Workplace Termination Gone Wrong
In a recent example of a termination going wrong, Qantas was ordered to reinstate an employee of 25 years standing, partly because the evidence relied upon to terminate her employment proved to be unreliable at the hearing of her unfair dismissal claim, and partly because the incident which triggered the termination was too trivial to justify drastic disciplinary action.
Ms Adachi had worked as Qantas cabin crew for many years. She began falling out with her managers in late 2012 and early 2013 when they insisted that she undertake some training, which she felt that she should not be required to do. She took some time away from work on personal leave, on the basis of stress, and returned to work with a medical certificate which identified that she was fit to return to work, but not to undertake the training with the particular managers with whom she had difficulties. There was some confusion about the medical certificate, and she took it back to her doctor who ticked a box labelled “Fit for suitable duties”.
Ms Adachi then returned to Qantas with the certificate and gave it to one of her managers, Mr El Khoury. He looked at the medical certificate and pointed out that it did not indicate that she was free to undertake pre-injury duties, which meant she was not able to fly. Ms Adachi became seriously upset and tried to grab the medical certificate back from Mr El Khoury. A brief tussle over the document ensued. Mr El Khoury insisted that he would keep the document and provide Ms Adachi with a copy but she wished to recover the original document she had provided. He said she tried to prise his fingers off the certificate so she could reclaim it.
The incident went to HR, and an investigation ensued in which substantial evidence supported Mr El Khoury’s version of events, and Qantas terminated her employment.
When the case was heard by the Fair Work Commission, some of the evidence which support Mr El Khoury’s version of events was found to be entirely unreliable, and therefore discounted completely. In the end result, the FWC found that the incident, while inappropriate on Ms Adachi’s behalf, involved a brief “tug of war” over possession of the medical certificate, and did not involve any form of physical assault on Mr El Khoury, and was a momentary lapse immediately after return to work from a period of stress leave. The Commissioner observed that Ms Adachi was unable to accept criticism or any failings on her part and believed that she was being persecuted, which was wrong. But he considered that the termination was harsh, unjust and unreasonable because dismissal was out of all proportion to the conduct of Ms Adachi in this isolated incident, and did not pay sufficient regard to her work history, her past service, and her recent stress leave. He therefore ordered her reinstatement, finding that it would not be impracticable for her to return to work for Qantas.
The fact that the Commissioner made findings different from those of Qantas’ internal investigation illustrates an inevitable risk in dismissals. The enquiry undertaken by the Fair Work Commission will often be much more thorough than the workplace investigation, as it allows weighing up of all of the evidence available, in a sworn form, and with the opportunity to see witnesses giving evidence and being cross-examined. This is a much more detailed (and leisurely) process than occurs in most workplace investigations, so it is not surprising that sometimes the Commission will find the facts to be different from what the workplace investigator established.
However, the conclusion that the termination was harsh in the broader context of the years of service and triviality of the incident itself is a salutary point. As an employer, it is easy to see things through a narrower perceptive, focussed on the immediate events, and it is necessary for anyone conducting an investigation, or making a decision with respect to termination, to stand back and consider the position more generally, particularly
- in the case of contested allegations which, on one view, might not be that significant, and
- when the employee in question has lengthy service, a past good record, and perhaps other mitigating circumstances which justify a disciplinary step less than termination of employment, such as missing a pay increment, or receiving a final warning that any repetition of the conduct in question will result in termination.
It is always wise to consider how the termination might look to an independent outsider, and whether some other lesser course of action will meet the organisation’s needs for appropriate disciplinary action.
If you need further advice on dismissals or terminations please contact our experienced employment lawyer:
Stephen Booth, Principal
Phone: +61 2 9895 9222