookings, did not have such defined operational bases. These were matters that should have been identified; at the time and dealt with on an incremental basis against the disciplinary policy.

[113] On the evidence it cannot be conclusively found that the Applicant was deliberately circumventing the ALTEA CM system, to make the changes in the Amadeus system. However it is clear that the Applicant’s deferral to the Amadeus system, masked the alerts to the fare rules and conditions, related his re-bookings.

[114] The Applicant had not received appropriate training in the ALTEA CM system, but had been using it. He had received training in the Amadeus system, which he was very familiar with and it remained available to be used. It was open to the Respondent to prevent or limit the use of the Amadeus system. The assessment of the PNRs for the booking amendments on 10 February 2009, for which the Applicant was commended; would have indicated his use of the Amadeus system. Also given this commendation (for similar activity for which they also complained of) it is considered there can be the trust and confidence in the employee.

[115] Taking into account all of the circumstances of this matter, the dismissal is considered to be harsh, unjust and unreasonable. The Applicant sought reinstatement as the remedy. Reinstatement with continuity of earnings from the date of dismissal is not considered appropriate, given the Applicant’s contribution to the circumstances, particularly in relation to the bookings made without valid operational reasons. It was open to the Respondent to commence a disciplinary process for these. The move to dismissal for serious misconduct in the circumstances was unwarranted. There were a number of deficiencies in the conduct of the Applicant, similar to the conduct other employees were warned for. It was highlighted erroneously that the Applicant did express remorse. The case for treating the Applicant in such a comparatively different way was not made out.

[116] As stated the Applicant contributed to the circumstances. However on the Respondent’s part there was in relation to this employee, inadequate monitoring of the bookings, training and performance reviews, all of which may have averted the events.

[117] The Respondent also did not appropriately apply their disciplinary procedure. The Applicant had more than 20 years of service; he deserved to have all alternatives to dismissal be exhausted. This was not done. Further he was not advised of the appeal process in relation to the dismissal decision. This should have been made clear to him.

[118] For the aforementioned reasons and in recognition of the failing on the part of the Applicant as referred to but also in the Respondent’s decision to dismiss; a remedy of reinstatement with a continuity of service is considered appropriate, but without continuity of payment of wages.

[119] It is of course emphasised, that conduct considered to be in breach of the fare rules and CSA obligations, by the Applicant (once appropriate directions, training and product manuals have been provided) may obviously, in future, be viewed in a different context.

[120] Order (PR517011) is separately issued.



Ms Jennifer Beck, Counsel, instructed by Mr Bogan, for the Applicant

Mr Chris Murdoch, Counsel, instructed by Mr Li of Blake Dawson, for the Respondent

 1   Applicant’s Final Submissions, [7].

 2   Show Cause Letter.

 3   ‘Further Transactions Identified for your Response’, Show Cause Letter,

 4   Witness Statement of Mr Paul Carter, [5]-[8].

 5   Applicant’s Final Submissions, p 2-3.

 6   Applicant’s Final Submissions, [18].

 7   Applicant’s Final Submissions, [113].

 8   Applicant’s Final Submissions, [21-22].

 9   Applicant’s Final Submissions, [23].

 10   Applicant’s Final Submissions, [31].

 11   Applicant’s Final Submissions, [33-35;] and [ 37].

 12   Witness Statement of Mr Edmund D. Fordham, [6-12].

 13   Witness Statement of Mr John Gibson [4-7].

 14   Witness Statement of Mr John Lacy [4-11].

 15   Witness statement of Mr Brendan Hole [1-4].

 16   Witness Staement of the Applicant, [6-8].

 17   Respondent Final Submissions [17 - 37].

 18   Respondent Final Submissions [17 - 37].

 19   Respondent Final Submissions[17 - 37] ,Witness Statement of Mr Smith [17 -18] [38-48] and [61-62].

 20   Respondent Final Submissions [7].

 21   Respondent’s Final Submissions [44]

 22   Respondent’s Final Submissions [47]

 23   Respondent’s Final submissions, page 2.

 24   Respondent’s Final Submissions [12-14].

 25   Respondent’s Final Submissions [15-16].

 26   Respondent’s Final Submissions [38].

 27   Respondent’s Final Submissions [38].

 28   Respondent’s Final Submissions [38].

 29   Witness Statement of Ms Jasmine Sharrock [8-10].

 30   Transcript PN 267.

 31   Transcript PN3434.

 32   Transcript PN 3471.

 33   VP Lawler, SDP O’Callaghan, Raffaelli, C, Farguharson v QANTAS Airways Ltd (2006) 155 IR 22 at [41].

 34   Respondent’s Final Submissions [36]

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