David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia... [2019] FWC 4464 | Case summary

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[2019] FWC 4464

David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia... [2019] FWC 4464 | Case summary | Zoe

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[13] In the meeting with Mr Faamausili Ailua (who did not bring a support person), he told Mr Daly he was not happy about the allegations against him. He said he had noticed the hole in two or three boxes, but the hole would not fit a person's hand. Mr Faamausili Ailua denied taking the cigarettes, or giving them to anyone else. He confirmed he does not smoke. He claimed to know nothing about the cigarettes going missing.

[14] Mr Daly made further inquiries of other employees on shift and requested the security team review the CCTV footage. There was no evidence of any incident in the freight bay. Mr Daly reviewed all the evidence and considered the following:

(a) Two pit crew members had made statements that both Mr Thomas and Mr Faamausili Ailua were involved in taking the cigarettes.

(b) The missing cigarettes were JPS brand; the same brand offered to Mr Sullivan by Mr Thomas.

(c) It was unlikely Mr Thomas would joke about taking cigarettes and coincidentally, cigarettes would go missing. This was not credible and likely to be a diversionary tactic to counter claims by others who heard him say he had taken the cigarettes.

(d) Mr Thomas had told him he usually smoked Horizon 'rollies', but admitted offering Mr Sullivan and Mr Castle JPS Blue brand cigarettes on 23 October 2018. He noted the dispute about whether it was JPS Blue or Gold, but determined that the cigarettes - being of the JPS brand - was the common denominator.

(e) The CCTV footage confirmed the freight was not tampered with at Sydney Airport freight shed and there was not enough time at Cairns Airport for the boxes to be tampered with there. He concluded the only time the cigarettes could have been taken was somewhere between the Sydney freight shed and the closing of the aircraft freight hold. Menzies had confirmed that the tape on the box had been cut when it was quarantined in Cairns.

[15] Mr Daly concluded that the weight of evidence confirmed that the freight arrived at the aircraft in Sydney slightly damaged, but otherwise intact, and that Mr Faamausili Ailua removed the cigarettes and gave them to Mr Thomas. He considered this was theft and receiving stolen goods. As such, this behaviour was clearly in breach of the applicants' contracts of employment and Virgin's Code of Conduct. He advised that both applicants receive 'show cause' letters and referred the matter to Mr Ellsmore and the Employment Advisory Team.

[16] Mr Daly said that while suspended, Mr Faamausili Ailua attended the 2018 Staff Christmas Party. As this was inappropriate, Mr Daly escorted him from the function. When he did so, he had said to him 'why did you do it?' He had replied, 'I'm just stupid'. Mr Daly believed this comment confirmed he had taken the cigarettes.

[17] In a reply statement, Mr Daly said he had reviewed the movement records for 23 October 2018, which confirmed that Mr Thomas and Mr Faamausili Ailua were working, alongside Mr Sullivan and Mr Goldberg Elliot and Mr Coolentianos (who was the Team Leader), and that they had loaded VA1429 from Sydney to Cairns that day.

[18] In response to claims that Mr Thomas and Mr Faamausili Ailua had not been paid their loaded rates while on suspension, Mr Daly confirmed that the pay records disclose that they were both paid their base rate of pay and penalty rates for the hours they would have worked, had they not been suspended. As overtime is unplanned and ad hoc, they were not paid for any overtime they might have worked during suspension.

[19] Mr Daly rejected Mr Faamausili Ailua's denial of their exchange at the Christmas Party on 13 December 2018. Mr Daly said he had arrived at around 6pm. At around 7:30pm, he noticed Mr Faamausili Ailua was present. Mr Daly approached his manager, Mr Johnson and explained that Mr Faamausili Ailua was suspended. Mr Johnson asked him to remove him from the venue. Mr Daly denied being under the influence of alcohol when he spoke to Mr Faamausili Ailua. Initially, Mr Faamausili Ailua did not want to leave the party. Mr Daly said that at no time, did Mr Faamausili Ailua say he did not want to discuss the investigation. As they walked out, Mr Daly said, 'seriously, why did you take the cigarettes, why did you take them, you don't smoke.' Mr Faamausili Ailua replied 'I'm just stupid'. He then left the venue.

[20] In cross examination, Mr Daly said that the Leading Hand's comment (Mr Coolentianos) that the hole in the box was not big enough to see or access the cigarettes, did not alter his view about the freight's 'chain of custody' from the freight terminal to the aircraft. He added that Mr Birch had told him that there had not been enough time for any tampering at the Cairns Airport, although there was no CCTV monitoring of the offloading of the aircraft in Cairns. This also did not alter his view.

[21] Mr Daly accepted that there had been a discrepancy over the colour of the JPS cigarettes (Blue or Gold). However, the brand was common in all the evidence and from the information at hand, he understood Mr Thomas smoked this brand. In questions from me, it was established that the colour type refers to the milligram strength of the cigarette - Silver is two-four milligram whereas Blue is 8-10 milligram. However, the colour of the packet does not change and the colour is stated under the initials JPS.

[22] Mr Daly was asked who the Leading Hand was on that shift, given that Mr Coolentianos was the Leading Hand, but Mr Sullivan referred to himself in that role. Mr Thomas believed that if Mr Sullivan got his role wrong, he might have got the colour and brand of the cigarettes wrong. Mr Daly disagreed and confirmed that as far as he understood, no one was suspended at the Cairns Airport.

[23] In re-examination, Mr Daly explained that the minimal damage to the box (which was noticed before entering the hold) meant it would not have been possible to remove the cigarettes. There was no way they were stolen before entering the hold of the aircraft, and once the aircraft is locked, there could be no access. This meant he was almost certain that the cigarettes were taken when they were in the hold, where Mr Faamausili Ailua was working and where there were no CCTVs.

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[32] Mr Sullivan was cross examined as to whether he was the Leading Hand on the shift when Mr Coolentianos signed off on the flight as the Leading Hand. Mr Sullivan explained he had been the Leading Hand prior to this flight and made a mistake when he told Mr Daly, in an email eight days later, that he had been the Leading Hand. Mr Sullivan confirmed the positioning of the Team at the time. He could not see anything unusual during the loading from where he was standing about 20-30 metres from the back cargo hold. He was facing the cargo hold loading.

[33] Mr Sullivan said he did not question where Mr Thomas and Mr Faamausili Ailua had been for 5-10 minutes after loading the flight, as he was busy doing other things, including moving barrows out of the way and speaking to Mr Castle. Mr Sullivan recalled that Mr Thomas, Mr Faamausili Ailua and Mr Castle were in the smoking area after the shift. He could not recall anyone else being there. He thought it was odd that Mr Faamausili Ailua was there when he did not smoke, but did not question it.

[34] Mr Sullivan was questioned as to how he could have determined the size of packet Mr Thomas had, as a 20s JPS and not a 30s packet. He explained that as a long-time smoker, he knew the difference in packet size between a 20s and 30s. He didn't need to read it on the packet.

[35] It was Mr Sullivan's evidence that when he was offered a cigarette by Mr Thomas, Mr Castle was only a metre away, right next to him, but he wasn't paying attention, as Mr Thomas was talking to Mr Castle. Mr Sullivan explained that he waited 48 hours to raise the matter with Mr Daly at the staff party on 25 October 2018, because he understood Mr Daly was on annual leave at the time. He emailed him 8 days later, when Mr Daly returned from annual leave.

[36] Mr Sullivan believed it was logical that Mr Faamausili Ailua had taken the cigarettes, as he was in the hold and no one could have seen him there from where the rest of the Team were positioned - including Mr Coolentianos - who was only two or three metres from the door, but could not see inside the aircraft.

[37] Mr Sullivan referred to the discussion in the smoking area on 9 November 2018 when Mr Thomas appeared very anxious. He was shaky and could not stand in one spot. He claimed that Mr Thomas had said 'he needed to know who dobbed him in'.

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[39] Mr Birch has been employed by Virgin for three and a half years. He manages Virgin's freight terminals and liaises with customers and contractors. Linfox is one of Virgin's most important freight clients. He described the process Linfox undertakes when preparing cigarettes for packaging. Individual packets are wrapped in plastic shrink wrap, and placed in cardboard boxes, secured by plastic tape. The freight is delivered to the freight shed, which is managed by Virgin's contractor, Menzies. It is checked, weighed and stored for ultimate loading onto an aircraft.

[40] Mr Birch said that on 24 October 2018, he was called by Mr Mark Rielly, Virgin's Northern Region Sales Manager, who informed him that a complaint had been received from Linfox (Mr Norris) that two packets of cigarettes had been stolen from VA1429. He believed the cigarettes could only have been stolen by a Virgin employee, as it appeared the plastic tape had been removed. Mr Norris had insisted on Virgin investigating the matter and Mr Birch agreed to do so.

[41] Mr Birch's initial inquiries revealed that the Linfox driver in Cairns had signed for the freight, notwithstanding the identified damage, which Menzies had quarantined upon arrival at Cairns. The driver and Menzies staff had then inspected the boxes under CCTV footage, but this did not identify the tampering or the missing packets. This was explained by the fact that Linfox's customer had confirmed two missing packets of cigarettes.

[42] Mr Birch spent several days investigating potential opportunities for theft at all points of the freight's transport. He confirmed the times, viewed the CCTV footage and spoke to a number of people at Sydney and Cairns Airports. Mr Birch identified that the freight was only lost from CCTV view when it was in the aircraft hold. He established there was a brief time of a few minutes at Cairns Airport, where the ramp was not monitored by CCTV prior to collection by Menzies staff, who had identified the damage to the plastic tape. No damage had been observed prior to this time. Mr Birch concluded that the most likely place the cigarettes were stolen was when it was put in the hold of the aircraft in Sydney.

[43] Mr Birch said that on 1 November 2018, Mr Daly called him to advise that he had been told that a Virgin staff member may have stolen cigarettes from VA1429 on 23 October 2018. Mr Daly asked if there had been any reports of missing freight around this time. Mr Birch confirmed the complaint from Linfox and his subsequent inquiries and his own conclusion. Mr Daly later asked him to inquire of the brand of cigarettes. He established it was JPS brand. Mr Birch had no further involvement in the matter.

[44] In a reply statement, Mr Birch responded to two photographs of damaged cigarette packages which had been taken on 31 January 2019. He said there was an incident of damaged cigarette freight on that day. It occurred when a carton fell off the trailer (barrow) and was run over by a second barrow. It was taken back to the cargo shed and later picked up by Linfox for repackaging. He was not aware of any photographs taken at the time. However, this incident was unrelated to the 23 October 2018 incident.

[45] Mr Birch confirmed that on 23 October 2018 the cargo driver had noticed the damage to the box at Cairns and the freight was then quarantined. Mr Birch said a damage report is usually prepared, but this appeared to be tampering, rather than damage. The freight was handed to the freight staff from the ramp staff and then taken to the cargo shed where it is under CCTV, until Linfox later picks it up. Mr Birch said that the CCTVs are focused on the aircraft and they roam the precincts, but not the hold of the plane. While Mr Birch believed that the freight was not covered by CCTVs for less than 5 minutes, he agreed it would only take a few seconds to remove the tape, particularly if other people were around. Mr Birch said there was no CCTV footage of the loading into the aircraft as the CCTVs roam the bays and the airport generally. Mr Birch had viewed footage of the cargo shed, and the whole process from lodgement to taking it out to the aircraft. In the cargo shed itself there are seven CCTVs. There are numerous cameras one would pass before getting to the aircraft. At Cairns Airport, the offloading process is very quick with a number of people around. He had investigated all possibilities and determined Sydney Airport was the most likely place for the theft to have occurred. Mr Birch understood that Linfox had told Virgin the missing cigarettes were 2 packets of JPS Gold 20s.

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[46] As Manager of Virgin's Sydney Airport operations, Mr Ellsmore manages all ground operations, including check in, gate staff, and passenger and freight operations. He described the multifaceted role within ground operations. He attached to his statement copies of:

(a) Mr Thomas and Mr Faamausili Ailua's contracts of employment;

(b) the Agreement; and

(c) Virgin's Code of Conduct.

[47] Mr Ellsmore was the decision maker in respect to the applicants' dismissals. Mr Ellsmore was not directly involved in the investigation, but was briefed from time to time, by Virgin's Employment Advisory Team. On 1 December 2018, Ms Ioanna Papantoniou (HR Partner) briefed him and advised that:

(a) there had been a theft of two packets of cigarettes from the freight of Virgin Australia flight VA1429 from Sydney to Cairns on 23 October 2018;

(b) the Virgin Australia Cargo Manager confirmed that two packets of cigarettes were missing from the freight;

(c) the Virgin Australia Cargo Manager confirmed that video footage showed that the freight was not tampered with at the freight shed;

(d) it was believed that there was insufficient time for operators to have removed the cigarettes from the freight at the aircraft at Cairns Airport;

(e) the freight was monitored in the Cairns Airport freight shed and it was evidently not tampered with at that point;

(f) it was most likely that the cigarettes were taken from the freight somewhere between the Sydney Airport freight shed and the doors closing on the aircraft on the bay at Sydney Airport;

(g) Mr Thomas and Mr Faamausili Ailua were engaged in loading the freight into the cargo hold of the flight at Sydney Airport;

(h) the brand of cigarettes which were reported to be missing from the freight were consistent with the brand of cigarettes which Mr Thomas had reportedly offered to others, and stated that it had been removed from the freight; and

(i) both Mr Thomas and Mr Faamausili Ailua denied the allegations and any knowledge of the cigarettes going missing.

[48] Mr Daly and the Employment Advisory Team had concluded, on the balance of probabilities that:

(a) Mr Faamausili Ailua stole two packets of cigarettes from the freight whilst loading Flight VA1429 on 23 October 2018; and

(b) Mr Thomas knowingly received the stolen packets of cigarettes from Mr Faamausili Ailua on 23 October 2018.

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[49] Mr Ellsmore described the 'show cause' process and the meetings he had with Mr Thomas on 11 December 2018. Mr Thomas elected not to bring a support person. Mr Ellsmore recalled him stating that:

(a) he was present in the smoking area on 23 October 2018 after loading Flight VA1429;

(b) Mr Sullivan and Glen Castle were also present in the smoking area on 23 October 2018;

(c) Mr Thomas had made a statement to the effect of: "Hey, guess what, we loaded a freight of cigarettes with Junior and I said how funny would it be if we had taken a carton" ;

(d) it is common for Pit Crew team members to joke about taking freight from aircraft, for example, gold bars; and

(e) those present in the smoking area at the time had misunderstood what he had said and that gave rise to the allegation that he had stolen cigarettes from the flight.

[50] Mr Thomas strongly defended the allegations by claiming there was a lack of evidence to prove he had taken, or received the cigarettes. Nevertheless, Mr Ellsmore believed the contrary evidence was persuasive. In particular, Mr Thomas was unaware of any issues he might have had with work colleagues, as to why they might have made false allegations against him. He provided no information or explanation relevant to the allegations. He challenged his termination on the basis of his impending wedding, length of employment and the type of employee he was. Mr Ellsmore said he took all these matters into account, including the relatively low value of the stolen product. However, he concluded Mr Thomas' conduct was inconsistent with his continued employment. Mr Ellsmore said he was aware Mr Thomas had since commenced employment with Rex Airlines ('Rex') in a similar role.

[51] Mr Ellsmore said Mr Thomas had admitted to making a 'joke' about taking cigarettes off an aircraft in both his response to the 'show cause' letter and in a post on social media on 20 December 2018. Mr Ellsmore believed that joking about stealing client's property is not funny. It undermines the trust and confidence that employees, passengers and clients have in Virgin. It is inconsistent with the high standards of integrity expected of all Virgin employees. Further, in the social media post of 20 December 2018, Mr Thomas described him and Ms Papantoniou as 'TWO DESPICABLE HUMAN BEINGS'. The full post reads:

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[52] Mr Ellsmore said that a similar disciplinary process was undertaken with Mr Faamausili Ailua. He also declined to bring a support person to the 12 December 2018 'show cause' meeting. Mr Faamausili Ailua had strongly denied the allegation, but provided no evidence or submission which countered the statements and evidence Virgin had obtained. Mr Faamausili Ailua said he had a good relationship with his fellow employees and he had not acted under any duress. Mr Ellsmore understood Mr Faamausili Ailua was generally regarded as a popular employee. Mr Ellsmore considered all of the circumstances, and arrived to the same conclusion as he had for Mr Thomas. Mr Faamausili Ailua's conduct and repeated denial of any involvement, meant the trust and confidence in the employment relationship had been irreparably eroded.

[53] In a reply statement, Mr Ellsmore agreed that Mr Thomas and Mr Faamausili Ailua had asked for evidence to support their dismissals. He had told them that Virgin had witness statements and information from the cargo teams in Sydney and Cairns. However, he did not mean Virgin had formal written statements; rather, information had been provided as part of the investigation, all of which has now been provided to the Commission. Mr Ellsmore agreed that Mr Thomas had asked which employees had provided statements and he had been told 'We would rather not say'. Mr Thomas then said 'One of them was Mitch (Sullivan) wasn't it.'

[54] Other factual evidence was conveyed to Mr Thomas, including a witness who had heard him say 'Look what me and 'Junior' got off the plane, does anyone want one.' In any event, Mr Thomas had known Mr Sullivan and Mr Castle had been present in the smoking area and that he had joked about taking cigarettes from the aircraft. It was also clear from Mr Thomas' social media post that he was well aware of, and understood the evidence Virgin had obtained. He was also told there was no CCTV footage showing the cigarettes being taken, and that there were no CCTVs inside the hold of the aircraft.

[55] In cross examination, Mr Ellsmore said he believed Mr Thomas had known of the information and evidence Virgin had gathered. Mr Thomas was asked to provide any additional information for management to consider. Mr Ellsmore explained that in the Company's F3 - Employer's response to the unfair dismissal applications lodged with the Commission - where it was said Virgin had relied on written and verbal statements from any witnesses, he meant that verbal statements were transcribed into notes. They were not formal written statements from witnesses. Mr Ellsmore accepted there was no CCTV footage of the theft. However, he concluded from all the other evidence, that it was likely Mr Thomas and Mr Faamausili Ailua had been involved.

[56] Mr Ellsmore developed his answer as follows:

[53]

[59] It was Mr Thomas' evidence that when he was loading freight on Flight VA1429 on 23 October 2018, he was present on the door of the aircraft in full view of the Team Leader, Mr Coolentianos. Mr Faamausili Ailua was inside the cargo hold. After loading passenger bags, he and Mr Faamausili Ailua started to load around 30 brown plain cardboard boxes. He claimed that he and Mr Coolentianos noticed that one of the boxes was slightly damaged, but not sufficiently for any cigarette packets to be able to be removed. As they were both smokers, Mr Thomas claimed he jokingly said to Mr Coolentianos, 'we should take a box for ourselves' and that they both laughed. On completion of the loading, Mr Thomas said he then marshalled passengers onto the rear of the aircraft. The rest of the Team was on the right hand side of the plane. Mr Thomas closed the rear door, removed the marshalling tape and removed the stairs. Mr Thomas then went to the smoking area. He said that at no time was Mr Faamausili Ailua present in the smoking area, as he does not smoke. Mr Thomas left and returned home.

[60] Mr Thomas claimed that when he attended the staff party at a city pub, on 25 October 2018, he observed Mr Sullivan drink a large amount of alcohol. On 2 November 2018, Mr Thomas was called to a meeting with Mr Daly who told him that he was suspended for allegations of theft of cigarettes from Flight VA1429. He was handed a suspension letter and escorted off the premises. His ASIC (Aviation Security ID Card) card was taken back. He emailed Mr Daly the next day and detailed his version of events.

[61] Mr Thomas attended a further meeting with Mr Daly and another supervisor (Mr Pardey) on 9 November 2018. Mr Daly had a prepared set of questions. Mr Thomas was not permitted to record the interview. On 11 December 2018, Mr Thomas attended a 'show cause' meeting with Mr Ellsmore and Ms Papantoniou. He asked to see the statements of witnesses, CCTV footage or any other evidence. However, each request was denied. He attended another meeting with Mr Ellsmore and Ms Papantoniou on 20 December 2018, when he was told he was dismissed with immediate effect. He was still not provided with any evidence of the allegations.

[62] Mr Thomas filed an unfair dismissal application the same day and attended a phone conciliation on 1 February 2019, in which Ms Papantoniou acknowledged that Virgin had no CCTV footage of the incident. The matter could not be settled.

[63] Mr Thomas' statement also dealt with an incident on 4 February 2019, when he was at the airport to commence his new employment with Rex as an Aircraft Service Officer. While walking towards Gate 32, Mr Ellsmore came out of the Virgin offices and came up behind him, grabbed his left elbow and said 'Have you got your things out of your locker yet?' He told him he would let 'Fair Work' handle that. They continued on for a short while until he cut into Gate 34 to get away from Mr Ellsmore. He said he felt intimidated and very uncomfortable about him putting his hands on him. Mr Thomas reported the incident to Green Valley Police and indicated he would be seeking an apprehended violence order against Mr Ellsmore.

[64] In cross examination, Mr Thomas reiterated his denial of having received stolen cigarettes and offering them to other employees, knowing they had been taken off an aircraft.

[65] Mr Thomas accepted he had received and responded to the letter of Mr Daly of 8 November 2018. In his response he had said he had noticed two slightly damaged boxes, but denied opening or taking anything out of them. He had wanted to know who had seen him take anything from the boxes. He reaffirmed that later in the smoking area when he was with Mr Sullivan, Mr Castle, Mr Coolentianos and Mr Klink, he had joked 'Ha ha, I should have taken a box for myself and they all joked about it.' He acknowledged offering his own cigaretes (JPS Blue brand) to some of the employees. He had told this to Virgin management (Mr Daly and Mr Pardey) on 9 November 2018, and also that he could not be the one who took the cigarettes, because he was at the door of the aircraft's hold. He had also said that he was sliding the boxes (about 30) from the door down the conveyor to Mr Faamausili Ailua who was positioned in the hold. He knew they were cigarettes, as Mr Coolentianos had told him when they had noticed a corner of a box, slightly open a few millimetres. He was asked why he had earlier said he noticed two damaged boxes, not one. Mr Thomas told Mr Daly on 9 November 2018, that he had said to Mr Coolentianos, who was also a smoker, 'we should take them as a joke. We're the only smokers in the Team'. He told Mr Daly he smoked Horizon 'rollies', but agreed he had offered the employers JPS Blue brand cigarettes on 23 October 2018.

[66] Mr Thomas said the original allegation of stealing the cigarettes then changed to him having received stolen cigarettes in the 7 December 2018 'show cause' letter. Mr Thomas declined to provide a written response. He attended a meeting on 11 December 2018, having declined an opportunity for a support person to be present. Mr Thomas denied he was lying when he told Mr Ellsmore and Ms Papantoniou that they had been joking about stealing cigarettes to Mr Coolentianos and others later in the smoking area.

[67] Mr Thomas agreed his submissions and response to the allegations, was to reject them entirely. He provided no other explanation or evidence to counter the allegations. Mr Thomas denied offering any cigarettes Mr Faamausili Ailua had given him, from the aircraft to Mr Castle and Mr Sullivan on 23 October 2018. Mr Thomas said he has been employed by Rex in a similar position on a base salary of ~$1,300.00 a fortnight. Mr Thomas agreed he was aware of his contract of employment and Virgin's Code of Conduct, which required him to act honestly and to respect and safeguard Virgin, its customers and suppliers. He understood that stealing freight would be serious misconduct.

[54]

[68] Mr Faamausili Ailua's statement evidence as to his role on the 23 October 2018 in loading freight, is not disputed. He claimed that both he and Mr Thomas noticed a bit of damage to one of the cardboard boxes, but it was not big enough to see inside. Mr Thomas was then called to marshal passengers and he continued to load the freight on his own. The Team were then told to go to the muster room.

[69] Mr Faamausili Ailua was called to a meeting on 7 November 2018 where he was informed he was suspended for the allegation of theft of cigarettes from Flight VA1429 to Cairns. He was required to provide a written response by 9 November 2018. He attended a further meeting with Mr Daly and Mr Pardey on 15 November 2018. On 11 December 2018, he attended a meeting with Mr Ellsmore and Ms Papantoniou where he was asked for his version of events and why he should not be dismissed. He asked to see any evidence or witness statements, but this was denied.

[70] Mr Faamausili Ailua said that when he attended the Christmas party on 13 December 2018, Mr Daly approached him, while under the influence of alcohol, and tried to discuss the ongoing investigation. Mr Faamausili Ailua claimed he replied 'this isn't the place and time for this conversation' and then removed himself.

[71] Mr Faamausili Ailua was requested to attend a meeting with Mr Ellsmore on 20 December 2018, but as he had other commitments that day, it was agreed they speak by phone that day. In the phone conversation, he was again denied access to any evidence concerning the incident. He was dismissed, effective immediately.

[72] In cross examination, Mr Faamausili Ailua denied taking two packets of cigarettes from the freight on 23 October 2018, and giving them to Mr Thomas. Mr Faamausili Ailua agreed to the disciplinary process which was undertaken prior to his dismissal. As to the investigation, Mr Faamausili Ailua agreed he had:

received a 'show cause' letter on 7 December 2018;

read the contents of the letter;

been invited to respond, but he did not do so;

attended a meeting on 12 December 2018, without a support person;

denied the allegations, but brought no evidence to counter or explain the allegations; and

been asked if there were any issues with his colleagues which might explain why they would make up false allegations. He denied any issues with his colleagues.

[73] Mr Faamausili Ailua accepted he was in the hold of the aircraft when he realised he saw a few damaged boxes. Mr Faamausili Ailua agreed the hold was 10-15 metres deep. Mr Thomas was at the front door of the hold. They had loaded the passengers' bags first, then the freight. He acknowledged that he was deep in the hold and was not able to be seen by those outside the aircraft. Mr Faamausili Ailua said he observed a box with tape ripped off and others with a few holes, so small you could not see what was inside. It appeared to be small boxes, but he did not know what they were. However, he knew they were cigarettes, because Mr Coolentianos had told him. Mr Faamausili Ailua agreed that no one reported the damage at the time.

[74] As to the conversation with Mr Daly at the Christmas party, Mr Faamausili Ailua denied saying 'I'm just stupid?' However, he did acknowledge Mr Daly had said something to him at the party about the matter.

[75] Mr Faamausili Ailua acknowledged his employment was covered by the Agreement and Virgin's Code of Conduct and that he was obliged to act honestly and to respect and safeguard the property of Virgin's customers. Mr Faamausili Ailua accepted that if he did steal the cigarettes, it would be a breach of the Code of Conduct and be grounds for dismissal.

[76] Mr Faamausili Ailua was now working full time at a barber's shop where he had been working part time while working for Virgin. His salary was ~$500.00 a week. He seeks to be reinstated to his former position with Virgin.

[77] In re-examination, Mr Faamausili Ailua said he had never been in the smoking area - he had only walked past it on occasions.

[60]

[84] Ms Bostock rejected the applicant's submission that they could not 'fairly refute' the allegations because Virgin had not provided any evidence to substantiate the allegations. She said that where a person completely denies the allegations, it is unnecessary to provide the names of persons who have made statements. In any event, the applicants now had the statements and could test them in the proceedings; see: Melouney v ACM Group Ltd [2012] FWA 9386 and Young v Janart Holdings Pty Ltd t/a Stewart Automotive Group [2014] FWC 8410.

[85] In any event, Ms Bostock, submitted that the applicants plainly knew and understood the details of the allegations against them as set out in the 'show cause' process. Ms Bostock submitted that:

(a) Mr Thomas had sufficient information about the allegations to enable him to respond and he in fact did respond in a fulsome way to the allegations which were put to him as identified in [14] above;

(b) Mr Thomas requested to be provided with copies of statements or other evidence that the respondent had against him, and while this request was denied, Mr Thomas was advised of the information which the respondent had gathered during the investigation into his conduct in response to his request;

(c) even if Mr Thomas had been provided with copies of the evidence that the respondent had gathered during the investigation, in circumstances where Mr Thomas' position was to deny the allegations that he had taken, or been involved in taking cigarettes from the cargo, this is unlikely to have changed Mr Thomas' response; and

(d) on this basis, Mr Thomas was not disadvantaged as a result of not being provided with copies of evidence gathered during the investigation process.

[86] In respect to Mr Faamausili Ailua, Ms Bostock put that:

(a) Mr Faamausili Ailua had sufficient information about the allegations to enable him to respond and his response was to deny the allegations against him;

(b) even if Mr Faamausili Ailua had been provided with the information that the respondent had gathered during the investigation, in circumstances where Mr Faamausili Ailua's position was to deny the allegations that he had taken the cigarettes from the cargo, this is unlikely to have changed Mr Faamausili Ailua's response; and

(c) on this basis, Mr Faamausili Ailua was not disadvantaged as a result of not being provided with information gathered during the investigation process.

[87] Ms Bostock referred to a document titled 'Movement Sheet for 23 October 2018' and two photographs of damaged boxes of cigarettes dated 31 January 2019. She put that both these documents are irrelevant to what happened on 23 October 2018. As to the claim of not being paid while on suspension, Ms Bostock confirmed that from payroll records, both applicants received base rates and penalties for the hours they would have worked while on suspension. They were not paid for overtime, as this is unplanned and unpredictable.

[88] In oral submissions, Ms Garner relied on Virgin's written submissions, noting particularly the compelling evidence that the allegations had been substantiated. Notably, this went to Mr Sullivan and Mr Castle's statements, both of whom had independently made statements that the applicants were involved in taking cigarettes form the aircraft hold. When asked if there was any reason why Mr Sullivan or Mr Castle would do so, neither applicant raised any issues with either of them. Counsel said that this evidence fitted with the uncontested positioning of the persons at the aircraft, the brand of the cigarettes that went missing (JPS), and which were offered by Mr Thomas to his colleagues, when he initially said this was not the normal brand he smoked. However, in the proceedings, he provided a JPS brand. In addition, he sought to cover his tracks by claiming to have made a joke about taking cigarettes off an aircraft. Mr Birch's investigation and experience led him to believe that the most likely place for the theft was when it was loaded into the aircraft hold in Sydney.

[89] Ms Garner noted that Mr Thomas said he told Mr Daly he had seen damage to the tape, yet no one mentioned this until Mr Birch said the tape was damaged when it arrived in Cairns. In his oral submissions, Mr Thomas maintained that he and Mr Faamausili Ailua had a right to see evidence which matched the allegations against them; see: Bain v CPB Contractors Pty Ltd [2018] FWC 6273.

[68]

[93] As I have just concluded that three of the above criteria have been satisfied ((a), (c) and (d)), this only leaves the question of whether Mr Thomas' and Mr Faamausili Ailua's dismissals were 'harsh, unjust or unreasonable' and therefore unfair dismissals. To this end, one must direct attention to s 387 of the Act, which deals with the matters to be taken into account by the Commission in determining whether a dismissal was unfair. It is trite to observe that each of the matters must be considered, and a finding made on each of them, including whether they are relevant or not; for example, sub-s (e) concerning warnings of unsatisfactory performance is usually not relevant in serious misconduct cases.

[94] The matters to be taken into account under s 387 of the Act are:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[95] All of the criteria in s 387 of the Act must be taken into account when the Commission considers whether a particular dismissal is unfair. The notion of 'taking into account' a matter (such as those described in s 387 of the Act) connotes a genuine consideration of the relevant section and the apportionment of the appropriate weight of each criterion in the circumstances. In Construction, Forestry, Mining and Energy Union v Hamberger and Another [2011] FCA 719; (2011) 195 FCR 74, Katzmann J pointed out that '[t]o take a matter into account means to evaluate it and give it due weight' and that 'mere advertence will not be enough'. That said, it must also be steadily borne in mind that all of these matters must be considered in totality. That this is so is obvious from the Explanatory Memorandum to the Fair Work Bill 2008 where at para 1541, it reads:

[104]

[105] Both Mr Sullivan and Mr Castle provided evidence that Mr Thomas had told them in the smoking area, that the cigarettes had been taken off the aircraft when he offered them one. Mr Thomas claimed he made a joke about them being taken off the aircraft and that they all laughed. He agreed he offered them JPS brand cigarettes, the same brand that had been removed from the freight; yet, Mr Thomas initially claimed he was particular about his brand preference, and it wasn't JPS.

[106] It seems to me that Mr Thomas initially sought to distance himself from the allegations by claiming JPS was not his preferred brand. However, he had forgotten that Virgin might be able to identify the stolen cigarettes as JPS brand, and that he had offered JPS to Mr Sullivan and Mr Castle, who he did not expect would give evidence about the matter. As events unfolded, Mr Thomas had to think of another explanation, namely, it was JPS he offered them, but a different colour. He maintained this charade by bringing a JPS packet to the Court. As just mentioned, Mr Thomas sought to take issue with the colour of the brand of JPS, being whether it was blue or gold. I must admit that had the colour of the packet of cigarettes stolen was blue, rather than what Mr Thomas said was gold, this would be a rather telling point. However, as the evidence emerged, including by Mr Thomas conveniently producing a JPS packet during the proceedings, the colour refers to the nicotine microgram content, not the colour of the packet, which are all the same colour (black) due to plain packaging of cigarettes in Australia. The words 'Gold', 'Blue' or 'Red' are printed in very small print. It is an entirely reasonable conclusion that the colour had no visual impact on anyone who was being handed a cigarette from a fleetingly observed packet. The controversy over the colour of the JPS brand was no more than a 'red herring' (or in this case, a 'blue herring'). It took the applicant's case nowhere. In my opinion, it is highly suspicious that Mr Thomas would offer JPS cigarettes to his work colleagues, while at the same time making jokes about taking cigarettes off the aircraft. There is no logical connection to have engaged in such a conversation, unless Mr Thomas believed that the joke would act as a smokescreen or cover to his actual involvement in the theft. This was much more than a mere coincidence.

[107] More importantly, however, I accept Mr Sullivan's evidence of subsequent conversations in the smoking area where he was present and Mr Thomas had been 'fishing' to try and establish who had reported the incident to Virgin. Mr Sullivan said he had appeared anxious and had asked for Mr Faamausili Ailua's phone number. I accept Mr Thomas had said 'I am just going to deny it, they have no evidence, they have no footage - how are they are going to know?' In my view, Mr Thomas' behaviour at this time was entirely consistent with someone knowing the 'net was closing in'. His only defence, as mentioned earlier was, 'if you've got no direct proof, you can't prove anything'. He was very much mistaken.

[108] I found both Mr Sullivan and Mr Castle to be credible and believable witnesses. Where their evidence conflicts with Mr Thomas and Mr Faamausili Ailua, it is their evidence I prefer. Mr Sullivan, for whom Mr Thomas seemed to have a particular disdain, (that 'opportunistic' employee) had raised his concerns with Mr Daly and told him of the 23 October 2018 conversations because he was worried that had it would come out he was aware of the stolen cigarettes and had said nothing about it, he could himself be faced with disciplinary action. This was a perfectly rational and self-protective course for Mr Sullivan to take. In any event, Mr Sullivan's evidence was corroborated by others, so it could hardly be claimed Mr Sullivan had made up his evidence to damage Mr Thomas and Mr Faamausili Ailua. Moreover, I note that when asked if they had any issues with other employees who might have an 'axe to grind', both Mr Thomas and Mr Faamausili Ailua said there were none.

[109] Mr Thomas took issue with whether Mr Sullivan was Leading Hand on the shift on 23 October 2018. Mr Sullivan said he was, but the job record shows it was Mr Coolentianos who was the Leading Hand. Mr Sullivan explained that he was confused when he said he was the Leading Hand, as he had been a relief Leading Hand earlier that day. In any event, it is irrelevant whether he was the Leading Hand or not. I am not sure what Mr Thomas was seeking to imply here. The real question is what Mr Sullivan was told after the incident in the smoking area. There was also criticism of Mr Sullivan for not reporting the matter to Mr Daly until 31 October 2018. Again, I am unclear as to the inference I am expected to draw, but this delay was understandable. In fact, Mr Sullivan did seek to raise the issue offsite at a work function on 25 October 2018, but Mr Daly told him it was not appropriate to discuss it in that context. Further, Mr Daly was Mr Sullivan's direct manager, they got on well and Mr Sullivan felt comfortable raising the matter with him. However, Mr Daly was on annual leave at the time and did not come back to work until 31 October 2018.

[110] Corroborating the conclusion of both Mr Thomas and Mr Faamausili Ailua's involvement in the theft, was Mr Faamausili Ailua's answer when questioned by Mr Daly at the Christmas party on 13 December 2018 as to why he did it. Mr Faamausili Ailua simply said 'I'm just stupid'. While Mr Faamausili Ailua denied this conversation, he did not deny that he had discussed the matter as he was being escorted from the venue. In my view, Mr Daly's query had a 'ring of truth' about it and I accept Mr Faamausili Ailua replied 'I'm just stupid'. Given the other surrounding evidence, this cannot imply anything other than Mr Faamausili Ailua accepting he had taken the cigarettes and had given them to Mr Thomas. Obviously, Mr Faamausili Ailua could not give evidence of why he did so, when he did not smoke himself.

[111] Mr Thomas claimed that Virgin could not prove the allegations, on the balance of probabilities, for four reasons (in bold) which I discuss below.

[112] Mr Sullivan and Mr Castle's conflicting statements were made in early March 2019 and were not available to Virgin in late 2018 when they were dismissed. Firstly, there is no conflict in Mr Sullivan's and Mr Castle's statements on the essential issue of what they heard. They gave 'statements' (verbal, not written) to Mr Daly shortly after the time of the incident, followed up by emails. This is what Virgin meant by having witness statements at the time. Obviously, the March 2019 statements are distinct statements for the purposes of these proceedings. They are entirely consistent with what they told Mr Daly at the time. I accept their evidence.

[113] Mr Daly's statement was unsigned. In fact, Mr Thomas sought to have me reject Mr Daly's statement when it was filed, prior to the hearing. Of course, Mr Daly gave sworn evidence in the proceedings and swore his statement was true and correct. The Commission frequently receives unsigned statements in accordance with directions, so as to ensure the other side knows the substance of the case they have to answer. The signed statement is either later filed or the witness swears to its truth and accuracy in the witness box. There is nothing unusual in this. To suggest some malfeasance by, or suspicion of Mr Daly, is totally misconceived and it is little more than a silly 'red herring' that is of no consequence.

[114] A 'curious' statement of Mr Birch as to footage obstruction in Cairns. There is no substance to this submission. Mr Birch was stating the obvious factual position. Mr Birch's conclusion was that there was insufficient time in Cairns, whether covered by CCTV or not, for the theft to occur. What followed was Mr Birch's entirely reasonable view that the theft did not occur in Cairns, but most likely occurred when the freight was loaded into the aircraft hold in Sydney. I agree.

[115] No statement was provided by Ms Papantoniou. I do not understand what is meant by this criticism. Ms Papantoniou attended the disciplinary meetings and notes were taken. Neither Mr Thomas nor Mr Faamausili Ailua seriously disputed the conversations in these meetings. Ms Papantoniou was not the decision maker. Her evidence would have only corroborated Mr Ellsmore's evidence, which itself was not contradicted. Viewed in this way, it was unnecessary for Ms Papantoniou to provide evidence in the case. It would have added nothing. It was unnecessary for Virgin to call more evidence merely because Mr Thomas submitted that the evidence might be better than the evidence Virgin had provided.

[116] In my view, Virgin's evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant's denials of involvement in the theft, cannot be accepted. Obviously, neither applicant pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than ~$50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight. Whether it was a relatively small value theft or something more substantial, is really not the point. Theft is theft - no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission and in Mr Thomas' case, his self-serving concoction of invention, I might have put their conduct, particularly in Mr Faamausili Ailua's case, down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one's fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have 'made their bed and must now lie in it'. I am satisfied the allegations against the applicants have been proven. I turn now to the matters the Commission is required to take into account under s 387 of the Act.

[117] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 ('Selvanchandran'). This meaning has been considered and applied by members of the Commission, and its predecessors, for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then-Australian Industrial Relations Commission ('AIRC') discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, citing Selvachandran. The following is an extract from the Full Bench's decision at [17]:

[123]

[124] Both applicants received letters setting out the allegations against them, and inviting them to respond in writing. They both availed themselves of that opportunity on 6 November and 2 November 2018 respectively. On 7 December 2018 the applicants received 'show cause' letters, providing a further opportunity to respond, and inviting them to meetings with Management on 12 December 2018. They declined to respond in writing, but attended the meetings with Mr Ellsmore and Ms Papantoniou.

[125] For the reasons earlier set out, there are no issues of procedural unfairness as claimed by the applicants. It is abundantly clear that not only did they know and understand the allegations against them, and simply denied them, but Mr Thomas falsely crafted a series of implausible circumstances, which demonstrate to me that he knew exactly what he was accused of, and how serious was its consequences. Even if Mr Daly had written statements from Mr Sullivan and Mr Castle at the time and did not provide them, it is not mandatory that an employer must provide to an employee alleged to have engaged in misconduct, witness statements it had gathered during an investigation. It will be sufficient that the employee knows and understands the allegations against them in order for them to fully respond. That is precisely what happened; see RMIT v Asher (2010) 194 IR 1 at [14]; citing Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1.

[126] In any event, the challenge to an unfair dismissal will invariably result in witness statements being provided in the Commission proceedings or sought under a Notice to Produce, if they are not. In any event, I note that Mr Thomas has said to Mr Ellsmore that he knew one of the witness statements was from Mr Sullivan; see [53] above. Moreover, Mr Thomas must have known, or was likely to have assumed, that the two persons he had offered the cigarettes to and joked about were Mr Sullivan and Mr Castle. This factor tells against a finding of procedural unfairness.

David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2019] FWC 4464

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Judgment (136 paragraphs)

David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2019] FWC 4464 (4 July 2019)

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Legislation Cited (4)

Cases Cited (11)