Case Study 3:  John Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020] FWC 6721

Introduction

From Deputy President Mansini, the following case was used as a warning for future employers to consider what allegations they bring forward. Especially in an attempt to bully or bombard their employees with a myriad of allegations as a scare tactic or threatening tool. Commonly seen from employers who try to validate their reason for dismissing an employee by accumulating every single mistake, wrong email, or late start, regardless of their context or how much time has passed. The Fair Work Commission (FWC) typically does not look kindly on vindictive employers.

Facts

Mr John Lupson had worked for Australian Pacific Airports (Melbourne) Pty Ltd (the ‘Airport’) for approximately 8 years. From 23 January 2020 until 12 March 2020, Mr Lupson had been undergoing a workplace investigation regarding 12 allegations. The allegations span from May 2019 until the beginning of the investigation. While the Airport had argued that they brought forward the allegations genuinely and in accordance with their investigations policy.  Mr Lupson argued that the allegations were brought forward due to his role as a union delegate and the reports he made to WorkSafe under the Speak Up Policy. Coincidently Mr Lupson had actually made a complaint to WorkSafe under his wife’s name 9 days before being stood down.

When Mr Lupson was terminated the Airport had found that 6 allegations were substantiated which included:

1. Sending inappropriate and unprofessional emails.
2. Assessed and attended building 219 after completing all the work he needed to do. .
3. Sending an email with profanity.
4. Engaged with inappropriate workplace behaviour as he told a co-worker his ASIC expired.
5. Storing inappropriate content on work email accounts.
6. Engaged with inappropriate behaviour at a funeral service.

After his termination Mr Lupson filed an Unfair Dismissal claim (F2 Form) arguing that the Airport had no valid reason for his dismissal and it was done to retaliate against his role as a union delegate.

Considerations

Deputy President Mansini had considered each and every substantiated allegation in order to address whether the dismissal was harsh, unfair, or unreasonable. There was less dispute against the Airport following their workplace investigation procedure, but the quality and nature of the allegations brought forward.

Outcome

While considering the necessary criteria of s 387(a)-(g) in the Fair Work Act 2009 (Cth), it was found that Mr Lupson did commit a serious breach of the conditions of his employment that would constitute a valid reason for his dismissal. Furthermore, the Airport had satisfactorily completed their investigation obligations. Respectfully, Mr Lupson was notified and given a genuine opportunity to respond to the allegations, there was no unreasonable refusal of a support worker, he was not dismissed for unsatisfactory performance, and the size of the enterprise did not affect his dismissal.

There was no evidence to support that the allegations brought forward were in any way relevant to Mr Lupson’s union delegation role or his reports to SafeWork.

The largest caveat was Deputy President Mansini considering other relevant matters. This is where Mr Lupson’s length of service, specialised skill, and future career prospects, were considered. Furthermore, the Airport’s lack of evidence to support a selection of allegations. Especially those older and less relevant. Deputy President Mansini was quick and harsh to criticise the Airport’s process as it technically satisfied all criteria’s but was “problematic in an important respect”. Overall, it was found harsh, unjust, or unreasonable that the Airport had ‘framed’ 12 allegations in order to have a ‘kitchen sink’ approach to trying to justify their investigation and dismissal. Rather than focusing on substantive and relevant issues the Airport brought forward all issues without regarding their integrity or considering Mr Lupson’s tenure and skills. Due to the process of accumulating any reason to dismiss Mr Lupson, it was decided that his dismissal was harsh, unjust, or unreasonable, and therefore constitutes an unfair dismissal.

Remedy

Considering Mr Lupson’s financial losses, as it was speculated, he would have stayed in his role for a number of years. Additionally, considering his long service, and special skill set. Mr Lupson was awarded 5 weeks’ worth of wages, which equalled $9,316.30. Deputy president Mansini also acknowledged the fact that there were some substantiated allegations that constituted a valid dismissal. Therefore, $931.63 was deducted from the settlement sum so make a final sum of $8,384.67.

Discussion

This type of case may be confusing as the employee had been proven to have breached his employment policies and therefore it would be assumed he would be punished. However, the employer is responsible for their employees and the onus is on them to fix issues and comply completely with the procedure of workplace investigations. There is no leniency for employers who take advantage of workplace policies and procedures to be vindictive with their power to terminate employment. Especially considering the employer typically holds greater power and influence in an employee-employer relationship.

Therefore, employers must be aware that due to an employee conducting themselves poorly, or committing a serious misconduct, does not mean they do not have to comply with all procedural requirements. And the FWC Presidents and Deputy presidents have enough experience to see when an employer is abusing their power and intimidating their employee by accusing them of allegations in a poor attempt to remove the employee from the workplace.