Brisbane Employment Lawyers – Jetstar Airlines Case and Reprimanding Misconduct
Employers have an obligation to objectively consider the factual circumstances surrounding an employee’s misconduct before deciding to dismiss that employee from his or her job. Gill v Jetstar Airways Pty  is a recent airlines case that demonstrates this obligation. In particular, employers must take into consideration how that employer has reprimanded similar misconduct by other employees and ensure that a misbehaved employee is treated consistently. Failure to do so can leave an employer vulnerable to an unfair dismissal claim.
Satisfying Unfair Dismissal
To constitute an unfair dismissal, an employee’s termination needs to be either “harsh, unjust or unreasonable”. While a termination may be for a “valid reason” and therefore satisfy two of these standards – the dismissal was just and reasonable – if it breaches the remaining standard (ie the dismissal is harsh in the circumstances) then the dismissal is still unfair. In this circumstance, an employer is still liable.
Section 387 of the Fair Work Act 2009 (Cth) provides criteria for considering whether a dismissal is harsh.
Gill v Jetstar Airways Pty  – The Facts
Mr Gill was 60 years old and employed as a licensed aircraft maintenance engineer (LAME) for Jetstar Airways. In 2015 he commenced a shift at Avalon Airport at 4.30am. The usual Jetstar maintenance bus was out of order so Mr Gill was given a tow tug for the day to negotiate the airport tarmac.
Around noon Mr Gill became quite hungry and resolved to get lunch. He drove his tow tug down a public road to a local BP to do this. Jetstar learned of the incident and immediately dismissed Mr Gill from employment; Mr Gill’s actions constituted serious misconduct.
In appealing the decision, Mr Gill laid out the adverse consequences of his employment termination. He was 60 years old and had spent all but three years of his 30 year career as a maintenance engineer. This in conjunction with the difficulty and rarity of securing another job in the same profession would adversely and harshly affect his economic situation. He was the sole breadwinner for his family and had a $380 000 mortgage. Mr Gill also had an unblemished employment record and argued he did not intentionally disregard the airline’s rules, but had worked for a long stretch of hours with a break and required food. Jetstar had not fixed the maintenance van yet and so in this exceptional circumstance he drove to the BP on his tow tug instead.
Mr Gill also compared the potential serious consequences of his own misconduct to that of engineer’s in Coolangatta and Newcastle.
- In Coolangatta an engineer signed off an aircraft being fit to fly to Japan. The aircraft lost oil rapidly and had to stop in Cairns. If both engines (instead of one) had not been properly attended to the consequences would have been dire.
- In Newcastle, an engineer failed to safety a landing gear which swung and missed an apprentice by 12 inches.
The Fair Work Commission’s Decision
Commissioner Cribb held that Mr Gill’s termination was harsh and therefore unfair in the circumstances. The seriousness of the conduct did not outweigh the adverse consequences of his dismissal, and there was a distinct inconsistency in the way Mr Gill’s misconduct was treated compared to the more serious incidents in New South Wales and Queensland.
Commissioner Cribb also found that Mr Gill’s conduct was not deliberate and intentional. While it could be implied that driving an unlicensed tug on a pubic road to acquire food was a breach of Jetstar’s policy, Mr Gill was focused on obtaining food in the circumstances; that is, after substantial hours without a break without the usual maintenance van.
Even though an employee’s misconduct may constitute a just and reasonable and therefore “valid reason” for termination, an employer still has a legal obligation to consider all of the circumstances surrounding an employee’s dismissal. This includes the reprimanding of other employees for similar misconduct, the employee’s performance record at the company and the economic affects on the employee for the dismissal. If the termination is disproportionately harsh the termination will still be considered unfair.
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This article was written by Eduardo Cruz.