Rollout of Transport Policy Inadequate in Qantas Airways Decision

A recent decision by the Fair Work Commission (Chew v Qantas Airways Limited; Leong v Qantas Airways Limited [2014] FWC 4885 (12 August 2014)), demonstrates the manner in which a policy is “rolled out” to employees, may make all the difference in whether an employer can lawfully rely on a breach of the policy to dismiss an employee.

Background

The decision involved two flight attendants who were dismissed from their positions at Qantas for serious misconduct. The applicants each had long and unblemished records of service with the airline prior to the alleged misconduct, which related to the inappropriate use of Qantas Corporate Cab Charge Cards (Fastcards). As the applicants lived nearby one another and shared almost identical flight patterns, they generally travelled to and from the airport together in the same taxi. They were both issued with Fastcards on 8 March 2013.

Qantas claimed that the applicants were also provided with a copy of the Qantas “Cab Charge (Fastcard) Carpool Card items and conditions” (the Fastcard Policy) when they were given the cards. The Fastcard Policy stated that:

It also provided that Fastcards should only be used in a metered taxi. The Fastcards had been introduced to implement arrangements agreed in the Flight Attendants’ Association of Australia – International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (the Enterprise Agreement). According to the Enterprise Agreement, flight attendants were entitled to receive transport free of charge between their homes and the airport subject to certain conditions.

Dismissed for Breach of Company Policy

Between 17 April 2013 and 4 October 2013, Qantas claimed that there were 15 instances of the applicants travelling together to the airport in circumstances that breached the Fastcard Policy and the “free of charge transport” arrangements agreed in the relevant Enterprise Agreement. On each occasion the cards of both applicants were charged for the same fare rather than a single fare being charged. For most of these trips the applicants did not use a metered taxi but were driven by a driver who worked for a car hire service. Aside from being in breach of the Fastcard Policy, Qantas also claimed that the conduct of the applicants was in breach of the Qantas Code of Conduct.

Qantas commenced an investigation into the matter and provided the applicants with an opportunity to respond to the allegations. The applicants claimed that they used the hire car service based on their understanding that this was acceptable to Qantas and other flight attendants also used the service. They also claimed that they were unaware that the practice of charging for two trips was contrary to Qantas policy. One of the applicants provided a statutory declaration from the driver engaged by the car hire service who stated that it was his policy of having two separate fares to cover individual drop offs and waiting time. Qantas was not satisfied with the response of either of the applicants and ultimately terminated their employment on 20 December 2013.

Findings of the Commission

Deputy President Lawrence found that Qantas did not have a valid reason for the dismissal of the applicants. Although it was clear that the applicants had breached Qantas’ policies in their use of the Fastcards, DP Lawrence found that the applicants “were confused and lacked knowledge about the policies” and that:

Qantas could not produce any evidence that the applicants had signed or even sighted the Fastcard Policy. Similarly, there was no evidence of an educational program provided to flight attendants on the use of the cards or the free of charge transport policy generally. Given the applicants’ lack of awareness of the policies, DP Lawrence was of the view that a lesser penalty than dismissal would have been more appropriate.

Other Contributing Factors

Other factors also contributed to the Deputy President’s finding that the dismissal was harsh, unjust or unreasonable in the circumstances. DP Lawrence concluded that Qantas had given insufficient weight to a number of relevant factors when it decided to dismiss the applicants. These included their long and unblemished records of service, their apologies and contrition and the substantial impact of the dismissal, given their age and length of service with Qantas. The application for an order for reinstatement was granted. However, DP Lawrence declined to order restitution of lost wages between the applicants’ dismissals and the date of his decision on the basis that it was appropriate that they suffer some penalty for the breach of policy.

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Rollout of transport policy inadequate

Chew v Qantas Airways Limited; Leong v Qantas Airways Limited [2014] FWC 4885