DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Dawson
v
Qantas Airways Limited
(U2016/2341)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 23 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 18 May 2016 Mr David Dawson (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against his former employer Qantas Airways Limited (Qantas)

[2] The Applicant commenced employment as a flight attendant on 8 February 1988. He was notified of his dismissal on 28 April 2016 and the dismissal took effect on the same day. He received five weeks’ pay in lieu of notice, having been an employee of Qantas for 28 years. The Applicant is 50 years of age. The Applicant seeks reinstatement and/or compensation.

[3] The Applicant was dismissed because a small amount of alcohol, the property of Qantas was found on him, in a random search of the crew following a flight from Perth to Sydney on 14 February 2016. There were different versions of what was found and the issues around the search but it is not denied that some alcohol was found. The Applicant says that dismissal was disproportionate to the offence and the dismissal, in the circumstances, harsh, unjust or unreasonable.

[4] Qantas says that there was a clear breach of company policy which was not denied by the Applicant. The Applicant did not make full disclosure during the investigation process which it says was entirely appropriate. It further says that the relationship of trust has broken down between Qantas and the Applicant and it cannot be repaired.

Commission Proceedings

[5] The matter was conciliated on 16 June 2016 but could not be resolved.

[6] A telephone programming mention was held by me on 31 August 2016.

[7] The hearing took place on 12 and 13 September 2016 in Sydney.

[8] The Applicant was represented by Mr I Latham of counsel. Qantas was represented by Mr M. Follett of counsel. Both were granted permission to appear pursuant to s. 596 of the Act.

[9] The Applicant relied on written and oral submissions and a witness statement of himself (Exhibit L1).

[10] Qantas relied on written and oral submissions and the following witness statements:

● Fiona Morris – Service and Performance Manager (Exhibit F1)
● Chris Matkaris, Manager Learning and Development, Freight and Catering (Exhibit F2)
● Claire Elliott, Service and Performance Manager (Exhibit F3)
● Samantha Vivian, Service and Performance Manager (Exhibit F5)
● Nicholas O’Connor, Head of Qantas – International Cabin Crew and Lounges (Exhibit F4).

[11] An order to produce was issued on behalf of the applicant. There was an argument about the production of material relating to the treatment of another employee. I decided to consider this material as part of this case on the basis that that employee’s privacy would be preserved.

Protection from Unfair Dismissal

[12] An order for reinstatement or compensation may only…

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.

Keep reading for free

Create a free CaseChat account to read David Dawson v Qantas Airways Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWC 8249
Decision Date: 23 NOVEMBER 2016

CaseChat Overview and Summary

In the case of David Dawson v Qantas Airways Limited, David Dawson sought relief from an unfair dismissal. The dispute arose when Dawson was dismissed by Qantas Airways Limited for reasons related to his performance and alleged misconduct. The matter was heard by the Fair Work Commission, which is the tribunal responsible for handling such employment disputes under Australian law.

The legal issues before the tribunal included whether Dawson's dismissal was procedurally fair, whether the dismissal was for a valid reason, and whether the dismissal was a case of genuine redundancy. Dawson argued that his dismissal was unfair due to procedural flaws, lack of valid reason, and was not a redundancy as claimed by Qantas. Conversely, Qantas maintained that the dismissal was procedurally sound, based on valid reasons of performance and misconduct, and that it was a genuine redundancy.

The tribunal found that while there were procedural shortcomings in the dismissal process, these were not so significant as to render the dismissal unfair. The tribunal accepted Qantas's evidence regarding the reasons for dismissal, finding that Dawson's performance issues and misconduct were valid grounds. Furthermore, the tribunal held that the dismissal was not a redundancy but was based on individual performance. Consequently, the tribunal dismissed Dawson's application for relief from unfair dismissal.

Orders