DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Loata Petrunic
v
Q Catering Limited T/A Q Catering
(U2018/10437)

Application for an unfair dismissal remedy – active participation in unprotected industrial action – valid reason for dismissal found – employee’s conduct fundamentally inconsistent with obligations to employer – employer provided employee with procedural fairness – dismissal not unfair – application dismissed.

Background

[1] On 9 October 2018, Loata Petrunic (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to her dismissal by Q Catering Limited T/A Q Catering (the respondent), which occurred on 19 September 2018.

[2] At the time of the applicant’s dismissal, the respondent was a wholly-owned subsidiary of Qantas Airways Limited (Qantas). In April 2018, Qantas announced that it was selling the respondent to dnata, an aviation services company owned by Emirates.

[3] The application did not resolve at conciliation and was referred to me for determination. I held hearings in Sydney on 10 and 11 January, 20 February, 9 April and 28 and 31 May 2019. The applicant was represented by Tony Vernier, counsel and the respondent by Ralph Warren, counsel.

[4] At the time of her dismissal, the applicant was employed as an Airline Services Coordinator Post Production at the respondent’s Sydney Catering Centre in Mascot. She was dismissed because of her involvement in an unauthorised stoppage of work that took place at the Catering Centre on 15 June 2018.

The evidence

[5] Evidence was given on behalf of the applicant by herself and Nicholas Grant (former Crew Leader).

[6] The respondent called the following witnesses to give evidence:

•  Eder Seixas (Day of Operations Manager);

•  Nathan Riley (former Manager, Customer Delivery);

•  Peter Smith (Head of Industrial Relations, International and Engineering, Qantas);

•  Danny Robinson (Manager, Case Management Support, Qantas);

•  Vanessa Rodgers (Manager, Business Catering Operations, Qantas);

•  Sarah Magnussen (National Human Resources Manager, Freight, Qantas);

•  Kylie Morris (Executive Manager, Customer Strategy, Insights & Finance, Qantas);

•  Stuart Morton (Operations Manager, Flight Assembly, Qantas);

•  Stephen Donaghey (Manager, Flight Assembly, Qantas); and

•  Kathy Srdanovic (Partner, Ashurst).

[7] All the witnesses gave written statements and were cross-examined. I am satisfied that the relevant facts are as follows.

[8] The applicant is 41 years of age. 1 She commenced her employment with Caterair Airport Services (which became Q Catering) on 25 October 1995, when she was 18 years old. She started working as a casual cabin service attendant and progressed through different roles to full-time employment.2

[9] Apart from a part-time job at McDonalds, which she had in high school, the applicant has only ever worked for the respondent. 3

[10] The applicant has received numerous commendations from colleagues and managers. She has had one prior warning, in 2016, after she used a work vehicle for an unauthorised purpose. 4

[11] In the evening of 14 June 2018, the applicant received a telephone call from Andrew Jones, her colleague and a delegate of the Transport Workers’ Union of Australia (TWU). He told her there was going to be a ‘walkout’ the next day ‘because they sacked Joe Whitby’. (The applicant conceded during her cross-examination that Mr Jones did not say the walkout was being organised by the TWU.) 5 Even though the applicant had an RDO on 15 June 2018, she decided to attend. She also volunteered to make some signs to give to other employees.6

[12] The signs the applicant made included slogans such as ‘United we stand’, ‘Joe Whitby is innocent’ and ‘Fight for our rights. The truth will set you free.’ 7

[13] Shortly after 5:40 am on 15 June 2018, an announcement was made by Stanley Whippy (another TWU delegate) 8 over the public address system at the Q Catering building at Mascot, asking members of the Transport Workers’ Union (TWU) to attend a meeting in the catering office.9

[14] Somewhere between 30 and 40 employees from Flight Assembly (the operational area responsible for preparing meal trolleys for Qantas flights and other customers) 10 assembled outside the catering office.11 They included four TWU delegates: Mr Whippy, Mr Jones, Rodelio Montaos and Joseph Sritar.12

[15] Shortly after they gathered, Mr Seixas told the assembled workers that they were holding an illegal meeting and that they should return to their workstations. 13 Mr Grant responded by shouting words to the effect of ‘They’ve sacked Joe Whitby. We need to band together.’14 It appears that despite Mr Seixas’s words, the workers then walked through the Customer Delivery area to the Dispatch Dock.15

[16] At some point before 6:00 am, two cars belonging to Mr Sritar and Mr Jones 16 were illegally parked in such a way as to block the exit gate to the Dispatch Dock. This meant that trucks were not able to deliver meals to service any aircraft.17

[17] At approximately 6:45 am, both Mr Morton and Mr Seixas addressed the employees and told them that ‘[t]his is an illegal meeting’ and that they should return to work. 18

[18] The applicant drove to the Sydney Catering Centre that morning. She arrived at 6:34 am. She stopped near where her colleagues were assembled and gave them the signs she had made. She then parked her car, went to her locker, put on her safety shoes and ‘hi vis’ vest and joined her colleagues on the loading dock. 19 This would have been shortly after the police had arrived, because she said there were police there when she arrived.20 The police arrived at around 6:43 am.21

[19] At approximately 7:00 am, Mr Donaghey addressed the employees gathered at the Dispatch Dock area and told the employees to go back to the workplace. 22

[20] At around 7:03 am, Troy Rogers, a TWU organiser arrived. 23 He spoke to both management and the employees. He told the employees their pay would be docked for four hours, but asked them whether they wished to go back before the four hours were up. It appears that the employees collectively decided to stay out until the four hours were over.24

[21] The police officers spoke to Mr Rogers about removing the cars blocking the gate. Mr Rogers asked the employees to move the vehicles. They were then moved by two of the TWU delegates (Mr Srithar and Mr Jones). 25

[22] From at least 7:03 am, 26 the applicant stood on the road, waved a sign at passing cars and yelled at them.27 She said during her cross-examination that the posters were aimed at other Qantas employees.28

[23] I asked the applicant what she was trying to achieve by waving her sign. She replied:

‘I don’t know if I was trying to achieve anything but I was just waving it for them to read the sign, that’s all.’ 29

[24] The applicant agreed that the occupants of the cars driving past would have included other Q Catering employees. 30

[25] The applicant said that she never heard anyone from management tell the employees to go back to work. 31 She said she saw:

‘…someone from Q Catering corporate talking to employees when I was standing at the boom gate on the gate line. I was chanting and yelling and waving a sign at the passing traffic. It was very noisy, people were chanting and yelling and it was windy out on the loading dock. I could not hear a word of what the management person said.’ 32

[26] However, during her cross-examination, the applicant agreed she did not think it worthwhile hearing what the person from management had to say. 33 I am satisfied that she did not hear anyone from management tell employees to return to work, but that this was largely because she made no effort to find out what they were saying.

[27] At around 8:15 am, Mr Smith addressed the issues of concern with the crowd of employees. He also said words to the following effect:

‘This is unprotected industrial action, which is unlawful. We need you to get back to work.

This is having huge disruptions. It is affecting our customers.’ 34

[28] Later on in the morning, Mr Rogers asked the employees if they wanted to express their concerns and a number of employees spoke. 35 The applicant made a speech between 9:24 am and 9:27 am.36 She referred to a range of concerns, including the alleged sacking of Mr Whitby and issues arising from the sale of the respondent to dnata.37

[29] At approximately 9:30 am, the employees left the Dispatch Dock and went back inside. Operations appear to have gradually resumed from that point. 38

[30] The unprotected industrial action, and the associated blockade, meant that the catering for flights due to leave from Sydney’s international and domestic terminals on the morning of 15 June 2018 was not loaded. 39

[31] 50 flights and over 7,500 customers were adversely affected. In particular 12 international flights were delayed, four of them by over two hours, 40 (with consequent disruption to flight schedules that extended into that afternoon),41 and three flights to New Zealand departed without catering. 22 domestic flights and 13 regional flights were delayed by up to 31 minutes and departed without catering.42

[32] This disruption occurred on Friday, Qantas’ busiest day of the week. 43

[33] At approximately 6:00 am on 15 June 2018, Mr Smith rang Kathy Srdanovic to alert her to the work stoppage and indicate that Qantas would need to obtain advice from Ashurst. 44

[34] Edward Carroll from Ashurst attended the Q Catering premises at Mascot on 16, 17, 18 and 19 June 2018 and met with management representatives who had witnessed the events of 15 June 2018 to gather information to provide legal advice. Arising from these enquiries, several different draft letters of warning and allegation were prepared. 45

[35] The respondent found that 44 employees had participated in the industrial action on 15 June 2018 by stopping work. They were initially all stood down, though 39 were permitted to resume work within a week ‘on the basis that they were considered to be participants in the stoppage only and were not involved in the organising of the industrial action and blockading of the entrance to the Catering centre’. 46

[36] Each of those 39 employees received a letter from Ms Morris that included the following:

‘You are employed at the Sydney Catering Centre in Mascot.

You were rostered to work on the morning of 15 June 2018.

From approximately 0545 to 0930 a number of employees engaged in an unauthorised stoppage. The unauthorised stoppage commenced in front of the Catering Office in front of Flight Assembly at approximately 0545, and proceeded to the Dispatch Dock at approximately 0600. During the unauthorised stoppage, participants also obstructed the Catering delivery trucks from exiting the Dispatch Dock by blocking the entrance to and exit from the Level 4 Sierra Gate.

The stoppage was not authorised by Q Catering, constituted unprotected industrial action and was therefore unlawful and was contrary to directions issued by management to return to work.

Our records show that you participated in the unauthorised stoppage and therefore engaged in unprotected industrial action on 15 June 2018. In accordance with section 474 of the Fair Work Act 2009 (Cth), the Company must not pay you for a minimum of four hours. This amount will be withheld in the next pay cycle.

Final warning

Q Catering regards your participation in the unprotected industrial action as a very serious matter.

The unauthorised stoppage impacted operations, customers and resulted in significant delays, causing damage to the Qantas Group. A number of flights departed with limited or nil catering. Your participation in the unauthorised stoppage is totally unacceptable and will not be tolerated.

You should be aware that the Company seriously considered termination of your employment as a possible outcome. However, in all the circumstances, on this occasion, the Company has decided to issue you with a final written warning. You should be aware that any future misconduct is likely to result in the termination of your employment.’ 47

[37] The respondent held meetings with the employees who received a final warning to advise them of its decision. Notes from these meetings were in evidence. It is clear from the notes that most of the employees were unaware of the proposed stoppage until they were told to attend a ‘meeting’ by the TWU delegates on the morning of 15 June 2018. 48

[38] According to Ms Morris, ‘five [employees] were identified as being actively involved in either leading employees, or in promoting and participating in the Unprotected Industrial Action.’ These employees remained stood down on full pay, pending an investigation into their involvement in the unprotected industrial action. 49 The applicant was one of the five employees who remained stood down. The others were Andrew Jones, Joseph Srithar, Stanley Whippy and Nicholas Grant.50

[39] Anne Bryce, a Case Support Manager, subsequently conducted an investigation into the applicant’s conduct on 15 June 2018. Ms Bryce interviewed relevant witnesses and put allegations to the applicant. On 22 June 2018, Ms Bryce sent the applicant a letter of allegations that included the following:

‘You are employed at the Sydney Catering Centre in Mascot.

From approximately 0545 to 0930 on 15 June 2018, a number of employees engaged in an unauthorised stoppage. The unauthorised stoppage commenced in front of the Catering Office in front of the Flight Assembly at approximately 0545, and proceeded to the Dispatch Dock at approximately 0600. The participants obstructed the Catering delivery trucks from exiting the Dispatch Dock by blocking the entrance to and exit from the Level 4 Sierra Gate.

Allegations

Q Catering is conducting an investigation into your involvement in the Unprotected Industrial Action (Allegations). …

As the next step in this process, it is important for me to understand your response to the Allegations. Specifically, you need to respond [to] the following allegations.

It is alleged that:

1. You were not rostered for work on 15 June 2018, did not have any operational need to enter the Dispatch Dock and were not authorised to do so.

2. You joined the employees who were participating in an unauthorised stoppage at approximately 0630. In particular, you were part of a group of employees who blocked the Catering delivery trucks from entering and exiting the Level 4 Sierra gate.

3. You encouraged employees of Q Catering who were rostered for work on 15 June 2018 to participate in the Unprotected industrial Action, including without limitation:

(a) by making and distributing posters to employees to hold during the Unprotected Industrial Action.

(b) at approximately 0925, you said these words to the following effect:

“I made these posters today. I’m not scared to admit it.”

4. You were aware that the action being taken by employees who were rostered for work:

(a) was not authorised by Q Catering;

(b) constituted unprotected industrial action and was therefore unlawful; and

(c) was contrary to directions issued by management to return to work, including the following:

i. at approximately 0643, Stuart Morton, Operations Leader and Mr Sexias [sic] said words to the following effect:

Morton: “OK guys I’m officially asking you to come back to work please.”

Seixas: “This is an illegal meeting. You need to get back to work.”

ii. At approximately 0700, Stephen Donaghey, Manager Flight Assembly said words to the following effect:

“I need you to go back to the workplace.”

iii. At approximately 0830, Peter Smith, Head of Industrial Relations International and Engineering said words to the effect of:

“This is unlawful and you need to get back to work. You’re damaging our customers. The matter is serious.”

5. During this period, you also engaged in the following:

(a) You entered the Dispatch Dock area (being a secure area with restricted access) without proper authorisation in circumstances where do you not have permission to enter the Dispatch Dock and did not have any operational need to be there.

(b) You failed to wear a hi-vis vest while on the Dispatch Dock, notwithstanding that it is Company Policy that hi-vis vests must be worn on the Dispatch Dock.

(c) You walked onto the road outside the gate, placing yourself and others at potential risk to health and safety.’ 51

[40] Ms Bryce asked the applicant to respond in writing by 9:00 am on 27 June 2018. She warned the applicant that if substantiated, the alleged conduct might be in breach of her contract of employment and the Qantas Group Standards of Conduct Policy. The applicant was told that the allegations were very serious and could result in her dismissal. 52

[41] On 28 June 2018, the applicant provided a written response to Ms Bryce. The applicant said this response was prepared by the TWU and she was uncomfortable because it was not truthful. Nonetheless, she signed the response and emailed it to Ms Bryce.

[42] The response included the following:

‘1. I agreed that I was not authorized to work and enter the building however I was waken-up by a phone call from a private number to get to work urgently because there was an urgent meeting that I must attend.

2. I saw employees standing in front of the entrance and exiting gate of Q Catering delivery trucks area. I assume they were having a TWU meeting, unaware of what was going on.

3. I deny gathering people around me. As I arrived I saw people already standing outside. I asked them what was happening they said they were concerned for their future, uncertain about the sale of business and superannuation. Then I decided to join them.

3(a) I deny the allegation of making poster, however on my way to Q Catering, I got another call from a private number to collect something that is urgently needed for the meeting located at Mercure Hotel, Mascot.

3(b) I deny the allegation of making the posters however I can recalled being asked by one of the managers if I made the posters to which I cannot recall I gave any answer. I was upset and emotionally hurt with the whole thing as a result of me being waken up from sleep to attend an urgent meeting to coming to a situation where my fellow workers are standing-up for our entitlement that is uncertain therefore I can’t recall what I said on the day however I did not say anything with regards to me making the posters.

4. I deny these allegation [sic] as I was not aware about any actions taken by employees however I was called to attend an important TWU meeting

•  As stated above I was not aware of any action (authorized/unauthorized)

•  I was not aware that the action being taken was unprotected. I was not aware of the implications surrounding employees gathering to request answers will result in being labelled unprotected action and I was not even aware of it until I arrived because I was called to attend an urgent meeting.

•  I do not recall anybody saying anything to me personally. There was a lot going on around me, emotions were high and people were chanting and talking very loudly. If words were said to that effect, I did not hear them. I cannot recall Peter Smith saying anything to this effect as I was not in close proximity to him.

5. As this was unplanned and everybody was frustrated, I believe nobody was thinking straight regarding where they were going, what they were doing and what they were wearing.

I was wearing a hi-vis vest. I was not in any danger or putting any others in danger.

It was a safety area. I stood where everyone else was standing which was not on the road. Therefore I was not putting anyone’s life in imminent danger.

Conclusion:

I was not aware that this would result in the outcome that it did as I merely felt I was joining my fellow employees to get answers.

It was all done out of frustration as we felt that our future was uncertain. If this behaviour has caused Qantas any damage or significant loss then I am truly sorry. I love my job and feel that I have made some real contributions to this company and its interests.’ 53

[43] On 9 July 2018, Ms Bryce met with the applicant to allow her to provide a verbal response to the allegations. Mr Rogers of the TWU acted as her support person. The applicant agreed that she chose him as her support person. 54 During this meeting, she largely stuck to the version of events given in her letter of 28 June 2018. For example, she said she did not remember who called her, or at what time they called her, and that ‘[t]hey just said there was a meeting at work so I came.’ She also repeated that she did not know what was going on when she saw employees gathered at the Dispatch Dock and denied making the posters. She said she did not know what was written on the posters.55

[44] On 9 August 2018, Ms Bryce wrote a letter to the applicant which provided the findings of her investigation. In short, she found that allegations 1, 2, 3 and 4 as set out in her letter of 22 June 2018 were substantiated. She also found that allegations 5 (a) and 5 (c) were substantiated, though she accepted that the applicant was wearing a hi-vis vest (in relation to allegation 5(b)). Ms Bryce also observed:

‘In reaching the above findings, I have also had regard to your credibility throughout the investigation process. Overall, I did not find your responses to be credible. In particular, you provided a version of events in your written response, for which you were able to provide very little (if any) additional detail about. When prompted for further responses, you were either unable to respond, or declined to do so.’

[45] Ms Bryce wrote that the substantiated allegations were in breach of the Qantas Standards of Conduct Policy. She asked the applicant to provide a written response as to why her employment should not be terminated. 56

[46] The applicant provided a lengthy written response on 21 August 2018. This drew attention to her long period of loyal service to Qantas and the effect the loss of her job would have on her family. She said that the TWU had pressured her to provide dishonest responses to the allegations letter. She now said that she had been telephoned the night before by Mr Jones that there was to be a walkout on 15 June ‘which the TWU had organised’. 57 She agreed to participate and made some signs that night. She said that she did not think the action would be unprotected, because she had been told by Mr Jones that the TWU had organised it. She said that the TWU had taken advantage of a workforce that was feeling ‘very scared’ and ‘insecure’58 because of the impending sale of the business. She did not hear management say that the action was unprotected and that she would never have participated if she thought it was illegal. She also said:

‘8.There were 50-60 employees participating in the action and only about 5 of us have been given allegations letters and thereafter show cause letters. I am aware that many of the other employees who participated were issued with warnings – even those who apparently heard management say the action was unlawful; those who did not haver hi-vis vests on; those who walked on the road and those that held up the signs, I made. I did not incite the action. I did not ring anyone to come into work to participate. The only difference between me and the others was I made the signs and I spoke when asked to about a number of complaints (as outlined above.) However, this did not encourage others to participate in the action. My colleagues were already partaking in the action when I arrived. The signs and my speech didn’t encourage anyone to join in. other employees who participated have not been subjected to this investigation and show cause process. In addition, Mr Monahan congratulated me on my speech.

9. I wish I had told the whole truth earlier as it is not in my character to lie. I spoke to my dad about how bad I felt about everything and what the TWU had done and he has supported me to come forward.

10. I am very upset that I was lied to by the TWU to come into work on my day off, to participate in action about a sacking that had not occurred and to engage in action which I did not realise at the time was unlawful. I feel very manipulated and used. The TWU have put my job at risk and then asked me to cover up for them. I understand that what the TWU did was unlawful and I am willing to support any action QANTAS wants to take against them.

11. They have put at risk a job I love. QANTAS is the only fulltime employer I have ever had. I don’t know what I would do if I lost my job. My family is very dependent on my income and it would be impossible to get another job if I was terminated for misconduct. I don’t have any other reference sources other than QANTAS as I have only ever worked for them for the past 22 years.

12. I am sincerely sorry for my actions. In retrospect I know the full picture of what occurred and apologise for my actions…

13. I have certainly learned my lesson and this will never happen again. …

I am committed to doing the right thing, being a better person and will undertake whatever training is required to ensure this type of conduct never happens again. …’ 59

[47] Ms Morris and the applicant met on 7 September 2018 to discuss the applicant’s response to the show cause letter. The applicant’s lawyer acted as her support person. 60

[48] Following this meeting, Ms Morris made a decision to terminate the applicant’s employment. Amongst the factors she took into account were, in her own words:

‘(a) the seriousness of the action taken by the Applicant in coming in to the workplace on her day off work to encourage the Unprotected Industrial Action by making posters and distributing them to other employees;

(b) that the Applicant had prior knowledge of the Unprotected Industrial Action, and still decided to participate. Her actions were deliberate and pre-meditated;

(c) the impact that the Unprotected Industrial Action had on Qantas’ business and its customers, and that the Applicant was clearly aware of this impact at the time of the Unprotected Industrial Action;

(d) the fact that despite her assertions, there was no evidence of her being coerced on 15 June 2018. I was also unable to find that the TWU had actively encouraged, incited or organised the Unprotected Industrial Action; Neither of these matters were initially raised by the Applicant in her first interview or response to the letter of allegations. However, it also did not change her decisions as to how to act on 15 June 2018;

(e) her failure to follow Q Catering’s strict safety procedures and requirements in coming on site, in an area that she had no operational requirement to be in;

(f) her lack of contrition or acceptance that her actions were completely unacceptable and incompatible with her duties as an employee; and

(g) that she fully understood what she was doing and the consequences of her action on the basis that she claimed that she was ‘fighting for her rights.’ 61

[49] A further meeting was held on 19 September 2018 at which Ms Morris advised the applicant that her employment was being terminated (with payment in lieu of notice.) The applicant was given a termination letter signed by Ms Morris, which indicated that the respondent had taken:

‘all relevant matters into account, including your written and verbal responses, the findings of the investigation, other relevant information obtained during the investigation, your employment history and your length of service.’ 62

[50] The termination letter provided an opportunity to appeal the decision internally, and the applicant did so. However, her appeal was unsuccessful. 63

Consideration

[51] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable the Commission is required to take into account the factors outlined in s.387 of the FW Act. These are:

‘(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); and

(b) whether the person was notified of that reason; and

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

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

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

(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; and

(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; and

(h) any other matters that the FWC considers relevant.’

[52] I will consider each of these matters in turn.

[53] I am satisfied that the respondent had a valid reason to dismiss the applicant because of her conduct on 15 June 2018. The applicant was an active participant in the blockade of Q Catering’s premises. While she was not actually at work that day, she supported and encouraged her colleagues to engage in the stoppage. The stoppage and the associated blockade was intended to, and did, have the effect of significantly impeding the respondent’s operations that day, in support of certain (albeit poorly formulated) employee demands. The action was not ‘protected’ by the FW Act. The applicant’s conduct in this regard was fundamentally inconsistent with the obligations she owed to her employer.

[54] The applicant was left in no doubt as to the allegations made against her. These were spelt out in the respondent’s letters of 22 June 2018 and 9 August 2018.

[55] The applicant was given ample opportunity to respond to the allegations against her and to explain her actions. She did so in writing on two occasions (28 June 2018 and 21 August 2018) and at a face-to-face meeting (on 9 July 2018).

[56] The applicant was permitted to have a support person present to assist her during the meetings relating to her dismissal.

[57] At the time of the applicant’s dismissal, the respondent was a wholly-owned subsidiary of Qantas, a very large employer. I am satisfied that the procedures followed in effecting the applicant’s dismissal were consistent what could be reasonably expected of such an employer, with access to specialised human resource management staff.

[58] There are a number of other matters that I consider relevant in weighing up whether the applicant’s dismissal was unfair.

[59] It was put very strongly on behalf of the applicant that she had, for no good reason, been treated differently from most of the other employees who participated in the 15 June 2018 stoppage, who had not been dismissed.

[60] In Sexton v Pacific National, 64 Lawler VP said:

‘[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been “harsh, unjust or unreasonable”. In National Jet Systems Pty Ltd v Mollinger the Full Bench concluded that in the particular factual circumstances it was appropriate for the member of the Commission at first instance to have regard to different treatment afforded to another employee involved in the same incident. That case involved the termination of the first officer of an aircraft over incident where the flaps of the aircraft were retracted too soon following takeoff. The Captain on the same aircraft was not terminated notwithstanding that he also bore responsibility for the incident. It is apparent from the reasoning that on the particular facts of the case there was no proper basis for distinguishing between the two individuals and consequently the non-termination of the Captain was a factor in favour of a finding that the termination of the first officer was harsh, unjust or unreasonable. …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a “fair go all round” within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing “apples with apples”. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.’

[61] In the case before me, I consider that the respondent had good and cogent reasons for treating the applicant differently from those employees it chose not to dismiss. It is clear from the evidence that the applicant’s involvement in the events of 15 June 2018 was in another category from those employees. This was most clearly demonstrated by the fact that the applicant chose to come to the site on her day off, and had made and distributed posters to be used by her and her colleagues. It is clear, to borrow Ms Morris’ words, that the applicant ‘had prior knowledge of the Unprotected Industrial Action, and still decided to participate. Her actions were deliberate and pre-meditated’. This is different from the employees who were not dismissed. The notes of interview with those employees suggest that they had no prior knowledge of what was to occur and, without being unkind, were more or less ‘herded’ onto the Dispatch Dock by the union delegates.

[62] I have also had regard to the dishonest responses the applicant gave to her employer when she was given the opportunity to respond to the allegations made against her. Her written response of 28 June 2018 was little more than a tissue of lies. She then repeated this dishonest version of events during the meeting on 9 July 2018. I do not accept the applicant’s attempt to shift the blame for her lies on to the TWU. There is no evidence that she was coerced by the TWU to say what she did. Moreover, even after she decided to ‘come clean’, her further response on 21 August 2018 was still not entirely honest. In particular, she said in that response that Mr Jones had told her that the walkout on 15 June 2018 had been organised by the TWU – whereas it is now clear that he did not say this. The applicant’s dishonest responses weigh against a finding that her dismissal was unfair.

[63] I have also had regard to the impact of the dismissal on the applicant. The applicant is a long-serving employee and there is no doubt that her personal circumstances mean that the impact of her dismissal has been particularly heavy.

[64] I have weighed up all the above considerations. On balance, I am satisfied that the applicant’s dismissal was neither harsh, nor unjust nor unreasonable. Accordingly, it was not unfair.

Conclusion

[65] I dismiss this application for an unfair dismissal remedy.

SENIOR DEPUTY PRESIDENT

Appearances:

T Vernier, counsel, with K Godfrey, solicitor, for Loata Petrunic.

R Warren, counsel, with E Carroll, solicitor, for Q Catering Limited T/A Q Catering.

Hearing details:

Sydney.

2019.

January 10, 11.

April 9.

May 28, 31.

Printed by authority of the Commonwealth Government Printer

<PR709157>

 1   Exhibit 1 [2].

 2   Ibid [3].

 3   Ibid [4].

 4   Ibid [6]; exhibit 11 attachment SD-8.

 5   PN544, 550.

 6   Exhibit 1 [7]-[8]; PN440, 454.

 7   Exhibit 1 [8].

 8   Exhibit 5 [4].

 9   Exhibit 7 attachment ES-1 [10].

 10   Ibid attachment ES-1 [5].

 11   Ibid attachment ES-1 [15].

 12   Exhibit 5 [5].

 13   Exhibit 7 [4], attachment ES-1 [16].

 14   Ibid [17].

 15   Ibid attachment ES-1 [21]-[23].

 16   Exhibit 5 [7].

 17   Exhibit 7 attachment ES-1 [24].

 18   Ibid attachment ES-1 [35].

 19   Exhibit 1 [12].

 20   Ibid [14].

 21   PN194.

 22   Exhibit 11 attachment SD-6 [10].

 23   PN210-1.

 24   Exhibit 5 [12].

 25   Exhibit 11 attachment SD-6 [16]-[18].

 26   PN256, 366-7, 370.

 27   Exhibit 5 [10].

 28   PN479-85.

 29   PN641.

 30   PN645-52.

 31   PN627.

 32   Exhibit 1 [21].

 33   PN578-9.

 34   Exhibit 11 attachment SD-6 [31].

 35   PN359.

 36   PN358.

 37   Exhibit 1 [25].

 38   Exhibit 7 attachment ES-1 [49].

 39   Exhibit 13 [10].

 40   Exhibit 11 [12].

 41   Ibid.

 42   Exhibit 13 [11].

 43   Ibid [13].

 44   Exhibit S1 [4]-[5].

 45   Ibid [10].

 46   Exhibit 13 [14].

 47   Exhibit 13 attachment KM-2.

 48   Exhibit 10.

 49   Exhibit 13 [15].

 50   Ibid [16].

 51   Ibid attachment KM-3.

 52   Ibid.

 53   Exhibit 1 attachment B.

 54   PN598.

 55   Exhibit 19.

 56   Exhibit 1 attachment C.

 57   Ibid attachment D.

 58   Ibid.

 59   Ibid.

 60   Exhibit 1 [50].

 61   Exhibit 13 [24].

 62   Exhibit 1 [51], attachment E.

 63   Ibid [52]-[53].

 64   Sexton v Pacific National (ACT) Pty Ltd PR931440.