The Fair Work Commission has jurisdiction to find that a dismissal is relevantly unfair (and order reinstatement and/or compensation) even though there may be valid reason for the dismissal if, after hearing all of the evidence, the Commission concludes that the dismissal was nonetheless harsh, unjust or unreasonable.
In Dawson v Qantas Airways Limited (2016) FWC 8249 delivered 23 November 2016, Lawrence DP held that the dismissal of a Qantas flight attendant who had stolen a small amount of alcohol from a flight AND had been untruthful during the subsequent investigation was harsh but not unjust or unreasonable, and that there was a valid reason for it. The Deputy President observed that given the particular work history of the applicant’s working career with the airline, the dismissal was harsh, and appears to have accepted that the punishment of dismissal did not fit the crime.“
I will leave it to the reader to decide whether this was a pyrrhic victory or not. The Deputy President refused to order the reinstatement of the flight attendant on the basis that
“Although the value of the goods stolen was small, I do not think reinstatement is appropriate in this case. I accept Qantas’s argument that the relationship of trust has broken down and cannot be repaired. It is important that flight attendants are able to be trusted with Qantas property. The fact that the Applicant changed his story is a crucial factor here. Reinstatement may be seen to condone theft in some way.”
The Deputy President ordered that the applicant receive compensation equivalent to 26 weeks’ base earnings, a sum approaching the maximum permissible.