In a recent example of a termination going wrong, Qantas was
ordered to reinstate an employee of 25 years standing, partly
because the evidence relied upon to terminate her employment proved
to be unreliable at the hearing of her unfair dismissal claim, and
partly because the incident which triggered the termination was too
trivial to justify drastic disciplinary action.
Ms Adachi had worked as Qantas cabin crew for many years. She
began falling out with her managers in late 2012 and early 2013
when they insisted that she undertake some training, which she felt
that she should not be required to do. She took some time away from
work on personal leave, on the basis of stress, and returned to
work with a medical certificate which identified that she was fit
to return to work, but not to undertake the training with the
particular managers with whom she had difficulties. There was some
confusion about the medical certificate, and she took it back to
her doctor who ticked a box labelled "Fit for suitable
Ms Adachi then returned to Qantas with the certificate and gave
it to one of her managers, Mr El Khoury. He looked at the medical
certificate and pointed out that it did not indicate that she was
free to undertake pre-injury duties, which meant she was not able
to fly. Ms Adachi became seriously upset and tried to grab the
medical certificate back from Mr El Khoury. A brief tussle over the
document ensued. Mr El Khoury insisted that he would keep the
document and provide Ms Adachi with a copy but she wished to
recover the original document she had provided. He said she tried
to prise his fingers off the certificate so she could reclaim
The incident went to HR, and an investigation ensued in which
substantial evidence supported Mr El Khoury's version of
events, and Qantas terminated her employment.
When the case was heard by the Fair Work Commission, some of the
evidence which support Mr El Khoury's version of events was
found to be entirely unreliable, and therefore discounted
completely. In the end result, the FWC found that the incident,
while inappropriate on Ms Adachi's behalf, involved a brief
"tug of war" over possession of the medical certificate,
and did not involve any form of physical assault on Mr El Khoury,
and was a momentary lapse immediately after return to work from a
period of stress leave. The Commissioner observed that Ms Adachi
was unable to accept criticism or any failings on her part and
believed that she was being persecuted, which was wrong. But he
considered that the termination was harsh, unjust and unreasonable
because dismissal was out of all proportion to the conduct of Ms
Adachi in this isolated incident, and did not pay sufficient regard
to her work history, her past service, and her recent stress leave.
He therefore ordered her reinstatement, finding that it would not
be impracticable for her to return to work for Qantas.
The fact that the Commissioner made findings different from
those of Qantas' internal investigation illustrates an
inevitable risk in dismissals. The enquiry undertaken by the Fair
Work Commission will often be much more thorough than the workplace
investigation, as it allows weighing up of all of the evidence
available, in a sworn form, and with the opportunity to see
witnesses giving evidence and being cross-examined. This is a much
more detailed (and leisurely) process than occurs in most workplace
investigations, so it is not surprising that sometimes the
Commission will find the facts to be different from what the
workplace investigator established.
However, the conclusion that the termination was harsh in the
broader context of the years of service and triviality of the
incident itself is a salutary point. As an employer, it is easy to
see things through a narrower perceptive, focussed on the immediate
events, and it is necessary for anyone conducting an investigation,
or making a decision with respect to termination, to stand back and
consider the position more generally, particularly
in the case of contested allegations which, on one view, might
not be that significant, and
when the employee in question has lengthy service, a past good
record, and perhaps other mitigating circumstances which justify a
disciplinary step less than termination of employment, such as
missing a pay increment, or receiving a final warning that any
repetition of the conduct in question will result in
It is always wise to consider how the termination might look to
an independent outsider, and whether some other lesser course of
action will meet the organisation's needs for appropriate
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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