the Applicant v Qantas Airways Ltd
Citation: [2012] FCA 56
At a glance
- Employees affected
- 2
What happened
the Applicant and a co-worker were long-serving employees of Qantas Airways Limited. the Applicant worked from 1993 until dismissal in March 2009; the co-worker worked from 2000 until dismissal in March 2009. Both were union delegates for the Transport Workers Union. On 14 February 2009, employees in the ramp area at Melbourne Airport stopped work following a vote conducted in the Applicant's presence. the co-worker took a vote in the baggage room but baggage employees continued working. Qantas investigated and alleged the employees had organised and incited unlawful industrial action. Both applicants were dismissed.
What was decided
Justice Kenny dismissed the applicants' claims under s 792 of the Workplace Relations Act (now s 351 of the Fair Work Act). The court found Qantas had conducted a fair investigation and made findings substantiated by the evidence that both applicants had engaged in misconduct (organising industrial action, breaching directions from management). Qantas discharged the reverse onus imposed under s 809 of the Workplace Relations Act by proving the dismissal was for a legitimate reason (serious misconduct), not because the applicants were union delegates.
What it means for employers
An employer can lawfully terminate union delegates or representatives if there is substantiated serious misconduct. However, the employer must conduct a fair investigation, establish that the misconduct is proven, and ensure the termination decision is not motivated by the employee's union role. The reverse onus in the legislation requires the employer to discharge a significant burden of proof.
What it means for employees
Union delegates are not immune from dismissal for serious misconduct, but they have special protections. Employers must conduct thorough investigations before dismissing delegates. Delegates should obtain union advice if they face investigation or dismissal, as claims can allege discrimination on grounds of union activity despite stated misconduct reasons.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2012/2012fca0056Send your details to Liquid Employment Lawyers
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections