Qantas has succeeded in its appeal to undo the unfair dismissal finding for a flight attendant who stole alcohol and lied during the investigation. The FWC Full bench overturned the ruling of unfair dismissal in Qantas Airways Limited v David Dawson  FWCFB 41, finding that Deputy President Lawrence had failed to take into account the Qantas employee’s dishonesty during the investigation into allegations of theft.
Qantas dismissed the veteran flight attendant after a small amount of alcohol was found in his possession during a random post-flight search, in breach of Qantas’ policy against removal of company property. The attendant initially claimed that he got the 50mL bottle of Beefeater Gin, among other beverages found in his possession, during his stay at a Sydney hotel with his wife the day before. Upon investigation Qantas found that the hotel in fact did not stock any miniature liquor. When confronted, Mr Dawson changed his story, admitting that his explanation regarding how the alcohol came into his possession was “not true”. He maintained at hearing that he did not know how the gin ended up in his bag.
Qantas terminated the attendant on grounds that he had clearly breached company policy, did not make full disclosure during the investigation process, and also on grounds that the requisite relationship of trust had irreparably broken down.
Decision at First Instance
At hearing, Mr Dawson did not dispute the investigation findings of theft and deceptive response to allegations. However, he argued that the dismissal was harsh and not the appropriate response. Specifically, Mr Dawson argued that he was treated differently to other employees who were also found to have taken Qantas property during the search, and raised procedural issues around the conduct of the random search, including that other crew members may have had the opportunity to dispose of stolen property in the toilet. He also argued that Qantas failed to take into account his personal circumstances, including his age of 50, his 28 years of unblemished employment history, and his health and family circumstances.
Lawrence DP found that Qantas had a valid reason for termination. He found that Mr Dawson “gave a rather fanciful explanation” for the bottle of gin in his bag, and that he “charged [sic] his story during the investigation after giving an incorrect explanation”.
However, Lawrence DP found that the termination was harsh, taking into account Mr Dawson’s 28 years of “unblemished service”, the small value of the items stolen, Mr Dawson’s age, the fact that “although he gave an incorrect explanation, he did correct it”. Regard was also had to his family and health issues.
The Deputy President considered that Mr Dawson could have remained a flight attendant for the rest of his working life, “which could have been 15 or so years”. Accordingly, Lawrence DP ordered compensation to the amount of $33,731, equivalent to 6 months of Mr Dawson’s earnings applying the compensation cap.
On appeal, Vice President Catanzariti, Deputy President Gooley and Commissioner Wilson unanimously overturned Lawrence DP’s decision.
Qantas appealed on 18 grounds, including that the Deputy President wrongly found that Mr Dawson corrected his previously incorrect explanation of how he came to possess the Gin found by the search.
The full bench noted that Deputy President Lawrence’s decision was open to challenge only if “he mistakes the facts, if he does not take into account some material consideration”.
The full bench went on to consider that the Deputy President could not describe Mr Dawson’s conduct “as a mere ‘incorrect explanation’”, as this “understated the severity of [Mr Dawson’s] conduct”. The full bench highlighted the fact that Mr Dawson corrected his explanation only when confronted by the fact that he could not have obtained the miniature bottle of liquor from the hotel. Accordingly, the full bench found that Lawrence DP mistook the facts before him, and “failed to take into account an important material consideration”, that is, Mr Dawson’s “dishonesty”. The full bench concluded by quashing the Lawrence DP’s decision, referring the matter for rehearing.
The take away is that lack of candour in an investigation can itself be the valid reason for a termination.
To read this case in full, click here: https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb41.htm
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