George Falzon v LTQ Engineering Pty Limited T/A (A joint venture between Lufthansa Technik AG & Qantas Airways Ltd)

[2011] FWA 8858

[2011] FWA 8858

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Falzon
v
LTQ Engineering Pty Limited T/A (A joint venture between Lufthansa Technik AG & Qantas Airways Ltd)
(U2011/1647)

DEPUTY PRESIDENT IVES MELBOURNE, 19 DECEMBER 2011

Termination of employment

[1] This decision represents a slightly edited version of the decision I delivered on transcript at the hearing of this matter on 8 December 2011. It relates to an application pursuant to s.394 of the Fair Work Act 2009 (the Act), by Mr G Falzon (the Applicant) alleging that the termination of his employment on 3 August 2011 by LTQ Engineering Pty Limited (the Respondent) was unfair within the meaning of s.385 of the Act.

[2] The matter proceeded by way of hearing on 7 and 8 December 2011.

[3] Evidence, both written and oral, was adduced from the following persons:

• The Applicant;



• Mr A. McNicol, Technician for the Respondent;



• Mr R Young, Head of Quality & Training, for the Respondent;



• Mr D. Berry, Lead Technician, for the Respondent;



• Mr G.T. Falcone, Head of Engines, for the Respondent;



• Mr C. Zgrdja, Head of Human Resources, for the Respondent.

[4] The Respondent to this application claims that the Applicant was fairly terminated on the grounds that the Applicant failed to report damage he had done to an aeroplane engine upon which he was working, and that he failed to provide an accurate account when questioned about the incident. The Applicant claims that he did not cause the damage and that he was truthful in his responses to the Respondent.

[5] This matter largely turns upon the issue of the credit of particular witnesses. The Applicant's account of what occurred in adjusting the engine is directly at odds with that of Mr McNicol who was assisting him at various times. Both accounts cannot be true. Acceptance of one is implicit rejection of the other. There are, similarly, direct conflicts between the evidence of the Applicant and that of Mr Berry, who also assisted the Applicant at various times during the task of adjusting the engine.

[6] It appears to me that the principal task before this Tribunal is to make a finding or findings as to which account or accounts are to be accepted on the balance of probabilities as factual. There are particular causes, in my view, for concern about accepting the Applicant's evidence. They are, firstly, the Applicant, unlike either Mr Berry or Mr McNicol, had a motive for providing an inaccurate account of events; that being the apprehension of potential disciplinary consequence.

[7] Secondly, the Applicant gave evidence that it would have been complicated and time consuming to remove the parts necessary to fit a protractor to the stage 1 VSVs. When confronted under cross examination with Mr Young's evidence that it was a task taking approximately five minutes, he did not quibble with that position. It stretches credulity that an experienced technician such as the Applicant would not have been, at all relevant times, aware of the ease with which a protractor could be fitted in the circumstances.

[8] Thirdly, there is no explanation in the Applicant's account for the physical damage to the engine. Mr McNicol's account of what occurred in relation to the attempted stage 1 VSV adjustment is consistent with reasonable assessments of what caused the physical damage.

[9] Fourthly, if one accepts Mr Berry's evidence about the change of protractors after one was found to be significantly out of calibration - and there is no basis in my view to reject that evidence of Mr Berry - then it is necessary to reject the Applicant's evidence to the effect that the protractor was not changed. Not changing the protractor would more than likely have led to inaccuracies in the subsequent adjustments carried out.

[10] Fifthly, the Applicant gave conflicting viva voce evidence in respect of whether the calibration check on protractors as claimed by Mr Berry, occurred. He first claimed he did not recall it as the incident was too long ago for him to remember all the details. Minutes later, he claimed that things were coming back to him and that he did recall. The Applicant claimed, prior to this, that he had read all the Respondent's witness statements. In my view it is unlikely in the extreme that he would have, even momentarily, forgotten the incident, particularly as his account of what followed in relation to whether the protractor was changed, is entirely inconsistent with that of Mr Berry.

[11] Sixthly, there is no reasonable basis upon which it can be found that the damage was pre-existing. On the contrary, the evidence suggests that for the damage to have occurred in the workshop prior to moving the engine to the test area, is highly unlikely. I have no basis upon which I can reasonably reject the evidence of either Mr Berry or Mr McNicol. It follows that to the extent of any inconsistencies, I prefer Mr McNicol's and Mr Berry's evidence to that of the Applicant. In fact for the reasons I have outlined, I prefer all the evidence adduced from the Respondent's witnesses to that of the Applicant to the extent that there are any inconsistencies. That includes evidence of Mr Zgrdja regarding what physical damage to engine parts and other components that the Applicant was given an opportunity to inspect during the course of the incident investigation.

[12] I find that the Applicant, in attempting to adjust the stage 1 VSVs of the relevant engine, fitted a protractor to the engine and subsequently in the course of attempting to remove the protractor which had slipped and jammed, caused damage to the engine. I find that the Applicant failed to report that event to the Respondent in accordance with his obligation to do so once the damage was known to have occurred. That failure was a serious breach of the Respondent's safety requirements. I further find that the Applicant, both to the Respondent during the investigation of the incident and subsequently to this Tribunal, failed to provide an accurate account of his actions in attempting to correct the over-speed of the relevant engine on the relevant date.

[13] Having made those findings, I find pursuant to section 387 of the Act as follows. There was a valid reason for the termination of the Applicant's employment. That reason is the Applicant's failure to report the incident that occurred whilst attempting to adjust stage 1 VSVs and his subsequent misrepresentation, to the Respondent, of his actions in attempting to make the adjustment. That the reason for the termination was sound, gains particular emphasis from Mr Falcone's evidence that an engine entering service with damage of the type sustained by the Applicant's actions could be catastrophic.

[14] The Applicant was notified of the reason for his termination and provided, in my view, an ample opportunity to respond. I note that the Applicant's representative takes some exception to this on the basis that he says certain of the reasons were not put to the Applicant. Such deficiencies, if any, that there may have been with procedural fairness afforded to the applicant are not such, in my view, as to render the termination of the Applicant's employment unfair.

[15] There was no unreasonable refusal by the Respondent to allow the Applicant access to support. The employer is a relatively large one and suffers no deficiencies of relevant HR personnel. Subsections 387(f) and (g) of the Act are therefore of no relevance to the matter before me. Neither was the termination based upon unsatisfactory performance within the meaning of section 387(e) of the Act. That subsection is also irrelevant to this matter.

[16] The Applicant's prior, apparently unblemished and significant, service counts in his favour, but not so as to render what was in all the circumstances a fair dismissal, as unfair. I consider that a fair go all round has been afforded. The termination of the Applicant's employment was not harsh, unjust or unreasonable, hence not unfair within the meaning of the Act. The Applicant's application is dismissed.

[17] An order giving effect to this decision has issued as PR517721.

DEPUTY PRESIDENT

Appearances:

L Buntman of the Australian Workers’ Union (AWU) for the Applicant.

B Mueller for the Respondent.

Hearing details:

2011.
Melbourne:
December 7, 8.

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