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Sacked: hospitality worker goes off the rails

A hospitality attendant on a cross-country train service has lost his claim of unfair dismissal.
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Sacked: hospitality worker goes off the rails

Sacked: hospitality worker goes off the rails

21 August 2019

A hospitality attendant on a cross-country train service has lost his claim of unfair dismissal. He claimed he was bullied when he wanted to leave the train mid-trip after overhearing a false complaint of misconduct by a customer, becoming ill, and receiving news his baby daughter at home was also ill.

The Fair Work Commission held that his actions of leaving the train against the employer’s orders and abusing managerial and HR staff amounted to serious misconduct that justified his dismissal.

Facts of case


NW was employed on the Ghan train travelling between Adelaide and Darwin. During the return leg of the journey (towards Adelaide), a passenger told him that another passenger (who was inebriated at the time) had claimed that he (NW) had made a sexual comment directed at the inebriated passenger’s wife.

NW reported it to the train manager and requested that the matter be investigated in order to clear his name. The train manager declined to do so, claiming that the passenger was drunk, did not intend pursuing the matter further, and it was a “non-issue”. He directed NW to resume his normal duties. 
 
However, NW was stressed by the incident, unable to sleep that night and felt unwell next morning. He received permission to rest in his cabin and not work his shift that day. He claimed that he then arranged to swap shifts with another employee to take passengers on a hike when the train stopped at Alice Springs, but the train manager overruled that arrangement and directed him to work his own shift.

At Alice Springs, he still felt stressed about the above incidents and demanded to speak to his employer’s HR manager in Adelaide. He told her that he felt bullied and victimised, wanted to return to Adelaide at the employer’s expense and would not re-board the train. He also spoke to his partner, who told him their baby daughter was unwell. This made him more anxious, and he sent some acrimonious text messages to the HR manager. There was also an acrimonious phone call.

The HR manager replied that the employer would not pay for a flight home and wanted him to complete the train trip. The employer’s policy was that it would only pay for flights home in situations of life-threatening emergency.

NW continued to refuse to reboard the train and it eventually departed late and without him. Had he reboarded the train, he would have returned to Adelaide the next day. 
 
After it departed, “negotiations” to return to Adelaide continued with NW in an agitated state.

Eventually, the HR manager booked him overnight accommodation in Alice Springs, but when he went to it he believed it was unsuitable and complained about it to the general manager, guest experience (Ms F) in an abusive and threatening manner.  He booked another hotel at his own cost.

Concerned about his mental state, the HR manager asked his next of kin (brother) and other employees at Alice Springs to contact him, which he objected to. Further abusive and threatening text messages followed, and it was at this point the employer became aware that NW’s daughter had now been taken to hospital. 
 
NW flew back to Adelaide the following day. He went to the rail terminal to return his train key and was met by the HR manager (unarranged).

NW alleged that she dismissed him at that point. However, the HR manager told him that he was stood down pending an investigation and tried to organise a meeting to discuss the matter, including possible disciplinary action. NW did not attend the meeting.  As a result, the employer then decided to terminate his employment, having investigated the matter while he was returning from Alice Springs and concluding that he had committed serious misconduct. It sent a termination letter dated 10 days after his return to Adelaide.
 
The parties gave differing accounts of the conversation in which NW claimed he was dismissed and the HR manager and Ms F claimed they had asked to set up a meeting with him. They claimed that they would not have concluded their investigation until after that meeting, but NW refused to attend it. They had asked NW to contact them when he returned to Adelaide, and had not expected to meet him in person at the terminal.

The FWC found that the evidence favoured the employer’s version of what happened. If NW had already been dismissed, organising a subsequent meeting would be redundant. Given NW’s agitated state of mind at the time, it was likely that he was expecting to be dismissed and interpreted the conversation from that perspective.
 
The FWC therefore concluded that he was dismissed by letter 10 days later. The reasons for dismissing him were breaches of employer policies and procedures as follows:
  • refusing to reboard the train as directed
  • refusing to work a rostered shift as directed
  • communicating with other staff in an abusive and threatening manner
  • putting the employer’s reputation and image at risk.

Decision


The FWC found as follows:
  • The directive to reboard the train was lawful and reasonable. When demanding that the employer pay for a flight home, NW had not provided evidence of a genuine life-threatening emergency. Nor had he told the HR manager and Ms F about his daughter’s illness at that time.
  • NW’s reaction to his grievances (the passenger’s alleged complaint that the employer had already decided was spurious, feeling unwell and being overruled re the hiking excursion) was disproportionate to their actual importance.
  • The employer took reasonable steps to help NW once he was stranded in Alice Springs (accommodation, contacting people to check on his welfare). 
  • Refusing to reboard the train amounted to serious misconduct in the circumstances.
  • Refusing to work the rostered shift was not serious misconduct, given that the employer would have relieved him from working it if he had reboarded the train. 
  • The allegations of offensive and threatening language towards two managers were made out. The recipients had felt shaken up and unsafe by the texts and conversations. They amounted to erratic behaviour over a prolonged period because NW was not getting his way, and were unprovoked. This amounted to serious misconduct.
  • The threats to contact the media if he did not get his way also amounted to misconduct. The employer was justified in fearing that its reputation and image could be placed at risk. The situation was very different from one of whistleblowing.
  • The employer provided him with procedural fairness. It was his own choice not to attend the meeting the employer tried to arrange.
  • The mitigating circumstances (daughter’s illness, feeling unwell, overruled about swapping shifts, problems with Alice Springs accommodation) were insufficient to offset his serious misconduct.

The FWC added that if his reason for leaving the train had been hospitalisation of his daughter, and he had notified his employer at the time, he would have had a valid reason for requesting a flight home, the employer could not have justified taking action against him, and if it had refused the request, his anger (but not the abuse) may have been justified. However, the daughter did not go to hospital until later, so a “family emergency” did not exist at the time.
 
The FWC criticised the employer for not putting its “flight home” policy in writing and for taking too long to clarify the misunderstanding that occurred when NW went to the Adelaide train terminal.

However, it found on balance that his dismissal was not harsh and rejected his claim.

The bottom line: Refusal to follow an employer’s lawful and reasonable work directive can provide a valid reason for dismissal. In this case, the employee significantly weakened his position with abusive and threatening conduct towards two managers. These actions overrode his mitigating circumstances.

Read the judgment

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