David Tregear v Qantas Airways Limited
[2010] FWA 8985
•24 NOVEMBER 2010
[2010] FWA 8985 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Tregear
v
Qantas Airways Limited
(U2010/9963)
COMMISSIONER THATCHER | SYDNEY, 24 NOVEMBER 2010 |
Termination of employment - arbitration - misconduct - effects of sleep deprivation
[1] On 21 June 2010 David Tregear made application to Fair Work Australia (FWA) for an unfair dismissal remedy on the basis that the termination of his employment as an International Flight Attendant, Qantas Airways Limited (Qantas) for misconduct was harsh, unjust or unreasonable. He seeks reinstatement and will accept some other form of disciplinary action. Mr Tregear is represented in the proceedings by the Flight Attendants’ Association of Australia - International Division.
[2] After taking into account the wishes of the parties I considered it appropriate to proceed by way of hearing. Before proceeding to hear and determine the application, I was satisfied of the requirements of s.396 (Initial matters to be considered before merits) of the Fair Work Act 2009 (the Act).
[3] Mr Tregear’s termination (with payment in lieu of notice) was for misconduct on 5 March 2010, namely his taking of property that did not belong to him from the foyer of a Qantas-nominated first class hotel 1 in Orange County, California USA where he was staying at Qantas expense whilst ‘on slip’ (rest time between flight patterns), without the permission of the owner and without reasonable explanation. The property was a pair of mid-length ladies pink fur-lined suede mud boots (similar to Ugg Boots). For brevity, I will refer to his taking of the boots as ‘the incident’.
[4] The letter of termination dated 7 June 2010 stated that his removal of the boots was ‘very serious’ and included:
“This conduct was in breach of the Qantas Standards of Conduct Policy and your obligations as an employee of Qantas.
Your actions in this incident are inconsistent with your role as a flight attendant with Qantas. They raise serious issues particularly with regard to your honesty and integrity. Your actions have damaged the reputation of Qantas and caused it serious public embarrassment.”
[5] The Qantas Standards of Conduct Policy sets out a list of unacceptable behaviours. The list includes:
- 15.10 theft or attempted theft;
- 15.16 directly or indirectly engaging in any activity which could by association cause the Qantas Group or any Qantas Group Company public embarrassment or other damage or which brings, or is likely to bring, the Company or the Qantas Group into disrepute; and
- 15.26 failure to comply with any Company or applicable Qantas Group policy.
[6] The criteria for considering whether a dismissal is harsh, unjust or unreasonable is contained in s.387 of the Act which states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[7] Section 381(2) of the Act provides that an objective of Part 3-2 (Unfair Dismissal) of the Act is that the procedures and remedies referred to in paragraphs 381(1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned. 2
[8] The application is not about whether or not the incident occurred or the adequacy of the investigation process. Mr Tregear accepts that there was a valid reason for his dismissal pursuant to paragraph 387(a). 3 In respect of the matters referred to in paragraphs 387(b) to (d), he does not take issue with the relevant process followed by Qantas.4 Paragraph 387(e) is not relevant to the application and Qantas does not seek to rely on paragraphs 387(f) or (g) as a justification for any defects in the procedures followed in effecting the termination.
[9] Rather, Mr Tregear relies upon paragraph 387(h) as the relevant consideration. His application turns on the degree of seriousness of the misconduct and whether, when mitigating factors are given appropriate weight, the sanction of termination of his employment was disproportionate to the misconduct. Further, he submits that the termination of his employment was not a ‘fair go all round’.
FACTS
[10] Evidence was given by:
On behalf of the applicant
• Mr Tregear
• Dr Ashley W Wong Hoy, B Sc Hons (Psych), psychologist. Dr Wong Hoy achieves his ‘doctor’ status because of his Ph D relevant to the neurological system (toxinology and pharmacology), rather than psychology. Dr Wong Hoy did not seek to present as an expert witness. He operates a private practice near Mr Tregear’s home and his areas of expertise are relationships counselling, clinical disorders, forensic reporting, management of addictions, vocational guidance and personal existential development.
On behalf of the respondent
• Mr David Shuker, Flight Attendant Manager, who is responsible for cabin crew members based in Queensland
[11] Mr Tregear spoke candidly about his misconduct. It is clear that upon being confronted about the incident he cooperated fully in the investigation process that resulted in the termination of his employment. He presents as a sensitive person with above average intelligence.
[12] I found Dr Wong Hoy and Mr Shuker to be reliable witnesses.
[13] Mr Tregear is an experienced flight attendant who frequently worked on the 4 day flight pattern between Brisbane and Los Angeles (he estimated 20 times a year), which after the finish of work on the outbound leg involved a period in the USA ‘on slip’ of approximately 39 hours 20 minutes before work commenced on the flight back to Australia.
[14] There was nothing out of the ordinary about Mr Tregear’s roster prior to the time of the incident. After returning from a period of 2 week’s leave in early February he had participated in a 2 day training course. After the course, he completed a 3 day working pattern to Singapore followed by 3 days off, and he then completed a 4 day pattern to Los Angeles followed by 3 days off.
[15] The incident occurred during his next working pattern, which was another flight to Los Angeles. Mr Tregear’s flight had arrived in Los Angeles at around 7.00am on 4 March 2010 and Mr Tregear had total slip time of 39 hours 20 minutes before his flight departed from Los Angeles on 5 March 2010 at 11.50pm.
[16] On 5 March 2010, after riding a bicycle for about 40 minutes to the shops, Mr Tregear ate, did some shopping and caught the shuttle bus back to his hotel. On arriving around 5.30pm, Mr Tregear entered the hotel lobby and proceeded past the reception counter to the upper foyer level lifts. Near the lifts were couches and beside one was a table underneath which were the boots. Without making any inquiries as to their owner, Mr Tregear took them to his room and brought them back to Australia with the intention of giving them to his daughter.
[17] Mr Tregear maintains that at the time he believed the unattended boots were discarded or abandoned and ‘were no longer the property of anyone’. His decision to take the boots ‘arose from poor judgement on my part caused by sleep deprivation’. 5
[18] Unbeknown to Mr Tregear, another hotel guest subsequently reported to the hotel that her boots were missing from under the table, where she had left them when she had her shoes shined in the shoe-shine chair, which was near the table and in close proximity to the lifts. The hotel checked the CCTV footage which showed Mr Tregear picking up the boots from under the table and taking them into the elevator. At the time of the incident the shoe shine chair was unattended.
[19] On 9 March 2010 the general manager of the hotel advised Qantas management that it appeared that Mr Tregear had taken another guest’s shoes and not returned them. The next day the general manager forwarded the hotel’s security report and photographs to Qantas with the statement: ‘I previewed the tapes and it is clear that the items were being concealed as the guest entered the elevators.’ 6
[20] On 19 March 2010 the Manager, Cabin Crew Performance referred the matter to Mr Shuker. By that time Mr Tregear had commenced annual leave on 8 March 2010. On his return on 30 March 2010, he was telephoned by Mr Shuker who advised him of the general manager’s report and the investigation that Mr Shuker would perform. Mr Tregear’s initial reaction was: ‘Oh no, oh no, oh no’; ‘Am I in trouble?’; ‘I’m sorry’; and ‘Am I going to lose my job over this?’
[21] It is not necessary to outline everything that occurred during the two stages of the investigation process, which was undertaken in accordance with the provisions of clause 11 of the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Workplace Agreement 2007 (EBA8). The first stage was to determine whether misconduct had occurred and the second stage was to determine the appropriate level of disciplinary action.
[22] During the first stage Mr Tregear admitted to taking the boots in his written response dated 6 April 2010 and at a meeting on 8 April 2010. His written response included the following:
“I regretfully accept this allegation. I have never done anything like this before and would never do this again. My actions were totally out of character for me. I have been a proud flight attendant with Qantas for some 20 years and have never been involved in any behaviour remotely similar to that which occurred on March 5, 2010. On reflection, I feel this was an extreme error of judgment arising from a number of factors including sleep deprivation and family stresses. Prior to the mentioned date I had independently sought medical advice and treatment from my general practitioner, Dr Strachan for this on February 22, 2010. Please find enclosed* a report from Dr Strachan dated April 4, 2010.
As you might notice from my enclosed*statement at paragraphs 3 and 4, I had for some months prior to the incident been suffering from acute sleep deprivation. I had consulted my general practitioner who suggested a strategy including medication and advised further professional review.
On the day in question I was particularly sleep deprived having only managed to obtain three hours sleep the night before. It is widely recognized that sleep deprivation can affect someone’s judgment.
Further, ... I have a number of stresses in my family circumstance including the fact that my wife is subject to debilitating chronic upper back pain as a result of a herniated disc which has impaired her spine.” 7
[23] His attached statement (which was written before he had sighted the CCTV footage) included the following:
“3. I arrived to the hotel on March 4 at approximately 9am from a direct flight from Brisbane. I recall being fatigued as most crew experience at the end of a 14 hr tour of duty, as I had problems getting to sleep in crew rest during time off on the aircraft. When getting to my room, I remember struggling to sleep immediately, then eventually sleeping for no more than a few hours. May I mention that this had been happening to me a lot in the past months, both at work and at home, for reasons I cannot explain. This has led me to seek medical help (FEB 22ND). I have also undertaken research help via literature and the internet which has indeed been helpful. I sincerely feel that my logic and lack of sound judgment has been impaired by limited sleep over a long period. Since being on annual leave and studying relaxation techniques my sleep patterns have improved somewhat. I feel now that I am free of this condition which so severely affected my judgement in such a devastating manner.
4. To return to my movements within the relevant LAX slip, I recall the night of the first day attempting to tire myself out by doing exercises in my room, but not getting more than another three hours sleep (again). On the second day of my slip the March 5, I used one of the company rec club bicycles to exercise, to gain some needed fresh air and exercise, to incite some hopeful rest before working home overnight that evening. By this point I had endured only approximately 6 hours of much needed sleep in the approximate 46 hour period from Brisbane sign on, just prior to the alleged occurrence. This much needed rest I recall did not eventuate, despite my efforts, as it hadn’t on many occasions of the prior months.
5. As the allegations state, a man in ‘civilian’ clothing with shopping bags was seen in the foyer early evening. While waiting at the lifts, I noticed the pair of shoes in question under a table. They appeared to be worn and I assumed they had been discarded by their owner and I formed the view that the owner did not want them, they had been discarded. I picked up the shoes. I entered the lift and took them back to my room. Subsequently, I brought them home. They are still in my possession and I intend to make arrangement to return them to their rightful owner.
6. My poor judgement may have been affected by the location of the aforementioned shoes. I looked around to see if the owner may have been nearby so I could check with the owner if they had indeed been discarded however no such person was nearby. No one was nearby to my best recollection of events.
7. I fully realise now this train of thought was completely illogical. I reiterate this action was way out of character, the consequence of misguided thought processes, rather than deceitful integrity or intent.
8. ... I believed the shoes had in fact been discarded by their former owner and were in fact the property of no-one. Consequently, at the time I held the genuine belief that I had not taken someone’s property without their permission. In hindsight I can see that this line of reasoning was flawed and is an example of the error of judgment caused by sleep deprivation.” 8
[24] The first stage resulted in findings by Qantas that the allegation was substantiated, that Mr Tregear had breached the Qantas Standards of Conduct Policy and that his behaviour amounted to ‘serious misconduct.’ within the definition contained in that policy. Under cross-examination Mr Shuker explained that he considered Mr Tregear’s actions to have amounted to theft or attempted theft within that definition. 9 In making this finding Qantas never considered whether the misconduct was criminal conduct.
[25] In the second stage, Mr Tregear provided a written response dated 22 April 2010 on why his employment should not be terminated and attended a meeting on 27 April 2010. His written response included a report from Dr Wong Hoy dated 16 April 2010 10, on whom Mr Tregear had attended on 2 March 2010 (3 days before leaving for Los Angeles) and 13 April 2010.
[26] During the consultation on 13 April 2010, Mr Tregear had given Dr Wong Hoy a sketchy account 11 of the incident. As stated in Dr Wong Hoy’s report of 16 April 2010:
“David has requested that I write briefly to advise concerned parties of his current psychological status and provide relevant evidence that supports his case at review.”
[27] I will refer to that first report in more detail below. It is sufficient at this stage to state that his initial diagnosis on 2 March 2010 included a clinical disorder diagnosis of:
‘Adjustment Disorder (acute) with mixed anxiety and depressed mood.
Stressors: emotional isolation; spousal conflict’
[28] Also during the second stage, at Qantas’ request, on 7 May 2010 Mr Tregear was independently examined by Dr Edwin Butler, an Occupational Physician, who produced a report dated 8 May 2010. 12 I will also refer to that report in more detail later.
[29] On 7 June 2010 Qantas advised Mr Tregear of its decision to terminate his employment.
[30] Subsequently, at Mr Tregear’s request, on 9 July 2010 in a second report 13 Dr Wong Hoy reworked his first report because:
“David has requested that I write briefly to clarify concerned parties of my diagnosis and relate his then psychological condition and circumstances to his behaviour and provide relevant evidence that supports his case at review.” (emphasis added)
[31] Later, Dr Wong Hoy further reworked his first and second reports and produced a third report dated 9 August 2010 14 because:
“David has requested that I clarify my second report to include detail that was not admitted in his first report dated 16 April 2010.”
SUBMISSIONS
[32] In summary, the grounds pressed by the Association on behalf of Mr Tregear at the hearing were:
(a) Mr Tregear’s misconduct in taking something that had apparently been discarded in a hotel lobby was not so serious as to warrant dismissal. It was hardly a hanging offence and it was not as though he had stolen property of the hotel or created some sort of incident in the hotel (such as fighting in the foyer) or helped himself to someone’s property that had been placed in a secure area (such as a locker). Qantas’ delay in waiting for Mr Tregear to return from annual leave before investigating the incident underscores Qantas’ overreaction. The company should have acted quickly to square-off with the hotel and guest by recovering the boots and sending them back on the next flight;
(b) When confronted with the allegation, Mr Tregear immediately fessed up to taking the boots. At all times Mr Tregear had been open and honest about the incident;
(c) Mr Tregear had expressed his regret to Qantas and apologised for his lapse in judgment;
(d) There was no evidence that Qantas’ reputation with the hotel had been damaged by Mr Tregear’s conduct or evidence of the slightest rupture in the relationship. It was a wrinkle in the scheme of things - a one-off, relatively minor incident;
(e) On finding that theft was involved Qantas did not consider lesser forms of disciplinary action which more appropriately equated with the gravity of the misconduct;
(f) The dismissal was harsh, given it ended a career which exceeded 20 years of service and his prospects of securing local alternative employment with similar remuneration are very low. Qantas did not give sufficient weight to the mitigating factors in arriving at ‘an extraordinarily heartless decision’ 15 in response to one stupid and thoughtless act;
(g) Qantas professes to promote a just culture and the equitable treatment of employees. However Qantas failed to base its disciplinary action on the action it had taken against other employees who had engaged in similar misconduct. Also, Qantas had failed to take appropriate account of Mr Tregear’s mitigating circumstances and the impact of its decision on Mr Tregear. The words in the Qantas policy that refer to personal circumstances become hot air when no slack is cut;
(h) The incident is a far cry from the kind of behaviour usually associated with severe disciplinary consequences. The appropriate penalty should have been a final warning.
[33] In summary, Qantas submitted:
(a) The Qantas’ standards of conduct make it clear that theft is a serious offence. This was acknowledged by Mr Tregear when he first learned that the incident had been reported to Qantas. It was reasonable for Qantas to wait until Mr Tregear returned from annual leave before investigating the matter;
(b) One of the reasons the misconduct was so serious is that the incident occurred during slip time at the hotel. His conduct reflected on Qantas and caused it reputational damage, although that is not easily quantified. Qantas employees on slip are still seen as the face of the company and, in this case, the hotel identified him as a Qantas employee. The hotel contacted the company directly and not Mr Tregear because it somehow felt that Qantas was responsible and needed to follow up the incident;
(c) Dr Wong Hoy’s diagnosis on 2 March 2010 did not include sleep deprivation as that was not the main reason Mr Tregear went to see Dr Wong Hoy. This was evidenced by Mr Tregear’s letter of 6 April 2010, which mentioned sleep deprivation but did not mention he had seen Dr Wong Hoy: also, by Mr Tregear not mentioning Dr Wong Hoy when he saw Mr Shuker on 8 April 2010. Dr Wong Hoy’s second report dated 13 April 2010 occurred approximately 6 weeks after the incident and one of the purposes of consultation was for Mr Tregear to request a report that would assist him with the disciplinary process. Mr Wong Hoy’s report was based on what Mr Tregear had told him about the incident and sleep deprivation was a symptom he reported to Dr Wong Hoy. Sleep deprivation became a convenient basis to support his conduct and it gained significance to assist his response in the disciplinary process. Sleep deprivation had not caused Mr Tregear to be absent from work. At its highest, Dr Wong Hoy’s evidence is that fatigue has an impact on a person’s ability to make rational decisions. He cannot say what went through Mr Tregear’s mind at the time.
(d) Sleep deprivation was not sufficient to excuse Mr Tregear’s misconduct. Around the time of the incident Mr Tregear had been engaging in a number of activities (including shopping and purchasing decisions) that required his exercise of judgement that were indistinguishable from judgements as to whether the boots belonged to anyone and should be taken or not. The CCTV footage showed that he was looking to conceal his actions when he took the boots which is suggestive that he knew the boots did not belong to him and he did not want the people who were around to see he had them. When he came to his senses and his normal judgement resumed he failed to act with contrition and right his wrongs by contacting the hotel or sending the shoes back. That is not consistent with someone whose judgement was clouded by sleep deprivation. All that has been established is that Mr Tregear was tired and he made an error of judgement;
(e) Mr Tregear did not voluntarily ‘fess up’ to taking the boots, even after he recovered from the effects of sleep deprivation. It was not until he was confronted with the allegation that he admitted to taking the boots. His actions were motivated by the fact he was subject to disciplinary action;
(f) International flight attendants are unsupervised on slip and Qantas trusts its employees to behave consistently with its values. Management of fatigue is a core part of a flight attendant’s role. If Mr Tregear remained employed it was likely that on future trips he would be tired and would have other errors of judgement. In those circumstances dismissal was a more appropriate sanction than a final warning.
[34] The parties provided FWA with unfair dismissal decisions in which the dismissals were either found, or not found, to be harsh, unjust or unreasonable. I have found each of the decisions to be distinguishable from the current application.
CONSIDERATION
Seriousness of misconduct
[35] Mr Tregear took property that did not belong to him, namely a pair of ladies mud boots.
[36] They were not taken from a public place: rather, from well inside the foyer of a first class hotel in the vicinity of a shoe shine chair.
[37] Everyone who has left something behind in a hotel knows that lost property can be recovered from the hotel if it is found by staff or otherwise handed in. This was a modern and up-market hotel which (it can be inferred) has high standards.
[38] Although the boots were unattended, a manned reception counter was in close proximity.
[39] Mr Tregear made no attempt to inquire as to their owner or to report or hand them to hotel staff - either at the time of the incident or before leaving the hotel.
[40] The CCTV footage showed Mr Tregear enter the lobby with a parcel in each hand. As he approached the lifts he transferred the larger parcel from his left hand to under his right arm before pushing the lift button with his left hand. When the lift arrived he did not enter. Rather, he walked around the couch to the table and picked up the boots. With his left hand he carried the boots back to the lifts, pushed the lift button and held them whilst he waited for a further lift. After pushing the button he made a slight adjustment that maintained the larger parcel under his right arm. After taking the boots, he held them in position where the larger parcel would have obstructed the line of sight between the boots and the reception desk and the entrances to the coffee shop and the hotel, which were to his right. The effect of his holding the items in this manner was for the boots to be concealed behind the larger parcel whilst he carried the boots to the lifts and waited for the doors to open.
[41] Whilst Mr Tregear’s sworn evidence is that at the time it was not his intention to conceal the boots I must consider the weight I give to that evidence in the light of his submission that he was suffering the effects of sleep deprivation to an extent that it affected his capacity to make appropriate reasoning and judgement and caused him to do something significantly out of character.
[42] Whilst Mr Tregear was not off duty (as would apply on a rostered day off in a home port) he was ‘on slip’ and as the Full Bench in Applicant v Respondent 16 observed:
“...it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees. While the employer in this case was responsible for providing and paying for the overseas accommodation, flight attendants have time off in foreign destinations which is clearly a break from their employment obligations. What they do in their own time during these breaks, ordinarily, is their own business. However, there could be conduct which the employer would have a legitimate concern to act upon even though it occurred during the break in the employment obligations. ...” 17
[43] More recently, as observed by the Full Bench in Anthony Farquharson v Qantas Airways Limited: 18
“... the peculiar circumstances attending slip time in a foreign port ... give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.” 19
[44] I accept that it is important that Qantas foster and maintain a positive relationship with each of the nominated hotels which accommodate cabin crews during slip time. Given that on a weekly basis approximately 585 Qantas cabin crew stay at the hotel in which the incident occurred, it is important that the hotel has confidence in Qantas and that its cabin crew will conduct themselves appropriately. Also, I accept that cabin crew know they are expected to act responsibly and in a manner that does not adversely affect that relationship.
[45] Whilst Qantas called no evidence to prove that the incident had damaged its reputation and interests with the hotel, some degree of damage can be implied. In its report, the hotel identified the subject who took the boots as ‘a Qantas guest named David Tregear’. By reporting the incident directly to Qantas the hotel was holding the company at least partly responsible for the actions of its employee whilst a guest in its facility.
[46] Further, Qantas was entitled to consider potential future damage, and not merely actual damage, to its reputation and interests. Qantas has a legitimate interest in ensuring that no such incidents occur and therefore has a legitimate interest in taking action in relation to any such incident.
[47] I was left in no doubt that the incident caused a degree of embarrassment to Qantas.
[48] The conduct was incompatible with Mr Tregear’s duty as an employee. Cabin crew are required to observe the requirements of the Cabin Crew Operations Manual which includes the unacceptable behaviours referred to in paragraph 5 above. Before each flight international cabin crew members sign an acknowledgement they will comply with, amongst other things, the requirements of the manual. Qantas has a right to create the policy on such unacceptable behaviours and to enforce it vigorously. A failure to comply with such requirements can involve, and in this case did involve a breach of a lawful and reasonable policy with which the employee had been directed to comply, amounting to a breach of the contract of employment and a valid reason for dismissal.
[49] Whilst the Association emphasised the decision in Woodward-Brown v Qantas Airways Limited 20 in which it was found that the dismissal was harsh, unjust or unreasonable, as I have already indicated, that case is distinguishable from the current matter. Amongst other things, the flight attendant’s conduct did not involve Qantas’ relationship with a third party. Also, the incident involved the employee’s taking of chocolates and biscuits from the plane in circumstances where (a) it was Qantas’ intention that they be discarded after being placed in garbage bags and (b) the attendant could have eaten the items on board the plane without incident. Further, the employee had 32 years service with Qantas.
[50] One of Mr Tregear’s supporters has described his action as a ‘minor misdemeanour.’ 21 That may be appropriate in a criminal setting and in circumstances where unattended boots were taken from a public place. However it is not an apt characterisation of the incident in the context of unfair dismissal proceedings and the actions of an employer disciplining an employee for work-related misconduct in breach of a lawful and reasonable policy.
[51] In his initial statement Mr Tregear appeared to accept the seriousness of his misconduct when he stated: ‘I am aware of the severity and consequences of this complete lack of judgment’. Further he appeared to accept the ramifications for Qantas when in such statement he stated: ‘I ... regret any negative ramifications placed upon the Qantas brand in its relationship with the ... hotel which I would like the chance to personally heal.’
Sleep deprivation
[52] Generally speaking, Qantas employees are responsible for ‘their own behaviour and actions at all times’. 22
[53] On 5 March 2010 Mr Tregear had been experiencing sleep difficulties, including difficulty falling asleep and staying asleep. As a consequence, at the time of the incident, Mr Tregear was experiencing tiredness or fatigue. He was attempting to manage this through physical exercise.
[54] During the period of time when Mr Tregear was experiencing sleep difficulties and anxiety, he had not noticed any specific difficulties with the performance of his work, 23 apart from his advice that one of the reasons he had failed ‘doors’ in a training program on 16 February 2010 was that he had not slept well the night before.24
[55] On 22 February 2010 Mr Tregear had consulted his general practitioner. In a letter dated 4 April 2010 the doctor stated that the consultation on 22 February 2010 was for ‘increasing stress, fatigue and probable sleep deprivation.’ 25 (emphasis added)
[56] The general practitioner had prescribed medication for anxiety. 26 It was not suggested that Mr Tregear’s actions were the consequence of his failing to take prescribed medication.
[57] On 2 March 2010 Mr Tregear first presented to Dr Wong Hoy. Dr Wong Hoy’s mental status examination of Mr Tregear ‘revealed some state anxiety (related to marital conflict) but no other clinical indicators were salient’. His diagnosis was ‘Adjustment Disorder (acute) with mixed anxiety and depressed mood.’ 27 This was the result of recent stressors in his personal life.28
[58] FWA was provided with the first, second and third reports from Dr Wong Hoy. From my reading of the reports, the differences between the second and third versions cannot be characterised only as ‘clarification’ 29 and it is little wonder that Dr Wong Hoy was ‘a bit puzzled’ why a further report was requested.30
[59] The third report should be read in the context that it had been requested in relation to Mr Tregear’s unfair dismissal application. In revising the first and second reports, Dr Wong Hoy left out matters relating to his spousal issues and deliberately gave lesser relative prominence to the conflict in Mr Tregear’s relationship. 31 Dr Wong Hoy considers that both his second and third reports are current.32
[60] Dr Wong Hoy’s third report includes:
“In my opinion, David Tregear’s lack of sleep and tiredness has compromised his energy to complete his logical (rational) train of thought. Whilst it is clear that this condition does not lead one to steal, one’s ability to think about the consequences and perceptions of others may be compromised. I maintain that whilst David’s actions to take the boots appears damning, he failed to complete rational thinking by establishing their status to be in fact ‘discarded’, and also to determine if there was a hotel policy on ‘handling’ discarded items.
I sincerely believe David’s account of events and that I deem he was too tied to complete rational thinking by establishing that the items removed were in fact ‘discarded’. Further, in my professional opinion, it is expected that those persons who are sleep-deprived would have difficulty in thinking through an issue to follow a infrequently encountered situation in a hotel according to organizational policy. Also, it is expected that if one is very tired, one can still perform daily tasks through the repetitive nature of the ‘learned task’. Such things include riding a bike, or buying the groceries (although one may forget to buy an item if too tired). This is called automaticity of a learned procedure or procedural memory. Another example may include pushing on a car brake pedal to stop at a red traffic light when driving (without clear conscious decision to do so - one simply pushes the pedal without recalling how).
However, events where some moral and procedural judgement is required (that would be regarded as unfamiliar), may present a cognitive challenge to tired individuals. In my opinion, David’s actions are not explained by irrational or anti-social behaviour. Moreover, his behaviour is explained by not thinking things through, and instead, he simply was too tired to care. Indeed, his actions were careless.”
[61] From my reading of Dr Wong Hoy’s three reports and hearing his evidence, it seems to me that his evidence can be summarised as:
(a) Sleep deprivation was only one of the symptoms for which Mr Tregear presented to Dr Wong Hoy. The main stressors in his life were spousal conflict; 33
(b) At his consultation on 2 March 2010, the treatment Mr Tregear received was about improving his relationship with his spouse; 34
(c) By the time Mr Tregear next consulted with Dr Wong Hoy on 13 April 2010, the only psychological issue (anxiety) that was salient for him emanated from the work-related incident on 5 March 2010;
(d) Mr Tregear’s action to take the boots is not explained by irrational thinking;
(e) Persons who are sleep deprived have difficulty in thinking through an issue in respect of an infrequently encountered issue. Events which require some moral and procedural judgement may present tired individuals with a cognitive challenge;
(f) Mr Tregear’s tiredness could explain why he did not complete rational thinking to establish that the boots were not indeed discarded, for example by seeing them in a trash bin or being notified that the items were abandoned;
(g) Dr Wong Hoy’s opinion is that Mr Tregear’s conduct is explained by his not thinking things through because he was too tired to care.
[62] It is common knowledge that some persons are adversely affected by tiredness more than others. Some individuals get by on little sleep, others sleep a lot. Getting by on little sleep means more than acting on procedural memory. Dr Wong Hoy undertook no tests on Mr Tregear to assess how he was affected by the sleep pattern he had followed immediately prior to the incident. In the absence of such evidence, I find it difficult to accept Dr Wong Hoy’s opinion that Mr Tregear’s tiredness was the reason for his absolute failure to establish that the boots were discarded or abandoned or for him to think he could simply take what was not his.
[63] Also, I have considered Dr Wong Hoy’s opinion in the light of Mr Tregear’s statements that:
‘I looked around to see if the owner may have been nearby so I could check with the owner if they had indeed been discarded however no such person was nearby;’ 35 and
‘I sincerely believed at the time that the shoes were abandoned and were no longer the property of anyone.’ 36
[64] I find it difficult to reconcile Mr Tregear’s looking around to see if the owner was nearby so he could check if they had been indeed discarded, with Dr Wong Hoy’s opinion that he was too tired to complete rational thinking by establishing that the items removed were in fact ‘discarded’.
[65] Also, I find it difficult to reconcile Mr Tregear’s detailed recollection of what occurred during an approximately 30 second incident that was not brought to his attention until over 3 weeks after the event, with his purportedly suffering, at the time of the incident, the effects of sleep deprivation to the extent that he was too tired to care about thinking things through.
[66] Dr Butler’s report dated 8 May 2010 concluded:
“Answers to Specific Questions:
1. Are Tregear’s actions of removing a pair of lady’s shoes from the foyer of a hotel on 05/03/2010 consistent with the diagnosis from Mr Wong Hoy and the report from Dr Strachan?
Dr Strachan and Dr Wong Hoy have diagnosed Mr Tregear as having an adjustment disorder with anxiety and depressed mood. Whilst this condition can result in difficulties concentrating, restlessness and being tense, I do not think that it would cause him to perform illegal or dangerous acts.
Mr Tregear describes a several month history of poor sleep. As stated in Dr Wong Hoy’s report, fatigue and sleep deprivation can result in reduced concentration and work performance and can affect judgement.
2. Please provide your medical opinion on how the symptoms described in the attached medical reports would impact on Tregear’s action in taking items that did not belong to him.
Mr Tregear describes a several month history of poor sleep. As stated in Dr Wong Hoy’s report, fatigue and sleep deprivation can result in reduced concentration and work performance and can impair judgement. It is possible that his poor sleep and fatigue had some effect on his judgement on that day.” 37
[67] Taking property that does not belong to you involves a moral judgement and such decisions are steeped in social, emotional, religious and moral values. If the property is not apparently attended, it may present the individual with a dilemma that requires moral reasoning and judgement by moral cognition. How the brain goes about solving such dilemmas and what factors, whether internal or external to the individual, contribute to such judgements include the neurobiological underpinnings of moral judgement. For these types of questions, the field of affective/social neuroscience is beginning to provide answers. 38
[68] In informing myself on the subject, I came across a research paper ‘The Effects of 53 Hours of Sleep Deprivation on Moral Judgment’ 39 that reported the results of a study where 26 healthy adults in the USA made judgements about the appropriateness of various courses of action in response to three types of moral dilemmas, firstly, when rested (baseline) and, secondly, following 53 hours of continuous wakefulness. The paper had been peer reviewed before it was published. In summary, the results were that:
(a) Speed of response: Compared to baseline, sleep deprivation resulted in significantly longer response latencies (suggesting greater difficulty deciding upon a course of action) only for moral personal (i.e. emotionally evocative dilemmas), whereas response times to moral impersonal and non-moral dilemmas did not change significantly with sleep loss;
(b) Judgement of appropriateness: There was a slight increase in the willingness to endorse courses of action as ‘appropriate’ following sleep deprivation. However an analysis of simple effects revealed that for individuals of average emotional intelligence, sleep deprivation was associated with a significant number of times a moral personal course of action was judged appropriate, whereas for individuals with high emotional intelligence, sleep loss had no effect on the number of moral personal scenarios judged as appropriate:
(c) Conclusion: This was that:
“These findings suggest that sleep deprivation impairs the ability to integrate emotion and cognition to guide moral judgements, although susceptibility to the effects of sleep loss on this ability is moderated by the level of emotional intelligence.”
[69] Based on the evidence before me, I accept Dr Butler’s opinion that it is possible that Mr Tregear’s poor sleep and fatigue had some effect on his judgment at the time of the incident. However that medical opinion falls short of evidence that is sufficient to find that such tiredness or fatigue caused Mr Tregear not to be responsible for his actions in taking the boots. That is, whilst tiredness and fatigue may have been a contributing factor to his conduct in taking the boots, the medical evidence is insufficient for me to accept that it was the only or major factor that caused his error of judgement.
Contrition for actions
[70] After hearing Mr Tregear’s evidence, I am left in no doubt that he is genuinely remorseful for the incident which had resulted in the termination of his employment.
[71] However, this is not a case of an employee, having acted improperly in the moment, upon realising his or her error of judgement, acting without delay to report the misconduct to his or her employer or to rectify things.
[72] Under cross-examination, Mr Tregear’s evidence was that his daughter did not want the boots and they were put in a cupboard. About 10 days later (whilst he was on leave) when his thought processes were normal, he thought: ‘that was quite an odd thing to have done.’ Although he realised it was a careless act and was concerned that: ‘maybe I had done something that wasn’t overtly correct’, he did not act promptly to right his wrong. The cross-examination was as follows:
“So at some point then you realise that in hindsight you’d taken something that didn’t belong to you. What did you do - you say 10 days now after - what did you do when you realised?---I didn’t think about it that deeply. I just looked at it as if, ‘That was an odd thing to do’, and then I just closed the door and thought, ‘Well, they’re not going to be of any use to us or to me. What am I going to do?’ but I didn’t think very much thought at all until - I was still under the recollection that they were abandoned shoes and then the only time I really realised that they weren’t abandoned was when I was being informed by David Shuker on the 31st by telephone.
Your evidence to the tribunal is that you didn’t realise that you made a grave - as you’ve since described it - grave error of judgment until the company put allegations to you. Is that right?---I realised it was an odd act that I did when I looked at the shoes later on when my mind had cleared. I realised that it was a careless act and I was concerned.
That’s - - -?---Well, that’s it. I was somewhat concerned, you know, that maybe there was a slight error of judgment there due to my sleep deprivation.
So you were concerned that you’d made an error of judgment?---I wasn’t overtly concerned. I just looked at them and they appeared to be - that was an odd thing for me to have done, but I didn’t take it any further. I still envisaged that they were abandoned items but being in the crew hotel, it did recollect to me that maybe that was an odd thing to have done.
Is your evidence to the tribunal that you still maintained at that stage that they were abandoned items?---I still had within my, yes, mind that they were abandoned items but I was concerned that maybe I had done something that wasn’t overtly correct.
You didn’t try to contact the hotel to return the shoes at that point?--- No, I didn’t.
You didn't go to your manager and say, "Look - - -"?---No, I didn't.
---something has happened. I realise now I was sleep deprived"?---In retrospect, yes, I can hear what you're saying but my mind was trying to not really think about work too much. I just wanted to get myself back on track to go on my first trip on 8 April, to get myself as healthy as possible. So I wasn't thinking about it. I didn't really want to think about work that much. So when I saw them, I thought about it but I didn't think too deeply about it as I thought, ‘You know, what are we going to do? Maybe I should take them back or should we give them to the Salvos.’ I wasn't clear and I hadn't made an actual decision on that point.” 40
[73] Thus it seems clear that Mr Tregear’s contrition commenced when he was advised that his misconduct had been reported to Qantas and he realised that his action could place his employment in jeopardy.
[74] It was not until 12 April 2010 that Mr Tregear wrote to the hotel apologising for his behaviour and returning the boots. It is not clear why Mr Tregear delayed doing so.
Record of service
[75] Mr Tregear commenced employment with Qantas on 2 November 1989 and at the time of the termination had approximately 20 years as a cabin crew member. Mr Tregear thinks that his relative seniority placed him in the bottom third of international flight attendants in Brisbane (because Qantas has a history of employees with very long periods of service).
[76] The evidence was that around 2001 or 2003 Mr Tregear had received formal warnings about his attendance but had not been involved in any other formal investigations.
[77] Otherwise, Mr Tregear’s employment history could not be regarded as unblemished. The letter of termination stated: ‘Your employment records indicate frequent and regular discussion with relation to your obligations as an employee and also indicate your failure to have any regard to your obligations.’ Mr Shuker’s evidence was he had two informal discussions with Mr Tregear in September 2009 and January 2009 about his attendance at work and there had been an amount of correspondence about compliance with submission of various paperwork and some other discussions. By and large Mr Shuker had paid more attention to Mr Tregear than other employees over issues such as attendance. 41
[78] Mr Tregear acknowledged that he had taken significant amounts of sick leave. However the leave related to his wife’s medical condition.
Future conduct
[79] Mr Tregear was an experienced cabin crew member who was accustomed to the irregularity of hours inherent in the work of an international flight attendant.
[80] Mr Tregear does not have a history of previous similar actions and, according to Dr Butler’s report, has demonstrated insight into the incident and has taken action to make amends. There is no suggestion that he has a history of dishonesty.
[81] I have noted Dr Wong Hoy’s belief that Mr Tregear has ‘got a fair bit of noradrenalin running around in his body which actually makes him nervous and agitated and unable to sleep properly.’ 42 Mr Tregear is now aware of the effects of tiredness on his judgement and can be expected to monitor his sleep patterns and continue to seek assistance as necessary.
[82] I have no reason to believe that Mr Tregear would engage in further similar conduct in his future employment.
Personal circumstances
[83] Mr Tregear’s dismissal ended his career with Qantas.
[84] He has not obtained employment as a flight attendant with another employer.
[85] Mr Tregear is 46 years of age, married with 3 children and describes himself as a family man with a home mortgage and school fees. The family lives at Marcus Beach, north of Brisbane. The health of his wife is such that it affects her ability to undertake long term employment.
[86] Mr Tregear has consulted an employment agency which has advised that the prospects of his obtaining local employment in the hospitality and tourism industry on the pay level he was used to at Qantas are very low.
[87] He has completed a Certificate IV in Property Services (Real Estate) which has qualified him to sell real estate.
[88] Recently, he has been earning very limited income on a casual basis at Noosa as a surfboard riding and surf safety coach.
Equality/Fair treatment
[89] I was referred to the provision of the Standards of Conduct Policy in which the definition of ‘Just Culture’ includes ‘managing behavioural choices, promoting organisational values and beliefs, and promoting the fair and consistent treatment of all Qantas Group Employees.’
[90] There was no evidence that Mr Tregear had received inequitable treatment with other Qantas employees who, in comparable circumstances, had not been dismissed.
[91] I accept that Mr Shuker was not able to consider the sanction of demotion because Mr Tregear was a Flight Attendant Level 1 and there is no lesser level. I have noted that the sanctions in clause 16.22 of the Standards of Conduct Policy are ‘common examples’.
CONCLUSION
[92] Mr Tregear’s conduct clearly justified disciplinary action. Perhaps another employer would have found the misconduct to warrant some lesser sanction, given his remorse and embarrassment.
[93] Whilst I have sympathy for Mr Tregear in relation to the ramifications of his error of judgement in taking and removing the boots, my role is not as free as ‘to do justly and to love mercy’. 43 It is to apply the provisions of the Act.
[94] After having regard to my findings in respect of each of the matters in paragraphs 387 (a) to (h) of the Act and giving appropriate weight to each, I am not satisfied that the termination of Mr Tregear’s employment was harsh, unjust or unreasonable.
[95] The sanction of dismissal was reasonably open to Qantas and I have not been satisfied that the effects of his lack of sleep at the time of the incident or the mitigating factors are sufficient for me to conclude that termination of employment was not proportionate to the gravity of the misconduct.
[96] In arriving at that decision I have been conscious of the object of Part 3-2 of the Act, including ensuring that both Qantas and Mr Tregear are accorded a ‘fair go all round’.
[97] The application is dismissed and I order accordingly.
COMMISSIONER
Appearances:
Mr J Nolan, Barrister with Mr J Hart for the applicant
Ms H Fairhall, Solicitor with Ms H McKenzie, Solicitor and Mr M O’Neil for Qantas
Hearing details:
2010
Sydney
November 3
1 Clause 9.1.1 of the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Workplace Agreement 2007 (EBA8) includes that: ‘Employees away from their base on duty must be provided with first class accommodation.’
2 A Note to the provision states that: “The expression ‘fair go all round’ was used by Sheldon J in Re Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95.’
3 On the evidence I am positively satisfied that Mr Tregear’s conduct in the incident was a valid reason for his dismissal.
4 On the evidence I am satisfied that Mr Tregear was notified of the valid reason, was given an opportunity to respond to that reason and was allowed to have a support person to assist him in the discussions relating to his dismissal.
5 Exhibit F2, Attachment DS-16, paras 2 & 12.
6 Exhibit F2, Attachment DS-11.
7 Exhibit N1.
8 Exhibit N1.
9 PN1164 & PN1187.
10 Exhibit N4.
11 PN812.
12 Exhibit F2, Attachment DS-17.
13 Exhibit F1.
14 Exhibit N5.
15 PN1469.
16 Print R1221, 1 February 1999, per MacBean SDP, Duncan DP, Deegan C; (1999) 89 IR 407.
17 At 416.
18 PR971685, 10 August 2006, per Lawler VP, O’Callaghan SDP, Raffaelli.
19 At para 15.
20 [2007] AIRC 360, 25 July 2007, per Drake SDP.
21 Attachment 8 to Mr Tregear’s application.
22 Paragraph 5.2 (a) of Qantas Standards of Conduct Policy.
23 Exhibit F2, Attachment DS-17.
24 Exhibit F3.
25 Exhibit N1.
26 PN625 & PN856.
27 Exhibit N4.
28 Exhibit F2, Attachment DS-17.
29 For example, the third report included a new element, namely: ‘I sincerely believe David’s account of events’, which was not included in the second report. Further, it omits Dr Wong Hoy’s observation that: ‘As adjudged in my most recent interview with him (13 April 2010), David has improved after the environmental stressors have abated (spousal conflict ceased). He has now overcome any feelings of depression and state anxiety that had earlier plagued his usual optimistic disposition’.
30 PN878.
31 PN882-PN884.
32 PN907.
33 I prefer Dr Wong Hoy’s evidence to Mr Tregear’s oral evidence that he went to see Dr Wong Hoy mainly because of his sleep deprivation.(PN609)
34 Refer to “Treatment Given” in Exhibit N4.
35 Exhibit N1, Statement of David Tregear, para 6.
36 Exhibit F2, Attachment DS-16, para 2.
37 Exhibit F2, Attachment DS-17.
38 Refer, for example, to ‘The Neural Mechanisms of Moral Cognition: A Multiple-Aspect Approach to Moral Judgment and Decision-Making’, William D Casebeer and Patricia S Churchland, Biology and Philosophy 18: 169-194, 2003, Kluwer Academic Publishers which concluded that moral representations, deliberations and decisions are probably highly distributed and not confined to any particular brain sub-system.
39 Killgore WDS, Killgore DB, Day LM, Li, C, Kamimori, GH, Balkin, TJ, SLEEP, Vol 30, No 3, 2007.
40 PN561-PN568.
41 PN1232 & PN1234.
42 PN892.
43 The King James Bible, Old Testament, The Book of Micah 6:8.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504218>
0
1
0