Andrew Lacey
Managing Principal
Employment
Dealing with a company’s corpse: The Sakr Saga continues as Liquidators struggle to get their fees approved
28 June, 2017
Benjamin Gigney v Qantas Airways Limited T/A Qantas [2018] FWC 1352
A recent case in the Fair Work Commission has contemplated when a breach of a workplace conduct policy can justify dismissal. The case also makes it clear that an unblemished work record does not give an employee a ‘free pass’ when it comes to an incident of misconduct.
Background
Despite the fact he had worked for Qantas for almost 12 years and maintained an unblemished record during that time, Qantas baggage handler, Mr Benjamin Gigney was dismissed for fundamentally breaching the Qantas Group Standards of Conduct Policy (Conduct Policy) in respect of his behaviour toward Qantas Airline Services Operator, Mr Agostinho Alves.
The alleged actions of Mr Gigney toward Mr Alves included:
- Blocking Mr Alves from exiting the locker room and yelling words to the effect “you should have some respect for me” before grabbing him by the shirt and shoving him into a locker. The altercation resulted in Mr Alves’ shirt ripping and sunglasses breaking.
- Telling Mr Alves that it is “un-Australian not to go sick” and that if he is not willing to “go sick” he should “f*** off to [Mr Alves’] own country.”
- Shoving a table that Mr Alves was seated at into Mr Alves body as Mr Gigney walked past.
In his application to the Fair Work Commission challenging the validity of the dismissal, Mr Gigney submitted that the behaviour was just “argy bargy” between friends. He also submitted that he was the victim of bullying and victimisation during the “supposedly impartial investigation into a relatively minor incident”.
Decision of the FWC
The FWC found that the reported incidents, which were substantiated by witnesses, were not trivial incidents but serious matters that breached a number of Conduct Policy provisions.
The FWC considered the gravity of Mr Gigney’s breaches and that he had completed training on the Conduct Policy only 12 months earlier. The FWC concluded that while a breach of the Conduct Policy does not ordinarily justify automatic dismissal, where a fundamental breach has occurred, such as that by Mr Gigney, a valid reason for dismissal exists.
The FWC found that the conduct in relation to the sick leave incident was “extremely serious” and, on its own, would justify serious sanction. However, when each of the incidents found to have occurred were considered as a whole, they were substantially serious and provided a valid reason for dismissal.
In addition to whether there was a valid reason for the dismissal, the FWC also considered the following in determining that the dismissal was “harsh, unjust or unreasonable”:
(a) That Mr Gigney was made aware of the allegations against him by Mr Alves, and invited to provide a response;
(b) Mr Gigney was made aware of the reasons for his dismissal;
(c) Qantas afforded Mr Gigney the opportunity to respond to matters that created the basis of the reasons for his dismissal and investigated all claims he made in return;
(d) Mr Gigney failed to show remorse for his actions and continued to consider his breaches as ‘minor’;
(e) Mr Gigney and Mr Alves were not friends, as suggested by Mr Gigney; and
(f) Mr Gigney had an unblemished record, although it did not outweigh his recent actions.
Key take-aways
- A fundamental breach of a company’s conduct policy can give rise to a valid reason for dismissal, even in circumstances where the employee has, until that point, an unblemished work record.
- Importantly, to rely on the employee’s breach of the policy, the employer must ensure that its employees have received training about the employer’s company policies.
