BUSM4506 Employment Law: Detailed Analysis of Qantas Worker Dismissal

This report provides a detailed legal analysis of the Benjamin Gigney v Qantas Airways Limited case, focusing on employment law principles. The case involves a Qantas baggage handler who was dismissed for workplace misconduct, including physical assault, verbal abuse, and racial discrimination. The report examines the legal arguments presented, including claims of unfair dismissal, and the application of relevant legislation such as the Fair Work Act 2009, the Racial Discrimination Act 1975, and the Occupational Health and Safety Act 2004 (Vic). The analysis covers issues like workplace bullying, adverse action, and the role of the Fair Work Commission in determining the fairness of the dismissal. The report highlights key findings of the Fair Work Commission, including the justification for the dismissal based on the severity of the misconduct and the violation of workplace policies. Furthermore, it references relevant case law, such as Barclay v Board of Bendigo Regional Institute of TAFE and Selvachandran v Peteron Plastics Pty Ltd, to support the legal arguments and conclusions.

Running head: EMPLOYMENT LAW
Employment Law
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAW
Workplace Misconduct
Paragraph 1 of the report of the case Benjamin Gigney v Qantas Airways Limited
T/A Qantas (U2017/10096) clearly shows an instance of workplace misconduct where the
baggage handler assaulted his colleague by tearing his shirt, shoving him against a locker and
the verbally abusing him. Such a conduct can be termed as ‘bullying’ under the Occupational
Health and Safety Act 2004 (Vic) which states that workplace bullying refers to the breach of
the provisions of the Act in case it develops a health and safety risk. The victim in such case
needs to prove that there has been a negligence from the employer’s end who has failed to
take reasonable steps to prevent the risk. In addition, the Crimes Amendments (Bullying) Act
2011 (Vic) prohibits people from making threats, saying abusive words, causing physical
harm, instigating someone to cause self-harm in a workplace. Similarly, The Fair Works Act
2009 (Cth) includes workplace bullying as an offence too.
In addition, it could also be seen that the baggage handler have also uttered direct
discriminating statements against the victim which is completely not permissible in a
workplace as per the Australian Human Rights Commission (AHRC), following the
provisions of the federal legislations like Racial Discrimination Act 1975 and the Fair Works
Act 2009.
Employee Dismissal
In paragraph 2, it could be seen that Qantas Airways Ltd, the employer have
dismissed the baggage handler on the grounds of multiple allegations pertaining to
misconduct towards an airline service operator. Here, the dismissal would not be considered
to be ‘Unfair’ or unreasonable under the Fair Works Act 2009 as the employer have taken the
steps against him for his prolonged misconduct against the baggage handler, and that too with
justifiable reasons, something that happened after a decade of unblemished service.

2EMPLOYMENT LAW
Report of Complaint of Workplace Bullying along with Physical abuse
In Paragraph 3 and 5 of this case, it could be seen that the victim had reported the
discrimination and violence faced from the baggage handler for giving a non-verbal response.
Crimes Amendments (Bullying) Act 2011 (Vic) prohibits people from making threats, saying
abusive words, causing physical harm, instigating someone to cause self-harm in a
workplace. Similarly, The Fair Works Act 2009 (Cth) includes workplace bullying as an
offence too. The employer should be correct in taking actions against such bully and abuser
and not would not be held as unfair.
Apart from this particular complaint, there are several other past allegations that was
brought against the baggage handler. He was accused of uttering abusive language used
against the operator, for obstructing the passage of the operator by grabbing his shirt, for
applying physical force upon the victim, for restraining the victims head and neck by locking
it with the arms, for racially discriminating the victim, for shoving an object towards the
victim so that he gets hurt physically, for Pushing the victim and holding him against a
locker, for disrespectful and threating behaviour that intimidates the victim and several others
at workplace.
Racial discrimination
Paragraph 4 of the Benjamin Gigney v Qantas Airways Limited T/A Qantas
(U2017/10096) case gives a picture of racial discrimination which is an offence in itself.
Comments like ‘un-Australian’ could not get sick and they should ‘f*** off’ to their country
states a Direct racial discrimination in workplace, which is an offence as held by the

3EMPLOYMENT LAW
Australian Human Rights Commission (AHRC), following the provisions of the federal
legislations like Racial Discrimination Act 1975 and the Fair Works Act 2009.
False Statement, apology and defence for misconduct not accepted
In Paragraph 6, 7, 8 and 9 an apology from the bully and abuser would not
constitute to be an excuse to retain his position in the company when he states that his action
was mere sarcasm for an ‘unplussed’ reaction and reply of his colleague. The company
should see that the baggage handler had committed actions like shoving and hitting people
along with abusing them and racially discrimination such person in clear consciousness and
therefore shall be made liable for his conduct. The Fair Work Act 2009 clearly holds such act
as an offence and therefore he should be penalized for them.
The baggage handler’s allegation to the company for termination him after a thorough
investigation could not be questioned as it had followed all the lawful steps before dismissing
the employee as per the Fair Works Act 2009 and the guideline laid down by the Fair Work
Commission for dismissing an employee for misconduct. It could be held as a proper excuse
that the baggage handler did not know that he was racially discriminating the operator for he
knew the Darwin’s International Terminal had the tradition of testing the strength of its
employees by squeezing their hands and name calling. The baggage handler’s defence of
such tradition of Darwin’s International Terminal and that his actions were in a friendly
gesture was false and did not constitute a defence.
In Barclay v Board of Bendigo Regional Institute of TAFE [2010] HCA 32, it was
held that defence and false statement of an employee towards his employer for dismissing
him unfairly was entertained by the Federal Court after it was dismissed by the High Court.
Statement by the Fair Work Commission (FWC)

4EMPLOYMENT LAW
When the baggage handler applied before the FWC stating that he was dismissed
unfairly, the Commission made a thorough inquiry on it. Paragraph 10 to 14 holds that
Michelle Bissett, the commissioner of the Fair Work Commission was of the opinion that the
head-butting allegation was not a valid reason for dismissing the baggage handler for it was
not substantial. However the Commissioner held that the other incidents at the locker room,
and the incidents involving the harassment about sick leave and ‘coin spinning’ to be of
serious nature and could not be ignored.. The Commissioner also held that the conduct of the
baggage handler could not be justified by stating the incidents were an ‘all-out-brawl’ and
even if it was, it could not diminish the gravity of the situation that has arisen where his
conduct should be held as a ‘fundamental breach’ of the employee behavioural standards
violating the policies that he was made aware in the baggage handling training. The incidents
could not be held as trivial matters or something in light sense, for an incident of racial
discrimination and physical abuse should be seen as grave and ‘extremely serious’ which
could only lead to a serious sanction
Final Decision by the Fair Work Commission
Paragraph 15 and 16 lays down the final discussion of the fair Work Commission
dismissing the unfair dismissal action of the baggage handler by stating that the actions of the
plaintiff was not an acceptable behaviour in the workplace. Section 378 of the Fair Work Act
(FWA) was cited for laying down the criteria to consider the degree of harshness committed
by the plaintiff; he had committed physical violence to the victim, discriminated racially,
verbal abused were thrown at the victim along with workplace harassment ad bullying. All of
the above-stated criteria constitute harshness and misconduct on the part of the plaintiff.
The Commission then held the provision for justifying the ground of dismissal under
Section 387(a) of the FWA for misconduct, harassment and racial discrimination and cited

5EMPLOYMENT LAW
the case Raj Bista v Glad Group Pty Ltd [2016] FWC 3009 for laying down the reasonable
grounds for dismissing an employee. In Selvachandran v Peteron Plastics Pty Ltd [1995]
IRCA 333 it was held that a minor or trivial misdemeanour of an employee could also
constitute a sufficient reason for dismissal for the severe consequence it gives effect to, and a
dismissal for such trivial matter would still be held to be a valid reason for dismissal. The
justification for such an action of the Court could be found in the Workplace Relations Act
1996.
The Commission listed down the misconduct of the baggage handler and included
that:
a) Abusive language used against the operator;
b) Obstructing the passage of the operator by grabbing his shirt;
c) Applying physical force upon the victim;
d) Restraining the victims head and neck by locking it with the arms;
e) Racially discriminating the victim;
f) Shoving an object towards the victim so that he gets hurt physically;
g) Pushing the victim and holding him against a locker;
h) Disrespectful and threating behaviour that intimidates the victim at workplace.
All of these actions of misconduct breaches the Conduct Policy of the Fair Work
Commission; Clause 3.2 for failing to take responsibility for misconduct, Clause 4.1 for not
treating the victim with respect; Clause 15 for threatening, verbally abusing and intimidating
the victim and Clause 15.9 for damaging the property of his employer, Qantas Airways Ltd.
The Commission defended the decision of dismissal taken by Qantas Airways Ltd by
saying that the company had complied with all the necessary procedure of investigation
before dismissing the baggage handler. As per Section 387(b) of the FWA the company had
given opportunity to the plaintiff by show causing him for his actions which could justify his

6EMPLOYMENT LAW
misconduct towards the operator. The reasons stated by him did not prove to be a good
excuse not to dismiss him, for all the allegations against him were proved to be correct and
justified. The dismissal of the employee was not made on the basis of unsatisfactory
performance which is also a ground of dismissal under Section 387(e) of the FWA. It was put
forwarded that such incident of gross misconduct by an employee of Qantas Airways Ltd
blemishes the unblemished record of the company and therefore, harms its goodwill.
Citing the case of Byrne and Frew v Australian Airlines Limited [1995] HCA 24, the
Commission held that the termination of the plaintiff may be harsh but it cannot be held as
unjust or unreasonable or vice versa. It was certainly reasonable and just for the plaintiff
could not establish his grounds of unfair dismissal by his employer as he was guilty of racial
discrimination, applying physical force, workplace bullying and several other misconducts
already discussed. The Commission in its final words showed sympathy towards the plaintiff
for he lost his job but it also held that the misconduct of the plaintiff had left them with no
other option but to dismiss his application. It was finally held that the dismissal of the
plaintiff by Qantas Airways Ltd was just, and and reasonable.

7EMPLOYMENT LAW
References
Australian Human Rights Commission
Barclay v Board of Bendigo Regional Institute of TAFE [2010] HCA 32
Benjamin Gigney v Qantas Airways Limited T/A Qantas (U2017/10096)
Byrne and Frew v Australian Airlines Limited [1995] HCA 24
Conduct Policy under Fair Work Commission
Crimes Amendments (Bullying) Act 2011 (Vic)
Fair Works Act 2009 (Cth)
Occupational Health and Safety Act 2004 (Vic)
Racial Discrimination Act 1975
Raj Bista v Glad Group Pty Ltd [2016] FWC 3009
Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333
Workplace Relations Act 1996