Note: Appeals pursuant to s.604 (C2011/6900, C2012/2927) were lodged against this decision - refer to Full Bench decision dated 8 December 2011 [[2012] FWAFB 5776] for result of appeal.
[2011] FWA 8025 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Paul Carter
v
Qantas Airways Limited
(U2009/11888)
COMMISSIONER SPENCER |
BRISBANE, 25 NOVEMBER 2011 |
Termination of employment - Arbitration
Introduction
[1] This decision relates to the application made by Mr Paul Carter (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) seeking reinstatement on the basis that the termination of his employment by Qantas Airways Limited (the Respondent) for serious misconduct was harsh, unjust and unreasonable.
[2] The Applicant was represented, by Ms Jennifer Beck, Counsel, instructed by Mr Bogan. The Respondent was represented by Mr Chris Murdoch, Counsel, instructed by Mr Li of Blake Dawson Solicitors.
[3] The matter proceeded to conciliation before Fair Work Australia (FWA) but was unable to be resolved and was therefore referred for arbitration. Several conferences were held on issues relating to the discovery of documents.
[4] Directions were set for the filing of evidence and submissions. The matter was heard over six days. The dates were set by consent with Counsel. Further directions for the filing of final submissions were set by agreement. Whilst not all of the material that has been provided is referred to in this determination, all of such has been considered. It is particularly noted that whilst 2 volumes or “tender bundles” were provided for the Applicant, only those documents that have been tendered as exhibits have been taken into account in the matter.
[5] The hearing dates in this matter were held over by consent whilst a related matter was dealt with in another jurisdiction. The related matter was in relation to the alleged fraudulent activity of another employee. It was considered that the Applicant’s conduct was initially associated with this ‘other employee’. The matter of ‘the other employee’ went before a Magistrate for a committal hearing but was dismissed. 1
Background
[6] The Applicant had been employed by the Respondent since 1985 in various positions; initially as a cargo clerk at Cairns Airport, then in Reservations and the retail office.
[7] In 1990, he was transferred to Brisbane to the Reservations Department. In 1996 he was transferred to the Qantas Domestic Terminal at Brisbane Airport as a Level 3 Customer Service Agent (CSA).
[8] The Applicant provided detail regarding each of these roles, the associated duties, the reservation systems used and the level of associated training he was provided.
[9] In 2005 the Applicant became ill with head and neck cancer, and had extended paid sick leave of 180 days from his accrued entitlements. A further 76 days of sick leave entitlement remained after this. In September 2006 he made a partial return to work and resumed working 8 hour shifts on 27 August 2007.
[10] The Applicant was employed by the Respondent as a full-time Customer Service Agent (CSA); until 31 March 2009, when he was suspended from duties (with pay but without travel benefits). The Applicant’s employment was terminated for allegations of serious misconduct on 28 August 2009. The Applicant denied the allegations, that his conduct was in breach of company policy or was serious misconduct and has sought reinstatement.
[11] The Respondent alleged that the Applicant had engaged in breaches of company policy in relation to numerous bookings or alterations, that had resulted in a loss of revenue for the Respondent. The Applicant had at all times denied the allegations. It was submitted that the Applicant’s dismissal; was not undertaken in accordance with the Respondent’s Disciplinary Policy or Appeals Policy.
[12] The Respondent in the ‘Show Cause’ letter to the Applicant, set out the findings regarding misconduct, as follows:
“I confirm that, following the completion of the investigation, it has been substantiated that:
In addition, it has also been substantiated that:
[13] In the ‘Further Transactions Identified for your Response’ correspondence to the Applicant, the Respondent stated:
“In considering the validity of the explanations in your response for your misconduct, I note that the 8 bookings put to you (the substantiated bookings) represented only a sample of booking changes we have identified as a result of this investigation. In total, the Company has identified 31 booking changes made by you. The 23 additional booking changes identified as being made by you also appear to be unauthorised changes involving similar breaches of the Standards of Conduct Policy (additional booking changes). These additional booking changes also share other similarities to the substantiated bookings including:
In addition, we are concerned that at least 5 of the additional bookings have a connection to “another employee of Qantas”*, including that they were made via the internet with “that employee’s” contact number or email address provided and/or were paid for by a credit card in the name of “that employee”. I note that “that employee” is currently under investigation by the Australian Federal Police and has been charged with fraud offences relating to defrauding an airline by buying tickets and on-selling them to passengers (*name withheld in this decision).
Enclosed in Attachment A are details of these further 23 additional booking changes for your information and response. For your assistance, a key to fare conditions is enclosed in Attachment B.” 3
[14] The Applicant provided detailed responses to these letters, (the following is an extract):
“As set out in all my responses to Qantas I do not dispute the majority of details of the conduct alleged against me. In particular, I accept that I made changes to passenger bookings involving the cancellation and rebooking of passengers and altering their dates of travel at their request.
However, I always performed in furtherance of my duties to act in the best interests of Qantas and in an effort to enhance customer service. I reject any assertion that may be made that this conduct was anything other than appropriate and in the ordinary discharge of my duties. I have always discharged my duties honestly. At all times I believed I was complying with Qantas policies and always believed that in my position as Customer Service Agent I was permitted to attend to these changes in bookings. When I changed bookings, it was done in good faith and fully in line with my understanding of Qantas policy.
I conducted myself openly and in no instance did I ever conceal the steps I was taking in respect of any customer of Qantas.
Further, I gained no financial or other advantage whatsoever from the changes I made to these bookings.” 4
[15] The ‘Outcome’ in the letter of termination of 28 August 2009 to the Applicant, stated as follows:
“In determining the outcome regarding your future employment, I have considered many factors including, but not limited to, your written responses provided by you, your length of service and your employment record for the duration of your employment with the company.
Paul, after careful consideration of the substantial responses you have supplied and the serious breaches of the employment contract and Qantas Policy in all of the circumstances, I find that you have engaged in serious misconduct. In addition, we consider that the frequency and circumstances in which you have misused your access as a CSA to the Qantas Reservations System to make unauthorised changes to bookings in which you have no operational involvement, has led to a break down of the trust and confidence that it is necessary for the Company to have in you for your continued employment.
Accordingly, we advised that your employment with Qantas Airways Limited will be terminated with effect from today, Friday 28 August 2009.
Based on the findings made, the Company is of the view that there are grounds for summary dismissal. However, in light of all the circumstances of your employment, the Company has decided to make a payment in lieu of notice, although it is under no obligation to do so. Your final pay and any unused leave entitlements accrued to 28 August 2009, together with five (5) week’s salary in lieu of notice, will be paid into your nominated bank account.”
Legislation
[16] This application was made pursuant to s.394 of the Act. Section 387 of the Act specifies the criteria that FWA must take into account when considering whether a dismissal was harsh, unjust or unreasonable. The relevant sections are set out as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy...
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) 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
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) 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
(g) 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
(h) any other matters that FWA considers relevant.
Fair Work Regulations 2009 - REG 1.07
Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable...
Evidence
[17] The following witnesses provided evidence on behalf of the Applicant’s case, in the form of Witness Statements:
[18] The following witnesses provided witness statements on behalf of the Respondent:
Summary of the Submissions of the Applicant
[19] The following summary does not provide an account of all matters raised in the series of written submissions in the matter, but all have been considered. It was submitted on behalf of the Applicant, that the allegations against him that led to the dismissal, arose against a background of advice provided in December 2008, to Ms Lyn Preston, Customer Services Manager. The advice indicated that customer service staff may have been accepting goods for upgrades on flights. The rumours did not refer to the Applicant and it was submitted that he had not been accused of upgrading passengers.
[20] As a result of the advice to Ms Preston, it was submitted that Mr Tregarthen, the Regional Security Manager, commenced monitoring the online activity of three staff members. The Applicant was not one of these staff initially investigated.
[21] It was argued on behalf of the Applicant that:
“The investigation commenced as a fraud investigation and quickly became an ‘echo chamber’ with some objectively incriminating evidence against “another employee”, leading Qantas management to an early rush for judgment. In “the other employee’s” case that he had committed fraud, and in Mr Carter’s case that he was linked to, and somehow involved in this fraud. By the time Mr Carter had been stood down on the 31 March 2009, and thereafter, the investigation only sought out and interpreted the evidence to confirm this predetermined judgment, and ignored or rationalised away any exculpatory evidence.
The nub of this matter is whether Mr Carter had discretion to change bookings. Mr Carter submits that if his booking changes had been looked at in isolation (rather than tainted with the allegedly fraudulent activity of the ‘other employee’ sting) they would never have been viewed as serious misconduct. Support for this proposition is that on 10 February 2009 four booking changes were made by Mr Carter without authority, using the Amadeus system. These booking changes were viewed objectively by his superiors unaware and untainted by the ‘other employee’s’ investigation. Mr Carter was on this occasion nominated for a Service Excellence Award.
The citation stated that:
‘Paul delivered exceptional customer service at check-in to a family after they had been previously disrupted. Paul retrieved the situation and re-accommodated passengers on flights to their final destination without further disruption. Because of the action undertaken by Paul and his good nature whilst dealing with this problem, this family were very pleased with the service provided with the situation at hand. The family insisted that I thank Paul for his efforts. Paul’s actions were exemplary and is a credit to him and his ability.’
The allegations against Mr Carter have arisen against the background, and must be considered in the context, of the not uncomplicated corporate and institutional practices, priorities and values established at the Brisbane domestic terminal over the last three decades (‘the Established Culture’).” 5
[22] It was argued that the Applicant’s dismissal was harsh, unjust or unreasonable and that the Respondent had not met the evidentiary onus, to support its contention, that the termination was on grounds of serious misconduct. Further, the Applicant submitted that the Standards of Conduct Policy and the Qantas Airways Disciplinary Process, which provide for alternatives to dismissal and appeal rights, had not been appropriately applied to him.
[23] The Applicant submitted that no allegations or findings of fraud or dishonesty had been made against him. It was stated that, had his case, been assessed separately to the significant allegations made against “the other employee”, his employment would not have been terminated, but he would have been subject to counselling or warnings. It was submitted that the Applicant’s behaviours would have been either ignored, if it related to staff rebooking or, treated similarly to the approach on 10 February 2009, where he was commended for his work in rebooking passengers and certainly no disciplinary action taken against him.
[24] It was argued that the consequences of his treatment in linking him to the possible fraudulent conduct of others and terminating his long-term career, were grossly disproportionate to his actual offences.
[25] Predominantly it was stated on behalf of the Applicant that his conduct amounted to: rebooking tickets in circumstances where there “is no evidence that Mr Carter has broken any policy, no evidence of dishonesty and no evidence that Mr Carter received any benefit.” 6
[26] The Applicant’s submissions were generally dismissive of the Respondent’s evidence as follows:
“As a general comment on all the witnesses appearing on behalf of the Respondent, there is an inevitable appearance of collusion and bias when witnesses are provided with witness statements, and correspondence on which to base their statements. In the circumstances of this case, the appearance is ineradicable, and the Applicant contends should result in all of the evidence led by the Respondent to be rejected or alternatively, cause the value of the evidence to be severely discounted.” 7
[27] It is noted that those matters of alleged collusion of witnesses, were not specifically put to the witnesses, nor their responses sought. The submission that Mr Waddell’s (Head of Domestic Networking and Pricing) evidence be excluded on the basis that it was in contravention of section 76 of the Evidence Act (Cth), on the basis that it does not “come within any recognised exception,” was also not specifically put to him in the terms set out below. 8 The Applicant’s submissions stated that:
“A reading of Mr Waddell’s statement reveals that it was based upon a combination of speculation, inference, personal and second hand views as to the adverse impact on Qantas when fare rules are not observed. The reasoning process leading to the formation of his opinions was not exposed and it cannot be said that his opinion was based on any kind of specialist knowledge.” 9
[28] These issues relating to the credit of this witness evidence, that is if his evidence, or the manner in which he reached his conclusions, had no foundation, were issues to be substantiated in cross-examination of this witness.
[29] The Applicant’s submissions stated in relation to Mr Waddell’s evidence:
“Logically, there were always a number of competing possibilities on the issue of whether there had been a loss of revenue or not. No attempt was made by Mr Waddell in his statement to take into account relevant facts or possibilities such as were set out at paragraphs 12-17 of the Applicant’s Submissions in Reply, such as
(a) the contractual arrangements in relation to each particular ticket that was altered;
(b) the status of the traveller, the reasons proffered for any change, and the impact this might ordinarily have on the discretion to change a booking without a fee being charged;
(c) the timing of the alteration in relation to when the flight/s is scheduled to depart;
(d) the availability of other seats on the flight/s right up to the point of departure; and
(e) what ultimately happened to the seats vacated by the alterations, eg. whether a later full fee paying customer took the seat.” 10
[30] The Applicant emphasised that these issues were raised in the initial submissions in reply, prior to the hearing and that the Respondent did not address these factors. The Applicant bears an onus to conduct the case to demonstrate the unfairness of the termination. These were all issues that should have been part of the cross-examination of this witness. However, it was submitted for the Applicant, that no basis for the particulars were adduced, to establish the basis of Mr Waddell’s reasoning process in relation to the Applicant’s booking activity impacting on revenue. If the Applicant took issue with this evidence, it was necessary to challenge the evidence in cross-examination; to establish that Mr Waddell’s evidence lacked proper reasoning. Having made this assessment; the submissions on behalf of the Applicant in relation to the evidence have been carefully considered, as follows:
“The notion that changing tickets which were bought at a particular price with limits on their ‘rebookability’ coupled with not collecting a further fee will result in pecuniary loss is simplistic without further evidence as set out ...
The reluctance of Mr Waddell to retreat from his employer’s position was observable in cross-examination, where Mr Waddell grudgingly conceded that it was possible for a force booking to result in a revenue increase to Qantas.
Another issue was Mr Waddell’s use of the 2010 change fees at paragraph 38(a) of his Statement rather than the lesser fees that were in place in 2008-2009. Although this may seem like a small matter in itself, it is symptomatic of a general tendency that was apparent with all of the Qantas witnesses: namely, that every attempt was made to present any version of events that might be though to favour Qantas, and no attempt to present alternative views that might be thought not to favour Qantas, or favour Mr Carter...
The impossibility of estimating any detriment to Qantas from booking changes was also conceded by Mr Craig Wheatley a witness for Qantas in the ‘other employee’s’ hearing, who said that just because a fare is forced does not necessarily mean that there is an adverse commercial consequence as there are many variables involved. Mr Wheatley also said that the very reason a forced booking can be made is that there are unsold seats. There is no evidence that there was any detriment, pecuniary or otherwise caused by any of Mr Carter’s booking.” 11
[31] The Respondent has an onus to demonstrate; the loss of revenue; where part of the reasoning for the basis for the termination, was that the bookings resulted in a loss of revenue.
[32] A number of witnesses provided evidence in support of the Applicant’s reference to the established culture. It is also acknowledged that a number of these witnesses were no longer in the employ of the Respondent. Mr Edmund Fordham, a former CSA who retired in 1997, Supervisor at Brisbane Airport stated:
“The Culture at QF Brisbane Domestic Airport has always been for the more experienced staff to make Decision for the On Time Despatch, Departure of Aircraft. In this Hustle and Bustle ( 30 mins, Aircraft Turnaround) it was necessary to flow forward (rebook) and upgrade to effect on time Departure.
The practice of Staff looking after Family and Friends has always been accepted at all QF Domestic Airports. Preferential Seating always followed commercial/company requisites.
To understand flow forward/re-booking/upgrade of passengers many aspects were involved; Overbook Flights (mainly economy class0; Missed or Late connections (transfer of thru pax); Aircraft Technical (breakdowns) problems; Inclement Weather Network Wide; Curfews at Other Airports; Long Weekend/Holiday extremely Heavy passenger Loadings; Misread Itenaries; the elderly and incapacitated.
To this end it was up to the more experienced staff that had to take the reigns and make the Decisions to effect a smoother operation.
Customer Service Supervisors always left responsibility with the more experienced staff. At times there could be up to ten departures within the Hour, Brisbane Domestic Airport being a hub ( centralized a/port).
I cannot recall any Staff being Disciplined for re-booking/upgrading passengers, it was the Done Thing to enable a problem free operation.
Day to Day control was always left to the Local Airport (the Coalface).” 12
[33] Mr John Gibson, a current telephone Sales Supervisor stated:
“Telephone sales has a practice that when advised of traffic congestion on any of the main arterials that passengers use to get to the airport, callers are advised that airports will accommodate them on the first available flight regardless of booking.
This practice remains in place and has been accepted customer practice for many years.
I also understand that this is done at no charge and is a customer service done for the delayed passenger. Therefore it is completely expected that a customer service agent would sort them out at the airport.
It has been accepted practice in Qantas to assist family members or friends, if this is possible without causing disruptions to other passengers or the airline.” 13
[34] Mr John Lacey, a Qantas employee of 22 years (retired in March 2009), stated:
“It has always been an accepted practise to move passengers to different flights; this may be either earlier or later without the need to collect additional payment.
This was a result of many different reasons including customer service, traffic delays to airport, bad weather, broken aircraft, late aircraft, down grade of aircraft and other airlines disrupted passengers just to mention a few.
Unlike the international operation which is allowed a good deal of time to process passengers the domestic operation was to process passengers quickly and efficiently whilst at all times getting aircraft out on time, this required the staff member to be responsible for their own decision and has been an accepted local agreement by management for over 20 years...
It has also been common practise for staff members to contact other staff members from time to time to ask for a passenger’s flight itinerary to be amended. This could be done by either a phone call or as mobile phones grew more popular one could be contacted by sms as sometimes the staff member would be moving around the airport on there duties.
I can only reiterate that the culture at the domestic terminal had been that way in my 22 years with the company, and as you are well aware the practise of moving passengers to alternate flights still goes on to this very day...” 14
[35] Mr Brenan Hole, a CSA of more than 20 years stated:
“My current position is Customer Service Officer - a role I have occupied for approximately eighteen years. My duties include supervising Qantas check-in and departure gate staff, disruption-delay handling, customer recovery and resolution of day to day operational problems. As such I am the first point of contact or reference for staff in regard to advice/decision making pertaining to the effective and efficient resolution of daily operation/ customer service issues.
In the performance of the duties outlined above, I (an [sic] obviously the staff that I supervise) am regularly called upon to deal with situations or scenarios which include flight overbookings, class oversales, travel agent booking errors, insufficient connection time, Qantas and other airlines disruptions and/or delays, passenger flow-forward policies due weather or capacity issues and as such I am regularly required to rebook, transfer or upgrade passengers. There has been a long standing expectation by my employer Qatnas [sic], my Supervisors/ Managers, my fellow Customer Service Officers and my fellow Customer Services staff that these operational/customer service issues are resolved in an efficient and effective manner using precisely these tools - rebooking passengers in the Reservations system and transferring or upgrading passengers in the Check-in system. This expectation has for many years (at least the past 18 years) been applicable to the staff that I supervise-that the problems are dealt with at the “coal face” either by the individual concerned if he/she has the knowedlge [sic] or by his/her immediate supervisor. Staff with three or more years service should have the basic skills/system knowledge to be able to rebook/transfer/upgrade a passenger to deal expediently and expediously [sic] with an immediate problem. Staff employed in approximately the past three years may or may not (most likely not due the lack of basic training) have the basic skills/system knowledge to adopt this course of action when dealing with a problem and are unfortunately encouraged to direct the problem to a specialised area - e.g. a Supervisor or Ticket Counter or Service Desk. For those longer term employees it has, however, been an intrinsic part of their work ethic- a long standing culture/expectation - to deal with these problems in such a manner using the aforementioned tools.
In regard to the above mentioned long standing workplace culture and ability of staff members to be able to rebook/transfer/upgrade passengers in order to deal with day to day problems, it should be mentioned that staff have also had the ability to afford this same privilege when dealing with personal acquaintances [sic]. Specifically, it has been a long accepted inherent practice to rebook subject to class availability without penalty to a friend / relative / acquaintance [sic]. This has been either overtly or covertly endorsed by Supervisors/Management for many many years dating back to pre the Australian Airlines/Qantas merger. This has been a practice not perculiar[sic] to Qantas’s port of Brisbane but network wide...” 15
[36] Mr Hole had received a warning, he had been found to have engaged in several unauthorised booking changes (fewer than the Applicant) but also upgrades for passengers.
[37] It was contended on behalf of the Applicant that he had never been trained in the requirement to seek authorisation prior to exercising the discretion to make booking changes. Further, that his actions were in accordance with the Respondent’s workplace operations, his experience, the culture and accepted practice at the workplace. He stated he had no knowledge of, and had not been trained in fare differences. He had also not received the Airport Product Services Manual, or the Standards of Conduct Policy and had not received any contrary directions to the ticketing practices he had undertaken (apart from the US related bookings).
[38] The Applicant stated that his last performance appraisal had occurred for the period 1 July 2001 to 30 June 2002, for which he was assessed as a sound overall performance.
[39] In defence of his actions in changing the bookings the Applicant stated:
“... I always performed in furtherance of my duties to act in the best interests of Qantas and in an effort to enhance customer service. I reject any assertion that may be made that this conduct was anything other than appropriate and in the ordinary discharge of my duties. I have always discharged my duties honestly. At all times I believed I was complying with Qantas policies and always believed that in my position as Customer Service Agent I was permitted to attend to these changes in bookings. When I changed bookings, it was done in good faith and fully in line with my understanding of Qantas policy.
I conducted myself openly and in no instance did I ever conceal the steps I was taking in respect of any customer of Qantas.
Further, I gained no financial or other advantage whatsoever from the changes I made to these bookings” 16
[40] It was argued on behalf of the Applicant that the real reason, that the Respondent activated his dismissal was that they had formed a premature view, that he had engaged in fraudulent conduct via association with ‘the other employee’. The Applicant argued that even though the Respondent had paid the Applicant 5 weeks wages in lieu of notice, the dismissal was stated to be based on ‘serious misconduct’. The Applicant submitted this was unsubstantiated.
Summary of the Respondent’s Submissions
[41] The following provides a summary, of a range of the arguments, raised in the series of submissions filed, all of which have been considered. The Respondent contended there was a valid reason for the termination of the Applicant’s employment, for serious misconduct based on the numerous unauthorised booking changes; in circumstances, where his actions were in breach of the Respondent’s fare rules.
[42] The Respondent stated that the unauthorised booking changes, prevented the Respondent from achieving the best revenue yields for its flights. They also submitted that the ticket alteration actions by the Applicant, provided advantages to selected customers only.
[43] The duties of the Applicant which were outlined by the Respondent as part of his CSA role; included face-to-face check in of passengers travelling out of Brisbane at that time at the check-in counter; by checking-in passengers, issuing boarding passes, baggage tags and excess. Reservations were not part of his duties at that time. The Applicant agreed with this assessment of his duties.
[44] In particular from 27 August 2007 to 3 March 2009 he undertook 2 hours of these check-in duties as outlined in his 8 hour shift. For the other 6 hours of his shift he undertook ‘coupon work’. This work was conducted in a room upstairs and did not involve customer contact. The work involved reconciling hard copy tickets against the names of passengers who had boarded a flight.
[45] The Respondent set out their fare rules as follows:
“When a passenger makes a booking, either by telephone with reservations, on the internet or the travel agent, a passenger name record is created (a “PNR”). The PNR holds all relevant information pertaining to the passenger and the booking.” 17
[46] When booking, customers confirm they have read the fare rules and are aware of the associated ticket conditions. The fare rules for domestic economy class tickets have predominately remained the same since 2003 in relation to restrictions and penalties. The Respondent set out the booking process and how the Applicant’s conduct repudiated the process and booking conditions:
“After purchasing a ticket a customer may later wish to change his/her day or time of departure. Whether this is permissible and whether penalties apply depends on the type of ticket purchased. The process of changing departure dates/times involves cancelling the original seat in the system and booking a new seat and re-issuing the ticket.
The general rule is that prior to the day of departure the customer may change a flight booking by exchanging the ticket for another ticket of equal or higher price. A change fee may apply, depending on the fare family.
For Red e-Deal and Super Saver tickets, cancellation and re-booking is possible before the date of departure by paying the difference between the new and old fares, as well as payment of an additional change fee. No change or cancellation is permitted on the date of departure. The ticket is forfeited.
The passengers with fully flexible and flexi-saver tickets, cancelling and rebooking of flights is permissible any time by the payment of a difference in the fares. No change fees are applicable. Fully flexible fares can be refunded.
Many business customers purchase the more expensive fare families so as to be afforded the flexibility of later changing or cancelling their bookings at short notice.
The Respondent services some 17 million passengers each year. The Respondent is determined to ensure that such customers have confidence in purchasing their tickets. In order to ensure this the Respondent must ensure that:
(a) there is a “level playing field” within the fare rules and conditions so that they apply equally to all Qantas passengers (regardless of their connection or relationships with Qantas employees);
(b) the fare rules and conditions for each type of ticket are not circumvented. The entire system is undermined if passengers purchasing cheaper types of tickets are able to obtain the same flexibility or conditions as more expensive tickets or for example if a person who buys the ticket for travel on an off-peak day is somehow allowed to change the ticket to a flight in higher demand without paying; and
(c) there is no secondary market for the on-sale of Qantas tickets which are not available to the rest of the general travelling public.
The rationale of the differential pricing of tickets is attributable to:
(a) the different rules and conditions applicable to each fare family. Some tickets have far more restrictions than other economy class tickets;
(b) when the bookings are made. Tickets purchased well in advance of the day of departure are likely to be cheaper than tickets purchased at the last minute (by which time the pre-allocated cheaper class of tickets have been sold);
(c) the expected demand for flights. Flights during off-peak times are cheaper than during peak times;
(d) any special promotional/sales deals made available from time to time during certain periods of the year or for particular flights.
Essentially, frequent flyer tickets have similar rules to Red e-Deal tickets. Except the changes result in the deduction of points rather than the payment of change fees...
The Respondent thus offered a range of fares with differing prices and conditions, which are carefully set having regard to operational, market and other considerations. Any unauthorised overriding of the pricing and conditions structure by changing bookings exposes the Respondent to a loss of revenue. Each of the 29 booking changes made by the Applicant in the present case were unauthorised. Mr Waddell estimates the total loss at $4,000.00 from the examples of the booking changes referred to in Mr Waddell's statement.” 18
[47] The Respondent emphasised that the fare rules prohibited particular changes with the class of tickets. Passengers were aware of these conditions at the time of purchase. The changes the Applicant made; ignored the conditions.
[48] The Respondent submitted further that the implications of a CSA, changing bookings without abiding by the fare rules and conditions were as set out below:
“There are some limited circumstances in which the fares to which amendment fees/charges normally apply can be changed without the payment of such fees/charges. However, this occurs only where the change is authorised by a supervisor such as a CSO or Duty Airport Manager.
In other circumstances, a CSA should refer the relevant customer to the airport’s tickets desk or seek further advice from the CSO or Duty Airport Manager.
CSAs at the check in counter, unlike staff at the tickets desk, do not have any cash handling facilities. This is consistent with the Respondent not having the expectation that these CSAs will transact booking changes for passengers outside of the fare rules. That is a job for the tickets desk ...One example of a situation where CSAs at check in are permitted to rebook a passenger regardless of the fare rules, is where the Duty Airport Manager gives a general instruction to “flow forward” passengers for particular flights on a given day. This occurs usually where it is anticipated that there will be some disruptions impacting on flights scheduled to depart later in the day. In these circumstances the normal fare rules are temporarily overridden and changes are made to the ALTEA CM system to enable CSAs at check in to rebook any early arriving passenger...
A passenger who arrives late is required to attend at the tickets desk. Rebooking may involve penalties depending on the fare type purchased by the customer in accordance with the fare rules. CSAs do not have any general discretion to rebook late arriving passengers. In some circumstances the Duty Airport Manager may permit a passenger to be rebooked on a later flight without incurring the penalties and requiring the purchase of a new ticket, for example where there are compassionate grounds or genuine mistakes or major disruptions to the transport system or where a passenger is misconnecting to a flight, etc. If this occurs the Duty Airport Manager asks that his or her authorisation be recorded in the system...
None of the circumstances in which Mr Carter amended bookings were authorised.
Mr Smith (Airport Operations Co-ordinator) states, ..., that it is not the practice for CSAs at Brisbane Domestic airport to be involved in a customer’s flight booking weeks or months in advance of the customer’s date of travel.
Nor is it a CSAs role to be dealing with customers who are not travelling through Brisbane Domestic airport at all.” 19
[49] The Respondent also specified a number of ways a passenger’s flight booking can be altered as follows:
“There are a number of ways in which a passenger’s flight booking can be altered........ These include, relevantly:
(a) Class change - a class change relates to a change in fare type (for example, a change from an O class ticket to a K class ticket);
(b) Change of port - this is when a ticket has been purchased for a particular route (e.g. Brisbane to Sydney return) and the passenger wishes to change the route (e.g. travel Brisbane to Melbourne return). The Respondent refers to cities around the world as “ports”. Changing the port will also change the fare/cost of the ticket;
(c) Change of date or time of travel;
(d) Forced booking - forced booking is done when there are no seats left available in the original booked class. To force book, it is necessary to override the reservation systems to take a seat in the class that is required. For example, if the original booked class is O and it is desired to change the booking to a flight in which there are no O class seats, but, for example, nine Y class seats, it will be necessary to force book an O class seat. That would take one seat away from the inventory of the flight in the alternate class.” 20
[50] The Respondent submitted:
‘The Applicant accepted that there were occasions where for operational reasons there would be an instruction given to CSAs working on the check-in counter to flow forward passengers (PN 520). He accepted that it was an order that was communicated over a speaker system called Centrum (PN 522 to 523). That communication “indicated that you could put people on whatever flights were available that had spare seats” (PN 524). He claimed he had no understanding as to why the flow forward instruction was given (PN 524). When it was given “I would act exactly what I’ve done beforehand, and if someone wanted to go an earlier flight I would put them on an earlier flight if there was a seat available”.’ 21
[51] The Respondent stated, the Applicant’s evidence indicated his disregard for the ‘flow forward’ situation and the announcements that indicated a changed status of operation, and that he engaged in this conduct without such an authorisation.
[52] The Respondent submitted:
‘The Applicant accepted that a person was required to be checked in at least 30 minutes prior to a scheduled departure flight (PN 539). There are occasions where someone arrives late and cannot be checked in to their flight. The Applicant rejected the proposition that the fare rules dictated the capacity for a person in those circumstances to be put onto a different flight that day (PN 543). It is difficult for this evidence to be accepted. On the Applicant’s case a person could miss a flight, any flight, with reckless ease and a replacement booking would be automatically available. It is incredible that a person with his experience would believe that to be so...” 22
[53] There was contrasting evidence between, the Respondent’s witnesses (and some of the witnesses for the Applicant), in comparison to that of the Applicant’s evidence, in that they had a knowledge, of the range of different tickets for domestic travel, with accompanying conditions.
[54] The Respondent stated:
“Although the Applicant knew there were different fare types during the time he worked in reservations, he somehow assumed it had all changed after he began working as a CSA, to the extent he believed all domestic tickets were now all the same;
The Applicant knew that there were "alphabetical letters" attached to the bookings on a flight and that it would be a mistake if he did not match the letters when making booking changes. However, he was somehow never aware and never tried to find out the letters in fact represented fare classes and why it would be a mistake if he did not match the letters.
The Applicant knew Qantas was using the ALTEA system to check in passengers. The transfer tab in ALTEA would not have permitted CSAs to make the changes made by Applicant. This safeguard would have immediately alerted the Applicant to the existence of certain fare rules. However, FWA is asked to accept that the Applicant was never alerted because he never tried to transfer passengers using ALTEA. Instead, he thought it was perfectly legitimate to use a totally different system Amadeus to make booking changes. It did not occur to the Applicant that he was in fact using Amadeus to circumvent the safeguards in ALTEA.
Whilst using the Amadeus system to make the booking changes, the Applicant was skilled in reading the contents of the PNR histories but somehow throughout his career he never saw any of the warning messages in the PNRs alerting him to the special conditions attached to the fares.” 23
[55] The Respondent also emphasised that the Applicant was aware that there was a ticketing counter within the Brisbane terminal. He acknowledged the CSA’s had no capacity at the check in counter to make monetary transactions in relation to their fare changes. However, his evidence was that he had no knowledge of the work performed at the ticket counter and he had no knowledge of the necessity to collect ‘change fees’ from customers.
[56] Whilst previously working in the reservations system, the Applicant had used the Amadeus system. He continued to rely on this. However, at the time of his dismissal CSA’s at airport check-ins used the ALTEA CM computerised system. The Respondent compared the two systems as follows:
“However, at the time that the misconduct on the part of the Applicant occurred, CSAs at airport check-in counters used the ALTEA CM computerised check-in system. This was separate and distinct from Amadeus. The process was that when a passenger appeared at the check-in counter, the CSA was to input the customer’s details into ALTEA CM, process any luggage and eventually issue the passenger with a boarding pass (if the passenger had not already obtained a boarding pass through the self-check-in kiosk).
There was a module within ALTEA CM that could be accessed by clicking on the “reservations” tab. By clicking on this tab a separate screen popped up through which the Amadeus reservation system could be accessed...” 24
[57] The Respondent set out the Applicant’s knowledge of the ‘Amadeus’ system as follows:
“He accepted that the short cuts and menus were clearly visible when using the ALTEA CM system. He noted that there was a tab called “transfer”. He then said, however, that he did never recall using the transfer tab and that if he was to change someone he would “bounce straight back” into the Amadeus system ... Incredibly, he said rather than try using the one ALTEA CM system to transfer someone it was easier to go to a totally different system screen and sign in to do it (via Amadeus). He said that if one wanted to be involved in the reservations, one used the Amadeus system. He refused to accept that when he was doing check-ins he was not involved in reservations; he was involved in checking people in. He assumed that even though ALTEA had been brought in he could still go off and use the Amadeus system (PN 629 to 656). This reveals another fundamental flaw in the Applicant’s version of events. It was clear that he was aware of the existence of ALTEA. It was also clear that he was aware that the transfer tab could be used to change passenger flights. Yet he steadfastly refused to accept that he ever used it. The reason, of course, for this is that he well knew that ALTEA restricted transfers to those transfers that could occur within the fare rules. He refused to accept this because to do so would have further undermined his case that he notwithstanding his years of experience (and alleged dedication to the Respondent) was quite unaware of the existence of different fares and different fare rules.
Each of the changes made by the Applicant was made using the Amadeus reservation system. This is revealed by the fact that each of the changes was made in the Amadeus reservation system via the Applicant’s individual “jump in code”...” 25
[58] The Respondent submitted that the Applicant’s consistent stated position, that he was not aware of the fare rules and implications; discredited him as a witness and undermined any trust and confidence the Respondent could have in him in discharging his CSA duties.
[59] The Respondent referred to the Applicant’s evidence, in relation to his stated lack of knowledge on the fares and that such discredited him:
“It was put to him that in paragraph 62 he referred to amending passengers’ flights either within or outside of the conditions on which they were travelling and that that practice existed throughout his entire period of employment and continued to exist to that day and that accordingly, he must have been aware that there were different conditions. He said, “I am not aware of what the conditions are, Commissioner”. Incredibly, despite his written statement he maintained his evidence that he did not know if there were conditions on tickets in recent times (PN 410).
When pressed by the cross-examiner and the Commissioner as to what the different alphabetical letters that he had referred to represented he said “Well, I’m not sure what they represented, Commissioner” and that he “never even considered what they may have meant” (see PN 413 to 419). That is a staggering piece of evidence from an ostensibly dedicated Qantas employee...
The Applicant was aware of the term “force booking” and stated that it involved “if that particular alphabetical number is not available in the system ... you could actually make it available” (PN 448).
He said that to the best of his knowledge he had only done that on days of departure (PN 449). That was wrong.” 26
[60] In this regard the Respondent referred to Booking Q as evidence of the Applicant making such alterations.
“He asserted that it would be incorrect to do it prior to the day of departure because it is only on the day of departure that “flights are put in the hands of airports” (PN 451 and 452).
The Applicant accepted that a force booking occurs where there is a booking change that is made and the booking that has been made in a particular fare type is transferred into a different fare type, in circumstances where there are no bookings available of the original fare type (PN 453 and 454).
He accepted that the requisite alphabetical letter is made available by taking a booking from a different class of letter (PN 460). Incredibly (but no doubt because he believed it aided his feeble case of ignorance as to conditions, etc.) he refused to accept, however that in so doing a fare was taken from a different fare type inventory (PN 462).
He accepted that “technically” it sounded plausible that when a force booking occurs what happens is that a passenger who is on the inferior fare at the inferior price is in fact given a booking that would otherwise have been available to a passenger to purchase at the higher price (PN 467).
The Applicant claimed that he was not aware prior to 31 March, 2009 of there being a class of fare of any sort that could not be changed without the payment of a change fee (PN 478).
The Applicant accepted that there was a ticket counter at the Brisbane domestic terminal and that it was located adjacent to the area in the Qantas domestic terminal where people go through the metal detectors and that he had a number of years ago worked at that tickets counter (PN 482 to 487).
During the period from August, 2007 to 31 March, 2009 he had no awareness as to what work was performed at the ticket counter and had no interest in the work that was performed there (PN 490 to 491).
He said that he was not aware that it was the ticket counter that people were supposed to go to who were required with their fare type to pay for example a change fee if they were changing their booking (PN 503).
He said that he would refer someone to the ticket counter if he could not find a booking in the system (PN 505). He accepted that if anyone had to do anything with regard to financial issues it could not be handled on the check-in counter (PN 515).
He refused to accept that he was aware of any conditions that might prevent a person from travelling on an earlier flight (PN 516 to 519).
His Counsel tendered the note of the conversation in which he was told in 2008 not to touch flights “ex USA” (exhibit 32). The Applicant ignored this direction.” 27
[61] The Respondent argued that the Applicant’s conduct with this overseas travel and fare activation beyond 12 months, demonstrated the disregard the Applicant had for the Respondent’s core business requirements of him.
“He also claims he was unaware that tickets had a finite life of 12 months and the conditions do not permit the ticket being reactivated when the customer has not travelled on the flight (PN1354 and PN1371)”. 28
Considerations
[62] The evidence of Ms Jasmine Sharrock, Senior People Advisor - Brisbane Airport, stated that 10 employees of the Respondent were being investigated for being involved in unauthorised changing of flight bookings exposing the Respondent to a loss of revenue. Various disciplinary outcomes occurred in relation to these employees.
[63] In relation to these employees Ms Sharrock stated:
“The investigations in relation to each employees were at various stages. Some investigations never reached finality as the employees under investigation decided to resign from Qantas before any findings could be made... (Five employees resigned including Peter Blewitt and the designated ‘other employee’).
Two employees (names withheld) were found to have improperly upgraded passengers on a limited number of occasions. Qantas considered their conduct was of a less serious nature in that they had not engaged in systemic booking changes in breach of Qantas fare rules. The eventual disciplinary outcomes for these two employees were that they were issued with written warnings.
Another employee (name withheld) was found to have engaged in more serious unauthorised booking changes in breach of Qantas fare rules. He was stood down during the investigation. The nature of the booking changes were similar to that undertaken by Mr Carter but fewer in number. During the investigation, this employee admitted to the gravity of his conduct, was remorseful and fully cooperated with Qantas’ inquiries. Accordingly, Qantas determined that the appropriate disciplinary outcome was to issue that employee with a final written warning and to allow him to return to work.
Finally, Brendan Hole was found to have engaged in several unauthorised booking changes (substantially fewer than Mr Carter) and upgrades for passengers and he was issued a written warning. As a Customer Service Officer (CSO) who supervised Customer Service Agents (CSAs), Mr Hole had wider authority than level 3 CSAs when it comes to making operational decisions for passengers at Brisbane Domestic Airport on their day of travel. Mr Hole nevertheless agreed during the investigation process that he should have spoken with the Duty Airport Manager (AOC) regarding some of the booking changes.” 29
[64] Ms Sharrock noted that throughout the investigation, she did not find the Applicant showed any remorse for his actions. This was in contrast to other employees who had (fewer unauthorised bookings) but had expressed remorse and had received warnings. The Applicant had not expressed remorse, as he consistently maintained the bookings were undertaken openly in accordance with the discretion afforded to CSAs.
[65] Ms Sharrock stated that it was decided that no further questions would be put to the Applicant at the termination meeting and therefore not having his barrister present at this meeting, would not prejudice him.
[66] Part of the case on behalf of the Applicant was that the Respondent could not definitively state whether a loss had been suffered as a result of the Applicant’s fare and ticket changes. It was proposed that if the Respondent undertook an elaborate exercise of assessing whether detriment was actually suffered by the Respondent, it may have found that his ticketing/booking changes may have actually improved revenue yields. That is, the Applicant contended that the Respondent needed to check whether, after the point of the Applicant changing the ticket, a full-fare paying customer had ultimately filled the seat vacated by virtue of the fare change. To avoid such detriment generally, the Respondent had the fare rules in place and expected them to be observed, except in cases where emergent circumstances of weather or the necessity of getting flights to depart on time, meant that “flow forward” directives were given.
[67] However, in stating such, it has been necessary to consider the circumstances of the Applicant’s conduct, against a background of what has been described by the Applicant, as an “established culture” at the Brisbane domestic terminal. The Applicant’s case was that CSAs had a discretion to alter ticketing to generally assist customers, such as ‘late’ customers. The re-booking activity had been condoned at this workplace for some time (as generally part of customer service to passengers depending on the circumstances CSAs were met with), until these matters involving ‘the other employee’ arose.
[68] It is recognised that evidence was presented, where the Applicant had successfully assisted customers, by rearranging their travel, by changing tickets (outside of the fare rules). His ability to do this, had been known by the Respondent, and he had been commended by customers and the Respondent for such activity. In this regard, the Applicant had certainly not received a consistent message about his conduct.
[69] However, it was also part of the evidence, that he had been advised to discontinue particular ticketing practices (related to US travel) via a record of discussion. The Applicant’s conduct must also be considered in accordance with that of other employees, who had received an alternative disciplinary course to dismissal, for fare rule breaches. The Applicant, had not been afforded an alternative to termination, nor had an opportunity to appeal such.
[70] The Applicant’s insistence that he was unaware of the different ‘Qantas’ fare types (apart from the variety of letters) and the associated fare rules is difficult to reconcile. The Applicant’s explanations for this lack of knowledge, have been taken into account. That is, he stated he had a lack of training in the tickets, new ticketing systems, the fare types and rules and a limited need to know the distinctions between the tickets.
[71] The Respondent stated that the Applicant’s “repeated denials of his awareness of his wrongdoings prior to his stand-down are unpersuasive”. However the Respondent could not provide a record of training for the Applicant in the ALTEA CM or the fare rules and conditions. The Applicant also could not recall being trained on the ALTEA CM. 30 Exhibit 22 ‘Training Records’ only provided evidence of training in the Amadeus system, the system the Applicant deferred to. Ms Simone Kennedy, Training Co-ordinator, confirmed she could not see any record of ALTEA CM training for the Applicant.31 She also conceded the “check-in system training was provided at a very, very basic level”.32
[72] The Respondent argued that the Applicant was aware of the differences between fares, and the evidence supported, that the Applicant ignored the “numerous systems and signposts” in the ticketing system, that made the Applicant aware that he was breaching the fare rules. The Respondent emphasised that whilst the old Amadeus System allowed the changes, a number of the fare changes cannot be amended in ALTEA CM and a number required the payment of fees and charges.
[73] The Applicant’s reasoning, justifying his ignorance of the different fare categories has been considered. He argued that his ignorance related to his lack of training in the current ALTEA CM ticketing system, and his reliance on the old Amadeus system, which he had been trained in, he was experienced in using and was still available. Further, he stated, he had little need to know the difference between fares as the CSAs had a discretion to change the tickets and that such ticketing changes were condoned over a long period by the Respondent, at Brisbane airport. In addition, the Applicant stated, whilst he was not aware of the difference between the fare categories or associated conditions, he would mainly match the letters for fare changes; that is, changing like with like.
[74] Although, it is difficult to comprehend that the Applicant had no knowledge, that there were different fare categories; given his length of service with the Respondent, his work in the reservations department, the retail office, the ticketing department and as a CSA in the terminal, the Respondent has not demonstrated that training was provided to the Applicant or that the culture did not actually exist.
[75] The Applicant had engaged in this conduct for sometime without audit by the Respondent. It is recognised that the Applicant’s rebooking activities provided an inequity between the treatment of passengers and disregarded the nature of their tickets. The Applicant’s consistent evidence was that; he had operated to assist customers with their travel requirements and it had not been an issue previously at the domestic terminal. In fact the Respondent had been aware of his activity in re-booking and his use of Amadeus. They had commended him for such conduct, related to re-booking of a family on 10 February 2009.
[76] The Applicant rebooked late passengers without authority or referral, to the tickets desk, or the Duty Airport Manager for permission. Penalties may have been applicable for the rebooking. However the evidence reflected that he and other CSAs had engaged in this activity on an open basis for some time, without being checked, appropriately counselled, disciplined or stopped. This activity, on the evidence, as related to the employees in question, referred to a minor number of alterations overall and does not undermine the confidence in the Respondent’s fare system.
[77] Of significant concern to the Respondent, was the Applicant’s involvement in amending a customer’s flight booking, weeks or months in advance of the travel date. Further it was difficult to comprehend why the Applicant would have been moved to alter a customer’s ticketing arrangements when this did not include travel through Brisbane Domestic Airport, or outside of the 12 month period of the ticket.
[78] However, the evidence suggested that the CSA alterations were occurring without the authorisation the Respondent expected. It was open to the Respondent to audit the work of the CSAs and also to assess why the Amadeus system was still being utilised, if this was not their preferred operational system. The Respondent was able to produce detailed information of the CSAs’ activities with PNRs, accordingly this information could also have been used to ensure regular compliance. There was also a minimum of information provided by the Respondent on the training the Applicant had received in ACTEA CM, and a lack of information regarding the provision to the Applicant of the Respondent’s policy documents and, Product Services Manual; that set out the required conditions and authorisations for the fares.
Section 387
[79] As required of s.387 of the Act, the following matters must be taken into account by FWA when considering whether a dismissal was harsh, unjust or unreasonable:
s.387(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
[80] The Respondent stated the evidence of the numerous unauthorised booking changes provided a valid reason for the dismissal.
[81] Whilst no case of fraudulent activity can be sustained against the Applicant; it is questionable whether valid operational reasons existed to support the Applicant exercising a discretion, he maintained he held, in relation to each incidence of booking alterations. However, in the main, the booking changes were activated openly, with a motivation by the Applicant, that demonstrated his naive enthusiasm towards service to customers and colleagues, with disregard to any restrictions. He had been commended for this customer service, for using his initiative in this way, without authorisation. His activity was undertaken in accordance with this discretion, he understood he held. There was no evidence of the Respondent monitoring the CSAs work prior to the issues arising with the ‘other employee’. In fact the ‘established culture’ had as a basis, the aim of customer service and timely departures and this was the overarching basis that the Applicant stated for the changes. Taking into account, all of the circumstances; no valid reason was made out and none that demonstrated that the Applicant had engaged in serious misconduct.
s.387(b) whether the person was notified of that reason; and
[82] The Applicant was provided with a ‘show cause’ letter setting out the allegations. The further allegations were provided to him with attachments including the PNR’s or the computer tracking changes of the booking changes, and a guide to the different fares. The Applicant was made aware of the nature of the bookings in question. The association of these bookings with that of ‘the other employee’ was also included in the allegations. The letter of dismissal set out the reasons for the termination of his employment, but did not refer to the Applicant’s avenue of appeal to the decision. Whilst the Applicant was properly notified of the reason, he was entitled to have his appeal rights set out.
s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[83] The Applicant was stood down on pay, on a without prejudice basis, to allow him to respond. The Applicant then received a ‘letter of allegation’ from the Respondent, detailing 10 allegations to which he responded.
[84] The Respondent further wrote to the Applicant detailing their findings. At this point the Applicant engaged a lawyer to act for him. The lawyer wrote on his behalf to the Respondent. The Respondent wrote to him again setting out a further 23 booking changes for his response. Two further responses were provided. The Applicant received notice that the Respondent had terminated his employment.
[85] The Applicant was provided with a series of opportunities to respond to the allegations. It is recognised that the Applicant considered that he was at a disadvantage at particular stages, in providing a response to the series of entries, that formed part of the allegations. When the matter came to hearing in these proceedings, he had had access to a comprehensive set of discovered documents and had the ability (with his barrister) to fully assess the entries and provide his appropriately considered responses to the allegations. His position, as provided in his responses, was not significantly altered at hearing, from the original responses he presented, prior to the termination.
[86] The Applicant contended, denying him the ability to provide appropriate responses without his barrister was a significant procedural flaw. 33 However this was only potentially an issue at the dismissal meeting, when his barrister was not available. Having assessed the material regarding the original responses; his later responses provided with the assistance of his barrister and his responses in cross-examination, evidence has not emerged that demonstrated that the procedure provided to the Applicant (regarding his opportunity to Respond) was deficient to such an extent that his awareness of the allegations, or his ability to respond was compromised.
s.387(d) 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
[87] In relation to s 387 (c) and s 387 (d); the procedural flaws in the termination process that have been emphasised on behalf of the Applicant, have been taken into account. These include the manner of the dismissal, the inability of the Applicant to have his representative, his barrister present, and the lack of communication about his appeal rights to the Applicant at the termination meeting and in the associated correspondence.
[88] It is necessary to assess the Applicant’s conduct and the nature of the procedural flaws. Given the nature of the Respondent’s corporate entity and size, and their ability to access dedicated human resource specialists; it is noted that such procedural flaws arose in the process. Consideration has been afforded to the process deficiencies (regarding the omission of the appeal avenue and the lack of consideration to alternatives to dismissal), particularly given the gravity of the dismissal decision for the Applicant, and his significant length of service.
[89] The Applicant’s evidence regarding the immediate impact of the termination decision; on him, has been considered also. The Applicant described the effect of the dismissal decision. He described how his reaction was all the more stark; given he had no representative or support person with him.
s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
[90] The Respondent set out the context of the Applicant’s conduct in undertaking numerous unauthorised booking changes as a CSA at Brisbane Domestic Airport. The Respondent submitted that based on the Applicant’s areas of work, length of service and experience he knew his actions were in breach of the Qantas fare rules.
[91] The Applicant was a long serving employee, whilst he had received correspondence to desist from certain of the re-booking actions, he had not received any counselling and/or warnings for the conduct complained of. This was a matter that required the proper application of the disputes procedure. Disciplinary steps, prior to dismissal were appropriate
s.387(f) 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 s.387(g) 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
[92] The Respondent is a large employer with dedicated human resource management specialists available. The final termination advice and process (without a required reference to the appeal process) should not have occurred; given the repercussions of the decision for the Applicant.
s.387(h) any other matters that FWA considers relevant.
[93] Consideration has been placed on the Applicant’s significant length of service. He and his wife have been part of the employees of the ‘Qantas family’ for many years. Other factors submitted as relevant to the Applicant’s circumstances were his age; his prior ill health; that they have a teenage son; and that this is the nature of the work he has undertaken for many years.
[94] In addition; the Applicant raised as a relevant consideration, the embarrassment and damage to his reputation, the Applicant stated he experienced, in being falsely accused by the Respondent and associated with the suspected fraudulent activity of the ‘other employee’; without receiving an apology for such.
[95] Further, the importance of the Respondent, offering equitable treatment to its customers, by ensuring CSA’s honour the fare rules, to ensure no customer receives an unfair advantage, was taken into account. In addition, the reasonable expectation of the Respondent to have trust and confidence in the manner in which employees discharge their duties was considered.
[96] The Applicant’s denial of any knowledge of the variety of fares and associated conditions was considered to be a very remote position, based on his service, roles and experience. However in parallel to this, the evidence that an ‘established culture’ existed, whereby the Respondent countenanced the fare changes was examined against the allegations. The circumstances where the Applicant was afforded a commendation for service in assisting passengers where alterations were required, without seeking authorisation; was attributed weight in the circumstances.
[97] The proper application of the Respondent’s Disciplinary Procedure is an important and relevant consideration. The Applicant referred to the deficiencies in the application of the Respondent’s ‘Employee Misconduct and Disciplinary Policy’ to the Applicant. The policy states:
“EMPLOYEE CONDUCT AND DISCIPLINARY POLICY
1. Policy Objectives
1.1 When the conduct of an Employee does not meet the standard of conduct required by the Company, appropriate corrective action will take place in accordance with the Company policies and procedures and any relevant award or Workplace agreement provisions.
1.2 This policy sets out a framework whereby Employees and Managers can address issues of Unacceptable Behaviour and Misconduct by:
(a) ensuring Employees and Managers are aware of their rights and responsibilities with respect to the Company’s disciplinary process;
(b) taking steps to improve Employee conduct where necessary and;
(c) ensuring that all matters involving appropriate conduct are dealt with fairly, objectively, promptly and consistently.
[98] The policy also states:
“3.2 Employees are responsible for:
(a) understanding all terms and conditions involved in their employment and rules relating to their job;
(b) familiarising themselves with and understanding all Company and Qantas Group policies which apply to them, particularly those relating to standards of conduct;
(c) informing their Manager when they have observed or otherwise been informed of any instances of possible Misconduct or Unacceptable Behaviour by co-workers which may be in breach of Company policy, legislation or other relevant rules or regulations, particularly when the conduct may impact on the safety of co-workers or customers;
(d) participating fully in any disciplinary investigations so that:
(i) their version of events can be heard;
(ii) any allegations can be fully investigated and appropriate action taken; and
(iii) any training or developmental issues or barriers to improvement can be identified and addressed; and
(e) arranging to have a Support Person present at any meeting or discussions if they require one...”
[99] The policy provides for a range of formal and informal disciplinary processes to address misconduct or unacceptable behaviour. Within the formal process;
“4.6 Formal processes
(c) An Employee may have a Support Person present during any meeting or discussion which takes place as part of a formal disciplinary process. A Company Witness should also be present at any such meetings or discussions.”
[100] In selecting the appropriate disciplinary action the policy states:
“4.6 Formal processes
(g) Determining appropriate outcomes and taking disciplinary action
(i) The relevant Manager and People/HR Representative will determine what type of disciplinary action is appropriate in respect of any substantiated allegations. In making this decision, the following factors should be considered:
(ii) The relevant Manager and/or People/HR Representative will inform the Employee of any disciplinary action being taken against them in respect of the substantiated Misconduct or Unacceptable Behaviour. Details of any disciplinary action being taken must be provided to the Employee in writing.”
[101] With regard to dismissal, the policy requires consideration of the alternatives to dismissal first. No proper consideration of alternatives was demonstrated:
“(iii) Dismissal and Summary Dismissal
[102] In addition the policy includes appeal rights for employees as follows:
“(iii) Dismissal and Summary Dismissal...
[103] The Employee Appeals Policy sets out the internal process, which states in particular:
“4. Overview of Employee Appeal Process
4.1 The purpose of an Employee Appeal is to inquire into the processes and/or decisions which are the subject of the appeal, to determine whether there was any unfairness or error which might constitute grounds for changing the process or decision.”
[104] There was a lack of proper application of the disciplinary policy, in terms of the omission of a support person, the communication of appeal rights and the lack of considerations of alternatives to dismissal; particularly given the Applicant’s 24 years of service.
Conclusion
[105] The dismissal for ‘serious misconduct’ on the basis of the material presented is not commensurate with the definition of such in Regulation 1.07 of the Fair Work Regulations 2009. There was no evidence that the Applicant acted to gain any personal or pecuniary or other advantage or acted directly to deprive the Respondent of an interest. There was no evidence to sustain a breach in terms of Regulation 1.07 such as theft, fraud, or direct evidence of refusal to carry out a lawful or reasonable instruction. The Respondent reacted prematurely to the information that the Applicant was associated with the alleged conduct, of the ‘other employee’ suspected of fraud.
[106] There was evidence that the Applicant engaged in the conduct of unauthorised booking changes in the context of the Respondent’s strong focus on customer service which was instilled in employees. In accordance with this the Applicant stated, that he engaged in the re-bookings; simply to assist passengers and co-workers. This evidence revealed his drive to provide customer service, for which the Respondent had commended him.
[107] Whilst, a number of re-bookings relate to simply amending travel bookings in line with customer’s travel preferences, in situations where although he provided reasons for the amendments, it was apparent there was no valid operational basis for his involvement or for him to be drawn into changing the fares. The Applicant via this activity contributed to the situation; it was open to the Respondent to commence a disciplinary process on this basis.
[108] The initial suspicions of the Respondent that ‘the other employee’ and by association the Applicant; were involved in fraudulent conduct in the re-bookings being undertaken, have not been made out.
[109] Whilst, the Applicant had engaged in re-booking in breach of the fare rules; with the Respondent stating a possibility that such equated to a revenue loss of ‘$4000.00’, 34 there was no direct causal link to such a loss, made out.
[110] The Applicant’s conduct in changing the bookings in breach of the fare rules; which should have been known to him cannot be condoned. The possible level of loss does not diminish the activity. However these are performance issues that given the Applicant’s length of service, that in the first instance should have been the subject of performance management to remedy the conduct; prior to the direct escalation of the disciplinary policy to dismissal.
[111] The conduct also has to be measured in the context of the positive sanction for some re-booking activity, that the Applicant had received. The conduct does not equate, in all the circumstances to ‘serious misconduct’.
[112] There was evidence regarding the ‘established culture’ existing at the workplace for some time. The culture provided the CSAs, with a discretion to assist customers to ensure their travel was effected and planes departed in a timely manner to avoid the Respondent incurring penalties. Having stated that, a range of the Applicant’s amendments to bookings, did not have such defined operational bases. These were matters that should have been identified; at the time and dealt with on an incremental basis against the disciplinary policy.
[113] On the evidence it cannot be conclusively found that the Applicant was deliberately circumventing the ALTEA CM system, to make the changes in the Amadeus system. However it is clear that the Applicant’s deferral to the Amadeus system, masked the alerts to the fare rules and conditions, related his re-bookings.
[114] The Applicant had not received appropriate training in the ALTEA CM system, but had been using it. He had received training in the Amadeus system, which he was very familiar with and it remained available to be used. It was open to the Respondent to prevent or limit the use of the Amadeus system. The assessment of the PNRs for the booking amendments on 10 February 2009, for which the Applicant was commended; would have indicated his use of the Amadeus system. Also given this commendation (for similar activity for which they also complained of) it is considered there can be the trust and confidence in the employee.
[115] Taking into account all of the circumstances of this matter, the dismissal is considered to be harsh, unjust and unreasonable. The Applicant sought reinstatement as the remedy. Reinstatement with continuity of earnings from the date of dismissal is not considered appropriate, given the Applicant’s contribution to the circumstances, particularly in relation to the bookings made without valid operational reasons. It was open to the Respondent to commence a disciplinary process for these. The move to dismissal for serious misconduct in the circumstances was unwarranted. There were a number of deficiencies in the conduct of the Applicant, similar to the conduct other employees were warned for. It was highlighted erroneously that the Applicant did express remorse. The case for treating the Applicant in such a comparatively different way was not made out.
[116] As stated the Applicant contributed to the circumstances. However on the Respondent’s part there was in relation to this employee, inadequate monitoring of the bookings, training and performance reviews, all of which may have averted the events.
[117] The Respondent also did not appropriately apply their disciplinary procedure. The Applicant had more than 20 years of service; he deserved to have all alternatives to dismissal be exhausted. This was not done. Further he was not advised of the appeal process in relation to the dismissal decision. This should have been made clear to him.
[118] For the aforementioned reasons and in recognition of the failing on the part of the Applicant as referred to but also in the Respondent’s decision to dismiss; a remedy of reinstatement with a continuity of service is considered appropriate, but without continuity of payment of wages.
[119] It is of course emphasised, that conduct considered to be in breach of the fare rules and CSA obligations, by the Applicant (once appropriate directions, training and product manuals have been provided) may obviously, in future, be viewed in a different context.
[120] Order (PR517011) is separately issued.
COMMISSIONER
Appearances:
Ms Jennifer Beck, Counsel, instructed by Mr Bogan, for the Applicant
Mr Chris Murdoch, Counsel, instructed by Mr Li of Blake Dawson, for the Respondent
1 Applicant’s Final Submissions, [7].
2 Show Cause Letter.
3 ‘Further Transactions Identified for your Response’, Show Cause Letter,
4 Witness Statement of Mr Paul Carter, [5]-[8].
5 Applicant’s Final Submissions, p 2-3.
6 Applicant’s Final Submissions, [18].
7 Applicant’s Final Submissions, [113].
8 Applicant’s Final Submissions, [21-22].
9 Applicant’s Final Submissions, [23].
10 Applicant’s Final Submissions, [31].
11 Applicant’s Final Submissions, [33-35;] and [ 37].
12 Witness Statement of Mr Edmund D. Fordham, [6-12].
13 Witness Statement of Mr John Gibson [4-7].
14 Witness Statement of Mr John Lacy [4-11].
15 Witness statement of Mr Brendan Hole [1-4].
16 Witness Staement of the Applicant, [6-8].
17 Respondent Final Submissions [17 - 37].
18 Respondent Final Submissions [17 - 37].
19 Respondent Final Submissions[17 - 37] ,Witness Statement of Mr Smith [17 -18] [38-48] and [61-62].
20 Respondent Final Submissions [7].
21 Respondent’s Final Submissions [44]
22 Respondent’s Final Submissions [47]
23 Respondent’s Final submissions, page 2.
24 Respondent’s Final Submissions [12-14].
25 Respondent’s Final Submissions [15-16].
26 Respondent’s Final Submissions [38].
27 Respondent’s Final Submissions [38].
28 Respondent’s Final Submissions [38].
29 Witness Statement of Ms Jasmine Sharrock [8-10].
30 Transcript PN 267.
31 Transcript PN3434.
32 Transcript PN 3471.
33 VP Lawler, SDP O’Callaghan, Raffaelli, C, Farguharson v QANTAS Airways Ltd (2006) 155 IR 22 at [41].
34 Respondent’s Final Submissions [36]
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