[2012] FWAFB 5776 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT HARRISON |
SYDNEY, 17 JULY 2012 |
Appeal against decision [2011] FWA 8025 of Commissioner Spencer in matter number U2009/11888, valid reason for dismissal, dismissal harsh, unjust and unreasonable, order for reinstatement confirmed, appeal dismissed.
[1] This decision concerns two appeals, one by Qantas Airways Limited (Qantas) and the other by Mr Carter. Each is against a decision of Commissioner Spencer in which she found that the dismissal of Mr Carter was harsh, unjust and unreasonable and that he should be reinstated but with no accrual of entitlements or pay for a specified period.
[2] Before us, Qantas was represented by Mr Murdoch and Mr Carter was represented by Ms Beck. Each of these barristers appeared before Commissioner Spencer. We deal with the Qantas appeal first. It is made under s.604 of the Fair Work Act 2009 (the Act). Such an appeal may only be made if permission to appeal is granted and, as the decision being appealed is one which was made under Part 3-2 of the Act, it is also subject to the requirements of s.400. This section introduces “more stringent” requirements in relation to appeals concerning applications alleging unfair dismissal. 1 Section 400 is in these terms:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[3] As is clear from s.400(1) an appeal may only be made with the permission of Fair Work Australia. Permission must not be granted unless we consider it is in the public interest to do so. In the Federal Court of Australia judgment in Coal and Allied Mining Services Pty Ltd and Lawler 2 Justice Buchanan commented upon the public interest requirement in these terms:
“44. The nature of the task committed to the Full Bench at this stage of the appeal process (i.e. assessing whether a “public interest” test was met) was a discretionary one involving a broad value judgment, as has recently again been emphasised. In Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at [69]):
The expression “that it is in the public interest” imports a judgment to be made by reference to the subject, scope and purpose of the Act.
45. Their Honours referred to O’Sullivan v Farrer (1989) 168 CLR 210 where (at 216) Mason CJ, Brennan, Dawson and Gaudron JJ said:
... the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view” ...”
[4] An additional requirement for an appeal which is against a decision made under Part 3-2 of the Act (ie an unfair dismissal appeal) is that to the extent it is an appeal on a question of fact, it can only be made on the ground that the decision involved a significant error of fact.
[5] The proper approach to be taken to an appeal has been considered in numerous Full Bench decisions. It is sufficient if we refer to the following passage from the decision in Ulan Coal Mines Limited v A. Honeysett and others: 3
“[22] The approach to be taken to an appeal pursuant to s.45 of the Workplace Relations Act 1996 (the WR Act) was outlined in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (Coal & Allied). The following passage indicates that the powers of a Full Bench of the Australian Industrial Relations Commission (the Commission) were only exercisable under that section in the case of error in the decision at first instance:
“17 Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45.”
[23] Because there is no relevant difference in the terms of s.604 of the Fair Work Act, this analysis applies equally to an appeal to a Full Bench of Fair Work Australia under that section. Section 400(2) reinforces this construction and adds an additional requirement, namely, that where an error of fact is involved the error must be substantial. The majority in Coal & Allied explained in the following passage how error may be identified where a discretionary decision is involved:
“21 Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so [reference omitted].’”
[24] An appeal under s.604 of the Fair Work Act should be characterised as an appe al by way of rehearing however such an appeal cannot succeed in the absence of error on the part of the primary decision-maker and any error of fact must be substantial.”
Some background and general observations
[6] Mr Carter was dismissed for making changes to flight bookings in a manner Qantas considered to have been unauthorised and in breach of its fare rules.
[7] At the time of his dismissal Mr Carter was a customer service agent (CSA) and responsible for checking-in passengers at the Qantas Domestic Terminal in Brisbane. He was required to tag baggage, issue boarding passes, assess excess baggage and assist passengers with self-service kiosks. He also undertook coupon work which was work done in an office away from the check-in counters. This work involved checking hard copy tickets against the list of passengers who had boarded flights.
[8] Much of the evidence before the Commissioner concerned the different rules and conditions that applied to the fare families offered by Qantas. These went by the names of Red e-Deal, Super Saver, Flexi-Saver and Fully Flexible. Qantas led evidence about the different rules and conditions that applied to each fare family and within each fare family. Evidence was also given about how tickets were priced differentially depending on the fare family, the class within that fare family, the time bookings are made, the demand for flights during the relevant period and special promotional deals.
[9] There was also a great deal of evidence about two particular systems used by Qantas being the Amadeus Reservations System (Amadeus) and the ALTEA CM System (ALTEA). Amadeus was the first of the two systems to have come into operation. Mr Carter had used this system and understood it well. Mr Murdoch described this as a reservation system. In 2007 ALTEA was introduced and used at the airport check-in counters. This was described as a check-in system. New staff who were engaged after this system was introduced were no longer trained in Amadeus. Mr Carter had not received training on ALTEA and was less familiar with it than he was with Amadeus.
[10] All of the changes to the bookings which gave rise to Mr Carter’s dismissal were done through the Amadeus system. There were some limited fare types that could be amended through ALTEA but the remainder could not. Qantas submitted that the correct procedure when changing a booking was to require the passenger to pay an additional fee. It submitted that any changes were to be authorised by a supervisor such as a customer service officer (CSO) or a duty airport manager. A CSA should refer the relevant customer to the airport’s ticket desk or seek further advice from the CSO or duty airport manager.
[11] Mr Carter’s case was that he, and other CSAs, had the authority to rebook passengers and it had never been suggested that when doing so additional fees should be collected. It was the “established culture” that part of the CSAs role was to rebook passengers if and when required, at their own instigation, at the request of a passenger or request from another staff member. The CSAs did not collect booking fees when they made these changes, nor did they seek any type of authorisation from a CSO. The culture, training and expectation was that problems were dealt with at the first point of contact. A CSO was not to be bothered with trivial issues such as rebooking and, if a CSA had the skill set to rebook, then the expectation was that they would do so.
The delay in hearing and the evidence
[12] Both Qantas and Mr Carter called numerous witnesses. In addition to his own evidence, Mr Carter called seven other witnesses. Qantas called five witnesses. A very large amount of documentary evidence was also tendered.
[13] Although Mr Carter’s s.394 application was made within the applicable time limit it took over 2 years to be completed. In this respect no criticism is levelled at the Commissioner. The parties had agreed the proceedings should be stayed until the outcome of a related criminal prosecution. On the day that prosecution came to trial no evidence was presented and the charges against Mr Carter were dismissed. Subsequently, the s.394 arbitration proceeded and it took considerably longer than the days Qantas had estimated it would take. Availability of counsel also resulted in further delays.
The Commissioner’s decision
[14] We turn now to summarise the Commissioner’s decision. It was lengthy and detailed. It is not suggested she failed to consider and apply each relevant provision of the Act nor that her reasons are inadequate. Qantas takes issue with many of the findings she made. We will refer only to those aspects of the decision that are necessary to deal with the grounds of appeal.
[15] Mr Carter commenced employment in 1985 and was then based in Cairns. In 1990 he was transferred to Brisbane and initially employed in the reservations department. In 1996 he was transferred to the Qantas Domestic Terminal at Brisbane Airport and was engaged as a CSA, Level 3.
[16] In 2005, Mr Carter was diagnosed with head and neck cancer necessitating an extended period of sick leave. He was absent from work from late 2005 until September 2006, when he commenced a graduated return to work. By August 2007 he was working eight hour shifts. Those shifts were made up of two hours face-to-face contact with customers at the check-in counters and the remaining time on what was described as coupon work which involved reconciling hard copy tickets against the names of passengers who had boarded a flight.
[17] In early 2009, Qantas commenced enquiries into unauthorised booking changes that had been made by a number of CSAs. The enquiries arose out of advice Qantas had received that some employees may have been accepting goods for upgrades on flights. The Commissioner notes that initially Mr Carter was not one of the persons investigated. One employee who was investigated for being engaged in fraudulent activity was a person we will refer to as Mr X. 4 Subsequently, Qantas began investigating Mr Carter as it believed there was a link between him and Mr X.
[18] Despite some areas of disagreement about some detail concerning particular bookings Mr Carter accepted that he had made the changes to many of the bookings as asserted by Qantas. 5 There was no evidence that at any time he had been involved in any fraudulent or dishonest activity in making the numerous changes to the bookings Qantas identified. His case was that he was just doing what he, and other similarly experienced CSAs at the airport, had always done. There was no evidence Mr Carter had provided upgrades of passengers nor obtained any gifts or benefits for any of the booking changes that he made. It was Mr Carter’s submission that Qantas formed a “premature view” that he had engaged in fraudulent conduct simply because there had been some exchanges about some bookings with Mr X, one of his work colleagues. Mr Carter’s case was that had his actions in changing bookings been investigated separate to the others who had been involved in fraudulent activities there would have been no basis for Qantas to have found he had engaged in serious misconduct nor to have terminated his employment.
[19] The Commissioner next referred to the evidence of Qantas about the loss of revenue as a consequence of Mr Carter’s actions. Mr Carter had challenged the various assertions made by Qantas as to the amount of revenue it had lost as a consequence of his actions. He submitted that Qantas had an onus to demonstrate the loss of revenue it asserted. The Commissioner then discussed in some detail the evidence of witnesses called by Mr Carter to attest to there being an “established culture” at the airport to do all that was necessary to ensure on-time departure of aircraft. There was a short amount of time to process passengers and to ensure aircraft got away on time and, in this respect, the more experienced CSAs had said it was their job to ensure this occurred. In this context it was commonplace for customers to be rebooked on earlier or later flights. This occurred with the knowledge of the more senior customer service supervisors. There was no history of any CSA being disciplined for rebooking passengers and doing so without seeking any associated additional fees for the changes. Additionally, there was a practice of looking after family and friends giving them, for example, a nicer seat. Where there were delays which resulted in passengers having difficulty getting to the airport they were generally told that as soon as they turned up they would be put on the first available flight out regardless of their booking. CSAs ensured this occurred. It was common also for staff members to contact other staff members and ask for a passenger’s flight itinerary to be amended. These practices, which together comprise the established culture, were also variously described as accepted or common practice, a long standing culture or an expectation.
[20] The Commissioner then summarised the submissions and evidence of Qantas. She referred first to why it submitted it had a valid reason to terminate Mr Carter’s employment. It relied on numerous unauthorised booking changes he had made which had been in breach of its fare rules and had prevented Qantas from achieving the best revenue yields for its flights. It said that the changes Mr Carter had made to the bookings were not part of his duties either for the two hours that he was undertaking face-to-face checking in of passengers nor the remaining hours of his shift when he was undertaking coupon work. The Commissioner went into some detail discussing the evidence of Qantas about the fare rules and associated ticket conditions and the circumstances in which they may be changed. Although there were limited circumstances in which there may be changes to bookings without the customer incurring an additional fee, any such changes were to be authorised by a supervisor or duty airport manager. Qantas did not accept that there was an “established culture” at the airport as asserted by Mr Carter and his witnesses.
[21] Qantas had also submitted that Mr Carter’s claimed lack of understanding of the fare rules and the need for additional fees to be paid when bookings were changed discredited him as a witness and undermined any trust and confidence it might have in him.
[22] We interpose here to note that as part of the investigation there were numerous letters exchanged between the parties and the Commissioner reproduced a number of extracts from them. For the purposes of this decision we will identify the dates of the various letters and summarise their content only.
[23] In March 2009, a letter of allegation was sent to Mr Carter advising that Qantas had become aware of possible breaches of company policy. It alleged that changes had been made to bookings over the previous 12 months resulting in a potential loss of revenue. Some 28 bookings had been investigated in detail. The letter provides details of 10 of those bookings. It indicated that the behaviour appeared to be in breach of certain company policies and Mr Carter’s terms and conditions of employment. A response to the allegations was requested. Mr Carter was stood down on pay as of this time. Mr Carter responded to the letter addressing in detail each of the allegations that had been made. He recorded that over his 24 years of service there had been no disciplinary issues and he had been a committed, loyal, ethical and honest employee.
[24] On 28 April, Qantas wrote to Mr Carter acknowledging his response and advising that the investigation into the allegations was complete. It set out the allegations and the findings that had been made. It indicated that Qantas considered his conduct to be a breach of the Standards of Conduct Policy and a number of sections from that policy were referred to. It records that his actions were unacceptable and had resulted in a considerable loss of revenue for Qantas. Mr Carter was given a further opportunity to raise any matters that he wished Qantas to take into account prior to any final decision being made.
[25] On 13 May, Ms Beck wrote to Qantas confirming there had been no element of dishonesty in any conduct alleged against Mr Carter and that he had believed at all times he had been complying with the Standards of Conduct Policy. Reference was made to the practice that had existed over a long period of time of CSAs making changes to bookings in order to meet the needs of customers. Had that practice, which had been occurring for many years, needed to change Qantas could have instituted such a change to its systems to preclude any such transactions. It could also have made clear to CSAs that the practice was not to continue. It had not done so. The lack of training of CSAs was referred to. Detailed comments were made in relation to a number of the allegations about changes Mr Carter had made to bookings.
[26] Although not specifically referred to in the Commissioner’s decision we should here identify some documents which are relevant to aspects of the ground of appeal. An internal email dated 21 May was sent from Ms Neale, Manager People Queensland Airports to Mr Moore, the Executive Manager of Qantas Airports, and it attached a recommendation in relation to Mr Carter and another employee. In the case of Mr Carter it referred to the number of bookings that had been changed and estimated the loss of revenue. It briefly referred to Mr Carter’s explanations for his actions. A recommendation was made for “Termination of employment-acting outside of authority exposed Qantas to major loss of revenue”. An email on the following day confirmed that Mr Moore had indicated he wished to proceed with the termination of Mr Carter and the other employee. 6
[27] On 27 July, Qantas forwarded a letter to Mr Carter confirming it had completed the investigation and setting out a number of “Findings regarding misconduct”. It also responded to issues that had been raised in correspondence from Mr Carter and Ms Beck. The letter then set out an additional 23 booking changes which were said to be in breach of the Standards of Conduct Policy. It then referred to the fact that Qantas was concerned that at least five of the additional bookings had a connection to another employee of Qantas. This was Mr X. The letter noted that Mr X was currently under investigation by the Australian Federal Police and had been charged with “fraud offences” relating to buying tickets and on selling them to passengers. A further opportunity was given to Mr Carter to provide any further responses he wished.
[28] Ms Beck forwarded further correspondence to Qantas on 13 August referring to the original allegations and the new allegations that had been raised for the first time in the 27 July letter. She complained about the lack of time to respond to the new allegations and the inappropriateness of making comments about Mr X in a context which made wrongful imputations against Mr Carter. Concerns were raised about the lack of any evidence that relevant policies had been communicated to Mr Carter noting that one particular document had been released when he was on extended sick leave. Other detailed responses challenging Qantas’ assertions and findings were also contained in the letter. A supplementary response was also provided by Ms Beck. It addressed in some detail the 23 additional bookings that had been most recently raised by Qantas.
[29] We note here that there was in evidence an email dated 21 August distributed internally amongst certain Qantas employees connected with the investigation of Mr Carter and others. It attached Ms Beck’s most recent letter and confirmed that Mr Carter had been stood down for an extended period pending an investigation into a “complicated set of allegations re travel fraud, involving a number of employees (a number of which who have resigned and/or been charged by the police) ...”. 7
[30] On 27 August, Ms Beck forwarded a letter by email to Qantas indicating that Mr Carter had apparently been requested to attend a meeting on the following day. Mr Carter was unaware what the meeting was about and Qantas knew Ms Beck was his support person. She was unable to attend the meeting and indicated that she could be available the following week if necessary. She said any further questions to Mr Carter should be in writing and observed that he had fully cooperated with the investigation and remained willing to do so.
[31] The meeting proceeded on 28 August despite Ms Beck’s request. Mr Carter was provided with a letter of termination which was signed by Mr D’Alessio, the Acting Head, Queensland Airports. It addressed a number of the matters Mr Carter had raised in his defence. The letter records that his role as a CSA did not require him to be involved in booking changes and if any changes were to occur they would be limited to changes for operational reasons involving passengers he was dealing with at the Brisbane Airport and only after he had obtained appropriate authorisation. His failure to seek any authorisation in relation to changes he had made had resulted in those customers not being required to pay any additional fees and had exposed Qantas to a loss of revenue. It records that Mr Carter’s actions were in breach of his employment contract and “Qantas Policy”. No provisions of any particular policy are referred to. The letter records that Mr Carter’s actions constituted serious misconduct and that his employment would be terminated effective that day.
[32] Next the Commissioner, in that part of her decision titled “Considerations”, made a number of findings and observations. She noted that there were 10 employees of Qantas that were investigated and they had been subjected to various disciplinary outcomes. In some cases the investigations did not reach finality as the employees had resigned before findings were made. Two CSAs were found to have improperly upgraded passengers but had done so on a limited number of occasions and a decision was made that they should receive a written warning. Another CSA who had engaged in more serious unauthorised booking changes, but fewer in number than Mr Carter, had shown remorse and fully cooperated with Qantas and was given a final written warning. A CSO was issued with a written warning for upgrading customers. The Commissioner noted that Mr Carter had not been afforded any alternative to termination.
[33] The Commissioner commented that Mr Carter’s insistence he was unaware of the different Qantas fare types and associated fare rules was “difficult to reconcile”. 8 She noted that Mr Carter had indicated he had not received training on ALTEA nor the fare rules and conditions and that no evidence of such training was provided. The only evidence of training was on the Amadeus system.9
[34] The Commissioner also said that Qantas had not demonstrated that the culture as asserted by Mr Carter did not exist 10 and found that Mr Carter had engaged in this conduct for some time without audit. Mr Carter’s consistent evidence was that he had made the changes to assist customers with their travel requirements and his doing so had not previously been an issue. In fact, he had been commended for similar actions when rebooking a family in February 2009. Mr Carter had engaged in this activity as had other CSAs on an open basis for some time without being checked, counselled or disciplined. The Commissioner acknowledged that despite these findings she found it difficult to comprehend why the applicant would have been moved to alter a customer’s ticketing arrangements when that did not include travel through Brisbane Airport or the ticket was outside a 12 month period. The Commissioner commented that no attempt was made by Qantas to assess why the Amadeus system was still being utilised nor had it provided CSAs training in relation to what it asserted were the “required conditions and authorisations for the fares”.11
[35] Against that background the Commissioner then turned to each of the matters s.387 of the Act required her to consider. We will consider the findings made by the Commissioner by reference to each of the provisions of this section in the context of the challenges made to them in the grounds of appeal. We now turn to those grounds.
The grounds of appeal
[36] We should indicate that many of the grounds of appeal overlapped. The majority repeated the arguments put below to the Commissioner and about which she had ruled, albeit in a manner contrary to what Qantas had submitted should be her ruling or finding. No ground raises any jurisdictional or legal error. It is not suggested the Commissioner’s reasons for decision were inadequate.
[37] The first ground of appeal is that the Commissioner was in error in finding Qantas did not have a valid reason to dismiss Mr Carter. Qantas submitted that paragraph [81] contained the key reasoning why she found there was no valid reason for Mr Carter’s dismissal. It submitted that each of the findings contained in this paragraph was mistaken. We should reproduce paragraph [81]:
“[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”.
[38] We first observe that the various reasons relied upon by the Commissioner as to whether Qantas had a valid reason as detailed in the above paragraph need also to be read in the context of the observations she made in that part of the decision titled “Considerations”. Many of the considerations in paragraph [81] are also discussed in this part of the Commissioner’s decision and she makes findings about them. Many of the considerations are also relied on by her when considering other provisions of s.387 particularly s.387(h) and, in assessing whether the dismissal was harsh, unjust or unreasonable.
[39] The error we are persuaded the Commissioner has made is taking into account the diverse matters she did in paragraph [81] when the requirement, for the purposes of s.387(a), was to consider whether Qantas had a valid reason to dismiss Mr Carter. The finding that it was questionable whether he had any valid operational reasons to make the changes he did was of significance and, in our opinion, given insufficient weight by the Commissioner. In fact the evidence established, and the Commissioner accepted it to be so, that there was no operational reason for Mr Carter to have made many of the changes to the bookings which he did make.
[40] We are also of the opinion that in considering whether a valid reason was established the Commissioner gave insufficient weight to the number of changes made where the customer was not to fly into or out of Brisbane Airport, where some changes were made outside the 12 month period of the ticket and where the booking was weeks or months in advance of the proposed travel date. In our opinion the evidence supported the submission of Qantas that it had a valid reason to dismiss Mr Carter. It was a reason which could properly be described as sound, defensible or well founded. 12 In finding to the contrary the Commissioner was in error.
[41] The next ground of appeal is to the manner in which the Commissioner dealt with whether Mr Carter’s conduct constituted serious misconduct. Firstly we observe that it was not necessary for her to have decided whether in fact his actions constituted serious misconduct when considering if there was a valid reason to dismiss him. 13 That is a consideration more appropriately dealt with under, for example, s.387(h) and in deciding whether the dismissal was harsh, unjust or unreasonable.
[42] Qantas submitted that the Commissioner erred in not accepting that Mr Carter’s conduct constituted serious misconduct for the purposes of regulation 1.07 of the Fair Work Regulations 2009. That regulation defines what is meant by serious misconduct for the purposes of the definition in s.12 of the Act. The regulation provides that serious misconduct is to have its ordinary meaning, and additionally, certain behaviour or conduct that is also to be considered serious misconduct is also prescribed. The relevant parts of the regulation refer to wilful or deliberate behaviour of an employee which is inconsistent with the continuation of their contract, conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business and an employee engaging in theft or fraud.
[43] Qantas submitted that Mr Carter’s action came within the ordinary meaning of serious misconduct and, in this respect, relied on the description contained in the decision of Moynihan J in Taske and Occupational and Medical Innovations Limited. 14 There His Honour said:
“[55] Misconduct means:
Substantial wrongful conduct such as to constitute an act of repudiation of the employment contract, being conduct inconsistent with the fulfilment of the employee’s obligation. In that regard ... intentions ... in relation to the matters the subject of dispute are important to the determination or otherwise of misconduct. [Randall v Aristocrat Leisure Ltd [2004] NSWLC 411, 452]”
[44] Given the finding of the Commissioner that there was an established culture of CSAs making booking changes without seeking authorisation or collecting fees, no evidence Qantas directed that practice was not to occur and Mr Carter receiving a service excellence award for similar conduct, it is not surprising that Qantas did not persuade the Commissioner that Mr Carter’s actions amount to serious misconduct. Additionally, we note that despite Qantas identifying some provisions of its Standards of Conduct Policy in its early correspondence the dismissal letter did not identify any policy, nor the terms of any policy it alleges had been breached. Nor was any term of Mr Carter’s contract of employment (written or oral) identified as having been breached. This ground does not establish any relevant appealable error.
[45] Next Qantas submitted that the Commissioner was in error in finding that there was no evidence of Qantas monitoring CSAs before issues concerning Mr X had arisen. Qantas submits the finding should not have been made as there was no evidence at all as to the practicality, feasibility or possibility of it being able to do so. This submission, in our opinion, is not an answer to the finding made by the Commissioner. Mr Carter’s legal representative raised this matter “squarely” with Qantas during the investigations. There he had indicated that if management wished to change the long-established practice of CSAs it would have been very easy for them to have instituted an appropriate computer verification or denial system which would have precluded staff making changes to flight bookings. Qantas had not adequately answered this matter. The Commissioner herself raised this with Qantas’ counsel during the hearing. We note this issue was again returned to by the Commissioner later in her decision when considering whether the dismissal was harsh, unjust or reasonable and she observed that there had been inadequate monitoring of bookings, training and performance reviews which may have “averted the events”. 15 It was a relevant consideration in that context. This ground does not establish any appellable error.
[46] Qantas submitted that the Commissioner erred in her application of s.387(d) of the Act. This section required her to take into account any unreasonable refusal by Qantas to allow Mr Carter to have a support person present to assist him in any discussions relating to his dismissal. About this consideration the Commissioner said that she had taken into account the inability of Mr Carter to have his barrister present at the meeting when he was dismissed. We have earlier indicated that this meeting proceeded in spite of Ms Beck’s request that it be held at a later time (and for further questions to be placed in writing). We observe that over the course of the disciplinary process Qantas was assisted in its investigation and disciplinary meetings by a human resources department and legally qualified persons. Mr Carter’s legal adviser over the course of the disciplinary process was Ms Beck. In those circumstances it was reasonable that the applicant would wish for her to attend as his support person and it is no argument that he could have appointed another person on the day. The Commissioner’s finding in this regard reveals no error.
[47] Qantas raised a number of challenges to comments made by the Commissioner about whether it had complied with its own employee Misconduct and Discipline Policy (M&D Policy) including its Employee Appeals Policy. The Commissioner made findings about this matter in the context of s.387(h) of the Act which requires her to consider any other relevant matters. We are not persuaded that any of the findings of the Commissioner in this respect were in error. The M&D Policy provides an employee may have a support person present during any meeting or discussion that forms part of the formal disciplinary process. We have earlier commented that it is clear the Commissioner was not persuaded that Mr Carter was given an opportunity to have a support person at the meeting of 28 August.
[48] The Commissioner also identified the M&D Policy requirement that consideration should be given to alternatives to dismissal. She found that no proper consideration of alternatives was demonstrated. 16 In our opinion it was for Qantas to have led evidence about whether it considered any alternatives to dismissal and it did not do so. It was well open to the Commissioner in these circumstances to have found, as she did, that given Mr Carter’s 24 years of service, alternatives to dismissal should have been considered. Furthermore, the Commissioner was correct in her finding that, in accordance with the M&D Policy, Mr Carter should have been informed of his internal appeal rights and he was not. It seems that other employees received that advice but Mr Carter did not. No adequate explanation for that omission was given. Qantas submits that those rights were in fact available to Mr Carter and in any event his actions constituted serious misconduct and warranted the outcome that occurred. Given the failure to comply with its own policy we are not persuaded by Qantas’ attempt to justify its lack of compliance with it. The findings made by the Commissioner reflect no error.
[49] Next Qantas submitted that the Commissioner was in error in finding that Mr Carter had not received any counselling or warnings. This relates to a comment made by the Commissioner when she was considering s.387(e) of the Act. Qantas relies on a request that was made of Mr Carter in relation to pre-seating certain premium passengers on flights from the United States. There was no suggestion in the evidence that this was considered at the time to constitute counselling or a warning. Indeed Qantas’ own documents refer to it as a “informal discussion” in April 2008. The Commissioner therefore was not in error in finding, as she did, that Mr Carter had no history of any counselling or warnings.
[50] Qantas submitted that the Commissioner erred in taking into account the fact Mr Carter was associated with the conduct of Mr X when considering if his dismissal was harsh, unjust or unreasonable. It submitted that Mr Carter was specifically advised in the letter of 27 July that fraud or attempted fraud was not relied upon by Qantas. We should note that although Qantas challenges the finding made by the Commissioner in paragraph [105] of her decision this consideration is one that is referred to by her also at paragraph [108]. There is no merit in this ground of appeal. First there was, in fact, ample evidence for the Commissioner to have formed the view that Qantas was motivated by a view it formed early in the investigations that Mr Carter was in some way associated with fraudulent activities being undertaken by Mr X. We also note, contrary to the submissions of Qantas, that the letter of 27 July had made it clear it did not rely on fraud, that letter contains a reference to a concern Qantas had that at least five of the additional 23 bookings it had there raised “have a connection to Mr X”. It went on to note that Mr X was currently under investigation by the Australian Federal Police and he had been charged with fraud offences. It is difficult to understand why that comment would be made if it was not in fact the case that Qantas was in part motivated by its belief that Mr Carter was associated with the fraudulent activities of Mr X.
[51] Secondly, in Mr D’Alessio’s statement, he gave his reasons why Qantas was concerned with the booking changes made by Mr Carter. He referred to the fact that at least five of the bookings made by Mr Carter were connected with Mr X who had resigned from Qantas and been charged by the Australian Federal Police with criminal charges relating to his conduct in making unauthorised booking changes. 17 And finally, we note the internal Qantas email of 21 August which discussed drafting a termination of employment letter recorded that Mr Carter had been “stood down for an extended period pending a investigation into a complicated set of allegations re travel fraud involving a number of employees (a number of which have resigned or been charged by police)”.18
[52] Qantas next submitted that the Commissioner was in error in finding that there was no causal link between a revenue loss of $4000 and rebookings made by Mr Carter. We note that this comment was made by the Commissioner when she was considering whether the dismissal was harsh, unjust or unreasonable. The issue of revenue loss had also earlier been considered by her in that part of her decision titled “Considerations”. There the Commissioner said that it was for Qantas to make out the loss of revenue it asserted had occurred due to Mr Carter’s conduct. We are not persuaded that the finding made by the Commissioner reflects any error. There was a basis for it in light of the concession made by Mr Waddell that there were scenarios where in fact the actions of rebooking may have resulted in a more expensive seat subsequently being sold which could result in a revenue increase. In this context we also note that it is not accurate to submit, as Qantas does, that the evidence of Mr Waddell was not challenged. It was the subject of formal written objections made well prior to his evidence being given. The transcript reflects an understanding between the Commissioner and counsel that the objections would largely be dealt with in submissions as would the issue of the “weight” the Commissioner should give to Mr Waddell’s evidence. 19
[53] Next Qantas identified what it described as significant errors of fact. We deal with the first two together. First it submitted the Commissioner made a significant error of fact in finding that “in the main, the booking changes were activated openly”. It submitted that the actions of Mr Carter were covert. The next significant error is said to be the finding that the changes were motivated by a naive enthusiasm. We note that each of these findings are in paragraph [81] of the Commissioner’s decision. We have earlier dealt with that paragraph in the context of whether there was a valid reason for Mr Carter’s decision. The two findings made by the Commissioner are appropriate to be considered either in the context of s.387(h) or the overall assessment whether the dismissal was harsh, unjust or unreasonable. Similar considerations to these were in fact the subject of comments by the Commissioner at paragraphs [113] and [114] of her decision. The challenges that are made are no more than Qantas’ dissatisfaction with the finding made by the Commissioner rather than the identification of error. Each of the findings depended to some degree on the Commissioner’s acceptance of Mr Carter’s evidence and his explanation about why he made the changes he did. In our opinion neither constitutes a significant error of fact.
[54] The next significant error of fact is said to be the Commissioner’s finding that Mr Carter had been commended for his customer service for using his initiative. Mr Carter had received a service excellence award nomination in early 2009 for the manner in which he dealt with a family of four persons by rebooking them on flights without authorisation from a more senior person. The changes were made through the Amadeus system and no additional fees were collected from the passengers. We think there is merit in Mr Carter’s submission that it was this very same conduct that was later the subject of complaint from Qantas. The Commissioner’s finding was open to her and does not constitute a significant error of fact.
[55] The next error which Qantas submits constitutes a significant error of fact is the Commissioner’s finding that Mr Carter’s conduct was consistent with an established culture of behaviour amongst fellow CSAs. The Commissioner commented on this culture in a number of places in her decision not only in paragraph [112] which is identified by Qantas in this ground of appeal. 20
[56] It is clear from the Commissioner’s reasons for decision she well understood this was one of the principal matters about which the parties were in stark disagreement. She closely considered the evidence of Qantas and of Mr Carter and each of his witnesses. It was open to her to have found, as she did, that this activity had been engaged in for some years and had been occurring without authorisation from more senior staff. She preferred the evidence about the culture at the Qantas Domestic Terminal in Brisbane led by the applicant to that led by Qantas. We discern no error in her doing so. In this context it was also relevant for her to have found, as she did, that there was no evidence identifying any occasion where Mr Carter had received any advice that the activities he had undertaken in rebooking were not to occur. The introduction of changes to fare rules was not associated with any indication by Qantas to CSAs to cease their previous practices and to collect the change fees.
[57] Finally, Qantas submitted that the Commissioner erred in finding there could be trust and confidence in Mr Carter and in ordering his reinstatement. We note that Mr D’Alessio gave evidence that Mr Carter was not a person suitable for reemployment and that Qantas had no trust or confidence in him. Mr Carter submitted that Mr D’Alessio’s opinion was tainted by the fact that, when he had decided to dismiss him, he had been under the impression Mr Carter had received appropriate training on ALTEA (which he had not). He had also wrongly believed that Mr Carter had been connected with the fraud investigations into Mr X. The Commissioner also had before her the evidence of Mr Carter that reinstatement was practicable and he believed a successful employment relationship could be resumed. Contrary to Qantas’ submission the Commissioner did take into account the reasonable expectation of an employer that it should have trust and confidence in the manner in which employees discharge their duties. 21 We do not discern any error in the approach taken by the Commissioner to this consideration nor the decision she made.
Conclusion
[58] We have earlier found that the Commissioner was in error in failing to find that Qantas had a valid reason to dismiss Mr Carter. No other error has been established by the other grounds of appeal. Despite the identified error, having considered all of the issues raised in the Commissioner’s decision and in this appeal, we are not persuaded that permission to appeal should be granted. The decision dealt with peculiar considerations enlivened by the particular facts. We do not discern any wider issues of principle raised by the grounds of appeal. There is no issue of general importance and no jurisdictional or legal points raised. No substantial injustice will result if permission is refused. In our opinion no public interest considerations are established by the grounds of appeal. The appeal is dismissed. The stay order issued on 2 February 2012 22 is discharged.
Mr Carter’s appeal
[59] This appeal was lodged at approximately 3.00 pm on 5 March 2012. It relates to the Commissioner's order that the period between the date of Mr Carter’s termination and his reinstatement would not form part of his period of service for the purposes of the accrual of entitlements or the payment of wages.
[60] It is apparent that by the time the notice of appeal was lodged it was significantly outside of the time limit for doing so. The Qantas appeal had been lodged over two months earlier. Mr Carter’s appeal was not accompanied by any advance notice to Qantas or to the Tribunal that it would be filed. Indeed, it was not mentioned by Ms Beck when the appeal by Qantas was the subject of a hearing concerning procedural matters before Senior Deputy President Harrison earlier on the morning of 5 March 2012. No adequate grounds have been made out to explain the reason for the delay in filing this appeal nor why we should exercise our discretion to extend time for doing so. We decline to extend time for filing.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C. Murdoch, counsel, for Qantas Airways Limited.
Ms J. Beck, counsel, for Mr Carter.
Hearing details:
2012.
Sydney:
March 5,
Brisbane:
March 13.
1 Coal and Allied Mining Services Pty Ltd [2011] FCAFC 54 at para [34]
2 Ibid
4 The Commissioner refers to this person as “the other employee”.
5 It should be noted that Qantas did not rely on all of the booking changes it originally raised - some were withdrawn from the list.
6 Appeal Book, Vol 3 Tab 35.
7 Ibid Vol 3 Tab 33.
8 Para 70.
9 Para 71.
10 Para74.
11 Para 78.
12 Selvachandran v Peteron Plastics Pty Ltd [1995] 62 IR 371 at 373.
13 Magers and Commonwealth of Australia (Department of Health and Ageing [2010] FWAFB 4385, IGA Distribution (Vic) Pty Ltd and Cong Nguyen [2011] FWAFB 4070.
14 [2007] 167 IR 298.
15 Para 116.
16 Para 101.
17 Appeal book 3 tab 47
18 Appeal book 3 tab 33
19 Paras 128-141, 3219-3230, 3283-3296.
20 Paras 64, 67, 73, 75, 76, 96.
21 Para 95.
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