A RECENT Fair Work Commission decision involving the termination of long-serving employees has demonstrated that employers must make their employees aware of changes to key policies. AREEA principal employee relations consultant Bill FitzGerald explains.
TWO long-serving Qantas flight attendants were successful in their unfair dismissal applications after being terminated by the airline group for breaching a newly-implemented company travel policy.
The background to the case is as follows.
During an internal audit, Qantas found that the attendants utilised a limousine provider in place of an authorised taxi service on 15 occasions. In addition, the limousine provider was permitted to charge twice for a single journey, despite the attendants travelling together.
Qantas dismissed both employees but had the decision challenged in the Fair Work Commission (FWC).
In ruling in favour of the applicants, Deputy President Lawrence found that even though the travel policy was recently introduced, neither employee had been adequately advised of the rollout and were therefore unaware of the specific policy requirements.
In its defence, Qantas was unable to produce evidence of the employees’ attendance at the rollout sessions.
The applicants’ case was further strengthened that both employees had served more than 20 years under the employer and demonstrated contrition after the breach was made. One offered to accept demotion, but their primary claim was that they were unaware of the policy and that any breach was inadvertent.
Under s387 (h) of the Fair Work Act 2009, DP Lawrence found that Qantas had not given sufficient weight to a number of factors in its decision to terminate, including the long service of the employees, or their clean records, apologies and limited prospects of alternative employment given their age.
In deciding a remedy for the unfair dismissal claims, DP Lawrence said reinstatement was suitable.
“There was no issue raised concerning either Mr Chew or Ms Leong’s record or capacity as flight attendants,” he said.
“There was no difficulty raised as to their ability to become part of the cabin crew again. Qantas stated that it had lost trust and confidence in them because of the breach of policy. I am sure however, that they have learnt their lesson. There is no chance of them repeating their error, in my view.”
However, DP Lawrence added that ‘they should suffer some penalty because of the breach of policy’, declining the employees’ claims for restitution of lost wages between dismissal in January 2014 to the date of reinstatement in August 2014.
To read the full case, click here.
Implications for Employers
In the case of changes to terms and conditions or job requirements by way of policy change, it is recommended that AREEA members be able to demonstrate with concise evidence that employees were provided with the policy change and participated in training/educational sessions, including attendance records.
Doing so will prove beneficial for members in two ways. First, it will ensure employees are aware of new policies and therefore able to implement them accordingly. Second, evidence of participation in training sessions will minimise complications when breaches occur and disciplinary action taken.
Additionally, when AREEA members investigate misconduct allegations, it is recommended that the investigation not only focus on the immediate facts, but also on the overall circumstances including the duration of an employee’s service.
The incorporation of policies into the terms of employment is a relatively complex process and AREEA members are urged to seek advice from our workplace relations experts before embarking on an investigation or termination of employment. Contact your local AREEA office for more information.
