Fair Work Act 2009
s.394—Unfair dismissal

Application for relief from unfair dismissal.

[1] On 23 November 2016, Deputy President Lawrence issued a Decision, 1 which found that whilst the dismissal of Mr David Dawson (“the Applicant”) by Qantas Airways Limited (“the Respondent”) was not unreasonable or unjust and there was a valid reason, the dismissal was harsh. In particular, the Deputy President had regard to the following factors in accordance with section 387(h) of the Fair Work Act 2009 (Cth) in reaching his Decision that the dismissal was unfair:

● The Applicant’s 28 years of unblemished service for Qantas as a long-haul flight attendant;

● The small value of the items stolen;

● The Applicant’s age of 50 meant it would be difficult to get another job, certainly as a flight attendant. Although he gave an incorrect explanation, he did correct it; and

● The Applicant had a number of medical and family issues prior to the incident.

[2] On 13 December 2016, the Respondent lodged a Notice of Appeal, appealing the Deputy President’s Decision. On 12 January 2017, we heard the appeal and reserved our Decision. 2 We found that the conclusion reached by the Deputy President at paragraph [45] of his Decision, namely, that the Applicant gave an “incorrect explanation”, understated the severity of the events which took place. The Applicant admitted that his explanation regarding how the alcohol came into his possession was “not true” in his letter to Ms Elliott dated 22 March 2016. However, it was only after the Applicant was directly confronted by Ms Elliott’s findings that he subsequently altered his explanation as to how the alcohol came into his possession. In this regard, we found that the Applicant’s conduct could not be described as a mere “incorrect explanation”. Thus, we found that the Deputy President, by describing the Applicant’s conduct as merely an “incorrect explanation”, understated the severity of the Applicant’s conduct and, as a consequence, mistook the facts before him. In doing so, the Deputy President erred in the House v The King3 sense.

[3] Accordingly, we referred the matter to ourselves to rehear the matter. Directions were issued to the parties on 8 February 2017 requiring the parties to inform the Commission by 10 March 2017 if an oral hearing was required. As the parties did not request an oral hearing, the matter is to be determined on the papers.

Background

[4] The Applicant commenced employment as long haul flight attendant with the Respondent on 8 February 1988 and was employed for 28 years.

[5] The Respondent alleged that:

(a) The Applicant removed items of Qantas Group alcohol from an aircraft after a flight from Perth to Sydney on 14 February 2016, in breach of various company policies; and

(b) Subsequently misled and deceived Qantas as to how and why he came to have these items of alcohol in his possession.

[6] The Applicant was subsequently terminated on from his employment with the Respondent on 28 April 2016. The termination letter stated as follows:

“Dear David

Allegations about Serious Misconduct – Findings of the Investigation

I refer to the letter dated 14 April 2016 from Claire Elliott, Service and Performance Manager, which sets out the findings of the investigation into allegations about your conduct (Findings Letter). As stated in the Findings letter, I have been appointed by the company to make a decision as to the outcome.

Having reviewed the investigation documentation and your personal file, my decision on the outcome is set out below.

The Findings Letter establishes that on 14 February 2016 you participated in a security inspection involving a random bag search. During the inspection, Company or Qantas Group property, or property that is entrusted to the care of the Qantas Group (or property that is reasonably believed to be any of the above) was found to be in your possession and that you were not authorised to take possession of, or remove the items. Additionally, the Findings letter establishes that you misled and/or deceived the Company in relation to your response to allegations of misconduct as particularised in the letter of allegation dated 31 March 2016.

This misconduct is serious and is a breach of your obligations under the Qantas Group Standards of Conduct Policy. In particular, you are in breach of: Section 3- Responsibilities of Managers and Employees sub section 3. 2, Section 4 – Standards of Personal Behaviour sub-section 4. 1, Section 11 - Theft, Fraud and Removal of Property sub section 11.1, Section 15- Unacceptable Behaviour, Misconduct and Serious Misconduct sub-section 15.10, 15.24 and 15.25.

Your conduct is of particular concern given that you have been employed as a Flight Attendant with Qantas for over 28 years you should be well aware of your responsibilities under the Qantas Groups' Standard of Conduct Policy.

I have taken into consideration your personal circumstances outlined in your letter dated 18 April 2016 which we discussed in our meeting on 20 April 2016 (Response Meeting). I have also taken into consideration the further information you provided in our conference call on 26 April 2016 (Conference Call).

In addition to this I acknowledge that at the Response Meeting you expressed remorse for your actions you re-iterated this on the Conference Call.

Outcome- Termination of Employment

David, as you would be aware employees are required to act with honesty and integrity. Given the serious nature of the substantiated allegations and the breaches of the company policies, Qantas has decided to terminate your employment effective today 28 April, 2016. Qantas will pay you 5 weeks' pay in lieu of notice in accordance with the Flight Attendants Association of Australia – International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty ltd Enterprise Agreement 2012 (EBA9).

You are required to complete a company property clearance procedure which includes the return of all company property including; Company Uniform, Qantas ID Card, manuals and publications and any access cards and keys that may have been issued to you.

You should contact Fiona Morris, Service and Performance Manager on 02 9691 3850 to finalise this clearance procedure. Once this clearance procedure has been completed, your final termination payment will be processed and paid into your account.

Employee Assistance Program

Given your circumstances, Qantas would like to offer your three confidential counselling sessions through our EAP provider. Please contact Fiona Morris on the above number if you wish to access these post-employment.

Confidentiality

Please also remember that this investigation and the outcomes are confidential. You must not discuss it with any other employee (except someone who is acting as a support person for you) …”

Protection from Unfair Dismissal

[7] An order for compensation may only be issued where we are satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[8] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income.”

[9] There is no dispute, and we are satisfied the Applicant has completed the minimum employment period and is covered by a modern award. Consequently, we are satisfied the Applicant was protected from unfair dismissal within the meaning of section 382 of the Act.

Was the dismissal unfair?

[10] A dismissal is unfair if we are satisfied, on the evidence before us, that all of the circumstances set out at section 385 of the Act existed. Section 385 provides the following:

“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.”

Section 385(a) – Was the Applicant dismissed?

[11] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act.

[12] On the basis of the termination letter sent to the Applicant by the Respondent, we are satisfied that the Applicant was dismissed within the meaning of section 386 of the Act.

Section 385(c) – Was the dismissal consistent with the Small Business Fair Dismissal Code?

[13] This was not in dispute and we are satisfied that the Small Business Fair Dismissal Code is not applicable as the Respondent is not a small business employer for the purposes of section 388 of the Act.

Section 385(d) – Was the dismissal a genuine redundancy?

[14] This was not in dispute and we are satisfied that the dismissal was not a genuine redundancy within the meaning of section 389 of the Act.

Section 385(b) – Harsh, unjust or unreasonable

[15] Having been satisfied in relation to sections 385 (a), (c) and (d) of the Act, we must now consider whether we are satisfied the dismissal was harsh, unjust or unreasonable. The criteria we must take into account in assessing whether the dismissal was harsh, unjust or unreasonable is set out in section 387 of the Act.

[16] Section 387 of the Act provides as follows:

“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.”

[17] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd 4 by McHugh and Gummow JJ as follows:

“… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[18] We are under a duty to consider each of these criteria in reaching our conclusion. 5

[19] The Applicant submitted that the dismissal was harsh, unjust or unreasonable as the dismissal was disproportionate to the gravity of the misconduct engaged in by the Applicant. In particular, the Applicant asserted that the dismissal was harsh because:

(a) The relatively trivial value of the alcohol taken has to be weighed against the harshness of the loss of employment;

(b) There were very significant mitigating factors or personal factors involving the Applicant; and

(c) There was inconsistent treatment of another employee by the Respondent.

[20] The Respondent contended the dismissal was not harsh, unjust or unreasonable as the Applicant engaged in theft and dishonesty which was against the Respondent’s policies; the Respondent conducted a procedurally fair investigation; and the Respondent considered all of the relevant circumstances in dismissing the Applicant.

[21] We now turn to consider each of the criteria set out in section 387 of the Act.

Section 387(a) – Was there a valid reason for dismissal relating to the Applicant’s capacity or conduct?

[22] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 6 The reasons should be “sound, defensible and well founded”7 and should not be “capricious, fanciful, spiteful or prejudiced.”8

[23] In this matter, it was the conduct of the employee that formed the basis of his termination. In King v Freshmore (Vic) Pty Ltd, 9 a Full Bench held:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination [See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1].”

[24] The Commission must consider the entire factual matrix in determining whether an employee’s termination is for a valid reason. 10

[25] The Commission must determine on the evidence before it whether the Applicant did in fact remove the alcohol from the aircraft and whether he subsequently misled and deceived the Respondent as to how and why the alcohol came into his possession. Only if this can be shown on the evidence can the termination be considered valid.

Applicant’s Submissions

[26] The Applicant submitted his termination was disproportionate to the gravity of the misconduct in respect of which the Respondent acted.

[27] Pursuant to section 387(a) of the Act, the Applicant conceded that theft or dishonesty on the part of an employee may, but not necessarily, constitute misconduct that provides a valid reason for dismissal. The Applicant noted that, in determining that question, the Commission must weigh the seriousness of the conduct. Theft of a trivial or valueless item will not constitute a valid reason. Nor will dishonesty as to a peripheral or unimportant matter. Further, the existence of a valid reason will not automatically render a dismissal fair. 11

Respondent’s Submissions

[28] The Respondent’s reasons for dismissal, as identified in the termination letter, all pertain to the events that occurred on 14 February 2016. The Respondent alleged that the Applicant:

(a) Removed items of Qantas Group alcohol from an aircraft after a flight from Perth to Sydney on 14 February 2016, in breach of various company policies; and

(b) Subsequently misled and deceived Qantas as to how and why he came to have these items of alcohol in his possession.

[29] Pursuant to section 387(a) of the Act, the Respondent submitted that this was a valid reason for dismissal. The Respondent contended that the Applicant partially admitted conscious and wilful contravention of the various policies binding on his employment amount to a valid reason for his dismissal. Moreover, that the deliberate theft of the Respondent’s property amounts to serious misconduct at common law and under the Act sufficient to justify summary dismissal without notice. Further, the Respondent contended that the Applicant admitted (partially) dishonesty during the investigation process also amounts to a valid reason for dismissal and serious misconduct at common law and under the Act sufficient to justify summary dismissal without notice.

Consideration

[30] We note that the Qantas Group Cabin Crew Operations Manual makes it clear that the removal of aircraft stores from the aircraft is strictly prohibited and may lead to termination of employment. Further, under section 15.24 of the Qantas Group Standards of Conduct Policy, employees of the Respondent are not to engage in conduct including deliberately providing incorrect or misleading information, at any time, which is relevant to the employee’s employment.

[31] It is not disputed that, on 14 February 2016, alcohol was found to be in the possession of the Applicant. Further, the Applicant admitted that his explanation regarding how the alcohol came into his possession was “not true” in his letter to Ms Elliott dated 22 March 2016.

[32] Noting the above and considering the factual matrix as a whole, we are satisfied that the Applicant did remove the alcohol from the aircraft and subsequently misled the Respondent as to how and why the alcohol came into his possession. As such, the Respondent had a valid reason to dismiss the Applicant from his employment.

Section 387(b) – Was the Applicant notified of the reason for dismissal?

[33] This was not in dispute and we are satisfied the Applicant was notified of the reason for dismissal via the termination letter.

Section 387(c) – Was the Applicant given an opportunity to respond?

[34] Considering the evidence before the Commission, we are satisfied that the Applicant was given an opportunity to respond.

Section 387(d) – Was there an unreasonable refusal to allow a support person?

[35] Considering the evidence before the Commission, we are satisfied there was no unreasonable refusal by the Respondent to allow the Applicant a support person.

Section 387(e) – Warnings regarding unsatisfactory performance

[36] As the Applicant was not terminated on the basis of unsatisfactory performance, this is not a relevant consideration.

Section 387(f) and (g) – Size of employer’s enterprise and human resource expertise

[37] The Respondent is a large organisation with over 100 employees. We find that the Respondent’s size was not a relevant factor in this matter.

Section 387(h) – Any other matters the FWC considers relevant

Applicant’s Submissions

[38] Pursuant to section 387(h) of the Act, the Applicant contended that the following matters ought to be taken into consideration:

1. Period of Service – The Applicant was employed by the Respondent for 28 years;

2. Economic Consequences – The termination has had a significant impact on the Applicant financially given his family circumstances;

3. New Employment – The Applicant is 50 years old and it is highly unlikely that he will secure alternate employment with another airline as a flight attendant;

4. Inconsistency of Outcome – The investigation conducted on 14 February 2017 was conducted in a chaotic and unfair manner as other crew members were allowed to go to the toilets with their bags prior to the search being undertaken, and one went missing for some 20 minutes without being accompanied by one of the search officers. Further, the Respondent gave evidence that it knew Ms Black removed chocolates from the plane, however, the Respondent did not terminate her due to personal factors.

5. Mitigating Circumstances – The Applicant’s has various family issues, he suffered a number of health complaints and was remorseful for his actions.

[39] In summary, the Applicant asserted that the dismissal was harsh because:

(a) The relatively trivial value of the alcohol taken has to be weighed against the harshness of the loss of employment;

(b) There were very significant mitigating factors or personal factors involving the applicant; and

(c) There was inconsistent treatment of another employee by the Respondent.

Respondent’s Submissions

[40] The Respondent submitted that it had regard to all relevant considerations and determined that termination with notice was the appropriate outcome, having regard to factors including:

(a) The nature of the Applicant’s conduct in breach of the CCOM and the SOC Policy;

(b) The Applicant’s explanations and justifications for his conduct, including his admissions, apologies, contrition and remorse (such as it was);

(c) The Applicant’s length of service and lack of disciplinary history;

(d) The likely financial and personal impact the termination of the Applicant’s employment would have on him and his family;

(e) The potential difficulties the Applicant would have in securing suitable future employment;

(f) The Applicant’s role as a flight attendant;

(g) That the Applicant failed to act with honesty and integrity during the investigation process; and

(h) That overall, the Applicant’s conduct was inconsistent with the continuation of his employment with Qantas.

[41] The Respondent noted that it considered other forms of disciplinary action, but nevertheless, determined that termination of the Applicant’s employment was the appropriate outcome. The Respondent contended that it is not the true function of the unfair dismissal provisions for the Commission to reverse a decision of an employer, merely because it would have reached a different conclusion through a different perspective or value judgment of “fairness” or “harshness”. The Respondent also asserted that there are some forms of wilful misconduct (such as deliberate theft and deliberate dishonesty) “that will almost certainly merit dismissal irrespective of an employee's length of service, good disciplinary record and personal circumstances.” 12 Further, the Respondent posited there is nothing unusual, extreme or significant about the personal, family and financial issues the Applicant relies upon.

Consideration

[42] We have considered whether any of the matters raised under section 387(h) of the Act are sufficient to justify that the dismissal was in fact harsh, unjust or unreasonable.

[43] We note the Applicant was fully aware, as a long haul flight attendant for 28 years, that the Respondent strictly prohibits theft, as well providing misleading information that is relevant to one’s employment.

[44] On 4 March 2016, the Applicant sent a letter to Ms Claire Elliott, Service and Performance Manager at Qantas, stating that:

“In relation to the miniature bottle of Beefeater Gin; the day prior to the flight we had lunch with friends at the Frisco hotel in Woolloomooloo, where my wife obtained bottles of gin.”

[45] On 11 March 2016, Ms Elliott contacted Mr Adam Micola, Manager of the Frisco Hotel, as part of the investigation into the Applicant’s conduct. After consulting with Mr Micola, and upon completion of the investigation, Ms Elliott found that the Frisco Hotel did not stock miniature bottles of any liquor. This indicated that the Applicant could not have obtained the alcohol from the Frisco Hotel, as he claimed in his letter dated 4 March 2016.

[46] The Applicant admitted that his explanation regarding how the alcohol came into his possession was “not true” in his letter to Ms Elliott dated 22 March 2016. However, it was only after the Applicant was directly confronted by Ms Elliott’s findings that he subsequently altered his explanation as to how the alcohol came into his possession.

[47] Thus, we are satisfied that the Applicant removed the alcohol from the aircraft and that the Applicant misled the Respondent during its investigations, despite his knowledge that the Respondent strictly prohibits such conduct.

[48] We note the Applicant has been a long serving employee of the Respondent for 28 years and that, at 50 years of age, it may be difficult to gain employment as a flight attendant. Further, we empathise with the personal, family and financial circumstances of the Applicant. However, we are not satisfied that those circumstances outweigh the prohibited conduct the Applicant engaged in when employed by the Respondent. Additionally, the assertion that other employees were allowed to go to the toilets with their bags prior to the search being undertaken, even if accepted, does not detract from the fact that the Applicant removed the alcohol from the aircraft and misled the Respondent during its investigations. Moreover, we are not satisfied that the circumstances of Ms Black and the Applicant are similar such to justify their comparison for the purposes of this Decision.

[49] Thus, we are satisfied that circumstances outlined by the Applicant pursuant to section 387(h) of the Act do not outweigh the prohibited conduct engaged in by the Applicant. As such, having considered each of the matters specified in section 387 of the Act, we are satisfied the dismissal of the Applicant was not harsh, unjust or unreasonable.

Conclusion

[50] Accordingly, we find that the Applicant was not unfairly dismissed.

[51] The application for relief from unfair dismissal is dismissed.

VICE PRESIDENT

Appearances:

Not applicable.

Hearing details:

Matter determined on the papers.

Final written submissions:

I. Latham for the Applicant on 15 February 2017.

M. Follett for the Respondent on 28 February 2017.

I. Latham for the Applicant on 8 March 2017.

 1   [2016] FWC 8249.

 2   [2017] FWCFB 41.

 3   (1936) 55 CLR 499.

 4   (1995) 185 CLR 410, 465.

 5   Sayer v Melsteel [2011] FWAFB 7498.

 6   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 7   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 8   Ibid.

 9   (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213.

 10   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

 11   APS Group v O’Loughlin (2011) 209 IR 351 at [56].

 12   (2013) 238 IR 1 at [70].

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