s.394—Unfair dismissal - Richards v Regional Express Holdings Ltd T/A REX Airlines

[TheOtherGuy]

http://www.fwa.gov.au/decisionssigned/html/2010fwa4230.htm (http://www.fwa.gov.au/decisionssigned/html/2010fwa4230.htm)

[rmcdonal]

[51] It should be noted that Mr Richards is a trained pilot. Part of that training involves ‘situational awareness’ training and it is a thing against which a pilot is regularly assessed. 41 Situational awareness was described by Mr Richards as ‘keeping an eye on the big picture, thinking ahead of the aircraft, potential problems. So it’s just being aware of the surrounding environment, anticipation’42 and includes an awareness of instruments under the pilot’s control.43
So being a pilot can be used as evidence against you. :hmm:

[Arnold E]

Situational awareness was described by Mr Richards as ‘keeping an eye on the big picture, thinking ahead of the aircraft, potential problems.
So tell me rmcdonal, why shouldn't it be???:rolleyes:

[Jober.as.a.Sudge]

This is really quite a tawdry little tale, isn't it? Quite telling of the mind-set of the individuals involved.

Many of the places I've worked, I would have been grateful for the provision of even the most modest ****-box at an away port!!!

[Arnold E]

Well let me tell you not everybody has the same attitude as you. I work at a place where some have said they would not drive any car supplied by the boss unless it was new, or near new. Tossers!!!!

[Baldnfat]

Too right Jober

Nothing worse than having to walk (with the bags) the 3 k's to the motel in 40 degree heat after a full duty/7.5 flight day.

I wonder if R#X have a car at YCDU?

[Van Gough]

now I only skim read that transcript, but why the hell should he be reinstated? If you deliberately damage company property, common sense says your employer should be allowed to sack you....


Then again another point of view is perhaps the underlying reasons/frustration for which an experienced captain would be driven to do such a thing needs to be addressed. If captains are demoralized to the point of damaging company property out of anger/frustration, could be a serious safety issue.

[puff]

Whole thing makes Rex a nice big happy family place to work :rolleyes:

[Cutter796]

Have recently returned to the joys of GA after an extended break from it for counselling and therapy. I gave the review a good read and agree with jober - like something from a kindergarten. Clearly things haven't changed much with attitudes. Give them a pair of walking boots and a stint in the real world!:sad:

[Nulli Secundus]

Conclusion

[172] Ultimately what has been established is that Mr Richards deliberately drove a crew car with the handbrake on and/or in low gear for a distance of between 600 metres and two kilometres.

[173] Whilst finding that these two incidents of misconduct by Mr Richards, as outlined by the Respondent, did occur and that the conduct constituted a valid reason for his termination, taking into account all of the circumstances, including the seriousness of the matters and the effect of the termination on Mr Richards, I consider the termination of Mr Richards’ employment to be harsh in that the penalty imposed on Mr Richards is disproportionate to the misconduct which I have found occurred.

[174] This is not to say that Mr Richards should be immune from any penalty for his conduct, just that dismissal is disproportionate.
[175] In all of the circumstances I find the dismissal of Mr Richards to be harsh, unjust or unreasonable. On this basis I find that Mr Richards was unfairly dismissed.

Commissioner Bissett: you cannot be serious?

Let me see if I get this right. An employee can wilfully mistreat company property and do so with total confidence that he or she cannot be sacked? I just don't get it!

"just that dismissal is inappropriate?" - surely its not, Commissioner.

Let's get 'ken serious for a moment. We're not talking 99 lashes, imprisonment or execution. This guy wilfully mistreated company property....... and he keeps his job. Of course he should be sacked and of course he will find that harsh and no it's not unreasonable or unjust.This country's a basket case for common sense if we accept this stupidity from FWA.
:ugh:

I bet he would have learnt a huge lesson between jobs on how to professionally express his concerns if that was his intention by all of this! Let's face it, if you don't like what's on offer, and you can't get it changed by means within the law, leave!

[KRUSTY 34]

That's what you get when Management start thinking they're Dick Tracey! :D

[Nulli Secundus]

I'm not so sure Krusty.
I suspect the Commissioner would have arrived at the same conclusion even if Rex proved all 7 acts of alleged misconduct.

Appeal Rex! (If that's possible?)

Captain Ross is laughing no doubt.:yuk:

[Captahab]

An inconsistent approach may have been a factor in the decision, why single out Richards ?

[165] With respect to the misuse of crew cars at Rex I note that there is no one else who has been investigated for misuse of crew cars who has been subject to investigation and disciplinary action. As mentioned above one captain has been stood down but the investigation into his conduct has been suspended pending completion of medical treatment. With respect to Captain Ross, the other pilot mentioned in a number of the reports referred to above, he remains at work and not stood down. One meeting with Captain Ross about his misuse of crew cars occurred one week prior to the hearing of this matter but the investigation is ongoing and Captain Ross remains at work, flying aircraft. The reasons for delay in investigating Captain Ross’ conduct are disingenuous to say the least. The complaints against Captain Ross are as serious as those against Mr Richards. That they were ‘very new’ is no different to the status of the alleged conduct of Mr Richards. Delays in the investigation because the company was dealing with defending itself against Mr Richards’ claim under the Act suggests that the conduct is not of such seriousness to warrant urgent action. That there was no need to take immediate action against Captain Ross because the action (misuse of cars) was no longer occurring defies logic. Mr Richards’ behaviour was so grave that it warranted summary dismissal and Mr Richards had lost the trust and confidence of Mr Hine. Captain Ross, against whom it would appear there is some evidence, remains at work and remains captaining aircraft with all of the attendant responsibilities that go with that function.

[SgtBundy]

Nulli - I think the Commissioner is saying disciplinary action is warranted, and an official warning or similar would have been more appropriate. In the case that the action continued after that there would have been no way he could have claimed unfair dismissal.

That said, what he did was immature and irresponsible, especially for someone of the position of captain, regardless of the reasons behind it. His denials rang of "can't prove it" and there seemed to be a pattern to it. I can't imagine life is going to be comfortable for him after reinstatement.

For Rex, it smells of a witch hunt to hang someone out for wider actions related to the cars. I agree with Krusty, sounds like they wanted to play Dick Tracey and did not do a good enough job of it and as a result shot themselves in the foot.

[The Voice]

I'd suggest a re-read of :

para 131 .. the interview conducted by Rex was less than acceptable.

para 134 - the requirement for and expectation of natural justice not being provided by Rex also didn't help their cause.

IMHO the decision and subsequent remedy conclusion is correct and fair.

[Arnold E]

Can anybody please explain to me why, when provided a car for free, anybody feels they need to abuse it. I dont understand, Am I missing something here?:sad:

[TBM-Legend]

[I]Why single out this pilot???[I]

Dumb question indeed. No different to speed traps,,,,not everyone gets pulled over. Do the crime, do the time....

Should an juvenile irresponsible clown like this be allowed to Captain an aircraft full of pax....NO

[snoop doggy dog]

What a nasty company to work for!

It looks like people backstabbing each other left, right and centre! A good team environment :ooh:? I think not :mad:

The managers should be embarrashed (and crews) that something like this has ended up in court and could not be resolved by other methods prior.

This company that calls itself an "Airline," when it acts like a two bob charter outfit in the middle of no where! Replacing taxis with cars that crew can drive after a duty? I am sure that the duties are long and crews become fatigued, whether they realise it or not, and managers have a duty of care to its' employees. If there is a Safety Management System (SMS) in place here, it surely looks like window dressing to me :ugh:.

Bl00dy cheap skates :mad:!

This two bob airline needed to get its' ducks in a row first, before wasting everyone's time with this stupid issue that should have been resolved in-house one way or another.

There is an old saying, "the sh!t always floats to the top." Certainly evident with the mangement in this two bob operation :(.

[The Green Goblin]

It would be interesting sitting in the box at the next check. I would not want to be in the right seat to him with the impending double engine failure, avionics failure, volcanic ash, standby failure, in flight fire with cloud and acid rain below ILS landing minima......

It's going to be a fun one :d

[VH-XXX]

I would drive a Nissan Tiida like that too. At least they could have bought them something decent to drive around in.

[Arnold E]

this stupid issue that should have been resolved in-house one way or another.Hmmm, I think the company thought they had resolved the stupid issue.:rolleyes:

XXX. I assume you are joking.:rolleyes:

[Nulli Secundus]

When one re-reads the Commissioner's report you simply can't overlook his or her interpretation of what's fair. Its a bizarre and idiotic finding.

Let's not see the guy lashed, imprisoned, fined or executed........... but for goodness sake: you can't keep your job!!!

This is not a school, Richards is not a kid facing expulsion. He chose to commit an offence to property. Now, go and take your chances back out in the real world, find a new job and think long and hard about damaging company property! YOU TAKE RESPONSIBILITY FOR YOUR ACTIONS.

Tough love maybe, but when you jeopardise company operations of course you jeopardise your own employment.

Get with the programme FWA. Genuine employee mistakes - part of life. Wilful damage - you're out! Don't back the little guy just beacause he's the little guy, back the guy that got kicked.

[gas-chamber]

If aircrew behave in that manner towards an old clunker car they take a dislike to, what could they do to an airplane that annoys them? The only place most self-respecting guys would abuse machinery is on the race track. The judge used the word 'petulant' in there somewhere. About sums it up. What the world does not need is petulant pilots.

[Checkboard]

When one re-reads the Commissioner's report you simply can't overlook his or her interpretation of what's fair.

The Commissioner made his/her decision on what Rex thought was fair. He looked at Rex's response to others accused of the same actions, noted that they were still flying, and thus concluded that Rex didn't consider that these actions were incompatible with Captaining their aircraft.

Once that conclusion had been reached, Rex's dismissal of this Captain, and their position that the dismissal was because they couldn't trust him after these actions was unfair (as it only applied to one of the accused, not the others.).

It was clear that the Commissioner thought the Captain in question was an idiot, risking the safety of the other passengers in the car (and indeed, by prematurely wearing out the brakes, risking those who drove the car after!) If Rex had followed decent HR practice (good documentation, standardised punishment), the dismissal would have stood.

As to the "self drive vs taxi" issue - it's no imposition to drive 2 km to a hotel. It's an advantage to have free access to a car for the night - and driving your self is probably safer than a taxi in any case.

[neville_nobody]

As to the "self drive vs taxi" issue - it's no imposition to drive 2 km to a hotel. It's an advantage to have free access to a car for the night - and driving your self is probably safer than a taxi in any case.

Except when you're involved in some sort of accident and it comes out in court that you have been awake since 0400 worked for 14 hours without any form of rest or break.

[SgtBundy]

Except when you're involved in some sort of accident and it comes out in court that you have been awake since 0400 worked for 14 hours without any form of rest or break.

The notes show Rex policy allowed them to use taxis if they felt the need. I would hope if not one of the crew was feeling up to doing a 5 minute 2km drive after a shift, at least the captain would be responsible enough to recognise it and take a taxi.

Given the nature of some of the complaints in this instance though, that might be making a big assumption. :hmm:

[Arnold E]

Except when you're involved in some sort of accident and it comes out in court that you have been awake since 0400 worked for 14 hours without any form of rest or break
And so, this gives you the right to damage company property does it?:ugh::ugh:

[porn star]

"The notes show Rex policy allowed them to use taxis if they felt the need"
and then youd need to explain it to management as to why youd used a taxi in the first place.

[Checkboard]

I would hope if not one of the crew was feeling up to doing a 5 minute 2km drive after a shift, at least the captain would be responsible enough to recognise it and take a taxi.

.. and given that they were landing an aeroplane 20 mins before the drive :eek: - if they're THAT tired, perhaps they should have refused the entire duty! :hmm:

[neville_nobody]

It doesn't excuse what happened but you would find yourself doing some serious explaining if it wound up in court no matter how fit you thought you were to drive.

[KRUSTY 34]

On the surface Ckeckboard that seems a fair comment, but where do you draw the line? Flight and duty limits are just that, limits. Quite often rostering will plan to those limits simply because they can! It doesn't only happen at REX, in fact some other airlines seem to make an obsession of it. Just ask how hard the Jetstar boys and girls work.

The point is, some duties are longer and harder than others. Just because you are fit at the beginning, doesn't mean to say you are not at your "personal limit" at the end. It's that limit that all responsible and professional crews need to understand.

The introduction of crew cars has come under a fair amount of critizism, but mostly for the way in which it was introduced in the first place! Also the manner in which pilots now have to justify their "personal limit" or in fact whatever reason they choose not to use the car on any given day. Then there is the issue of personal liability, not only for the driver, but for the rest of the crew as well. Although we are professional pilots, few of us are professional drivers, and certainly none are employed as such. It's against this background that most of the angst has been generated.

Does this in any way justify the actions of some people? Absolutely not! But when you have a management style that pushes headlong into a system of operation with no consultation, and little or no regard for the possible consequences, is it any wonder they F@rked the rest of it up!!! :{

[no one]

So you can deliberatly fly with the cockpit door open (and keep your job, but demoted to FO)
however if you ALLEGEDLY damage a crew car...SACKED!

[dh98mosquito]

would you want to be in the f/o or f/a shoes when they go into work??:\ Good trust building exercise it would seem.
AS for Mr Richards maybe not the smartest decision he has made.

[Under Dog]

So here is the senario, you return to your home base after a long duty, do you hop in your own car and drive home in this manner?We do know that quite a number of crew in Syd live a fair way from the airport. I think it may be an attitude issue here rather than any fatigue problem.

The Dog

[Bloody Blind Bat]

Fantastic news and hope it all works out for you Tony.
You were (are) great to fly with and always professional. This is the most just outcome most of us ex-Rex employees have been hoping for!
If the whole car usage was discussed appropriately with the crew in the first place, instead of being thrusted on them, they wouldn't have been abused in the first place.....and boy do we know you were the scapegoat amongst the many who have done so.
Fly safe and all the best!

[PLovett]

Actually I am rather surprised at Rex introducing the idea of crew driven cars for use at overnight locations. It raises a rats nest of legal implications for the driver should there be a crash on the way to or from the motel.

For example; has the pilot/driver's duty time ceased?; are the passengers covered by workers compensation?; who is legally responsible for the vehicle overnight? These are just a few I can think of immediately and I am sure there are far more than this.

[Stationair8]

A number of valid points raised by PLovett, regarding the legal side of using the company car.

But why would REX go down the company car thing anyway?
The age old thing who puts petrol in it, who gets it serviced, what happens when you get a flat battery, flat tyre, who changes the windscreen wipers or replaces the knackered fan belt,when is the oil checked, what about the tyre pressures, who puts the rego sticker on etc?

Does Rex management specify a certain brand of fuel, do the pilots need to bring their own shopper dockets for that 4 cent discount or do management supply the shopper docket?

Does REX management allow for the pilot hitting a pot hole and knocking the steering out of alignment?

What about getting pulled over by the Police for driving a vehicle with a defect such as a brake light out, who pays the fine?

What's it really cost really REX in running costs, depreciation, insurance, rego, servicing etc?

Wouldn't it make more sense to have a taxi pickup your crew each morning and night, to save the problem of the flat battery or flat tyre at 05:30 am?

Best of luck Tony, love to be a fly on the wall in the simulator!!!

Hope the dobbers realise that aviation is a small community in this country, never know who know's who as they say!

Now REX management must think that pilots are real dumb trying to damage a company car by the means listed in the court documents, I can think of at least a dozen more sinister things to do a car that would result in far more costly damage and be very hard to pin on a pilot!

[Checkboard]

So, if the concerns about insurance, excess, liability, servicing etc etc weren't automatically addressed by the company when the cars were introduced (and I can't think why - it would have to be pretty incompetent management who took this course of action without addressing these basics!) then you list those concerns in a letter, send it to the management, and until it is answered use the taxi option provided.

If I saw crew deliberately damaging company equipment, I would tell them to stop, and if they didn't, report it. Dobber? I prefer to think of it as integrity. :rolleyes:

[SgtBundy]

I can't imagine its anything different to a normal company car lease, where fuel, tyres, maintenance, fleet insurance, rego are all part of a package. Fleet insurance is pretty broad, typically as long as the company gives the ok for someone to drive it and they can do so legally, it is covered - with the normal clauses for deliberate damage, dangerous driving or illegal driving. If they are booked by the law for any reason, that's the problem of the driver in question, not the company.

Workplace laws are pretty clear that you are still on company time in transit to or from work, so from a liability perspective Rex is responsible OH&S wise (insert not a lawyer disclaimer, but has been made clear to me on several occasions in my employment after doing marathon shifts).

All in all, that is beside the point. The company provided them the car and a taxi alternative for travel. Maybe the policy was implemented badly, maybe it was never a good idea, it doesn't matter. I agree the investigation smelt like a witch hunt and that Rex stepped over the line in firing him. None of it is an excuse for the actions he was found to have done or accused of doing, particularly for someone in the position of Captain.

[Wally Mk2]

It's obvious that there are two schools of thought here & that's fine we live in a democratic society where justice is blind. What puzzles me though is what brought this pilot to the point where he needed to vent his anger out on Co property?
This is nothing new there would be zillions of cases where employees have vented their anger out on Co property for a whole lot of reasons. Kicking a door, throwing the phone across the room, scratching a Co car etc etc etc. No rational person given the responsibility to CMD a plane would do such a thing without a deeper & perhaps more underlying problem within.
Find this out & just maybe the few motor vehicle incidents here would pale into insignificance. There has to be a lot more to this than some auto vandalism.


Wmk2

[no one]

I agree with the last couple of posts regarding legallity, and especially PLovett as I worked with you once.
There was not long ago a few ports that we were told not to drive the crew cars, this was because they were already being driven with no current rego.

[The Green Goblin]

I wouldn't have a problem driving myself to a hotel after a long shift in a crew car. I would have a problem with driving the crew in a crew car after a long shift.

It would not take much of a lawyer to twist it into a negligence case in the event of a bingle and seek to have you personally liable for any injuries sustained. It would also not take much for the companies lawyers to pin it back on the driver either. After all, your duty ends when you sign off at the airport.

[The Wawa Zone]

Personally I've never seen company cars at remote bases (except mine :) )that were NOT inexorably on their way to SimsMetal, for the reasons of either neglect or malice mentioned above. In fact my guess is that the purchase cost of a replacement company car should not exceed the equivalent of 3 years taxi fares minus fuel and rego, ie., the economic break-even point....

Dobbing people in ? To be fair on the witnesses here, few people have any idea of how an investigative process works and how information can be elicited in an interview, when the pressure is on the interviewee and time seems short. In other words, they may feel that they don't have any choice except to dob in someone, ie., the interviewer's target, in written format. Studying this process is something everyone should do, just for future reference. Google phrases such as "cognitive interview", "Police interview techniques" and "accusatory question".
In the end, you want the interviewer to think he's looking through the dunny window of an empty house.

Sure, if a pilot needs a good swig of JD at TOD then it would be a good idea to tell someone.
However, for non-aviational matters perhaps total amnesia is a safer course of action for people asked to contribute to the company's cause, because everyone else does have a long memory.
Another problem with making a written statement against someone else, or even having your name on a substantial set of interviewer's notes, is that they can come back to haunt you in digital form years later, in someone else's hands.
The old GA maxim of "Tell no one nuffink" is at odds with the SMS-era, however in some circumstances the SMS-era may, sometimes, be at odds with you !

[Stationair8]

For all budding Rex pilots may be a good idea to do one of the following courses
www.ianluff.com.au (http://www.ianluff.com.au),
www.murcotts.com.au (http://www.murcotts.com.au)
www.cams.com.au (http://www.cams.com.au)
may help get that dream job on the swedish valiant!

Notice on the Rex website no requirement to hold a car drivers licence, when applying for a pilot position.

[Checkboard]

It would not take much of a lawyer to twist it into a negligence case in the event of a bingle and seek to have you personally liable for any injuries sustained. It would also not take much for the companies lawyers to pin it back on the driver either.

Gee! You don't want to be doing anything with real formal responsibility in the event of an accident then - like commanding an aeroplane! :rolleyes:

[PLovett]

Quote:
It would not take much of a lawyer to twist it into a negligence case in the event of a bingle and seek to have you personally liable for any injuries sustained. It would also not take much for the companies lawyers to pin it back on the driver either.


Gee! You don't want to be doing anything with real formal responsibility in the event of an accident then - like commanding an aeroplane!

Checkboard, believe me in law there is a world of difference between hiring someone to fly an aircraft and then having them drive a car.

The major issue I believe is that Rex would be breaching their occupational health and safety obligations by having one of the flight crew drive the others to their overnight accommodation. I know it sounds stupid given the driving talents of some taxi drivers but legally all would be in a much better position to have a licensed driver at the wheel rather than a crew member.

[Checkboard]

I would certainly hope that any crew member driving a car is a licensed driver!

[The Green Goblin]

Quote:
It would not take much of a lawyer to twist it into a negligence case in the event of a bingle and seek to have you personally liable for any injuries sustained. It would also not take much for the companies lawyers to pin it back on the driver either.
Gee! You don't want to be doing anything with real formal responsibility in the event of an accident then - like commanding an aeroplane!

While you are employed as a Pilot and conducting your work provided you are not deliberately negligent you are covered by Pilot indemnity.

The same cannot be said driving a crew car with crew after your duty ends.

[SgtBundy]

At at least two jobs, I have been told travel on work hours, even commuting, is still under the cover of OH&S laws. This was specifically related to driving home after pulling an all nighter due to a crisis. A quick google backs this up:

http://www.workcover.nsw.gov.au/formspublications/publications/Documents/ohs_consultation_background_information_4228.pdf

The section on Non-workplace accidents specifically includes:


Non Workplace Injuries
These types of injuries involve accidents that have occurred away from the workplace but where the worker is considered to be on duty. There are three categories:
• Road traffic accidents (arising out of or in the course of employment but not
whilst commuting)
• Commuting accidents (where an injury occurs during travel between home and work
...


I think it would take some very fancy footwork for a lawyer to argue if the company supplied you a car and accommodation and had a policy expecting you to use said car to get to accommodation, that the company was no longer liable simply because you were not doing your primary job function. Of course deliberate negligence or illegal actions tend to throw that out the window.

[The Green Goblin]

I understand what you're saying Bundy, but then when does your duty start and end as a Pilot?

It could be argued that you chose to drive the crew car fatigued after a long tour of duty, the company provided taxis for this particular reason (however frowned upon the use) and you chose to drive in such a condition regardless, injuring your fellow workers.

I would feel uncomfortable in such a situation as can be attested by the actions of the crew. I don't however condone sabotage of company equipment. I would have addressed my concerns to the company (via the Chief Pilot) hoping for resolution, but if a resolution was not forthcoming as a union member I would have the right to representation of my concerns via industrial channels.

[gurney42]

somewhat late in this thread, I know. quick assumption is (1) if you are "required to drive a company car prior to or after a tour of duty, then your duty time either starts or finishes when you park said vehicle at airport or hotel. Pretty sure that duty time is when you finish or start duties associated with your employment.?? (2) question that someone should have asked, is the designated driver ? legally , in company parlance , able to drive said vehicle with passengers. Has a formal test or observation taken place? With no disrespect to anyone, what is the legal implication of a crew member acting as a company car driver with staff? What if a P plater is the driver? As for damaging the car, either the company and staff person have larger issues that open up the holes in the cheese or maybe not driving was a good idea.

[Checkboard]

Of course deliberate negligence or illegal actions tend to throw that out the window.

hmmm - like have the brakes fail on one side but not the other, dragging you into oncoming traffic, because you are deliberately driving with the handbrake on?

[no one]

Checkboard I think your missing the point,

The commissioner found that 2 of the 7 allegations to be true and based on the way it was handled (immediate dismissal) was 'harsh, unjust or unreasonable' and therefore shall be reinstated, considering there is still a captain flying at the moment with complaints as serious.
The chief pilot stated he had lost trust with Mr Richards, yet obviously not with the other captain who have the same allegations...?

[Baldnfat]

Is this guy the same Tony Richards now advertising in the "seats wanted" section of the Fieldair website?

Our company is recruiting and I'm thinking his chances of a start are pretty slim.

In a few seemingly small acts most likely done with very little thought to the consequences he has certainly done some damage to his prospects.:\:\

R*X may well be Australia's sh**tiest regional to work for but actions that see these types of court proceedings take place never end well.

[Stationair8]

So is Tony really "the stig"?

[peterpilot65]

REX should not expect crew to drive to and from the accomodation at an out port on a minimum rest overnight.

As a Captain, I would refuse to drive under those circumstances due to OH&S and liability issues.