DECISION

Fair Work Act 2009
s 394—Unfair dismissal

David Thomas and Frederick (Junior) Faamausili Ailua
v
Virgin Australia Airlines Pty Ltd t/a Virgin Australia
(U2018/13319; U2019/79)

Applications for unfair dismissal remedies – two ground crew employed at Sydney Airport – allegations of theft and receiving stolen goods – summary dismissals for serious misconduct – theft of two packets of cigarettes from aircraft hold – no CCTV footage or witnesses – evidence of conversations immediately after the incident – balance of probabilities result in findings that allegations proven – investigation of alleged conduct – complete denials – no alternative explanation likely – no issues of procedural unfairness – no admissions made – allegations proven to the Commission’s satisfaction – no mitigating factors – dismissals not harsh, unjust or unreasonable – applications dismissed.

[1] This decision will determine two unfair dismissal applications lodged by Mr David Thomas and Mr Frederick (‘Junior’) Faamausili Ailua, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Both employees were employed by Virgin Australia Airlines Pty Ltd t/a Virgin Australia (‘Virgin’ or the ‘respondent’) as part time ground/pit crew at Sydney Airport. Mr Faamausili Ailua commenced employment with Virgin on 29 March 2016 and Mr Thomas commenced employed on 6 November 2017. Both were employed under the terms and conditions of the Virgin Australia Ground Crew Agreement 2018 (the ‘Agreement’). Their main duties included loading and unloading passenger baggage and freight from Virgin aircraft. They also performed duties involved in driving the tug which pushes an aircraft back from departure and attaching and removing the rear stairs from an aircraft.

[2] On 20 December 2018, both employees were summarily dismissed for serious misconduct. That conduct was described as follows:

‘On 23 October 2018, while assisting in loading freight onto flight VA1429 (from Sydney to Cairns) Mr Faamausili Ailua stole 2 packets of cigarettes from the freight and gave them to Mr Thomas, who then offered them to other members of the Team.’

The dismissed employees filed unfair dismissal applications with the Fair Work Commission (the ‘Commission’) on 20 December 2018 (Mr Thomas) and 3 January 2019 (Mr Faamausili Ailua). They seek orders of reinstatement to their former positions and lost remuneration. The applications were subject to separate unsuccessful attempts at conciliation to settle the matters and were later allocated to different members of the Commission for hearing. As the facts and circumstances surrounding both dismissals were relevantly similar, the two applications were listed for hearing before me on 28 March 2018. Directions were issued earlier for the filing and service of witness statements and outlines of submissions.

[3] At the hearing, Mr Thomas and Mr Faamausili Ailua (the ‘applicants’) appeared for themselves and were not represented. Virgin was represented by Ms K Garner of Counsel with Ms Bostock, and were granted permission for Virgin to be legally represented, pursuant to s 596 of the Act. I note neither applicant opposed Ms Garner or Ms Bostock’s appearance on behalf of the respondent.

THE EVIDENCE

[4] The following persons gave statement/oral evidence in the proceeding:

•  Mr Paul Daly – Airside Duty Manager

•  Mr Mitchell Sullivan – Pit crew Leading Hand

•  Mr Glen Castle – Pit crew Leading Hand

•  Mr Wayne Birch – Manager Cargo (Freight) Terminal Operations (CTO) Delivery

•  Mr Nigel Ellsmore – Manager

•  Mr Thomas – Ground/pit crew (and applicant in these proceedings)

•  Mr Faamausili Ailua – Ground/pit crew (and applicant in these proceedings)

For the respondent

Mr Paul Daly

[5] Mr Daly has been employed by Virgin for 13 years; more recently in his current role as Airside Duty Manager since June 2018. It was Mr Daly’s evidence that during a staff party held offsite at a hotel, on or about 25 October 2018, Mr Mitchell Sullivan, a pit crew employee, told him he had recently been approached by Mr Thomas at the end of his shift, who had told him he had taken cigarettes off an aircraft. He had offered one to him. Mr Daly did not consider it appropriate to discuss the matter at the party and told him to report it to him when they were next back at work.

[6] On 31 October 2018, Mr Sullivan sent him the following email:

‘Hey mate, just in regards to our chat, I was LH [‘Leading Hand’] on cns 1429 on Tuesday the 23rd of October, the freight load was cigarettes, at the end of the shift I was told that a staff member had taken cigarettes from the aircraft, then proceeded to offer me some outside after the shift had finished. ‘

Mr Daly inquired as to any other witnesses, and Mr Sullivan told him Mr Glen Castle had also been in earshot of the alleged conversation.

[7] Around 1 November 2018, when Mr Daly inquired of Mr Wayne Birch, Manager Cargo Terminal Operations, of any issue with the freight on 23 October 2018, Mr Birch immediately responded that Linfox had reported two packets of missing cigarettes from VA1429 (Sydney to Cairns). He had viewed the CCTV footage at Sydney and concluded the cargo had left Sydney for Cairns having not been tampered with. Mr Birch told him that Menzies freight staff had quarantined the freight at Cairns Airport because it appeared the tape securing the box had been cut lengthwise allowing someone to put their hand inside. Mr Birch concluded that the tampering likely occurred at Sydney Airport, as the timeline for the conduct to have occurred at Cairns would not have allowed sufficient time for the box to have been tampered with.

[8] Mr Birch emailed Mr Daly to confirm his inquiries as follows:

‘Hi Paul

Sorry for the delay in getting back to you.

We had two packets of cigarettes go missing out of one box that travelled on the VA1429. They are regularly sent on this flight to Cairns as it is the direct one.

When we were informed of the missing packets which were only two of the 20 or so that were in the box I viewed the CCTV footage in SYD. I watched it for the entire time (two hours) the cartons were in the Cargo shed and from this we can definitely confirm there was no tampering of the box in the Sydney cargo shed. The box left the shed as it was lodged.

On arrival into Cairns and when handed to the Menzies cargo staff at the drop off point it was noted that the tape holding the lid shut was cut along the length allowing someone to put their hand inside. Menzies cargo aere not aware of how many should be inside so took the box to their shed and kept it under their CCTV the entire time until the driver came to pick it up. It was then that the driver checked the contents under the CCTV and with the Menzies Supervisor. It was found that two packets were missing which was reported to us immediately.

After our investigation we confirmed that the only place the packets could have been taken was on the way to the aircraft in SYD or whilst loading in SYD or whilst unloading in Cairns. Sydney was suspected as the most likely due to the minimal time of handling on the ramp in Cairns.

Hope this helps.’

[9] As a result of Mr Daly’s inquiries he concluded as follows:

‘Based on my investigations and experience, I concluded that the most likely place that the cigarettes were stolen from the freight was in the freight hold of the aircraft when it was being loaded at Sydney Airport.’

[10] After seeking internal advice, Mr Daly decided to suspend Mr Thomas on full pay, pending an investigation. At that time, Mr Daly’s information led him to conclude Mr Thomas had removed the cigarettes and this was the basis of the allegation in a first ‘show cause’ letter, dated 2 November 2018, which referred to his conduct being in breach of the Company’s Code of Conduct. Mr Thomas was requested to respond by 6 November 2018 and attend a meeting on 9 November to discuss the matter. He was advised that he could bring a support person. In a reply of 3 November 2018, Mr Thomas said it was ‘impossible’ that he had taken the cigarettes, as he was on the door of the aircraft at all times, and not in the hold. He asked to know who saw him steal the cigarettes. Mr Thomas claimed he had noticed the damaged box and later made a joke (to his work colleagues) about ‘taking’ a box for himself. He also said that he had offered his own JPS Blue Brand cigarettes to other of his colleagues. From this response, Mr Daly suspected someone else may have been involved and he questioned Mr Castle, the other person in the smoking area on 23 October 2018. Mr Castle sent him the following email:

‘Paul

I heard that the box was open and there were smokes in it junior (sic) took them out and gave them to dave (sic)

He then tried to give some to mitch (sic) who said no I don’t want any part of it and that’s all I know

Hope that this helps

Cheers

Glen’

Mr Sullivan also sent him an email as follows:

‘Hey mate, just in regards to what is happening, I remember that junior (sic) was in the front hold, and Dave on the door, I know that junior (sic) took what I believe to be 2 packets of JPS 20s and gave them to Dave after the shift, the freight defiantly (sic) was not damaged upon entering the 21 hold compartment, I was offered some cigarettes outside after the shift, but didn’t want any part in it.’

[11] Mr Daly met with Mr Thomas on 9 November 2018. He did not being a support person. Another ramp supervisor, Mr Pardey also attended. Mr Thomas described his position on the day and said he had observed the damaged box. He agreed he mentioned it to others in the smoking area after his shift. They had all laughed when he joked about taking the cigarettes. He offered his own cigarettes (JPS Blue) to the others; a practice he had engaged in many times before.

[12] Mr Daly said that as a result of Mr Thomas’ responses, he concluded that Mr Faamausili Ailua could also have been involved. On 6 November 2018, he sent Mr Faamausili Ailua a ‘show cause’ letter in which he was advised of his suspension, and invited to a meeting on 15 November 2018 in the company of a support person. Mr Faamausili Ailua responded as follows in an email of 9 November 2018:

‘To Whom It May Concern,

Im writting (sic) this letter as a response to the allegations that were made against me about stealing.

First and Foremost I would like say that Im (sic) not happy about how this is being dealt, but Ill (sic) continue to cop it on the chin. As for the matter in discussion about the missing cigarettes, I did load the front hold on that day and I remember loading it because my whisky on the day did mention that we were about to load freight of cigarettes and a heap of bags aswell (sic). I was loading the front hold and dave (sic) was at the door at the time, as we were loading the hold i (sic) realized a few damaged boxes but didnt (sic) touch anything inside and didnt (sic) pay any mind to them and just continued to load the front hold, after loading the front I locked it up and that was the end of it.

To end my response I would like to say that Im (sic) very upset about what it has come to and I have nothing to hide about this situation. Please contact me on my new number [phone number provided] if anything further comes up.

Thankyou

Frederick Junior Faamausili Ailua’

[13] In the meeting with Mr Faamausili Ailua (who did not bring a support person), he told Mr Daly he was not happy about the allegations against him. He said he had noticed the hole in two or three boxes, but the hole would not fit a person’s hand. Mr Faamausili Ailua denied taking the cigarettes, or giving them to anyone else. He confirmed he does not smoke. He claimed to know nothing about the cigarettes going missing.

[14] Mr Daly made further inquiries of other employees on shift and requested the security team review the CCTV footage. There was no evidence of any incident in the freight bay. Mr Daly reviewed all the evidence and considered the following:

(a) Two pit crew members had made statements that both Mr Thomas and Mr Faamausili Ailua were involved in taking the cigarettes.

(b) The missing cigarettes were JPS brand; the same brand offered to Mr Sullivan by Mr Thomas.

(c) It was unlikely Mr Thomas would joke about taking cigarettes and coincidentally, cigarettes would go missing. This was not credible and likely to be a diversionary tactic to counter claims by others who heard him say he had taken the cigarettes.

(d) Mr Thomas had told him he usually smoked Horizon ‘rollies’, but admitted offering Mr Sullivan and Mr Castle JPS Blue brand cigarettes on 23 October 2018. He noted the dispute about whether it was JPS Blue or Gold, but determined that the cigarettes - being of the JPS brand - was the common denominator.

(e) The CCTV footage confirmed the freight was not tampered with at Sydney Airport freight shed and there was not enough time at Cairns Airport for the boxes to be tampered with there. He concluded the only time the cigarettes could have been taken was somewhere between the Sydney freight shed and the closing of the aircraft freight hold. Menzies had confirmed that the tape on the box had been cut when it was quarantined in Cairns.

[15] Mr Daly concluded that the weight of evidence confirmed that the freight arrived at the aircraft in Sydney slightly damaged, but otherwise intact, and that Mr Faamausili Ailua removed the cigarettes and gave them to Mr Thomas. He considered this was theft and receiving stolen goods. As such, this behaviour was clearly in breach of the applicants’ contracts of employment and Virgin’s Code of Conduct. He advised that both applicants receive ‘show cause’ letters and referred the matter to Mr Ellsmore and the Employment Advisory Team.

[16] Mr Daly said that while suspended, Mr Faamausili Ailua attended the 2018 Staff Christmas Party. As this was inappropriate, Mr Daly escorted him from the function. When he did so, he had said to him ‘why did you do it?’ He had replied, ‘I’m just stupid’. Mr Daly believed this comment confirmed he had taken the cigarettes.

[17] In a reply statement, Mr Daly said he had reviewed the movement records for 23 October 2018, which confirmed that Mr Thomas and Mr Faamausili Ailua were working, alongside Mr Sullivan and Mr Goldberg Elliot and Mr Coolentianos (who was the Team Leader), and that they had loaded VA1429 from Sydney to Cairns that day.

[18] In response to claims that Mr Thomas and Mr Faamausili Ailua had not been paid their loaded rates while on suspension, Mr Daly confirmed that the pay records disclose that they were both paid their base rate of pay and penalty rates for the hours they would have worked, had they not been suspended. As overtime is unplanned and ad hoc, they were not paid for any overtime they might have worked during suspension.

[19] Mr Daly rejected Mr Faamausili Ailua’s denial of their exchange at the Christmas Party on 13 December 2018. Mr Daly said he had arrived at around 6pm. At around 7:30pm, he noticed Mr Faamausili Ailua was present. Mr Daly approached his manager, Mr Johnson and explained that Mr Faamausili Ailua was suspended. Mr Johnson asked him to remove him from the venue. Mr Daly denied being under the influence of alcohol when he spoke to Mr Faamausili Ailua. Initially, Mr Faamausili Ailua did not want to leave the party. Mr Daly said that at no time, did Mr Faamausili Ailua say he did not want to discuss the investigation. As they walked out, Mr Daly said, ‘seriously, why did you take the cigarettes, why did you take them, you don’t smoke.’ Mr Faamausili Ailua replied ‘I’m just stupid’. He then left the venue.

[20] In cross examination, Mr Daly said that the Leading Hand’s comment (Mr Coolentianos) that the hole in the box was not big enough to see or access the cigarettes, did not alter his view about the freight’s ‘chain of custody’ from the freight terminal to the aircraft. He added that Mr Birch had told him that there had not been enough time for any tampering at the Cairns Airport, although there was no CCTV monitoring of the offloading of the aircraft in Cairns. This also did not alter his view.

[21] Mr Daly accepted that there had been a discrepancy over the colour of the JPS cigarettes (Blue or Gold). However, the brand was common in all the evidence and from the information at hand, he understood Mr Thomas smoked this brand. In questions from me, it was established that the colour type refers to the milligram strength of the cigarette – Silver is two-four milligram whereas Blue is 8-10 milligram. However, the colour of the packet does not change and the colour is stated under the initials JPS.

[22] Mr Daly was asked who the Leading Hand was on that shift, given that Mr Coolentianos was the Leading Hand, but Mr Sullivan referred to himself in that role. Mr Thomas believed that if Mr Sullivan got his role wrong, he might have got the colour and brand of the cigarettes wrong. Mr Daly disagreed and confirmed that as far as he understood, no one was suspended at the Cairns Airport.

[23] In re-examination, Mr Daly explained that the minimal damage to the box (which was noticed before entering the hold) meant it would not have been possible to remove the cigarettes. There was no way they were stolen before entering the hold of the aircraft, and once the aircraft is locked, there could be no access. This meant he was almost certain that the cigarettes were taken when they were in the hold, where Mr Faamausili Ailua was working and where there were no CCTVs.

Mr Mitchell Sullivan

[24] Mr Sullivan has been employed by Virgin for approximately five years and as a Pit Crew Leading Hand since July 2018. He had worked with both applicants. Mr Sullivan described the process for loading freight and, in particular, the loading of freight on VA1429 on 23 October 2018. Mr Coolentianos was Leading Hand in charge of loading that flight. Mr Sullivan was engaged in transporting and loading passenger luggage in the aircraft’s rear compartment. He observed the barrow carts carrying two standard rectangular brown cardboard boxes, which are usually secured by plastic tape. Mr Sullivan did not see any obvious damage to the boxes. Mr Collentianos and Mr Prassad were loading the freight onto the conveyor for transporting to the front compartment hold. Mr Thomas was at the top of the conveyor at the entry to the front compartment. Mr Faamausili Ailua was inside the compartment.

[25] Mr Sullivan specifically recalled Mr Thomas and Mr Faamausili Ailua leaving the aircraft together after completing the freight loading and they were absent for about 5-10 minutes prior to the end of shift. This was unusual as the practice was that all pit crew left after being approved to leave by the Leading Hand. Mr Sullivan said that at around 7:30pm, he went for a cigarette in the smoking area. He was talking to Mr Castle when Mr Thomas approached him. Mr Faamausili Ailua was also present, which was unusual because he had never seen him there before and knew he did not smoke. Mr Thomas leaned in close and showed him two packets of cigarettes in his hand. He appeared to shield the cigarettes from view. The packets were clearly JPS brand 20s. Mr Sullivan thought this was unusual, as he had only ever observed Mr Thomas with 30 or 40 packets of cigarettes or ‘rollies’.

[26] Mr Sullivan claimed Mr Thomas said words to the effect of:

‘Look what I just got off the aircraft. Do you want one?’

[27] Mr Sullivan said he understood that the cigarettes had been stolen and he thought how ‘idiotic’ this was. Mr Sullivan refused the offer. He believed Mr Thomas may have offered Mr Castle a cigarette, but he could not be sure.

[28] It was Mr Sullivan’s evidence that he felt very uneasy about what Mr Thomas had said and was concerned he might get into trouble because he was aware the cigarettes had been taken from the freight. As a result he approached Mr Daly at the staff party on 25 October 2018 and told him about it. He followed this up with another discussion with Mr Daly and an email on 31 October 2018; see [6] above. He claimed that when he said he ‘was told that a staff member had taken cigarettes…’, he had meant he was told by Mr Thomas that he had done so. He clarified his version of events in another email of 6 November 2018. He referred to ‘Junior’ (Mr Faamausili Ailua’s nickname) because he knew he had been in the hold at the time and it seemed logical that he was the one who gave them to Mr Thomas.

[29] Mr Sullivan referred to subsequent conversations Mr Thomas had in the smoking area in which he was involved in with other employees. Mr Thomas was talking about the allegation. He appeared anxious and was asking for Mr Faamausili Ailua’s phone number. He overheard Mr Thomas say words to the effect of:

‘I am just going to deny it, they have no evidence, they have no footage, how are they going to know?’

[30] On 9 November 2018, Mr Sullivan, and a number of employees including Mr Thomas, were in the smoking area. Mr Thomas, who was not on duty, appeared very concerned as to who had dobbed him in. Mr Sullivan did not engage in the conversation and denied he had said he had to give Mr Faamausili Ailua up. Later that day, Mr Sullivan sent the following email to Mr Daly:

‘Around 230 today I walked over to the smoking area prior to work, when we spoke before I got something wrong, Dave was already here, I just didn’t notice because he was not in uniform, he was on the phone, after his call it was just a friendly chat, he then mentioned something about talking to junior (sic) on the phone about the whole situation and saying he was just on the door of the aircraft. Alec walked over and they started talking but I’m not sure what they were talking about.’

[31] Mr Sullivan was interviewed about the matter on 20 November 2018. After Mr Thomas had been dismissed, Mr Sullivan said he felt threatened and intimidated by Mr Thomas when he received the following snapchat message from him.

‘Hey mitch (sic), I’m taking you, daly, nigel, and loanna (sic) to district court. You’ll get your summons pretty soon. Once the file goes through you’ll get your mandatory attendance.’

[32] Mr Sullivan was cross examined as to whether he was the Leading Hand on the shift when Mr Coolentianos signed off on the flight as the Leading Hand. Mr Sullivan explained he had been the Leading Hand prior to this flight and made a mistake when he told Mr Daly, in an email eight days later, that he had been the Leading Hand. Mr Sullivan confirmed the positioning of the Team at the time. He could not see anything unusual during the loading from where he was standing about 20-30 metres from the back cargo hold. He was facing the cargo hold loading.

[33] Mr Sullivan said he did not question where Mr Thomas and Mr Faamausili Ailua had been for 5-10 minutes after loading the flight, as he was busy doing other things, including moving barrows out of the way and speaking to Mr Castle. Mr Sullivan recalled that Mr Thomas, Mr Faamausili Ailua and Mr Castle were in the smoking area after the shift. He could not recall anyone else being there. He thought it was odd that Mr Faamausili Ailua was there when he did not smoke, but did not question it.

[34] Mr Sullivan was questioned as to how he could have determined the size of packet Mr Thomas had, as a 20s JPS and not a 30s packet. He explained that as a long-time smoker, he knew the difference in packet size between a 20s and 30s. He didn’t need to read it on the packet.

[35] It was Mr Sullivan’s evidence that when he was offered a cigarette by Mr Thomas, Mr Castle was only a metre away, right next to him, but he wasn’t paying attention, as Mr Thomas was talking to Mr Castle. Mr Sullivan explained that he waited 48 hours to raise the matter with Mr Daly at the staff party on 25 October 2018, because he understood Mr Daly was on annual leave at the time. He emailed him 8 days later, when Mr Daly returned from annual leave.

[36] Mr Sullivan believed it was logical that Mr Faamausili Ailua had taken the cigarettes, as he was in the hold and no one could have seen him there from where the rest of the Team were positioned - including Mr Coolentianos - who was only two or three metres from the door, but could not see inside the aircraft.

[37] Mr Sullivan referred to the discussion in the smoking area on 9 November 2018 when Mr Thomas appeared very anxious. He was shaky and could not stand in one spot. He claimed that Mr Thomas had said ‘he needed to know who dobbed him in’.

Mr Glen Castle

[38] Mr Castle has been employed by Virgin for 4 years and for the last 12 months, his role is Pit Crew Team Leader. Mr Castle knew both Mr Thomas and Mr Faamausili Ailua, but was not working with them on 23 October 2018. On that day when he finished his shift, he went to the smoking area for a cigarette. Mr Thomas approached him and said:

‘There was an open box. Junior took a couple of packets of cigarettes out and gave them to me. Does anyone want a cigarette?’

He also offered a cigarette to Mr Sullivan. They both declined. He offered them to others as well. There was no joking or laughing and Mr Thomas appeared serious. Mr Castle was surprised and concerned about what he had heard. Mr Castle was later asked by Mr Daly about this incident and he confirmed the following in an email; see: [10] above. Mr Castle also described this incident to Mr Daly and Ms Lucy Bryan when he was interviewed on 20 November 2018. Mr Castle said that when he was at the smoking area around 7:20–7:30pm on 23 October 2018, Mr Thomas arrived with Mr Sullivan, not Mr Faamausili Ailua. Mr Castle said Mr Thomas offered him a cigarette, but could not identify the brand. He did not know who else was offered cigarettes, other than Mr Sullivan. Mr Sullivan had said ‘No I don’t want any part of it?’

Mr Wayne Birch

[39] Mr Birch has been employed by Virgin for three and a half years. He manages Virgin’s freight terminals and liaises with customers and contractors. Linfox is one of Virgin’s most important freight clients. He described the process Linfox undertakes when preparing cigarettes for packaging. Individual packets are wrapped in plastic shrink wrap, and placed in cardboard boxes, secured by plastic tape. The freight is delivered to the freight shed, which is managed by Virgin’s contractor, Menzies. It is checked, weighed and stored for ultimate loading onto an aircraft.

[40] Mr Birch said that on 24 October 2018, he was called by Mr Mark Rielly, Virgin’s Northern Region Sales Manager, who informed him that a complaint had been received from Linfox (Mr Norris) that two packets of cigarettes had been stolen from VA1429. He believed the cigarettes could only have been stolen by a Virgin employee, as it appeared the plastic tape had been removed. Mr Norris had insisted on Virgin investigating the matter and Mr Birch agreed to do so.

[41] Mr Birch’s initial inquiries revealed that the Linfox driver in Cairns had signed for the freight, notwithstanding the identified damage, which Menzies had quarantined upon arrival at Cairns. The driver and Menzies staff had then inspected the boxes under CCTV footage, but this did not identify the tampering or the missing packets. This was explained by the fact that Linfox’s customer had confirmed two missing packets of cigarettes.

[42] Mr Birch spent several days investigating potential opportunities for theft at all points of the freight’s transport. He confirmed the times, viewed the CCTV footage and spoke to a number of people at Sydney and Cairns Airports. Mr Birch identified that the freight was only lost from CCTV view when it was in the aircraft hold. He established there was a brief time of a few minutes at Cairns Airport, where the ramp was not monitored by CCTV prior to collection by Menzies staff, who had identified the damage to the plastic tape. No damage had been observed prior to this time. Mr Birch concluded that the most likely place the cigarettes were stolen was when it was put in the hold of the aircraft in Sydney.

[43] Mr Birch said that on 1 November 2018, Mr Daly called him to advise that he had been told that a Virgin staff member may have stolen cigarettes from VA1429 on 23 October 2018. Mr Daly asked if there had been any reports of missing freight around this time. Mr Birch confirmed the complaint from Linfox and his subsequent inquiries and his own conclusion. Mr Daly later asked him to inquire of the brand of cigarettes. He established it was JPS brand. Mr Birch had no further involvement in the matter.

[44] In a reply statement, Mr Birch responded to two photographs of damaged cigarette packages which had been taken on 31 January 2019. He said there was an incident of damaged cigarette freight on that day. It occurred when a carton fell off the trailer (barrow) and was run over by a second barrow. It was taken back to the cargo shed and later picked up by Linfox for repackaging. He was not aware of any photographs taken at the time. However, this incident was unrelated to the 23 October 2018 incident.

[45] Mr Birch confirmed that on 23 October 2018 the cargo driver had noticed the damage to the box at Cairns and the freight was then quarantined. Mr Birch said a damage report is usually prepared, but this appeared to be tampering, rather than damage. The freight was handed to the freight staff from the ramp staff and then taken to the cargo shed where it is under CCTV, until Linfox later picks it up. Mr Birch said that the CCTVs are focused on the aircraft and they roam the precincts, but not the hold of the plane. While Mr Birch believed that the freight was not covered by CCTVs for less than 5 minutes, he agreed it would only take a few seconds to remove the tape, particularly if other people were around. Mr Birch said there was no CCTV footage of the loading into the aircraft as the CCTVs roam the bays and the airport generally. Mr Birch had viewed footage of the cargo shed, and the whole process from lodgement to taking it out to the aircraft. In the cargo shed itself there are seven CCTVs. There are numerous cameras one would pass before getting to the aircraft. At Cairns Airport, the offloading process is very quick with a number of people around. He had investigated all possibilities and determined Sydney Airport was the most likely place for the theft to have occurred. Mr Birch understood that Linfox had told Virgin the missing cigarettes were 2 packets of JPS Gold 20s.

Mr Nigel Ellsmore

[46] As Manager of Virgin’s Sydney Airport operations, Mr Ellsmore manages all ground operations, including check in, gate staff, and passenger and freight operations. He described the multifaceted role within ground operations. He attached to his statement copies of:

(a) Mr Thomas and Mr Faamausili Ailua’s contracts of employment;

(b) the Agreement; and

(c) Virgin’s Code of Conduct.

[47] Mr Ellsmore was the decision maker in respect to the applicants’ dismissals. Mr Ellsmore was not directly involved in the investigation, but was briefed from time to time, by Virgin’s Employment Advisory Team. On 1 December 2018, Ms Ioanna Papantoniou (HR Partner) briefed him and advised that:

(a) there had been a theft of two packets of cigarettes from the freight of Virgin Australia flight VA1429 from Sydney to Cairns on 23 October 2018;

(b) the Virgin Australia Cargo Manager confirmed that two packets of cigarettes were missing from the freight;

(c) the Virgin Australia Cargo Manager confirmed that video footage showed that the freight was not tampered with at the freight shed;

(d) it was believed that there was insufficient time for operators to have removed the cigarettes from the freight at the aircraft at Cairns Airport;

(e) the freight was monitored in the Cairns Airport freight shed and it was evidently not tampered with at that point;

(f) it was most likely that the cigarettes were taken from the freight somewhere between the Sydney Airport freight shed and the doors closing on the aircraft on the bay at Sydney Airport;

(g) Mr Thomas and Mr Faamausili Ailua were engaged in loading the freight into the cargo hold of the flight at Sydney Airport;

(h) the brand of cigarettes which were reported to be missing from the freight were consistent with the brand of cigarettes which Mr Thomas had reportedly offered to others, and stated that it had been removed from the freight; and

(i) both Mr Thomas and Mr Faamausili Ailua denied the allegations and any knowledge of the cigarettes going missing.

[48] Mr Daly and the Employment Advisory Team had concluded, on the balance of probabilities that:

(a) Mr Faamausili Ailua stole two packets of cigarettes from the freight whilst loading Flight VA1429 on 23 October 2018; and

(b) Mr Thomas knowingly received the stolen packets of cigarettes from Mr Faamausili Ailua on 23 October 2018.

He determined that such conduct was in breach of Virgin’s Code of Conduct (to act honestly) and the applicants’ Contracts of Employment.

[49] Mr Ellsmore described the ‘show cause’ process and the meetings he had with Mr Thomas on 11 December 2018. Mr Thomas elected not to bring a support person. Mr Ellsmore recalled him stating that:

(a) he was present in the smoking area on 23 October 2018 after loading Flight VA1429;

(b) Mr Sullivan and Glen Castle were also present in the smoking area on 23 October 2018;

(c) Mr Thomas had made a statement to the effect of: “Hey, guess what, we loaded a freight of cigarettes with Junior and I said how funny would it be if we had taken a carton” ;

(d) it is common for Pit Crew team members to joke about taking freight from aircraft, for example, gold bars; and

(e) those present in the smoking area at the time had misunderstood what he had said and that gave rise to the allegation that he had stolen cigarettes from the flight.

[50] Mr Thomas strongly defended the allegations by claiming there was a lack of evidence to prove he had taken, or received the cigarettes. Nevertheless, Mr Ellsmore believed the contrary evidence was persuasive. In particular, Mr Thomas was unaware of any issues he might have had with work colleagues, as to why they might have made false allegations against him. He provided no information or explanation relevant to the allegations. He challenged his termination on the basis of his impending wedding, length of employment and the type of employee he was. Mr Ellsmore said he took all these matters into account, including the relatively low value of the stolen product. However, he concluded Mr Thomas’ conduct was inconsistent with his continued employment. Mr Ellsmore said he was aware Mr Thomas had since commenced employment with Rex Airlines (‘Rex’) in a similar role.

[51] Mr Ellsmore said Mr Thomas had admitted to making a ‘joke’ about taking cigarettes off an aircraft in both his response to the ‘show cause’ letter and in a post on social media on 20 December 2018. Mr Ellsmore believed that joking about stealing client’s property is not funny. It undermines the trust and confidence that employees, passengers and clients have in Virgin. It is inconsistent with the high standards of integrity expected of all Virgin employees. Further, in the social media post of 20 December 2018, Mr Thomas described him and Ms Papantoniou as ‘TWO DESPICABLE HUMAN BEINGS’. The full post reads:

‘Nigel Ellsmore, Virgin Manager @ Sydney airport along with his HR partner “Ioanna”, have just fired me today after 7 weeks of suspension over a joke overheard by an opportunist employee named Mitchell Sullivan. I hope you all feel great about your actions because I now have to go home and tell my fiancé that I don’t know how I am going to pay for our wedding in may (sic)!!!! Nigel Ellsmore, is it legal that you tell me that I am not allowed to read a statement written about me? is it fair to fire somebody without providing evidence? NIGEL AND IOANNA, I SINCERELY HOPE THAT YOU ENJOY YOUR CHRISTMAS BECAUSE YOU HAVE RUINED MINE AND YOU HAVE RUINED MY WEDDING. I will be posting the the (sic) letters that youve (sic) sent me so I can show everybody exactly how Virgin treats employees. I will post and repost everyday until I am given the right to a fair trial! TO ALL WHO READ THIS, NIGEL ELLSMORE ALONG WITH HIS HUMAN RESOURCES PARTNER “IOANNA” HAVE FIRED ME TODAY AND HAVE NOT PROVIDED ME WITH ANY EVIDENCE. THIS IS HOW EMPLOYEES ARE TREATED. I WILL NOW HAVE TO RECONSIDER MY WEDDING IN MAY. I HOPE YOU TWO DESPICABLE HUMAN BEINGS HAVE A MERRY CHRISTMAS!!!!!!!!!!!’

Mr Ellsmore said that these matters must lead to a conclusion that the employment relationship has been irreparably eroded.

[52] Mr Ellsmore said that a similar disciplinary process was undertaken with Mr Faamausili Ailua. He also declined to bring a support person to the 12 December 2018 ‘show cause’ meeting. Mr Faamausili Ailua had strongly denied the allegation, but provided no evidence or submission which countered the statements and evidence Virgin had obtained. Mr Faamausili Ailua said he had a good relationship with his fellow employees and he had not acted under any duress. Mr Ellsmore understood Mr Faamausili Ailua was generally regarded as a popular employee. Mr Ellsmore considered all of the circumstances, and arrived to the same conclusion as he had for Mr Thomas. Mr Faamausili Ailua’s conduct and repeated denial of any involvement, meant the trust and confidence in the employment relationship had been irreparably eroded.

[53] In a reply statement, Mr Ellsmore agreed that Mr Thomas and Mr Faamausili Ailua had asked for evidence to support their dismissals. He had told them that Virgin had witness statements and information from the cargo teams in Sydney and Cairns. However, he did not mean Virgin had formal written statements; rather, information had been provided as part of the investigation, all of which has now been provided to the Commission. Mr Ellsmore agreed that Mr Thomas had asked which employees had provided statements and he had been told ‘We would rather not say’. Mr Thomas then said ‘One of them was Mitch (Sullivan) wasn’t it.’

[54] Other factual evidence was conveyed to Mr Thomas, including a witness who had heard him say ‘Look what me and ‘Junior’ got off the plane, does anyone want one.’ In any event, Mr Thomas had known Mr Sullivan and Mr Castle had been present in the smoking area and that he had joked about taking cigarettes from the aircraft. It was also clear from Mr Thomas’ social media post that he was well aware of, and understood the evidence Virgin had obtained. He was also told there was no CCTV footage showing the cigarettes being taken, and that there were no CCTVs inside the hold of the aircraft.

[55] In cross examination, Mr Ellsmore said he believed Mr Thomas had known of the information and evidence Virgin had gathered. Mr Thomas was asked to provide any additional information for management to consider. Mr Ellsmore explained that in the Company’s F3 - Employer's response to the unfair dismissal applications lodged with the Commission - where it was said Virgin had relied on written and verbal statements from any witnesses, he meant that verbal statements were transcribed into notes. They were not formal written statements from witnesses. Mr Ellsmore accepted there was no CCTV footage of the theft. However, he concluded from all the other evidence, that it was likely Mr Thomas and Mr Faamausili Ailua had been involved.

[56] Mr Ellsmore developed his answer as follows:

‘So my deduction of the outcome was based on the evidence that witnesses had come forward independently saying that there was conversations had in the smoking area about theft of cigarettes and, "Here, do you want one?" Based on that we commenced an investigation into that theft. There was - in asking about the interfered stock when it - or cargo when it got to Cairns it was confirmed that there were cigarettes missing off that flight. Working backwards into what flight that was taken from and who loaded that flight in Sydney that was then determined that it was Junior and yourself, all right. So then the balance of probabilities of you coming forward to two independent people in the smoking area saying, "Hey, me and Junior just got these cigarettes off the aircraft". Doing the investigation, coming back to that freight was actually missing from that flight number that you two loaded and you both said that you were loading in that hold on that aircraft on that flight number on that day, the balance of probabilities is that you took them or you both were implicated in the theft of them.’

[57] Mr Ellsmore said he had not relied on hearsay. Virgin’s information was of two people independently coming forward with consistent evidence as to the conversation in the smoking area. He did not need to factor in the obscure footage in Cairns, because he did not believe the ‘chain of custody’ was broken at that end.

[58] Mr Ellsmore could not recall if he had been told that Mr Faamausili Ailua was with Mr Thomas in the smoking room. All Mr Thomas did in the numerous meetings he had with him was argue that there was no CCTV footage of the alleged incident, so it could not have happened. He brought no new evidence to call into question or refute the evidence Virgin had obtained. Mr Ellsmore was aware Mr Coolentianos had said there was a hole in the box, but not big enough to see in, or put a hand in. However, this was not the point. The cigarettes did go missing, so the extent of the damage to the box was irrelevant. Mr Ellsmore said it was open for Mr Thomas to say that he should have spoken to others involved on the day, but he only wanted to argue about the footage and the damage to the box.

Mr David Thomas

[59] It was Mr Thomas’ evidence that when he was loading freight on Flight VA1429 on 23 October 2018, he was present on the door of the aircraft in full view of the Team Leader, Mr Coolentianos. Mr Faamausili Ailua was inside the cargo hold. After loading passenger bags, he and Mr Faamausili Ailua started to load around 30 brown plain cardboard boxes. He claimed that he and Mr Coolentianos noticed that one of the boxes was slightly damaged, but not sufficiently for any cigarette packets to be able to be removed. As they were both smokers, Mr Thomas claimed he jokingly said to Mr Coolentianos, ‘we should take a box for ourselves’ and that they both laughed. On completion of the loading, Mr Thomas said he then marshalled passengers onto the rear of the aircraft. The rest of the Team was on the right hand side of the plane. Mr Thomas closed the rear door, removed the marshalling tape and removed the stairs. Mr Thomas then went to the smoking area. He said that at no time was Mr Faamausili Ailua present in the smoking area, as he does not smoke. Mr Thomas left and returned home.

[60] Mr Thomas claimed that when he attended the staff party at a city pub, on 25 October 2018, he observed Mr Sullivan drink a large amount of alcohol. On 2 November 2018, Mr Thomas was called to a meeting with Mr Daly who told him that he was suspended for allegations of theft of cigarettes from Flight VA1429. He was handed a suspension letter and escorted off the premises. His ASIC (Aviation Security ID Card) card was taken back. He emailed Mr Daly the next day and detailed his version of events.

[61] Mr Thomas attended a further meeting with Mr Daly and another supervisor (Mr Pardey) on 9 November 2018. Mr Daly had a prepared set of questions. Mr Thomas was not permitted to record the interview. On 11 December 2018, Mr Thomas attended a ‘show cause’ meeting with Mr Ellsmore and Ms Papantoniou. He asked to see the statements of witnesses, CCTV footage or any other evidence. However, each request was denied. He attended another meeting with Mr Ellsmore and Ms Papantoniou on 20 December 2018, when he was told he was dismissed with immediate effect. He was still not provided with any evidence of the allegations.

[62] Mr Thomas filed an unfair dismissal application the same day and attended a phone conciliation on 1 February 2019, in which Ms Papantoniou acknowledged that Virgin had no CCTV footage of the incident. The matter could not be settled.

[63] Mr Thomas’ statement also dealt with an incident on 4 February 2019, when he was at the airport to commence his new employment with Rex as an Aircraft Service Officer. While walking towards Gate 32, Mr Ellsmore came out of the Virgin offices and came up behind him, grabbed his left elbow and said ‘Have you got your things out of your locker yet?’ He told him he would let ‘Fair Work’ handle that. They continued on for a short while until he cut into Gate 34 to get away from Mr Ellsmore. He said he felt intimidated and very uncomfortable about him putting his hands on him. Mr Thomas reported the incident to Green Valley Police and indicated he would be seeking an apprehended violence order against Mr Ellsmore.

[64] In cross examination, Mr Thomas reiterated his denial of having received stolen cigarettes and offering them to other employees, knowing they had been taken off an aircraft.

[65] Mr Thomas accepted he had received and responded to the letter of Mr Daly of 8 November 2018. In his response he had said he had noticed two slightly damaged boxes, but denied opening or taking anything out of them. He had wanted to know who had seen him take anything from the boxes. He reaffirmed that later in the smoking area when he was with Mr Sullivan, Mr Castle, Mr Coolentianos and Mr Klink, he had joked ‘Ha ha, I should have taken a box for myself and they all joked about it.’ He acknowledged offering his own cigaretes (JPS Blue brand) to some of the employees. He had told this to Virgin management (Mr Daly and Mr Pardey) on 9 November 2018, and also that he could not be the one who took the cigarettes, because he was at the door of the aircraft’s hold. He had also said that he was sliding the boxes (about 30) from the door down the conveyor to Mr Faamausili Ailua who was positioned in the hold. He knew they were cigarettes, as Mr Coolentianos had told him when they had noticed a corner of a box, slightly open a few millimetres. He was asked why he had earlier said he noticed two damaged boxes, not one. Mr Thomas told Mr Daly on 9 November 2018, that he had said to Mr Coolentianos, who was also a smoker, ‘we should take them as a joke. We’re the only smokers in the Team’. He told Mr Daly he smoked Horizon ‘rollies’, but agreed he had offered the employers JPS Blue brand cigarettes on 23 October 2018.

[66] Mr Thomas said the original allegation of stealing the cigarettes then changed to him having received stolen cigarettes in the 7 December 2018 ‘show cause’ letter. Mr Thomas declined to provide a written response. He attended a meeting on 11 December 2018, having declined an opportunity for a support person to be present. Mr Thomas denied he was lying when he told Mr Ellsmore and Ms Papantoniou that they had been joking about stealing cigarettes to Mr Coolentianos and others later in the smoking area.

[67] Mr Thomas agreed his submissions and response to the allegations, was to reject them entirely. He provided no other explanation or evidence to counter the allegations. Mr Thomas denied offering any cigarettes Mr Faamausili Ailua had given him, from the aircraft to Mr Castle and Mr Sullivan on 23 October 2018. Mr Thomas said he has been employed by Rex in a similar position on a base salary of ~$1,300.00 a fortnight. Mr Thomas agreed he was aware of his contract of employment and Virgin’s Code of Conduct, which required him to act honestly and to respect and safeguard Virgin, its customers and suppliers. He understood that stealing freight would be serious misconduct.

Mr Faamausili Ailua

[68] Mr Faamausili Ailua’s statement evidence as to his role on the 23 October 2018 in loading freight, is not disputed. He claimed that both he and Mr Thomas noticed a bit of damage to one of the cardboard boxes, but it was not big enough to see inside. Mr Thomas was then called to marshal passengers and he continued to load the freight on his own. The Team were then told to go to the muster room.

[69] Mr Faamausili Ailua was called to a meeting on 7 November 2018 where he was informed he was suspended for the allegation of theft of cigarettes from Flight VA1429 to Cairns. He was required to provide a written response by 9 November 2018. He attended a further meeting with Mr Daly and Mr Pardey on 15 November 2018. On 11 December 2018, he attended a meeting with Mr Ellsmore and Ms Papantoniou where he was asked for his version of events and why he should not be dismissed. He asked to see any evidence or witness statements, but this was denied.

[70] Mr Faamausili Ailua said that when he attended the Christmas party on 13 December 2018, Mr Daly approached him, while under the influence of alcohol, and tried to discuss the ongoing investigation. Mr Faamausili Ailua claimed he replied ‘this isn’t the place and time for this conversation’ and then removed himself.

[71] Mr Faamausili Ailua was requested to attend a meeting with Mr Ellsmore on 20 December 2018, but as he had other commitments that day, it was agreed they speak by phone that day. In the phone conversation, he was again denied access to any evidence concerning the incident. He was dismissed, effective immediately.

[72] In cross examination, Mr Faamausili Ailua denied taking two packets of cigarettes from the freight on 23 October 2018, and giving them to Mr Thomas. Mr Faamausili Ailua agreed to the disciplinary process which was undertaken prior to his dismissal. As to the investigation, Mr Faamausili Ailua agreed he had:

•  received a ‘show cause’ letter on 7 December 2018;

•  read the contents of the letter;

•  been invited to respond, but he did not do so;

•  attended a meeting on 12 December 2018, without a support person;

•  denied the allegations, but brought no evidence to counter or explain the allegations; and

•  been asked if there were any issues with his colleagues which might explain why they would make up false allegations. He denied any issues with his colleagues.

[73] Mr Faamausili Ailua accepted he was in the hold of the aircraft when he realised he saw a few damaged boxes. Mr Faamausili Ailua agreed the hold was 10-15 metres deep. Mr Thomas was at the front door of the hold. They had loaded the passengers’ bags first, then the freight. He acknowledged that he was deep in the hold and was not able to be seen by those outside the aircraft. Mr Faamausili Ailua said he observed a box with tape ripped off and others with a few holes, so small you could not see what was inside. It appeared to be small boxes, but he did not know what they were. However, he knew they were cigarettes, because Mr Coolentianos had told him. Mr Faamausili Ailua agreed that no one reported the damage at the time.

[74] As to the conversation with Mr Daly at the Christmas party, Mr Faamausili Ailua denied saying ‘I’m just stupid?’ However, he did acknowledge Mr Daly had said something to him at the party about the matter.

[75] Mr Faamausili Ailua acknowledged his employment was covered by the Agreement and Virgin’s Code of Conduct and that he was obliged to act honestly and to respect and safeguard the property of Virgin’s customers. Mr Faamausili Ailua accepted that if he did steal the cigarettes, it would be a breach of the Code of Conduct and be grounds for dismissal.

[76] Mr Faamausili Ailua was now working full time at a barber’s shop where he had been working part time while working for Virgin. His salary was ~$500.00 a week. He seeks to be reinstated to his former position with Virgin.

[77] In re-examination, Mr Faamausili Ailua said he had never been in the smoking area - he had only walked past it on occasions.

SUBMISSIONS

For Virgin

[78] Ms Bostock submitted that both applicants were dismissed for serious misconduct; being:

(a) Mr Faamausili Ailua stole two packets of cigarettes and gave them to Mr Thomas; and

(b) Mr Thomas received the two packets of cigarettes knowing them to have been stolen.

Virgin had conducted a comprehensive investigation and both applicants were given an ample opportunity to understand and respond to the allegations in writing and in two meetings. It was accepted that there was no CCTV footage to identify the person/s who stole the cigarettes. However, two of their colleagues made statements which confirmed that the applicants had been involved in the theft. Other evidence led Virgin’s management to conclude that there was no other reasonable explanation, other than the theft occurred as the freight was loaded aboard the aircraft in Sydney.

[79] It was submitted by Ms Bostock that the applicants’ conduct was in breach of Virgin’s Code of Conduct and their respective contracts of employment. Their conduct constituted a valid reason for dismissal. In a written response to the allegations (sub-s(c) of s 387) Mr Faamausili Ailua:

(a) admitted that he was in the front hold on the day in question and Mr Thomas was on the door;

(b) asserted that he had not touched anything in any of the boxes;

(c) stated that he had just loaded up the front hold and locked it up; and

(d) asserted that he had nothing to hide.

Mr Thomas responded by:

(a) denying that he had taken the cigarettes;

(b) asserting it was impossible that he could have taken them, as he was standing on the door of the front hold throughout the process of loading the aircraft and was not inside the hold;

(c) asking if anyone had seen him take the cigarettes and queried the evidence in relation to this; and

(d) admitting that after loading Flight VA1429 he made a joke about taking the cigarettes from the aircraft and then subsequently offered cigarettes to other team members.

[80] In subsequent meetings, the applicants both denied the allegations, but provided no other explanation for the theft of the cigarettes. Both applicants were informed they could bring a support person to the meetings with management. They both declined (s 387(d)). Ms Bostock submitted that ss (e), (f) and (g) of s 387 were not relevant factors in this case. As to the other matters (s 387(h)), Ms Bostock pointed to the applicants’ relatively short periods of employment. In Mr Thomas’ case he admitted to having made a joke about taking cigarettes off an aircraft and posted an inappropriate social media post; see [51] above. Both these factors demonstrate a breakdown in the trust and confidence in the employment relationship. Ms Bostock noted that Mr Thomas had obtained similar alternative employment (with Rex) and Mr Faamausili Ailua was working more hours in a second job he had as a barber.

For the applicant

[81] The applicants provided a joint submission (plainly prepared by Mr Thomas) which argued that at no time, had they been provided with any statements, CCTV footage or photographic evidence to prove the allegations against them. In fact, Mr Sullivan and Mr Castle’s statements are dated in early March 2019, whereas the meetings they had with Management were in November and December 2018, when it was said by Virgin that it had ‘significant evidence against you.’ It was claimed that these statements were never in the possession of Virgin at the time of their suspension and dismissal.

[82] Mr Thomas claimed that Virgin could not prove the allegations, on the balance of probabilities, because of:

(a) the conflicting statements of Mr Sullivan and Mr Castle;

(b) the unsigned statement of Mr Daly;

(c) the curious statement of Mr Birch about footage obstruction at Cairns; and

(d) no statement from Ms Papantoniou.

[83] It was submitted their dismissals were unfair and they were seeking lost remuneration while they were suspended and payment of compensation for the six weeks when they had no income. It was also said that they would be lodging court proceedings for compensation for defamation, stress and humiliation. In this respect, they would be relying on Ms Bostock’s letters, offering settlement amounts and threatening costs of $50,000.

In reply

[84] Ms Bostock rejected the applicant’s submission that they could not ‘fairly refute’ the allegations because Virgin had not provided any evidence to substantiate the allegations. She said that where a person completely denies the allegations, it is unnecessary to provide the names of persons who have made statements. In any event, the applicants now had the statements and could test them in the proceedings; see: Melouney v ACM Group Ltd [2012] FWA 9386 and Young v Janart Holdings Pty Ltd t/a Stewart Automotive Group [2014] FWC 8410.

[85] In any event, Ms Bostock, submitted that the applicants plainly knew and understood the details of the allegations against them as set out in the ‘show cause’ process. Ms Bostock submitted that:

(a) Mr Thomas had sufficient information about the allegations to enable him to respond and he in fact did respond in a fulsome way to the allegations which were put to him as identified in [14] above;

(b) Mr Thomas requested to be provided with copies of statements or other evidence that the respondent had against him, and while this request was denied, Mr Thomas was advised of the information which the respondent had gathered during the investigation into his conduct in response to his request;

(c) even if Mr Thomas had been provided with copies of the evidence that the respondent had gathered during the investigation, in circumstances where Mr Thomas’ position was to deny the allegations that he had taken, or been involved in taking cigarettes from the cargo, this is unlikely to have changed Mr Thomas’ response; and

(d) on this basis, Mr Thomas was not disadvantaged as a result of not being provided with copies of evidence gathered during the investigation process.

[86] In respect to Mr Faamausili Ailua, Ms Bostock put that:

(a) Mr Faamausili Ailua had sufficient information about the allegations to enable him to respond and his response was to deny the allegations against him;

(b) even if Mr Faamausili Ailua had been provided with the information that the respondent had gathered during the investigation, in circumstances where Mr Faamausili Ailua’s position was to deny the allegations that he had taken the cigarettes from the cargo, this is unlikely to have changed Mr Faamausili Ailua’s response; and

(c) on this basis, Mr Faamausili Ailua was not disadvantaged as a result of not being provided with information gathered during the investigation process.

[87] Ms Bostock referred to a document titled ‘Movement Sheet for 23 October 2018’ and two photographs of damaged boxes of cigarettes dated 31 January 2019. She put that both these documents are irrelevant to what happened on 23 October 2018. As to the claim of not being paid while on suspension, Ms Bostock confirmed that from payroll records, both applicants received base rates and penalties for the hours they would have worked while on suspension. They were not paid for overtime, as this is unplanned and unpredictable.

[88] In oral submissions, Ms Garner relied on Virgin’s written submissions, noting particularly the compelling evidence that the allegations had been substantiated. Notably, this went to Mr Sullivan and Mr Castle’s statements, both of whom had independently made statements that the applicants were involved in taking cigarettes form the aircraft hold. When asked if there was any reason why Mr Sullivan or Mr Castle would do so, neither applicant raised any issues with either of them. Counsel said that this evidence fitted with the uncontested positioning of the persons at the aircraft, the brand of the cigarettes that went missing (JPS), and which were offered by Mr Thomas to his colleagues, when he initially said this was not the normal brand he smoked. However, in the proceedings, he provided a JPS brand. In addition, he sought to cover his tracks by claiming to have made a joke about taking cigarettes off an aircraft. Mr Birch’s investigation and experience led him to believe that the most likely place for the theft was when it was loaded into the aircraft hold in Sydney.

[89] Ms Garner noted that Mr Thomas said he told Mr Daly he had seen damage to the tape, yet no one mentioned this until Mr Birch said the tape was damaged when it arrived in Cairns. In his oral submissions, Mr Thomas maintained that he and Mr Faamausili Ailua had a right to see evidence which matched the allegations against them; see: Bain v CPB Contractors Pty Ltd [2018] FWC 6273.

In reply

[90] Mr Thomas said that all the Commission heard at the hearing was ‘assumption, allegations, hearsay’, particularly from Mr Birch. In questioning from me as to the inconsistencies in his submissions on remedy, Mr Thomas said that when he mentioned Mr Faamausili Ailua being out of work for six weeks when he was working elsewhere, he was referring to the period Mr Faamausili Ailua was out of work from Virgin. Mr Thomas said they believed that if they had accepted an earlier offer to settle the matter, it would be an admission of guilt (despite me having made very clear in earlier conferences that it means no such thing).

CONSIDERATION

Statutory provisions and relevant authorities

[91] There are no jurisdictional objections to these unfair dismissal applications being determined by the Commission. Specifically, I am satisfied that:

(a) both applicants were dismissed at the initiative of the employer on 20 December 2018 (ss 385(a) 386(1)(a));

(b) their unfair dismissal applications were lodged within the 21 day statutory time limitation set out as s 394(2)(a) of the Act;

(c) the applicants were persons protected from unfair dismissal in that:

i. they had completed the minimum employment period set out in ss 382 and 383 of the Act, being a period of two years; and

ii. the Agreement applied to their employment; see: [1] above (s 382(3)(b)(ii));

(d) their dismissals were not cases of genuine redundancy (s 385(d)); and

(e) their dismissals were not cases involving the Small Business Fair Dismissal Code, as the respondent employs ~9,000 employees (s 385(c)).

[92] Section 385 of the Act defines an unfair dismissal based on four criteria, each of which must be satisfied, if the person seeking a remedy from unfair dismissal is to succeed. The section reads:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[93] As I have just concluded that three of the above criteria have been satisfied ((a), (c) and (d)), this only leaves the question of whether Mr Thomas’ and Mr Faamausili Ailua’s dismissals were ‘harsh, unjust or unreasonable’ and therefore unfair dismissals. To this end, one must direct attention to s 387 of the Act, which deals with the matters to be taken into account by the Commission in determining whether a dismissal was unfair. It is trite to observe that each of the matters must be considered, and a finding made on each of them, including whether they are relevant or not; for example, sub-s (e) concerning warnings of unsatisfactory performance is usually not relevant in serious misconduct cases.

[94] The matters to be taken into account under s 387 of the Act 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.

[95] All of the criteria in s 387 of the Act must be taken into account when the Commission considers whether a particular dismissal is unfair. The notion of ‘taking into account’ a matter (such as those described in s 387 of the Act) connotes a genuine consideration of the relevant section and the apportionment of the appropriate weight of each criterion in the circumstances. In Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74, Katzmann J pointed out that ‘[t]o take a matter into account means to evaluate it and give it due weight’ and that ‘mere advertence will not be enough’. That said, it must also be steadily borne in mind that all of these matters must be considered in totality. That this is so is obvious from the Explanatory Memorandum to the Fair Work Bill 2008 where at para 1541, it reads:

‘1541. FWA must consider all of the above factors in totality. It is intended that Fair Work Act 2009 will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.’ (my emphasis)

Allegations of serious misconduct

[96] It is common ground that the applicants were summarily dismissed by Virgin for alleged ‘serious misconduct’. ‘Serious misconduct’ is defined in the Act’s Regulations. Regulation 1.07 sets out a non-exhaustive definition as follows:

‘1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.’(my emphasis)

[97] It may be accepted that Virgin relied on ss (2)(a) and (b)(ii) and (3)(a)(i) of Regulation 1.07; notably, the theft of freight belonging to a Virgin customer. However, reliance on Regulation 1.07 is not determinative of whether an act of serious misconduct constitutes a valid reason for dismissal. In Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, the Full Bench of the Commission said at [33]-[34]:

‘[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”’ (footnotes omitted)

[98] The notion of wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. That notion has been considered in a number of well-known authorities (although characterised in slightly different terms). In North v Television Corporation Ltd (1976) 11 ALR 599 Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.’

[99] Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 (referred to in the quote above) makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.’

[100] In Concut Pty Ltd v Worrell (2000) 103 IR 160, His Honour, Kirby J, dealt with the ordinary relationship of the employer and employee at common law and said at [51]:

‘The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

“conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the “confidence” essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial.

Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer’s counterclaim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company’s service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.’

[101] In cases of summary dismissal, the onus rests on the employer to prove, to the Commission’s satisfaction that the misconduct, has in fact, occurred. This is why I have adopted the practice of requiring the employer to file and serve its evidence first when I issue directions in preparation for a serious misconduct unfair dismissal case (as I did in this case). While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (‘Briginshaw’), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:

‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted)

[102] That the Commission, for itself, must be satisfied that the misconduct occurred, is well established by the authorities of the Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019, a Full Bench of the AIRC said at [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment.’ (my emphasis)

[103] Even accepting that a finding of serious misconduct was open to Virgin, it must not be confused with the statutory language and the relevant tests to be applied. The statute still requires the Commission to find that there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (as the Commission then was) held at [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

Witness Credit

[104] Regrettably, I do not consider Mr Thomas to be a persuasive or reliable witness. From the outset of Virgin’s investigation and what continued to permeate his evidence and submissions, was Mr Thomas’ steadfast belief that unless Virgin had CCTV footage, or an eyewitness/s to the theft of the cigarettes and of him being given the stolen property, the respondent had no proof and could therefore not substantiate his dismissal. On numerous occasions, he demanded to be given such proof. Mr Thomas’ belief is misconceived and misapprehends the evidentiary test that both the employer and this Commission are to apply when determining whether the misconduct occurred. That is, according to the Briginshaw test, on the balance of probabilities. True it is that there is no CCTV footage or any eyewitness to Mr Faamausili Ailua removing the cigarettes and giving them to Mr Thomas. However, in my view there is an overwhelming evidentiary foundation to conclude, on the balance of probabilities, that this is exactly what had occurred, including from the applicant’s own evidence and what both of them told other persons. This evidence includes two main time periods:

(1) Loading of the freight to discovery of the theft.

(a) There was no evidence that there was anything other than a small hole in the box when it was loaded into the hold of Flight VA1429. It is likely the freight was only slightly damaged as this point.

(b) Mr Faamausili Ailua was in the hold and Mr Thomas was handling the freight at the door of the aircraft’s hold.

(c) Given the limited time during which the freight was taken from the aircraft in Cairns to the holding area, and held in a CCTV covered area, it is most unlikely the boxes were tampered with at the Cairns end of Flight VA1429.

(2) The period after the shift on 23 October 2018.

Had Virgin’s investigation disclosed no more than the above set of circumstances, it may have been unable without more, to pinpoint the theft by Mr Faamausili Ailua and Mr Thomas’ involvement. Unwittingly, Mr Thomas provided the necessary evidence when he went to the smoking area immediately after the shift commenced, contrary to his defence that Virgin had no proof.

[105] Both Mr Sullivan and Mr Castle provided evidence that Mr Thomas had told them in the smoking area, that the cigarettes had been taken off the aircraft when he offered them one. Mr Thomas claimed he made a joke about them being taken off the aircraft and that they all laughed. He agreed he offered them JPS brand cigarettes, the same brand that had been removed from the freight; yet, Mr Thomas initially claimed he was particular about his brand preference, and it wasn’t JPS.

[106] It seems to me that Mr Thomas initially sought to distance himself from the allegations by claiming JPS was not his preferred brand. However, he had forgotten that Virgin might be able to identify the stolen cigarettes as JPS brand, and that he had offered JPS to Mr Sullivan and Mr Castle, who he did not expect would give evidence about the matter. As events unfolded, Mr Thomas had to think of another explanation, namely, it was JPS he offered them, but a different colour. He maintained this charade by bringing a JPS packet to the Court. As just mentioned, Mr Thomas sought to take issue with the colour of the brand of JPS, being whether it was blue or gold. I must admit that had the colour of the packet of cigarettes stolen was blue, rather than what Mr Thomas said was gold, this would be a rather telling point. However, as the evidence emerged, including by Mr Thomas conveniently producing a JPS packet during the proceedings, the colour refers to the nicotine microgram content, not the colour of the packet, which are all the same colour (black) due to plain packaging of cigarettes in Australia. The words ‘Gold’, ‘Blue’ or ‘Red’ are printed in very small print. It is an entirely reasonable conclusion that the colour had no visual impact on anyone who was being handed a cigarette from a fleetingly observed packet. The controversy over the colour of the JPS brand was no more than a ‘red herring’ (or in this case, a ‘blue herring’). It took the applicant’s case nowhere. In my opinion, it is highly suspicious that Mr Thomas would offer JPS cigarettes to his work colleagues, while at the same time making jokes about taking cigarettes off the aircraft. There is no logical connection to have engaged in such a conversation, unless Mr Thomas believed that the joke would act as a smokescreen or cover to his actual involvement in the theft. This was much more than a mere coincidence.

[107] More importantly, however, I accept Mr Sullivan’s evidence of subsequent conversations in the smoking area where he was present and Mr Thomas had been ‘fishing’ to try and establish who had reported the incident to Virgin. Mr Sullivan said he had appeared anxious and had asked for Mr Faamausili Ailua’s phone number. I accept Mr Thomas had said ‘I am just going to deny it, they have no evidence, they have no footage – how are they are going to know?’ In my view, Mr Thomas’ behaviour at this time was entirely consistent with someone knowing the ‘net was closing in’. His only defence, as mentioned earlier was, ‘if you’ve got no direct proof, you can’t prove anything’. He was very much mistaken.

[108] I found both Mr Sullivan and Mr Castle to be credible and believable witnesses. Where their evidence conflicts with Mr Thomas and Mr Faamausili Ailua, it is their evidence I prefer. Mr Sullivan, for whom Mr Thomas seemed to have a particular disdain, (that ‘opportunistic’ employee) had raised his concerns with Mr Daly and told him of the 23 October 2018 conversations because he was worried that had it would come out he was aware of the stolen cigarettes and had said nothing about it, he could himself be faced with disciplinary action. This was a perfectly rational and self-protective course for Mr Sullivan to take. In any event, Mr Sullivan’s evidence was corroborated by others, so it could hardly be claimed Mr Sullivan had made up his evidence to damage Mr Thomas and Mr Faamausili Ailua. Moreover, I note that when asked if they had any issues with other employees who might have an ‘axe to grind’, both Mr Thomas and Mr Faamausili Ailua said there were none.

[109] Mr Thomas took issue with whether Mr Sullivan was Leading Hand on the shift on 23 October 2018. Mr Sullivan said he was, but the job record shows it was Mr Coolentianos who was the Leading Hand. Mr Sullivan explained that he was confused when he said he was the Leading Hand, as he had been a relief Leading Hand earlier that day. In any event, it is irrelevant whether he was the Leading Hand or not. I am not sure what Mr Thomas was seeking to imply here. The real question is what Mr Sullivan was told after the incident in the smoking area. There was also criticism of Mr Sullivan for not reporting the matter to Mr Daly until 31 October 2018. Again, I am unclear as to the inference I am expected to draw, but this delay was understandable. In fact, Mr Sullivan did seek to raise the issue offsite at a work function on 25 October 2018, but Mr Daly told him it was not appropriate to discuss it in that context. Further, Mr Daly was Mr Sullivan’s direct manager, they got on well and Mr Sullivan felt comfortable raising the matter with him. However, Mr Daly was on annual leave at the time and did not come back to work until 31 October 2018.

[110] Corroborating the conclusion of both Mr Thomas and Mr Faamausili Ailua’s involvement in the theft, was Mr Faamausili Ailua’s answer when questioned by Mr Daly at the Christmas party on 13 December 2018 as to why he did it. Mr Faamausili Ailua simply said ‘I’m just stupid’. While Mr Faamausili Ailua denied this conversation, he did not deny that he had discussed the matter as he was being escorted from the venue. In my view, Mr Daly’s query had a ‘ring of truth’ about it and I accept Mr Faamausili Ailua replied ‘I’m just stupid’. Given the other surrounding evidence, this cannot imply anything other than Mr Faamausili Ailua accepting he had taken the cigarettes and had given them to Mr Thomas. Obviously, Mr Faamausili Ailua could not give evidence of why he did so, when he did not smoke himself.

[111] Mr Thomas claimed that Virgin could not prove the allegations, on the balance of probabilities, for four reasons (in bold) which I discuss below.

[112] Mr Sullivan and Mr Castle’s conflicting statements were made in early March 2019 and were not available to Virgin in late 2018 when they were dismissed. Firstly, there is no conflict in Mr Sullivan’s and Mr Castle’s statements on the essential issue of what they heard. They gave ‘statements’ (verbal, not written) to Mr Daly shortly after the time of the incident, followed up by emails. This is what Virgin meant by having witness statements at the time. Obviously, the March 2019 statements are distinct statements for the purposes of these proceedings. They are entirely consistent with what they told Mr Daly at the time. I accept their evidence.

[113] Mr Daly’s statement was unsigned. In fact, Mr Thomas sought to have me reject Mr Daly’s statement when it was filed, prior to the hearing. Of course, Mr Daly gave sworn evidence in the proceedings and swore his statement was true and correct. The Commission frequently receives unsigned statements in accordance with directions, so as to ensure the other side knows the substance of the case they have to answer. The signed statement is either later filed or the witness swears to its truth and accuracy in the witness box. There is nothing unusual in this. To suggest some malfeasance by, or suspicion of Mr Daly, is totally misconceived and it is little more than a silly ‘red herring’ that is of no consequence.

[114] A ‘curious’ statement of Mr Birch as to footage obstruction in Cairns. There is no substance to this submission. Mr Birch was stating the obvious factual position. Mr Birch’s conclusion was that there was insufficient time in Cairns, whether covered by CCTV or not, for the theft to occur. What followed was Mr Birch’s entirely reasonable view that the theft did not occur in Cairns, but most likely occurred when the freight was loaded into the aircraft hold in Sydney. I agree.

[115] No statement was provided by Ms Papantoniou. I do not understand what is meant by this criticism. Ms Papantoniou attended the disciplinary meetings and notes were taken. Neither Mr Thomas nor Mr Faamausili Ailua seriously disputed the conversations in these meetings. Ms Papantoniou was not the decision maker. Her evidence would have only corroborated Mr Ellsmore’s evidence, which itself was not contradicted. Viewed in this way, it was unnecessary for Ms Papantoniou to provide evidence in the case. It would have added nothing. It was unnecessary for Virgin to call more evidence merely because Mr Thomas submitted that the evidence might be better than the evidence Virgin had provided.

[116] In my view, Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted. Obviously, neither applicant pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than ~$50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight. Whether it was a relatively small value theft or something more substantial, is really not the point. Theft is theft - no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission and in Mr Thomas’ case, his self-serving concoction of invention, I might have put their conduct, particularly in Mr Faamausili Ailua’s case, down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’. I am satisfied the allegations against the applicants have been proven. I turn now to the matters the Commission is required to take into account under s 387 of the Act.

[117] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvanchandran’). This meaning has been considered and applied by members of the Commission, and its predecessors, for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then-Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peterson Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is sound, just or wellfounded; a valid reason.”

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.

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) (s 387(a))

[118] As I have found the allegations against the applicants to have been proven, it obviously follows that such conduct was in breach of Virgin’s Code of Conduct and their contracts of employment. I am satisfied that these conclusions constitute a valid reason for the applicants’ dismissals. Compounding the finding of valid reason was the applicant’s untruthfulness during the investigation and in their evidence before the Commission. These conclusions tell against a finding of unfairness.

[119] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, in unfair dismissal cases, I cite four authorities on the subject. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[120] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[121] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[122] It goes without saying that any issue (or issues) of procedural unfairness may not be of such significance as to outweigh the substantive reason (or reasons) for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to ‘harshness’, such as age, length of service, employment record, contrition and/or personal and family circumstances. In Bostik Australia Pty Ltd v Gorgevski (No 1) [1992] FCA 271; (1992) 36 FCR 20, the Federal Court of Australia Industrial Division said at [37]:

‘Harsh, unjust and unreasonable

37. These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.’(my emphasis)

Whether the person was notified of that reason (s 387 (b))

[123] Both applicants were notified of their dismissals and the reasons for their dismissals on 20 December 2018. Mr Faamausili Ailua was advised by phone by mutual agreement. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the persons (s 387 (c))

[124] Both applicants received letters setting out the allegations against them, and inviting them to respond in writing. They both availed themselves of that opportunity on 6 November and 2 November 2018 respectively. On 7 December 2018 the applicants received ‘show cause’ letters, providing a further opportunity to respond, and inviting them to meetings with Management on 12 December 2018. They declined to respond in writing, but attended the meetings with Mr Ellsmore and Ms Papantoniou.

[125] For the reasons earlier set out, there are no issues of procedural unfairness as claimed by the applicants. It is abundantly clear that not only did they know and understand the allegations against them, and simply denied them, but Mr Thomas falsely crafted a series of implausible circumstances, which demonstrate to me that he knew exactly what he was accused of, and how serious was its consequences. Even if Mr Daly had written statements from Mr Sullivan and Mr Castle at the time and did not provide them, it is not mandatory that an employer must provide to an employee alleged to have engaged in misconduct, witness statements it had gathered during an investigation. It will be sufficient that the employee knows and understands the allegations against them in order for them to fully respond. That is precisely what happened; see RMIT v Asher (2010) 194 IR 1 at [14]; citing Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1.

[126] In any event, the challenge to an unfair dismissal will invariably result in witness statements being provided in the Commission proceedings or sought under a Notice to Produce, if they are not. In any event, I note that Mr Thomas has said to Mr Ellsmore that he knew one of the witness statements was from Mr Sullivan; see [53] above. Moreover, Mr Thomas must have known, or was likely to have assumed, that the two persons he had offered the cigarettes to and joked about were Mr Sullivan and Mr Castle. This factor tells against a finding of procedural unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissals (s 387(d))

[127] Both applicants were afforded an opportunity, but declined to have a support person attend the disciplinary meetings on 7 December 2018. This is a neutral factor in this case.

If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissals (s 387 (e))

[128] As the applicants’ dismissals were for serious misconduct, this criterion is not relevant.

The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissals, and 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 (s 387 (f)-(g))

[129] Virgin is a large employer in the airline industry. It has a comprehensive suite of policies, procedures and training programs to ensure that employees are aware of, and understand their obligations and responsibilities as employees in the employment relationship. As might be expected, Virgin has dedicated human resources and workplace relations departments. In my view, there is no issue with the internal processes adopted by Virgin in these matters consistent with its obligations under its own policies and procedures. It is apparent from the evidence of the applicants that they both were aware of the Code of Conduct, their Contracts of Employment and understood that stealing a customer’s property would be contrary to their obligations, which would ordinarily result in termination of employment. This is a factor telling against a finding of unfairness.

Any other matters that the FWC considers relevant (s 387(h))

[130] Both applicants had relatively short periods of service, as part time employees. Mr Faamausili Ailua was working two jobs at the time and was not unemployed after his dismissal. Mr Thomas secured alternative comparable employment six weeks after his dismissal. Mr Thomas’ inappropriate, if not offensive social media post would make it highly problematic that the trust and confidence in the employment relationship could be restored, even if he had sought reinstatement.

[131] Presumably, the applicants did not strongly argue the ‘harshness’ of their dismissals, because that might have inferred that they had done something wrong, when they maintain they were simply not guilty of the allegations against them. There are no matters in mitigation which would outweigh the seriousness of the allegations against the applicants and their clumsy attempts at cover-up.

[132] Finally, s 381 of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:

‘381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

i. the needs of business (including small business); and

ii. the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

i. are quick, flexible and informal; and

ii. address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all around” was used by Sheldon J in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.’

[133] For the above reasons, I find that the applicants’ dismissals on 20 December 2018, were not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. Their dismissals were not unfair. Accordingly, their applications for an unfair dismissal remedy are dismissed. I so order. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both the applicants and Virgin.

DEPUTY PRESIDENT

Appearances:

Mr D Thomas for himself.

Mr Faamausili Ailua for himself.

Ms K Garner, of Counsel, and Ms M Bostock, Senior Legal Counsel (Virgin Australia), for the respondent.

Hearing details:

2019.

Sydney:

28 March.

Printed by authority of the Commonwealth Government Printer

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