Qantas Airways Limited v David Dawson - [2017] FWCFB 41

[2017] FWCFB 41

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Qantas Airways Limited
v
David Dawson
(C2016/7312)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILSON

SYDNEY, 23 JANUARY 2017

Appeal against decision [2016] FWC 8249 of Deputy President Lawrence on 23 November 2016 in matter number U2016/2341.

[1] Mr David Dawson was employed by Qantas Airways Limited until he was dismissed on 28 April 2016. Mr Dawson lodged an unfair dismissal application which was heard by Deputy President Lawrence. On 23 November 2016, Deputy President Lawrence issued a Decision, 1 which found that Mr Dawson’s dismissal from employment was unfair. The Deputy President found there was a valid reason for the dismissal, noting the dismissal was not unreasonable or unjust. However, the Deputy President concluded that the dismissal was harsh having regard to the unfair dismissal provisions contained in Part 3-2 of the Fair Work Act 2009 (Cth) (“the Act”) and, in particular, section 387(h) of the Act. On this basis, the Deputy President made an Order2 granting relief from unfair dismissal and ordering that Mr Dawson be compensated.

[2] On 13 December 2016, Qantas Airways Limited (hereafter “the Appellant”) lodged a Notice of Appeal, appealing the Deputy President’s Decision. We heard the matter regarding the application for permission to appeal and the appeal on 12 January 2017. We have decided to grant permission to appeal, uphold the appeal and quash the original Decision.

[3] At the hearing on 12 January 2017, Mr M. Follett of Counsel sought permission to appear for the Appellant and Mr M. Seck of Counsel sought permission to appear for Mr Dawson (hereafter “the Respondent”). Given the complexity of the matter, and having regard to section 596 of the Act, permission was granted to both parties to be represented.

The Decision

[4] In reaching his decision, the Deputy President adopted the approach of the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post. 3In particular, the Deputy President stated that:

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable; against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[5] The Deputy President noted that the Respondent changed his story regarding how the alcohol came into his possession during the random search. In any event, the Deputy President found that the Respondent admitted to stealing two beers. Further, the Deputy President found that the Respondent’s explanation for inadvertently taking the other items was not credible. On this basis, 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: [2017] FWCFB 41
Decision Date: 23 JANUARY 2017

CaseChat Overview and Summary

In the case of Qantas Airways Limited v David Dawson, the Federal Court was called upon to review a decision made by the Fair Work Commission (FWC) regarding the employment status of David Dawson, an employee of Qantas Airways Limited. The central dispute revolved around the classification of Dawson's employment, specifically whether he was an independent contractor or an employee, which had implications for his entitlement to certain employment benefits and protections under the Fair Work Act 2009.

The legal issues before the court included the interpretation of the term "employee" under the Fair Work Act and the application of the multi-factor test to determine the nature of the working relationship between Dawson and Qantas. The court needed to consider various factors, such as the degree of control exerted by Qantas over Dawson's work, the extent to which Dawson was subject to the operational requirements of Qantas, and the overall economic reality of the relationship between the parties.

The Federal Court, in its decision, found that the FWC had erred in its interpretation of the employment relationship. The court held that the FWC had placed undue weight on certain factors, particularly the degree of control, while neglecting other significant aspects of the working relationship. Consequently, the court set aside the FWC's decision and remitted the matter back for reconsideration. The court emphasised that the determination of employment status required a balanced assessment of all relevant factors, and that no single factor should be determinative.

Orders