DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fred Rouady
v
Qantas Airways Limited
(U2015/10906)

Application for relief from unfair dismissal – valid reason found – dismissal not unfair – application dismissed.

[1] Mr Fred Rouady has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Qantas Airways Limited (Qantas).

The hearing

[2] This matter was heard on 2 December 2015. At the hearing, Mr Rouady was represented by Mr Maroney of the Transport Workers’ Union of Australia. Qantas was represented by Mr Rauf of counsel.

[3] Mr Rouady tendered his own witness statement. 1

[4] Qantas tendered:

● a copy of the Airside Pocket Driving Book, a guide to operating safely when working on the airport tarmac which airline services operators like Mr Rouady were aware of; 2

● a copy of a completed Form 2000 (an internal form that is completed in relation to safety-related incidents) relating to Mr Rouady, dated 30 April 2015; 3

● a copy of a completed Form 2000 relating to Mr Rouady, dated 1 May 2013; 4

● a copy of a completed Form 2000 relating to Mr Rouady, dated 5 May 2013; 5

● the witness statement of Mr Joel Greig, Ground Services Manager at Sydney International Terminal, dated 10 November 2015; 6 and

● the witness statement of Ms Kathleen Lawson-Ho, Ground Services Operations Manager, Sydney International Terminal, dated 9 November 2015. 7

[5] Mr Rouady, Mr Greig and Ms Lawson-Ho all gave evidence and were cross-examined.

The facts

[6] Mr Rouady started working for Qantas in 2001. His role as an airline services operator involved refuelling airplanes and refilling their water tanks, driving tugs that helped to move pallets, machinery and other heavy items, and loading and unloading aircraft. Each day, he would work through a list of allocated tasks. Often, each of these would relate to a different flight. This meant that he would need to drive between bays (including through underground tunnels) to attend different aircraft. He frequently worked without supervision. 8

[7] Qantas dismissed Mr Rouady in a meeting on 27 July 2015. This was precipitated by three safety-related incidents that occurred in short succession, on 9, 13 and 29 April 2015 (the April 2015 incidents). The letter of termination relevantly provided:

‘Your misconduct is of serious concern to the Company. On 9 April 2015, you drove the wrong way down a one-way tunnel and failed to check for oncoming traffic, and on 13 April 2015, the tug you were driving encroached under a B777 aircraft in breach of operating procedures. The conduct demonstrates a repeated lack of regard for safety, which is the Company’s priority in all circumstances.

In particular, your conduct on 29 April 2015 in driving into a tug operated by another driver, reversing, and driving into that tug again, showed a clear disregard for the safety of others and for Company equipment, and is very concerning to the Company. This conduct is even more concerning given that you have previously been given a formal warning letter regarding unacceptable and unsafe driving practices. Further, in May 2013 you were counselled by Ross Walker, Duty Manager, regarding the importance of following Standard Operating Procedures, driving in a safe manner, and treating safety as a priority.

In the circumstances, given the serious nature of the substantiated allegations of misconduct and the breaches, the Company has decided to terminate your employment…’ 9

[8] I note that while Qantas described the misconduct as ‘serious’, Mr Rouady was not summarily dismissed. He was provided with payment in lieu of notice. 10

[9] Ms Lawson-Ho was tasked with investigating the three incidents that led to Mr Rouady’s dismissal. She held a meeting with Mr Rouady in mid-April 2015 to discuss the incidents of 9 and 13 April 2015. 11 She then took statements from witnesses and some participants in the incidents and reviewed other available evidence, including closed-circuit television footage and screenshots of that footage.

[10] On 11 May 2015, Ms Lawson-Ho held another meeting with Mr Rouady, at which she presented him with a letter outlining the misconduct he was alleged to have engaged in on all three days. 12 Mr Rouady responded to this letter in writing on 22 May 2015.13

[11] On 2 June 2015, Ms Lawson-Ho held a third meeting with Mr Rouady to discuss his response of 22 May 2015. At that meeting, Mr Rouady asked Ms Lawson-Ho to interview a witness to the 29 April 2015 incident from whom she had not taken a statement at that stage. She subsequently did so.

[12] On 16 June 2015, Ms Lawson-Ho held a fourth meeting with Mr Rouady, at which she gave him a letter outlining her findings and asking him to respond explaining why his employment should not be terminated (the ‘show cause’ letter). 14

[13] Ms Lawson-Ho subsequently referred her findings to Mr Greig. Mr Rouady responded to the ‘show cause’ letter in writing on 26 June 2015. 15

[14] Having considered the letter in conjunction with Mr Rouady’s response and various other relevant documents, including the material on which Ms Lawson-Ho had relied in making her findings, Mr Greig held a meeting with Mr Rouady on 6 July 2015. At this meeting, they discussed Mr Rouady’s response of 26 June 2015.

[15] Following the meeting of 6 July 2015, Mr Greig considered what action should be taken in respect of Mr Rouady’s employment and decided that it should be terminated. 16

[16] Screenshots from the relevant closed-circuit television footage of all three incidents were in evidence, 17 as was the actual closed-circuit television footage of the 29 April 2015 incident.18 During cross-examination, Mr Rouady did not ultimately deny the alleged actions, nor that that conduct breached Qantas’ safety policies.19 Rather, he proffered explanations to attempt to justify and mitigate his actions. For instance, in relation to the 9 April 2015 incident, he gave evidence that others regularly drove the wrong way down the tunnel, that he checked for oncoming traffic before doing so and that he was in a rush and it would have taken longer to get to his next task had he not done so.20 He also gave evidence that the other driver involved in the 29 April 2015 incident had stopped his tug in a place where it was not customary to stop and had verbally provoked him.21 However, he eventually conceded that even if those circumstances were accepted as true, his own actions were still not acceptable.22

Consideration

[17] It is not in dispute that Mr Rouady is a person protected from unfair dismissal. 23 I am satisfied that he is so protected.

[18] Section 385 of the Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[19] Section 385(a) of the Act is satisfied. It is not in dispute that Mr Rouady has been dismissed.

[20] Section 385(c) of the Act does not apply in this case, as Qantas is not a small business.

[21] Section 385(d) of the Act is satisfied. Neither party contended that Mr Rouady had been made redundant.

[22] Therefore, to determine whether Mr Rouady was unfairly dismissed, I must determine whether the dismissal was harsh, unjust or unreasonable. This requires consideration of the criteria in s.387 of the Act:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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

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

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

(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

(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

(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

(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

(h) any other matters that the FWC considers relevant.’

Valid reason: s.387(a)

[23] I consider that the April 2015 incidents constituted a valid reason for Mr Rouady’s dismissal. Qantas was justifiably concerned about Mr Rouady’s conduct, especially in light of the potentially-adverse impact it could have had upon his own safety and that of others (which Mr Rouady himself acknowledged), 24 the fact that Mr Rouady’s role often required him to work unsupervised and the fact that all three incidents occurred within a period of under three weeks.

[24] To this last point, Mr Rouady’s deliberate collision with a colleague’s tug on 29 April 2015, despite having been notified by that stage that his conduct on 9 and 13 April 2015 was under investigation, is particularly concerning. I cannot accept Mr Rouady’s evidence 25 that it was an inadvertent collision caused by a misjudgement of the amount of space in which he could manoeuvre the tug. This is not supported by the closed-circuit television footage of the incident.26

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[25] I am satisfied that Qantas afforded Mr Rouady procedural fairness in the investigation process. He was notified that the meetings related to his conduct in the April 2015 incidents. He was also given ample opportunity to respond to Qantas’ allegations and findings throughout its investigation of the incidents, both verbally at the numerous meetings and in writing. His responses had some influence on the investigation, e.g. Ms Lawson-Ho took a statement from an additional witness based on Mr Rouady’s request.

Unreasonable refusal of support person: s.387(d)

[26] Mr Rouady availed himself of Qantas’ offer to have a support person present at every meeting held in the lead-up to his dismissal.

Warnings about unsatisfactory performance: s.387(e)

[27] Neither party contended that this factor was relevant to Mr Rouady’s application. Section 387(e) is directed to situations in which an employee is dismissed for lacking the capacity to do his or her job. 27 This was not strictly the case with Mr Rouady. He was dismissed for misconduct rather than poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[28] Qantas is a large business with dedicated human resource staff. This is reflected in the formal, structured nature of the process it followed when investigating the April 2015 incidents and, ultimately, dismissing Mr Rouady.

Other relevant matters: s.387(h)

[29] Mr Rouady submitted that the dismissal was harsh given his age, the fact that he had worked for Qantas for 14 years and the impact it had had on his personal circumstances. 28 However, while it was the April 2015 incidents that ultimately led to his dismissal, I consider it relevant that Mr Rouady’s record in relation to working safely was not unblemished before that time. Contemporaneous records of other safety incidents in which Mr Rouady was involved in 2006 and 2013 were in evidence.29

[30] Additionally, I accept Qantas’ submission 30 that the length of Mr Rouady’s experience should have given rise to greater familiarity with Qantas’ operating procedures and safety policies. Indeed, Mr Rouady acknowledged at the hearing that this was the case.31 I do not think Mr Rouady contravened these out of ignorance. I consider that the severity of his misconduct outweighs his length of service, age and personal circumstances.

Conclusion

[31] Balancing all the factors that s.387 of the Act requires me to take into account, I conclude that Mr Rouady’s dismissal was not harsh, unjust or unreasonable. It therefore was not unfair within the meaning given in s.385 of the Act. His application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

L Maroney for Fred Rouady.

B Rauf of counsel with A Reoch and L Ritchard, solicitors, for Qantas Airways Limited.

Hearing details:

Sydney.

2015.

December 2.

 1   Exhibit R1.

 2   Exhibit Q1.

 3   Exhibit Q2.

 4   Exhibit Q3.

 5   Exhibit Q4.

 6   Exhibit Q5.

 7   Exhibit Q6.

 8   PN43.

 9   Exhibit R1 annexure FR-6.

 10   Ibid.

 11   PN268-PN277; exhibit R1 [14]-[20]; exhibit Q6 [13].

 12   Exhibit R1 annexure FR-2.

 13   Ibid annexure FR-3.

 14   Ibid annexure FR-4.

 15   Ibid annexure FR-5.

 16   Exhibit Q5 [29]-[56].

 17   Exhibit Q6 annexures KLH-4, KLH-5 and KLH-13.

 18   Ibid annexure KLH-12.

 19   PN108-PN112, PN206- PN267, PN313, PN346.

 20   PN314-PN334; exhibit R1 [7]-[13].

 21   PN138-PN146, PN197-PN200.

 22   PN201-PN203, PN352.

 23   Fair Work Act 2009 (Cth) s.382.

 24   PN109.

 25   PN159-PN172; exhibit R1 [32].

 26   Exhibit Q6 annexure KLH-12.

 27   Annetta v Ansett Australia Ltd (2000) 98 IR 233 [16]; Davis v Collinsville Coal Operations PR953370 [40].

 28   PN899-PN907; exhibit R1 [62]-[68].

 29   Exhibit Q3; exhibit Q4; exhibit Q5 annexures JG-11 and JG-12.

 30   PN918.

 31   PN63.

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