A lunch dash proved more costly than possible plane crash

Thursday 17 March, 2016 | By: Default Admin | Tags: Fair Work Commission, unfair treatment, unfair dismissal

Who was most at fault? The airport worker who drove a tow-tug on a public road to get lunch, or a maintenance operator who did not put an oil cap back on properly and jeopardised the lives of 300 jet passengers?

One got the sack and the other was let off with a warning.

Believe it or not, the worker who went to get his lunch got into the most trouble. He was dismissed for disregarding safety protocols.

CCIQ’s senior employer assistance advisor Jason Wales analyses the case of the Melbourne aviation engineer sacked for driving an unregistered work vehicle on a public road.

He was reinstated, after the Fair Work Commission found his actions were driven by hunger rather than disregard for safety protocols.

Commissioner Anna Lee Cribb found the dismissal was valid but harsh because he didn't deliberately or intentionally disregard safety rules and wasn't "consciously aware of the ramifications of his decision".

The Case

In July 2015, the Jetstar Airways Pty Ltd licensed aircraft maintenance engineer (LAME), employed at Victoria's Avalon Airport, was summarily dismissed for breaking a "cardinal rule" by driving a tow tug out of the airport and on to a public road to get lunch at a nearby petrol station.

After an investigation, Jetstar found the breach constituted serious misconduct and he was summarily dismissed for consciously disregarding the cardinal rule, failing to comply with the safety directions outlined in his employment contract, and placing himself and others in danger.

The Commission heard Jetstar usually provided the worker with a road-registered van to use during shifts, but no van was available on the day of the incident and he was given a tow tug, which didn't have proper safety protections for uncontrolled environments and wasn't registered for or permitted to be used on a public road.

The worker claimed his dismissal was harsh and disproportionate to his actions for a number of reasons, including that many of the dangers that the employer alluded to when it sacked him – such as driving the tow tug over potholes – applied to driving within the confines of the airport on a daily basis.

He said that when he drove the vehicle onto the road, he had not eaten for nearly eight hours and was desperate to get lunch before returning to work. He said it was never specifically pointed out to him that a tow vehicle wasn't allowed off the premises, and he didn't realise the potential dangers of his actions until they were explained to him at his show-cause meetings.

He submitted that no physical damage was caused by the incident, there were no cars on the road and he wore a seatbelt and his hi-vis uniform.

The employer argued that safety was critically important to the worker's role as a LAME, and his actions called into question his broader judgement on safety issues, especially considering he could have used his own vehicle to get lunch.

Commissioner Cribb said that after 30 years of working in the aviation industry, the worker should have known not to drive the tow tug on a public road, however she wasn't "persuaded" he "intentionally or deliberately sought to break the company's safety rules or had a conscious disregard for the safety rules".

Fair Treatment Questioned

Commissioner Cribb considered the way Jetstar treated other employees who had committed safety breaches, including another LAME at Coolangatta Airport who failed to secure an engine oil cap on a jet. 

In this case, the Japan-bound plane was forced to make an unscheduled stop in Cairns after rapidly losing oil, which jeopardised the lives of 300 passengers. The employee’s punishment was not termination of employment, instead he was to make a video and show other people how not to make the same mistake.

The Decision

Commissioner Cribb said that after 30 years of working in the aviation industry, the worker should have known not to drive the tow tug on a public road, however she wasn't "persuaded" he "intentionally or deliberately sought to break the company's safety rules or had a conscious disregard for the safety rules".

Commissioner Cribb also took into consideration the different treatment of the Coolangatta incident "where the potential consequences of the other engineer’s actions were far more serious".

She said it was unlikely the worker's "unconscious disregard for the company's safety policies" would be repeated in future and ordered his reinstatement.

She ordered that the engineer be reinstated at Tullamarine Airport, where the company said he could be supervised more closely than at the smaller Avalon Airport where he had been working.

Commissioner Cribb declined to order the airline to pay seven months’ lost earnings since the dismissal, during which time he had some short-term work in his trade.

 Gill v Jetstar Airways Pty Ltd [2016] FWC 1472 (11 March 2016)

CCIQ Viewpoint

This case highlights the importance of equal and fair treatment of employees during the disciplinary and subsequent termination process.  Providing different disciplinary outcomes to employees for similar breaches of policy can be viewed as unfair, as in this case.  Employers are advised to follow a fair process and afford all employees equal treatment where disciplinary matter are concerned.

The CCIQ Employer Assistance Team can assist you in all areas of the investigation, disciplinary and termination process.  Contact us on 1300 731 988 or advice@cciq.com.au

 

DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.

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