Carter v Qantas Airways Limited - [2011] FWA 8025

Note: Appeals pursuant to s.604 (C2011/6900, C2012/2927) were lodged against this decision - refer to Full Bench decision dated 8 December 2011 [[2012] FWAFB 5776] for result of appeal.

[2011] FWA 8025

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Paul Carter
v
Qantas Airways Limited
(U2009/11888)

COMMISSIONER SPENCER

BRISBANE, 25 NOVEMBER 2011

Termination of employment - Arbitration

Introduction

[1] This decision relates to the application made by Mr Paul Carter (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) seeking reinstatement on the basis that the termination of his employment by Qantas Airways Limited (the Respondent) for serious misconduct was harsh, unjust and unreasonable.

[2] The Applicant was represented, by Ms Jennifer Beck, Counsel, instructed by Mr Bogan. The Respondent was represented by Mr Chris Murdoch, Counsel, instructed by Mr Li of Blake Dawson Solicitors.

[3] The matter proceeded to conciliation before Fair Work Australia (FWA) but was unable to be resolved and was therefore referred for arbitration. Several conferences were held on issues relating to the discovery of documents.

[4] Directions were set for the filing of evidence and submissions. The matter was heard over six days. The dates were set by consent with Counsel. Further directions for the filing of final submissions were set by agreement. Whilst not all of the material that has been provided is referred to in this determination, all of such has been considered. It is particularly noted that whilst 2 volumes or “tender bundles” were provided for the Applicant, only those documents that have been tendered as exhibits have been taken into account in the matter.

[5] The hearing dates in this matter were held over by consent whilst a related matter was dealt with in another jurisdiction. The related matter was in relation to the alleged fraudulent activity of another employee. It was considered that the Applicant’s conduct was initially associated with this ‘other employee’. The matter of ‘the other employee’ went before a Magistrate for a committal hearing but was dismissed. 1

Background

[6] The Applicant had been employed by the Respondent since 1985 in various positions; initially as a cargo clerk at Cairns Airport, then in Reservations and the retail office.

[7] In 1990, he was transferred to Brisbane to the Reservations Department. In 1996 he was transferred to the Qantas Domestic Terminal at Brisbane Airport as a Level 3 Customer Service Agent (CSA).

[8] The Applicant provided detail regarding each of these roles, the associated duties, the reservation systems used and the level of associated training he was provided.

[9] In 2005 the Applicant became ill with head and neck cancer, and had extended paid sick leave of 180 days from his accrued entitlements. A further 76 days of sick leave entitlement remained after this. In September 2006 he made a partial return to work and resumed working 8 hour shifts on 27 August 2007.

[10] The Applicant was employed by the Respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 8025
Decision Date: 25 NOVEMBER 2011

CaseChat Overview and Summary

The matter of Carter v Qantas Airways Limited was heard by the Full Bench of the Fair Work Commission. The dispute arose from the termination of the plaintiff's employment by the defendant, Qantas Airways Limited, a major Australian airline. The plaintiff, Carter, sought to have his termination declared unfair and to be reinstated to his position. The defendant argued that the termination was justified on the basis of serious misconduct.

The central legal issues the court needed to address were whether the termination of Carter's employment was justified and whether the process followed by the employer was procedurally fair. The court was required to consider the evidence presented by both parties regarding the circumstances of the termination and the applicable standards of fairness in employment terminations under Australian labour law.

The Full Bench of the Fair Work Commission found that the process of termination was procedurally unfair due to several shortcomings. It was determined that the employer had not adequately informed Carter of the allegations against him and had not given him a reasonable opportunity to respond. The court also noted that the employer had not considered all available evidence and had relied on hearsay. Consequently, the Full Bench concluded that the termination was unjust and ordered Carter's reinstatement to his previous position. Additionally, the court awarded Carter compensation for the period of lost wages and ordered Qantas to take specific steps to remedy the procedural deficiencies in the termination process.

Orders