Australia: Reinstatement a real risk if you treat employee safety breaches differently

Last Updated: 7 April 2016
Article by Anna Casellas and Maddy Clohessy

Most Read Contributor in Australia, August 2016

Key Points:

The Fair Work Commission has ruled that Jetstar must reinstate a 60 year old engineer who committed safety breaches because it had applied its safety policies inconsistently in the past.

A "once off aberration" of driving an unregistered vehicle off site to satisfy a hunger craving on the job may be a harsh reason to dismiss an employee, based on an employer's past history of punishment for safety breaches (Mr Raghbir Gill v Jetstar Airways Pty Ltd [2016] FWC 1472).

Mr Gill was dismissed from his position as a licensed aircraft mechanical engineer at Avalon Airport by Jetstar in July 2015 for driving an airport "tow-tug" on a public road to pick up some lunch from a nearby BP service station.

The Jetstar van usually available to Mr Gill had broken down and Mr Gill believed that he could not obtain lunch without leaving Avalon Airport.

Conduct a valid reason to terminate employment

Following an investigation, Jetstar advised that the tow-tug was not registered to be used or permitted to be used on a public road, nor was it equipped with adequate safety protections to drive on a public road and this was common knowledge. Mr Gill was found to have breached Jetstar and Qantas policies and a Cardinal Rule of Safety.

Mr Gill admitted the conduct, and the Commission was satisfied that the misconduct was a valid reason for his dismissal.

Harshness

Although the reason for Mr Gill's dismissal was valid, he claimed that it was a disproportionately harsh response to the misconduct.

Specifically, Mr Gill relied on his:

  • age of 60 and the relative difficulty of obtaining further employment in a narrow industry of aircraft maintenance, or of being able to transfer his skill set to another industry;
  • exemplary record over a 30 year career, 4.5 years of which were spent at Jetstar with no prior performance or safety issues;
  • family circumstances as the sole income earner;
  • immediate co-operation and acknowledgment of the conduct; and
  • lack of training relating to the vehicle and no way to find out what an authorised or unauthorised purpose was for it.

Jetstar argued that Mr Gill had a conscious disregard for the safety rules; Mr Gill argued that he had not thought about anything but how hungry he was and that he needed to be back at Avalon prior to the arrival of the next plane. This evidence was accepted.

Jetstar opposed this and said that Mr Gill's role is critically important in terms of safety, and that a "light bulb moment" should have gone off for Mr Gill, as his own personal car was just a short stroll away and available for use. The Commission agreed that it couldn't be said that Mr Gill would not have known that he should not have driven the tow-tug. The Commission was not persuaded that Mr Gill intentionally or deliberately sought to break the rules, nor did he have conscious disregard for them.

The Commission has previously given less weight to some of the mitigating factors raised as harshness arguments when it comes to the seriousness of safety breaches.

However, despite a valid reason to dismiss and the lack of any procedural defect by Jetstar, the Commission gave weight to Mr Gill's argument that other employees who had breached safety protocols had not been dismissed by Jetstar.

Mr Gill used examples of other engineers who have made significant safety mistakes that could have had serious consequences but were not dismissed:

  • An engineer signed off on a safety check without undertaking a mandatory check. A plane had to make an unscheduled stop when an engine oil cap was not fitted. It could have resulted in serious consequences for the 300 people on board; however, the employee concerned was not dismissed.
  • During safety testing, main landing gear was not safe-tied, resulting in the main landing gears swinging up and missing an apprentice by inches. The employee had a formal warning placed on their file.
  • An engineer took photos of another engineer climbing a ladder on top of an elevated work platform and reported the engineer to management, but did not advise the engineer that he should work in a safe manner. Neither engineer was dismissed.

On this basis the Commission found that Mr Gill's dismissal was harsh and he was unfairly dismissed.

Reinstatement

Compensation is only available as a remedy for unfair dismissal where the Commission is satisfied that reinstatement is inappropriate.

Despite Jetstar actively resisting reinstatement on the basis of a loss of trust and confidence given the serious nature of the misconduct and the safety critical job role, the Commission found that:

  • Jetstar continued to maintain trust and confidence in the employees involved in other more serious safety breaches who were not dismissed;
  • Mr Gill had an unblemished record, accepted his wrongdoing and had shown contrition;
  • there was no evidence that suggested similar conduct would be repeated; and
  • Mr Gill would have great difficulty obtaining other employment.

The Commission ordered that Mr Gill be reinstated to Tullamarine Airport to allow for closer supervision. The Commission made no order to restore lost pay due to the conduct which led to the dismissal and Mr Gill's employment during the period between the dismissal and the decision.

Conclusion

Key takeaway points for employers:

  • Employers should take careful note of their responses to employee safety breaches, and be aware that breaches are treated consistently.
  • Policies and safety information should be readily accessible by employees.
  • Even if a position has been refilled, and employer may still be ordered to reinstate a dismissed employee.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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