DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Luke Sikalias
v
Qantas Airways Limited
(U2019/3883)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 APRIL 2020

Application for an unfair dismissal remedy - whether reason for dismissal a valid reason notification of reason and opportunity to respond- whether dismissal harsh, unjust or unreasonable – application dismissed.

[1] Mr Luke Sikalias (Applicant) was employed by Qantas Airways Limited (Qantas) as a Licensed Aircraft Maintenance Engineer since 2 February 1982 for a period of approximately 37 years. The Applicant was dismissed from his employment with Qantas on 15 March 2019 with immediate effect for misconduct in breach of Qantas’ Standards of Conduct Policy (SOC Policy). The misconduct was said to be his inappropriate conduct towards another Qantas employee. Qantas paid the Applicant 5 weeks’ pay in lieu of notice. At the time of dismissal, the Applicant denied or could not recall engaging in any of the conduct alleged by Qantas at any time. On 5 April 2019, the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. He continues to deny the conduct.

[2] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. These matters were not in dispute, and I find that:

• The application was made within the time prescribed in s.394(2) of the Act;

• The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;

• Qantas was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and

• The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] For the reasons which follow, I have concluded that the Applicant’s dismissal was not unfair.

Background

[4] The Applicant is 55 years of age and for 37 years, the entirety of his career, he was employed on a permanent full-time basis by Qantas as a Licensed Aircraft Maintenance Engineer.

[5] On 4 December 2018, Mr Kerry Walker, Operations Manager at Qantas, called the Applicant to a meeting during which he informed the Applicant that a complaint about his conduct had been made. Mr Walker told the Applicant he was being stood down with pay while Qantas conducted an investigation into the allegations. 1 Mr Walker gave evidence that during this meeting the Applicant said words to the effect of ‘I know what this is about’ and ‘I could lose my job over this Kerry’.2 The Applicant denies saying that he said he knew what the allegations were about.3 It is unnecessary for me to determine this dispute.

[6] On 10 December 2018 the Applicant was provided with a letter from Mr Walker outlining the allegations against the Applicant. 4 Relevantly the…

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: [2020] FWC 1830
Decision Date: 7 APRIL 2020

CaseChat Overview and Summary

The applicant, Luke Sikalias, brought a claim against his employer, Qantas Airways Limited, seeking a remedy for unfair dismissal. The dispute arose from the applicant's termination of employment, and he argued that the dismissal was unjust, harsh, or unreasonable. The matter was heard in the Fair Work Commission.

The legal issues before the court were whether the reason for the dismissal constituted a valid reason, whether the applicant had been provided with adequate notification of the reason for the dismissal, and whether he had been afforded an opportunity to respond to the reason. Additionally, the court needed to determine if the dismissal was harsh, unjust, or unreasonable.

The court found that the reason for the dismissal was valid, as the applicant had been involved in a physical altercation with a colleague. The court also found that the applicant had been provided with notification of the reason for the dismissal and an opportunity to respond. The court considered the circumstances surrounding the dismissal, including the nature of the altercation and the applicant's employment history, and determined that the dismissal was not harsh, unjust, or unreasonable. As a result, the court dismissed the application for an unfair dismissal remedy.

The Fair Work Commission dismissed the applicant's claim for unfair dismissal, finding that the reason for the dismissal was valid and that the applicant had been provided with notification and an opportunity to respond. The court also found that the dismissal was not harsh, unjust, or unreasonable. No further orders were made by the court.

Orders