Border guard wins unfair dismissal case

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Border guard wins unfair dismissal case

Wiping spit on a passenger, warning an airline passenger that planes flying into ash clouds will crash and rolling eyes while sighing was not enough to render fair the dismissal of border security officer.

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Wiping spit on a passenger, warning an airline passenger that planes flying into ash clouds will crash and generally being disrespectful to passengers was not enough to render fair the dismissal of border security officer. 

The officer received compensation for unfair dismissal despite engaging in several acts of very disrespectful behaviour because he was not warned that continued bad behaviour could result in discipline including dismissal.

Commissioner Williams in the Fair Work Commission awarded compensation of  $4,574, being 50% of six weeks pay as compensation - payment reduced because of the applicant’s inappropriate behaviour.

The Commonwealth of Australia (Department of Home Affairs) (the Department or the Respondent) was the employer.

Background


Mr G’s dismissal was not related to unsatisfactory performance, but rather because of his inappropriate behaviour.

The incidents involving Mr G that caused him to be dismissed included:

On 19 January 2015 Mr G was approached by a female passenger who moments before held her passport in her mouth. Mr G took the passport and wiped it on the sleeve of her shirt. 

On 27 July 2015 a complaint was made to the employer that Mr G was on 19 July 2015 discourteous, unprofessional and rude to a passenger by speaking in a loud and abrupt voice, not looking at the passenger when speaking to her and rolling his eyes and sighing. 

On 9 November 2015 a complaint was made that Mr G said to a passenger travelling to Denpasar, words to the effect of “you’re brave flying with Air Asia” and that Air Asia “don’t know the difference between a normal cloud and an ash cloud, the plane hits the ash cloud and it gets into the engines and down it goes, diving into the sea” while making a nose dive expression with his hands. The passenger then advised Mr G she needed a valium and he said words to the effect of “take the whole bottle.” The passenger reported to the employer that t she was distressed and anxious about his remarks. 

On 3 August 2016 a complaint was made to the employer that while processing a passenger’s refund claim Mr G made a comment to the effect that the passenger “had probably done this many times”. The passenger felt that this assumption was made on the basis of her Chinese race and nationality.

After each of these incidents Mr G was asked by the employer to provide his explanation of what occurred. He generally said he was acting in good humour and did not offend the passengers.

Over a period of 19 months the employer received four particularised complaints about Mr G’ behaviour towards passengers at the Perth Airport. Mr G’ behaviour towards the passengers was in each of the four instances disrespectful and inappropriate. 

A letter was sent by the employer to Mr G saying that Mr G had been spoken to after each incident however the fact that the incidents continued to occur indicated that he could not, or would not, heed the significance of the complaints, or moderate his behaviour accordingly. However, a direct warning about possible dismissal was not given.

Reasoning


The commission found Mr G had acted inappropriately but added that, in the circumstances, Mr G should have been expressly warned at some point that further instances of disrespectful and inappropriate behaviour towards passengers would be likely to result in the employer terminating his employment. The commission therefore found the absence of such a warning coupled with his relatively lengthy service meant the dismissal of Mr G was unjust. 

Compensation


Mr G had not demonstrated any remorse for his, at times, disrespectful and inappropriate behaviour towards passengers. In some cases he had aggressively criticised those passengers who complained about him. In addition, Mr G, since the time of his dismissal, had deliberately refused requests to return to the employer some of its property. 

On his request for reinstatement the commission said: "In the circumstances I am satisfied that reinstatement of Mr G is inappropriate... I am satisfied that Mr G’s misconduct, behaving inappropriately at times towards passengers, directly contributed to the Respondent’s decision to dismiss him. Consequently it is appropriate to reduce the amount I would otherwise order in the circumstances of this case by 50%..."

The bottom line: Employees are reasonably expected to act appropriately when dealing with the public and bad behaviour can justify dismissal. Here, the employer’s failure to sufficiently warn the employee that his behaviour could result in dismissal told against the employer’s case. 

G v The Commonwealth of Australia (Department of Home Affairs) [2018] FWC 4150 
 
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