| [2019] FWC 2182 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Warr
v
Qantas Airways Limited T/A QANTAS
(U2018/11160)
DEPUTY PRESIDENT BULL |
SYDNEY, 3 APRIL 2019 |
Alleged unfair dismissal. Positive alcohol breath test while on duty. Investigation misled by employee. Length of service and performance record considered.
[1] The applicant Mrs Alison Warr has filed an application in the Fair Work Commission (the Commission) alleging she was unfairly dismissed. The respondent employer Qantas Airways Limited (Qantas) opposes the application.
[2] Pursuant to s.596 of the Fair Work Act 2009 (the Act) the respondent sought to be represented in the hearing by a lawyer. The applicant, represented by Mr Nguyen - Industrial Legal Officer International of the Flight Attendants’ Association of Australia (FAAA), opposed the employer’s request for representation by a lawyer.
[3] The respondent submitted that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. The applicant disputed that the matter presented as complex and that legal representation would assist the Commission.
[4] Having considered the written submissions made by both parties concerning the facts and circumstances surrounding the applicant’s dismissal and the legal principles that should be applied to the determination of the application I formed the view that in this instance legal representation on behalf of the respondent would enable the Commission to deal with the matter more effectively taking into account the complexity of the matter. I also note that in terms of ‘fairness’ Mr Nguyen advised the Commission that he was legally qualified.
[5] The applicant commenced employment with the respondent in January 1987 as a Flight Attendant and was dismissed on 25 October 2018 while employed as a Business and First Class Flight Attendant (BFA) at Sydney International Airport. In making her unfair dismissal application Mrs Warr seeks to be reinstated with back pay.
[6] The circumstances leading to the applicant’s dismissal are initially contained in correspondence to the applicant on 2 August 2018 from the respondent. It was alleged that on 25 July 2018 Mrs Warr commenced duty at 09:40am (EST) at Sydney International Airport to work as a BFA on flight QF63 Sydney to Johannesburg.
[7] On arrival in Johannesburg Mrs Warr was told that she would be required to undertake an alcohol breath test following concerns raised during the flight by another employee. The test took place at the crew hotel and Mrs Warr returned a positive result.
[8] On arrival back in Sydney Mrs Warr was instructed in correspondence dated 27 July not to attend work until further notice while the allegation of returning a positive breath alcohol test was investigated; Mrs Warr continued to be paid during this period. Mrs Warr was subsequently provided with correspondence dated 2 August 2018 which alleged that she had returned a positive alcohol reading upon arrival in Johannesburg.
[9] Mrs Warr responded in correspondence dated 8 August 2018 acknowledging that she had consumed alcohol on the Sydney – Johannesburg flight by drinking vodka she had purchased from a duty free shop at Sydney International Airport prior to her flight departure. Mrs Warr stated that the ‘remainder of the bottle was tipped in the drain and the bottle discarded in the rubbish bin’.
[10] On 20 August 2018, Mrs Warr participated in an investigation interview and repeated her assertion that she had purchased alcohol from a duty free store to consume in her hotel room on arrival at Johannesburg to relax. 1
[11] On 29 August 2018, the respondent advised Mrs Warr that it was also alleged that she had removed alcohol from the respondent’s stores whilst in uniform on board the aircraft.
[12] On 31 August 2018, Mrs Warr responded in writing stating that she was prepared to provide a sworn statement that she had purchased the alcohol at a duty free store.
[13] A further meeting was held on 18 September 2018 where Mrs Warr maintained her contention that she had purchased a bottle of vodka with cash from a duty free store at Sydney International Airport despite having been put on notice that the duty free store records did not support this.
[14] Mr Steven Reed, the applicant’s support person and Manager of Industrial Relations for the FAAA, stated at the meeting that Mrs Warr was prepared to sign a sworn statement/declaration that a cash purchase was made.
[15] On 10 October 2018, Mrs Warr was advised in writing that the allegations that she had removed alcohol from the employer’s stores and consumed alcohol while working on flight QF63 Sydney to Johannesburg on 25 July 2018 had been substantiated. Mrs Warr was invited to provide a written response as to why her employment should not be terminated. During this period Mrs Warr still remained off work on pay.
[16] Mrs Warr provided a written response on 16 October 2018 wherein she conceded that she had been dishonest during the investigation and that she had not purchased her own alcohol at a duty free store and had, as alleged, taken and consumed company alcohol on board flight QF63.
[17] A further meeting was held on 23 October 2018 and Mrs Warr was dismissed 2 days later on 25 October with 5 weeks’ pay in lieu of notice.
Evidence of Mrs Warr
[18] Mrs Warr provided 2 witness statements - one dated 5 January 2019 and one dated 24 January 2019 in reply to the submissions and evidence filed by the respondent.
[19] Mrs Warr stated that she had been employed as a Flight Attendant since commencing employment with Qantas on 5 January 1987. At the time of her employment she was working part-time between 90 and 106 hours every 8 weeks. Since her dismissal she has obtained employment as a waitress at a restaurant on a casual basis working 16 to 21 hours a week.
[20] Mrs Warr’s witness statement attested to having worked without any negative reviews from managers or passengers and having received complimentary letters from passengers, as well as performance awards during her employment. Mrs Warr stated that she enjoyed her job, meeting passengers and working with crew and that Qantas was her life.
[21] Mrs Warr’s evidence was that she and her husband had been having financial issues since the beginning of 2018 and that her husband seemed to be depressed. When he came home from work he would lie on the couch and generally fall asleep until Mrs Warr had prepared dinner. Since the beginning of 2018 she began making more money than her husband. In Mrs Warr’s mind they were not in financial difficulty and were able to pay their bills but it was a concern that her husband was stressed and always seemed to worry about money.
[22] In the evening on about 24 July 2018 she had to sort out her 19-year-old son’s travel to Europe as she was the only one that could do all the booking through staff travel. Mrs Warr experienced problems with her iPad and asked her daughter to help which resulted in an argument with her daughter. Her husband then became involved stating to Mrs Warr ‘you should’ve done this way before you were going away why do you always leave everything to the last minute’.
[23] Mrs Warr stated she became stressed that she was arguing with her family the night before she was leaving on a flight and trying to pack for the next day. Although in hindsight it appears to be a stupid argument the next day she was still upset that she hadn’t sorted out the problem with her son’s travel and that she had had a family argument. She didn’t really feel like going to work but as most of the flights were leaving short crewed she couldn’t go sick and let the rest of the crew down.
[24] Mrs Warr made no reference in her witness statements as to how she came to consume alcohol while on duty on an 11 hour flight travelling to Johannesburg from Sydney. Under cross examination she stated that she had consumed alcohol in the middle and in the last hour of the flight. In her estimation she drank a quarter of a one litre bottle of vodka mixed with soda water. She consumed the vodka in the front galley while on her own and drank quickly to avoid detection.
[25] Mrs Warr acknowledged that she had misled the investigation into whether or not she had consumed the employer’s alcohol by insisting that she purchased the alcohol from a duty-free store prior to boarding the flight.
[26] Mrs Warr stated that she was worried that in being honest she would lose her job which had been her entire life, so she decided to state that the alcohol that she had consumed during the flight had been purchased by her as she considered this would be a less serious matter than drinking the employer’s alcohol on board.
[27] On 7 September 2018, Ms Jodi Miller the respondent’s Service and Performance Manager sent her an email 2 attaching correspondence from the duty-free store where she had alleged she purchased the alcohol which indicated that there were no cash purchases of alcohol in the relevant period.
[28] At a meeting on 18 September 2018 Ms Miller further explained to Mrs Warr that there had been no cash transactions for the purchase of vodka on the morning of 25 July 2018 for a Qantas flight. This was the first time that Mrs Warr became aware that such records were kept and when it appeared to her that her false account of having purchased the alcohol could be disproved by Qantas. 3
[29] During this meeting Mr Reed put forward the proposition on Mrs Warr’s behalf that she was willing to provide a signed statutory declaration stating that she made a cash purchase, and Mr Reed also put forward the possibility that a staff member of the duty-free store had pocketed the money and therefore there was no a record of the cash transaction. 4
[30] After this meeting had finished Mrs Warr met with Mr Reed and admitted to him that she had been lying about purchasing alcohol from the duty-free store and that she had actually taken the alcohol while on-board. Mr Reed then stated that it was his strong advice that she should not provide a statutory declaration and based on this advice she did not do so.
[31] Mrs Warr stated in cross examination that she realised at the 18 September 2018 meeting that her story about purchasing the alcohol before the flight was no longer sustainable but that she would have maintained this deception had Qantas not obtained this information. She believed that by not providing a statutory declaration the respondent would then know that she was not telling the truth.
[32] Mrs Warr stated that she told the truth to the respondent in her correspondence of 16 October 2018 and at the show cause meeting of 23 October 2018. Mrs Warr’s letter of 16 October states:
“I allowed the company to investigate something that I knew was false, I didn’t tell my support that I had misled the investigation until the evidence was overwhelming. I can only say that in my mind drinking company stores was worse than drinking my own.
…
I deeply regret being untruthful about the source of the alcohol; I panicked and I lied. As the investigation continued the lie was perpetrated and in fact caused me even greater stress in hindsight than I would have experienced I suspect that if I told the complete truth from the beginning.”
[33] Mrs Warr acknowledged that during the investigation process commencing on 25 July 2018 until her dismissal on 25 October 2018 she was stood down on pay, although she wasn’t paid her allowances.
[34] Mrs Warr states that she would have been prepared to undertake any program to keep her job or accept any other punishment from Qantas other than dismissal.
[35] Mrs Warr expressed her remorse over her conduct but wanted another chance in the job she had occupied for 31 years.
Evidence of Mr Reed
[36] Mrs Warr called one witness to support her application; Mr Steven Reed, the Manager of Industrial Relations for the FAAA.
[37] Mr Reed provided a support role for Mrs Warr during the investigation process. Mr Reed provided two witness statements 5 and was subject to cross examination. Mr Reed had previously worked for Qantas for 24 years as Cabin Crew commencing in 1988, spending 22 years as an On-Board Manager. While working for Qantas he held elected positions with the FAAA. Mr Reed’s first witness statement of 4 January 20196 provided little detail of his role in assisting Mrs Warr and relayed his understanding of flight attendants who had been involved in previous incidents concerning alcohol7.
[38] It was Mr Reed’s view that Mrs Warr’s dismissal was a disproportionate response to her misconduct. Mr Reed made a number of general observations in his second statement of 24 January 2019 that in his experience the training received by flight attendants may have led Mrs Warr to lie during the investigation process. This concerned training about giving passengers a positive response inconsistent with the truth in relation to issues predominately around delays and engineering problems. 8 Under cross examination, Mr Reed acknowledged that Mrs Warr had not put forward this explanation for not telling the truth during the investigation.
[39] Mr Reed’s evidence was that after the second response meeting on 18 September 2018, Mrs Warr disclosed to him that she had been untruthful about how she sourced the alcohol to which Mr Reed expressed his disappointment and upon which he advised her not to provide a statutory declaration containing false information.
[40] Under cross examination, Mr Reed provided a more detailed account of his role in supporting Mrs Warr. Having admitted to how she obtained the alcohol to Mr Reed on 18 September it was discussed whether to wait for the ‘Show cause letter’ before advising the respondent that her explanation regarding the consumption of alcohol was false, but in Mr Reed’s opinion it was a matter for Mrs Warr to decide. The ‘show cause letter arrived on 10 October and Mrs Warr’s admission was then made in writing on 16 October 2018.
[41] While initially stating in cross examination that the proposition he put at the meeting of 18 September 2018 that Mrs Warr was willing to sign a statutory declaration was his initiative, and the first time it had been raised, Mr Reed conceded that the same proposition had been put by Mrs Warr in her correspondence of 31 August 2018, which he assisted in preparing. In re-examination, Mr Reed stated that it may have been his suggestion that Mrs Warr put in her 31 August 2018 statement that she would be prepared to sign a sworn statement attesting to how she came to consume alcohol while on duty.
Submissions
Mrs Warr put forward a number of reasons as to why her dismissal was unfair. In summary, they are:
• there was no a valid reason for her dismissal.
• the dismissal was inconsistent with previous more serious misconduct cases.
• the dismissal was disproportionate to the misconduct.
• there was no warning provided.
• inadequate consideration of Mrs Warr’s length of service, work performance, circumstances surrounding her misconduct and her financial issues.
• pressure on flight attendants not to call in unfit.
[42] It was put that the misconduct did not involve dishonesty or theft but involved drinking alcohol on board and feeling fearful of the ramifications of also disclosing that the alcohol was from the on-board stores. Mrs Warr was honest in not signing a false statutory declaration.
[43] The dismissal was said to be inconsistent with the treatment of other employees where serious misconduct resulted in an actual negative impact on Qantas.
[44] As Mrs Warr was removed from ‘door primary duties’ by the Customer Service Manager on board before landing the misconduct did not result in any measurable impact on the employer’s business or on other employees.
[45] It was put that Mrs Warr’s dishonesty was understandable given her age, length of service and reasonably held fear that she would lose her job if she had told the truth. The circumstances which existed prior to Mrs Warr commencing work were that she was feeling the emotional pressure of having been in an argument with family members and should have called in unfit and was not in a mental state to work. However, she was under pressure to attend work and not let the crew down.
[46] It was put that being part of a group of employees whose conditions have been ‘grandfathered’, any new employee to replace the applicant would be on inferior wages and conditions which contributes to the dismissal being unjust.
[47] It was submitted that the respondent could have implemented other disciplinary actions in lieu of dismissal and that there was no likelihood that Mrs Warr would ever embark on the same behaviour if she was to remain in employment. Mrs Warr had expressed her remorse for her conduct.
[48] It was also put that had a warning being provided Mrs Warr could have sought further professional assistance with her drinking and could have been educated in the need to speak truthfully in investigations.
Submissions
[49] The respondent submitted that Mrs Warr’s employment was not terminated solely on account of the fact that she had consumed alcohol while serving as a flight attendant on a long haul flight.
[50] Mrs Warr’s dismissal was because of a number of factors. Firstly, she was employed in a safety critical role and while on duty she removed and consumed alcohol belonging to the respondent which resulted in a positive breath alcohol test on arrival at Johannesburg.
[51] Secondly, Mrs Warr’s misconduct was exacerbated by her untruthfulness during the course of the investigation which was only acknowledged in the face of overwhelming evidence that was presented to her. These facts it was put, involve dishonesty or theft compounded by further deliberate dishonesty.
[52] The respondent had in place a number of policies and procedures relating to the consumption of alcohol by cabin crew whilst discharging their functions known by all flight attendants. This includes the Qantas Group Health and Safety Policy, the Qantas Group Standard of Conduct Policy and the Cabin Administration Manual.
[53] The relevant policies are said to emphasise that unauthorised removal of property was considered serious misconduct and prohibited the consumption of alcohol while on duty.
[54] Following the positive breath alcohol result the applicant was stood down on pay and an investigation commenced. In response to the allegations that Mrs Warr had removed and consumed alcohol from company stores while on duty her written response of 31 August 2018 was a categorical denial in the following terms:
“In relation to the further two allegations that I removed company stores from the aircraft I completely deny this allegation. I further deny that I accessed Company stores on the aircraft for myself and deny that I consumed company stores onboard the aircraft.”
[55] Mrs Warr’s written response went on to state that she was prepared to provide a sworn statement to the effect that she purchased the alcohol from a duty free store as previously advised verbally and in writing.
[56] Having advised her union representative Mr Reed of her dishonesty after a meeting with the employer held on 18 September 2018 she then allowed a period of nearly one month to elapse before stating in a written response dated 16 October 2018 to a show cause letter sent on 10 October 2018 that she had been untruthful.
[57] The respondent submitted that it accepted that not all acts of dishonesty would automatically render an employee’s dismissal unfair but that theft establishes a valid reason for dismissal. In respect to the applicant’s dishonesty, Mrs Warr had been provided with a number of occasions to be truthful and failed to do so. Mrs Warr’s dishonesty was not a case of a spur of the moment untruthfulness.
[58] The respondent stated that it had taken into consideration the applicant’s age, employment record and her length of service; however, the misconduct was at a level of seriousness where her dismissal could not be said to be unfair.
Evidence of Andrew William Sinclair
[59] Mr Andrew William Sinclair is currently employed by Jetstar Airways Pty Ltd as Senior Manager Cabin Crew Operations and provided a witness statement 9 and was subject to cross examination. Mr Sinclair was previously employed by Qantas as Manager, International Customer Service Experience for Melbourne and Sydney International.
[60] Mr Sinclair stated that during his employment with Qantas he was not involved in the investigation phase relating to Mrs Warr’s conduct but was required to act as the decision-maker in determining what action should be taken in relation to the findings of misconduct having been made by the investigator.
[61] Mr Sinclair stated that a flight attendant is the first respondent to an emergency and the position is a safety critical role. The Cabin Administration Manual states at 5.3.1.1 that:
“a person acting as a member of the operating crew of an aircraft … shall not … be in a state in which, by reason of his or her having consumed, used, or absorbed any alcoholic liquor, drug, pharmaceutical or medicinal preparation or other substance, his or her capacity so to act is impaired. 10
[62] The Safety and Health Policy also provides that employees must be free from alcohol while undertaking safety sensitive aviation activities.
[63] Mr Sinclair stated that he had spoken to the Employment Relations team and those involved in the investigation but did not speak to the cabin crew on flight QF63.
[64] Mr Sinclair stated in coming to his decision he had reviewed all the relevant documents, particularly Mrs Warr’s written responses and the interview notes. Following the show cause letter of 10 October 2018 Mr Sinclair met with Mrs Warr on 23 October 2018 to discuss her written response and to hear from her in relation to the allegations. In attendance were Mrs Warr, Mr Reed as her support person, and Ms Ashleigh Bowen Manager Service Performance as an employer representative.
[65] Mr Sinclair stated that in reflecting on all the material before him, including the applicant’s very good employment record, length of service, remorse and personal circumstances he formed the view that the only course of action was her dismissal. This decision was made for the following reasons:
• Mrs Warr was aware of the safety risks associated with the consumption of alcohol whilst engaged in a safety critical role and that consuming alcohol breached Qantas’s policies
• Mrs Warr had been repeatedly deceptive and dishonest during the investigation process by fabricating an entirely false story about purchasing alcohol from a duty-free store
[66] Mr Sinclair stated that he formed the view that Mrs Warr had only ultimately admitted to her deception about the source of the alcohol once she was confronted with the overwhelming evidence that her story was no longer credible. Mr Sinclair also proffered his view that the examples of misconduct not resulting in dismissal provided by Mr Reed were not analogous to those of the applicant.
[67] There is no issue that the applicant is protected from unfair dismissal as per s.382 of the Act.
[68] The criteria that must be taken into account in assessing whether a dismissal was harsh, unjust or unreasonable is set out in s.387 of the Act and provides as follows:
(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.
[69] These factors are considered below.
Whether there was a valid reason related to capacity or conduct for the dismissal
[70] The term “valid reason” was considered by Northrop J in Selvachandran v Petron Plastics Pty Ltd 11, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, Northrop J opined that a valid reason means it must be sound, defensible or well founded and should not be ‘capricious, fanciful, spiteful or prejudiced’.
[71] More recently a Full Bench set out what it said were well-established propositions concerning ‘valid reason’ 12:
• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;
• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);
• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;
• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).
(References omitted)
[72] The applicant does not dispute that the conduct alleged by the respondent occurred, but submits that it does not amount to a valid reason for dismissal. The applicant’s length of service, explanation for being untruthful, remorsefulness and the treatment of other flight attendants for engaging in misconduct are reasons put forward as to why the dismissal was not sound, defensible or well founded.
[73] In my view, the applicant’s submissions on the question of valid reason are more related to the issue of the alleged unfairness of the dismissal. This point was made by a Full Bench in Phillip Toby v Container Terminals Australia Limited 13 stating at [15]:
“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice v Hepburn (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct…": see Walton v Mermaid (1996) 142 ALR 681, at 685.”
[74] The Civil Aviation Regulations 14 prohibit any person acting as a member of the operating crew of an aircraft to have consumed any alcoholic liquor during the period of eight hours immediately preceding the departure of the aircraft or to be under the influence of alcohol while part of the operating crew.
[75] The respondent’s own policies and procedures for all intents and purposes replicate the Civil Aviation Regulations. Mrs Warr occupied a safety sensitive position and for good reason was prohibited from consuming alcohol during a flight. No doubt such policies provide the respondent’s aircraft passengers a degree of comfort that should an emergency arise the aircraft crew will not be under the influence of alcohol in responding to an emergency.
[76] A Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post15 made the following observation in respect of a failure to comply with employer policies:
“[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[77] The admitted misconduct of consuming alcohol while on duty was far from a trivial misdemeanour and clearly meets the test of being sound, defensible and well founded. Consuming on her own admission one quarter of a litre bottle of vodka provided the respondent with a valid reason for her dismissal.
[78] The respondent also relies on the applicant’s untruthfulness during the investigation and ‘theft’ of its stores as also being valid reasons for her dismissal. I accept that where an employee is not truthful in responding to their employer this does not of itself establish a valid reason for a dismissal. As held by a Full Court of the Federal Court in Allied Express Transport Pty Limited v Anderson 16 the entire factual matrix must be considered.
[79] The applicant’s written response of 8 August 2018 which she provided 2 weeks after the incident was a concoction in regard to how she came to obtain the vodka and she continued to maintain this deception at a meeting with the employer on 20 August 2018, in writing on 31 August 2018 and at another meeting with the employer on 18 September 2018.
[80] I am thus satisfied having regard to the continuing and repeated dishonest approach to the investigation by the applicant, which in no manner can be regarded as a spur of the moment reaction, that the applicant’s untruthfulness also provided a valid reason for her dismissal. It was an ongoing course of deception that led the respondent into inquiries over a lengthy period that it need not have embarked upon.
[81] The Qantas Group Cabin Crew Operations Manual states that the removal of aircraft stores is strictly prohibited and may lead to termination of employment. Despite the policy I make no finding in regard to the consumption of vodka while on duty as being theft sufficiently serious to establish a valid reason for the dismissal. It was not removed from the aircraft and the estimated value of what was consumed was not disclosed. Had it been, I would have been in a better position to determine whether it should be considered a valid reason for dismissal or to be regarded as a trivial or minor misdemeanour.
[82] Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in ss.387 (b)-(h) of the Act which may be described as mitigating factors that may establish the unfairness of the dismissal.
Was the Applicant notified of the reason for dismissal and given an opportunity to respond?
[83] The evidence demonstrates that the applicant was notified of the reason for her dismissal and provided with an opportunity to respond.
Was there an unreasonable refusal to allow a support person?
[84] The applicant was allowed a support person at the relevant meetings.
Warnings regarding unsatisfactory performance
[85] The Applicant was not terminated on the basis of unsatisfactory performance, but misconduct, and as such this is not a relevant consideration.
Size of employer’s enterprise and human resource expertise
[86] In response to how many employees the respondent employs at question 1.7 of the employer response (F3) a number is not provided as requested and the response simply states “More than 15”. The respondent’s Annual Review 2017 states that it has 29,596 full time equivalent employees. 17 It is clearly a significantly large organisation which would demand that its unfair dismissal processes are beyond reproach.
Any other matters the FWC considers relevant
[87] The expression “harsh, unjust or unreasonable” was considered in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd18
“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.”
[88] The applicant contends that the dismissal is disproportionate to the misconduct and that the respondent had other available responses of less severity. It was put that no warning was provided in regard to consuming the alcohol and misleading the investigation. I do not accept that consuming alcohol while occupying a safety sensitive position in breach of the respondent’s policies and the Civil Aviation Regulations is misconduct where a warning ought to first be provided, nor do I consider that it is unreasonable not to have provided Mrs Warr with a warning not to mislead the investigation.
[89] The applicant also sought to make comparisons with previous employee misconduct matters handled by the respondent in submitting that the applicant’s dismissal was unfair. Clearly, each case must be considered on its own merits. This is not a case of two or more employees at the same time in the same circumstances being treated differently. The examples provided by the applicant through the evidence of Mr Reed were not like with like or contemporary. In this matter, the examples of previous situations relied upon by the applicant were not, in my view, directly comparable and failed to demonstrate a level of unequal treatment to result in a conclusion that the dismissal of the applicant was unfair.
[90] Of all the matters put forward on Mrs Warr’s behalf alleging unfairness including her personal circumstances I consider her 31 years of good service as the most compelling.
[91] Regard to an employee’s long service was considered in the decision of Dawson v Qantas Airways Limited 19 where a Full Bench held that a flight attendant’s dismissal for the removal of alcohol and misleading the employer was not unfair despite his 28 years of service.
“[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”
[92] Section 15.24 of the Qantas Group Standards of Conduct Policy provides that employees are not to engage in conduct including deliberately providing incorrect or misleading information, at any time, which is relevant to the employee’s employment.
[93] Being prepared to sign a sworn statement known to be false is not a trifling matter. While this did not occur on the sensible advice of Mr Reed, the preparedness to do so reflected in Mrs Warr’s correspondence of 31 August 2018, and the ongoing dishonesty during the investigation, is an overwhelming factor contributing to the loss of trust and confidence between the applicant and her employer that her length of service cannot restore.
[94] Mrs Warr had a long and exemplary record of service with Qantas. It is regrettable that her poor judgement in consuming alcohol while on duty on 25 July 2018 on Flight QF63 but during the following investigation has resulted in the loss of her employment. Commencing to act in a dishonest manner led Mrs Warr to continue the deception until she finally accepted that her story was no longer credible and in her words was creating such a mess which she could no longer allow to continue. 20 There may have been a different outcome had Mrs Warr been upfront and honest when it was first alleged she had consumed alcohol from company stores while on duty.21
[95] Having found that there was a valid reason for the dismissal, and despite the best efforts of Mr Nguyen on behalf of the applicant, I am not persuaded that there exist other matters that make Mrs Warr’s dismissal harsh, unjust or unreasonable. The conduct of the applicant when taken in totality and in the context of all of the issues was incompatible with her ongoing obligation as an employee and destructive of the necessary confidence between the employer and the applicant.
[96] For the above reasons Mrs Warr’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Nguyen Industrial Legal Officer FAAA and Mrs H Kasturiarachchi Industrial Legal Officer FAAA on behalf of the applicant
Mr R Wade Solicitor and Mrs J Tuffin for the respondent
Hearing details:
Sydney
2019
29 January
Printed by authority of the Commonwealth Government Printer
<PR706470>
1 Meeting minutes dated 21 August 2018 page 21 of Exhibit Book R2
2 Ex A2 at [6]
3 Witness statement of 24 January 2019 Ex A2 at [7]
4 Meeting notes page 37 of Exhibit R2
5 Witness Statement of, 4 January 2019, Exhibit A3 and Further Statement of 29 January 2019, Exhibit A4
6 Exhibit A3
7 Ibid at [21] and [14]
8 Witness statement of Mr Reed Exhibit A4 at [18]
9 R1
10 Ibid at [25]
11 (1995) 62 IR 371 at 373
12 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520 at [28]
13 C21825 of 2000 Print S8434
14 Regulation 256
16 81 IR 410 at 413
17 At p29
18 (1995) 185 CLR 410 at p 465-6
20 Minutes of show cause meeting 23 October 2018.
21 It is apt to repeat the words of Sir Walter Scott from his 1808 poem Marmion “Oh what a tangled web we weave, when we first practice to deceive’