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[2026] FWC 1122
General information, not legal advice.
Fair Work Commission
2026-04-01
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy -Applicant leaving two apprentices stranded in an elevated work platform constituted a valid reason for his dismissal - dismissal not unfair - application dismissed.
[1] Jarrod (Jack) Mcrae (Applicant) has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Jetstar Airways Pty Limited (Respondent). The application was the subject of a hearing at which witness evidence was received from the Applicant, Mr Kevin Creed (Senior Manager of Operations for the Respondent) and two Apprentice Aircraft Maintenance Engineers employed by the Respondent, Mr Jackson Garrett and Mr Aiden Micallef.
Initial matters to be considered - s.396 of the Act
[2] The application was made within the required 21-day period after the dismissal took effect (s.396(a) of the Act). There is no dispute that the Applicant is a person protected from unfair dismissal because he had completed the minimum employment period, the Jetstar Airways Engineering & Maintenance Enterprise Agreement 2023 (Agreement) applied to his employment, and he had an annual rate of earnings less than the high-income threshold (s.396(b)). Further, it is not disputed, and I am satisfied, that the Respondent was not a small business employer, such that the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)) does not fall for determination. Finally, it has not been claimed by the Respondent, and nor does the material before me suggest, that the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act - was the dismissal unfair?
[3] As to the circumstances set out at s.385 of the Act, there is no question or dispute that the Applicant was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business and the consequent consideration of whether the dismissal of the Applicant was consistent with the Small Business Fair Dismissal Code (s.385(c)). Nor is it one which requires the Commission to consider whether or not the dismissal was a case of genuine redundancy (s.385(d)).
[4] Only s.385(b) remains to be considered in this case. I must therefore determine whether the dismissal of the Applicant on 29 July 2025 was harsh, unjust or unreasonable.
[5] The Applicant commenced employment with the Respondent in early 2023 as an Aircraft Maintenance Engineer. While working for the Respondent, the Applicant's employment conditions were governed by the following:
[6] At clause 10.1, the Contract imposed the obligation on the Applicant to familiarise himself with the Respondent's policies and procedures (including Qantas Group policies) and stated that where the policies placed obligations on him, he was required to comply with them. The Contract also stated, at clause 10.2, that a failure to follow the Respondent's policies and procedures may warrant disciplinary action, up to and including the termination of his employment. For the purpose of this proceeding, the Respondent relies on there having been a breach of the Qantas Group's Standards of Conduct Policy (Standards of Conduct). It was not suggested by the Applicant that he was unfamiliar with the Standards of Conduct.
[10] In the Termination letter, the Respondent outlined a summary of its findings from the investigation. This included that on 12 February 2025, the Applicant:
a) Said to Mr Garrett, referencing apprentices, 'You are all pussies now, it's ridiculous, back when I was an apprentice, we used to cop all sorts of abuse';
b) Asked Mr Garrett 'Were you hit much as a kid?'; and
c) Yelled at Mr Garrett 'Oi Jackson, oi, take it to the carpark, be a man' to infer a fight.
(to be collectively referred to as "the February 2025 allegations")
[11] The summary also asserted that in an earlier incident, the Applicant pressed the Emergency Stop button while Mr Garrett and Mr Neil Singh (another Apprentice) were on an Elevated Work Platform (EWP) in circumstances where:
a) There was no operational reason to do so;
b) There was no safety related reason to do so;
c) It was unauthorised;
d) Mr Garrett and Mr Singh were 'stuck' as a result and unable to get down independently;
e) He knew, or ought to have known that his actions were a potential safety risk and, yet, laughed.
(to be collectively referred to as "the EWP allegations")
[12] Finally, the summary referenced the Applicant 'lurching' out of his seat and waving his hands in Mr Garrett's face while they were riding together in a utility vehicle after completing a particular job task (the Ute allegation).
[13] In considering whether I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable, I must take into account the criteria outlined in s.387 of the Act and will do so below.
Was there a valid reason for the dismissal relating to the Applicant's capacity or conduct? - s.387(a)
"It is well established that in cases where an employee has been dismissed for a reason relating to conduct, the Commission must, in considering whether there is a valid reason for dismissal, be satisfied that the conduct occurred. This obligation, articulated by the Federal Court in Edwards v Giudice, flows from the plain wording of s.387(a), which requires the Commission to consider whether there is a valid reason for the dismissal. The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceeding before it, to the Briginshaw standard. The test is not simply whether the employer believed on reasonable grounds that the employee engaged in the conduct."[10] (references omitted)
[16] There is no dispute that the Applicant pressed the emergency stop button on the EWP on the day in question. The dispute lies in relation to the circumstances in which the Applicant did so.
[17] The Respondent predominantly relies upon the evidence of Mr Garrett. In his account, Mr Garrett said he was working with the Applicant and Mr Singh underneath the wing of a Boeing 787 in Hangar 141 in the EWP. He said that they lowered the EWP so that the Applicant could get out and that the Applicant then "disappeared for a period of time." Mr Garrett said that after the Applicant had moved on, he and Mr Singh raised the EWP and continued their greasing work before proceeding to clean up. He said that he heard the EWP switch off and when he and Mr Singh subsequently tried to get down by lowering it, they noticed the EWP could not move. Mr Garrett maintained that at this point, a laughing Applicant re-appeared at the base of the EWP. Mr Garrett said the Applicant then walked away from the emergency stop button and he suggested this was so that he could go to lunch with the remainder of the crew, who had already left. Mr Garrett said that the Applicant was the only person he could see on the hangar floor at that particular time and because he could not see anyone else, he called Mr Micallef to see whether he could come and get Mr Singh and himself down.
[18] Mr Garrett said he did not call the Applicant or anyone else in order to get lowered because he did not want to make a scene or "add fuel to the fire." He said that Mr Micallef advised him that it would be between 15-20 minutes before he could come and assist because he was on a boom lift in a different part of the hangar. Mr Micallef confirmed that he was also performing work on a Boeing 787 in Hangar 141 via an EWP when he received a phone call informing him that the emergency switch on the EWP in which Mr Singh and Mr Garrett were working had been pulled. Mr Micalleff said that he was not able to immediately descend from his EWP and go and assist because he was working on the installation of a panel of the Boeing 787's vertical stabiliser. Mr Garrett said that after he and Mr Singh had been waiting for approximately 10 minutes, someone else entered the hangar and was able to get them down. He said that this person confirmed the emergency stop button had been pressed. Mr Micalleff said that he made his way to the EWP in which Mr Garrett and Mr Singh had been working on as soon as he could and when he arrived, he discovered someone had already let them down. Mr Garrett said that the Applicant was nowhere to be found when they were lowered to the ground, but when he eventually went to lunch, he saw that the Applicant was already in the lunchroom.
[19] The Applicant's version of version of events was that he pushed the emergency stop button for operational reasons and that his failure to reactivate the EWP was an unintentional, genuine error brought about by his frustration in response to some initial inaction from Mr Garrett and his actions that followed. As to this contention, the Applicant said that he was both supervising Mr Garrett and Mr Singh and performing his own work on the day in question. He firstly described having been lowered from the EWP in which he had been working with Mr Garrett and Mr Singh so that he could replenish the grease gun being used by Mr Garrett. After satisfying himself that the grease gun was working, the Applicant said he returned it to Mr Garrett and set Mr Singh and Mr Garrett the task of elevating themselves in the EWP so that they could finish their remaining work on various panels of the aircraft.
[20] The Applicant said that when he subsequently walked back past the EWP for the purpose of signing some paperwork and/or going back to the office, he observed that Mr Garrett was not working. The Applicant said that at this point, he turned off the EWP because the hangar was noisy and he needed to be able to ask Mr Garrett why he was not working without having to yell above the background noise. The Applicant said that Mr Garrett replied by telling him that his grease gun was not working without being able explain why. He said he therefore directed Mr Garrett to demonstrate what he was doing with the grease gun and from Mr Garrett's ensuing demonstration, he concluded that Mr Garrett was "bluffing" and not pulling the trigger properly. Moreover, the Applicant asserted that Mr Garrett feigned surprise when the grease gun began to work. The Applicant said he became frustrated because he thought Mr Garrett had been lying to him.
[21] The Applicant said that he informed Mr Garrett that it was not his "first rodeo" and that he did not appreciate being lied to. He also said that he gave Mr Garrett "a little bit of what for" and that amid his frustration, he overlooked the fact that he had stopped the EWP in order to communicate with Mr Garrett. The Applicant asserts that he simply forgot to reset the EWP before walking away and that having walked over to the other side of the aircraft, he had every intention of returning to check on the work of Mr Garrett and Mr Singh. The Applicant was not certain whether he heard or saw Mr Garrett and Mr Singh being lowered but said that he only went off to lunch after he saw Mr Garrett back on the ground. The Applicant asserted that Mr Garrett could and should have called him instead of Mr Micallef. He held this view because he was Mr Garrett's supervisor, he remained within earshot on the other side of the hangar and because Mr Garrett was aware that he had switched the EWP off.
[22] While Mr Micallef said that the phone call from the raised EWP came from Mr Singh, as opposed to Mr Garrett, I have no reason to query Mr Garrett's credibility as a witness when describing the circumstances that led to him being stranded in the elevated EWP with Mr Singh. Presenting as somewhat serious in temperament, Mr Garrett gave straightforward answers to my questions at the hearing. The Applicant did not file a witness statement prior to the hearing but when his account was put to Mr Garrett during his testimony, Mr Garrett rejected it. He said that the Applicant's assertion of having replenished his (Mr Garrett's) grease gun was incorrect. Mr Garrett also disputed the Applicant's assertion that he was not working at the material time. Mr Garrett's position was that no discussion had taken place between the Applicant and himself involving the grease gun and he denied both suggesting to the Applicant that the grease gun was not working and pretending that this was the case. Further, Mr Garrett did not recall the Applicant either asking him whether he thought he (the Applicant) was an idiot or referring to his "first rodeo."
[23] The Applicant proffered that Mr Garrett had been coerced into complaining and testifying against him. I find no evidentiary basis for this submission.
[24] I am also not persuaded by the Applicant's submissions that he had been "thrown under a bus" by Mr Garrett, that his word should have simply been accepted over an apprentice's and that Mr Garrett had decided to testify against him because:
[25] Firstly, far from enunciating the motivation to retaliate, Mr Garrett said he felt concern for his safety when he unexpectedly found himself stuck in the EWP at height, with no way of safely coming down. Secondly, I consider Mr Garrett would have made a complaint much sooner if he was aggrieved at the Applicant for simply having admonished him. In any event, the chronology of events in this matter indicates it was the subsequent February 2025 allegations, and not the EWP allegations, that were the stimulus for Mr Garrett registering a complaint against the Applicant. Thirdly, noting that Mr Garrett was a second year apprentice at the time of the EWP allegations, I consider following explanations he gave to be more plausible and, ultimately, compelling:
[26] I also prefer Mr Garrett's evidence having carefully considered an integral part of the Applicant's explanation for having pressed the emergency stop button on the EWP, being his contentions that he needed to do so in order to communicate with Mr Garrett about his operational concerns and that Mr Garrett would not have been able to hear him had he not done so because of the noise emitted by the EWP's engine. In this regard I note that the Applicant conceded that he "could have yelled and screamed" but chose not to.
[27] I am not persuaded that it was necessary for the Applicant to press the emergency stop button on the EWP in order to communicate with Mr Garrett. I have taken into account and preferred the evidence of Mr Creed, who has previously held the roles of apprentice engineer, aircraft mechanic, licensed engineer, duty engineer and maintenance watch controller at easyJet in the United Kingdom over a two-decade career before progressing into management roles and his current position with the Respondent. Mr Creed attested to his experience using EWPs and opined that he could not envisage a situation where someone would need to push the emergency stop button in order to communicate with an employee on an EWP and then walk away. Mr Creed also gave evidence in relation to simulating the conditions the Applicant had described, as follows:
"I reproduced the situation and attempted to communicate with an employee in the basket while the EWP engine was on and the hangar was in a full working environment. Even with the noise of other work groups and moving aircraft, I was still able to communicate clearly with an employee in the EWP's basket."[14]
[28] I also observe that Mr Creed suggested that there are many other obvious and sensible methods for communicating with employees on an EWP regardless of the amount of noise in the working environment. He gave visual markers and radios as examples, albeit I note that the Applicant said there were no radios available on the day in question. The evidence before the Commission established, however, that the Respondent's employees were able to communicate with one another via telephone when using EWPs. In fact, they did so on the day in question. I consider it curious that the Applicant claims to have been so concerned to be able to hear Mr Garrett's explanation that he sought to minimise background noise and yet was otherwise content to observe Mr Garrett's actions and demonstration from a standing position 5-6 metres below him.
The Ute allegation and the February 2025 allegations
[30] The Ute allegation arose out of an exchange between the Applicant and Mr Garrett said to have occurred not long after the EWP incident. The Applicant did not deny there was an exchange between himself and Mr Garrett in a ute but claimed that it needed to be considered in context. The Applicant described a lead-up that involved himself, other colleagues and Mr Garrett moving some stairs used to access an aircraft. The Applicant evidently formed the view that Mr Garrett was not putting in the required amount of effort and the conversation between them became heated. The Applicant described himself as having become animated and said that when this occurs, he gestures with his hands, whereas Mr Garrett said that the Applicant waved his hands directly in his face and that he had warned the Applicant that if he did not stop doing so, he would take the matter to "HR".
[31] Mr Micallef's account was that that the Applicant and Mr Garrett had a disagreement about the stairs which continued until they were all together in the vehicle and heading back to the hangar. Mr Micallef said that Mr Garrett did not appreciate the Applicant called him a lazy worker and that when he told the Applicant that he would take the issue to HR, the Applicant lifted out of his seat and started yelling loudly at Mr Garrett, with their argument continuing on after they exited the vehicle. Mr Micallef described the substance of the dialogue between the Applicant and Mr Garrett being the Applicant accusing Mr Garrett as being "weak" for taking issues to HR and Mr Garrett stating that neither apprentices nor anyone else should have to deal with his aggression. As regards the Ute allegation, I prefer the accounts of Mr Garret and Mr Micallef.
[32] As to the February 2025 allegations, the Applicant's evidence was mixed. He did not necessarily deny making comments of a nature of those alleged by the Respondent but he maintained what he did say had been misconstrued by the Respondent and that there was context to his comments. Mr Garrett said that the Applicant commented to him "You are all pussies now, it's ridiculous, back when I was an apprentice, we used to cop all sorts of abuse" and that in reply, he stated "I would be pretty annoyed however it's not really relevant or appropriate so just leave me alone." The Applicant said that he had commented in response to seeing Mr Garrett writing in his apprentice journal and simply recounted an anecdote from his time as an apprentice that involved more senior colleagues drawing pictures of male genitals in the journals of apprentices as a joke. The Applicant relies on the Commission accepting that he was simply telling Mr Garrett a story about 'the old days' to suggest that things were different (and tougher) 'back then.' Whether I accept that the Applicant made the particular comment about apprentices he attested to and that this has been taken out of context or, in the alternative, that he made the comments attested to by Mr Garrett, I am satisfied that the Applicant failed to 'read the room' and notice that Mr Garrett neither welcomed nor cared for his commentary. As for the comments 'Were you hit much as a kid?' and 'Oi Jackson, oi, take it to the carpark, be a man', the Applicant's response was, again, a combination of a denial and an assertion that he made comments that have been taken out of context. If the Applicant made the alleged comments, I consider them bizarre, inane and not at all amusing.
[33] Even accepting that the Applicant engaged in the conduct that constituted the Ute allegation and the February 2025 allegations, I do not consider that this conduct, of itself, constituted a valid reason for his dismissal, Rather, I consider that it warranted a sanction that fell just short of dismissal and that the Applicant should have been left in no doubt that if he did not alter the way in which he interacted with Mr Garrett, his employment would very likely be terminated.
Opportunity to respond to 'any reason' related to the capacity or conduct - ss.387(c)
Any unreasonable refusal by the employer to allow a support person - s.387(d)
[34] A review of the procedural history I have outlined above satisfies me that the Applicant was notified of the valid reason for his dismissal, provided with opportunities to respond and that there was no refusal by the Respondent to allow him to have a support person present to assist at the discussions relating to the dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[35] The Respondent did not dismiss the Applicant on the basis of unsatisfactory performance and therefore, this consideration is not a relevant factor in this case.
Impact of the size of the employer on procedures followed - s.387(f) and absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[36] I have noted the disclosure of the Respondent that it has in excess of 1,000 employees and I am satisfied it dedicated human resource management specialists and expertise. I do not consider that ss 387 (f) and (g) are relevant considerations in this case.
[38] It is clear from his testimony, and the material he submitted, that the Applicant genuinely loved his job with the Respondent and I note that he passionately advocated for a finding that his dismissal was harsh and orders for lost pay and reinstatement. I have further noted that the Applicant made reference to the financial impact of his dismissal and that he disclosed having previously suffered from depression.
[39] When confronted with the prospect of being dismissed, the Applicant wrote the following in the Findings response:
"First and foremost, I sincerely apologise for my behaviour that led to these concerns and for any impact it has had on the team and the company. I fully acknowledge that breaches of conduct are serious and must be addressed, although I feel certain aspects of the allegations appear to have been misunderstood or taken out of context. I take full responsibility for my actions and am committed to learning from this situation and aligning my future conduct with the company's expectations."[18]
[40] In submitting the Appeal letter after having been notified of his dismissal, the Applicant's position had modified somewhat, with him outlining:
However, I firmly deny making any statements of a threatening or aggressive nature, nor were my comments intended to intimidate or harm. While I acknowledge that some of my remarks may have been misinterpreted, I want to clarify that they were not meant to offend or harass. I understand that others may have perceived certain interactions differently, but I strongly refute the claims as presented. I also acknowledge that Jackson and I had a difference of opinion at times but nothing untoward. We were still amicable, and we shook hands at the end of his time on our crew."
[41] By the time of the hearing, the Applicant's approach had become one of suggesting that because Mr Garrett did not like being "called" on his deficiencies, he had made up an elaborate story to incriminate him. Further, the Applicant proffered that Mr Garrett had been prevailed upon to pursue a complaint against him and then testify. I have rejected these propositions.
[43] The matters the Applicant has raised under s.387(h) do not lead me to conclude that the dismissal was a disproportionate outcome. As I have concluded above, the Applicant recklessly left two apprentices in an EWP approximately 5-6 meters above ground with no independent means of reactivating it so that it could be lowered. Mr Garrett gave unchallenged evidence of having felt concerned for his safety as a result and Mr Creed described the environment as a "safety-critical" one, requiring strict adherence to workplace health and safety policies and procedures. I consider the actions of the Applicant had the potential to cause serious harm to Mr Garrett and Mr Singh. Having regard to the totality of evidence in this case, I do not consider the s.387(h) considerations shift the weight in favour of a finding of unfairness.
[44] As outlined above at [29], I am satisfied that the actions of the Applicant in relation to the EWP constitute a valid reason for the termination of his employment. I am also satisfied that the Applicant was notified of the valid reason for his dismissal and given an opportunity to respond. I am further satisfied that none of the factors in ss.387(d)-(g) of the Act are enlivened in this case in a manner that weighs in favour of a finding of unfairness. As to the matters falling within s.387(h) of the Act, I do not consider that they so strongly outweigh the other factors in s.387 so as to favour a finding that the Applicant's dismissal was harsh, unjust or unreasonable.
[45] Having made findings in relation to each matter specified in s.387 of the Act and given due weight to each, I am satisfied the dismissal of the Applicant was not harsh, unjust or unreasonable. Accordingly, and having regard to my findings in [3] above, I find that the Applicant's dismissal was not unfair within the meaning of s.385 of the Act. As I have found that the Applicant's dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.
Mr N Lamanna on behalf of Jetstar Airways Pty Limited.
[11] Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34.
[17] The Respondent also determined that as a result of the refusal, the Applicant had attended for work and/or performed duties with a drug or alcohol level that was at or above the cut-off level under the Drug and Alcohol Management Plan.
Printed by authority of the Commonwealth Government Printer
Jarrod Mcrae
Jetstar Airways Pty Limited [2026] FWC 1122
(1938) 60 CLR 336