Dawson v Qantas Airways Limited

[2017] FWCFB 1712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Dawson
v
Qantas Airways Limited
(U2016/2341)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON SYDNEY, 31 MARCH 2017

Application for relief from unfair dismissal.

[1] On 23 November 2016, Deputy President Lawrence issued a Decision, 1 which found that whilst the dismissal of Mr David Dawson (“the Applicant”) by Qantas Airways Limited (“the Respondent”) was not unreasonable or unjust and there was a valid reason, the dismissal was harsh. In particular, the Deputy President had regard to the following factors in accordance with section 387(h) of the Fair Work Act 2009 (Cth) in reaching his Decision that the dismissal was unfair:

● The Applicant’s 28 years of unblemished service for Qantas as a long-haul flight attendant;

● The small value of the items stolen;

● The Applicant’s age of 50 meant it would be difficult to get another job, certainly as a flight attendant. Although he gave an incorrect explanation, he did correct it; and

● The Applicant had a number of medical and family issues prior to the incident.

[2] On 13 December 2016, the Respondent lodged a Notice of Appeal, appealing the Deputy President’s Decision. On 12 January 2017, we heard the appeal and reserved our Decision. 2 We found that the conclusion reached by the Deputy President at paragraph [45] of his Decision, namely, that the Applicant gave an “incorrect explanation”, understated the severity of the events which took place. The Applicant admitted that his explanation regarding how the alcohol came into his possession was “not true” in his letter to Ms Elliott dated 22 March 2016. However, it was only after the Applicant was directly confronted by Ms Elliott’s findings that he subsequently altered his explanation as to how the alcohol came into his possession. In this regard, we found that the Applicant’s conduct could not be described as a mere “incorrect explanation”. Thus, we found that the Deputy President, by describing the Applicant’s conduct as merely an “incorrect explanation”, understated the severity of the Applicant’s conduct and, as a consequence, mistook the facts before him. In doing so, the Deputy President erred in the House v The King3 sense.

[3] Accordingly, we referred the matter to ourselves to rehear the matter. Directions were issued to the parties on 8 February 2017 requiring the parties to inform the Commission by 10 March 2017 if an oral hearing was required. As the parties did not request an oral hearing, the matter is to be determined on the papers.

Background

[4] The Applicant commenced employment as long haul flight attendant with the Respondent on 8 February 1988 and was employed for 28 years.

[5] The Respondent alleged that:

(a) The Applicant removed items of Qantas Group alcohol from an aircraft after a flight from Perth to Sydney on 14 February 2016, in breach of various company policies; and

(b) Subsequently misled and deceived Qantas as to how and why he came to have…