FWC upholds termination of employee for ongoing inappropriate conduct

FWC upholds termination of employee for ongoing inappropriate conduct

FWC upholds termination of employee for ongoing inappropriate conduct

The Fair Work Commission has rejected an unfair dismissal claim from a male airline employee who was terminated for multiple reasons, including making unfounded complaints against fellow staff, acting in an unsafe manner, and harassing a female colleague with ongoing social media requests.

The employee, ‘HR’, commenced employment with Virgin Australia Airlines Pty Ltd (Virgin Australia) in February 2018 until his dismissal on 14 December 2022 for serious misconduct.

HR, an airline veteran with many years of experience, was employed in the Pit Crew at Sydney Airport.

In his role as an operator, he worked in and around the baggage room and the ramp area of the airport tarmac, primarily loading and offloading aircraft. The work of Pit Crew Operators involves sorting checked baggage, loading it onto barrows, and transferring baggage between aircraft and between the domestic and international airports.

The first years of his employment appear to have been largely without incident.

However, from late 2020 through to 2022, HR reported at least seven occasions of allegations of inappropriate conduct or behaviour towards him by co-workers. Each of these incidents was investigated by Virgin Australia, but none were substantiated.

On 3 September 2022, there was a safety incident involving HR and another Pit Crew Operator, resulting in HR being stood down on pay pending an investigation.

On 21 September 2022, a letter was provided to HR containing four allegations, including:

  • On 3 September 2022, HR deliberately drove into a blind spot of another team member;
  • Between 11 June 2021 and 21 July 2022, he deliberately reported multiple false and/or unjustifiable complaints about team members’ conduct;
  • On 22 August, he told a colleague that he was going to resign but had decided to stay on and ‘toy’ with the business;
  • HR had sent multiple unsolicited Facebook requests to a female co-worker and continued to send requests despite her asking him to stop.

After assessing his responses to the allegations, Virgin Australia determined that most of the allegations had been substantiated, leading to his dismissal.

In a lengthy review of the company’s actions, Commissioner Sarah McKinnon largely came to the same conclusion.

As she noted,

“Virgin Australia has established each of the five reasons it gave for the dismissal of Mr (R). Both separately and together, these were sound, defensible and well-founded reasons for dismissal”.

The Commissioner also determined that HR was an unreliable witness, noting, in regard to the safety incident,

Mr (R) evaded, denied, or downplayed the allegations on the basis that they did not happen, or were resolved, or were ‘closed’. He gave explanations that did not make sense and some were plainly not true”.

The unfair dismissal application was dismissed.

HR v Virgin Australia Airlines Pty Ltd (U2022/11839)

For queries about dealing with employee complaints, investigation of safety incidents, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 361.0723

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