[2015] FWC 4527  [Note: An appeal pursuant to s.604 (C2015/4968) was lodged against this decision - refer to Full Bench decision dated 16 October 2015 [[2015] FWCFB 6715] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Maria Panera
v
Qantas Airways Limited
(U2014/10369)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 10 JULY 2015

Application for relief from unfair dismissal.

[1] Ms Panera lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) on 25 June 2014. Her employment was terminated on 6 June 2014.

[2] Having considered the complexities of this application I decided to grant both parties permission to be legally represented. Ms Panera was represented by Mr Read of counsel, instructed by Mr Paneras of Jordan Djundja solicitors. Qantas Airways Limited (Qantas) was represented by Mr Rauf of Counsel, instructed by Ms Firth of Ashurst solicitors. I heard the application at Sydney on 20, 21 and 26 November 2014, 4 and 5 December 2014 and 20 April 2015.

[3] I have had regard to s.396 of the Act and determined that this application was made within the period required by the Act, that Ms Panera is a person protected from unfair dismissal, that Qantas is not a small business employer and that there is no issue of genuine redundancy to be determined.

[4] It is necessary for me to determine whether or not Ms Panera’s termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

[5] Ms Panera commenced work at Qantas in 1986 when she was 25. Her employment was terminated for what Qantas described in its Employer Response as misconduct relating to the provision of discounted tickets and a failure to charge for booking changes that did not appropriately arise in the course of Ms Panera’s duties or for any authorised operational reason. Except in minor respects the facts surrounding the transactions were not in dispute. Ms Panera contended that her actions were not in breach of any policy known to her and that there was a custom and practice of ticketing bookings in the manner in which she did. In the alternative, should I be satisfied that there was a valid reason for termination of Ms Panera’s employment pursuant to s.387(a) of the Act, Ms Panera submitted that her termination of employment by Qantas was harsh, unjust or unreasonable in all the circumstances. Ms Panera seeks reinstatement and orders in relation to payment of lost wages and continuity of employment.

[6] Ms Panera’s employment was predominantly in the role of a sales agent. As at the date of termination of employment she was employed as a Customer Service Agent Ticketing and Sales, Sydney International Terminal. She was the longest serving employee in this position. She had no history of disciplinary or performance issues prior to the termination of her employment. 1

[7] Ms Panera described her duties as follows:

[8] Ms Panera’s evidence regarding the need for an authority to make or change bookings and the sales desk environment is set out below:

[9] Ms Panera acknowledged that the sales desk at which she worked was largely self-managed, 3 that trust and responsibility was vested in the customer sales agents,4 that the level of expertise in the sales desk as to the booking and issuing of tickets was greater than that of the managers5 and that the managers relied upon the sales desk staff to undertake their role competently and correctly.6 She acknowledged her obligation to follow Qantas policies and procedures7 and to protect Qantas revenue.8

[10] On 4 April 2014 Ms Panera expressed an interest in a voluntary redundancy. Her expression of interest was accepted, and on 19 April 2014 she was advised by letter that her employment would cease at the end of any shift for which she was rostered on 10 June 2014.

[11] Having considered the evidence and submissions of the parties I have resolved various factual issues relevant to the criteria I am required to consider pursuant to s.387.

Valid reason - s.387(a)

[12] I have only considered the allegations relied upon by Qantas for the termination of Ms Panera’s employment. I have not dealt with any allegations not found to be established by Qantas or relied upon by Qantas following its investigation.

[13] Mr Allan English, Qantas Market Manager Pricing and Inventory, Asia, provided a statement 9 and gave evidence regarding a number of matters including his professional background, the Qantas fare system, fare rules, passenger name records, force bookings/overriding fare class, backdating early bird fares, change fees, the adverse impact on Qantas where fare rules are not observed and the allegations against Ms Panera. I accept Mr English’s evidence regarding the operation of the fare rules and Qantas policy and procedures.

[14] Ms Panera’s position was that her work practices were long-standing and commonly used. She was trained in a different era than later Customer Service Officers and Supervisors who have been trained at TAFE.

[15] I considered the evidence of Mr Poonan. 10 Mr Poonan worked for Qantas from 1973 until 1997. Mr Poonan’s evidence supported Ms Panera’s version of the custom and practice of Customer Service Agents in relation to the fare rules and their available discretion. However, I am not satisfied that the practices Mr Poonan referred to were operating at the time of termination of Ms Panera’s employment. It is 16 years since Mr Poonan’s departure from Qantas.

[16] I considered the evidence of Ms Farrell. Ms Farrell’s evidence was of limited value. Her processes were those taught to her by Ms Panera. If Ms Farrell followed Ms Panera’s advice on ticketing she was likely to have engaged in conduct which might also be a valid reason for the termination of her employment.

[17] Having considered Mr English’s evidence, the evidence of other Qantas witnesses, including Mr Bird, and Ms Panera’s witnesses Mr Poonan and Ms Farrell, I have reached a number of conclusions regarding the operation of Qantas fare rules. I am satisfied and make the findings set out below.

Allegation 1

[18] It was alleged that on 2 December 2013 booking PNR 7HOYZC was created by Ms Panera for a Mr Farmakis, who was a personal friend of Ms Panera, for travel from Sydney to Athens and return via Dubai in July 2014. Ms Panera’s evidence was that Mr Farmakis was the brother of a former colleague. On 4 December 2013 Ms Panera ticketed the booking and charged the outbound flight at the lower O fare class instead of the Q fare class by a system pricing override. There were no available O class fares on that flight. On the same day she also backdated the fare quote to 10 October 2013 to access an early bird fare, access to which had closed on 15 November 2013. No fees were charged. No authorisation was given. This conduct was in breach of policy. Ms Panera’s actions were undertaken to provide the passenger with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[19] Ms Panera’s response to this allegation was that authority was sought by her from the Duty Airport Manager (DAM) Wayne Grace. Her evidence was that Mr Grace had consented to her obtaining the best possible fare.

[20] Ms Panera admitted to performing a fare-based override to backdate the booking to 4 December 2013:

[21] Mr Grace has been employed by Qantas for approximately 29 years in various positions including that of Customer Service Supervisor at the domestic terminal. He commenced as a DAM in 2001. He gave evidence as to the autonomy with which Customer Sales Agents work but confirmed that they do not have authority to override fare rules at their discretion.

[22] In response to Ms Panera’s statement Mr Grace’s evidence was:

[23] Mr Grace denied having authority to “match” competitor fares.

[24] Mr Grace’s evidence in relation to the limit of his authority is set out below:

[25] Mr Grace provided no support for Ms Panera’s evidence in relation to the circumstances under which employees of Qantas in her position could offer reduced fare quotes or alter the circumstances so that early bird offers could be accessed outside the period of the offer. He provided no support for the evidence of Ms Panera in relation to allegation 1.

[26] In relation to allegation 1, I have considered and accepted the evidence of Mr Allan English 17 and Mr Grace.18

[27] I am satisfied that Ms Panera made this booking in breach of the fare rules. I am satisfied that, in breach of policy, Ms Panera charged an O class fare which was less expensive than a Q class fare in circumstances where there were no O class seats available for the first leg of the outbound flight. I am satisfied that Ms Panera should have charged a Q class fare for both legs of the outbound flight.

[28] I am satisfied that on 4 December 2013 Ms Panera backdated the fare quote for Mr Farmakis to 10 October 2013 to take advantage of an early bird fare which should have been ticketed prior to 15 November 2013. In undertaking these changes I am satisfied that Ms Panera charged a fare which was not permitted.

[29] I am satisfied that Ms Panera failed to charge a fee for a flight change outside the circumstances under which the avoidance of such a fee was allowed.

Allegation 2

[30] It was alleged that on 21 February 2014 booking PNR 2CU6S3 was created by Ms Panera. The booking was made for one adult and four children from the Radomir family for travel from Sydney to Venice via Dubai and return. Ms Panera did not enter the ages of the child passengers as required. Only one of the passengers was entitled to a child ticket. The outbound flight from Sydney to Dubai was ticketed at the lower O fare class when it should have been ticketed in S fare class. Ms Panera overrode the reservation system and force booked into this class. The flights were not in a consistent fare class. The inbound flight should also have been booked in S class. Ms Panera backdated the booking by four months to access an early bird fare, access to which had expired on 15 November 2013. The customers were personal friends of Ms Panera. These actions were not authorised and had no commercial purpose. Ms Panera’s actions were undertaken to provide the passengers with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[31] Ms Panera’s response was that she had asked DAM Luke Lynch for approval to make a ‘cheapest fare’ booking because this was a family of five persons. Mr Lynch gave her authority to make the booking. He replied ‘Yes it’s revenue for Qantas’. Ms Panera says all ages could not be entered into the reservation system. She asserts that the booking in U Class was the correct fare type. She concedes that she forced the booking to override the fare class. 19

[32] Mr Lynch is presently the Airport Customer Experience Manager at the domestic terminal. From May 2012 until July 2014 he was employed as a DAM at the Sydney International Terminal. Mr Lynch denied ever having been approached by Ms Panera and denied giving her authority to make this booking. Mr Lynch confirmed that he does not have authority to ‘price match’. 20

[33] I have considered and accepted the evidence of Mr Allan English 21 and Mr Lynch.22 I am satisfied that Ms Panera made this booking in breach of the fare rules.

[34] I am satisfied that, in breach of policy, Ms Panera force booked the outward flight.

[35] I am satisfied that, in breach of policy, Ms Panera backdated this booking to provide access to a previous early bird fare which had expired. In undertaking these changes I am satisfied that Ms Panera charged a fare which was not permitted.

Allegation 3

[36] It was alleged that on 5 April 2014 Ms Panera created booking PNR 3SFWO7. On 7 April 2014 Ms Panera ticketed this booking on an O class fare. This fare class was not available for this booking. The fare should have been booked on an S class fare. She back dated the fare quote request to 1 April 2014 to access an early bird fare, access to which ceased on 5 April 2014. The customer was a personal friend of Ms Panera. These actions were not authorised and had no commercial purpose. Ms Panera’s actions were undertaken to provide the passenger with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[37] Ms Panera’s response to this allegation was that she had asked Gary Wakefield, a Customer Service Supervisor, if she could provide the customer with the cheapest fare and that that authority was granted by Mr Wakefield. A ’dummy’ booking was created by Ms Panera in order to compete with a quote obtained by the customer from Delta Airlines. Ms Panera conceded that she backdated the fare. Ms Panera denied that she should have booked the fare in the higher fare class S. She maintained that O class was available. 23

[38] Mr Wakefield has been employed by Qantas for 25 years in a variety of positions. He has been a Customer Service Supervisor for 15 years. He has no supervisory role in relation to Customer Sales Agents. Mr Wakefield maintained that he does not possess authority to match airfares offered by other airlines and did not do so on this occasion. 24 He does not have any discretion or any authority to waive rebooking fees, which can only be waived for compassionate reasons, in the case of deportees or as a result of day of travel disruptions. If he were to waive a rebooking fee in these circumstances he would ask that it be recorded.25

[39] In relation to the conversation Ms Panera alleged took place 26 in relation to this fare he said:

[40] Having considered the evidence of Mr Allan English 28 and Mr Gary Wakefield,29 I am satisfied that Ms Panera made this booking in breach of the fare rules.

[41] I am satisfied that, in breach of policy, Ms Panera force booked these flights into a fare class which was not available.

[42] I am satisfied that, in breach of policy, Ms Panera backdated the booking of these flights to provide access to a previous early bird fare which had expired.

Allegation 4

[43] It was alleged that on 22 March 2014 Ms Panera created booking PNR 2Q7KYM for a flight from Sydney to London via Dubai and return via New York. Ms Panera backdated the booking to access an ‘early bird’ fare, access to which ceased on 20 December 2013. She charged the customers a lower O class fare which was not available on that flight and not available on flights to the United States of America. These actions were not authorised. They had no commercial purpose. The customer was a personal friend of the applicant. Ms Panera’s actions were undertaken to provide the passengers with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[44] Ms Panera’s response to this allegation was that she did not personally know the customer. In a Response Meeting held on 26th May 2014 Ms Panera identified DAM Wayne Grace as giving her authority for this booking.

[45] Ms Panera’s evidence was that there were cheaper fares available from other airlines at the date of reticketing. She admitted overriding the fare. 30

[46] Mr Grace denied providing any authority to Ms Panera. His response was as follows:

[47] Mr Grace did not provide any support for Ms Panera’s evidence. Having considered the evidence of Mr Allan English 32 and Mr Grace33 I am satisfied that Ms Panera made this booking in breach of the fare rules.

[48] I am satisfied that, in breach of policy, Ms Panera used a fare base that was not permitted for this booking.

[49] I am satisfied that Ms Panera allowed the booking to include a stopover in the United States contrary to the fare rules.

[50] I am satisfied that Ms Panera force booked access to an early bird fare which had expired.

Allegation 5

[51] It was alleged that on 3 October 2013 Ms Panera forced booked PNR 3ZUQTO on an inbound flight into O class when the tickets should have been issued in Q class. These actions were not authorised. They had no commercial purpose. The customers are related to the applicant. Ms Panera’s actions were undertaken to provide the passengers with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[52] Ms Panera’s response to this allegation was that she had obtained authority from DAM Guy Adams. She asked whether she could provide the cheapest fare for her nieces and their friends. She denied making a forced booking for the inbound flight. She responded that a forced booking was made by another (unknown) employee. She conceded that she overrode the fare in order to compete with other airlines. 34

[53] Mr Adams was not called to give evidence.

[54] Having considered the evidence of Mr Allan English 35 I am satisfied that Ms Panera ticketed this booking in breach of the fare rules.

[55] I am satisfied that, in breach of policy, Ms Panera force booked the flights from Athens to Dubai onto O class when there were no O class fares available. There was no operational reason for this change. I am satisfied that there are no circumstances in which a ticket on an Emirates flight can be force booked into a different fare class.

Allegation 6

[56] It was alleged that on 11 November 2013 Ms Panera created booking PNR 3LLWI3 for travel from Sydney to Athens and return via Dubai for a Mr and Mrs Louverdis. Ms Panera ticketed this booking as an O class fare. The only available class for this booking was a Q class fare. An O class fare was not available on this flight.

[57] On 12 April 2014 Ms Panera changed the return date by force booking on O class when the booking should have been ticketed in Q Class. These actions were not authorised. They had no commercial purpose. One of the customers was a colleague of Ms Panera. Ms Panera’s actions were undertaken to provide the passengers with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[58] Ms Panera conceded that the customer was a former Qantas employee. Ms Panera’s response to this allegation was that she had asked Matthew Mahoney, whom she had thought was the manager of duty, if she could offer the cheapest fare and that he had provided that authority. Ms Panera maintained that the customer already had the opportunity of purchasing a staff ticket. She maintained that O class was available. She agreed that she had booked an early bird fare which expired on 15 November 2013. She agreed that she had to apply the fare basis override when the customer’s dates of travel changed. This fare class was not available for this booking. The fare should have been booked on an S class fare. This fare class was not available for this booking. The fare should have been booked on an S class fare.

[59] Ms Louverdis gave evidence. Her version of events was as follows:

[60] Mr Mahoney has been employed by Qantas for 27 years in various positions. He has performed the role of Customer Service Supervisor since 1997. He occasionally acts as relief DAM. His evidence was that the DAMs do not involve themselves in fare and ticketing issues other than those that arise on the day of travel. Mr Mahoney denied granting any authorisation to Ms Panera. He was not aware of employees failing to charge booking or cancellation fees. He denied authorising Ms Panera to issue the cheapest fare to a customer or authorising her or any other Customer Service Officer to attempt to match the airfare of another airline. Mr Mahoney denied the conversations relied upon by Ms Panera and Ms Louverdis in October and November 2013. I prefer the evidence of Mr Mahoney to that of Ms Louverdis.

[61] Having considered the evidence of Mr Allan English 36, Mr Mahoney37 and Ms Louverdis38 I am satisfied that Ms Panera made this booking in breach of the fare rules.

[62] I am satisfied that, in breach of policy, Ms Panera force booked this booking onto O class when there were no O class fares available.

[63] I am satisfied that there are no circumstances in which a ticket on an Emirates flight can be appropriately force booked into a different fare class.

Allegation 7

[64] It was alleged that on 16 November 2013 Ms Panera made booking PNR 643807 for a flight from Sydney to Athens via Dubai for Michael and Rina Koudounis. On 26 November 2013 Ms Panera ticketed that booking by backdating the fare quote to access an early bird fare that had expired on 15 November 2013. Ms Panera force booked this flight onto O class. An O class ticket was not available on the outbound flight. On 17 March 2014 Ms Panera revalidated these tickets on an unavailable fare basis. Ms Panera re-validated the tickets without re-issuing the tickets as is required on Emirates flights. No change fee was charged. These actions were not authorised and had no commercial purpose. One of the passengers was a former colleague. Ms Panera’s actions were undertaken to provide the passengers with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[65] Ms Panera’s response to this allegation was that approval to obtain the best available fare was granted by DAM Phil Calo. Ms Panera admitted to applying a fare override in order to obtain an early bird fare. 39

[66] Phil Calo is a Customer Service Supervisor employed by Qantas for the past 24 years. He has relieved as a DAM for the last eight years. He provides no support for Ms Panera’s evidence that he authorised any breach of policy in relation to this booking and he rejected the evidence of Ms Koudounis and Ms Michiko Farrell. He does not have a general discretion in relation to fee waivers and the only occasion on which he refers customers to a Customer Sales Agent to waive fees is in the case of deportees, for compassionate reasons or for disrupted passengers on day of travel. 4041

[67] Ms Koudounis was employed with Qantas for 27 years as a Customer Sales Agent at Sydney International Terminal. Her evidence was as follows:

[68] Mr Calo does not recall having a conversation with Ms Panera about a booking for Ms Koudounis. He was not rostered for work on 16 November 2013. He denies ever having a conversation with Ms Panera regarding offering a customer the cheapest or best fare. His evidence was that, as a matter of practice, DAMs were not consulted about granting a ‘cheaper fare’.

[69] Having considered the evidence of Mr Allan English 42, Mr Calo43 and Ms Koudounis44 I am satisfied that Ms Panera made this booking in breach of the fare rules.

[70] I am satisfied that, in breach of policy, Ms Panera used a fare base that was not permitted for this booking.

[71] I am satisfied that Ms Panera force booked access to an early bird fare which had expired.

[72] I am satisfied that, contrary to policy, Ms Panera failed to charge a change of booking fee.

Allegation 8

[73] It was alleged that booking PNR 3OOMHJ was made by Ms Panera for Graham and Constance Mandroules on 13 October 2013 for travel from Sydney to Athens and return via Dubai. The booking was automatically cancelled by the reservation system because it had not been ticketed within seven days. On 6 May 2014 Ms Panera accessed the booking and rebooked different departure dates and class of travel.

[74] On 7 May 2014 at 2.51pm an unidentified person contacted Yield Operations and requested that the Dubai to Sydney flight be rebooked into Q class. This was denied by the flight analyst.

[75] On 7 May 2014 at 3.00pm Ms Panera accessed the booking and rebooked the Dubai to Sydney flight into Q class.

[76] On 7 May 2014 at 3.01pm Ms Panera ticketed the booking by backdating the fare quote to a date prior to 15 November 2013 and accessed an early bird fare that had expired. She rebooked the flights, amended the dates of travel, changed the class of travel to Q class and reissued the tickets. These changes involve travel in a season that was not available for an early bird ticket and involved travel in a non-permitted fare class. Ms Panera reissued the tickets without collecting any fee or charging any additional fare. These actions were not authorised and had no commercial purpose. The customers were personal friends of the applicant. Ms Panera’s actions were undertaken to provide the passengers with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[77] Ms Panera’s response to this allegation was that the booking was cancelled and then rebooked using the original fare quote. Ms Panera gave evidence that the authority to do this was provided by a Mr Luke Lynch. She gave evidence that the customers had the opportunity of purchasing a staff ticket. 45

[78] Mr Lynch denied giving Ms Panera any authority and denied authorising a rebooking. 46 Mr Lynch stated that there would need to be good reason for an employee to waive fees. He was not aware of any Qantas policy permitting the non-charging of fees to staff who have purchased a commercial ticket.47

[79] Mr Lynch did not provide any support for Ms Panera’s evidence. Having considered the evidence of Mr Allan English 48 and Mr Lynch49 I am satisfied that Ms Panera made this booking in breach of the fare rules.

[80] I am satisfied that, in breach of policy, Ms Panera amended the class of travel inappropriately.

[81] I am satisfied that on 7 May 2014 Ms Panera backdated the booking to obtain access to an early bird fare that had expired on 15 November 2013.

[82] I am satisfied that, in breach of policy, Ms Panera did not collect a change of booking fee.

Allegation 9

[83] It was alleged that on 14 October 2013 Ms Panera made booking PNR 320AXT for Ms Hannah Anastasiou for travel from Sydney to Athens and return via Dubai. She failed to ticket that booking within the seven days required. She then rebooked for Ms Anastasiou on 24 October 2013 in S class which was the appropriate fare class. On 25 October 2013 Ms Panera booked and accessed an early bird fare to which access was limited to O class fares. On 14 May 2014 Ms Panera cancelled this booking.She failed to charge a cancellation fee. These actions were not authorised and had no commercial purpose. The customer was a personal friend of the applicant. Ms Panera’s actions were undertaken to provide the passenger with unauthorised discounted travel. Ms Panera’s actions exposed Qantas to a loss of revenue.

[84] Ms Panera conceded that the customer was a current Qantas employee. She conceded that she booked the ticket on an early bird special and that she did not charge a cancellation fee. Ms Panera gave evidence that she believed that it was discretionary for her to decide whether or not to charge friends or family cancellation fees. 50

[85] Having considered the evidence of Mr Allan English 51 I am satisfied that Ms Panera made this booking and cancelled it in breach of the fare rules.

[86] Qantas lost actual or potential income from the transactions outlined in allegations 1 to 9. In terms of Qantas’s annual budget the loss is small, but it is not nothing. If this loss was multiplied across the number of employees engaged in ticket sales it would be a significant amount. It is not a packet of biscuits which would otherwise be discarded. It is not a chocolate eaten by the cabin crew or carried off in their pocket. It is not a Qantas pen or souvenir inadvertently or even intentionally removed. It is not an insignificant item of small change.

[87] Although Ms Panera did not make any personal financial gain from these transactions she provided a beneficial financial outcome for various friends, acquaintances and colleagues by manipulating the Qantas booking system and accessing fares to which these passengers would otherwise not have had access. They received a financial benefit. Qantas suffered a financial detriment. Ms Panera was Lady Bountiful to this small group.

[88] The access to early bird fares outside the access period is the most easily demonstrated breach of Ms Panera’s obligation to Qantas. These bookings were made for a fare class which was designed to produce an early payment in return for a reduced price. What Qantas received was a delayed payment for a reduced price. Every time Ms Panera force booked into an early bird fare for which access had expired she acted contrary to Qantas’s interests. Every time Ms Panera force booked into a fare class which was not otherwise accessible she made that seat unavailable for another fare paying passenger. Every time she failed to charge a change fee Qantas lost that revenue.

[89] I reject Ms Panera’s evidence that she made the enquiries for authorisation that have been denied by the various Qantas witnesses. However, if I am wrong and those enquiries were made in the manner described by Ms Panera, I do not consider that Ms Panera could have relied upon the responses to make the bookings and waive the fees involved in allegations 1 to 9. I do not accept that Ms Panera could have expected any other employee of Qantas, including a Customer Service Supervisor or a DAM, to whom she made a request that she be authorised to offer the cheapest fare to a passenger, to understand that she was considering force booking into an unavailable fare class or accessing an expired earlybird offer. I am satisfied that any person to whom Ms Panera put that request could only have expected that request to encompass an offer of the cheapest available fare on that day which did not involve a breach of the Qantas fare policies. Ms Panera’s evidence was that she knew more about ticketing techniques and procedures than most DAMS. In that circumstance reliance on their authority appears disingenuous.

[90] In relation to Mr Guy, Ms Vicki Paneras gave evidence that she heard Ms Panera make a telephone call and seek authorisation from someone she thought was Mr Guy for the fares booked for her two daughters and their friends. Mr Guy did not give evidence. If this telephone call took place I am satisfied that a person in Mr Guy’s position would have understood that Ms Panera was seeking authorisation to charge the cheapest fare available on that day.

[91] In making these requests Ms Panera attempted to provide herself with the cover of ostensible authorisation by not revealing the action that she intended to implement.

[92] In undertaking these bookings and then ticketing them Ms Panera was not engaging in activities which were within her designated duties such as day of travel, operational or compassionate issues which might cause her to take bookings and ticket them.

[93] Ms Panera’s conduct in undertaking these bookings arose directly from approaches by relatives, friends, acquaintances and colleagues who were seeking for her to make arrangements which were not within her duties as day of travel changes but were for future travel for which bookings she had no ordinary role. Every person who approached Ms Panera to make these bookings was seeking an advantage through a Customer Service Operator on the international desk with day of travel responsibilities. These passengers sought an advantage and, to her endangerment, Ms Panera provided the bounty sought.

[94] I am satisfied and find that this conduct involved consistent deliberate breaches of policy resulting in a financial detriment to Qantas and a significant financial gain to the passengers involved.

[95] I am satisfied and find that there was a valid reason for the termination of Ms Panera’s employment arising from the conduct, which I am satisfied was misconduct, outlined in allegations 1 to 9.

Notification of Reason - s.387(b)

[96] Ms Panera was provided with detailed letters regarding the allegations against her. I am satisfied that Ms Panera was appropriately notified of the reasons for termination of her employment.

Opportunity to Respond - s.387(c)

[97] I am satisfied that Ms Panera was given a reasonable opportunity to respond to the allegations against her. Ms Panera was provided with details of most of the allegations against her on 23 May 2014 and then two further allegations on 30 May 2015. She was provided with extracts from the PNRs relevant to the allegations and asked to respond by 3 June 2015. The time frame was short but I am satisfied it was adequate. Despite the complications surrounding an examination of the fare rules and other technical issues, the core of these factual allegations was very straightforward and the information required was within Ms Panera’s knowledge.

[98] I am not satisfied that Ms Panera was given a reasonable opportunity to address what outcome should otherwise arise from Qantas’s conclusions concerning the allegations against her. The time was short. The issue was of great importance. Qantas provided its findings in writing on 5 June 2015. It only allowed Ms Panera’s representative until the afternoon of 6 June 2015 to argue for an outcome other than termination of employment. I am satisfied that an appropriate considered response would have required more time than that proposed and enforced by Qantas. I am satisfied and find that Qantas provided a less than adequate opportunity because of the financial consequences of Ms Panera’s imminent redundancy.

Support Person - s.387(d)

[99] I am satisfied and find that Ms Panera was given an opportunity to have a support person present to assist her. A union officer, James Canavan, and a support person, Ms Diatore, attended the initial meeting. Her solicitor Mr Jordan attended subsequent meetings with Qantas. He made submissions regarding the process and very relevant and accurate submissions concerning the absence of an adequate opportunity to put mitigating circumstances to Qantas regarding the appropriate outcome consequent upon the conclusions reached in their investigation.

Unsatisfactory Performance - s387(e)

[100] This is not a relevant consideration in relation to this application.

Procedures for implementing dismissal - s.387(f) and (g)

[101] I am not satisfied that the procedures adopted by Qantas were appropriate. There was an inadequate opportunity for Ms Panera to put submissions regarding what outcome should follow consequent upon the conclusions reached in Qantas’s investigation.

Any other relevant matters – s.387 (h)

[102] I have considered whether other employees engaged in the same or similar practices to the misconduct engaged in by Ms Panera. Ms Panera made specific allegations against particular employees citing instances of conduct by them which she submitted were in the same class of conduct as the allegations against her. Qantas responded to those allegations. Qantas’s evidence was that it was satisfied that there was no misconduct or breach of policy involved in any of the circumstances described by Ms Panera. To the extent that I was able to examine those allegations I accept the evidence of Qantas and I am satisfied that there was no misconduct or breach of policy engaged in by those employees. I am satisfied that there was no differential treatment accorded those employees.

[103] In the course of the hearing Mr Read submitted that the Applicant should be granted access to Qantas information and documents concerning a current audit of sales practices which was being undertaken by Qantas. I did not accept that this wider audit was relevant to these proceedings and therefore did not order the production of those documents. There was no evidence of a culture of breaching fare rules. Mr Reid argued that there is a culture of acceptance in the workplace of the techniques used by Ms Panera. If this is so, a number of employees may be engaged in misconduct. That will be a matter to be determined in the circumstances of each case.

[104] Mr Reid submitted that the policy in relation to discounting tickets was never properly articulated to employees. He submitted that, subsequent to proceedings concerning a Queensland employee which was the subject of an application before the Fair Work Commission 52, Qantas should have retrained and reinforced the fare rules applicable to persons in Ms Panera’s position. It should have informed employees that breaches of any of the fare rules and policy would not be tolerated and might result in dismissal from employment.

[105] Ms Panera’s counsel also argued that Qantas had failed to monitor compliance with its policies prohibiting the practices engaged in by Ms Panera and manage its risk. Ms Panera’s conduct was brought to Qantas’s attention by a fellow worker. It investigated promptly. I am satisfied that there was no opportunity for Qantas to warn the applicant about her conduct or draw their attention to these issues prior to the investigation.

[106] All employers would be prudent to engage in regular audits to check that employees are behaving honestly and appropriately. However, I do not consider that an employer should be criticised if, in the absence of any indication to the contrary, it proceeds on the basis that its employees are acting honestly and applying its policies in its operations. I am satisfied that until Ms Panera was reported by a fellow worker Qantas had no reason to audit Ms Panera’s compliance with its policies.

[107] I have considered Ms Panera’s age, length of service, future employment prospects and her otherwise good service record.

[108] I have considered the financial and social consequences to Ms Panera of termination of employment. As a result of the termination of employment Ms Panera lost a significant redundancy payment which would have been paid to her at the end of her shift on 10 June 2014 had her employment not been terminated on 6 June 2014.

[109] I considered whether or not the brevity of the period available for Ms Panera to respond to the allegations and to make submissions on mitigation and outcome should persuade me to find that the termination of her employment on 10 June 2014 was harsh, unjust or unreasonable because it resulted from a truncated and/or inadequate process.

[110] There may be circumstances where this would be the case. Much will depend on the nature and seriousness of the particular allegations. In the circumstances of this application I have heard at length all of the arguments on merit and mitigation which could have been put by Ms Panera had she been provided with an appropriate opportunity to do so. I am satisfied that no further opportunity to make submissions on merit or mitigation could, should or would have made any difference to the decision to terminate Ms Panera’s employment.

[111] Having reviewed the evidence I am satisfied and find that Ms Panera’s conduct was a series of deliberate acts of non-compliance with Qantas policies. Ms Panera shared her largesse with relatives, friends, acquaintances and colleagues who approached her by engaging in breaches of policy, thereby providing them with a financial advantage to the detriment of Qantas.

[112] Although it was open to me to do so, on the facts before me I did not conclude that Ms Panera’s conduct arose from a mistaken understanding of her role and the operational requirements of the fare rules as well as a misunderstanding of the discretions available to her.

[113] It was also open to me to conclude that Ms Panera acted in accordance with her training. That was her evidence.

So are you suggesting to the Commission that it’s a matter for a relevant customer service agent or customer sales agent or any individual as to how they apply those rules? Yes, it’s discretionary and every situation is different. 55

[114] There was also cross-examination of a Qantas witness as to the failure of Qantas to direct employees not to engage in conduct that Ms Panera is accused of. Mr Bird gave evidence that he was never told not to engage in conduct engaged in by Ms Panera but also that he had never engaged in that conduct without approval. 57

[115] Ms Panera repeatedly gave evidence that she applied the techniques she had been trained in for the 25 years of her employment. 58

[116] For greater caution I have decided to consider whether, if I had accepted Ms Panera’s evidence on these issues, I would have considered it to have been harsh, unjust or unreasonable to terminate her employment. Ms Panera had an otherwise good employment record and the outcome of termination of employment was, both socially and financially, devastating. Termination of employment might not necessarily be the fair outcome in such circumstances. However, I consider that Qantas was entitled to expect a senior employee in Ms Panera’s role to both understand and apply its policies and to act honestly, and I am satisfied that in neither circumstance was termination of employment with notice an outcome that was harsh, unjust or unreasonable.

[117] The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr N Read for Ms Panera

Mr B Rauf for Qantas Australia Pty Ltd

Hearing details:

2014

Sydney

20, 21 and 26 November

5 December

2015

Sydney

20 April

<Price code C, PR569086>

 1   Exhibit Panera 3 para 6

 2   Exhibit Panera 6 paras 44 - 51

 3   Transcript PN126

 4   Transcript PN127

 5   Transcript PN128

 6   Transcript PN129

 7   Transcript PN194

 8   Transcript PN196

 9   Exhibit Qantas 11

 10   Exhibit Panera 9

 11   Transcript PN 47 to 471

 12   Exhibit Panera 2 paras 62 - 72

 13   Exhibit Qantas 5 para 5

 14   Exhibit Qantas 5 para 18 (a), (b), (c) and (d)

 15   Exhibit Qantas 5 paras 14 - 17

 16   Exhibit Qantas 5 paras 6 - 8

 17   Exhibit Qantas 11

 18   Exhibit Qantas 5

 19   Exhibit Panera 2 Paras 73 - 80

 20   Exhibit Qantas 15 paras 6 - 7

 21   Exhibit Qantas 11

 22   Exhibit Qantas 15

 23   Exhibit Panera 2 paras 81 - 92

 24   Exhibit Qantas 18 para 6

 25   Exhibit Qantas 18 para 15

 26   Exhibit Panera 2 para 84

 27   Exhibit Qantas 18 paras 9 - 14

 28   Exhibit Qantas 11

 29   Exhibit Qantas 18

 30   Exhibit Panera 2 paras 93 to 97, Exhibit Qantas 17 JB-1 (notes from Response Meeting where Ms Panera names Wayne Grace as giving her authority)

 31   Exhibit Qantas 5 paras 23 - 25

 32   Exhibit Qantas 11

 33   Exhibit Qantas 5

 34   Exhibit Panera 2 PN 98 to 105 and the Exhibit Panera 6 [8] (Statement of Ms Vicki Paneras)
Exhibit Panera 2 paras 106 - 121, Exhibit Panera 7 (Statement of Ms Louverdis)

 35   Exhibit Qantas 11

 36   Exhibit Qantas 11

 37   Exhibit Qantas 19

 38   Exhibit Panera 7

 39   Exhibit Panera 2 paras 122 - 128, Exhibit Panera 8 paras 6 - 7 (Statement of Ms Koudounis)

 40   Exhibit Qantas 16 paras 8 - 11

41 Exhibit Qantas 16 PN 20

 42   Exhibit Qantas 11

 43   Exhibit Qantas 16

 44   Exhibit Paneras 8

 45   Exhibit Panera 2 paras 129 - 134

 46   Exhibit Qantas 15

 47   Exhibit Qantas 15 paras 11 - 14

 48   Exhibit Qantas 11

 49   Exhibit Qantas 15

 50   Exhibit Panera 2 paras 133 - 134

 51   Exhibit Qantas 11

 52   Carter v Qantas Airways Ltd [2011] FWA 8025

 53   Transcript PN 319

 54   Transcript PN 320

 55   Transcript PN 321

 56   Transcript PN 322

 57   Transcript PN 2674 to 2676 and 2687

 58   Transcript paragraph number 433

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