Mr Raghbir Gill v Jetstar Airways Pty Ltd (2016)

Facts

In July 2015, Jetstar terminated Mr Gill’s employment as a mechanical engineer at Avalon Airport in Melbourne because he drove a tow tug vehicle on a public road to pick up some lunch. The vehicle was not registered and was not permitted to be used on a public road. Jetstar claimed this was common knowledge among workers.

The vehicle Mr Gill normally used had broken down and he claimed he could not get any lunch unless he drove the tow tug.

Mr Gill admitted to the conduct, but claimed that termination of his employment was a disproportionately harsh response given the serious safety breaches of other employees that had not resulted in dismissal.

Mr Gill commenced unfair dismissal proceedings in the Fair Work Commission (FWC).

Judgment

While the FWC was satisfied that the misconduct was a valid reason supporting the decision to dismiss, it was not appropriate in this instance to dismiss the worker.

This was due to the disciplinary measures imposed on other Jetstar workers for their safety breaches not being proportionate. These safety breaches included:

an engineer signing off a mandatory safety check as completed despite not conducting it. His failure to conduct the check resulted in the plane having to make an unscheduled stop when an engine oil cap was not fitted;

an engineer failing to safe-tie the main landing gear while undertaking a safety test on a plane’s landing gear. This resulted in the gears swinging up and narrowly missing another worker; and

an engineer climbing on a ladder on top of an elevated work platform without using safety gear, while another worker took photos of the incident.

None of the workers involved in the above incidents had been dismissed. As such, the FWC found Mr Gill’s dismissal to be harsh in the circumstances.

The FWC found that reinstatement was an appropriate remedy given:

Jetstar had shown that it continued to maintain trust and confidence in the other workers by not dismissing them when they had committed more serious safety breaches than Mr Gill;

Mr Gill had an otherwise excellent performance and conduct record over a 30-year career, including 4.5 years with Jetstar;

Mr Gill admitted he had done the wrong thing and had shown contrition. As such, it was unlikely he would repeat the conduct; and

Mr Gill’s age (60 years) and the difficulty he would face finding alternative employment in the aircraft industry justified giving him a second chance.

The FWC reinstated Mr Gill to Tullamarine Airport in Melbourne, which would enable Jetstar to better supervise him. No orders were made for loss of wages given the seriousness of Mr Gill’s misconduct.

Lessons

It is important that you consistently apply your workplace policies and ensure that
disciplinary measures are appropriate for the actual breach. Examine what disciplinary measures you have taken previously in relation to similar breaches. If you wish to impose a more serious consequence, make sure the facts support these measures and that prior circumstances can be distinguished on their facts.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.