Impact of the size of the Respondent on procedures followed: Qantas is a large business so this was not a factor.
Absence of a dedicated Human Resources Management Specialist or expertise on procedures Followed: It follows that this was not a factor.
Any other matter that the FWC considers relevant:
Section 387( h) allows the Fair Work Commission to consider any other matters it considers relevant. To“ ensure that a‘ fair go all round’ is accorded to both the employer and the employee concerned”.
There were a number of factors which the Applicant relied on to support his argument that his dismissal was disproportionate to the crime committed. These included:
• His 28 years of unblemished service for Qantas as a long-haul flight attendant.
• The small value of the items stolen.
• The Applicant’ s age of 50 meant it would be difficult to get another job, certainly as a flight attendant.
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• Although he gave an incorrect explanation, he did correct it.
• He had a number of medical and family issues prior to the incident.
The Deputy President took these matters into account and together lead him to the view that the dismissal was harsh, and given the factors noted above, it would have been appropriate for Qantas to implement a penalty lesser than dismissal.
The Deputy President found that the dismissal was not unreasonable with nothing in the process adopted by the Respondent making it unjust. However, because of the factors he have considered pursuant to s. 387( h)‘ Other relevant matters he found the dismissal to be both harsh and unfair.
Remedy— compensation The Deputy President decided( although the value of the goods stolen was small) he did not think reinstatement was appropriate in this case and accepted Qantas’ s argument that the relationship of trust has broken down and cannot be repaired. It is important that Flight Attendants are able to be trusted with Qantas property. The fact that the Applicant changed his story is a crucial factor here. Reinstatement may be seen to condone theft in some way.
The Commission found that the Applicant has been unfairly dismissed and that reinstatement is not appropriate in all the circumstances. The Deputy President was satisfied that an order for compensation should be made.
Over All Comment
Deputy President Lawrence was correct in applying well established industrial relations principles and applied logic in the circumstances of this case, however for the passing observer, including media reports of this matter for an employee caught red handed stealing from his employer rewarded compensation may be hard to comprehend. Deputy President Lawrence is an experienced and highly regarded member of the Tribunal and would suggest that his decision is unlikely to be appealed. The only matter that I would question is how the Commissioner arrived at the level of compensation 26 weeks of the applicant’ s actual salary.
By Peter Cooper Senior Industrial Relations Specialist