In our last editorial feature we provided some tips on ensuring that workplace policies are clear , precise and properly communicated to all employees .
However in a recent decision by a senior member of the Fair work Commission , the Deputy President placed little concern on the dismissal of an employee who was in breach of a clearly established and communicated Company Policy , to which , the employee did not deny .
Unfortunately the Association over the years has also dealt with similar cases of “ end of shift drinks ” and the removal of alcohol off premises for consumption at a later time .
In this case the applicant , a flight attendant , was dismissed for being in possession of a small amount of alcohol ( 1 can and 1 bottle of beer & 3 Mini bar sized spirits of 50mls , which were the property of Qantas and should not have left the aircraft . These items were located via a random search of the crew following their flight from Perth to Sydney at 8.45 pm .
The employee was dismissed because of a breach of Qantas ’ s Standards of Conduct Policy , stating that theft for the removal of the beer and misleading and providing a deceptive response to the investigation as to how he came to have possession of the alcohol . The Applicant admitted to removing the beer from the flight but said that the vodka was in his pocket inadvertently . He said he did not know how the gin came to be in his bag .
The employer ticked all the relevant legislative boxes in its termination process as required by Section 387 of the Fair Work Act which states ;
“ In considering whether it is satisfied that a dismissal was harsh , unjust or unreasonable , the FWC 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 . c .
d .
e .
f .
g .
h . whether the person was notified of that reason ; and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person ; and 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 if the dismissal related to unsatisfactory performance by the person-whether the person had been warned about that unsatisfactory performance before the dismissal ; and 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 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 any other matters that the FWC considers relevant .”
In analysing these provisions in summary the Commission made the observations .
Valid Reason ( a ) Yes But
In adopting a number of full bench decision , the Deputy President found that the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh , unjust or unreasonable ’.
A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer . In this way , a substantial and wilful breach of a policy will often , if not usually , constitute a “ valid reason ” for dismissal . Reaching an overall determination of whether a given dismissal was “ harsh , unjust or unreasonable ” notwithstanding the existence of a “ valid reason ” involves a weighing process . The Commission is required to consider all of the circumstances of the case , having particular regard to the matters specified in s . 387 , and then weigh :
I .
II . the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh , unjust or unreasonable ; against the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct .”
“ The Applicant was dismissed because he stole Qantas property and because he gave a false explanation , which he subsequently changed during the investigation . It was a small quantity of alcohol but Qantas has strict policies about theft of such company property . This is entirely understandable . In any event , the Applicant admitted to stealing the two beers . His explanation for inadvertently taking the other items is not credible . This was clearly contrary to Qantas policy . As well , the Applicant changed his story during the investigation after giving an incorrect explanation . I am therefore satisfied that there was a valid reason for his dismissal .”
Notification of a valid reason :
Yes , the Commission was satisfied that the Applicant was notified of the reason for his dismissal well before the decision was made . Qantas carried out an appropriate investigation process . The Applicant did not make any challenge on procedural grounds .
Opportunity to respond : Yes , the Applicant had an opportunity to respond .
Unreasonable refusal by the employer to allow a support person : Yes , a Union Official was in attendance at the meetings . Warnings regarding unsatisfactory performance : This factor was not relevant in this case .
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