Jetstar has been ordered by the Fair Work Commission to reinstate an engineer who was dismissed for driving a “tow tug” — usually only used in airports — on a public road to go and buy lunch.
Raghbir Gill, a licensed aircraft mechanical engineer at Avalon Airport, had been working without a break since 4.30am on 5 July 2015 when he drove the unregistered vehicle to a nearby service station to get some lunch.
The van Mr Gill usually used to perform his duties had broken down, so he was given a tow tug to drive for the day. Conscious that he had to be back to service a plane arriving at the airport at 2pm, Mr Gill drove to the service station around midday when he got hungry.
His employer found out and Mr Gill was terminated on the grounds of serious misconduct. This is despite being employed by Jetstar for more than four years and having an unblemished record.
Maurice Blackburn Lawyers took on Mr Gill’s case, arguing in the Fair Work Commission that while he did not dispute the conduct and admitted that it was wrong, Mr Gill should not have been sacked.
“Even if an employee has done the wrong thing, it might still be harsh to dismiss them depending on the circumstances,” said Maurice Blackburn Senior Associate Daniel Victory.
Fair Work Commissioner Anna Lee Cribb agreed, ruling that:
- Mr Gill’s actions were not deliberate and intentional
- dismissal would have severe financial consequences him and his family
- at 60 years old and in his industry it would be difficult to obtain comparable employment
- he had a previously unblemished employment record, and
- employees who had committed more serious safety breaches had been given warnings and not dismissed.
Despite finding that there was a valid reason for dismissal, Commissioner Cribb found that, in the circumstances, the dismissal was harsh, and therefore, unfair. She ruled that Mr Gill should be reinstated.
“If an employee has done the wrong thing but admits to it and shows insight into their behaviour and contrition, this is likely to be looked on favourably in an unfair dismissal case,” Mr Victory said.
“Caution should be used in relying too heavily on differential treatment of other employees but this case confirms that it is a factor that the tribunal can take into account.”
He said reinstatement was not often sought by employees, “but in the right case, it can be obtained from the Commission particularly where the employee is long serving, faces disadvantages in the broader job market and has a positive employment record.”