Robert Anthony Richards v Regional Express Holdings Ltd T/A Rex Airlines
[2010] FWA 4230
•3 SEPTEMBER 2010
Note: An appeal pursuant to s.604 (C2010/4908) was lodged against this decision - refer to Full Bench decision dated 12 November 2010 [[2010] FWAFB 8753] for result of appeal.
[2010] FWA 4230 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Anthony Richards
v
Regional Express Holdings Ltd T/A REX Airlines
(U2010/299)
COMMISSIONER BISSETT | MELBOURNE, 3 SEPTEMBER 2010 |
Application for unfair dismissal remedy.
[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal.
[2] The Applicant, Mr Robert Anthony (Tony) Richards was a pilot for Regional Express Airlines (Rex), a position he had held for 14 years. At the time of the termination of his employment Mr Richards was a captain for the airline.
[3] Mr Richards is alleged to have misused company cars (crew cars) in that he drove a car with the handbrake on, drove a car in low gear, changed gears in a car in which he was a passenger while it was in motion and intentionally ‘keyed’ a car (ie scraped a car with a key).
[4] As a result of an investigation into these matters, including two interviews with Mr Richards, Mr Richards’ employment was terminated without notice on 24 February 2010 on the grounds that his conduct constituted serious and wilful misconduct.
[5] Mr Richards subsequently lodged an application seeking relief from unfair dismissal. The matter was not resolved at conciliation and was referred for arbitration.
[6] Applications by the parties with respect to representation and an adjournment were determined separately. 1
[7] Rex is an airline operating in regional parts of Australia. For the purposes of this matter it is enough to acknowledge that Rex operates out of and services from Melbourne the ports of Mildura, Mount Gambier and Burnie/Wynyard (Burnie) 2 amongst others.
[8] Flight crews - captain, first officer and flight attendant - are regularly required to travel overnight. In these circumstances they had, until 2008, used a taxi service to get from the airport to their accommodation and then back to the airport the next morning. In late 2008 the company introduced crew cars at ports, which the flight crew could use to drive to and from their accommodation. Whilst use of the crew cars was not compulsory - taxis could still be used - clearly the intent was that the provision of the crew cars would decrease the reliance on and use of taxis. Whilst the use of the crew cars does not appear to have been a major issue in New South Wales and South Australia there is an indication that the pilots in Melbourne did not embrace the changed policy. This is reflected in the visit of the Chairman of Rex to Melbourne to address Melbourne based staff on this issue.
[9] The crew car could be driven by any of the flight crew with other members of the crew as passengers.
[10] An allegation of misuse of a crew car was made by a flight attendant in early 2010. This allegation led to a broader investigation which subsequently led to the termination of Mr Richards’ employment. Investigations into allegations against two other captains are continuing. 3
[11] Witnesses for the Applicant were:
- Mr Gerard O’Connor (First Officer);
- Mr Lawrie Cox (Manager Industrial Relations, Australian Federation of Air Pilots (AFAP)); and
- Mr Richards (the Applicant).
[12] Witnesses for the Respondent were:
- Ms Fiona Turner (Flight Attendant);
- Mr Brett Morrison (First Officer);
- Ms Lisa Anderl (Flight Attendant);
- Ms Linda Brown (Flight Attendant Supervisor Melbourne);
- Mr Graeme Smith (Manager - Engineering Quality and Regulatory Compliance);
- Mr John Tessarolo (Sydney Flight Operations Manager);
- Ms Donna Griffith (National Flight Attendant Manager); and
- Mr Chris Hine (General Manager Flight Operations and Chief Pilot).
[13] Mr Irving of counsel appeared for Mr Richards and Mr Dalton of counsel appeared for Rex.
Legislative framework
[14] Section 385 of the Act sets out the grounds on which a dismissal may be unfair:
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.
[15] There is no question in this matter that Mr Richards has been dismissed. Rex is not a small business and there is no claim that his termination of employment was a redundancy.
[16] For Mr Richards’ dismissal to be unfair it must be found to be harsh, unjust or unreasonable.
[17] Section 387 of the Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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; and
(h) any other matters that FWA considers relevant.
[18] Mr Richards’ termination of employment was for reasons related to his alleged conduct. Section 387(a) should therefore be read as a reference to his conduct only and not to his capacity and s.387(e) is not a relevant consideration.
[19] In determining if there was a valid reason for the termination of employment based on conduct it is necessary that I determine whether the conduct relied on occurred.
[20] In Edwards v Giudice Moore J observed:
The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found. 4
[21] There can be no doubt that, where the conduct is at issue in the proceedings, I ‘must determine if the alleged conduct took place and what it involved...The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in the termination.’ 5
[22] It is therefore a necessary step that I consider each of the alleged matters of misconduct and determine to my satisfaction if they did, in fact, occur.
[23] Whilst there may be some matters to which Mr Richards has admitted, the extent or the particulars surrounding that conduct are, generally, still at issue and will require findings by me. To this extent I intend to consider each of the instances of alleged misconduct. Based on these findings I will consider each of the matters as required under s.387 of the Act.
[24] The Respondent accepts that it is for them to prove the existence of a valid reason for the dismissal on the balance of probabilities. 6
Alleged Misconduct
[25] There are a number of alleged incidents of misconduct. The final charges of misconduct relied on by Rex were outlined in submissions by counsel for Rex: 7
(i) That the Applicant, on the evening 21 January, deliberately drove a crew car in low gear at speeds of 40 or 50 kilometres an hour from the Burnie Airport to the accommodation, causing the engine to rev excessively. 8
(ii) That the Applicant [on the evening of 21 January] deliberately drove a crew car with the handbrake on from the Burnie airport to the milk bar on the corner of Saunders and Goldie Sts. 9
(iii) That, on 21 January, the Applicant deliberately and maliciously scratched the back of the car with a key. 10
(iv) That, on at least one other occasion before 21 January 2010 the Applicant deliberately misused the crew car by driving it in either or both of low gear and with the handbrake on which caused the engine to overheat to the point that you could smell it. 11
(v) That, on 7 February 2010, the Applicant deliberately misused the Burnie crew car by putting the gear stick out of drive and into low gear while he was a front seat passenger and while First Officer Jordan Moras was driving the car at speeds approaching 50 kilometres per hour. 12
(vi) That, on 8 February, the Applicant threw away the maracas or castanets that were used for tracking the crew car key out the window. 13
(vii) That, on 17 and 18 February the Applicant provided dishonest responses [in his interviews with Mr Hine]. 14
[26] Following an internal investigation Mr Richards was interviewed by Mr Hine (General Manager Flight Operations and Chief Pilot) on 17 and 18 February 2010. Mr Richards was represented at these meetings by Mr Cox from the Australian Federation of Air Pilots (AFAP).
[27] Allegations (i), (ii), (iii) and (v) were put to Mr Richards during the interview process although the actual dates to which the allegations related were not put with the specificity set out here. The allegations at (iv) and (vii), above, were put during the proceedings.
The investigative process
[28] The investigation that ultimately led to Mr Richards’ termination of employment commenced following a report made to Ms Brown (Flight Attendant Supervisor for Melbourne-based Flight Attendants) by a Townsville based flight attendant about the abuse of a crew car by a captain (not Mr Richards). As part of a follow up to this Ms Brown talked to a number of Melbourne based flight attendants on 1 and 2 February 15 about their knowledge of abuse of crew cars. She sent a report of these discussions to a Mr Derek Telford.16 Some flight attendants lodged reports on the company’s Safety Management System (SMS).
[29] At or about the same time Mr Tessarolo (Sydney Flight Operations Manager), as part of his job as an SMS Investigator, looked in detail at SMS reports which had come in on crew car misuse. These were enough to warrant further investigation by Mr Tessarolo.
[30] Arising from one of the SMS complaints Mr Tessarolo identified Flight Officer Brett Morrison as a crew member who may have been on one of the overnight flights where some of the alleged abuse of a crew car occurred. Mr Morrison subsequently advised Mr Hine in an interview that he had witnessed Tony Richards (the Applicant) driving the crew car in first gear and with the handbrake on. Having determined that Ms Anderl was the flight attendant on the roster with Mr Richards and Mr Morrison, Mr Tessarolo spoke to Ms Anderl and asked her if she had seen Mr Richards drive the crew car with the handbrake on. 17
[31] Mr Tessarolo provided his written report on crew car misuse to Mr Hine on 5 February 2010. This included some of the material on SMS, Mr Tessarolo’s assessment of who the ‘primary offenders’ were, details of the relevant events and photographs of alleged damage done to crew cars at Mildura, Burnie and Mount Gambier. 18
[32] Following Mr Tessarolo’s report Ms Griffith (National Flight Attendant Manager) along with Ms Brown formally interviewed five flight attendants with respect to what they had seen or heard of misuse of crew cars and Mr Hine interviewed a number of first officers on the same matter.
[33] Ms Griffith submitted her notes of the interviews she and Ms Brown conducted on 11 February with five flight attendants to Mr Hine on 12 February 2010. 19 Ms Griffith identified Captains Glen Matthews, Nick Ross and Tony Richards, First Officer Gerard O’Connor and a captain who has since left the company as those named by the flight attendants as having abused the crew cars. Her notes of the interviews suggest that all flight attendants interviewed had witnessed a range of behaviours though in direct evidence she conceded that each flight attendant had actually only witnessed some of the behaviour.20
[34] Mr Hine conducted his interviews with 10 first officers on 12 February. Notes of these interviews were kept by Mr Hine. 21 Mr Hine’s witness statement suggests that most of the flight officers had ‘heard’ about a range of behaviours but only one (Mr Morrison) was prepared to be specific about what he had actually seen.22
[35] Arising from the report and interviews and as the next step in the investigation Mr Hine determined to meet with Mr Richards to put specific allegations to him. 23 This meeting occurred on 17 February 2010 at the offices of the AFAP. Mr Hine was accompanied by Ms Westblade from Rex. Ms Westblade kept notes from the meeting.
[36] During the interview on 17 February 2010 Mr Richards sought details of the dates the alleged abuse of the crew cars was meant to have occurred. Mr Hine advised him that the dates were 21/22 January, 24 31 January/1 February and 7/8 February. Mr Hine however was of the view that Mr Richards did not need this information to respond to the allegations. I deal more with this issue in respect to charge (vii) below.
[37] A subsequent interview by telephone was held with Mr Richards on 18 February 2010. Again Mr Hine conducted the interview, Ms Westblade took notes and Mr Cox was also present.
[38] During these two meetings the allegations in (i), (ii), (iii) and (v) were put to Mr Richards. It was Mr Hine’s view that he had credible witnesses to the alleged incidents. 25 As a result of these allegations and the response provided by Mr Richards, Mr Hine determined that Mr Richards’ employment should be terminated. This was conveyed to Mr Richards in a meeting and by letter on 24 February 2010. Termination was without notice.
[39] Much was made in these proceedings by both the Respondent and the Applicant of the accuracy of notes taken by various people at various times during the investigation process and interviews. All of the notes relied on in this matter - apart from the SMS reports themselves - are a particular person’s notes of what others have said and not the specific account of the individual themselves - whether it is the notes of the interview of Mr Richards conducted by Mr Hine or the notes taken at various times by Ms Griffith or Ms Brown. As Mr Hine observed at one point the notes of his meetings with Mr Richards are not a Hansard. 26 This being the case, and admitted by Mr Hine, care needs to be taken in making much of the descriptive words used to record what is, essentially, the same event. An individual’s career cannot and should not rest on whether someone has taken note of them as having emphatically denied something or as having simply denied the matter.
[40] That said however, where an employer is undertaking an investigation into conduct that may lead to disciplinary action, an accurate record of meetings is essential, particularly where the record is of an interview with an individual under investigation and that investigation may lead to disciplinary action including dismissal.
[41] Following is a consideration of each of the specific allegations of misconduct made against Mr Richards and set out by Rex in oral submissions.
Drove a car with the handbrake on
[42] This incident is said to have taken place on an overnight trip to Burnie on 21/22 January 2010. Mr Richards was the captain on that flight, Mr Morrison was the first officer and Ms Anderl was the flight attendant.
[43] It is not disputed that the flight got into Burnie at about 8.00 pm (its scheduled time). Each of the crew did those things required of them on arrival. They then proceeded to the car (not all together). Mr Richards was driving the car, Mr Morrison was in the front passenger seat and Ms Anderl was in the back seat. I note that Mr Morrison and Ms Anderl gave differing evidence as to where in the back seat she was sitting. Mr Morrison stated she was seated ‘behind Tony’ 27 (Mr Richards) while Ms Anderl said she was seated behind the First Officer.28
[44] The trip to the accommodation from the airport appears to involve taking a right hand turn out of the airport, turning left into Airport Drive, right in Dodgin Street and left into Saunders Street. 29 The distance from the airport to the accommodation is approximately 2.0 km in total (based on Google maps). The following distances may also be relevant to these considerations:
Airport to Goldie Street: | 620m |
Beginning of Saunders Street to Goldie Street: | 220m |
Goldie Street to accommodation: | 1.38km |
[45] It is also relevant to this matter that the crew car in Burnie - a Nissan Tiida - emits a series of short beeps if the car is driven with the handbrake on 30 although evidence was given that this beep is like the ‘seat belt beep’31 or other warnings in the car.32
[46] Ms Anderl gave evidence that Mr Richards drove with the handbrake on from the (airport) carpark on the basis that she could hear the beeping indicating that the handbrake was on. 33
[47] Mr Morrison gave evidence that he heard the beeping sound just before the car turned onto Saunders Street and that it was about halfway along Saunders Street to Goldie Street that he realised the handbrake was on. Mr Morrison told Mr Richards that the handbrake was on. Mr Richards did not verbally acknowledge this statement although he looked at Mr Morrison in a way which suggested to Mr Morrison that Mr Richards had understood what he had said. 34
[48] At Goldie Street the car pulled up at a milk bar where each of the crew bought fish and chips for their dinner. In getting back into the car the evidence of Mr Morrison and Ms Anderl is that Mr Richards commenced driving again with the handbrake on but Mr Morrison released it almost immediately as the car moved off. 35
[49] Mr Richards, in his first witness statement, denied driving with the handbrake on 36 although in his reply statement he says that he has no recollection of driving with the handbrake on so cannot emphatically deny the allegation or evidence of Mr Morrison and Ms Anderl. 37 Mr Richards admitted that it might be possible that he did drive with the handbrake on38 although he did maintain, under cross examination, that he had no recollection of the event in question.39
[50] The notes of Mr Richards’ interview with Mr Hine on 17 February are that he said he had no recollection of driving with the handbrake on. 40 Much was made in cross examination as to whether Mr Richards emphatically denied he had driven with the handbrake on, had no recollection of driving with the handbrake on or had no recollection of the event itself. Ultimately the direct evidence of Mr Richards is that he cannot recollect driving with the handbrake on. This is consistent with his statement to Mr Hine on 17 February.
[51] It should be noted that Mr Richards is a trained pilot. Part of that training involves ‘situational awareness’ training and it is a thing against which a pilot is regularly assessed. 41 Situational awareness was described by Mr Richards as ‘keeping an eye on the big picture, thinking ahead of the aircraft, potential problems. So it’s just being aware of the surrounding environment, anticipation’42 and includes an awareness of instruments under the pilot’s control.43
[52] I accept the evidence of Mr Morrison as reliable with respect to this matter. He was forthright and clear as to his recollections of this trip and did not seek to exaggerate or fill in gaps in his evidence. If he was distracted by other events - using his phone for example - such that he did not hear or observe something he said so.
[53] On the evidence of Mr Morrison I believe that Mr Richards drove the car with the handbrake on. He did this from the airport precinct to the corner of Goldie and Saunders Streets, a distance of approximately 620 m. I accept that the handbrake was released by Mr Morrison as the car started to move off after having stopped at the milk bar where dinner was purchased.
[54] Further I accept the evidence of Mr Morrison that Mr Richards knew he had the handbrake on. Mr Morrison spoke to Mr Richards about it, to which Mr Richards responded with a ‘look’, there was continual beeping from the car’s warning system and Mr Richards has training in situational awareness. Further Mr Richards attempted to drive off a second time with the handbrake on (from the fish and chip shop). Driving once with the handbrake on unwittingly may arguably be an oversight, but doing it twice suggests otherwise and is not, in my opinion, excusable. I have no evidence that Mr Richards was not fit to drive. I must conclude therefore that he deliberately drove with the handbrake on.
[55] I therefore find that Mr Richards did deliberately drive a crew car with the handbrake on on 21 January 2010.
Drove the car in low gear
[56] This incident is said to have taken place on the same overnight trip to Burnie on 21/22 January 2010 described above.
[57] The allegation is that Mr Richards drove the car in low gear from the airport to the accommodation (approx. 2.0 km) while driving at speeds of 50 km/h, causing the engine to rev excessively. In conjunction with the first allegation this means that Mr Richards drove at least part of the distance from the airport to the accommodation with the handbrake on and the car in low gear.
[58] In his interview with Mr Hine on 17 February 2010 Mr Richards admitted that he may have driven the car in low gear for a period of time. 44
[59] Mr Richards gave oral evidence that he recalled driving some of the way from the airport to the accommodation in first gear. 45 He did not seek to challenge the evidence of Mr Morrison and Ms Anderl with respect to driving the car in first gear46 but did challenge their evidence that he drove the whole way to the accommodation in first gear.47
[60] Mr Morrison gave evidence that, as the car travelled onto Saunders Street, he realised it was ‘revving fairly hard for the speed we were doing’ 48 although he admitted that he was at the time ‘preoccupied with the handbrake being on.’49 Further, he gave evidence that, after stopping for fish and chips in Goldie Street, it wasn’t until they were almost at the accommodation - where the street does a little “S” that he really noticed it was ‘revving harder.’50 He gave no evidence that Mr Richards had driven all the way from Goldie Street to the accommodation in low gear.
[61] Ms Anderl’s written testimony is that Mr Richards drove the car from the milk bar to the accommodation in first gear and that she effectively asked him to take the car out of first gear and put it in drive, to which Mr Richards laughed and said something she could not recall. 51 To the extent that Ms Anderl’s evidence corroborates that of Mr Morrison I accept her evidence on this matter.
[62] On the evidence I find that Mr Richards did drive the car in first gear for some of the trip from the airport to the accommodation. I find so on the basis of the admission by Mr Richards but also on the evidence of Mr Morrison and Ms Anderl.
[63] There is no basis on which I could conclude that Mr Richards drove the entire way from the airport to the accommodation with the car in first gear. Mr Morrison had not noticed the car revving higher than normal after Goldie Street when the beeping sound associated with the handbrake was no longer occurring. I would anticipate that, without that distraction, any abnormally high revving of the engine would have been more noticeable.
[64] In his interview with Mr Hine on 18 February 2010 Mr Richards suggested that he drove the car in low gear to test the car out as he was thinking of buying that type of car for his daughter. 52 There was a suggestion in the notes of the meeting that Mr Richards came up with this answer after he was prompted by Mr Cox. Mr Cox refuted any claim that he had in any way ‘cooked up or designed an answer’ for Mr Richards. I accept Mr Cox’s evidence on this matter. In any event, however, the reason for driving the car in low gear does not alter the fact that it occurred.
[65] The misconduct complained of is that Mr Richards deliberately drove the car in the manner described. On his own admission I find that Mr Richards did drive the car in first gear and did so deliberately.
Scratched the back of the car
[66] The next charge of misconduct is that, again on the night of 21 January, Mr Richards deliberately scratched the back of the car.
[67] Mr Richards has denied this allegation. The evidence relied on by the Respondent is that of Ms Anderl as to the actions of Mr Richards and of Mr Tessarolo as to the damage to the car. Mr Morrison, while present at the time of alleged incident, did not observe any of this.
[68] Ms Anderl’s evidence is that, on arriving at the accommodation on the evening of 21 January 2010, she saw Mr Richards ‘using the keys for the Tiida scratching the bumper bar across the back of the boot (sic).’ 53
[69] Ms Anderl stated during cross examination that:
-?---...all I can tell is what I saw and at that time he had his nav bag in his left hand, he had his keys in the right. We were about to walk off and he scratched the car. Now, that’s what I saw. 54
[70] After considering the photographs of damage to the Burnie crew car attached to Mr Tessarolo’s second statement 55 Ms Anderl then stated:
---I’m not sure which scratch mark Tony did. I only saw the actions. I didn’t look around to see precisely where it was. I saw what he did.
So you saw his arm move?---Yes, that’s right.
You didn’t see a scratch appear on the car?---No, I didn’t look at it. 56
[71] Under re-examination Ms Anderl stated that Mr Richards ‘had his nav bag in his left hand and the keys to the Tiida in his right, and just - it was a sweeping motion.’ 57
[72] Mr Tessarolo submitted a written statement and gave sworn evidence of the investigations he carried out as a result of broader allegations of misuse of crew cars. In particular he says that he rang Rex’s ground agents in Mt Gambier and Burnie and
asked them to take photos of the crew cars to identify any damage that has occurred and to see whether the condition of the vehicles was consistent with the reports [he] had received. A number of different photos were provided to [him] by the agents and [he] included those photos in the [5 February] investigation report. 58
[73] A copy of that report and the photographs is attached to Mr Tessarolo’s first written statement. 59
[74] There is only one photograph of the Burnie crew car in the 5 February report of Mr Tessarolo and it does not show any damage of the type complained of in this particular allegation. Mr Tessarolo agreed that this was the case. 60 There is otherwise no evidence of the alleged damage to the Burnie crew car at or shortly after the time the incident is said to have taken place.
[75] As part of the preparation for these proceedings Mr Tessarolo and a representative of the solicitors for Rex travelled to Burnie and took photographs of the Burnie crew car. These photographs were taken on 9 July 2010,61 more than 4 ½ months after the alleged incident. These photographs are attached to Mr Tessarolo’s second witness statement. 62 The three scratches were specifically identified on photograph 6 in that attachment and were, for ease of identification, marked ‘S1’, ‘S2’ and ‘S3’.
[76] The evidence of Ms Anderl would suggest, at best, that Mr Richards scratched the car once. No suggestion has been made that Mr Richards repeatedly on this or any other trip scratched the car with a key. The photographic evidence would suggest that someone else has been scratching the crew car in Burnie if there are (and it was so accepted) three scratches on the back of the car.
[77] The lack of evidence of the state of the Burnie crew car closer to the time the misconduct is alleged to have occurred is of concern. The company commenced the investigation into the allegations of abuse of the crew cars in early February 2010. This specific allegation of scratching the car was put to Mr Richards on 17 February 2010 but it was not until 9 July 2010 that any actual evidence of the alleged damage to the car was gathered. Until 9 July 2010 this charge of misconduct - possibly the most serious of the charges - is based solely on Ms Anderl observing a sweeping motion of Mr Richards’ right arm.
[78] I can have no way of knowing what has or hasn’t happened to the crew car between 22 January and 9 July 2010. The car is at Burnie for the use of the crew. I must assume, there being no evidence to the contrary, that the car has been used since the alleged incident on 21 January 2010.
[79] The submission by counsel for Rex that the lack of conclusive evidence of a scratch from the photographs included in Mr Tessarolo’s report of 5 February is not conclusive either way 63 is true. However, it does leave a very long period of time where there is no evidence of damage to the car up to a point in time where there are three scratches with purported evidence as to how only one of those may have got there. Their further submission that the photographs of 9 July are also not conclusive is not helpful in the least. The Respondent placed this material into evidence but now asks me to accept that they are conclusive of nothing. I cannot ignore this evidence nor the gap in it.
[80] Even if I did ignore the photographs because they are ‘not conclusive’ the only evidence left to me is that of Ms Anderl that she saw a sweeping motion but did not hear or see a scratch left on the car at the time in question and no evidence of actual damage to the car.
[81] On the basis of the evidence of Ms Anderl and Mr Tessarolo I cannot find that Mr Richards ‘deliberately and maliciously’ or otherwise scratched the back of the car with a key.
Drove the car in either or both of low gear and with the handbrake on
[82] Ms Anderl, in her written witness statement claimed that, in response to her asking Mr Richards to take the car out of first gear that he stated ‘“[y]ou should have seen the last car I drove we had it so hot by the time we pulled up you could smell the engine” or something similar.’ 64
[83] Mr Morrison was in the car at this time but gave no evidence of having heard the comment.
[84] Counsel for Rex, on this matter, submitted that:
The next allegation is deliberately misusing a crew car in a similar way. I think it’s self-explanatory. It’s an admission. It’s evidence and admission. If you’re satisfied that that occurred in circumstances where the Applicant was in no position to deny it, we say it follows that he has admitted that he has previously mistreated a crew car before 21 January, and that is further evidence of misconduct and significantly it establishes that this was by no means an isolated incident. 65
[85] There is no admission from Mr Richards that it is the case that he, at some other time before 21 January 2010, deliberately misused the crew car by driving it in either or both low gear and with the handbrake on which caused the engine to overheat to the point that you could smell it. When interviewed by Mr Hine Mr Richards was in the position of not knowing the exact dates of allegations against him. His answers reflect the lack of specificity in this respect. I can find no basis for making the extrapolation sought by the Respondent in this allegation.
[86] Without further evidence there is no basis on which I can find that Mr Richards did as claimed.
Changed gear while someone else was driving
[87] This claim relates to an alleged incident said to have occurred on 7 February 2010 when Mr Richards was on a trip to Burnie. Mr Moras was the flight officer and Ms Turner the flight attendant.
[88] Ms Turner in her written witness statement says that Mr Moras was driving the car, Mr Richards was in the passenger seat in the front and that she was in the rear of the car. She says that as soon as Mr Moras drove away from the airport Mr Richards grabbed the gear stick and put the car in low gear. When he did this she says the car was going at about 50 km/h and started to rev loudly. She further states that, on approaching Goldie Street (500-600 metres into the trip) she said ‘stop it’ and either Mr Moras or Mr Richards put the car back into gear. 66
[89] Ms Turner was extensively cross examined on the names of the streets that had been driven that evening. I do not consider it particularly relevant that she could not identify the streets by name. I accept that it is likely she knows the route taken from the airport to the accommodation without reference to a map and without knowing street names.
[90] Ms Turner’s evidence under cross examination was that Mr Richards shifted the gear stick whilst they were still driving within the airport complex and before they got onto the first ‘named’ road (Lewis St). 67 Further she suggested that the car had got up to ‘around’ 50 km/h in a distance of about 50 metres.68 She did not resile from her version of events that evening.69
[91] Ms Turner was interviewed four days after this alleged incident by Ms Griffith and Ms Brown as part of their investigation into the misuse of crew cars. The events she outlined in that interview accord with the evidence she gave under oath. 70
[92] Mr Richards’ evidence is that on that trip he was seated in the back seat of the car. He particularly remembers this as he had forgotten a book and had to go back and get it. When he returned from collecting the book Ms Turner was in the driver’s seat and Mr Moras in the front passenger seat. 71 It was put to Mr Richards and he denied that he was confused and that this had been the seating configuration the following day on the return trip to the airport.72
[93] Mr Richards denied that he had manipulated the gear stick. 73
[94] Mr Richards’ denial under oath is consistent with the statement he made to Mr Hine in the interview of 18 February 2010 where he said that ‘he could not recall and honestly doubted it to be the case’ and that it was ‘highly improbable’ that he had manipulated the gear stick whilst a passenger in the car. 74 Mr Richards made this denial without any reference to the actual date of the alleged incident.
[95] With respect to this particular matter (as in the next) there are two distinct and different versions of the events - that of Ms Turner and that of Mr Richards. The third person in the car - Mr Moras - was not called as a witness by either party. The only mention of Mr Moras is in the notes of interview taken by Mr Hine during his investigation into the misuse of crew cars. These notes are exhibited to Mr Hine’s witness statement. 75
[96] Mr Hine’s notes do not record Mr Moras as confirming that any particular actions took place or that he witnessed any particular conduct. All the notes confirm is that Mr Hine recorded Mr Moras indicating that misuse of cars definitely happened. 76 This is not evidence of Mr Moras having seen anything. It may well be that he had ‘heard about it’ or had been ‘told’ about it by someone else as was the case with a number of other First Officers.77
[97] Counsel for Mr Richards suggested I could and should draw a Jones v Dunkel inference from the failure of Rex to call Mr Moras and that ‘the conclusion that [I] should draw from their failure to call their employee Mr Moras, is that his evidence would not have supported that of Ms Turner.’ 78
[98] Counsel for Rex sought to remind me of what Jones v Dunkel stands for and submitted that, in any event, I could draw an inference in relation to either party. 79 This was based on their view that it was also open to the Applicant to call Mr Moras or have him summonsed.80 They submitted in any case that their failure to call Mr Moras could be rationally explained because he, Mr Moras, had been a party to the conduct that was complained of in that he laughed and continued to drive the car after it had been put into low gear by Mr Richards.81 They submitted that Mr Moras was unlikely to give evidence willingly. On this basis they say there is a rational explanation for their failure to call Mr Moras.
[99] The relevant legal principles arising from Jones v Dunkel are well known. They are conveniently summarised by the Full Bench of the AIRC in King v Freshmore. 82 I do not intend to repeat them but to mention specifically an additional principle83 not canvassed by the Full Bench in that matter. That is that:
...the principle in Jones v Dunkel may apply to both parties; if so, the operation of the principle is not that the failure of one party excuses the failure of the other, but that competing inferences that the uncalled evidence would not have assisted either party arise, and that the trier of fact must consider the evidence which is before it in the light of those inferences. 84
[100] I have applied the principles relevantly to both parties in this case.
[101] Mr Moras is an employee of Rex. His evidence is more likely to have been known to the Respondent than the Applicant. The Respondent had interviewed Mr Moras on 11 February 2010. 85 At this stage the Respondent had a firm view of those it believed were misusing crew cars and the extent of the misuse.86 By the time of Mr Moras’ interview Mr Tessarolo’s report has been provided to management, including Mr Hine.87 On 12 February Mr Hine received a report from Ms Griffith where “FA 1” indicated the details relating to this particular charge against Mr Richards. Mr Moras was mentioned in that report.88
[102] Counsel for Rex argued that Mr Moras would be unlikely to willingly give evidence in this matter as he was a party to the conduct. At worst Mr Moras did not shift the car back into the correct gear straight away. There is contradictory evidence that Mr Moras was party to the conduct - Mr Richards says the conduct did not occur.
[103] Mr Moras indicated a reluctance to provide specific information to Mr Hine 89 but reluctance on the part of a potential witness did not deter Rex from having other witnesses summonsed to appear who wished to ‘remain anonymous and for their information to be treated confidentially’.90 That Mr Moras may not have come willingly is no reasonable explanation in these circumstances for the failure of the Respondent to call him. At the time the summons sought by Rex were issued, Rex knew of Mr Richards’ denial of this particular allegation.
[104] The failure of Rex to call Mr Moras is not excused by the failure of the Applicant to call Mr Moras.
[105] The inference I can and do draw from the failure of Rex to call Mr Moras is that Mr Moras’ testimony would not have assisted the case of the Respondent in this matter.
[106] Would it be reasonably open to expect Mr Richards to have called Mr Moras? I do not believe so. Mr Moras had indicated to Mr Hine that he believed that misuse of cars was occurring. The Applicant in this matter knew nothing of the likely evidence of Mr Moras or the evidence of Ms Turner until her written statement was filed 8 days before the commencement of the hearing.
[107] This being the case I do not believe that I can conclude it would be reasonably open to the Applicant to call Mr Moras.
[108] The alleged behaviour in this instance is similar to that to which Mr Richards has admitted - that (on 21 January 2010) he drove the crew car in Burnie in low gear. He admitted to that as early as 17 February 2010.
[109] I remain perplexed as to why neither party sought to call Mr Moras, who could have resolved the issue.
[110] On the balance of probabilities however I cannot find that the conduct occurred. The evidence of the two witnesses called on the matter is contradictory. The third person who may have shed some light on events was not called. I have inferred that his evidence would not have assisted the Respondent in this instance.
[111] There is an obligation on the employer to prove that the conduct occurred. They have failed to do so.
[112] I am unable to find, on the balance of probabilities, that Mr Richards put a car into low gear while another person was driving.
Threw maracas out the window
[113] The incident with the maracas occurred the day following the incident alleged immediately above. The charge is that Mr Richards threw the maracas out of the window as Ms Turner was driving the crew car to the airport on 8 February 2010.
[114] It is said that the maracas are attached to the key ring of the crew car. They are large and designed to stop the keys being misplaced.
[115] Ms Turner’s written evidence is that, when she returned the car keys on the morning of 8 February she said to the ground staff words to the effect that ‘if you are wondering where the maracas are Tony threw them out the car window.’ 91 Under cross examination Ms Turner said she said to the ground staff ‘I didn’t throw the maracas out the window, so don’t blame it on me, because I was driving.’92 Later she said:
I just know that it was the ground staff at Rex working there, and I said to them, “I’m sorry, the maracas are unattached to the keys. I wasn’t the one that threw them. Don’t blame it on me because I’m driving. It was Tony Richards,” and that’s it. That’s all I said. 93
[116] The following day Mark Hatten from Burnie Airport sent an email to Andrew Lee indicating that the castanet (the maracas) from the crew car had gone missing the day before and that Moras/Richards had signed the car out the day previous to this and returned it on 8 February. 94 There is no mention in the email of who was responsible for the loss of the maracas nor that the staff had been told they had been thrown from the window of the car - just that they were missing.
[117] This email with a further message was forwarded to Ms Brown amongst others. Ms Brown then forwarded the email to Mr Hine, amongst others, on 9 February 2010. The allegation that Mr Richards had thrown the maracas out of the window of the car was not included in either of these emails. The allegation was not put to Mr Richards in the interviews of 17 and 18 February 2010.
[118] In forwarding the email message to Mr Hine, Ms Brown added the comment that she felt like a ‘Kindergarten Teacher’ 95 but no evidence was given as to why she felt this way. There was no indication in the email from the ground staff of how the maracas got lost. Ms Brown, in her witness statement says she can ‘recall Fiona [Turner] telling me that on her last overnight with Tony she witnessed Tony throw the maracas...out the window of the crew car’96 but she cannot recall when Ms Turner told her that.
[119] In the notes of interviews with the flight attendants undertaken on 11 February - three days after the alleged incident - Ms Turner did not raise this matter with Ms Griffith and Ms Brown and it does not appear that it was raised with Ms Turner even though Ms Brown felt inclined to make a remark about the matter in an email sent two days beforehand.
[120] Ms Turner was driving the car when this incident is alleged to have occurred. In her written statement she says she ‘told Tony that he should go back and get the maracas and he said no.’ 97 However, she was driving and could have turned the car around and retrieved the maracas. For reasons not explored she didn’t or did not feel she could.
[121] What is not clear is how the maracas became unattached from the keys or why Mr Richards had the maracas. He at no stage on this trip was driving the car (on either version of events of the day before) so would not have had the keys to the car.
[122] Ms Turner’s written statement is that the maracas are ‘quite large and annoying but usually we remove the maracas from the key when we are out for dinner and then attach them again when we return the keys.’ 98 During her oral evidence she stated that ‘we ate, I think, at the accommodation that night.’99 On this basis the maracas would not have been removed from the keys.
[123] Mr Richards’ evidence is that he denies throwing the maracas out the window or swearing as stated in Ms Turner’s statement. 100
[124] When asked directly of the alleged incident Mr Richards stated:
---The maracas or castanet are attached to the keys so that they’re not misplaced. They’re always on the key, I again sat in the back seat behind Fiona. She drove, Jordan sat in the back seat beside me. Maracas as far as I’m aware are attached to the keys, which would’ve been in the ignition and Fiona was driving. 101
[125] Again, the third party in the car was not called to give evidence by either party.
[126] I cannot find, on the balance of probabilities, that Mr Richards threw the maracas out of the car window.
Provided dishonest answers
[127] In submissions the Respondent put that:
There is a final matter and it’s related to the way that the Applicant responded to some of these allegations on 17 and 18 February. That is, he provided dishonest responses and that in itself provides a valid reason for dismissal, as well. It’s a Streeter v Telstra-type argument. 102
[128] In Streeter v Telstra Corporation Ltd 103 (Streeter) a majority of the Full Bench of the AIRC found that dishonesty in the investigation process constituted a valid reason for dismissal in that it destroyed the relationship of trust and confidence between the employer and employee.104
[129] In Streeter the Applicant was
...unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or states that she had “no comment”. She also claimed a lack of memory...[She] concede[d] she lied to Telstra during the investigation.
Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to effect (sic) her work. 105
[130] The submissions of the Respondent in this case with respect to dishonesty were that:
...in light of the general observations...made earlier as to the Applicant’s evidence, in particular the reply statement, the tribunal can and should be satisfied that the Applicant in fact well knew that he’d deliberately driven the car at Burnie with the handbrake on and that his response to the effect that he had no recollection of it is false. So his answer on 17 February, when he was asked a direct question by Mr Hine, was dishonest.
Further, the tribunal can and should be satisfied that the Applicant’s daughter excuse regarding the allegation of driving the Burnie crew car for an extended time in low gear was false. Further, the tribunal can be satisfied that he well knew that he had put the gear in low gear when in the front passenger seat and that to say about 10 days later, “I honestly don’t recall and honestly doubt that to be the case,” and, “I can’t remember and it’s highly improbably,” was false. So those are the three responses on 17 and 18 February that we say the commission can be satisfied were false. It flows from the earlier findings of misconduct and also any reasonable assessment of the evidence that the Applicant has given in this case, starting from this first statement of 22 April, going through to his oral evidence. 106
[131] The problem I have with this line of reasoning is that Mr Hine, in interviewing Mr Richards on 17 and 18 February, consistently refused to provide Mr Richards with specific dates on which he is alleged to have committed the acts complained of. In fact it was Mr Hine’s view that he ‘did not consider it necessary’ that Mr Richards be given the dates of the allegations in order to respond to them. 107 When Mr Hine did give dates, after being pressed at the meeting on 17 February, two of those dates were not relevant to the allegations put. The allegations put on 17 February all related to incidents now said to have occurred on 21 and 22 January. The allegations relating to 7 and 8 February were not put until 18 February. No allegations have ever been made with respect to 31 January/1 February.
[132] So when it is put by the Respondent that Mr Richards should have been able to remember what he did 10 days before 18 February, that may well be true. But Mr Richards had no idea whether he was being asked about something he did 10 days or 10 weeks earlier because Mr Hine didn’t think the dates were relevant. Perhaps if Mr Richards was asked what he did on 21 January or 7 February a different answer may have been given.
[133] Whilst I can find that the answers Mr Richards gave during the investigation were incorrect based on my findings above, I also find that the questions asked were of such a broad nature with no specific dates that it would have been difficult for Mr Richards to be as specific as Rex may think he should have been.
[134] A proper investigation into incidents of misconduct should allow the interviewee a reasonable opportunity to respond to the allegations. There is no doubt that Mr Richards was under pressure at this time. He had been stood down; his job was in jeopardy; and his private life was far from settled. He was, in my view, entitled to have allegations put to him with a level of specificity that would enable him to answer those questions. Basic principles of natural justice require this. This did not, in my opinion, occur. This does not, however, excuse his conduct.
[135] When asked in the interviews of 17 and 18 February Mr Richards’ responses to the allegations, as recorded in the notes of the meeting, were:
- Flatly refuse (sic) to keying the car;
- May have driven the car in a low gear;
- No recollection of driving with the handbrake on at all;
- He did not recall and did not believe it to be the case that he had manipulated the gears while someone else was driving. 108
[136] On the basis of this record of the meeting I cannot conclude that Mr Richards provided dishonest answers. His answers were not a direct ‘yes’ or ‘no’ but they reflect the way in which the questions were put to him. Mr Richards had the right to couch his answers at the time of these interviews in the way that he did.
[137] I do not find that Mr Richards gave dishonest answers with respect to the alleged incidents of 7/8 February or driving the car in low gear on 21 January. While I found that Mr Richards did drive the car with the handbrake on his answer to Mr Hine is not necessarily dishonest. It might be characterised as evasive. In any event I do not find the answer given by Mr Richards to the questions and the circumstances in which it was given to be such that it fits the standards established in Streeter such that the answer has destroyed the trust and confidence between the Respondent and Applicant.
Was Mr Richards unfairly dismissed
[138] In determining whether Mr Richards was unfairly dismissed I need to consider if the dismissal was harsh, unjust or unreasonable. In determining this I must have regard to each of those matters in s.387(a)-(h). In reaching my decision I have had regard to all of the material put before me and the submissions made by both parties.
Valid reason
[139] Mr Richards was alleged to have committed seven separate acts of misconduct. Based on the evidence before me I have concluded that only two of these occurred. These are that Mr Richards deliberately drove a crew car in low gear from Burnie Airport to the accommodation, causing the engine to rev excessively and that Mr Richards deliberately drove the crew car with the handbrake on from Burnie airport to the corner of Saunders and Goldie Streets. Both of these events occurred on 21 January. Of the other five matters I can not conclude on the balance of probabilities that they occurred. The Respondent, in each of those matters, failed to show that it was the case. Mr Richards admitted that he drove the crew car in low gear and did not contest that he had driven with the handbrake on.
[140] Do these two counts of misconduct constitute a valid reason for the dismissal?
[141] For a reason to be valid it must be sound, defensible or well founded. 109
[142] That the conduct occurred does not automatically make the termination valid. ‘The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.’ 110
[143] In this case the conduct did occur. It was conduct that at its best was foolish and silly from a person in the position of responsibility of a captain. At worst the conduct was wilful, may have put others in danger, and showed a scant disregard for the employer’s property.
[144] Mr Richards was under pressure in his personal life. He ‘load shedded’ while flying to ensure he concentrated fully on the task at hand. 111 To get into a car and think he did not need to concentrate on the task at hand - driving safely - put himself, his passengers and potentially members of the public in danger. Whether he was on or off duty at the time is neither here nor there in my opinion. He was driving a company car, he had fellow staff in the car with him, he was travelling to and from work. He did not have to drive the car himself - any of the three could have driven - and if none were capable of driving they could have taken a taxi. He did none of this. Instead he got behind the wheel of a car and he drove it deliberately with the handbrake on and deliberately in low gear for an extended distance.
[145] Clearly there was a level of antipathy of Melbourne pilots to driving the crew cars 112 which would appear to have manifested itself in some petulant and inappropriate behaviour in the crew cars. Whether this was the reason for Mr Richards driving the crew car as he did has not been shown.
[146] His actions, however, were deliberate.
[147] In all of the circumstances I find there was a valid reason for his termination.
Notified of the reason
[148] Mr Richards was notified of the reason for his termination by letter.
An opportunity to respond
[149] Mr Richards was interviewed twice in the course of the investigation into his conduct. I have expressed above my concerns about the lack of detail given to Mr Richards in the course of the investigation and the implications then for the Respondent’s complaint that Mr Richards was not forthright or did not answer ‘yes’ or ‘no’ to the questions asked.
[150] Mr Richards was however given an opportunity to respond to those allegations put to him in the course of the investigation. He was also directly asked about a number of additional matters in the course of the hearing and was given the opportunity to respond to those.
Support person
[151] Mr Richards had his AFAP representative present during the interviews conducted with him.
Unsatisfactory performance
[152] This matter did not relate to unsatisfactory performance.
Size of the enterprise
[153] This is not a relevant consideration in this case.
Absence of dedicated HR
[154] This is not a relevant consideration in this case.
Any other matters FWA considers relevant
[155] The matters which may be considered under s.387(h) are broad and not restricted subject to relevance given the particular circumstances surrounding the case. 113 Substantial submissions were made with respect to what I categorise as ‘any other relevant matters.’
[156] The Applicant submitted that the effect of the decision to terminate Mr Richards’ employment was harsh, particularly in terms of its economic impact. The financial cost of the termination has been extreme both in his capacity to find alternative employment and in the cost of acquiring an additional endorsement to enable him to fly other types of aircraft.
[157] On the matter of harshness the Respondent submitted:
Could I respond again to the argument of alleged harshness which invokes I guess questions of proportionality. It's well accepted by this tribunal, and certainly by full benches of the tribunal, that when it comes to questions of harshness and proportionality, the tribunal should (not) be too quick (to) substitute management's decision for its own...Reasonable minds can well differ in particular circumstances as to whether the person should have been given a final warning or be dismissed...so once a valid reason...shows that the conduct is serious enough to warrant dismissal, questions about whether he should have given final warning or a dismissal are really questions ...(where) reasonable minds can differ, so just because you might have decided to give a final warning instead of dismissal is not where the commission should be delving effectively. 114
[158] In support of this proposition I was taken to a decision of a Full Bench of the AIRC in Selak v Woolworths 115(Selak):
While the ultimate decision required to be made is whether the termination was harsh, unjust or unreasonable, the manner of deciding matters of this kind is required to be with the intention of ensuring a “fair go all round.” This, in turn, requires a consideration of the circumstances from the perspective of the employer and the employee.
Different employers may have taken different courses of action in these circumstances and reasonable minds might differ on the question of whether termination of employment was a fair and just sanction. However in our view, the finding that the termination was not harsh, unjust or unreasonable cannot be described as unreasonable or plainly unjust. The conclusions drawn were reasonably open to the Commissioner. Hence this ground of appeal must fail. 116
[159] Whilst it may be open to different minds to conclude as to whether an employee should be terminated or disciplined in some other way, it is my responsibility to determine, based on the material put before me, if the termination was harsh, unjust or unreasonable. That there was a valid reason does not mean the termination may not have been harsh, unjust or unreasonable. To suggest that having determined there was a valid reason I should accept management’s decision as to the sanction on the employee is to suggest that I cannot undertake the consideration required of me in determining whether the dismissal was harsh, unjust or unreasonable - that there is no discretion available to me in considering other matters (see s.387(h)). The Respondent’s submission seems to be that should I decide there was a valid reason for dismissal I must then accept the sanction imposed by management.
[160] What Selak stands for is that considerations of proportionality of the punishment will often, and properly, arise in the overall consideration of whether the termination was ‘harsh’ 117 and that a conclusion as to the reasonableness of the ultimate decision must be made in the context of ensuring a ‘fair go all round which, in turn, requires a consideration of the circumstances from the perspective of the employer and employee.’118
[161] There is no reason not to consider the effect of the termination on the economic or personal situation of the Applicant. In Byrne v Australian Airlines 119McHugh and Gummow JJ observed:
Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided on inferences which could not reasonable have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 120
[162] There is no doubt that the effect of the termination on the economic situation of the Applicant has been severe. He has lost his income source, as a result (at least partially) he has had to sell his house. To gain further work as a pilot, unless he can secure a job piloting the type of aircraft he piloted for Rex, he will have to attain endorsement for other aircraft types. The cost of such endorsement will rest with the Applicant and amounts to about $32,000. 121 Considering these matters there is no question that the economic impact of the decision to terminate Mr Richards’ employment is substantial.
[163] It was put for the Applicant that there appeared to be differential treatment of flight crew with respect to the misuse of crew cars. It was submitted that (putting aside the scratching of the car) while the incidents of misuse were seen to be of such gravity that they warranted the summary dismissal of Mr Richards, the company had taken no action to further investigate other crew members to determine the extent of any other misuse of the cars beyond the three captains identified.
[164] With respect to other captains who may be accused of misusing crew cars it was submitted for Rex that there are no grounds for suggesting differential treatment - one captain had been stood down but the investigation had been suspended pending his recovery from cancer and an investigation into a second captain had commenced. On this matter the Respondent referred me to a decision of Lawler VP in Sexton v Pacific National 122 where, the Respondent submits, his Honour ‘cautions against placing too much weight on the inconsistent treatment, particularly when you’re dealing with different people in different incidents.’123 I have considered the decision in Sexton v Pacific National. I note that consideration of inconsistent treatment was primarily directed at the point of determining if a dismissal was harsh, unjust or unreasonable and considerations of a ‘fair go all round.’ I note the conclusion of His Honour that ‘the Commission ought not allow the use of differential treatment as a factor in determining that a particular termination is harsh, unjust or unreasonable to develop in such a way as to act as a disincentive to employers to show leniency in appropriate case.’124 This of course cuts both ways but I take from this decision the need to properly consider the circumstances and evidence in total of the case before me and not be persuaded by submissions on differential treatment alone.
[165] With respect to the misuse of crew cars at Rex I note that there is no one else who has been investigated for misuse of crew cars who has been subject to investigation and disciplinary action. As mentioned above one captain has been stood down but the investigation into his conduct has been suspended pending completion of medical treatment. With respect to Captain Ross, the other pilot mentioned in a number of the reports referred to above, he remains at work and not stood down. One meeting with Captain Ross about his misuse of crew cars occurred one week prior to the hearing of this matter but the investigation is ongoing and Captain Ross remains at work, flying aircraft. 125 The reasons for delay in investigating Captain Ross’ conduct are disingenuous to say the least. The complaints against Captain Ross are as serious as those against Mr Richards. That they were ‘very new’ is no different to the status of the alleged conduct of Mr Richards. Delays in the investigation because the company was dealing with defending itself against Mr Richards’ claim under the Act suggests that the conduct is not of such seriousness to warrant urgent action. That there was no need to take immediate action against Captain Ross because the action (misuse of cars) was no longer occurring126 defies logic. Mr Richards’ behaviour was so grave that it warranted summary dismissal and Mr Richards had lost the trust and confidence of Mr Hine. Captain Ross, against whom it would appear there is some evidence, remains at work and remains captaining aircraft with all of the attendant responsibilities that go with that function.
[166] The Respondent submitted that there was ample evidence that the Applicant had bad mouthed the company and that this contributed to a view that he had a motive for his actions. 127 This submission appears based on the evidence of Ms Anderl that Mr Richards ‘frequently told everybody that he hated Rex’128 although she ultimately agreed he had said it to her and, she was aware, to Ms Brown.129 The Applicant argued that there was no evidence presented to show any resentment of Mr Richards towards the company, that accusations of racism were unfounded and there was no evidence that Mr Richards hated the company. I agree with the Applicant on this matter. There is no evidence of the animosity directed at the company that would provide a motive for his conduct.
[167] The Applicant disputed the capacity to draw any relationship between issues associated with driving a car and those associated with flying a plane. As such, they submitted, any findings about the misuse of the crew cars should not be taken as a reflection on the capacity of the Applicant to carry out his duties as a pilot. The employer does not seek to know if a pilot has any driving infringements, they do not require that such matters be reported. It is not a relevant consideration in determining the capacity of a pilot to continue to fly. Given this state of affairs then loss of trust with respect to the driving of a crew car cannot and should not extend to loss of trust in Mr Richards in his capacity as a captain.
[168] Mr Richards had been employed by Rex for 14 years. In this time his employment record has been spotless. Until recent events there is no evidence of any issue with respect to his work ethic or standards.
[169] That there had been abuse of cars going on for some months prior (at least) to the incidents involving Mr Richards is clear on the evidence presented in this case but it appears the SMS system - apparently designed to enable reports of this kind - does not seem to provide an adequate mechanism to provide for reporting of such matters. The evidence of damage to the Mildura and Mount Gambier cars is not suggested to be limited to the period of mid January to February 2010. Some of the behaviours of pilots it is suggested appear to go back to October 2009 at least. Whilst the willingness to use the cars was addressed in part by a visit of the Chairman of Rex to Melbourne it seems the first decisive action to be taken with respect to the alleged misuse of cars was to investigate and then terminate Mr Richards’ employment.
[170] Such behaviour, if it is occurring beyond what I have considered here, is not to be condoned in any way. It is childish and petulant and the Respondent should treat it with the seriousness it deserves. If there are staff of the Respondent who feel the need to treat cars in such a way they should seriously consider restricting that behaviour to their own private cars when they are well away from the work environment.
[171] I have considered all of these matters in reaching my conclusion.
Conclusion
[172] Ultimately what has been established is that Mr Richards deliberately drove a crew car with the handbrake on and/or in low gear for a distance of between 600 metres and two kilometres.
[173] Whilst finding that these two incidents of misconduct by Mr Richards, as outlined by the Respondent, did occur and that the conduct constituted a valid reason for his termination, taking into account all of the circumstances, including the seriousness of the matters and the effect of the termination on Mr Richards, I consider the termination of Mr Richards’ employment to be harsh in that the penalty imposed on Mr Richards is disproportionate to the misconduct which I have found occurred.
[174] This is not to say that Mr Richards should be immune from any penalty for his conduct, just that dismissal is disproportionate.
[175] In all of the circumstances I find the dismissal of Mr Richards to be harsh, unjust or unreasonable. On this basis I find that Mr Richards was unfairly dismissed.
Remedy
[176] Having found that Mr Richards was unfairly dismissed I must consider what remedy to order.
[177] There is no doubt that the presumptive remedy in such situations as set out in the Act is reinstatement. Compensation should only be considered where reinstatement is inappropriate.
[178] The consideration of reinstatement should not be a cursory glance at the possibility. If it were not intended as a viable remedy the legislature would not have consistently placed it as the first consideration if a dismissal was found to be unfair with compensation available only where reinstatement is not appropriate.
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
Is reinstatement appropriate?
[179] The Applicant has sought reinstatement. In particular the Applicant submits that if I find that Mr Richards did not scratch the car with a key (I have found he did not) and I take notice of the fact that Captain Ross has not been stood down or disciplined in any way then I cannot conclude that trust and confidence has broken down. Mr Ross continues to work even though there are allegations against him with respect to misuse of crew cars. 130 On this basis they say there clearly is no relationship between misusing cars and the trust and confidence necessary to continue working for Rex as a pilot.
[180] The Applicant further suggested that to not reinstate Mr Richards will penalise him further in that the economic loss to him over the next few years will be not just be the cost of gaining endorsement to fly other aircraft but will include the financial loss associated with loss of seniority that will come with a move to a new employer.
[181] The Respondent submitted that a captain of an aircraft holds a very special position - the airline has entrusted him with the aircraft and the safe conduct of passengers and crew, 131 there is a clear hierarchy within the flight crew with the captain in charge. The relationship between the Chief Pilot (Mr Hine) and pilots is critical. In this case however the Chief Pilot had lost all trust and confidence in the Applicant.
[182] Mr Hine agreed that if it were not for the allegations of misconduct that Mr Richards would remain employed by the company and that there had never before been any cause to doubt his employment. 132 Mr Hine agreed that it would be a pity to lose the services of a long standing pilot. Mr Hine however stated that he had lost all trust and confidence in Mr Richards and that even if he was found not to have committed any of the acts of misconduct he did not believe that trust and confidence would return.133
[183] Such a position is inexplicable. An extension of Mr Hine’s reasoning is that anyone accused of misconduct - where he believes the evidence against the individual - will have lost his trust and confidence and this could not be restored - regardless of the outcome of any review process.
[184] This is not to trivialise the impact of alleged misconduct on all those who are brought within its sphere - the individual said to have committed the misconduct, those witnesses to it who provide evidence, the managers involved in investigating and ultimately, on their investigation making a decision as to discipline. But the stresses and strain of this process should not be confused with trust and confidence.
[185] Further, the Respondent submitted that there was an edge to the behaviour of the Applicant that strikes at the trust and confidence between the Applicant and the Respondent. The employer must be able to trust an employee with the employer’s property. The Applicant in this matter had shown, by his abuse of the crew cars, that this was not the case.
[186] In this case Mr Richards is a highly skilled employee. On Mr Hine’s own words the company has invested an enormous amount of time into Mr Richards (and other pilots), he has a very specific skill set and it is a shame to lose those skills. 134
[187] There has been no allegation of Mr Richard’s inability to carry out his job piloting planes effectively, appropriately and with all of the attention, care and diligence this requires.
[188] The question is whether the loss of trust and confidence claimed by Mr Hine is rationally based. In essence Mr Hine says he has lost trust and confidence in Mr Richards because, despite what I might decide, he believes the allegations against Mr Richards to be true.
[189] The employment relationship must be capable of withstanding stresses and strains. In Perkins v Graces Worldwide (Aust) Pty Ltd 135 the Industrial Relations Court considered the loss of trust and confidence in an environment where employment had been terminated. The Court found that:
Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage the relationship or destroy the relationship of trust and confidence between the parties without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No. 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees; see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employer of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Div 3 of Pt VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between the employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. 136
[190] I recognise the forceful position put forward by Mr Hine but, for similar reasoning in Perkins, I am not convinced that the trust and confidence necessary for an ongoing employment relationship has been irrevocably destroyed. I consider reinstatement a viable remedy.
[191] I therefore determine and shall order that Mr Richards be reinstated to his position as captain.
[192] Having determined that Mr Richards should be reinstated I must now consider continuity of employment and issues of lost salary in accordance with s.391 of the Act.
[193] It is appropriate that Mr Richards maintain continuity of employment and the order for his reinstatement will reflect this.
[194] The determination of an order for lost pay is a discretionary consideration on my part: FWA may also make an order that FWA considers appropriate. In determining any amount there are some mandatory considerations.
[195] Mr Richards had sought work following his termination of employment. He has been unsuccessful to date. He indicated that there were a ‘number of months’ when he was not fit for work. 137 There is no evidence of any earnings since the time of termination and there are unlikely to be any earnings from the time of this decision and associated order up to the time of his reinstatement.
[196] Mr Richards provided information in relation to his earnings in his reply witness statement. 138
[197] Taking into account the structure of Mr Richards’ salary I consider that it is appropriate that he be paid his base salary and superannuation for the period between his termination of employment and date of reinstatement. He has not been working so amounts attributable to travel allowance, leave loading for hours worked and long service leave accumulation should not be paid for this period. He should not accrue any leave for the period he has not been working due to this matter.
[198] With respect to his conduct it is appropriate that Mr Richards be subject to appropriate disciplinary action for the conduct I have found occurred. The foregoing of part of his total salary should be seen as part of this disciplinary action. An appropriate official warning with respect to his conduct and attitude with respect to the use of crew cars would also be appropriate.
COMMISSIONER
Appearances:
M. Irving of Counsel for the Applicant.
R. Dalton of Counsel for the Respondent.
Hearing details:
2010.
Melbourne:
July 21, 22, 23, 26.
1 [2010] FWA 3843.
2 The airport is located in the town of Wynyard but operated by the Port of Burnie. It seems to be referred to interchangeably as Burnie or Wynyard. For the purpose of consistency it is referred to as Burnie throughout this decision.
3 One is on extended sick leave and that investigation is on hold pending his return to work. Investigations into the second Captain’s conduct are ongoing.
4 [1999] FCA 1836, at [7] per Moore J.
5 King v Freshmore (Vic) Pty Ltd, AIRC Print S4213 (17 March 2000), at [23]- [24].
6 Transcript PN2501.
7 PN2495.
8 PN2496.
9 PN2496.
10 PN2497.
11 PN2497.
12 PN2498.
13 PN2498.
14 PN2499.
15 Exhibit REX4, paragraph 15.
16 Exhibit REX4, attachment LB-2.
17 Exhibit REX5, paragraphs11-12.
18 Exhibit REX5, attachment JT-1.
19 Exhibit REX7, attachment DG-2.
20 Transcript PN2060.
21 Exhibit REX8, attachment CH-2.
22 Exhibit REX8, paragraphs 15-16.
23 Exhibit REX8, paragraph 19.
24 The dates in the notes of the meeting (REX8, CH-4) are given as 21/22 February. Both parties accept this as a typographical error and it should read 21/22 January.
25 Exhibit REX8, paragraph 32.
26 Transcript PN2218.
27 PN1033.
28 PN1246.
29 See evidence of Mr Morrison (transcript PN1172-81) and Google map exhibited to Exhibit REX1.
30 Exhibit REX 6, paragraph 6.
31 Transcript PN1251.
32 PN1062.
33 PN1245.
34 PN1072-3.
35 PN1103, 1243.
36 Exhibit R3, paragraph 30(i).
37 Exhibit R4, paragraph 26.
38 Exhibit R4, paragraph 26.
39 Transcript PN475.
40 Exhibit REX8, attachment CH4.
41 Transcript PN272.
42 PN273.
43 PN274.
44 Exhibit REX8, attachment CH-4.
45 Transcript PN493.
46 PN483.
47 PN528-9.
48 PN1093.
49 PN1096.
50 PN1105.
51 Exhibit REX2, paragraph 5.
52 Exhibit REX8, attachment CH-4.
53 Exhibit REX2, paragraph 6.
54 Transcript PN1612.
55 Exhibit REX 6, attachment JT-2.
56 Transcript PN1636-8.
57 PN1646.
58 Exhibit REX5, paragraph 16.
59 Exhibit REX5, attachment JT-1.
60 Transcript PN1908.
61 Exhibit REX6, paragraph 4.
62 Exhibit REX6, attachment JT-2.
63 Transcript PN2546.
64 Exhibit REX2, paragraph 5.
65 Transcript PN2557.
66 Exhibit REX1, paragraph 8.
67 Transcript PN875.
68 PN888.
69 PN965.
70 Exhibit REX7, attachment DG-2. Ms Turner is “FA 1”.
71 Transcript PN206-8.
72 PN601.
73 PN209.
74 Exhibit REX8, attachment CH-4.
75 Exhibit REX8, attachment CH-2.
76 Exhibit REX8, attachment CH-2.
77 See for example exhibit REX8, paragraph 15 (b)-(d).
78 Transcript PN2395.
79 PN2569.
80 PN2573.
81 PN2572.
82 AIRC Print S4213 at [88]-[89]
83 Cross on Evidence (8th ed.), [1215].
84 Brandi v Mingot (1976) 12 ALR 551 at 560 cited in Cross.
85 Exhibit REX8, paragraphs 13-14.
86 Exhibit REX8, paragraph 11.
87 Exhibit REX8, paragraph 10; Exhibit REX5, paragraph 19.
88 Exhibit REX8, attachment CH-3; Exhibit REX7, paragraph 13.
89 Exhibit REX8, paragraph 15(a) and attachment CH-2.
90 Exhibit REX7, paragraph 12.
91 Exhibit REX1, paragraph 10.
92 Transcript PN935.
93 PN945.
94 Exhibit R8.
95 Exhibit R8.
96 Exhibit REX4, paragraph 23.
97 Exhibit REX1, paragraph 10.
98 REX1, paragraph 9.
99 Transcript PN853.
100 PN615-6.
101 PN210.
102 PN2499.
103 (2008) 170 IR 1.
104 Ibid, 11 (per Acton and Cartwright SDPP).
105 Ibid, 10 (per Acton and Cartwright SDPP).
106 Transcript PN2593-4.
107 Exhibit REX8, paragraph 21(e).
108 Exhibit REX8, attachment CH-4.
109 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
110 Edwards v Justice Giudice and others [1999] FCA 1836 at [7].
111 Transcript PN198 -9.
112 Exhibit R2, paragraphs 4-7; Exhibit REX5, paragraphs 25-27.
113 See Kehagias and others v Unilever Limited (trading as Unifoods), AIRC Print Q0498, 29 April 1998.
114 Transcript PN2626.
115 (2008) 171 IR 267.
116 Ibid, 277-278.
117 Ibid, 274.
118 Ibid, 277.
119 131 ALR 422.
120 Ibid, 461.
121 Exhibit R4, paragraph 34.
122 AIRC, PR931440 (14 May 2003).
123 Transcript PN2625.
124 PR931440 at [39].
125 Transcript PN2330.
126 PN2331.
127 PN2513.
128 PN1572.
129 PN1576-7.
130 PN2453-4.
131 PN2602.
132 PN2301-3.
133 PN2308.
134 PN2307.
135 (1997) 72 IR 186.
136 Ibid, 191.
137 Exhibit R4, paragraph 41.
138 Exhibit R4, paragraph 37.
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Key Legal Topics
Areas of Law
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Employment & Labour Law
Legal Concepts
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Unfair Dismissal
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Remedial Measures
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