Brooks v Flight West Airlines Pty Ltd [1994] QIRC 549 (1994) 147 QGIG 930

930 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [28 October, 1994 ####################################################### ()l '11 :\SLA:\ll l:\lWSTRIAL RFLATIO:\S COM\1I SSIO:\ lndusrrwl Reim ions .-1cr ! 99/J ,_ 295 - application for rcinslatcrrn:nt Kim Maree Brooks Flight West Airlines Pt\ Ltd (\'o nrx of /99-1) CIIIIT INDl'STRIAI COMMISSIO:\l R IIAII I 7 October 1994 Termination of l'rnplo:, mcnl -- indirect discrimination on the ground of age - factor, relevant to harshness. injustice or unreasonableness of decision no \ alid reason for dismissal reinstatement not practicable. DECISION Flight West Airlines Pt:, Ltd. (hereinafter the Respondent). conducts the business of an airline from diverse cities and townships in Queensland including. material!). the City of Cairns. Kirn Mart.:c Brooks. (hereinafter the Applicant). \\as previous!) a Trainee Traffic Officer at the Respondent·s Cairns Tenninal. She was employed by the Respondent on and from \1onda). I NO\embt.:r 199] until I-rida:, 2 \fa). 1994. At the time of the Applicant's employment the Respondent conductc:d its business at the Cairns airport from its own facilities Those facilities \1crc located at ,,hat ma:, be called the Cook I liglmay end of the Airport. By the time of the termination of the Applicant's employment. the Respondent had shifted its operations across the Cook I Iigh\\ay and into the Ansctt Tenninal. On the evidence. it seems that the Respondent was committed to the relocation a.s a matter of polie:, by the time of the Applicant's engagement and. possibl). as early as I Jui), 1993. Regrettably. the polic) was not disclosed to the Applicant. I say ·rcgrdtably· because the Applicant. \\ho left other employment to take up the position of Trainee Traffic Officer (as the Respondent well knew). lost her position as a direct consequence of the relocation. As al I :\ovember. 199]. the Respondent ma111ta1ned l\10. quite separate seclions to scn ice passengers. vi/ .. the rcscn ations section and the traffic section. With the relocalion to the Ansell Terminal. Ansell Australia took o, er the functions uf the traffic sccti()n on a ice for sen·icc basis. Ansell Australia performed. and continues to r,erfonn. that function using its own staff. The ,, hole of the ,,mk performed b, the traffic section ceased to be available to it. I accept that no !inn arrangement had been entered into by the Respondent and Ansell Australia at the time of the Applicant's engagement. but agreement must ha, e been reachc:d very short!:, thereafter. The original relocation date ,vas I January. 1994. Torm mind the conclusion is inescapable that. if the Respondcnt·s managers had thought about it at all. they must have realised that the ,\pplicant ,,as (\1ithout disclosure) being offered a position which \\as like!:, to disappear in the near future. Indeed, \1r Peters. the Rcspondcnl·s Traffic Manager. who kne,1 of the Apr,licant"s engagement and who subsequent!:, made the decision to d1sm1s, her. admits to anticipating redundancies in the foture b, '\ovember. 1993. I le e:,.CLrses the non-disclosure on the basrs that it was his npcctation that natural attrition ,1ould make it pos,ibk to absorb those displaced from the traffic section in other parts of the Respondent's operations. In fairness to Mr Peters. he was almost correct. Of the four persons employed in the traffic section in Cairns. three were found positions in other sections or places. which positions had arisen by natural attrition. The Applicant was the less fortunate fourth member of the section. An employer ma) not dismiss an employee unless there is a ,,did reason rc:lated to one of the matters particularised at s. 291 (l)(b) of the Industrial Relmions Act /990 A rc:ason is not ,a!id if it is for any of the reasons listed at s. 291(2)(b) Neither is a reason valid if having regard to the employees· conduct. capacity or perfonnance and the operational requirements of the emplo\ ers undertaking. establishment or service. the dismissal is harsh unjust or unreasonable. sec s. 29l(2)(a) Mr (J'Donnell. who appears for the Ar,plicant. relics on s. 291(2)(b)(iv), which brands as an invalid reason for dismissal a reason which is .. an attribute for which discrimination is prohibited under the A111i-niscrimi11urion . /er I 99 r. Mr (fDonnell focuses on a comersation bet\\een \1r llm,ard. the Respondent's then airport manager at Cairns, and the Applicant which is alleged to ha1c occurred in April 1994. The Applicant sa:,s Mr I lcrnard told her (a) that she ,vas transferred to resen ations. and (b) that she would not be employed within the An sett Terminal at the airport because Ansett Australia did not pennit persons under the age oft,1cnty-one to \\ork ,1ithin the terminal. As to (a). Mr Peters telb me. and I accept. that he does not know whether the statement was made. but that it is incorrect. I le tells me. and l accept. that the Applicant was transferred to the reservations section to CO\ er a temporary absence and to postpone her then imminent dismissal. As to (b) Mr Peters admits that at some point Mr Iloward led the Arplicant to believe that it was because of Ansctt ;\ustralia·s policies and her age that she ,,ould (i) not be .:mployed within the Ansett Terminal and (ii) \1ould be dismissed from her employment. Mr Peters. \\ho doubts that Ansell Australia has any such policy. tells me also, and I bclie\e him. that he took the decision to dismiss the Applicant and that he did not do so because (i) she was under l\\enty-one. or (ii) too )Oung to work in the Ansett Tern1inal. That docs not conclude the matter The noun .. discrimination·· at s. 291(2)(bJ(i1) must. I think. be given the meaning ,1hich it has in the .-lnti-/)iscriminario11 Act 1991. B:, s.9 of that Act .. d1scriminallon .. includes both .. direct discrimination .. and ••indirect discrimination·· Section l I (I) defines indirect discrimination as follows: 11(1) [Imposition of Term[ Indirect discrimination on the basis of an attribute happens if a person imposes. or proposes to impose. a tcnn - (a) ,1ith \\hich a person ,1ith an attribute docs not or is not able to compl): and (b) \\ith which a higher proportion of people ,1ithout the attribute comp!::, or arc able to comply: and (c) that is not reasonable. By s. 11 (-+) .. tcnn .. includes .. condition. requirement or practice \\hcthcr ,1ritte11 or 1101.·· Sub-section (]) declares it not to be necessary that the person imposing. or proposing to impose. the term is a\\ arc of the indirect discrimination. \1r l'etcrs tells me that he decided to dismiss the Applicant ··on the basis of th.: least experience and the last person emplo, ed .. _ Mr Peters in no \\ay mistakes competence and experience. and made no attempt to enquire or the Applicant" s immediate superiors about the: comparati\ e competence and productiVJty of tlwsc in the traffic section. I le did not do so because he belie, eel that m selecting employees for termination where not all were redundant. the Respondent ,,as required to select the most recent appointee I le told me·· ___ as far as the redundancy was concerned ,,c were lied in ,1 ith last on first off. and the least experienced_ .. 28 October, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 931 The .. test" which Mr Peters applied or. to rephrase the matter, the .. practice" which Mr Peters followed has an inherent tendency to cause the selection of younger rather than older employees. Given the mistaken basis on which the .. test"" or .. practice" was adopted, viz. that its adoption ,,as required. its --reasonableness" is not in issue. The conclusion that the Respondent. by its authorised agent Mr Peters. did discriminate against the Applicant on the basrs of her age is inescapable. It follows that the dismissal was for a reason which was not 1alid. Further. it seems to me that s. 291(2)(a). on the facts of this case. saps the validity from any reason for the dismissal which might be advanced. In my view s. 291(2)(a) is not to be read as limiting to the employee's conduct. capacity or performance and the operational requirements of the employers business, the factors to which regard may be had in determining if the dismissal i_;; harsh. unjust or unreasonable. The purpose of the particle in the words .. the dismissal .. is in Ill) opinion to ensure that the dismissal is e, aluatcd and assessed in all the attendant circumstances. The lnduslrial /?elations Reform Act I 994 is a remedial measure intended, inter alia. to give effect to II.O Convention 158 by ensuring that Queensland's legislation relating to dismissals meets the standards set by that Com cntion. It would be passing strange if the Act. in fact. diminished the protection available to employees under the la,,_ In the fonn which it took prior to the passing of the Industrial Rclarions Reform Act 199-1. the lndusrrial Relations Act I 990 made remedies a, ailable to an employee who was dismissed without speci f) ing the criteria controlling their grant. In fact. the inquiry \\hich was made ,1as whether the dismissal ,,as harsh. unconscionable or unfair. In David Jones (Australia) Ply Limited-\'- Barbara Ann Mason (199]) 144 ()CilC 278. at 378 MacKenzie P Sclld: --in dctcnnining under section 11.37 (now s. 174) and section 11.38 (now s. 175) \\hethcr relief should be givcn. the issue is whether there arc circumstances demonstrating that the employer has abused the right to dismiss or whether the dismissal was harsh. unconscionable. unfair or some like expression. in all of the circumstances ... In e, aluating a dismissal the Commission did not confine itself to the employee· s conduct. capacit:, or pcrfomiance and the operat1onal requirements of the employcr·s undertaking. establishment or service. \Vithout seeking to truncate the discretion then exercised. the width of which the Commission ,1as always concerned not to limit. the obscn ations of Sheppard and I Icerey in Bostik (Australia) Pty Ltd -v- (iorgeveski (:\o. I)(] 992) 36 FCR :w - though directed to an ,mard clause.1prohibiting .. harsh. un_1ust or unreasonable •• dismissals - seem to me accurate!:, to describe the approach then taken. At p 28 Their I Ionours said: .. These are ordinary non-technical words \\ hich arc intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. \Ve agree with the learned trail judge's view that a court must decide whether the decision of the employer to dismiss ,,as. viewed ob_iectivel). harsh. unjust or unreasonable. Relevant to this arc the circumstances ,1hich led to the decision to dismiss and also the effect of that decision on the employer. An) harsh effect on the individual employee is clearly relevant. but of course not conclusive. Other matters h,n e to be considered such as the gravit::, of the emplo) cc 's misconduct.·· In my opinion the Industrial Relarions Refimn Act /99./ docs not manifest an intention that a narro,1er vie,, should now be taken. I note that the Minister·s Second Reading Speech. to ,,h1ch I am entitled to have regard. Acts !nrerpretation Ac! /95./. s. 14.l3(l)(c) and (3)(!} asserts of what is now Part 12. Division 5, Subdivisions I to 3 of the Act. "These are similar to current provisions of the Industrial Relations Act with two changes - the cap on compensation is removed and the onus has been placed on the employer. .. In my opinions. 291(2) is to be read as ensuring: that the employees conduct. capacity or perfonnance and the operational requirements of the employers undertaking, establishment or service are always taken into account, but not read as requiring that nothing else be taken into account. In the circumstances of this case I consider the dismissal of the Applicant to have been unjust I rely on the following factors - One The matters set forth above and leading to the conclusion that the Applicant was discriminated against on the grounds of her age. rwo The Respondent"s omission to give the Applicant any or any adequate warning of her impending dismissal. The Applicant. it will be recollected. \\as engaged in circumstances in which the Respondent knc1, that her position would disappear but. by its agent Mr Peters, believed that natural attrition would create an alternate 1acancy The Respondent did not enquire whether the Applicant. ,1ho was giving up another position. wished to shoulder that risk. Neither did the Respondent enquire whether an altcmati\ e position would be sati,factory to the Applicant. Further. though I have not been told when the agreement with Ansell Australia was finally struck. it emerges from the evidence that the first (postponed) relocation date was l January I 994. At some time between l November 1993 and I Januar) 1994 the Respondent must have become aware that the positions rn the traffic section ,, ere about to disappear. I quite fail to understand why the Applicant was not told. lt is a matter of some moment. The Applicant is a resourceful young: ,,oman.. When dismissed. she tramped the streets of Cairns and found alternate employment within six weeks. If given the opportunity. she ma:, well have found alternate employment before 27 May. I 994. In fact. e,cn in April 1994 (because I accept the evidence of her comersation with \1r llcrnard) she ,1 as being led lo believe that she was being transferred to Reservations to meet the difficulty arising from the relocation. She ,1 as not told. as in my \ ie\\ she should take been. that it was a temporar) transfer designed to postpone her dismissal. Three The Respondent" s conduct rn cng:agmg the Applicant as a Trainee Traffic Officer. kncm ing that training takes t,10 to three ) ears and having no reasonable grounds for belic\ing that the traffic section would continue to exist long enough to enable to training to be completed though the matter has not been argued. I have Iittle doubt that the Respondent contravened s 53 of the Trade Practices Act 19~ -1 and s. 41 of the Fair Trading Acr I 989. I also consider that in fleshing: out the terms ··unjust .. and --unreasonable .. at s. 291(2)(a). this Commission should ha\ c regard to the kg:islativc policy displayed b) those statutes. -- 1 of 2 -- 932 QUEENS LAND G OVE RJ\!M r,NT INDUS TR IAL GAZET TE 128 October, 1994 111 1s no, a nrnner of co n fusin!:( unju st cng<1gc111cn1 and unjust Jbmissal. T he mi sconduct occurred in \. ,l ,.:mber 1993. h cau,ed mju~llel! se,en month, later when the d1smi,,JI took pla..:c . J I ~\Ur I he unsymp,uhctic "a) in which the Applicant wa, infom1ed of her d1 stn1''>ltl. It " u nnecc ,,al) to dcscribe lh b ,om e"lial unedil) ing incident. It is ~u rticient lo reco rd that 111 cro~~-c,aminatit111 Mr l' ctcr. said. ··1 do concede that the dismb,al ,,as a httlc blum:· I~ ·1he Rcspondcnt •s 01111',inn to tJ l-c account or ,c~llun 2.5 ol the rclc,.im A\\df<l. , i~ Cini.~ and S"itchboa rc.l Attcndanb · Award State . Rei.:, anti~ sect ion 2.5 rc4uires th:il prcfcn.: ncc <>I° conlinuati\\11 m emplo ~mcm 1s. oth cr thing.~ bcing cquJI. to be g 1,cn 10 Jin,111~ 1al mcm hcr.. of t he I c<lerntcd Cl<! rk,· l1 1110n or 1\u stralia. No1th QLi.·enslancl ll r:rnch . I ' 111011 of Emrlo~ces. ·1he Applicant ,,as a financ ial member. ~1,111e pcr,,om who "ere not financial 1m:mbcrs rct,11ncd the cmplo ) men!. on. T hts 1, a prop.:r case in "h 1ch to mt1 l.e an orJer requmng th <! former em ployer to pay co t he fomier c mr loyee such sum o l monC} as " ill. a, far as money can. put the cmp lo) ec in the ~a me posi 1i on as 1f lhe d ismissal h ad not occurred . I , Cl) much regret that I can not ) et undcrtnkc thut ta,k For rea<ons " hich are not pn:scntl) n1<1te rial. submission~ in this ca:.e clo,cd long .iftcr the trial On the hearing o f su bm i>'ion, Mr O'Donnell . who '1 ppcarcd for the Aprhcant. infonnl!d the Commiss ion and the Re sronden l that the Appl ica nt no\, held a position other than that "h 1ch ~he held al the time of the trial Mr o· Donnell kne" hulc of the engagement and. in an) c, cnt. the Respond ent clearl) has an interest in cross-e xami11i11 g the Appl icant abou t the mailer I propo~c to allow the RCSJ"lndcn t 10 reca ll the Applicant for tha t rurpose. (.'1,nsidera11on, of co,t and con1 cn1encc la~our a trial h) t.: lephom c com mum c.iuon. M ) As,ociale will co ntac l lhc parties ln arra nge u tim e and a date . Dated 1h1, tenth d,t) of October. 1994 D.R. IIAI L. Chief lndu<trial ( omm iss1oncr 1lppearw1ces Mr Peters Jllcmpted tu a:,sert. in 1.:liancc on the ··other thmg, being cqual .. qu3hlication. that ir \ I.J. O' D,lnnell o t I ederatcd Cieri-.)· l nion of 1\ustrah,1. \lorth sect ion 2.5 had heen lal.cn into account the 1>utcomc ()ucen s lan<l Dranch. lJ nion of Lrnplo) cc, for th e Applicant. wou ld ha, e been the S i.llllC . Cro,,-cxaminalion o f :'\l r Peters demonstrated that the o utcome \\Ould ha, c bccn the ,ame h ccausc th ..: c1rcum,1:tnce th at the /\ppllcant was the lasl c1nploycc c111,agcd 111c, itahl) 111edlll that "oth er 1hi11g\ \\Cre not equal ... I he quc~11on of cou~c 1s \\het hcr the outcome 1\1 \ Ulcl ha, c hccn th e ~mne if. properly con~trued . ,ec ti on 2 .5 \\a, lakcn i11 10 accou 111. Ntl on..: kn ows because that ha~ 1101 been Jone. ~h No accm111 l \\ha t.:,·cr has b..:c 11 taken <• I this Cummiss1<l11·, Statement of Po l ic~ o n Tc m 1in atio11 ol I mplo)ment. lntr<"llluction u l Change, and Kcd unc.la n c) ( 1987) 125 QGI<, 11 19. , 1111 cnded I 19 R7) 125 <)GIG 1377 and ( 198 7) 126 Q(i l l, 188. n<>t" 1thslilnd111g that -.ccllon 2 2 of tht: Cieri.!> anc.l ~" 1l chh<Jar<l Attend,1111 ·, A" ar<l - :-ital.: require, nh~er, a nee of 1bc S 1a11: n1e n1. If lhc Swt..:mcnt had hccn oh,cr, ..:d the App licant m a} we ll ha, c found .iltemall\c emplo~mcnt Jnd hJ1c Ix-en sp,m.:d the Ull!!Uish ot uncrnpl o) men\ I"-lote It lu"' not hc.:n argm:J. and I ha, e Lhc:rch1 rc no! considered \\hcthcr the non-<>b,cn anc~ of the Clerl.s and S\\itchboard 1\ll endun1~· /\ w,1rd - State renders che /\ppl ic,rnt~' dism i~~a l incffec ti, c Th e a, suc is. of cour~e. not di,"11mlar 10 the one upon \\Inch the Full court of the l·cd.:ral Co urt "a s ,phl in B)mc -v- Au ,trnlian Airlines Ltd ( 1')93) 120 ALR 27 11 . The C'o mm issio11 shnuld nnt see k to rc"oh e 11 "ithout lh .: benefit o l argumen t I The conclu, 10 11 that the dis mi ss al \\' .I s unju, t. ll'hich cnnclus1un must I consi der ll o" from th e cumula ti, e ..:fli: cl or factors O ne lO 'iix. requires tha t I lind thJt th.: rea,011 for the dismbsal "~ not 1 a li d. In the prembc s I must declare that the di~m1ssal contra, eneJ 1J ivis ini1 5 of Pon 12 o l' the lndusrrml Re/M irms tier I 99./ . and co nsider "hat order,; I ma) appropriate!) ma ke to rut 1he Applicant 111 the ,Jmc: pos111un as if she had not hccn d1sm,~,cd. Rci n~ tate mcnt 1s nol u pract icable rcmed) . The App lican t· ~ pre, i(1U$ posi ci on doc5 not c\lst The redistribution of st.iff fr(lm the pr,:, 1ou~ tr.iftic sec11on ha~ lvng ,m.:e oc:c:um;d On the c11dencc :11 least ,ni ne nf 1h cm may in an~ cvenl hcco 111 c n.:dundanl a!- timc goc~ DJ . C,11 anagh o l I II mg.stone< A ustralia for the Rc )pondcn t. Operative Dale: N/ i\ 1)1;cision tcnn in:umn declared ll• contravene Act Rc lea~ed: 17 Octo ber 1994 ###########1#######/#tll#########ll#####il######ll######NN### 28 October. 199 4] QUEENSLA1 D GOVERNME fT INDUST RI AL GAZETTI : 933 -- 2 of 2 --