Michael Sieler v Aerocare Flight Support Pty Ltd
[2012] FWA 9985
•12 DECEMBER 2012
[2012] FWA 9985 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Sieler
v
Aerocare Flight Support Pty Ltd
(U2012/992)
COMMISSIONER LEE | MELBOURNE, 12 DECEMBER 2012 |
Application for unfair dismissal remedy - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009, ss.387, 394
[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act2009 (the Act).
[2] Mr. Sieler (the Applicant) was dismissed from his employment with Aerocare Flight Support Pty Ltd (the Respondent). He was dismissed for alleged serious misconduct. The Applicant was advised of the dismissal by telephone on 19 April 2012.
[3] A conciliation conference was conducted by a Fair Work Australia conciliator on 23 May 2012; however this failed to settle the dispute. The matter was heard before me in Hobart on 3 October 2012. Mr A. Jenshel of Counsel was granted permission to appear for the Applicant, and Mr D. Houlihan was granted permission to appear for the Respondent. The Applicant gave evidence on his own behalf. Evidence for the Respondent was given by Mr. Dodge, Manager of Airport Services - Hobart and Ms. Cuthbert, Business Improvement Manager.
Background:
[4] The Respondent provides baggage services under contract to Virgin Airlines. The Applicant was employed by the Respondent as a check in supervisor from March 2008 until his termination. He was employed at Hobart Airport.
[5] The Respondent claims there was a “baggage discrepancy” on a flight departing Hobart Airport on 13 April 2012. That is, there was a difference in the luggage weight that was recorded and advised to the pilot, and the weight that was actually on the plane. The quantum of that discrepancy is said to be 108 kilograms.
[6] Such a discrepancy is said by the Respondent to be a significant issue as it could compromise the safety of the aircraft.
[7] The Respondent claims that the discrepancy occurred as a result of the Applicant not properly following procedure and trying to cover up the failing. The discrepancy was first raised with the Respondent by Virgin Airlines who were notified of a strange baggage weight in a report. Mr. Dodge, as manager of airport services in Hobart, was informed of the issue, made some enquiries and established that the unusual bag weight was entered by the Applicant. Mr. Dodge arranged a meeting with the Applicant and after a brief discussion between the two men, where Mr. Dodge accused the Applicant of not following the correct procedure, the Applicant left the workplace.
[8] Mr. Dodge rang the Applicant later that same day and informed the Applicant that “it was all over”. 1 It is agreed between the parties that the dismissal took effect on the 19 April 2012 as a result of that phone call.
[9] The Applicant claims the dismissal was harsh, unjust and unreasonable in all the circumstances. In particular, he claims he was not responsible for the alleged misconduct and therefore there is not a valid reason for the dismissal.
The law to be applied
[10] Under the Act, a person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[11] I find the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period and an enterprise agreement applied to the Applicant in relation to his employment. 2
[12] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal;
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[13] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. The Respondent in its Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy disputed the fact that the Applicant was dismissed in a manner contemplated by s.386 of the Act. That jurisdictional objection was withdrawn on 13 August 2012. It is agreed that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.
[14] With regard to s.385(c) of the Act, the Respondent advised that is has 750 employees 3 and as such is not a small business employer within the meaning of s.23 of the Act. The Small Business Fair Dismissal Code does not apply in this matter.
[15] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.
[16] The remaining matter for my consideration as to whether the Applicant was unfairly dismissed is whether the dismissal was harsh, unjust and unreasonable (s385(b) of the Act).
THE EVIDENCE
The procedure followed.
[17] The Applicant gave evidence on his own behalf. Mr. Dodge gave the key evidence for the Respondent. Excerpts from the witness statements of the two witnesses are reproduced below as they cover the essence of the competing views as to what occurred in this matter.
[18] In his witness statement the Applicant claimed that:
“[4] On 13 April 2012 I was working checking-in guests for DJ313.
[5] After check-in was closed I printed a Bag Check Report. A Bag Weight Report must be generated and checked after check-in closes. I prefer to check the report on paper (rather than on screen) where I find it easier to see errors.
[6] At this time it was not possible for the flight file to be closed because check in had only just closed.
[7] I walked to the printer to obtain the print-out and could quickly see that there was an error. I recognised that the error was for a [passenger] who I had checked-in.
[8] This was a simple mis-key error. It happens frequently. I know of several examples where a bag was incorrectly checked-in with an obviously incorrect weight. For example, a bag weighing 21 kg was recently checked-in (by someone else) as 2121 kg. I wrote an incident report for this event.
[9] The check-in system (“Navitare”) does not alert the operator to the improbability of such a bag weight.
[10] I went to the computer nearest the printer (and which I had used earlier to check-in an international passenger) to correct the error.
[11] The usual means of correcting such an error before the flight file is closed is simply to correct the weight and then close the flight "closed pending."
[12] I noticed that the flight file was not yet closed and so that is what I did - I corrected the false bag weight of 120kg to the true bag weight of 12kg on the Bag Weight Report and then did the same in the system. I then reprinted the amended Bag Weight Report and waited for the final paperwork to be generated by Virgin Load Control through WABlink. I did not check the status of the flight file again during or after making the correction or printing.” 4
[19] Mr. Dodge also gave evidence. In his witness statement Mr. Dodge claimed that:
“[4] On 18 April, I received an email from [Mr] Tabone of Aero Care, regarding a baggage discrepancy on flight DJ1313 departing Hobart on 13 April 2012. The bag as checked was entered as 120 kilograms.
[5] Any bag that weighs in excess of 32 kilograms generates an automatic query regarding this particular item.
[6] On 18 April, I reviewed the original flight file containing the paperwork that went to the Pilot. I compared the original checked baggage report (printed by [the Applicant]) and the Virgin Australia baggage report for the date of the occurrence that I had printed off on the 18th of April. I noted that there was a discrepancy between the two documents, relating to the same flight of 108 Kilograms.
[7] [The Applicant] was the check in supervisor on that day. Upon further investigation it became clear that [the Applicant] was also the person who checked in the passenger with the bag that allegedly weighed 120 kilograms.
[8] At this point in my investigations, I emailed [the Applicant] to arrange a meeting the next day (19 April 2012) Into [sic] the Strange Bag Weight.
[9] Part of the responsibility of a check in supervisor is to ensure that the flight file baggage report is accurate. It is this document, the flight file baggage report, that informs the Pilot as to the total mass of baggage being carried as well asits distribution which has important safety considerations for the entire flight.
[10] The process for a supervisor in ensuring that the information that goes to the Pilot is correct is as follows;
(a) The customer service supervisor runs a checked baggage report
(b) The Customer service supervisor reviews this report for any discrepancies or errors
(c) The Customer service supervisor generates the load and trim paper work for the flight, which includes baggage, passenger and freight weights
(d) The ramp supervisor then signs the paperwork and gives it to the Pilot.
(e) Both supervisors are responsible for compiling and signing off on the flight file.
[11] Upon further investigation it became clear that what [the Applicant] had done was signed off onthe load and trim paper work and then printed out the checked baggage report. That is, [the Applicant] had reversed the order in which the tasks are to be completed. Attached to this statement and marked Attachment 1 are true copies, including the time signatures of these documents.
[12] It also became apparent that [the Applicant] then became aware of the error and changed the checked baggage report and corrected the bag weight from 120 kilograms to 12 kilograms.
[13] [The Applicant] failed at this point to notify load control, the Pilot or Virgin Australia of the error.
[14] [The Applicant] was aware of the seriousness of the requirement to ensure that the Pilot Is [sic] aware of the actual checked baggage as there are important safety considerations, including the trim of the aircraft in flight that rely on the accuracy of this information.” 5
[20] The starting point in the events that ultimately led to the Applicant’s dismissal was a simple miss-key error where the Applicant entered the weight of a passenger’s bag that weighed 12 kilograms as 120 kilograms. It is not disputed by the Applicant that he made the error. Nor is it disputed by the Respondent that such errors happen from time to time and that the making of such an error would, of itself, not be controversial. The controversy relates to the established procedure for correcting the error and whether the procedure was correctly followed by the Applicant.
[21] The correct procedure to be followed was outlined in more detail by the Applicant under cross examination by Mr Houlihan. It is prudent to record the correct procedure here for the evidence that follows.
“Can you describe to the tribunal the process of closing out a flight prior to its departure from the perspective of a supervisor. So what are your obligations in terms of closing off the flight and the steps that you must take?---Ideally you close the flight 20 minutes prior to the departure of the flight. Prior to closing the flight you would check the queue, make sure there is no-one else in the queue that may be late. When you've got no-one else to check in for the flight you would print or generate on screen a checked baggage report. Check the weight - - -
And that would occur roughly T minus 20?---Approximately. Ideally, yes.
At that point you print or have a copy on the screen of the checked baggage weight. Does Aerocare mandate a process whether it's printed or on screen, or is that left in your discretion?---At the time it was left to your discretion. I do believe since then that it has become a requirement that it is printed.
Okay. So you on this instance you printed a checked baggage weight at the time that you closed the aircraft. Is that your evidence?---Sorry? Are you asking me about what my procedure is?
Yes. Continue with the procedure. So T minus 20 you print or generate a checked baggage weight?---That's correct.
What's the next step?---You have checked the report.
Yes?---If there are no errors with the report you would then close the flight.
And you say "close the flight", is that close the flight completely, or close pending?---Close pending the flight.
...
So you've done your eyeball of the check report, you've noticed that there are no clangers. What's the next step?---So you would close pending the flight.
Close pending the flight. And then what happens then? Does that generate anything to load control in Brisbane?---That would send them a signal that the flight is closed pending.
Okay. So it's that act, closed pending, that sends the issue to Brisbane for them to develop or generate the load trim report. Is that correct?---Yes. That's my understanding, yes.
So it's the closed pending that gets you to the load trim report. And what's the key report that goes - is the load trim report generated in the same system as the checked baggage weight, or is it generated in a different system?---Generated in a different system.
...
So if you eyeballed an obvious error with the checked baggage report and you made an amendment in that system, would that automatically flow through to the load trim report?---If you've seen the error and you amend the error and it's prior to you closed pending the flight, which is the correct procedure - - -
Yes?--- - - - it will go through to the load control department when the flight is CP'd.
Okay, so - - - ?---Now, there have been instances where that does not update, but that is the theory and that's what the practice is in the majority of cases.
Would it be fair to say that if you've hit the closed pending button, at that point you're not then able to change weights within the checked baggage weight, that that closes that system off?---No.
...
We're still talking about - don't both systems operate in parallel? So that if I came to your counter and I handed you my bag and it weighs 15 kilos and that's properly generated and attach it to my name; baggage goes off, and if there's a keystroke error such that it's entered 150 kilograms, an obvious clanger; you print or generate a checked baggage weight. That's an obvious clanger and if you haven't closed pended the file you can correct that in that system and that will flow through until you close pend the file where it's sent to Brisbane for the generation of the load trim report. Is that the way it works?---Yes. The majority of time that is the way it works.
Okay. And if you had have close pended the file and then realised that there's a clanger, my bag weighs 150 kilograms, by simply updating the checked baggage weight would that flow through?---Only if you reclose pend the flight.
So you'd have to reopen, adjust that, reclose the flight, regenerate the paperwork, which we haven't got to in terms of the stream. Is that right?---You can amend the weight either before or after you close pend the flight, but you would need to reopen the flight and reclose pend it for that information to go through.” 6
[22] It is clear that changing the checked baggage report after the flight has been “closed pending” (CP’d) is a breach of the employers required procedure. The Applicant’s evidence is that when he made the changes to the baggage weight the flight had not been CP’d and so he amended the checked baggage report and “did the same in the system” and then CP’d the flight.
[23] The Applicant agrees that the loading instruction (or load and trim report) should normally be generated after the flight is CP’d. When asked if he had ever experienced otherwise, he replied that there were occasions where he had done it in the wrong order. 7 However, he clarified the approach to the procedure as follows:
“So for instance if on any occasion you’ve done the order wrong, so you’ve closed pending the flight before you’ve checked the baggage report, once you had checked the baggage report, if there were any corrections to be made, you would make the correction, reopen the flight, re-close pend the flight; call the load control team and the person whose name is on the paper work, and notify them that you had made an error or that there was an error, whether it was you that had done it or someone else-the check in; that you had amended the error; and that they would have to re-update their figures and regenerate the paper work if they had already finalised it and generated it.” 8
[24] Mr. Dodge also gave evidence that once a flight was CP’d it is still possible to change the checked baggage report by following the correct procedure. 9 However, Mr Dodge claimed it was clear in this case that the Applicant had not followed that procedure. Mr Dodge satisfied himself of this by running the same reports as the Applicant had run. Having done so, Mr. Dodge claimed, “I ran the same report and the same baggage weight is still in the system, the 120 kilos is still in the system.”10
[25] The evidence of the Applicant in relation to the flight is that he “changed the bag weight from 120 kilos to 12 kilos prior to close pending the flight.” 11 However, the evidence of Mr. Dodge contradicts this claim. The load and trim report for the flight, which contains the information that is given to the pilot, is generated from the data that is in the “Skyport system” and is generated by Load Control based in Brisbane. The load and trim report for this flight is Attachment 1 to Exhibit J3. That document shows the time the load and trim paper work was generated as 0549 Hours.
[26] The corrected checked baggage report that was generated by the Applicant in Hobart (which has the correct bag weight of 12 kilos for the relevant passenger) was generated at 0550 hours, after the generation of the load and trim report in Brisbane. The Applicant did concede that the time stamps on the two documents suggested that the relevant procedure had been reversed. When he was asked about possible explanations for that discrepancy, the Applicant replied that;
“…I would suggest that it is very common knowledge that pretty much any two computers do not have the identical same time on them.” 12
[27] There was evidence given by both the Applicant and Mr. Dodge that supported the notion that there is a time lag from when the flight is CP’d (and the checked baggage report generated) to when the load and trim report is generated. The time lag is anything from 30 seconds (according to the Applicant), up to 8 minutes (according to Mr. Dodge).
[28] Mr. Dodge did not attempt to identify as a part of his investigation if there was an error with the computer clocks 13 but stated he had no reason to think that there was an error.
[29] Ms Cuthbert gave evidence that the clocks in the Virgin Airlines computer system are networked and that she had “no reason to believe that there are discrepancies between network times. It’s never been questioned before”. 14
[30] Against this background, the time at which the flight was CP’d is important. In his evidence, the Applicant was somewhat evasive as to when he CP’d the flight. However, ultimately, the Applicant gave evidence at the hearing that “...when I closed pending the flight on that computer it says 0546 hours, from my memory” 15 and that he generated the checked baggage report on another computer which showed the time at 0550 hours.16 The evidence from Mr. Dodge was that the flight was CP’d at 0541 Hours.17 However, I note that while referring to the existence of documentation to support that contention, Mr Dodge did not provide such documentation.
[31] Mr. Houlihan for the Respondent put it to the Applicant during cross examination that the flight was CP’d at 0541 hours, but the Applicant did not recall that to be the case, and stated that he was only working from memory. The Applicant agreed that both times (0546 hours and 0541 hours) were significantly before 0550 when the checked baggage report was generated by him. 18
[32] The Applicant also disputed a number of aspects of the conversation that took place between himself and Mr. Dodge at the meeting of 19 April 2012, as recounted by Mr. Dodge. The Applicant claimed that Mr. Dodge had said that;
“…I changed it on the baggage report and that Virgin Australia considered it to be fraud because I didn’t change it in the system, in the Sky Port System.
The Sky Port system is the check-in system that is used to check the customers in out the front. So that’s where you would enter how many bags they have, the weight of the bags. It’s also where you would print from the checked baggage report, and it’s also where load control would pull the figures that they use in their system, which is called WAB Link”. 19
[33] The Applicant claimed that he did in fact change the baggage weight in the SkyPort system. 20 Mr. Dodge maintained that it was clear that the checked baggage report was generated after the flight had been CP’d and that this was contrary to Aerocare and Virgin Airlines processes.21
[34] The Applicant made reference in his oral evidence to suggestions that sometimes the load and trim reports are generated before flights are CP’d. 22 Effectively, where Load Control had “jumped the gun”. Mr. Dodge answered that he had never heard of this happening, though could not rule out the possibility.23 Ms. Cuthbert made clear in her evidence that if this were to happen it would also be a breach of policy.24 She was also not aware of it happening.25
[35] The Applicant also made reference in the hearing to there being a number of different checked baggage reports that had been generated by him at different times. 26 However, the Applicant conceded that there was nothing in particular that was “nefarious or underhanded”27in relation to the existence of numerous checked baggage reports.
The seriousness of the error
[36] There was evidence given as to the seriousness of an error being made with baggage weights. Ms. Cuthbert in her statement provided evidence about why it was important that that policy and procedures ensured baggage weights were recorded correctly. The reasons included:
“(a) To ensure the safety of both the crew and passengers during the take-off, inflight [sic] and landing of the aircraft.
(b) To ensure the load control process provides accurate information and calculations in determining the maximum loads, weight and balance of an aircraft.
(c) To ensure the aircraft is loaded within defined safety margins and safety will not be compromised and when fully loaded, complying with the relevant legislation and Civil Aviation Regulations.” 28
[37] Ms. Cuthbert provided evidence that Virgin Australia had released a “Ground Operations Bulletin” on 12 March 2012 outlining “Zero Tolerance Rules”. 29 One such rule was to;
“Ensure correct baggage weights are accurately captured in the departure control system.”
[38] Ms Cuthbert provided evidence that the Applicant had read this document on-line and had clicked on the “Understood, return to Aero-net” button. Ms Cuthbert also provided evidence that the Applicant has previously acknowledged, through the AeroNet intranet system, an instruction in an internal memo to “...ensure that all employees amend standard baggage weights before load and trim paperwork is completed”. 30
[39] Part of the Ground Operations Bulletin issued on 12 March 2012 included a table of rules and matching potential consequences. The second of these rules is “Ensure load sheet reflects the actual load of the aircraft through: accurate bag count(s) and accurate paper work”. The corresponding “Potential consequences if ignored” list is, “Impact to aircraft weight and balance and consequently aircraft control issues”.
[40] The Applicant agreed that this rule was relevant to this matter. 31 The Applicant also agreed that there were ramifications for mis-stating bag weights or luggage weights for aircraft and that he was aware of how seriously Aerocare and Virgin Airlines regard such matters.32
Compliance with the Notice to Produce
[41] On 6 September 2012, Commissioner Jones issued an Order requiring documents to be produced by the Respondent as part of these proceedings. . Documentation that was produced by the Respondent was received on 21 September 2012. It became clear during the course of the hearing before me that Mr. Dodge, when giving evidence, was referring to documents that informed his findings from his investigation in this matter that were not produced to Fair Work Australia pursuant to the Order. Mr Houlihan for the Respondent conceded that these documents should have been produced.
[42] Counsel for the Applicant suggested that I should find that the failure to produce was either inadvertent or deliberate and that differing consequences follow depending on what I resolve. I agree that is the proper approach to dealing with the failure to produce.
[43] I have given consideration as to whether I should draw a Jones v. Dunkel 33 inference from the failure to produce. However, I have not drawn such an inference for two reasons. Firstly, I believe that the failure to produce on the part of the Respondent was inadvertent and not deliberate. I accept that Mr. Dodge honestly thought that he had produced the relevant material.
[44] Secondly, there is nothing in the evidence to suggest that the additional material would be prejudicial to the Respondent’s case. If anything, the evidence suggests it is more likely to be supportive. To be clear however, I do not go so far as to draw that inference or as referred to by Counsel for the Respondent, ‘a reverse Jones v Dunkel” inference.
[45] I note that I invited a consideration from Counsel for the Applicant as to the desirability of allowing time for the further documents to be produced and if necessary for a further listing to allow for further examination of the witnesses. Counsel for the Applicant urged me against that further action for a number of cogent reasons. I agree with that reasoning.
[46] I conclude on this point by making clear I draw no particular inference from the failure to produce the documents. I will determine the matter on the evidence before me.
CONSIDERATION:
[47] It is necessary to determine whether or not the misconduct as alleged by the Respondent occurred. 34
[48] The starting point in this matter was the allegation that a flight took off with a weight discrepancy. That is, a plane took off with the pilots misinformed as to the bag weights they were carrying. It is clearly fundamental to the case of the Respondent that this allegation is true. Counsel for the Applicant did not concede that there was, in fact, a discrepancy. 35
[49] The alleged error came to light as a result of processes within Virgin Airlines to check baggage weights that show up as greater than 32 kilograms. Virgin Airlines raised the query with a Mr. Tabone from Aerocare who in turn raised the query with Mr. Dodge as the Airport Manager for Aerocare in Hobart.
[50] As discussed above, Mr. Dodge gave evidence that he compared the original checked baggage report (printed by the Applicant) and the Virgin Australia baggage report for the date of the occurrence. He noted that there was a discrepancy between the two documents, relating to the same flight, of 108 Kilograms.
[51] I have considered the submissions of Counsel for the Applicant that sought to cast doubt on whether the aircraft actually took off with a weight discrepancy. That submission built on doubts that were sought to be raised in cross examination of Mr. Dodge as to the procedures for calculating bag weights and culminated in what Counsel for the Applicant put was a “hypothesis that can’t be proved or disproved”. 36 I am unable to accept that submission.
[52] The submissions of Counsel do not overcome the evidence of Mr. Dodge, which I accept, that there was a discrepancy between the two documents. It seems clear on the evidence that an error has occurred in the terms described by the Respondent. 37 I am satisfied on the evidence that there was a baggage discrepancy of the magnitude claimed by the Respondent. I am satisfied that the flight took off with a weight discrepancy of that magnitude.
[53] Counsel for the Applicant agreed that if there was a weight discrepancy, it could only have occurred because of an error of the Applicant or an error at Virgin Airlines load control. 38
[54] Mr. Dodge set out in his witness statement the correct procedure to be followed (the relevant section was reproduced above at paragraph [19]. The only real contest to that procedure as outlined being correct is that 10(c) of the Dodge statement is not entirely accurate. That is, it suggests that the load and trim report is generated by the officer in Hobart when it is in fact generated by load control in Brisbane.
[55] However, that variation does not alter the order in which employees are to carry out the procedure for logging and checking the baggage weights on the aircraft.
[56] The Applicant maintains that he did comply with the correct procedure. However, the evidence is to the contrary. The Applicant recalled that he CP’d the flight at 0546 Hours. The evidence of Mr. Dodge is that the flight was CP’d at 0541 Hours.
[57] Even accepting the evidence of the Applicant on this point, this is four minutes before the time on which the checked baggage report was printed (on the Applicant’s evidence at 0550 Hours). The load and trim report was generated at 0549 hours. There is also the factor of the time lag between the flight being CP’d and the load and trim report being generated which on the Applicants own evidence is at least 30 seconds. The order of events suggests that that Applicant did not follow the correct procedure. He amended the checked baggage report but after the flight was CP’d and after the generation of the load and trim report in Brisbane. As a consequence, the load and trim documentation was not adjusted for the incorrect baggage weight. It seems clear that the relevant flight took off with the pilot having incorrect information as to the bag weights and this occurred because the Applicant did not follow the correct procedure. The evidence points to this conclusion.
[58] I have considered alternative explanations for the discrepancy as suggested by Counsel for the Applicant. The first of these alternative explanations is the suggestion by the Applicant that it is common knowledge that any two computers do not have the identical time on them. However, there is no evidence upon which I can conclude that there are variations in the clocks on different computers in the relevant systems. There was no evidence to support this view, only conjecture or vague recollections of the Applicant. Neither Mr. Dodge nor Ms. Cuthbert were aware of there being variations in the times recorded of different computers. No previous incident had been raised. While Mr. Dodge conceded he did not investigate to see if there was variation in the clocks on the computers, there was no reason for him, other than the post dismissal speculation of the Applicant, to have formed a view that such a problem existed.
[59] The other alternative explanation for the discrepancy, that of the possibility of Load Control in Brisbane, “jumping the gun” by generating the load and trim report before the flight had been CP’d is also not supportable on the evidence. Neither Mr. Dodge nor Ms. Cuthbert had ever heard of this happening. I note neither could rule it out as a possibility, though Ms. Cuthbert made it clear that were it to occur, it too would be a breach of policy. In any case, the timing of the generation of the load and trim report at 0549 hours and the recollection of the Applicant that he CP’d the flight at 0546 hours is not consistent with a conclusion that the “jumping the gun” theory was the explanation behind the error occurring. I am not satisfied that this provides a satisfactory alternative explanation for the discrepancy.
[60] In considering all of the material before me, I have considered whether it is possible that there is a flaw in the procedure itself for checking baggage weights. I have only speculation on this point and evidence to the contrary. While I note that Mr. Dodge conceded in cross examination that his investigation was not comprehensive, I do not hold the view that it was necessary in the circumstances of this case for Mr. Dodge to investigate each of the speculations of the Applicant. Mr. Dodge had formed the view that what he had prepared for the case and submitted was sufficient to demonstrate the misconduct of the Applicant. I found the testimony of Mr. Dodge to be credible and consistent throughout the proceedings. In general I preferred his evidence to that of the Applicant on the key matters in contest.
[61] The evidence supports a finding that the Applicant did not follow the correct procedure. I am not satisfied that the alternative explanations canvassed are likely to have occurred. Having considered all of the evidence, I conclude on the balance of probabilities that the Applicant acted in a manner inconsistent with the operational procedures and that this lead to the baggage weight discrepancy. This is a breach of the Zero Tolerance Safety Rules in the Ground Operations Bulletin of which the Applicant was aware. The Zero Tolerance Rules clearly indicated that termination of employment could result if they are not followed.
[62] I am satisfied that the Applicant is guilty of the misconduct as alleged by the Respondent.
Section 387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[63] I have formed the view that the employee is guilty of misconduct. The Respondent alleges that the misconduct is serious misconduct. Serious misconduct is defined in s.12 of the Act as having the meaning prescribed by the regulations. Regulation 1.07 in the Fair Work Regulations 2009 provides as follows;
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[64] No expert evidence was led as to the risk to safety a baggage discrepancy such as this would cause. Counsel for the Applicant rightly sought to strike out evidence given by Mr Dodge and Ms Cuthbert in this regard. However there was significant uncontested evidence that an error of the type that has occurred has serious safety implications for the aircraft.
[65] The Virgin Airlines “Ground Operations Bulletin” states that the occurrences outlined in the Bulletin have “ramifications [which] are extremely serious and it is for your personal safety and the safety of our airline that we have to take a strong approach to these types of occurrences”. The Bulletin continues that “I can’t emphasis enough the importance of taking a proactive approach so that you do not find yourselves in a situation where you are confronted with the opportunity to compromise safety or that you or other people are affected by your actions.”
[66] The Zero Tolerance Safety Rules as discussed above, state that the potential consequences of ignoring ensuring load sheets reflect the actual load of the aircraft as “impact to aircraft weight and balance and consequently aircraft control issues”.
[67] As outlined above, Mr Dodge and Ms Cuthbert both gave evidence about the importance of safety in this matter. 39
[68] Against this background I find that the actions taken by the Applicant caused serious risk to the health and safety of a person (regulation 2(b)(i)).
[69] I also find, given the clear directives issued to Aerocare from Virgin Airlines as to these processes, that the actions of the Applicant caused serious risk to the reputation, viability or profitability of the employer’s business (regulation 2(b)(ii).
[70] There is no doubt that there is a valid reason for the termination. The reason is sound and defensible. 40
387(b) whether the person was notified of that reason
[71] The Applicant was notified of the termination over the phone on the 19 April 2012 by Mr. Dodge.
387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[72] There is a contest as to whether the Applicant stormed out of the meeting on 19 April 2012 or was stood down pending further investigation by Mr. Dodge. However, it is not necessary to determine which of those scenarios is accurate. While there is some dispute as to what was discussed at the meeting, there is no doubt that allegations of fraud were discussed and the allegation that the procedure was not followed by the Applicant and then covered up, was the basis of that allegation. The Applicant clearly knew that was what the meeting was about as he took the flight file from the relevant flight to the meeting.
[73] I am satisfied an opportunity was given to the Applicant at the 19 April 2012 meeting to respond to the allegations of misconduct. I am also satisfied that this was given before the decision to terminate was made. 41
[74] I have also considered that the Applicant would have been aware employment was in jeopardy. 42 The Applicant had a previous warning for a similar transgression which cautioned against repeat behaviour threatening further disciplinary action, which may include termination action.43 Further, the Ground Operations Bulletin warns of termination of employment.
387 (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[75] There was no refusal to allow a support person. I note however, that a support person was not present at the 19 April 2012 meeting.
387(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[76] This factor is not relevant as the termination related to allegations of serious misconduct.
387 (f) and (g) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal; and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[77] The Respondent is a large organisation. There is no suggestion that the factors in (f) and (g) would have had an impact on the procedures followed in effecting the dismissal.
387(h) any other matters that FWA considers relevant
[78] There are no other matters relevant to my consideration.
CONCLUSION
[79] In all of the circumstances I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. The application is dismissed. An Order [PR532230] will issue accordingly.
COMMISSIONER
Appearances:
A Jenshel of Counsel for the Applicant
D Houlihan of First IR Consultancy Pty Ltd for the Respondent
Hearing details:
2012
Hobart;
3 October 2012
1 Witness Statement of Mr Darren Dodge, [25]
2 PN1152
3 See Form F3 - Employers Response to Application for Unfair Dismissal Remedy
4 Witness Statement of Michael Sieler, [4] to [12]
5 Witness Statement of Darren Dodge, [4] to [13]
6 PN258 - PN285
7 PN212
8 PN223
9 PN438
10 PN472
11 PN147
12 PN209
13 PN600
14 PN981
15 PN313
16 PN312
17 PN478
18 PN320
19 PN157 - 158
20 PN159
21 PN447 - 448
22 PN216
23 PN594
24 PN966
25 PN997
26 PN106
27 PN366
28 Witness Statement of Leisa Cuthbert, [8]
29 Witness Statement of Leisa Cuthbert, [5]
30 Witness Statement of Leisa Cuthbert [7]
31 PN344
32 PN335
33 (1959) 101 CLR 298
34 King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000, Ross VP, Williams SDP and Hingley C
35 PN1066
36 Ibid
37 See paragraph [6] of Witness Statement of Darren Dodge
38 PN1074
39 Witness Statement of Mr Darren Dodge, [14] and Witness Statement of Ms Leisa Cuthbert, [8]
40 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
41 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, S5897, 11 May 2000, VP Ross, Acton SDP, Cribb C
42 National Jet Systems Pty Ltd v Mollinger, Print R3130, 18 March 1999, Giudice J, Polites SDP, Gregor C
43 See Attachment 2 to Witness Statement of Darren Dodge.
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