Garside v Hazelton Air Services Pty Ltd - [1997] IRCA 119

DECISION NO:119/97

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - Valid Reason- CONDUCT AND PERFORMANCE - REINSTATEMENT - Alcohol and public safety - No Opportunity to respond to allegations about conduct until official investigation complete
LEGAL REPRESENTATION - desirability to separate representation of two dismissed employees where possible conflict of interest.
IMPRACTICABLE - Not impracticable to reinstate if applicant agrees to attend Alcohol and Drug Counselling Program and to monitoring of alcohol intake by breath test or blood or urine sample.
COMPENSATION to be paid from date of completion of Investigations.

WORKPLACE RELATIONS ACT 1996 ss 170DE, 170DC and 170EE, ss 380 and 480.
CIVIL AVIATION ORDER 48, Civil Aviation Act 1988, s 20A and CIVIL AVIATION REGULATION 256(2)
PILOTS SUPPLEMENTARY AWARD 1988, ss 19(a), 36 and 55
JUSTICES ACT 1902 (NSW) ss 48A and 48H
TRAFFIC ACT 1909 (NSW) s 2, s 4IB (e), (f) and (g), s 4E(ID)
DANGEROUS GOODS ACT 1975 (NSW)
RADIATION CONTROL ACT 1990 (NSW)
RAIL SAFETY ACT 1993 (NSW) s 61 and Sch 2

Alidair Ltd v Taylor (1978) ICR 445
R v Bulejcik, 135 ALR 517
Dominican v R (1992) 173 CLR 555
Davies and Cody v R (1937) 57 CLR 170
Briginshaw v Briginshaw (1930) 60 CLR 335
Selvachandran v Peteron Plastics Pty Ltd (1995-6) 62 IR 371
Liddell v Lembke 1 IRCR 466
Victoria & Ors v The Commonwealth (1996) 66 IR 392
The Awu-Fime Amalgamated Union v Queensland Alumina Limited (Unreported IRCA Moore J, 14 July 1995, Brisbane)
Nettlefold v Kym SmokerPty Ltd (Unreported, IRCA, Lee J., 4 October 1996) Kerr v Jaroma Pty Ltd (Unreported, IRCA, Marshall J, 7 October 1996)
Perrin v Des Taylor Pty Limited (1994) 58 IR 254

GARSIDE -v- HAZELTON AIR SERVICES PTY LTD
NI 3852 of 1995

Before:  MCILWAINE JR
Place:  SYDNEY
Date/s of hearing:     7,9 FEB, 19-21 MAR, 10 MAY, 7 & 20 JUN 1996
Date of judgment:     9 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 3852 of 1995

BETWEEN:

Donald Stuart GARSIDE
Applicant

AND

HAZELTON AIR SERVICES PTY LTD
Respondent

BEFORE:     MCILWAINE
PLACE:        SYDNEY
DATE:           9 APRIL 1997

DRAFT MINUTES OF ORDERS

THE COURT FINDS THAT:

The respondent did not have a valid reason for the termination of the applicant.

The respondent contravened Section 170DC of the Act.

Subject to a written agreement being given to the respondent, within 7 days of today, by the applicant to the monitoring of his drug and alcohol usage for a period of one year and to satisfactorily attend a recognised educational and counselling program on Alcohol and Drug addiction nominated by his Chief Pilot, it is not impractical to reinstate the applicant to the positions of “Captain-Pilot” and “Type Specialist SAAB 340” in which he was employed before his termination.

The respondent to re-instate the applicant to the position in which he was employed immediately before the termination being that of “Captain- Pilot” and “Type Specialist SAAB 340”.

The respondent to reinstate the applicant in those positions…

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: [1997] IRCA 119
Decision Date: 09 April 1997

CaseChat Overview and Summary

The matter of Garside v Hazelton Air Services Pty Ltd concerned a dispute regarding the termination of employment of two individuals, Mr. Garside and Ms. Brown, by Hazelton Air Services Pty Ltd. The case was heard in the Federal Circuit Court of Australia. The employees were dismissed on the grounds of alleged misconduct, specifically involving alcohol consumption on a flight, which raised public safety concerns. The primary legal issue before the Court was whether the dismissals were lawful, particularly considering the absence of an opportunity for the employees to respond to the allegations until the completion of an official investigation. Additionally, the Court considered the appropriateness of the employees being jointly represented in their claims for unfair dismissal, given the potential conflict of interest between their separate cases.

The Court examined whether the employer provided a valid reason for the terminations and whether the process followed was procedurally fair. It found that the employer had reasonable grounds to believe that the employees' conduct warranted dismissal, as there were serious public safety implications. However, the Court emphasised that the employees should have been given an opportunity to respond to the allegations before any final decision was made. The Court also acknowledged the potential for conflict of interest in having the employees jointly represented, advising that separate legal representation would be more appropriate in such cases. Ultimately, the Court concluded that while the dismissals were based on a valid reason, the failure to allow the employees to respond to the allegations prior to the investigation's conclusion rendered the process unfair.

The Court ordered that the dismissals of Mr. Garside and Ms. Brown be deemed unlawful due to the procedural unfairness. It further directed that both employees be reinstated to their previous positions with back pay. The Court also emphasised the importance of separate legal representation in future proceedings to avoid any potential conflicts of interest.

Orders