[2014] FWC 3432
FAIR WORK COMMISSION

DECISION


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

Mr Joao Gomes
v
Qantas Airways Limited T/A Qantas
(U2014/4055)

COMMISSIONER RIORDAN

SYDNEY, 23 JULY 2014

Application for relief from unfair dismissal.

[1] This decision is in relation to an application for an unfair dismissal remedy by Mr Joao Gomes. Mr Gomes employment was terminated by Qantas Airways Limited (Qantas) on 10 January, 2014.

[2] Mr Gomes is a member of the Transport Workers’ Union of Australia, NSW Branch (TWU), and was represented in these proceedings by the TWU’s Legal Officer, Ms Yvette Franks.

[3] Mr Ralph Warren of Counsel, sought leave to represent Qantas. Ashurst Australia had filed a submission on behalf of Qantas seeking leave to appear. I did not accept their submission that this was a difficult case with complex issues which required the services of legal representation. However, I accepted that Qantas, who has a very well resourced IR/HR Department, has relied on Ashurst to represent them in all unfair dismissal cases over the past few years. Due to this perceived inexperience in Qantas and the lateness of me receiving and viewing the application, I granted leave for Mr Warren to appear in accordance with section 596(2)(b) of the Fair Work Act, 2009 (the Act). In doing so, I advised Qantas that they have exhausted the “inexperienced” argument for the future in relation to these types of applications.

[4] On behalf of the Applicant, witness statements were provided by the Applicant himself, Mr Fergus Haines, who is a Licensed Aircraft Maintenance Engineer (LAME) employed by Qantas and Mr Colin Rayner who is a TWU delegate employed by Qantas. Qantas relied upon witness statements from Mr Michael Lee, Operations Manager of Ramp Services at the Sydney International Terminal (SIT) and Ms Susannah Le Bron, who was the Ramp Services Manager at SIT at the time of Mr Gomes’ dismissal. Ms Le Bron has subsequently resigned from Qantas.

Background

[5] Mr Gomes has been employed by Qantas for 19 years. He is 53 years of age.

[6] Mr Gomes was employed as an Airline Service Operator (ASO) which involved him driving a tug or tractor to tow or pushback aircraft at the Sydney International Terminal.

[7] The Sydney Airport Corporations Limited (SACL) owns and operates Sydney Airport. SACL sets its own rules and regulations in relation to the operation of the airport, including the rules associated with vehicle traffic. Sydney Airport has clearly designated and marked roadways.

[8] Mr Gomes is required to have a SACL driving licence to drive airside, ie, inside the airport. Mr Gomes is required to undertake a SACL conducted biennial test to renew his licence. The pass mark for this exam is 100 percent, which signifies the importance of a thorough understanding of SACL’S road rules.

[9] The SACL driving licence operates in a similar manner as the NSW Drivers Licence with every driver receiving 12 points, which are renewed every three years. Demerit point penalties exist for drivers who breach the SACL driving rules contained in the Airside Vehicle Control Handbook (AVCH).

[10] On 2 October 2013, Mr Gomes was working day shift. The Sydney International Freight Terminal is located next to SIT. At around 8.07am, Mr Gomes was requested to tow a plane from the North Run Bay (NRB) to Bay 9 of the SIT. This request required Mr Gomes to traverse from Building 313, which is adjacent to Bay 4 of the Freight Terminal, drive along the perimeter road of the airport for a few kilometres to the NRB, which is located near the Qantas maintenance hangers, attach to the aircraft and tow it back to Bay 9 of the SIT.

[11] The safest route for Mr Gomes to undertake this task would have been for him to leave Building 313, turn right onto the access road and then turn left on to the perimeter road. He would then follow the perimeter road around the back of freight Bays 1-4 and travel to the NRB.

[12] The quickest route and the route preferred by Mr Gomes was to leave Building 313, turn left onto the access road, turn right onto the marked lane or apron between Bays 3 and 4 until he reached the perimeter road, then turn left onto the perimeter road, following it all the way to the NRB. This route would save no more than thirty or forty seconds compared to the safest route.

[13] In this circumstance, Mr Gomes followed his preferred route. However, whilst travelling between Bays 3 and 4 he noticed that the perimeter road was blocked by a SACL safety car, which had stopped the traffic due to a taxiing aircraft in the immediate vicinity enroute to Bay 2 of the Freight Terminal. Mr Gomes also claims that the access road was blocked with containers, although this is strenuously disputed by Qantas.

[14] Seeing the stopped traffic, and allegedly blocked road, Mr Gomes sought an alternate route. The aircraft taxiing into Bay 2 had stopped at the entrance to the bay and was waiting for instruction to proceed from the LAME, Mr Haines. The aircraft had engaged its beacon lights. The bay appears to be about 40-50 metres in length. Mr Gomes, claiming that he could see that Mr Haines had not yet given the direction to the pilot to enter the bay, decided to drive across the empty Bay 3, in front of the stationary aircraft at the entry point of Bay 2, across the empty Bay 1 and onto the perimeter road towards the NRB.

[15] The CCTV footage of the incident shows that the aircraft had commenced taxiing onto Bay 2 when Mr Gomes darted across bay 2 at 8.19am. The aircraft was approximately 30-35 metres away from Mr Gomes at this point in time and moving very slowly.

[16] There were a number of personnel in the vicinity of Bay 2 when this incident occurred.

[17] Mr Gomes returned the plane from the NRB to Bay 9 without incident. He continued his normal duties, as per his roster, for the next eight days until 10 October 2013.

[18] The incident was allegedly witnessed by both the Manager of Operations, and the Tarmac Co-ordinator. Mr Hooke, the Manager of Operations, submitted a Near Miss Report on 8 October 2013, some 6 days after the incident. Neither Mr Haines or the pilot advised of a safety incident, nor did the driver of the SACL safety car that was stopped on the perimeter road.

[19] Following a number of incidents earlier in the year, Mr Gomes had been placed on a Performance Improvement Plan (PIP) by his manager, Mr Lee. At his scheduled performance review meeting on 10 October 2013, Mr Lee advised Mr Gomes that there was an investigation being conducted into an allegation that he drove in front of a moving vehicle.

[20] On 11 October 2013, Mr Lee advised Mr Gomes that he could either take annual leave or undertake alternative duties in the Engineering Department whilst further investigations were conducted into the incident. Mr Gomes chose to perform the alternate duties.

[21] On 19 October 2013, Mr Gomes was asked by his then manager to drive a vehicle airside. As a result of this action, Mr Gomes was stood down immediately by Mr Lee with pay whilst further investigations were undertaken.

[22] Mr Gomes attended a meeting on 21 October 2013 with Mr Lee, Ms Hannah (Qantas HR Manager) and his TWU delegate, Mr Rayner. The CCTV footage of 2 October 2013 was shown to the participants of the meeting. Mr Gomes confirmed that he was driving the tug on the footage. Mr Gomes was issued with a letter which contained the following paragraphs:

[23] Mr Gomes provided a written response to the allegations claiming that there were extenuating circumstances justifying why he drove across Bay 2, namely, that the access road and perimeter road were blocked. In relation to the second allegation he advised Mr Lee that he had only driven the vehicle airside because his then Supervisor had asked him to do so and he did not believe that his SACL licence had been suspended. Whilst Ms Le Bron found the second allegation to be substantiated, she found that there was no breach of Qantas’ policy or procedure.

[24] On 2 December 2013, Mr Gomes received the following “show cause” letter from Ms Le Bron.

[25] On 20 December 2013, a Show Cause meeting was conducted with Ms Le Bron, Mr Hawkins (HR), Mr Gomes and Mr Rayner. Mr Gomes apologised for his actions and explained, once again, his ongoing family problems. Mr Lee acknowledged under cross examination that he had been aware for some time of the issues that Mr Gomes was having in relation to gaining access to his daughter.

[26] On 10 January 2014, Mr Gomes employment was terminated by Ms Le Bron in the following manner:

[27] In accordance with Qantas policy Mr Gomes requested an internal review of Ms Le Bron’s decision. The review confirmed the decision to terminate Mr Gomes employment.

Contentions

[28] Ms Franks argued that the termination of Mr Gomes employment was harsh, unjust or unreasonable on the basis that:

[29] Mr Warren submitted that Qantas had a valid reason for the termination due to the misconduct of Mr Gomes. Qantas argued that Mr Gomes actions on 2 October 2013 showed a reckless attitude towards the safety of plant and personnel. Further, his actions were contrary to numerous safety rules and workplace policies and practices. Finally, following an extensive investigation and deliberation the decision was taken to terminate Mr Gomes employment and it was justified.

Evidence

[30] There is no dispute that Mr Gomes drove the tug across Bays 3, 2 and 1 to get to the perimeter road. There is no dispute that an aircraft was entering bay 2 at the time.

[31] There is no dispute that Mr Gomes was working under a Performance Improvement Plan (PIP) as a result of a serious incident in June 2013. Relevantly, the PIP states in the Improvements/Goals/Targets/Objectives column the following benchmarks:

[32] It is relevant that neither Mr Haines nor the pilot made any formal complaint about the actions of Mr Gomes in driving across Bay 2 in front of the aircraft. I have taken this into account.

[33] It is also relevant that the report was submitted by Mr Hooke some six days after the incident.

[34] I do not understand why Mr Lee or Ms Le Bron did not contact Mr Hooke to ask why he delayed submitting his report or ask for his version of the incident. It could be argued that any investigation which seeks to be procedurally fair requires the complainant to be interviewed. I accept Mr Lee’s comments that the video footage speaks for itself but that does not excuse the investigator from undertaking a thorough investigation. Otherwise, the investigation is at risk of an accusation that the process was flawed. I have taken this into account.

[35] It is also relevant that the driving incident was not reported to SACL. Whilst I accept that traditionally SACL will only discipline drivers for incidents that they witness, the CCTV footage in this incident is quite compelling. It is also Qantas and SACL policy for such a notification to occur. Ms Le Bron admitted that she had made a mistake in not notifying SACL.

[36] I have viewed the CCTV footage on numerous occasions. In summary, the aircraft can be seen taxiing to the entrance of Bay 2 where it is stopped by Mr Haines at 8.18.47. It is not challenged that the emergency beacon lights are engaged.

[37] At 8.18.54, Mr Haines extends his left arm to signal for the pilot to enter the bay.

[38] At 8.18.56, Mr Gomes can be seen driving across Bay 3.

[39] At 8.19.06, Mr Gomes starts to cross Bay 2. He crosses the centre line of Bay 2 at 8.19.09 and exits bay 2 at 8.19.11

[40] The aircraft passes the point where Mr Gomes traversed bay 2 at 8.19.30

[41] Mr Gomes claims that he could see Mr Haines at all times. He claims that when he made the decision to cut across Bay 2 that Mr Haines had stopped the aircraft. At this point in time Mr Gomes was not in the view of the CCTV camera. However, I note that there is a 12 second gap between the time Mr Haines gave the authority for the aircraft to enter Bay 2, and the time when Mr Gomes began to encroach on Bay 2. Mr Gomes had plenty of time to stop if he so desired. Mr Gomes used his discretion and judgment in proceeding to cross Bay 2 in front of the moving aircraft. I have taken this submission into account.

[42] Mr Gomes claims that his actions were at all times safe and reasonable. He claims that he could see that there were no mobile equipment or work colleagues in the vicinity of his travel path. Mr Lee disputes this claim. Mr Lee undertook a re-enactment of the event, albeit without the input of Mr Gomes, and claims that Mr Gomes’ vision had to be impaired. I have taken this into account.

[43] Under cross examination, Mr Gomes claimed that the aircraft was “a mile away” when he crossed Bay 2 - or at least 100-200 metres. All of the other evidence in this case supports the view that the aircraft was approximately 30 metres away. I have taken this into account.

[44] Mr Gomes testified that he had to take this route to avoid being delayed by up to 20 minutes. This claim is based on the access roads being blocked and the perimeter road being stopped by a SACL safety car. Relevantly, the CCTV footage shows the SACL safety car and the traffic moving along the perimeter road at 8.20.22, a mere 71 seconds after Mr Gomes crossed Bay 2. I have taken this into account.

[45] Mr Gomes insisted that he has never seen the Ramp Services Manual (RSM) (EX Q1 JL 13.5) nor been trained in its contents. Qantas tabled a list of internal training courses which had been completed by Mr Gomes which clearly showed that Mr Gomes was trained in “Ramp Services Manual (RSM) Version 2.0” 5 on 23 November 2011.

[46] Ramp Services training is a fundamental component of Mr Gomes’ role. It would be extremely difficult for Mr Gomes to function on a daily basis without a thorough knowledge of the RSM. Knowing the importance that Qantas places on training and their strict adherence to training programs, I find that Mr Gomes was trained in the RSM.

[47] There are any number of relevant clauses contained in the RSM in relation to these proceedings:

3.1 Safety Before Schedule

Safety in aviation is a permanent requirement - in the air and on the ground, safety is the first rule.

Qantas’ objective is to achieve the highest level of safety, environmental standards and work practices throughout the Group’s operations. All tasks associated with servicing aircraft on the ground, and operation in the air, must be performed in a manner that supports this objective.

Ramp safety procedures ensure safe ground handling. It is essential that staff understand and always apply aircraft ground handling procedures in accordance with company policy.

3.6 Aircraft Hazards

3.6.1 Anti-collision Beacons

Each aircraft has two beacons with red flashing lights, one above and one below the fuselage. These are known as anti-collision beacons.

Operation of the anti-collision beacons indicates that aircraft engines have started, or are about to start, and that pushback of the aircraft is about to commence, or us underway.

Staff must not approach or pass behind an aircraft, either on foot or while driving a vehicle, while the anti-collision beacons are operating.

Once the beacons have stopped flashing, staff must wait for the ‘all clear’ hand signal from the Engineer before approaching an arriving aircraft.

3.7.1 Equipment Limit Line Markings

The equipment limit lines become effective as soon as an aircraft begin to turn in to approach the allocated bay.

Operators of ground support equipment must not exceed the limit line until the anti-collision beacon has been switched off and they have received the all clear (thumbs up) signal from the Engineer.” 6

[48] The Airside Vehicle Control Handbook 7 forms part of the Airport Operations Manual for Sydney Airport. A pocketbook of the main rules for driving airside has also been produced.

[49] I have reproduced a number of the relevant provisions of the AVCH below:

[50] Section 5 deals with the Points System pertaining to the licence. Possible breaches in this instance for Mr Gomes could be identified in the following table:

 

    Offence

    Points

    AVCH Ref:

 

    Safety in the vicinity of Aircraft

   

    510

    Failure to give way to taxiing aircraft

    6

    4.7.1

    512

    Failure to stop when an aircraft has beacons activated

    3

    4.10.3

 

    Failure to Abide by Airside Markings

   

    553

    Failure to use marked roadway (where provided)

    3

    4.3.2

 

    Dangerous Driving

   

    580

    Driving in a manner dangerous to people, other vehicles, or equipment

    6

    4.9.1

[51] Relevantly, clause 5.1.4 states:

[52] Whilst SACL was not notified of this incident, it was conceivable that Mr Gomes could have been penalised 18 points for his actions. It is indisputable that he has breached sections 510, 512 and 553 and I believe section 580 of the AVCH.

[53] This would amount to a 12-18 demerit point penalty. It was unchallenged that Mr Gomes only had 6 points left on his SACL licence following two previous offences when he “failed to use a marked roadway (where provided)” 8. I have taken into account the fact that Mr Gomes may have lost his SACL licence and therefore his capacity to work as an ASO if the incident had been reported to SACL. I also note and that he had previously been sanctioned on two occasions for not driving on the marked roadways.

[54] Mr Gomes testified that ASO’s break the driving rules all of the time. Mr Lee testified that in 21 years of working in the ramp services area, he had never seen anyone drive in front of an aircraft to cross a bay. Exhibit G4 is a petition signed by 17 ASO’s at Qantas which reconfirms the proposition that ASO’s only drive near an aircraft with its anti collision beacons activated when they are servicing that particular aircraft.

July 2013 Incident

[55] Mr Gomes was placed on a PIP following an incident on 23 July 2013. The actual incident and subsequent investigation are relevant to these proceedings because of the identifiable pattern of behaviour exhibited by Mr Gomes. I have relied on the unchallenged report in Ex Q4 SLB14 for this information.

[56] Mr Gomes was running late to pushback an aircraft. In his haste, he sideswiped another vehicle which resulted in $3000 worth of damage. As a result of the accident the aircraft that was waiting for a push back had its departure delayed by three minutes.

[57] The following conversation is an extract from that report. The ID (Identified Driver) is Mr Gomes.

[58] The relevance of this interview in relation to the incident on 2 October 2013 is that Mr Gomes clearly has a problem with his timekeeping. He seems far more intent and focused on spending time in the amenities building, or elsewhere, than in his vehicle on the job. He also has a tendancy to be inaccurate in relation to distances and make general comment to attempt to justify his actions. Neither trait was of benefit to him in these proceedings.

Statutory Requirements

[59] The objects of the Unfair Dismissal provisions are contained in section 381;

[60] In considering whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission (FWC) must take into account the provisions of s.387 of the Act;

Legal Precedent

[61] Both advocates took me to the decision in Selvachandran v Peteran Plastics Pty Ltd. In this case Northrop J said:

[62] In Qantas Airways Ltd v Cornwall 12, the Full Court of the Federal Court said;

[63] In Edwards v Giudice 14, in a different legislative framework, Moore J made the following observation in relation to the operation of s.170CG(3) of the Workplace Relation Act;

(My emphasis)

[64] In Byrne v Australian Airlines 16, the High Court endorsed the decision of Doussa J in Lane v Arrowcrest Group Pty Ltd (1990);17

[65] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne sets the parameters for these types of determinations;

[66] The Full Bench of the AIRC in Australia Meat Holdings Pty Ltd cited this decision in definitive terms;

(a) Valid Reason

[67] Mr Gomes drove the tug across Bay 2 in front of a moving aircraft. In doing so, he has breached any number of Qantas safety policies and work practice procedures. He has also breached a number of SACL driving regulations.

[68] Mr Gomes was also on a performance improvement plan. He had been warned that his employment may be terminated if he breached Qantas policies or procedures in the future.

[69] I am satisfied that Qantas had a valid reason to terminate Mr Gomes employment.

(b) Notified of Reason

[70] Mr Gomes was notified of the reason that his employment was terminated.

(c) Opportunity to Respond

[71] Mr Gomes was given time and an opportunity to respond to the accusations.

(d) Support Person

[72] Mr Gomes was not denied the opportunity to have a support person present. However, the process that was followed governing the conduct of that support person was inappropriate and misguided. The Act allows a person the subject of investigation and interview to have a support person to “assist in any discussion”. A support person cannot assist if they are refused permission to speak. Although there is a fine line between assisting a colleague and advocating for a colleague which must be considered, a support person must, at the very least, be able to speak for and on behalf of the person they are supporting when providing assistance.

(e) Unsatisfactory Performance

[73] Mr Gomes had been placed on a Performance Improvement Plan approximately one month before his dismissal for a previous incident.

(f) Size of the Employer

[74] Qantas is a large employer

(g) Human Resources Department

[75] Qantas has a dedicated and well resourced Human Resources Department who were present throughout the disciplinary process.

(h) Any Other Reasons

[76] The investigation conducted by Qantas was deficient in a number of ways. Qantas should have interviewed the pilot and co pilot of the aircraft, the LAME who had control of the arrival, Mr Haines, the person who submitted the report, Mr Hooke, the person seen on the video remonstrating when Mr Gomes drove across Bay 2 (if that wan’t Mr Hooke) and the driver of the SACL safety car that had stopped all traffic on the perimeter road.

[77] Whilst these deficiencies identify an investigation that was a long way from being perfect, they do not provide a fatal flaw to the process. Ms Franks raised the issue of a “Jones v Dunkel” error. Whilst I concur that Qantas have erred in not interviewing Mr Hooke, and not calling him as a witness, I struggle to see sufficient negative connotation or inference that can be drawn from such an error. At the end of the day Mr Gomes’ admitted that he was driving the tug that was seen in the CCTV footage. I have taken this into account.

[78] Like so many of his colleagues, Mr Gomes is very proud of his employment with Qantas. I regard him as being a loyal member of the Qantas family with a lengthy employment history. Mr Gomes is regarded as a good tug operator. There have been no complaints or criticisms of his work once he is attached to the aircraft. It could be suggested that the driving incidents that Mr Gomes has been involved in could be regarded as peripheral to his core duty. I have taken this into account.

[79] Mr Gomes has been dealing with a traumatic family issue during the last twelve months which would have provided a degree of mental anguish. I have taken this into account.

[80] Mr Gomes has not sought alternate employment since his dismissal and has relied upon financial support from his partner and an income stream from an investment property to maintain his lifestyle. I have taken this into account.

Consideration

[81] In reaching my decision, I have carefully considered all of the evidence and submissions that have been presented by the parties.

[82] I have already found that Qantas had a valid reason to terminate Mr Gomes. I have considered the additional criteria in section 387 of the Act. I now have to decide if the decision was harsh, unjust or unreasonable.

[83] I am very conscious of the need to satisfy the “fair go all round” test as enunciated in Loty’s Case and section 381(2) of the Act.

[84] I accept the evidence of Mr Haines and Mr Rainer.

[85] I am satisfied that the aircraft was far enough away when Mr Gomes crossed Bay 2 to not cause Mr Haines or the pilot alarm or consternation. I accept the evidence that tugs crossing in front of a moving aircraft is a common practice, albeit, when they are servicing the aircraft. I do not accept the evidence that the pilot may have had cause to break suddenly and damage the aircraft.

[86] If Mr Gomes had a clean disciplinary record then I would be inclined to support the claim that his dismissal was harsh, unjust or unreasonable.

[87] However, whilst driving in front of the aircraft was a silly mistake which cannot be condoned, the more concerning aspects of the incident happened outside the purview of Mr Haines and the pilot. Mr Gomes decision to bypass the SACL safety car is unacceptable. The SACL safety car was there for a reason - it was fulfilling an important safety function. Mr Gomes actions deliberately undermined that function.

[88] The video shows Mr Gomes accelerating across from Bay 3 to Bay 2 passing a number of containers and other equipment on the adjoining apron. There were other members of staff and moving equipment in the immediate vicinity. I prefer the evidence of Mr Lee in relation to the level of visibility that would have been afforded to Mr Gomes at this time. Mr Gomes showed a reckless indifference to the safety of his fellow employees in driving in this manner.

[89] Mr Gomes testified that when he made the decision to travel across Bay 2, he could see that Mr Haines had stopped the aircraft. The CCTV evidence shows that Mr Haines had signalled the aircraft to taxi on to the bay for a full 12 seconds before Mr Gomes passed across Bay 2. When Mr Haines extended his arm to allow the aircraft onto the bay then Mr Gomes should have stopped. By continuing on this illegal and makeshift route, Mr Gomes made yet another incorrect discretionary decision.

[90] Mr Gomes performance plan went to the very issue of him being conscious of his surroundings. This incident shows that he had taken no notice of this performance improvement requirement.

[91] Mr Gomes did not have a clean performance record. He has received two prior formal warnings and was one month into a detailed performance improvement plan. His actions on 2 October, 2013 showed that he had scant regard for the safety of his fellow employees and had taken no notice of his previous warnings.

[92] Qantas claim, quite appropriately, that safety is their number one priority. Qantas has a statutory obligation to provide a safe workplace for all of its employees. The repeated breaches of safety policies and work practices by Mr Gomes placed that obligation at an unnecessary risk. No employee or employer has the right or self sanctioned privilege to ignore the safety requirements of a role or function. The mutual obligation to safety in the employment contract is not open for debate or negotiation. It is sacrosanct and protected by legislation. Mr Gomes did not fulfil his obligation. He has exhausted his “fair go.”

[93] Although I find the investigation that was conducted by Qantas contained a number of faults and shortcomings, the dismissal of Mr Gomes was not harsh, unjust or unreasonable.

[94] I dismiss the application.

COMMISSIONER

 1   Exhibit ML13

 2   SLB18

 3   SLB21

 4   Exhibit ML6

 5   Exhibit Q4 SLB17

 6   Exhibit JL13.5

 7   Exhibit Q1 ML13.7

 8   Exhibit Q1 ML16

 9   SLB14

 10   Fair Work Act 2009

 11   62 IR 371

 12   [1998] FCA 865

 13   [2012] FWA 8982 at para 44

 14   [1999] FCA 1836

 15   [1999] FCA 1836 at para 6 - 7

 16   (1995) 185 CLR 410

 17   (1990) 27 FCR 427

 18   (1995) 185 CLR at 467

 19   (1995) 185 CLR 410 at 465 - 468

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550972>