The punishment did not fit the crime: FWC awards maximum compensation to dismissed employee who stole company property

A Qantas flight attendant (the Applicant) who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission (FWC) after it found that the decision to terminate the Applicant’s employment was harsh.

The FWC concluded that the Applicant was dismissed because he stole Qantas property and when he was asked to explain how the alcohol came into his possession, he initially lied and then changed his explanation during the investigation process.  Whilst the amount of alcohol stolen by the Applicant was of small monetary value, Qantas has a zero tolerance policy to theft including accidental theft. For these reasons, the FWC found that the conduct of the Applicant was a valid reason for termination.

As to the procedural aspects of the termination, the FWC determined that Qantas did carry out proper investigation and disciplinary processes.  However, the FWC also had an obligation to consider “any other matters” to reach a finding as to whether the termination was ultimately harsh, unjust or unreasonable.

Generally speaking, in considering “any other matters” the FWC ensures that a “fair go all round” has been given to both parties.  In this case, the FWC considered the factors argued by the Applicant that meant his termination by Qantas was disproportionate to the crime committed.  These included:

  • the Applicant’s 28 years of unblemished service for Qantas as a long-haul flight attendant;
  • the small value of the items stolen;
  • the Applicant’s age of 50 (meaning it would be difficult to get another job – especially as a flight attendant);
  • although the Applicant gave an incorrect explanation, he did correct it later; and
  • the Applicant had a number of medical and family issues prior to the incident.

Despite the procedural aspects of the termination being compliant with the Fair Work Act 2009 (Cth) (FW Act), after taking these “other matters” into account, the FWC concluded that the dismissal was harsh. 

Throughout Qantas’ disciplinary process and prior to making a decision to terminate his employment, the flight attendant requested that Qantas consider his particular circumstances (see factors noted above).  Qantas argued that it did, however, it still felt termination was appropriate.  The FWC did not share this view.

As a result of Qantas’ failure to properly consider the Applicant’s circumstances and the impact that the termination would have on the Applicant, the FWC felt it appropriate to award the Applicant compensation. The FWC noted that the Applicant could have earned $1,011,930 for the remainder of his working life.  Acknowledging the valid reason for termination and proper procedures, the FWC reduced the amount of compensation to $500,000.  The Applicant’s compensation was reduced again by the FWC to 26 weeks’ pay in accordance with the maximum compensation cap in the unfair dismissal jurisdiction under the FW Act.

In light of this case, employers are reminded to take a holistic approach when considering termination of employment and take into account the employee’s circumstances (both personal and work) as well as the conduct of the employee in order to determine the appropriate disciplinary outcome. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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