Date: January 30, 2016
The recent Fair Work Commission (FWC) decision of Rouady v Qantas Airways Limited  FWC 33 emphasises the importance of conducting a thorough investigation and providing an employee the opportunity to respond to allegations even where an employer’s concerns relate to serious safety issues.
The employee’s role entailed refueling airplanes, driving tugs, moving machinery and loading and unloading aircraft. The employee was alleged to have committed three main safety breaches including by driving the wrong way down a one-way tunnel, driving a tug which encroached under a B777 aircraft in breach of operating procedures and driving into a tug being operated by another driver.
Following the incidents, an investigation was conducted, the employee was invited to attend four separate meetings and was provided with a “show cause” letter inviting him to explain why his employment should not be terminated.
The FWC found that the three incidents constituted a valid reason for the termination of the employee’s employment stating that “Qantas was justifiably concerned about [the employee’s] conduct, especially in light of the potentially adverse impact it could have had upon his own safety and that of others…” [at para 23].
Importantly, and at the point where many employers fail, the FWC found that Qantas had afforded the employee procedural fairness during the investigation process, noting that the employee “was given ample opportunity to respond to Qantas’ allegations and findings throughout its investigation of the incidents, both verbally at the numerous meetings and in writing” [at pare 25]. The FWC also noted that the employee’s responses, importantly, had some influence on the investigation and that the person investigating took a statement from an additional witness because of the employee’s input.
The FWC was not persuaded to find the dismissal unfair on grounds related to the employee’s lengthy period of service and the impact of the termination on his personal circumstances, particularly as his record was not unblemished before the three incidents noted above occurred. The FWC also accepted Qantas’ submissions that the employee’s length of experience should have given rise to greater familiarity with the required procedures and safety policies.
Ultimately, the FWC found that the termination of the employee’s employment was not unfair.
This decision highlights the need for employers to follow a thorough investigation and show cause process when dealing with safety-related disciplinary issues. It is likely that the conclusion would have been very different had Qantas not done so.
Whitehall Workplace Law
Level 14, 330 Collins Street, Melbourne, VIC 3000