In yet another unfair dismissal decision that has left employers scratching their heads, the Fair Work Commission has awarded a former Qantas flight attendant $33,000 in unfair dismissal remedy, despite finding he stole alcohol from his employer and broke their trust.

Background:

The Applicant had been a Qantas Flight Attendant for 28 years when he was dismissed from his role after a small amount of alcohol, the property of his employer, was found on him during a random search of the crew.

After being terminated for breaching Qantas’ company policy, the flight attendant brought an unfair dismissal application against his former employer arguing that the dismissal was disproportionate to the offence and in the circumstances was harsh, unjust or unreasonable.

Qantas argued that the relationship of trust had been broken and could not be repaired. It also alleged that the Applicant did not make ‘full disclosure’ during the investigation process.

The Applicant had received five weeks’ pay in lieu of notice of termination, and was seeking reinstatement and/or compensation. The fact that alcohol was found on the Applicant was not being contested.

Was the dismissal harsh?

In ruling on whether the dismissal was harsh, unjust or unreasonable (s.387 of the FW Act) Deputy President Lawrence took into account the following evidence and arguments provided by the Applicant:

  • That the process of the crew search may have been unfair to him in allowing other crew members time to dispose of any property they might have stolen;
  • That he responded in good faith through the investigation process, despite Qantas’ claims that he was not being truthful;
  • That he admitted to removing a can of beer from the flight, but that other alcohol found on him, including a bottle of vodka and a bottle of gin, were in his pocket inadvertently; and
  • That he was being treated differently to other flight attendants who were found to have also stolen property but were not dismissed.

Lawrence DP also considered personal circumstances of the former employee including his 28 years of ‘unblemished’ service to Qantas, his age of 50, a recent car accident involving him and his daughter, and recent surgery that necessitated four months off work.

Qantas’ case for dismissal:

Lawrence DP noted the following facts relating to Qantas’ case for dismissing the employee:

  • The employer carried out an extensive investigation process and allowed the Applicant ample time to respond;
  • He was dismissed due to a clear breach of Qantas’s Standards of Conduct Policy;
  • That it took into consideration his age and length of service, but that ultimately the dismissal was warranted due to it being essential that Qantas’s policies for conduct are upheld.

Decision of Lawrence DP:

In making his decision, Deputy President Lawrence first reviewed a number of recent case law where it was established that “the consideration of whether there was a valid reason for termination is a separation issue from the determination of whether a termination was harsh, unjust of unreasonable.”

He ‘respectfully adopted’ this position and concluded that:

“The Applicant was dismissed because he stole Qantas property and because he gave a false explanation, which he subsequently changed during the investigation. It was a small quantity of alcohol but Qantas has strict policies about theft of such company property. This is entirely understandable.”

Lawrence DP was also satisfied that the Applicant was notified of the reason for his dismissal well before the decision was made, and that he had an opportunity to respond.

However, despite the above, after considering the personal circumstances of the Applicant Lawrence DP ultimately came to the view that the dismissal was harsh.

The Deputy President said it would have been appropriate for Qantas to implement a lesser penalty than dismissal.

He then turned to the appropriate remedy, and said that he did not think reinstatement is appropriate in this case.

“I accept Qantas’s argument that the relationship of trust has broken down and cannot be repaired. It is important that flight attendants are able to be trusted with Qantas property. The fact that the Applicant changed his story is a crucial factor here. Reinstatement may be seen to condone theft in some way.”

After taking into account the Applicant’s earning capacity, Lawrence DP ordered Qantas to pay the former flight attendant $33,731, the equivalent of 26 weeks’ pay.

Implications for employers

This case is unfortunately yet another unfair dismissal decision from the Fair Work Commission that demonstrates the tribunal will award compensation to sacked employees, even where it finds there was a valid reason for termination and that the employee conducted a thorough and ‘fair’ investigation process.

On the specific details on this case, AMMA fundamentally disagrees with the notion that an employer could be penalised for dismissing an employee where it is established by the Commission that:

  • The employee did in fact steal property from his employer;
  • That this behaviour was a clear breach of company policies and that this provides a clear and valid reason for termination;
  • That reinstating the employee may be seen as condoning theft in the workplace; and
  • That the relationship of trust was clearly broken between the employer and the employee.

AMMA’s position is also that personal circumstances of the employee, such as his age, a recent car crash or surgery, should not be considered relevant factors when there was found to be a valid reason for termination.

These are the types of decisions that are driving AMMA’s advocacy for a separate appeals jurisdiction to be established within Australia’s workplace relations system.

With many of these extraordinary unfair dismissal rulings being appealed, AMMA’s position is that a separate appeals tribunal would send clearer signals about the law to both employers and employees; ensure greater consistency in decisions such as unfair dismissal remedies; and ultimately result in fewer matters being appealed to the courts.

For more information about AMMA’s workplace relations reforms, click here.

To read this case in full, click here: David Dawson v Qantas Airways Limited.