Dismissal of long-serving employee for unlawful industrial action upheld by FWC

The Fair Work Commission (“FWC”) has recently upheld Q Catering’s (a Qantas subsidiary), dismissal of a long-serving employee, who was employed as an Airline Services Coordinator Post Production (“Coordinator”). The Coordinator made a deliberate, pre-meditated decision to take part in unprotected industrial action, which led to:

• significant delays for international, domestic and regional Qantas flights; and
• flights departing without any onboard catering.

Employees at the Q Catering’s Sydney Airport Site (“Site”) took this action on Friday, 15 June 2018, by:

• walking off the job;
• protesting the dismissal of an employee; and
• parking cars across the Site’s gate, preventing trucks carrying food and drinks from leaving the Site.

The Coordinator, who was not rostered to work on the day and who had worked for Qantas for 27 years, argued she had been unfairly treated in comparison to the other employees (around 40 people) who partook in the unlawful industrial action. She noted these employees had not been dismissed, but instead received a final written warning for their actions.

This argument was rejected by Senior Deputy President Hamberger, who differentiated other employees from her by outlining it appeared those employees had no prior knowledge of the action taking place and were basically ‘herded’ onto the dispatch dock by union delegates.

Notably, the Senior Deputy President outlined the Coordinator had prior knowledge of the unprotected industrial action, and still decided to participate in it, making her actions deliberate and pre-meditated. This was demonstrated by her choosing to come to Site on her day off, and by her making and distributing posters to her colleagues for the unprotected actions.

Another factor which the Senior Deputy President considered was the employee’s dishonesty throughout the investigation. The Coordinator was sent a letter outlining allegations against her and was asked to provide a response in writing. The Senior Deputy President stated this response was “little more than a tissue of lies”, and even when presented with subsequent opportunities to ‘come clean’ the Coordinator failed to do so.

In addition to arguing she was unfairly treated in comparison to her colleagues, the Coordinator also tried to argue she was coerced by the TWU into taking such action, thus, attempting to shift blame on them. However, this was again dismissed by the Senior Deputy President, as there was no evidence to support this claim.  

Key Take Outs for Employers

There are several key points for employers to take from of this case. Specifically:

1. Due process is essential when considering terminating an employee’s employment;
2. When investigating an employee’s (mis)conduct, it is essential to provide them opportunity to respond;
3. Length of service is important and might give the employee a few ‘additional credits’, however, if the conduct is severe enough a long unblemished record will not make the dismissal unfair; and
4. Adhering to your policies and procedures is essential when considering taking action against an employee.

Need Specialist Help?

Managing (unprotected) industrial action and dealing with troublesome employees (especially long-serving ones) can be difficult and time-consuming! We can assist you navigating through these difficult circumstances and conversations through tailored advice, training programs, and providing comprehensive information packs. We also provide a range of tailor-made policies that can assist in situations such as the ones described above.

For specialist assistance, Just call Workplace Wiizards on 03 9087 6949 (or email at support@workplacewizards.com.au)