Refusing To Offer Future Shifts To An Intermittent Employee, Can It Be Considered Unfair Dismissal In Western Australia?

The FWC ruled that the dismissal of an intermittent Border Force employee was not related to unsatisfactory performance but was related to his inappropriate behaviour. He was not given warning that if further complaints were made of him engaging in disrespectful and inappropriate behaviour when dealing with passengers, his employment was to be terminated. Without this warning, his dismissal was unfair.

The Border Force employee had been working at the airport since 2006. He was a non-ongoing Border Force employee who had been engaged to perform irregular or intermittent at the Perth Airport. His duties included processing aviation passengers, Tourist Refund Scheme claims, and assisting departures.

In January 2015, a woman who held her passport in her mouth approached the Border Force employee. The Border Force employee then wiped the woman’s passport on the sleeve of her dress.  In July 2015, a passenger complained of the Border Force employee’s rude and unprofessional behaviour: He rolled his eyes, sighed and did not look at the passenger but also interrupted her when she was speaking. The passenger turned out to be the airport superintendent.

In November 2015, he made disparaging remarks about an airline and advised a passenger to take a bottle of Valium if she was going to fly on that airline. In August 2016, he made a comment that the passenger who was processing a refund claim had probably asked for a refund many times.

After each incident, and each complaint, the Border Force employee was made to explain his conduct and he was reminded to behave professionally.  In September 2016, the airport superintendent herself wrote to the Border Force employee informing him that his pattern of rude behaviour has caused the Border Force to lose trust and confidence in him and is considering ceasing to offer him work shifts. He was given seven days to respond to the letter and to show why the Border Force should not cease to offer him shifts. The superintendent then wrote that she would no longer take part in the investigation to give him procedural fairness. The decision of whether to offer him further shifts in the future was given to another officer.

The officer decided that he had no confidence that the Border Force employee would not engage in disrespectful and discourteous behaviour toward passengers if he was offered future shifts. He also declared that as he could not terminate the Border Force employee as he was an irregular and intermittent employee and had no continuing employment relationship with the Department, he decided to no longer offer the intermittent employee future shifts.

The Border Force employee had a long employment history with the Border Force. He was a single parent and loss of this employment would cause hardship on his children. He lodged an unfair dismissal claim and asked to be reinstated to his former position and compensated.

The FWC found that the four complaints made against him comprised valid reasons for his dismissal from employment. He was given an opportunity to explain and to respond to the complaints made against him. But without a warning that further complaints of disrespectful behaviour, his dismissal was unfair.

However, the FWC refused to reinstate him to his former position as he had never demonstrated any remorse for his disrespectful and inappropriate behaviour towards passengers. He even aggressively criticised the passengers who complaint against him. He refused to return properties of the employer. He was awarded $4, 574.04 for six weeks’ compensation.

Gibbens v. The Commonwealth of Australia (Department of Home Affairs) [2018] FWC 4150 (16 July 2018)

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