A Win for Employers – The Importance of Sound Investigations and Policies

April, 2015

By Clayton Payne

In a March edition of this Alert (which can be found here), we reported on Qantas’ success in defending an unfair dismissal claim. This claim related to a pilot whose employment was terminated after he had been found to have inappropriately touched a colleague after a drinking session. The termination occurred in the background of the worker having a 20 year unblemished record with the airline as a pilot.

This week, a Full Bench of the Fair Work Commission in Gregory V Qantas Airways Limited, refused the worker’s appeal from the original decision.

Permission to appeal an unfair dismissal decision must not be granted unless the Commission considers that it is in the public interest to do so.

In particular, the Full Bench noted that the Commissioner at first instance considered all of the evidence both supporting and detracting from the proposition that the worker was the innocent victim of drink spiking (allegedly leading to his misbehaviour), and that it was open for him to find, as he did, that the evidence on balance did not support the proposition.

After considering the Commissioner’s other findings, the Full Bench held that the Commissioner’s findings were open to him to make and that they could not find any procedural unfairness.

In refusing to grant leave to appeal on the basis that it would not be in the public interest to do so, the Full Bench went on to find:

“The appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case, absent error on the part of the primary decision-maker. We are not persuaded that there is any evidence before us of an appealable error that would warrant the grant of permission to appeal”.

Conclusion

It is clear that as the employer had appropriate policies and procedures in place, and undertook a careful investigation into the allegations leading to the worker’s dismissal, its decision to dismiss the employee stood on much firmer ground.

Had the employer not had policies dealing with such matters as appropriate workplace behaviour, and procedures in place to deal with adverse allegations, it is quite possible that that its decision to dismiss could have been successfully challenged.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

 

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