DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Baird
v
Airservices Australia
(U2016/13697)

Application for relief from unfair dismissal.

[1] Mr Paul Baird was employed by Airservices Australia from May 2011 until 26 October 2016. Mr Baird alleges he was unfairly dismissed.

[2] The incidents that led to Mr Baird’s dismissal are not in dispute.

[3] Mr Baird was employed as a leading fire fighter at Melbourne Airport. As part of his duties he is rostered to work in the Fire Control Centre. The core function of fire fighters in the FCC is to monitor aircraft, monitors and alarm systems. In addition there are a significant number of other tasks required. 1

[4] Whilst on duty in the FCC, Mr Baird videoed himself simulating playing Launchpad. Launchpad is an electronic device used to produce electronic music. He drew a simulation of the keys on a folder and used the FCC Room computer to play a piece of music. He then simulated playing the Launchpad in time with the music with one hand and videoed the simulation with the other hand. 2 Whilst he was doing this a fire alarm sounded and he said “oh fuck ships burning down” and then “safe”. He then returned to the simulation.

[5] That clip shows the FCC watch room operator consoles, aircraft movement and the runway system. The audio recorded some noise in the background.

[6] Mr Baird uploaded the video to YouTube.

[7] On another occasion Mr Baird uploaded to YouTube a video of the ARFF Recruit course 77, 2011 which was a video made by the members of the training course undertaken by Mr Baird. That video identified ARFF staff and it included a shot from inside the male locker room where a staff member exposes his buttocks. None of the other employees who participated in this project have been disciplined. There are other ARFF Recruit videos uploaded to YouTube.

Matters in dispute

1. Mr Baird said that at the time he was engaged in the Launchpad incident there were no aircraft taking off or landing for several minutes prior or afterwards. 3

2. He complied with the procedure when the fault alarm sounded. 4

3. Mr Baird denied that confidential information could be garnered from the video and in any event Airservices itself has put videos on YouTube which disclose similar information. 5

4. Mr Baird contended that he could hear all the radio transmissions in the FCC whilst playing music. 6

5. In relation to the recruit course video Mr Baird said that the making of the video was part of the course and it was shown during the course. The participants in the course had been directed to YouTube by their instructors to view recruit course videos made on earlier courses. Mr Baird did not record the video but he assisted with the editing. The video was shown as part of the participants’ graduation ceremony. 7 Further a number of instructors in the course were aware of the video and raised no concerns about it. In relation to the allegation that a person in the video exposed his buttocks it submitted that this image was fleeting. 8

The evidence

1. Mr Baird said that at the time he was engaged in the Launchpad incident there were no aircraft taking off or landing for several minutes prior or afterwards. 9

[8] Mr Josias Gomez, Mr Baird’s supervisor and Fire Commander at the time, viewed the video. He said that the video was made on Tuesday 19 January 2016 at 5.30pm. It was his evidence that this was a busy time for aircraft movements. 10 An email was tendered which showed that between 5.20pm and 6.44pm, eight planes were landing. From 5.15pm to 6.40pm, twelve planes were taking off.11

[9] There is clearly a plane visible on the tarmac at the same time that Mr Baird is videoing himself.

[10] Mr Gomez said that the plane was “engaging in the common practice of ‘holding position’ to cross the runway which indicates that other aircraft movements were taking place on the runway at that time. In fact, it is when aircraft are negotiating the tarmac while others are taking off and landing that a collision requiring an emergency response is most likely.” 12

[11] Mr Baird did not disagree with this evidence however he said that “it doesn’t necessarily indicate that. It could mean that there were safety cars on the runway or that there was an aircraft in late final which could be minutes away or that aircraft in question which is extremely hard to tell if it was moving or stationary, it could just mean the aircraft in question hasn’t got clearance to cross yet.” 13

[12] Mr Baird accepted that the flight information tendered showed that there was a plane taking off while he was videoing the Launchpad simulation. 14 He accepted that there were multiple aircraft movements happening at or around the time he was filming.15 Mr Baird said that he was glancing up every second or so to see the aircraft moving on the taxi way.16 It was his view that he did his job but accepted that his situational awareness was not at its highest.17

[13] I am satisfied that there was significant aircraft movement at the time Mr Baird was on the Launchpad video simulation.

1. He complied with the procedure when the fault alarm sounded. 18

[14] Mr Gomez said that when the alarm sounded Mr Baird “did not follow procedure in identifying and acknowledging the fire alarm fault. Some of the FCC Operator duties, for example writing the alarm occurrence on the whiteboard, or confirming that this had been previously completed, were ignored entirely. Without considering the whiteboard and the Firemon, Mr Baird could not be certain that the alarm sounding was a recurring fault alarm rather than something more serious.” 19

[15] Mr Baird said that if a fault arose for the first time the FCC would report it to the property owner and notify the supervisor and write the fault in the log book. If it was a recurring fault the normal procedure would be followed the first time but then it would be written up on the whiteboard to alert other staff to the problem. Once this occurred the procedure was to acknowledge the alarm and check to make sure it was still noted on the whiteboard.

[16] It was put to Mr Baird that he had delayed responding to the alarm. Mr Baird denied this saying he had moved his head “five degrees to the right to see the Firemon screen and the C41 screen and noticed that it was a fault” and he already knew from glancing at the whiteboard previously that it was written up and it was a recurring fault.” 20 He said that a recurring fault was the “lowest priority notification” and so “he didn’t move in a hurry.”

[17] Mr Baird subsequently said that he was “reading the whiteboard and reading the fire alarm system at the same time.” 21 He said he was able to continue the simulation with his left hand and read the whiteboard and the screen.22 Mr Baird said that the whiteboard was directly to his left and did not accept that it was behind him.23 Mr Craig Bennett, a Fire Commander at Melbourne Airport, gave evidence that the whiteboard on which alarm faults were noted was behind the panel where the fire fighter sat.24 Mr Bennett having seen the video gave evidence that Mr Baird did what was required in responding to the alarm.25 Mr Gomez said that the whiteboard was usually located behind the FCC operator.26 In cross examination he accepted it was behind the console but to the left but said that the FCC operator would need to turn to look at the whiteboard.27

[18] Mr Gomez noted that Mr Baird “continued playing after the alarm had sounded. He glances at the console and acknowledges on the C41 screen the fire alarm fault indication and quickly returns to the activity that he’s engaged in.” 28 Mr Gomez said he should have given the alarm his highest priority. He said the alarm handling procedure requires him to contact the property owner via the station officer, communicate that requests an obs 126 appendix A form to be filled out or to confirm…”29 “Even if it has been noted before, he still needs to confirm that it has been actioned before.”30 He should have read the alarm carefully. He should have confirmed that it had been actioned before. He should have checked the whiteboard. Mr Gomez said it does not appear that that happened.31 In cross examination Mr Gomez accepted that he could not know if Mr Baird did in fact check the whiteboard.32

[19] I am not satisfied that Mr Baird did not comply with the procedure when the alarm sounded. It is clear from the video that he did not immediately stop playing with the Launchpad simulator once the alarm sounded. However it was his unchallenged evidence that he was aware at the time that the alarm was a recurring fault. I am also not able to conclude from the video that he did not look at the whiteboard as required.

1. Mr Baird denied that confidential information could be garnered from the video and in any event Airservices itself has put videos on YouTube which disclose similar information. 33

[20] I accept that if the video is stopped it is possible to see staff names and contact details. 34 I do not accept Mr Baird’s response that his conduct was excused because Airservices uploaded similar information when it placed its videos on YouTube. I am not able to conclude on the evidence that the Airservices videos disclose similar information. In any event the Airservices videos were authorised. Mr Baird was not authorised to place his video on YouTube.

1. Mr Baird contended that he could hear all the radio transmissions in the FCC whilst playing music. 35

[21] Mr Gomez gave evidence that there was audio of air traffic controllers in the background whilst Mr Baird was recording. 36 He said the music would have interfered with the ability to hear radio communications which are received by the FCC.37

[22] I am unable to conclude from viewing the video that Mr Baird was unable to hear the radio communications whilst playing music.

1. In relation to the recruit course video Mr Baird said that the making of the video was part of the course and it was shown during the course. The participants in the course had been directed to YouTube by their instructors to view recruit course videos made on earlier courses. Mr Baird did not video it but he assisted with the editing. The video was shown as part of the participants’ graduation ceremony. 38

[23] Mr Bennett was an instructor on the training course undertaken by Mr Baird. 39 It was his evidence that the course participants were advised to make a course video. He said it was part of the communications module. It was made so that future recourse participants could see the comradary and how the course would go.40 He said it was a group exercise.41 Mr Bennett had no concerns about the content of the video.42 It was his evidence that the recruits were not told that they could not post the video on line.43

[24] I accept that the production of the video was part of Mr Baird’s course. I also accept that given a number of these videos were posted on YouTube, Mr Baird could not have understood that this was inappropriate. I also accept Mr Baird’s evidence that the instructors were aware of the content and did not advise those who made the video that it contained inappropriate content.

Was the termination of employment harsh, unjust or unreasonable?

[25] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[26] Mr Baird accepts that his conduct in videoing the Launchpad simulation was misconduct and that there was a valid reason for the dismissal. 44

[27] Airservices submitted that in addition to videoing the Launchpad simulation, the uploading of it to YouTube was a breach of the Code of Conduct and the ICT Policy.

[28] It further submitted that Mr Baird breached the fire alarm handling operational procedure and the FCC procedure which requires aircraft observation during landing and taking off.

[29] It further submitted that in uploading the recruit course video to YouTube, Mr Baird breached his obligations under the Code of Conduct policy and this provided a valid reason for the termination. 45

[30] I am satisfied that there was a valid reason for the termination of Mr Baird’s employment. Mr Baird, whilst on duty, videoed himself simulating playing the Launchpad. Further he uploaded that video to YouTube.

[31] While much attention was given at the hearing to other features of the FCC which might distract FCC operators from their primary task, I am not satisfied that that excused Mr Baird’s conduct. It is not disputed that many of the ancillary tasks may distract FCC operators from their primary task. It is not disputed that Airservices provided a television for FCC operators to use nor was it disputed that FCC operators could use the computers for limited personal use. At the time FCC operators were able to bring books, ipads and newspapers into the FCC. It is not disputed that Airservices provides FCC operators with facilities for making tea and coffee and food preparation. However it is clear that all these things are meant to take second place to the FCC’s primary duty. Mr Baird deliberately brought his camera into the FCC. He distracted himself from his primary task. In doing so, as he accepted, he diminished his situational awareness.

[32] Further, he uploaded this video to YouTube without authorisation and in doing so disclosed contact details of employees. I do not accept Mr Baird’s justification for this conduct. It is not to the point that Airservices may have put up its own videos. The policy made it clear that the publication of information without authorisation was not permitted. 46

[33] I also find that the video had the potential to damage the reputation of Airservices. The video shows an employee of Airservices playing a game whilst on duty. It shows him continuing to play the game whilst an alarm goes off. It records the flippant response to the alarm by the employee. The evidence of Mr Justin Justin, the Regional Operations Manager, and Mr Gomez about the potential damage to Airservices’ reputation was not seriously challenged in cross examination.

[34] In making my finding that there was a valid reason for the dismissal, I have not accepted the submission of Airservices that the recruit course video and its uploading to YouTube provide a separate valid reason for the termination.

[35] Further, given my findings above about Mr Baird’s compliance of the fire alarm procedure, I do not have regard to Airservices’ submissions in relation to this in finding a valid reason for the termination.

s387(b) whether Mr Baird was notified of that reason;

[36] It was submitted that Airservices had regard to a range of earlier conduct in deciding to terminate Mr Baird and he was not notified of these matters prior to the decision to terminate his employment. 47

[37] I do not accept that submission in relation to this criterion. It is clear that this criterion is concerned with whether the employee is notified of the valid reason for the dismissal prior to the decision being made. That other conduct was considered in deciding whether to dismiss is not what this criterion is about. Its focus is on whether the employee was notified of that reason and that reason is the valid reason.

[38] In this matter, I am satisfied that Mr Baird was notified of that reason.

s387(c) whether Mr Baird was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[39] This criterion refers to being given an opportunity to respond to any reason related to the conduct. I accept that if there were other reasons relied upon by Airservices in deciding to dismiss Mr Baird, then Airservices was required to give Mr Baird an opportunity to respond prior to the decision to dismiss being taken.

[40] Here Mr Justin, who was the decision maker, made it clear that he had discussions with others about previous behavioural issues. Mr Justin said “although this decision was reinforced by my understanding of previous behavioural issues including the use of a mobile phone, the uploading of the recruit video to YouTube and a failure to take reasonable instruction, I would have made the same decision to terminate Mr Baird’s employment based on the Launchpad incident alone.” 48

[41] In the letter of termination there is reference to the previous issues with Mr Baird’s use of the mobile phone. That reference was made to explain why Mr Justin did not accept Mr Baird’s responses during the investigation into the Launchpad video. Mr Justin viewed the use of recording device in the FCC as similar conduct to using a mobile device in the FCC which was prohibited. 49

[42] I do not accept that Mr Baird was not on notice about this matter. In the letter sent to him advising of the findings of the investigation this issue was raised. 50

[43] While I accept that Mr Justin was aware of other issues I do not consider that they were a reason Mr Justin decided to dismiss Mr Baird. His evidence that the uploading of the video on its own was sufficient was not challenged.

[44] I am therefore satisfied that Mr Baird was given an opportunity to the critical allegations prior to the decision being made.

s387(d) any unreasonable refusal by the employer to allow Mr Baird to have a support person present to assist at any discussions relating to dismissal;

[45] Mr Baird was permitted a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Baird had been warned about that unsatisfactory performance before the dismissal;

[46] The dismissal did not relate to Mr Baird’s performance.

s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[47] Airservices is a large employer and given I have not found that there was any significant defect in the procedures followed I find that this criterion is a neutral consideration.

s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[48] Airservices had dedicated human resources personnel and given that I have not found that there was any significant defect in the procedures followed, I find that this criterion is a neutral consideration.

s387(h) any other matters that the Fair Work Commission considers relevant.

[49] Mr Baird submitted that his dismissal was harsh. It was submitted that the dismissal was disproportionate.

[50] In relation to the Launchpad video it was submitted that uploading the video was only low level misconduct as it was not widely viewed. 51 Further, in relation to the confidential information it was submitted Airservices itself put similar material in its YouTube videos.52 It was submitted that the delay in responding to the alarm was very short and that this can occur in the FCC for various reasons including leisure activities that were permitted by Airservices.53 Further, it was submitted that Airservices left it up to the fire fighters to exercise their discretion as to how they managed the distractions in the FCC.54 Further, it was submitted that fire fighters cannot see all the planes at all times and there are other systems in place to ensure that there is monitoring. It was submitted that the risk arising from Mr Baird’s conduct was exaggerated.55 It was submitted that had Mr Baird been making himself a drink or food at the time, which was permissible, he would not have been dismissed.56

[51] It was submitted that the termination of his employment as a career fire fighter will have a significant impact on Mr Baird. He is unlikely to obtain employment as a fire fighter. 57 The dismissal has had a significant economic impact on Mr Baird but equally it has had a significant impact personally as he had close personal relationships with the other fire fighters.58

[52] It was submitted by Airservices that the dismissal was not disproportionate or harsh. It was put by Airservices that the conduct of Mr Baird constituted serious misconduct and this is a relevant consideration in assessing harshness. 59 It was submitted that after his dismissal, evidence of similar conduct was uncovered. Mr Baird, despite being warned about having his mobile phone on at work, had uploaded other photos taken at work to his Instagram account.60

[53] It was submitted that Mr Baird’s commitment to his career may be doubted given his conduct. Further it was submitted that he could seek employment with other fire fighting services.

[54] It submitted that the evidence established that Mr Baird struggled with the mundane nature of much of the work and the strict command hierarchy. 61

[55] It submitted that the fact that the Launchpad video was only seen by a small number of viewers and that no damage resulted from his failure to perform his duties is not relevant. It submitted that the trust that managers must have in the fire fighters should be taken into account as should the fact that Mr Baird does not have an unblemished record.

[56] I do not consider Mr Baird’s conduct to be at the low level of misconduct. Mr Baird chose to engage in the Launchpad simulation when he should have been performing his duties. I accept that fire fighters were permitted other distractions and that arguably he could have been reading a newspaper or making himself a meal and the same sequence of events may have occurred. However this analysis misses the point. Those activities were ones that Airservices permitted. None of those activities were permitted to take precedence over his primary obligations. It is difficult to understand how, given he knew he was not to have his mobile phone on when on duty, he thought it was OK to video himself doing the simulation.

[57] I do not accept the submission that Mr Baird’s conduct in posting the video to YouTube is less serious because Airservices posted similar information. Again while Mr Baird accepts his wrong doing he displays a lack of insight into his conduct. His conduct was in breach of Airservices policy. He was not authorised to make the post. That he still does not see the difference between his post and Airservices’ post is concerning.

[58] Further I do not accept the submission that because the video was only seen by a few people is relevant.  62 The video was able to be seen by the world. It had the potential to damage Airservices reputation.

[59] I also do not consider that Airservices has exaggerated the risk of Mr Baird’s conduct. While I accept that other matters distract fire fighters from their primary function and that there may other reasons why a fire fighter might not see a plane taking off or landing and that there are others watching, this submission underplays the importance of the FCC operators’ primary responsibility, namely to, where possible, observe every aircraft take-off and landing. One only needs to ask how Mr Baird would have justified his conduct had there been the same delay in him responding to a real alarm as opposed to the alarm he did respond to.

[60] I have had regard to Mr Baird’s conduct in relation to his use of his mobile phone at work. He was counselled about this in early 2013 on two separate occasions. 63 Further, on the second occasion this was raised with Mr Baird, his response was to question why he couldn’t have his phone when the Fire Commander was allowed to have his and receive personal calls. He said he felt targeted.64 Despite these counsellings, in 2014 he uploaded photos he had taken at work to Instagram. He accepted that they were most likely taken with his phone.65

[61] I have had regard to Mr Baird’s response to being counselled by Mr Gomez about moving his bike. It was clear from the evidence that Mr Baird had not moved the bike when requested and had pushed back when Mr Gomez had counselled him about his attitude.

[62] Mr Baird took the view that Mr Gomez had treated him unfairly and he maintained that view at the hearing. 66 Having reviewed Mr Gomez’ evidence an entirely different picture emerges. Mr Gomez, despite Mr Baird’s conduct, did not at any time issue Mr Baird with a formal counselling. His file notes record his repeated attempts to explain to Mr Baird how he could improve his attitude and conduct. That Mr Baird viewed this as being picked on showed a remarkable lack of insight.

[63] I accept that the loss of this position will have a significant impact on Mr Baird. I accept that it is unlikely he will be able to gain future employment as a fire fighter. I also accept that the loss of social interaction with his colleagues has had a significant impact on him. However I am unable to find that the dismissal was a disproportionate response or harsh. Mr Baird occupied a position of significant responsibility. He was required to perform a safety critical role with limited supervision. As he submitted he had significant discretion about how he managed his responsibilities. Airservices placed significant trust in him. He failed to take this responsibility seriously and that was evidenced by not only his lack of judgement in making the video but also his lack of judgment in posting the video.

Conclusion

[64] There was a valid reason for the dismissal and Mr Baird was afforded procedural fairness in relation to the critical reason for his dismissal. Mr Baird did not have an unblemished employment history. While I have sympathy for his loss of career, it is not sufficient for me to determine that the dismissal was harsh. I find that the dismissal was not unfair and accordingly Mr Baird’s application is dismissed and an order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Y. Bakri for the Applicant.

R. Preston for the Respondent.

Hearing details:

2017.

Melbourne:

15 and 16 February.

 1   Exhibit R5 at JJ9 at page 5 and Exhibit A1 at [24]

 2   Exhibit A1 at [40]-[42]

 3   Exhibit A1 at [44]

 4   Ibid at [56]

 5   Ibid at PB5

 6   Transcript PN 435

 7   Exhibit A1 at [10]-[13]

 8   Ibid at PB5

 9   Ibid at [44]

 10   Exhibit R4 at [57]

 11   Exhibit R6

 12   Exhibit R4 at [59]

 13   Transcript PN 160

 14   Ibid PN 412

 15   Ibid PN 425

 16   Ibid PN 426

 17   Ibid PN 438

 18   Exhibit A1 at [56]

 19   Exhibit R4 at [61]

 20   Transcript PN 367

 21   Ibid PN 370

 22   Ibid

 23   Ibid PN 308-309

 24   Ibid PN 899-900

 25   Ibid PN 932

 26   Ibid PN 1058

 27   Ibid PN 1261

 28   Ibid PN 1090

 29   Ibid

 30   Ibid PN 1091

 31   Ibid PN 1092

 32   Ibid PN 1257

 33   Exhibit A1 at PB5

 34   Exhibit R5 at [35]-[36]

 35   Transcript PN 435

 36   Exhibit R4 at [56]

 37   Ibid at [58]

 38   Exhibit A1 at [10]-[13]

 39   Transcript PN 784

 40   Ibid PN 795

 41   Ibid PN 799

 42   Ibid PN 802

 43   Ibid PN 808

 44   Ibid 1633

 45   Submissions of the Airservices at [24]-[26]

 46   Exhibit R5 at JJ8, section 6.13

 47   Transcript PN 1634-1638

 48   Exhibit R5 at [46]

 49   Exhibit A1 at PB8

 50   Ibid at PB4

 51   Transcript PN 1684

 52   Ibid PN 1687

 53   Ibid PN 1694-1695

 54   Ibid PN 1696

 55   Ibid PN 1699

 56   Ibid PN 1705-1707

 57   Ibid PN 1708

 58   Ibid PN 1709

 59   Ibid PN 1848

 60   Exhibit R3

 61   Transcript PN 1868

 62   Goodall v Mt Arthur Coal [2016] FWC 4129

 63   Exhibit R4 at JG5 and JG6

 64   Transcript PN 535-536

 65   Ibid PN 684

 66   Exhibit A1 at [22]

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