Steward Serves Up More Than She Bargained For ...

Fair Work Australia (FWA) has recently upheld a decision to terminate an employee due to her abusive swearing and aggressive conduct.  The decision confirms the ability to terminate employees for inappropriate behaviour in certain circumstances.

The applicant had been employed by Qantas since 2005 as a flight attendant and at the time of termination.  The applicant had previously been in a relationship with another Qantas employee who, after terminating his relationship with the applicant, entered a new relationship with the applicant’s friend who also worked at Qantas.  The relationship between the three became so strained that it culminated in the applicant’s ex-partner seeking (and being granted) a temporary protection order against the applicant.

On 10 June 2010, the applicant’s manager requested that the applicant attend her office to discuss a complaint received from the new partner regarding the applicant’s behaviour.  It was also the intention of the manager to discuss the applicant’s use of inappropriate language and to suggest mediation between the applicant and the new partner.

Upon entering the manager’s office, the applicant became very agitated, used inappropriate, offensive and abusive language and demanded the manager show her the complaint.  As the applicant was so agitated, the manager closed the office door — however, the applicant continued to use offensive language and shout.  The applicant then ‘stormed’ out of the manager’s office, slamming the door with such force that the glass wall shook.  The applicant proceeded to the reception area where she continued the inappropriate language use in a very loud and aggressive manner.  The manager then approached the applicant in the reception area and asked her to calm down.

The applicant returned to the manager’s office, remaining in an agitated and enraged state, demanding that the manager show her the complaint.  After requests by the manager that the applicant leave the premises, the applicant sought to push past the manager , with her hands on the manager’s chest, to gain entry to the manager’s office.

The applicant was suspended with pay, and the matter investigated.  The allegations were put to the applicant and she was provided with an opportunity to respond.

On 13 August 2010, the applicant was given a ‘show cause’ letter stating that Qantas was considering disciplinary action, including termination of employment, and asking the applicant to respond.  The applicant responded to the show cause letter, sought legal advice and over the ensuing months, several meetings were organised and further correspondence exchanged between the applicant and Qantas.

At one of the organised meetings, the applicant covertly taped the meeting without the consent of anyone present at the meeting.

On 3 March 2011, Qantas advised the applicant that it could not continue to support her employment in Brisbane, but was willing to offer her a position in Sydney subject to a final warning.  However, if she declined to accept the Sydney position, her employment would be terminated.

The applicant sought an internal appeal of the decision.  On reviewing the appeal, Qantas confirmed the prior finding of 3 March 2011.

The applicant failed to accept the Sydney position and Qantas terminated her employment in June 2011.  Termination was due to the applicant’s breach of the Qantas Group Standards of Conduct policy (the Policy) regarding the required standards of personal behaviour through:

• inappropriate behaviour and language towards her manager;
• failing to follow a reasonable command (ie calming down and leaving  the office when asked to by her manager); and
• using physical force to try and gain entry into the manager’s office.

In the hearing before FWA, the applicant argued that:

• there was a culture of swearing in the workplace;
• her actions did not merit termination;
• there were mitigating circumstances due to the applicant’s personal situation and including the temporary protection order; and
• she was denied natural justice as:

• she was denied access to the witness statements taken during the investigation of the incident;
• witness statements were not requested from all the relevant witnesses and some of the witness statements were signed after a decision was made by Qantas; and
• she was stood down before any complaint or allegations were made against her.

In making her decision, Commissioner Bissett took into account the following matters (amongst others).

1.   Culture of swearing

Commissioner Bissett found that the language and conduct in this matter was not common or normal in an office environment.  She further stated that “… acceptable standards of language across workplaces are not uniform.  What might be acceptable on a building site is unlikely to be the accepted norm in an office environment.  While the line might be unclear, there is also a substantial difference between ‘conversational’ swearing and an outburst of the type that occurred during this incident”.

2.   Merits of termination

Due to the applicant’s inappropriate reaction to the request of her manager to have an informal chat, her conduct was in breach of the Policy and a valid reason for termination.  Further, the totality of the applicant’s conduct — i.e., yelling, using force on the office door, refusing to follow a reasonable command and the manner by which she returned to the manager’s office to recommence the confrontation — amounted to conduct which was proportionate to termination of employment.

3.   Mitigating circumstances

In considering the mitigating circumstances, it was found that due to the totality of the applicant’s behaviour, limited weight was given by Commissioner Bissett to those circumstances.  As the applicant did not cease her behaviour after the first outburst, but continued to act inappropriately and refused to leave the manager’s office when requested, the mitigating circumstances were not sufficient to excuse her conduct.

4.   Natural justice

Although the investigation into the 10 June 2010 incident did not exhaustively interview everyone who was or may have been in the vicinity of the incident, it did not detract from the reliability of the witnesses who did provide statements. Although the statements may have been `signed off’ after Qantas made its decision, there were no major amendments to the statements and Commissioner Bissett found the content of the majority of the witness statements to be reliable.

It was determined that the person undertaking the investigation was a human resource officer and not an expert investigator, and the investigation formed only part of her duties.  Further, even if there were errors in the initial investigation (which was not found), these were “… adequately compensated for by the extensive process of appeals and further hearings afforded to the applicant under the policy.  The purpose of such appeals is to allow fresh eyes to look at the situation and determine if the process, including the investigation was carried out appropriately.”

The Policy provided for the standing down of employees with pay in certain circumstances and there is no requirement that the complaint or allegations be articulated to the employee prior to them being stood down.  As the process undertaken by Qantas was in accordance with the Policy, there was no denial of natural justice.

The Policy further stated that the employee is entitled to know the substance, but not necessarily the full particulars, of the allegations made against them.  The applicant was made aware during several meetings and various correspondences of the details of the allegations, and provided with the opportunity to respond.  Accordingly, no denial of natural justice occurred.

Taking into account all of the circumstances, Commissioner Bissett upheld the termination of the applicant as there was a valid reason for termination due to the applicant’s breach of the Policy.  Further, Qantas undertook an extensive process of investigation and internal review in accordance with the Policy.  The decision was further reinforced by the applicant’s covert taping of the meeting and misleading response to questioning, which impacted on the trust that Qantas may have in her.

If you have any questions or would like more information about this article, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.