Dube v Qantas Airways Limited
[1996] IRCA 279
•26 June 1996
DECISION NO: 279/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - SERIOUS MISCONDUCT - PROCEDURAL FAIRNESS - HARSH UNJUST or UNREASONABLE.
Industrial Relations Act 1988 ss.170DB, 170DE, 170EA, 170EDA
CASES: Sangwin v Imogen Pty Limited (trading as Carleton Custom Upholstery) (von Doussa J, 8 March 1996, unreported);
Blyth Chemicals Ltd v Bushnell(1933) 49 CLR 66;
Gooley v Westpac Banking Corporation (1995) 59 IR 262;
Byrne v Australian Airlines Ltd (1995) 131 ALR 422;
Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224.
ARUN DUBE -v- QANTAS AIRWAYS LIMITED
No. VI 1149 of 1996
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 26 June 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1149 of 1996
B E T W E E N :
ARUN DUBE
Applicant
AND
QANTAS AIRWAYS LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 26 June 1996
THE COURT ORDERS:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1149 of 1996
B E T W E E N :
ARUN DUBE
Applicant
AND
QANTAS AIRWAYS LIMITED
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 26 June 1996
EX-TEMPORE REASONS FOR JUDGMENT
In these proceedings pursuant to s170EA of the Industrial Relations Act (“the Act”) the applicant seeks reinstatement to his position as a Customer Service Supervisor with the respondent. The applicant has been employed by the respondent for some 17 years and was dismissed for misconduct, after an incident on 1 December 1995, on 29 December 1995. The evidence in this proceeding is of a relatively narrow compass but in crucial respects was strongly conflicting.
At about 11.30 am on 1 December, a passenger Mr Hoosen presented at the domestic customer service desk to collect some tickets to board a flight to Coolangatta. Ms Banitskas was on duty. She searched for the tickets, found four tickets and eventually found another three tickets. When she looked at the latter three tickets (Exhibit R1) she found that they were irregular in that they contained an expired time limit and had been re-validated. The re-validation stickers were for use within the respondent, but the tickets were from a travel agent and thus the re-validation sticker should not have been used. Further, the tickets had been issued on a discounted basis yet the re-validation sticker was on an economy basis. She formed the view that additional moneys were payable and queried the customer.
Mr Hoosen was becoming agitated as the flight was nearing departure and Ms Banitskas called in her supervisor, Ms Leeanne Craig. Ms Craig investigated the matter and ascertained the name of the travel agent and a conversation ensued with the person on the end of the phone, Ms Rahiman. In that conversation Ms Craig raised with Ms Rahiman the fact that the tickets required additional funds to be paid. Ms Rahiman then said that no further moneys were to be paid and said that Ms Craig would have to speak to her supervisor. Ms Craig sought to speak to Ms Rahiman's supervisor; Ms Rahiman put down the phone and Ms Craig gave evidence that she heard Ms Rahiman speak to someone else.
Ms Rahiman then came back and said to her, “call my supervisor”. Ms Craig said “put me through to him”; Ms Rahiman said: “no I can’t, you will have to call him. The number is 73333”. Ms Craig queried the number as it did not have enough digits and Ms Rahiman then said again that is the supervisor's number. She confirmed that he was her agency supervisor. She said “Ring 73333 and ask for Arun Dube”. While this conversation was continuing, Ms Craig handed the three boarding passes to Mr Hoosen then ceased the conversation with Ms Rahiman. Ms Craig then contacted 73333 and was advised that she had contacted the International Service Desk of the respondent. She asked for Mr Dube and found that he was unavailable.
She then determined that something was amiss and went to see the Airport Duty Manager, Mr Roly Vella. Shortly after this Mr Dodge, the Acting Customer Service Supervisor, who was her supervisor, was contacted by Mr Dube. The applicant said that “Leeanne is having trouble with some passengers by the name of Hoosen, who are leaving now”. Mr Dodge looked up the passengers in the system and said that there should not be a problem as they were properly ticketed. The applicant then said to him:
“Tell Leeanne the tickets will be OK. I know about it and I told the agent that it will be okay and that I would fix it at the airport”. The applicant denied this aspect of the exchange. It is the critical exchange as far as the respondent is concerned.
The applicant's evidence was that he had rung the office of Jusmin Travel, which is conducted by his sister-in-law, Ms Rahiman, and her sisters, that morning to make arrangements to go with his brother-in-law to a mosque. While he had been on the phone the receptionist had said that Ms Rahiman wished to speak to him. He had spoken to her and Ms Rahiman said there was a problem with the Hoosen booking. She had said that the girl from Qantas was on the phone. He had told Ms Rahiman to tell the girl to ring him. He said he knew nothing further about the matter at that point. The applicant said that it was very busy at the airport that day and he then continued on his duties for 15 or 20 minutes.
He received no call from Leeanne at the domestic service desk and 15 or 20 minutes after the original conversation with Ms Rahiman, and at a time he said was about midday, he realised that he had done nothing about the call from Ms Rahiman. He contacted Mr Dodge and asked him about the booking. He said that at that time he did not know the destination and thought that the booking was for only one passenger. He was told by Mr Dodge that there were three passengers. He then asked Mr Dodge “can you please help them get them on the flight”. He said nothing was mentioned about the tickets. He said that he thought that the issue was a booking problem and that the flight might have been over-sold.
On 4 December Mr Dodge prepared a statement (Exhibit R3) for an investigator wherein he outlined the details of what he said was the conversation. The applicant prepared a statement (Exhibit R5) with the help of his solicitors and signed it on 20 December detailing his account of the conversation.
After Mr Vella and Ms Craig had perused the tickets after the passengers had left they ascertained that there was an additional $1800 to be paid on those tickets. The Customer Service Manager, Mr Hill, became involved, as did Mr Cummings, the Airport Duty Manager. Mr Cummings, at about 12.30 pm that day, put to the applicant that there was a problem with the Hoosen tickets. The applicant admitted that he knew the passengers, but denied any knowledge of any irregularity with the tickets or association with the travel agency. Later that afternoon the applicant was stood down with pay for what Mr Hill said was a serious breach of procedure in that the applicant had used his influence to enable the passengers to travel when it was not his role, and there was a conflict between his role as a supervisor and his involvement with the travel agency. In the conversation with Mr Hill that afternoon the applicant denied any involvement in any attempt to defraud the respondent and said he was just attempting to help some friends.
The applicant was stood down with pay late that afternoon and did not resume work with the respondent. There were three further meetings before the applicant was dismissed after a meeting on 29 December. On 11 December a meeting occurred at which a general overview of the allegations were put to the applicant. He was not told that the respondent was in possession of some six statements relating to the matter. On 12 and 15 December letters were sent respectively to the applicant (Exhibit R14) and to his solicitors (Exhibit R15) detailing the allegations against the applicant. The letter of 15 December, in which the statements were provided to him, said:
“The statements indicate that Mr Dube had knowledge and was involved in the sale of discounted airline tickets to Hoosens through Jusmin Travel. The sale of these tickets resulted in Qantas receiving less than it was entitled to in the circumstances under which the tickets were sold and issued.
If the above indications are true, they represent serious misconduct which will result in severe disciplinary action being taken and possible termination of employment.”
The applicant provided a written statement (Exhibit R5) to the respondent through his solicitors on 20 December. A meeting was held on 27 December. At that time a further statement (Exhibit R8) was to hand relating to an incident on 13 November. The applicant at that stage said he could not recall the incident. The meeting was adjourned to allow a further representative of the applicant's union to be involved. A meeting was held on 29 December at which the statements in the possession of the respondent were considered. The additional statement was raised. At the request of the applicant's representative this was set aside as it was made clear that the meeting would not proceed if the earlier incident on 13 November was considered.
There was further discussion among representatives of the respondent at that meeting and then the applicant was advised that his explanations in relation to his conduct on 1 December were not accepted, that he was found to be guilty of misconduct and he was to be summarily dismissed. The letter of termination (Exhibit A2) indicates that the reasons for the dismissal were:
“That you had knowledge of a deception on Qantas relating to the sale of discount airline tickets to passengers between 27th November, 1995 and 1st December, 1995 by the proprietors of Jusmin Travel, namely Julaiga Rahiman.
That by your actions on that day as a Supervisor you were prepared to facilitate a deception on Qantas, causing Qantas a financial loss.”
The reasoning of the respondent was that it preferred to accept the statements of persons other than the applicant, and in particular Mr Dodge and Ms Craig. The inference that Mr Brocchi, the Manager Melbourne Airport, drew was that the applicant must have known that there was a ticketing problem because Qantas rarely contacts travel agents in relation to matters of seating and booking. Further, it was unusual that an international terminal supervisor would be involved in a domestic terminal matter. The fact that the applicant had also been involved in the earlier matter on behalf of the same agent was referred to in the letter of termination .
Did the respondent have a valid reason to terminate the applicant?
This case does resolve into a question of the credit of the witnesses. As the witnesses for the respondent, Messrs Hill and Brocchi, maintained the three principal witnesses of the respondent, Mr Dodge and Ms Craig, and Ms Logan, who gave the statement in relation to the 13 November incident, had no reason to make up the accounts on which the respondent relied. On the other hand it is a weighty matter for an employer to disbelieve the word of a person with a long and generally good employment record who had held a position of trust. I am satisfied that it was open to the respondent to accept the accounts of its employees that were given to it and to reject the applicant's account.
The reasoning process that led to the conclusion that he was guilty of the misconduct alleged was open to the respondent on the material before it. It could not be said that it was a capricious conclusion. The conclusion was reached after deliberation and a fair process. The reasoning met the test endorsed in the recent decision of Sangwin v Imogen Pty Limited (trading as Carleton Custom Upholstery) (von Doussa J, 8 March 1996, unreported), where he endorsed the following comments in Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229:
“Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all the allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”
I do not accept the submission of counsel for the applicant that the respondent's reason was based on impermissible inferences. Given the material before it the respondent was entitled to regard the intervention of the applicant as a supervisor in an area over which he had no involvement, and in the circumstances where he told Mr Dodge that he had “told the agent” that he “would fix it at the airport”, it was open for the respondent to find that this was an act in breach of his duty of fidelity to the respondent.
I prefer to accept the evidence of Ms Craig and Mr Dodge over that of the applicant. I give no weight to the statement of Ms Rahiman (Exhibit R11) as she was not called to give evidence. I find that the applicant's account of what he did after he spoke to Ms Rahiman that morning was lacking in credibility in that he said that he left the matter for some 15 to 20 minutes. I do not accept his account of the Nouh matter. Ms Logan had no reason to make up the incident on 13 November and it was never put to her that the alleged phone call she said she received from the applicant on that morning did not occur. I am satisfied that the applicant had knowledge of the tickets on that day, 1 December, and that he used his influence to advise Mr Dodge that the tickets were okay.
I find that his actions did constitute actions that were such that he was prepared to facilitate a loss on Qantas because he advised Mr Dodge that travel was in order on those tickets when he knew that the tickets were not in order. The applicant has put the interests of the travel agency ahead of the respondent, he was thus guilty of misconduct and the respondent therefore had a valid reason to dismiss him. The applicant's misconduct I am satisfied properly meets the test set out in Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81, where Dixon and McTiernan JJ, said:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal.”
I reject the submission that procedural fairness was not accorded here. The applicant was given all the statements, albeit with names deleted. He knew the allegations being made against him. He responded to those allegations. He had his union representatives involved. I accept Mr Brocchi's evidence that the respondent did not rely on the Nouh matter as a ground to dismiss him. The fact of Ms Logan's statement cannot be excluded by the respondent in determining whether or not to accept the applicant's denial of any improper involvement in the incident on 1 December and I am satisfied that that was all the respondent did in relation to that statement.
I was referred to the decision of Gooley v Westpac Banking Corporation (1995) 59 IR 262. That decision has no application in this case because I reject the applicant's account that he had no knowledge of the ticket status of the Hoosen tickets. I am satisfied that he did have knowledge that he had acquired from Ms Rahiman. He must have had that knowledge to make the statement he did make to Mr Dodge. It strains credibility that he would not have enquired of Ms Rahiman as to the “problem” that Ms Craig was calling her about on that morning. It follows that I prefer to accept the respondent's account of events. It follows that the respondent has discharged its onus of proof under s170EDA and had a valid reason under s170DE(1) of the Act.
Was the termination harsh, unjust or unreasonable.
The applicant carries the onus of proof on this issue under s170DE(2). I am not satisfied that he has discharged his onus of proof. I am satisfied that the respondent, having found the applicant guilty of misconduct, was entitled to dismiss him having found that this misconduct occurred. I am not satisfied that the dismissal is to be characterised as harsh, unjust or unreasonable.
The applicant had been guilty of conduct as I have said that contravenes the test of misconduct set out in Blyth Chemicals (above). The termination of his employment in the circumstances of that misconduct is not, I am satisfied, harsh, unjust or unreasonable. There is nothing in the recent decision of the High Court in Byrne v Australian Airlines Ltd (1995) 131 ALR 422, to indicate that the High Court has taken any other view. On the contrary, the High Court at 434 and 462-4 makes it clear that where misconduct is made out, in general, a dismissal will not be harsh, unjust or unreasonable. Here, I am satisfied that the misconduct is made out and in the circumstances, despite the applicant's prior good service record, the termination of his employment cannot be characterised as harsh, unjust or unreasonable.
It follows also that I reject counsel for the applicant's argument that there has been a breach of s170DB of the Act. Having found that the applicant was guilty of misconduct, I am satisfied that the respondent was entitled to terminate him without notice as I am satisfied that it is proper to characterise the misconduct as serious misconduct, that is, "misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period." S170DB(1) has therefore not been breached by the respondent. As the applicant has not made out any breach of the Act I propose to dismiss the application.
MINUTES OF ORDERS
THE COURT ORDERS:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 26 June 1996
Solicitors for the Applicant: Ronald V Tait
Counsel for the Applicant: Ms Rachel Doyle
Solicitors for the Respondent: Freehill Hollingdale & Page
Counsel for the Respondent: Mr M McDonald
Date of hearing: 25 and 26 June 1996
Date of judgment: 26 June 1996
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