Albert Chew v Qantas Airways Limited

[2014] FWC 4885

[2014] FWC 4885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Albert Chew
v
Qantas Airways Limited
(U2014/32)

Margaret Leong
v
Qantas Airways Limited
(U2014/33)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 12 AUGUST 2014

Applications for relief from unfair dismissal.

[1] This decision deals with two applications lodged with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act (the Act) for a remedy for unfair dismissal by two international flight attendants against their former employer, Qantas Airways Limited (Qantas).

[2] The two applicants are Mr Albert Chew (Mr Chew) and Ms Margaret Leong (Ms Leong).

[3] Both applications were lodged on 6 January 2014 by Mr Jason Hart, National Industrial Officer - FAAA (International Division). By the time of the substantive hearing I was advised that the Union was not representing the applicants.

[4] Because of the intertwined facts of both the applications, they were dealt with together. This was agreed by all parties.

[5] The matters were the subject of conciliation on 28 February 2014 at which they were not settled and consequently listed for hearing.

[6] I conducted a programming hearing by telephone on 26 May 2014.

[7] The hearing took place on 2 and 3 June 2014 in Sydney.

[8] Mr Chew and Ms Leong were represented by Mr F. Austin of counsel together with Mr P. Anjos and Qantas by Mr J. Darrams of counsel together with Ms A. Reoch. I granted permission to appear pursuant to s.596 of the Act to the legal representatives.

[9] Mr Chew and Ms Leong relied on:

● written submissions filed on 6 May 2014

● the witness statement of Mr Chew (Exhibit A1)

● the witness statement of Ms Leong (Exhibit A2)

● the oral evidence of Mr Chew and Ms Leong

[10] Qantas relied on:

● written submissions filed on 14 April 2014

● the witness statement of Natalia Pacheco, Service and Performance Manager (Exhibit D2)

● the witness statement of Perry Sermon Cabin Crew Manager (Exhibit D3)

● the witness statement of Robert Chaseling, Service Performance Manager (Exhibit D4)

● The oral evidence of Ms Pacheco, Mr Chaseling and Ms Sermon.

[11] Orders to Produce were issued on 27 March 2014 against Qantas to produce records relating to cabcharge usage, its policies and procedures and wages records for the two applicants.

BACKGROUND

[12] Mr Chew commenced as a flight Attendant with Qantas on 3 April 1987 and Ms Leong on 30 July 1992. Both were notified of their dismissal on 20 December 2013 and the dismissals took effect on the same day. Mr Chew is a Customer Service Supervisor, a more senior position.

[13] Both Mr Chew and Ms Leong are Mandarin speakers. An interpreter was provided at the hearing but not utilised. It was apparent that there were some language difficulties in responding to cross examination, however. I do not discount that language difficulties played a part in the events that led to the dismissals.

[14] Mr Chew and Ms Leong were friends and lived close to each other in western Sydney. Ms Leong lived in a house occupied also by Ms Leong’s parents owned by Mr Chew.

[15] Both were terminated by a letter from Mr Chaseling dated 20 December 2013 for serious misconduct. The allegations had been set out in his letter of 3 December 2013. There had been an interview on 19 December 2013. They were paid five week’s pay in lieu of notice.

[16] The alleged misconduct related to the inappropriate use of company issued cabcharge/fast cards. There were some 15 instances of alleged inappropriate usage.

[17] The investigation undertaken by Qantas was conducted in accordance with the applicable Enterprise Agreement, the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (the Agreement) (AE401775). Qantas also has some policies about the use of such cards, of which more is said below.

[18] Mr Chaseling’s 3 December 2013 letter stated:

● Mr Chew and Ms Leong had the same registered address. Although, as noted above, Mr Chew didn’t live there.

● They were close friends, however, and as a result of “Buddy Bidding System” they have mostly identical flight patterns. This involved joint travel from their adjacent home to the Sydney International Airport. Both were issued with Qantas Corporate Cab Charge Cards (Fast Cards).

● Between 17 April 2013 and 4 October 2013 there were 15 instances of Mr Chew and Ms Leong travelling together to the airport. It is not necessary to set out the details of each trip.

● On each occasion the cards of Mr Chew and Ms Leong were each charged for the same fare rather than a single fare being charged.

● For most part of the trips a Mr Hunter was the driver.

● Both were put on notice that the allegations were in potential breach of Qantas Code of Conduct Policies and could lead to disciplinary action.

[19] Mr Chew responded to Mr Chaseling in writing on 4 December 2013 (Annexure B to Exhibit A1). He explained the maintenance of his pre-marriage address as his registered address because of the ongoing occupancy of his aged parents. He provided no real explanation for the double fares.

[20] In an attachment to his F2 form dated 9 December 2013, which was sent to Qantas, Mr Chew explains that the payment of the initial double fare to Mr Hunter, on 17 April 2013 arose from Mr Hunter’s proposal that it was justified because they needed to wait for Ms Leong to get ready. Mr Chew stated that he could not remember the precise details of most of the other trips. Often there were delays in one of them getting ready. It appears that they acquiesced in the double charging approach and it continued with another driver. Sometimes they were dropped off in the city at different destinations. Ms Leong’s response, of the same date, emphasizes her lateness as the reason for the driver having to wait and says that on some days they may have travelled separately.(Exhibit A2, Attachment B)

[21] A meeting to discuss the matter was held on 11 December.

[22] Mr Chaseling wrote to Mr Chew and Ms Leong on 16 December (Exhibit A1, Annexure C) advising that Qantas’ investigation was now complete. The letter set out again the allegations from the 3 December letter and states that they are all substantiated. References to rosters were provided to disprove any suggestions that Mr Chew and Ms Leong actually started work at different times.

[23] A written response as to why employment should not be terminated was required by 5pm Wednesday 18 December 2013.

[24] Mr Chew met with Mr Chaseling on 16 December and explained in writing on 18 December (Exhibit A1, Annexure E). His letter outlines the following:

● His 26 ½ years service with Qantas with an unblemished record.

● He denies engaging in any fraudulent activity or receiving any personal material benefit.

● Mr Hunter worked for VIP Hire Car Services, a “limousine” service rather than a normal taxi. From March 2013 he was an independent operator. He provided a statutory declaration to Qantas stating his policy of having two separate fares to cover individual drop offs and/or waiting time.

● VIP Hire Cars cards were distributed widely in Qantas work areas. Both Mr Chew and Ms Leong therefore assumed their use was authorised by Qantas.

● Mr Chew had no awareness of Qantas policies around the use of hire cars, the use of the cards or recollection of signing any documents when they were issued.

● Under the Agreement, Mr Chew and Ms Leong would have been entitled to travel separately and incur two fares using their own cards.

● Mr Chew apologised for any additional expenditure incurred by Qantas and offered to self-demote from the more senior position to Customer Service Supervisor to Flight Attendant for a period.

[25] Ms Leong also wrote to Ms Pacheco on 19 December 2013. Her letter outlines the following:

● Her over 20 years of honest and loyal service

● She used a hire car based on her understanding of what was acceptable to Qantas and what other flight attendants did. The business cards were in the crew lounge.

● She was only aware that only metered taxis were to be used when a notice was sent out late in 2013 by Qantas.

● She agreed that she and Mr Chew often travelled together.

● She did not receive any financial benefit.

● She apologised for any additional cost incurred and offered to repay it.

● She was not aware that the practice of charging for two trips was contrary to Qantas policy until the investigation commenced.

[26] Notwithstanding a further meeting on 19 December, Mr Chew and Ms Leong were issued with their termination letters on 20 December 2013 (Exhibit A1, Annexure F)

[27] Qantas, in its F3 response, says that Mr Chew and Ms Leong, together with other flight attendants, were provided with a copy of the “Cabcharge (Fastcard) Carpool Card items and conditions” (Fastcard Policy). This is a two page document which was attached to the F3. Both it, and the cards were issued on 8 March 2013.

[28] The “Fastcard Policy” contains the following:

“ Fastcards are available for eligible ‘home’ transport (that is legitimate transport to/from home to work or to/from the designated boundaries). If you are not leaving from, or returning to your home address or boundary located within the transport boundary, then you should not be using your Fastcard. Please refer to EBA 8, Part 1 Section 17 and Part 2 Section 16. In any event, if you are unsure of home transport eligibility please contact operations to confirm and avoid any misuse of card. The transport boundaries are located in Schedule 1 of your Workplace Agreement 2007 (EBA 8) for guidelines.

• Booking transport to and from work when eligible is now your responsibility. Operations will no longer book your transport. Your Fastcard should only be used in a metered cab.



• In the event that more than one crew member is electing to share a cab to the airport or to/from the boundary, it is illegal for the driver to charge more than one separate fare, ie. one total fare is payable regardless of the number of passengers. This has been confirmed as per Passenger Transport Act.”

[29] Flight attendants were required to sign and date the form. They accepted that the following policies applied:

● Qantas Group Code of Conduct or Standards of Conduct Policy;

● Cabcharge Corporate Card Policy; as well as

● The Fastcard Policy itself.

[30] Qantas states that Mr Chew and Ms Leong were dismissed because:

● They failed to follow reasonable directions made in accordance with Qantas policies;

● They failed to act honestly or in the best interests of Qantas;

● They caused Qantas financial damage;

● They irrevocably broke the relationship of trust and confidence necessary between an employer and an employee.

Protections from Unfair Dismissal

[31] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

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

“382 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 threshold.”

[33] There is no dispute, and I am satisfied Mr Chew and Ms Leong have completed the minimum employment period, are below the high income threshold, and were covered by an enterprise agreement (the Agreement). Consequently, I am satisfied that they were protected from unfair dismissal.

Was the dismissal unfair?

[34] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.

Was the Applicant dismissed?

[35] 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. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[36] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.

Harsh, unjust or unreasonable

[37] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at 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 specialist 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.

Approach of the Commission

[38] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 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.”

[39] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

Overview of the Parties’ Submissions

[40] Mr Chew and Ms Leong submit their dismissal was harsh, unjust or unreasonable because:

● Whilst it is conceded that only one fare was paid on the 15 occasions in question, it is not conceded that there was always one journey. They assert also, that on some occasions, a single fare was charged. (Exhibit A2, para 20)

● Procedural fairness was not given to them.

● They gained no financial or personal benefit from the charging of double fares.

● Dismissal was a disproportionate response by Qantas, given their long and unblemished service and has had a deleterious impact on them.

● There is lack of clarity with respect to the Qantas policies that Mr Chew and Ms Leong allegedly breached and for which they were dismissed.

● There is no evidence that Mr Chew and Ms Leong were aware of Qantas policies which prohibited the use of Fastcards in the way in which they used them.

● Both apologised for any loss to Qantas and offered to make it good.

● Mr Chew denied that in March 2012, when he received the Fastcard that he received and signed the Fastcard Policy document. He did not recall receiving any briefing from Qantas about the new policy. (Exhibit A1 para 21 - 24). Ms Leong says that she signed a ledger document when she picked up her Fastcard in March 2012 but did not sight or sign the Fastcard policy. (Exhibit A2, para 20)

● Mr Chew and Mr Leong did not act differently to other flight attendants who used VIP drivers. Ms Leong could not recall using another company since receiving the Fastcard. (Exhibit A2, para 11)

● A statutory declaration signed by Mr Hunter dated 5 December 2013 (Annexure H to Exhibit A1) supported the account given by Mr Chew and Ms Leong.

[41] Qantas submits the dismissals were not harsh, unjust or unreasonable because:

● The Fastcards, introduced in early 2012 were to be used by crew for trips between work and home, in accordance with the Agreement and Qantas policies. These were breached by Mr Chew and Ms Leong.

● The misuse of the Fastcards was revealed by an internal audit in late November 2013. It revealed that on the 15 occasions they travelled together and their cards had been charged separately, four of those occasions involved travel which was not a permitted use of the cards in accordance with the Agreement. This was travel between the city and the airport for the purpose of attending training. This last point was conceded by Mr Chew and Ms Leong.

● There was a transparent investigation of the breaches of policy. Both were given ample opportunity to respond to the allegations and they were aware that they were liable to be dismissed. They were represented by a National Industrial Officer of the Flight Attendants Association of Australia (FAAA) in the meetings on 11, 16 and 19 December 2013.

● The decision to dismiss Mr Chew and Ms Leong was not taken precipitously, but rather after considering the verbal and written responses of them and the result of the investigation.

● Mr Chew and Ms Leong were aware, or should have been aware, of the relevant Qantas policies. Perry Sermon’s evidence was that in early 2012, as part of the rollout, all flight attendants were given and were required to sign, the Fastcard Policy and a ledger. (Exhibit D3, para 6 - 7)

● The sign-on records disproved any possibility that they may have travelled to Mascot separately on any of the 15 occasions. (Exhibit D4, para 34)

● During the investigation and interview process, both Mr Chew and Ms Leong were not particularly forthcoming but were rather evasive, notwithstanding their subsequent apologies. Their explanations for the charging of double fares - delay, taking separate trips, different home destinations etc, were not plausible or acceptable.

Qantas Policies

[42] Mr Chew and Ms Leong were dismissed because of their breach of Qantas policies. It is appropriate to summarise the relevant policies and my findings with respect to them.

[43] Mr Chaseling, the principal decision maker, gave evidence that his “primary focus” was on issues of trust and honesty. He also referred to “lack of situational awareness” on behalf of Mr Chew. The policy document relied on in the course of the investigation was the “Standards of Conduct Policy”. (Exhibit D4, para 44, 52 and 61(j)) This was the basis of the decision to terminate.

[44] The “Standards of Conduct Policy” was an attachment to both Exhibits D2 (Ms Pacheco) and D4 (Mr Chaseling). Relevant clauses are as follows:

“3.2 Employees are responsible for:

(a) their own behaviour and actions at all times;

(b) being aware of and complying with this Policy, other Company and applicable Qantas Group policies, procedures and relevant legislation;

(c) ensuring that their behaviour is, at all times, consistent with the Non-Negotiable Business Principles, the Qantas Group Behaviours and the Qantas Values;

(d) treating customers and other Staff fairly and with respect;

(e) acting in the best interests of the Company and the Qantas Group at all times;

4. Standards of Personal Behaviour

4.1 In accordance with the Non-Negotiable Business Principals, the Qantas Group Behaviours, the Qantas Values and the Code of Conduct and Ethics, the Qantas Group is committed to maintaining the highest standards of professionalism, honesty, integrity and fairness. Employees are required to act in a manner consistent with this commitment by:

(a) Acting with honesty and integrity. This means Employees must:

(i) be beyond reproach in matters of trust, honesty and confidentiality; and

(ii) never misuse any privilege, authority or status.

. . .

(c) Protecting and enhancing the Company’s and the Qantas Group’s image, profitability and success. This means Employees must:

. . .

(ii) take all reasonable steps to secure and ensure the protection of Qantas Group assets, premises and resources. In particular, Qantas Employees should take care to minimise the possibility of theft or unauthorised removal of Qantas Group property by any person;

(iii) not take advantage of any property or information belonging to the Qantas Group, or opportunities arising from those, for personal benefit independent from the business of the Qantas Group or to benefit any other business or person;

(iv) not use their position for personal benefit independent from the business of the Qantas Group or to benefit any other business or person; and

(v) ensure that work is carried out conscientiously, efficiently, economically and effectively.

15. Unacceptable Behaviour, Misconduct and Serious Misconduct

Staff must not engage in Unacceptable Behaviour, At-risk Behaviour, Misconduct or Serious Misconduct including, but not limited to:

15.5 unauthorised use of Company time, resources, facilities or the IT Environment for personal benefit or private purposes;

. . .

15.10 theft or attempted theft, fraud or attempted fraud and/or unauthorised removal or appropriation of Qantas Group property, the property of Qantas Group Staff or property entrusted to the care of the Qantas Group.

. . .

15.25 failure to comply with any applicable policy, procedure or rule.

16. Misconduct and Discipline Provisions

16.1 Application

When the conduct of an Employee does not meet the standard of conduct required by the Company, appropriate corrective action will be taken, which may include termination of employment.

The processes below operate in conjunction with any relevant Award/Agreement provisions in respect of Award/Agreement covered employees. For other employees, the Company will use the following disciplinary processes as a guide, provided that in appropriate circumstances, the Company may depart from these processes at its discretion and deal with any issue of breach of the standards of conduct required by the Company as it considers appropriate.”

[45] Clause 16 goes on to provide a detailed procedure for dealing with allegations which I will not set out in full. Qantas clearly followed the procedure in investigating the allegations in this case.

[46] The relevant parts of the Fastcard Policy have been set out earlier in this decision. It provides:

● Eligible usage is defined in the agreement. It is conceded that 4 of the 15 trips fell well outside this and were not for authorised usage.

● The card is only to be used in a “metered cab”. This was not the case with the 15 journeys. The evidence was, especially from Ms Leong, that it was standard practice for flight attendants to use hire cars/limousines. This was not contradicted by Qantas. This would have, in my experience, meant an additional cost to Qantas.

(Transcript PN590 - PN608, PN1144)

Ms Leong’s evidence was at (PN2162 - PN2183):

“THE WITNESS: Yes.

THE DEPUTY PRESIDENT: When did you first meet Mr Hunter?

THE WITNESS: When I book through VIP and there was once they sent him to pick me up. That's how I met him.

THE DEPUTY PRESIDENT: Who is "they"?

THE WITNESS: When VIP - when I called VIP and booked for a car, and then they send Paul Hunter as the designated driver.

THE DEPUTY PRESIDENT: And why did you ring VIP?

THE WITNESS: Because I've got a card in the lounge.

THE DEPUTY PRESIDENT: In your correspondence to Ms Pacheco of 19 December - - -

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: Do you remember that? I'll read this to you. I just want you to comment on it. You say at paragraph 3, the bottom of the first page:

‘At no time was I aware, until a notice from Nick O'Connor was provided later that year, that only metered taxis were to be used. I realised that many other flight attendants were likewise using hire cars and therefore didn't realise anything was wrong.’

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: Do you want to just explain what you meant by that statement?

THE WITNESS: It wasn't until the allegation, when I was questioned by Natalia, that she asked me why I used hire car and I said I wasn't aware that there was a problem and cannot use hire car, because I had got picked up by hire car or taxi by Qantas when transport was organised by Qantas transport department; and using the VIP was because initially when we got the card - the Cabcharge card - there was crew passing the VIP card to other crew saying, "Why don't you use them," because they said they pick a lot of cabin crew up because they know what to - how to organise the whole thing. I've got a card in the cabin crew lounge, in the QCC one, so I presume it's something that - they would be reliable, recommended by Qantas.

THE DEPUTY PRESIDENT: Are you saying it's common practice for flight attendants to use hire cars that are not taxis?

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: And it's still the practice, is it, to your knowledge?

THE WITNESS: You mean up to now?

THE DEPUTY PRESIDENT: You're no longer on the job, as it were, but prior to your dismissal was that the practice?

THE WITNESS: I think up until October - there was a letter came out and very specific, like how we - it was even on our cabin crew screen, telling us like from certain day started if we want to use a car, we have to make sure they are meter cab, electronic, charge card, things like that. Very detailed what we need to use. What condition need to meet.

THE DEPUTY PRESIDENT: This is October 2013, you're saying?

THE WITNESS: Yes.”

● Where cabs are shared, it is illegal to charge more than one separate fare. I accept Qantas’ evidence that this policy was breached on the 15 occasions by Mr Chew and Ms Leong, leaving aside for the moment, their explanations and excuses.

[47] As I have already noted, there is a discrepancy in the evidence about the distribution and signing of the policy by flight attendants. Mr Chew and Ms Leong say they have no recollection of signing the policy or even seeing it at the time they received the cards. Unfortunately Qantas was unable to produce the signed policies or other records. The explanation was that they had been misplaced. (Transcript PN2185 - PN2193)

[48] I find this somewhat surprising, given the cards were distributed relatively recently in early 2012. Good management practice would have maintained them in the flight attendants’ personnel files.

[49] The Fastcard policy refers to the “Cabcharge Corporate Card Policy”. It became apparent during the hearing that this referred to the standard “Cabcharge Conditions of Use” documents. This is Attachment 9 to Ms Pacheco’s statement (Exhibit D2). No reliance was placed on this document by the parties.

[50] The final policy document was the “Transport Usage Policy” (Exhibit A3), introduced in October 2013, to clarify the operation of the Fastcards. It summarises the Agreement requirements for “Free of Charge Transport” and restates other procedures for use of the cards. It emphasizes the requirement of using metered taxis only.

The Agreement Provision for Free of Charge Transport

[51] The Fastcards were introduced to implement the “Free of Charge Transport” arrangements agreed in the Agreement in 2012. Part 1, Clause 16 sets out the entitlements. An employee is entitled to receive free of charge transport between his or her home under certain conditions. Broadly, they must start work before 7 am or after 9 pm, finish after 9 pm or be rostered on a flight of over 14 hours operating flight duty. These provisions were not in contest in this case. The “Transport Boundaries” are contained in Schedule 1. The homes of Mr Chew and Ms Leong were within these boundaries. Clause 16.2 provides for an ongoing consultation process with the FAAA about the implementation of the policy.

[52] I also note that Part A, Clause 11 “Disciplinary and Interview Procedures” of the Agreement sets out the procedural requirements of dealing with disciplinary matters. I am satisfied that Qantas complied with this clause in this case.

[53] I will now consider each of the criteria contained in s.387 of the Act separately.

Valid Reason - s.387(a)

[54] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘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’.

[55] Northrop J in Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[56] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[57] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. 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). ”

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[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.

. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[58] I respectfully adopt this approach.

Finding as to Valid Reason

[59] I have carefully considered the evidence provided with respect to Qantas’s policies, their application and the actions of the two applicants. I am of the view that there was not a valid reason for the dismissal of two such longstanding employees with otherwise unblemished records.

[60] There has undoubtedly been a breach of Qantas’s policies.

[61] The Qantas witnesses stressed that they acted because of a breach of the “Standards of Conduct Policy”. Mr Darrams summarised the offence as follows:

“This case isn't whether or not the employees engaged in fraud. It's whether they failed to, using the reference to the letters, do certain things to satisfy themselves about what was happened; whether they failed to act in the best interests of Qantas. All of those findings were open on the evidence that Qantas had before it when it terminated the employment. All of them give rise to a valid reason, in my respectful submission. So when you have the circumstances, in my submission, comfortably satisfying there was a valid reason for termination, one then – which one must, in my submission, come to the finding that the procedure which was adopted cannot be impugned in any way. Weighing all of them into the mix which one must, one wouldn't find that the dismissal is unfair, unjust, et cetera.” (Transcript PN3213)

[62] Ms Pacheco said:

“THE DEPUTY PRESIDENT: Sorry, I just want to be clear what your evidence here is. The whole of that letter is about specific allegations that are alleged to have occurred with respect to travelling in taxis or cars?---That's correct.

That's right. So they're the specific allegations that have been made against one of the applicants here. Is it not your evidence that the reason those allegations were made was because there had been a breach of the Cabcharge policy or what was considered to be acceptable conduct with respect to the use of the Cabcharge card? That's what it was all about, wasn't it?---It was around personal conduct of double charging.

Yes, but the relevant personal conduct was the use of the Cabcharge, wasn't it?

---No, it was about being – acting with honesty and integrity and being responsible for your actions.

In respect of the use of cab charges?---It was in relation to Cabcharge, yes.”

(PN2495 - PN2498)

[63] Mr Chaseling said:

“And you did in fact have consideration to that, but at the end of the day that didn't form a basis for the allegations or your findings?---The primary decision was based on the standards of conduct and the breaches of the standards of conduct.”

(PN2832)

How is this commission meant to determine whether his conduct was dishonest or fraudulent if you don't even know whether it was illegal to do what he did per the Passenger Transport Act?---In terms of what I was looking at in terms of the allegations and what I was investigating was allegations of misuse of company money, as per breaches of our standards of conduct. I was looking at the whole scenario which was placed in front of me where two people were travelling together charging two separate amounts to their Cabcharge card for one trip and whether that was a misuse of company money and whether that could constitute fraud under the standards of conduct.

So you've assumed that the conduct on those 15 occasions was illegal, is that correct, under Australian law?---Illegal under Australia law – I'm not too sure whether it is illegal under Australian law, but in terms of a breach of policy it's certainly a breach of out Qantas standards of conduct policy.

Sir, are you telling the commission that even though what they might have done was lawful under the Passenger Transport Act, nonetheless, that would be "extremely serious misconduct"?---If it was legal under the Transport Passenger Act – I'm not too sure whether it is or whether it isn't. What I was looking at was specifically in relation to the standards of conduct and the misuse of money under the standards of conduct is extremely serious.

(PN2860 - PN2862)

[64] The charging of two cards for one service is described as “fraudulent activity” by Mr Chaseling at (PN2926)

[65] At PN 3003 he said:

“- - - as the question of the two fares. Do you agree with that?---Yes, absolutely. So in terms of what I was fundamentally investigating was not a breach necessarily of the Cabcharge FASTCARD use policy. It was more in line with the standards of conduct and what our standards of conduct say about responsibilities in terms of use of company funds and essentially in this case misuse of company funds.”

[66] At (PN3021) he said:

“How did you take that into account?---For me it was not necessarily the financial impact that had been made which was what I put most weight to. It was the act of the misuse and the misconduct in this situation which had essentially made me lose trust with that employee and I did not believe that that could be regained.”

[67] Mr Chaseling and Ms Leong were dismissed because of their breach of the “Standards of Conduct Policy”. The relevant parts are set out in [44] above. Qantas relies on 3.2(e), the requirement to act with honesty and integrity in 4.1(a) and the responsibility to secure and not take advantage of Qantas assets in 4.1(c)(ii) and (iii). It is said that they did not act honestly or in the best interests of Qantas.

[68] The practical manifestation of this breach was the breach of the Fastcard Policy, in particular the double charging for the 15 trips.

[69] Whilst the driver/hire car company received a financial benefit, there was no allegation that Mr Chew and Ms Leong had received a financial benefit.

[70] I find that:

● Of the 15 trips, there were four which were outside the entitlement in Part 1 Clause 16 of the Agreement.

This was conceded.

● On the balance of probabilities, it is likely that Mr Chew and Ms Leong travelled together on the 15 trips. I do not find possible alternative explanations provided by Mr Chew and Ms Leong credible. The sign-on records and the overall circumstances convince me that this was the case.

● There was a breach of the requirement to only travel in a metered taxi. As I have already noted, this was not a major issue for Qantas. The evidence was that it was common practice for flight attendants to use hire cars. This came not just from the applicants, whose evidence was not challenged on this point. Mr Chaseling conceded this at (PN3004 - PN3006). It is noteworthy that this aspect of the policy was restated in Exhibit A3 in October 2013.

[71] Mr Chew and Ms Leong were the subject of intensive cross-examination by Mr Darrams. They were described as “evasive”. (PN3204). My view is that they were tentative in answering questions and embarrassed by what had happened to them. Language and cultural issues probably played a part here.

[72] My view is they accepted the “policy” of the driver on 17 April based on the time he had been kept waiting and simply continued the practice because it was convenient and there seemed no reason not to. (PN548 - PN565), and (PN804 - PN805)

[73] The fact that they could have travelled separately to their homes and charged two fares within the policy is no excuse. It is a factor which should be weighed in considering the appropriateness of the punishment implemented by Qantas.

[74] I am also satisfied that Mr Chew and Ms Leong had a lack of awareness of the applicable Qantas policies for the use of the Fastcards. (See [40] above)

[75] At (PN1161 - PN1168) Mr Chew said:

“THE DEPUTY PRESIDENT: Just coming to your understanding of Qantas's policy with respect to the use of taxi/hire cars, what was your understanding of the policy?

THE WITNESS: To me, I didn't know we're not allowed to pay for two fare, because like the policy and conditions were not issued - given. What I understand is like when we pay and something is not right, then Qantas will - from the transport department, will call us and say, "Look, this is not right," and then, "We won't reimburse this, so you have to pay back." That's what I understand.

THE DEPUTY PRESIDENT: Sorry, I'm not sure if I got that answer. Are you saying you weren't aware - - -

THE WITNESS: Yes.

THE DEPUTY PRESIDENT: - - - that the policy was that - well, as I understand the policy, it's that you have to use only a "metered cab". That appears to be the policy. If you share a taxi, you're only supposed to pay one fare. That appears to be - we'll no doubt hear more about this, but looking at the documentation it looks like Qantas sent out at the time that these cars were issued, which was in - I think 8 March 2012. That appears to be at least two of the requirements in the policy which I'm assuming all flight attendants were required to sign. Are you saying you weren't aware of those two requirements?

THE WITNESS: No, I never see that. Only just given the card to sign and say, "You collect the card." That's what I try to say.

THE DEPUTY PRESIDENT: You're saying you didn't sign anything that had those two requirements on?

THE WITNESS: Yes. That's right, your Honour.”

[76] Qantas’s procedures for rolling out the cards and ensuring their appropriate use could have been better. Their witnesses were confused and lacked knowledge about the policies. The Fastcard Policy referred to the “Cabcharge Corporate Card Policy” but it was established, during the hearing, that this was simply the standard Cabcharge Conditions of Use document. (See Transcript PN2676 - PN2698)

[77] Mr Sermon who was responsible for the rollout of the cards said:

“THE DEPUTY PRESIDENT: Can I just ask you – you give some evidence about the rollout of the cards. I think your evidence is, to the best of your knowledge, that was done uniformly?---Yes.

It wasn't always done by you?---No.

It was done by the regional managers. It was done around Australia, I assume, wasn't it?---So we're talking specifically about Sydney which is my responsibility. The card was rolled out Australia wide though.

Yes, I assumed it was. I actually asked that?---Yes.

It was done by the particular managers in each section?---Or some of our administration assistants or crew coordinators, as we call them, yes.

To the best of your knowledge, certainly the company's instruction was that the two-page document which has been very much in contention was intended to be signed by everybody as they received the card?---That's right, and a copy of the signed document given back to them.” (PN2748 - PN2753)

[78] No copies of the signed policies could be found. (See Transcript PN2850 - PN2855).

[79] Mr Chaseling’s explanation was:

“Your evidence is, I take it, that there do not exist any copies of the forms that were signed by flight attendants when they received the cards. Is that the case?

---Yes, that's correct. So in terms of where the cabin-crew base was there's been multiple moves in that time. It was actually before my time with Qantas. I made inquiries to see if I could track them down through central filing and previous base managers but I can't find the forms on file, but I did get an understanding of what the process was in terms of giving those cards out.”

(PN2995)

[80] There was therefore no evidence that the applicants had signed or even sighted the Fastcard Policy. Furthermore, there was no evidence of an educational program provided to Flight Attendants on the use of the cards or the travel policy generally.

[81] In all the circumstances I find that there was not a valid reason, pursuant to s.387(a), for the dismissal of Mr Chew and Ms Leong. In my view, some lesser penalty would have been appropriate.

Notification of a Valid Reason - s.387(b)

[82] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”   Ibid at 151.

[83] There is no doubt that the Applicants were notified of the reason for their dismissal. This was done by the 3 December letter which set out the allegations in detail. They responded in detail on 9 December. A meeting took place on 11 December. They were advised in writing of the result of the investigation on 16 December and told they would be dismissed if they could not convince Qantas to the contrary. Another meeting took place on 16 December. Both set out their position in writing again. A final meeting took place the day before the 20 December termination letter.

Opportunity to Respond - s.387(c)

[84] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[85] Given the process described above, there is no doubt that the applicants had a number of opportunities to respond to the allegations against them.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[86] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[87] There was no breach of this section, as an official of the FAAA was in attendance at each of the meetings with the applicants.

Warnings regarding unsatisfactory performance - s.387(e)

[88] This is not in issue as the dismissal was for misconduct and breach of policies.

Impact of the size of the Respondent on procedures followed - s.387(f)

[89] Qantas is a large, well resourced employer. I find that the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[90] Qantas had human resources specialists involved in the process as well as a number of managers.

Any other matter that the FWC considers relevant

[91] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[92] I find that Qantas gave insufficient weight in deciding to dismiss Mr Chew and Ms Leong to:

● Their long service with Qantas as flight attendants and their previously unblemished records.

● Their apologies and contrition. Both offered to pay back any money lost. Mr Chew offered to be demoted to a lesser position.

● The substantial impact of the dismissal, given their age and their length of service with Qantas. Given the state of the airline industry, it is unlikely they will find jobs as flight attendants in Australia.

[93] For these reasons, in addition to the finding that there was no valid reason for dismissal, I find that the dismissal of Mr Chew and Ms Leong by Qantas was harsh, unjust or unreasonable. Accordingly, I find their dismissal was unfair.

[94] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[95] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied the applicants were protected from unfair dismissal pursuant to s.382 of the Act and the applicants were dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the applicants or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[96] Reinstatement is the primary remedy and I can see no reason why it is inappropriate in this case.

[97] There was no issue raised concerning either Mr Chew or Ms Leong’s record or capacity as flight attendants. 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.

Conclusion

[98] I am satisfied that Mr Chew and Ms Leong were protected from unfair dismissal, that their dismissals were unfair and a remedy of reinstatement to their former positions is appropriate. They claim maintenance of continuity of employment and restitution of lost wages. I find that the former is appropriate, but they should suffer some penalty because of the breach of policy. I decline therefore to order restitution of lost wages between their dismissal and the date of this decision.

[99] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[100] An order [PR554157] will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

F. Austin of counsel with P. Anjos for the applicants.

J. Darrams of counsel with .A. Reoch for the Respondent.

Hearing details:

2014

Teleconference:

May 26.

Sydney:

June 2, 3.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR553361>