A Qantas employee who had worked for the airline for nearly 25 years has won her job back, after the Fair Work Commission deemed there was a lack of evidence to support her dismissal.
Qantas flight attendant Keiko Adachi had been dismissed for “serious misconduct” late last year after the airline found she had attempted to fly without medical clearance and a physical altercation with a manager ensued.
However, Fair Work Commissioner Michael Roberts found there was no evidence to suggest Adachi had purposefully tried to deceive Qantas on the day of flight. Instead, she had been under the impression she was permitted to fly with the WorkCover certificate she had received.
In relation to the altercation which occurred after she was told not to fly, Roberts found a “very short tussle for possession” of the WorkCover certificate took place, but this was not grounds enough for her dismissal.
“I further find that her actions were not grave enough to be considered serious misconduct and were a minor species of misconduct. Ms Adachi’s action in attempting to take the certificate back from [manager] Mr El Khoury would appear to be inconsistent with her character and work history at Qantas,” Roberts says.
“Ms Adachi would not be the easiest person to deal with but she has no history of initiating any sort of physical altercation. On balance, I therefore find that the second allegation is not substantiated to the point where it could form part of a valid reason for termination of employment.”
Roberts found the Qantas cabin crew member which carried out the investigation into the incident dismissed Adachi without malice, but the process was “flawed and ultimately reached conclusions that were not available to him on the evidence”.
Despite the cabin crew manager receiving 12 statements from other cabin crew members working that day that they had witnessed nothing unusual, the manager took the word of the one witness.
The cabin crew manager said he was unable to believe the witness’s “narrative was anything but totally credible” because of the witness’s “high personal and professional regard” for Adachi.
However, Roberts found that the witness’s account was tarnished due to his anger over Adachi being unable to work.
Roberts also said it was a mystery as to why the physical state of the WorkCover certificate and the 12 statements from cabin crew members did not spur a further investigation or for the cabin crew manager to seek advice from the Qantas HR team.
Roberts ordered Adachi be reinstated, having taken into account her long-service record at Qantas, but discounted compensation because of the inappropriate “tug of war” which took place over the WorkCover certificate.
Holding Redlich partner Charles Power told SmartCompany this is just one of many unfair dismissal cases recently where the court deemed the punishment did not fit the crime.
“This reflects the direction of unfair dismissal law in the past six to nine months where there has been an increasing propensity for tribunals to say a bad thing had been done, but it’s not bad enough to justify dismissal,” he says.
“The Commissioner was critical of the investigator and said he didn’t adopt enough impartiality in assessing the credibility of that evidence, that according to the Commissioner led the decision maker into error in terms of finding the misconduct was much greater than it actually was.”
Power says investigations in the workplace need to be conducted with independence and impartiality to form an unbiased assessment.
However, he says the rules aren’t as tight for small businesses.
“If it’s a true small business employer with less than 15 employees, the small business dismissal code requires only that there is a reasonable belief of misconduct, the bar is much lower,” he says.
“Witness evidence can be unreliable, overblown and exaggerated. You’ve got to have the skills to cut through it and work out what is fact and what is fiction. It’s best to have someone with training in this area,” he says.
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