Foley v Qantas Airways Limited [1996] IRCA 544

DECISION NO:544/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - WHETHER VALID REASON PROVED - PROCEDURAL FAIRNESS - WHETHER REINSTATEMENT IMPRACTICABLE

INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DE(1), 170DC, 170EE

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Kerr v Jaroma Pty Ltd Nos. VI 3306 & 3307 Marshall J

unreported 7 October 1996

PETER GORDON FOLEY -v- QANTAS AIRWAYS LIMITED

QI 96/1082

BEFORE: BOULTON JR

PLACE: BRISBANE

DATE: 8 NOVEMBER 1996

IN THE INDUSTRIAL RELATIONS )

COURT OF AUSTRALIA ) No. QI 96/1082

QUEENSLAND DISTRICT REGISTRY

BETWEEN: PETER GORDON FOLEY

Applicant

AND: QANTAS AIRWAYS LIMITED

Respondent

BEFORE: BOULTON JR

PLACE: BRISBANE

DATE: 8 NOVEMBER 1996

MINUTES OF ORDERS

(pronounced on 26 October 1996)

THE COURT ORDERS THAT:

1. The application be allowed.

2. The respondent forthwith reinstate the applicant by appointing him to the position in which he was employed before his termination.

3. The respondent treat the applicant as having been continuously employed by it between the date of termination and the date of reinstatement.

4. The respondent pay to the applicant the remuneration lost by him
because of the termination between the date of termination and the date of reinstatement, such payment to be made within 14 days of this order.

NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS )

COURT OF AUSTRALIA ) No. QI 96/1082

QUEENSLAND DISTRICT REGISTRY

BETWEEN: PETER GORDON FOLEY

Applicant

AND: QANTAS AIRWAYS LIMITED

Respondent

BEFORE: BOULTON JR

PLACE: BRISBANE

DATE: 8 NOVEMBER 1996

REASONS FOR JUDGMENT

BACKGROUND

On Saturday, 26 October 1996 I gave judgment in the applicant's favour in extraordinary circumstances. I learnt during the course of the trial that the applicant was terminally ill. Evidence had concluded on 18 October, with the parties' written submissions to be delivered by 4 pm on 23 October. They were delivered on 24 and 25 October. Late on 25 October I learnt that the applicant's condition had worsened, his death being an immediate prospect. In the circumstances, I convened court on the Saturday morning. The applicant died less than 15 hours after judgment.

What now follows are my reasons for ordering the applicant's reinstatement to the position he held with the respondent before termination, and consequential orders.

The applicant was aged 47, having been born on 10 August 1949. He took up employment with the respondent in April 1968. The respondent terminated his employment on 1 May 1996. On 26 May 1996 the applicant learnt he was suffering from bowel cancer. It was this cancer and its spread which killed him.

At the time of his dismissal, the applicant was one of the respondent's Duty Airport Managers. From September 1991 until January 1996 he worked in that position at the Brisbane International Airport. Between late January and his dismissal, he worked in that position at the Brisbane Domestic Terminal.

The applicant was dismissed from employment by Ms Dupen-Holland, the Manager, Queensland Airports. At the time of his dismissal, he was handed a letter of termination, which relevantly reads:

You knowingly claimed and were paid overtime that you did not work as you were not in attendance at your workplace. This had occurred on at least three occasions. This is contrary both to your contract of employment, is serious misconduct and is inconsistent with your performance as a Senior Manager at Brisbane Airport.

This is in addition to your poor attendance and punctuality which have been raised on a number of occasions by both myself and your colleagues and you have made no effort to correct. In an airline which requires accurate time-keeping in order to support its operation your actions are inconsistent with both the standards of the company as well as the role you have as a Manager to `police' these actions of those you manage.

You have demonstrated your inability to work as a professional in this organisation with little regard for cost. This is highlighted by your excessive overtime in the Customer Service Agent Area, the unplanned nature of your own leave arrangements, excessive personal phone calls on the company equipment and your overriding of instructions from a subsidiary which caused a loss for that company. A manager above all other positions is required to practice vigorous cost containment and your actions have demonstrated your disregard of this key performance criteria.

Taking into account of all of the circumstances, it is the Company's view that your actions amount to serious misconduct and as a consequence your services are terminated as at close of business on 1 May 1996. From today, you will be paid five weeks in lieu of notice. You are required to return your ID card immediately. Any outstanding monies in addition to this payment will be made upon return of all other items of Qantas property - keys, clothing, etc in your possession.

It is necessary to say something of the responsibility of Duty Airport Managers. The Duty Airport Manager is the most senior person on-site for the respondent at any given time. He or she is entirely responsible for Qantas's operation at the particular terminal on behalf of the Manager, Queensland Airports. The duties cover every aspect of the operation, including supervision of shifts, maintenance of operational and customer service standards, dealings with government agencies, including Customs and Immigration, emergency planning procedures at Brisbane Airport, and safety requirements and standards needed to be achieved for the operation in place.

I will deal now with the main reasons relied on by the respondent for its decision to terminate the applicant's employment.

Wrongly-claimed Overtime

This category includes three instances put to the applicant by Ms Dupen-Holland in the period before his dismissal. They were:

(a) 4 March 1996 - late 15 minutes

(b) 26 March 1996 - late 15 Minutes

On each of the above occasions, the applicant was rostered to work an hour's overtime prior to the commencement of his shift. It was common ground that the purpose of the rostered overtime was to enable a hand-over to take place between a departing Duty Airport Manager and the incoming Duty Airport Manager.

The applicant's evidence was that he could recall being four minutes late arriving at his office on 26 March 1996. As for 31 March 1996, he could recall being two minutes late in arriving at his office. These allegations concerning alleged lateness were raised in a meeting between the applicant, Ms Dupen-Holland, and others on 4 April 1996. The other allegation of alleged lateness, on 4 March 1996, was raised in a subsequent meeting, of 24 April 1996. The applicant's response in the 24 April meeting about the allegation of lateness on 4 March 1996 was that he did not have any recollection of that date.

I do not need to be convinced of the view that punctuality is important in the employment relationship. It is relevant, however, to consider whether or not an employer acquiesced in some way in a custom or practice of lateness on the part of its employees. I consider it more probable than not that the applicant's lateness on the three specified dates was of the order of the times raised with him by Ms Dupen-Holland. I reject the applicant's view that he complied with his roster if he were getting out of his car in the respondent's car park at the rostered time.

On the other hand, I do not accept that all the other Duty Airport Managers, with the exception perhaps of a Mr Tucker, were always scrupulously on time. There is, in my view, an acceptable body of evidence to the contrary. Ms Dupen-Holland made inquiries of the other Duty Airport Managers concerning their punctuality. These persons had a particular interest in the way in which they responded to the questions asked of them, they being aware that the material was being sought for the investigation involving the applicant. I am altogether unconvinced that strict punctuality on their part was common.

It is trite to observe that it is a form of fraud for an employee to claim overtime in respect of time not worked. It is quite wrong, however, to judge that conduct in isolation from the actual circumstances of the workplace. I have the impression that the screws may have been tightened by the respondent in only recent times. That is no bad thing provided those the subject of the tightening are given ample warning of the new regime. It is not a one-way street. I have no doubt that Duty Airport Managers frequently work through their lunch breaks, for which practice the applicable Award provides for a penalty. Few, including the applicant, ever claim for this penalty. The respondent gets the benefit of this indulgence on the part of its senior employees.

The respondent ought to have been alert to the possibility that even if the applicant were late as alleged on 4, 26 and 31 March 1996, his conduct was not so far out of the normal course of conduct of fellow employees as to warrant termination of his employment. I agree that he had to be brought to account. I do not agree that his conduct, in combination with other matters on which the respondent relied, justified the termination of his employment on 1 May 1996. I will have something more to say later in these reasons about the concept of valid reason as that term is used in subsection 170DE(1) of the Industrial Relations Act 1988.

Poor Attendance and Punctuality

“Poor attendance” is a reference to the applicant's unauthorised absence from work on 31 January 1996. I accept that a fellow Duty Airport Manager, Mr Law, told the applicant that 31 January 1996 was the applicant's 20th "or Z" day, being a day he could take off. Ms Dupen-Holland gave evidence that she counselled Mr Law in relation to the advice he gave to Mr Foley to take that day as his 20th day. I do not accept the assertion of Mr Law that he did not give this advice to the applicant. Mr Law mistakenly took his own 20th day off on 24 January 1996. Ms Dupen-Holland permitted him to fill in an appropriate form which enabled him to be paid for that absence. The same opportunity does not seem to have been extended to the applicant, even though Ms Dupen-Holland accepted that the applicant's mistake arose from the advice from Mr Law.

The reference to "punctuality" in the termination letter appears to relate to incidents in 1990 and 1991, and the statement made by Ms Dupen-Holland to the applicant in a meeting of 4 January 1996 that the applicant was still late "on occasions". In my view, the question of the applicant's lack of punctuality ought to have been handled differently. If the respondent had followed its own policy and attempted to informally counsel the applicant about this matter, it might have had the benefit of learning from the applicant that he had suffered a recent marital breakdown, he had not adjusted to having been transferred from the International to the Domestic Terminal, and was already feeling unwell from the then undiagnosed illness which led to his death. Had the respondent taken a more sensitive approach in the sense of attempting to find out whether or not there were reasons for the applicant's lack of punctuality, it might have taken a view different from the one embodied in its decision to dismiss a long-standing employee.

Inability To Work As A Professional With Little Regard for Cost

I will deal separately with the instances given of this alleged inability. In respect of excessive overtime in the Customer Service Agent Area, the respondent accepts that there was a provision in the Award which enabled a person in the applicant's position to "work down" to a junior level on overtime. Such working down can only occur if there is a need for overtime to be worked in a particular area and there is no person more junior who is both willing and able to perform the overtime. In consequence, it is only if and when the applicant was prepared to work overtime and there was no more junior person so ready and willing to perform it that the applicant could have been called on to do the work. I accept that soon after the applicant was taxed about this matter in early January 1995, he no longer made himself available and only "worked down" on overtime at the end of 1995 when specific permission was obtained from Ms Dupen-Holland. In the circumstances, there is an element of artificiality in the respondent's attempt to rely on this more than a year later as being an example of conduct which in combination justified termination of employment.

The unplanned nature of leave arrangements is a reference to the applicant's taking Defence Force leave. The respondent participates in a program where it is prepared to provide leave for its employees to attend Defence Force training. The granting of that leave is seen by the respondent as a benefit to it. The very nature of such leave with the RAAF is that it is less planned because it is less programmed. The applicant acted as a Safety Officer for RAAF bombing exercises. He was sometimes called on somewhat unexpectedly to be available as a Safety Officer. There seemed to be a presumption by the respondent that the applicant could choose the dates on which various RAAF courses and activities were conducted. I do not think it fair to blame the applicant for the respondent's preparedness to grant such leave. It is unfair also to allege that the applicant, in seeking leave in 1996, was acting in an unplanned way.

It appears that the respondent is complaining also about a request from the RAAF for the applicant to attend between 4 and 20 February 1996. The RAAF did not make this request with the normal degree of notice. There is no doubt that there was a cost to the respondent on account of the applicant taking leave on this occasion. It is debatable, in my view, whether or not a "leave slot" was available which could have accommodated the applicant's absence. In any event, the respondent approved the leave.

In respect of excessive personal phone calls on the company equipment, there was no suggestion that the applicant himself had been making excessive personal phone calls in the form of outgoing calls. Rather, there had been a number of phone calls for the applicant coming into the respondent which had to be answered by other Duty Managers because they occurred when the applicant was not on shift. These calls may well have been connected with the applicant's marital problems at the time. To suggest that they involved some cost to the respondent is drawing a long bow, unless the suggestion be that the other Duty Managers were being diverted from their work in having to answer calls for the applicant.

Overriding of instructions from a subsidiary which caused loss for the subsidiary concerns an episode which occurred on 20 November 1994, 17 months prior to the decision to terminate the applicant's employment. This related to the applicant's decision to charge $150 per pallet in relation to unloading of freight from an aeroplane. The applicant had been told to charge $200 per pallet. The applicant was accompanied by a Mr Burgess, the Freight Operations Supervisor, who agreed in evidence that he came to the same conclusion as the applicant, namely, that the charge of $200 was excessive, $150 was appropriate and that was the best that the applicant would get from the aeroplane's pilot. The respondent submits that the real point of this is that the applicant had no authority to change the amount required to be paid for the freight. I do not consider that this was conduct that ought to have been taken into account as sufficient in combination with other matters to justify terminating the applicant's employment.

WHETHER SERIOUS MISCONDUCT PROVED

I am of the view that the only matters which the respondent might properly have relied on to terminate the applicant's employment concern punctuality (that to include the alleged wrongful overtime claims on 4, 26 and 31 March 1996). There was also a general allegation about the applicant's lateness (apart from the specific instances on the three specified dates). Ms Dupen-Holland learnt from her inquiries between 24 April and 1 May 1996 that the applicant was "late probably 50 per cent of the time" and "late on most of his shifts during his first week's training roster in the Domestic Terminal". I have reservations about the extent to which these latter allegations of lateness were put to the applicant at the meeting of 1 May 1996. I am concerned that the applicant was not given a real opportunity to defend himself against these general allegations.

There are a number of other complaints relating to the applicant's conduct and capacity. None of these was specified as having been relied upon by the respondent to terminate the applicant's employment. While they may add colour to Ms Dupen-Holland's view of the applicant as a Manager, in the circumstances I do not propose to deal with them.

VALID REASON

I am not satisfied that the reasons for the applicant's termination were valid in the sense of being "sound, defensible or well-founded" - Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. Further, I consider that for a reason to be valid within the meaning of subsection 170DE(1) of the Act, termination must be justified, the facts giving rise to it to be sufficiently serious to warrant that course and also taking due account of the respective interests of employer and employee. I am unconvinced that on an independent objective analysis, the reasons for dismissal were justified or objectively defensible in the circumstances - Kerr v Jaroma Pty Ltd Nos. VI 3306 & 3307/95 unreported decision of Marshall J on 7 October 1996.

I consider that the applicant would not have been an easy employee with whom Ms Dupen-Holland had to deal. Despite that, I am of the view that the respondent acted precipitately in terminating the applicant's employment when it did. For reasons I have already canvassed, the respondent ought to have adopted a less confrontational approach towards its dealings with the applicant in regard to his punctuality and other alleged shortcomings as a Manager. Had it availed itself properly of the counselling contemplated by its own internal procedures, it might have conveyed to the applicant in an appropriate way that he was on a final warning, with serious consequences for his future employment if he did not mend his ways. It might too have learnt that in fact there were matters personal to him which, at least in part, accounted for his lateness. The respondent ought also to have acknowledged that its other Duty Airport Managers were not all meeting the punctuality standard it apparently required of the applicant.

PROCEDURAL FAIRNESS

Some of the remarks I have earlier made impinge on this area also. After the meeting of 24 April 1996 Mr Dupen-Holland had decided that the applicant should be demoted, not dismissed. On 1 May 1996 she decided to terminate his employment. The only thing that appears to have changed in that period was that she had made inquiries about the punctuality of other Duty Airport Managers and, in that process, heard further allegations about the applicant's punctuality. The applicant ought to have been given as full an opportunity as possible to deal with these further allegations of lateness before a decision was made to terminate his employment. I have already expressed my reservation about the opportunity he was given in this regard.

In the circumstances, I do not find it necessary to make a specific finding about procedural fairness, given the respondent's failure to prove a valid reason for the applicant's termination.

I should mention that the applicant had an internal appeal heard against his dismissal. Without being critical of Mr Mitchell, the Regional General Manager for Queensland of the respondent who conducted the appeal, I do not place much weight on this process. Once the matter comes to this court, it is incumbent upon the respondent to prove a valid reason for termination in the sense already discussed.

REMEDY

The applicant sought reinstatement. The respondent did not argue that reinstatement was impracticable for any of the reasons commonly encountered in these cases. It submitted that it was open to the court to find that the applicant was incapable of performing any work. There can be no doubt about that. I am persuaded, however, that the entitlement to reinstatement in this case is not dependent upon whether or not at the time that entitlement arises the applicant is well enough to perform the duties of the position to which he is appointed. If that were so, an employee would become disentitled to the benefit of reinstatement on account of an exigency for which the contract of employment already makes provision, namely illness. Being of that mind, I ordered the applicant's reinstatement, and consequential orders on 26 October 1996. Those orders stand.

Generally

I uphold the respondent’s objections to the following evidence:

(a) in the statement of a Ms Lawrie, the last 2 sentences of paragraph 12, the 3rd, 4th and 5th sentences of paragraph 14, and the last 3 sentences of paragraph 17;

(b) in the statement of a Mr Barr, the 3rd sentence of paragraph 2, the 4th and 5th sentences of paragraph 8, and the 2nd sentence of paragraph 9.

I record my thanks to both Counsel for the way in which they conducted themselves in this trial.

ORDERS

The orders of the court are as pronounced by me on 26 October 1996.

I certify that this and the preceding EIGHT (8) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date: 8 November 1996

Counsel for the Applicant: Mr Hinkley

Solicitors for the Applicant: Nall Payne Craswell

Counsel for the Respondent: Mr G. Martin

Solicitors for the Respondent: Freehill Hollingdale & Page

Dates of hearing: 25, 26, 27 September, 14, 15, 16, 17 and 18 October 1996

Dates of receipt of written submissions: 24 and 25 October 1996

Date of judgment: 26 October 1996

Reasons for judgment: 8 November 1996

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