The importance of considering “other matters” when terminating employees

A Qantas flight attendant who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission after it found that the decision to terminate his employment was harsh. Refer: Dawson v Qantas Airways Limited (2016) FWC 8249

Deputy Commissioner Lawrence concluded that the Applicant Mr Dawson was dismissed because he stole property belonging to Qantas and initially lied about how the alcohol came into his possession, he changed his explanation during an investigation into the matter.

While the amount of alcohol stolen by the Applicant was of small value, Qantas stated that they have a zero tolerance policy to theft including accidental theft. For these reasons, the Commission found that the conduct of the Applicant was a valid reason for termination.

When reviewing the procedural aspects of the termination, the DC Lawrence found that Qantas carried out proper investigation and disciplinary processes. However he also had an obligation to consider “any other matters” to reach a finding as to whether the termination was ultimately harsh, unjust or unreasonable.

As a general rule, the aim of considering what the Commission considers to be “any other matters” it must ensure that a “fair go all round” has been given to all parties.

In this case, the Deputy Commissioner Lawrence considered the factors argued by the Applicant should lead to a finding that his termination by Qantas was disproportionate to the crime committed including:

• The Applicant’s had worked for Qantas for 28 years with an unblemished record of service as a long-haul flight attendant;
• The value of the items stolen was small.
• The age of the Applicant, at 50 it was considered that it would difficult for Mr Dawson to obtain future employment especially as a flight attendant;
• While the Applicant initially gave an incorrect explanation of his actions, he did correct it later.
• The Applicant argued that he had a number of medical and family issues prior to the incident.

Notwithstanding that the procedural aspects of the termination were fair and compliant with the Fair Work Act 2009, after taking these “other matters” into account, Deputy Commissioner Lawrence concluded that the dismissal was harsh.

As a result of Qantas’ failure to properly consider the Applicant’s circumstances and the impact that the termination would have on the Applicant, the Commission felt it appropriate to award the Applicant compensation.

The Commission noted that the Applicant could have earned $1,011,930 for the remainder of his working life. Acknowledging the valid reason for termination and proper procedures, the Commission reduced the amount of compensation to $500,000.

The Applicant’s compensation was reduced again by the Commission to 26 weeks’ pay in accordance with the maximum compensation cap in the unfair dismissal jurisdiction under the FW Act.

This is general information only and does not constitute legal or any other form of advice. If you would like assistance with a workplace matter such as this, or if you require the services of an independent investigator, contact Phil O’Toole or Phil O’Brien at Centium. Centium has conducted many workplace and employment related investigations and can share lessons learnt and good practices observed across industry.

The author of this blog is Phil O’Brien, Head of Investigations at Centium. He is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.