Captain denied the right to respond dismissed following $150K yacht collision

A captain fired for causing $150,000 of damage to a yacht has had his unfair dismissal claim rejected by the Fair Work Commission. This was despite his employer denying him the right to respond to allegations relating to being derelict in his duties.

Often, we’ve seen the Fair Work Commission rule in favour of employees who were dismissed without procedural fairness. However, this recent case goes to show that denying an employee their right to respond does not always lead to an unfair dismissal ruling.

In this article, we look at the events of – Paul James McAllister v Ahoy Club Fleet Management Pty Ltd [2024]. We also look at another recent unfair dismissal case that ended very differently. Where the Fair Work Commission awarding over $46,000 to a worker who was denied the right to respond.

Captain loses unfair dismissal claim despite lack of procedural fairness

Paul McAllister started working for Ahoy Club Fleet Management in September 2023, joining as a full-time Captain. As the master of the company’s vessels, he was required to ensure the safety of all aboard and to handle the vessel and its equipment with the utmost care.

Mr McAllister was required to maintain a constant lookout and to actively determine if there was a risk of collision. It was essential that he ensured the bridge remained manned at all times to maintain a proper lookout.

Collision causes $150K in damage

The incident that prompted Mr McAllister’s dismissal took place in May 2024 in Airlie Beach, Queensland. He was captaining a 35-metre luxury motor yacht carrying 12 guests and 7 crew for a two-hour charter. Upon returning the boat to its dock, Mr McAllister steered the vessel into the Hayman Island Port Channel Marker.

The collision, which occurred close to the Hayman Island marina, was reported to have caused an estimated $150,000 in damage. The collision also nearly crushed a deckhand. The yacht also experienced operational disruptions, which required immediate attention and a thorough review by Ahoy Club’s management.

Investigation finds captain to blame

Ahoy Club quickly responded by sending its yacht manager to Airlie Beach to investigate the incident. As part of the investigation, Mr McAllister was asked to provide a statement explaining the factors that contributed to the collision. In his response, he attributed the accident to a variety of factors. Including fatigue, darkness, time pressures and distracting questions from guests.

He further explained that he had turned off the vessel’s radar to gain a better visual perspective outside the bridge. Mr McAllister claimed this was necessary due to the conditions at the time.

An employee’s right to respond is directly related to workplace allegations that have the opportunity of resulting in substantiated allegations, or punishment. Which can be differentiated from responding to questions to satisfy fact finding procedures.

Captain is dismissed without his right to respond

Despite Mr McAllister’s account, Ahoy Club’s internal investigation concluded that he had committed multiple serious breaches of safety protocols and regulatory requirements. Findings indicated that Mr McAllister had violated several standing orders, ignored emergency protocols and disregarded the International Regulations for Preventing Collisions at Sea.

Specific lapses cited included switching off radar equipment and leaving the bridge while the vessel was underway. He was also found to have not sounded the alarm or mustered crew and guests after the accident. Mr McAllister had also left one guest unsupervised on the bridge.

In light of these findings, Ahoy Club dismissed Mr McAllister. Citing gross negligence and critical safety breaches as the basis for their decision. The company determined that his actions not only posed risks to the safety of all individuals on board. While also resulted in significant financial damages and compromised the company’s operational standards.

Fair Work blasts ‘disingenuous’ captain

Mr McAllister subsequently lodged an unfair dismissal claim with the Fair Work Commission. He argued that his sacking was unfair as the collision was his first in his 27-year maritime career. Mr McAllister, however, admitted that he had been “distracted” by guests who had been on the bridge at the time of the collision.

The Fair Work Commission concluded that the fault for the collision lay with Mr McAllister. It characterised his reasons for the collision as “disingenuous.” Rather, it determined that the main cause was his failure to appoint a helmsman to keep a lookout.

Lack of procedural fairness regarding right to respond

The Fair Work Commission noted that Mr McAllister was denied procedural fairness. It observed that he had been given the chance to provide a statement when the internal investigation commenced. However, he was later denied his right to respond to allegations that were later used to sack him.

These procedural deficiencies, however, were deemed moot by the Fair Work Commission. It stated that Ahoy Club had a valid reason to dismiss him and that the “procedural defects ultimately did not affect the final outcome.” The commission stated that even if Mr McAllister was provided the chance to respond to the allegations, “the result would have been the same.”

Unfair dismissal claim rejected

The Fair Work Commission said that Mr McAllister’s actions demonstrated “wilful, deliberate and inconsistent” behaviour in relation to the expectations of his role. It stated that his decisions during the incident contravened safety protocols and compromised the welfare of the crew and passengers.

The commission noted that, as the senior officer on the vessel, Mr McAllister was required to act with “loyalty, trustworthiness, and honesty.” It found that he had been lacking these qualities in his conduct during the incident.

The Fair Work Commission determined that Mr McAllister’s behaviour met the definition of “serious misconduct” under the Fair Work Act 2009. It was ruled that his summary dismissal was fair given the potential consequences for both human safety and financial liability. Mr McAllister’s unfair dismissal claim was therefore rejected.

This decision demonstrates that procedural fairness and allowing the right to respond is an important aspect of employment practices. However, significant breaches of safety protocols can provide sufficient grounds for termination.

Dismissed worker denied procedural fairness wins $46K at Fair Work

Another recent unfair dismissal case involving procedural deficiencies but ending in a far different outcome is Bradley Curran v Nick Scali Limited [2024] FWC 1585 (18 June 2024).

Bradley Curran began working for furniture retailer, Nick Scali Limited, in November 2018. Working as a showroom manager at a number of stores in Queensland. He was required to clock in and out of work by using a finger vein scanner.

Mr Curran was promoted to State Regional Manager for eastern and southern New South Wales. Prior to assuming his new position, he had taken a two-week leave at short notice to care for his hospitalised daughter. He was officially upgraded to the new position while he was on leave.

Upon his return, Mr Curran was instructed not to resume work but instead attend a meeting. He was told that he had failed to work out issues relating to his salary and relocation. His promotion contract was subsequently withdrawn. Mr Curran was then offered a position as a showroom manager in a single store.

Worker is dismissed for ‘unexplained absences’

Two days after this meeting, he was dismissed over the phone. Nick Scali cited discrepancies in his attendance records. The company alleged Mr Curran had failed to scan off at the end of his shifts and that he had left the store early without authorisation multiple times per week.

In his termination letter, Nick Scali said that he had “unexplained absences from the showroom.” The employer claimed these absences “ranged from between 30 minutes on occasion, to longer durations, including where you would not return to the showroom by the end of the day.”

Nick Scali also told Mr Curran that he was being fired for “poor communication with the showroom team and with management.” The company said that he would leave the showroom “without telling team members how long you expected to be gone. The company also said Mr Curran “did not promptly return calls from corporate head office.” These issues, the company claimed, “brought [Mr Curran’s] reliability and leadership into question.”

He subsequently lodged an unfair dismissal claim with the Fair Work Commission.

Mr Curran’s right to respond to the allegations is relevant in this case because if he got the opportunity to respond then his dismissal may have been avoided. However, in the previous case responding to allegations would not have affected the final outcome.

Fair Work Commission decides

At Mr Curran’s unfair dismissal hearing, the Fair Work Commission took issue with several of Nick Scali’s arguments. It found that the finger vein scanning system was unreliable. Evidence surfaced that the company was aware of glitches in the system and that it often did not work. Evidence also revealed that managers had the ability to approve any time variations or missing timesheets.

The commission also found that Nick Scali had failed to substantiate its claims regarding Mr Curran’s early departures from the store. He had maintained that he had left early so he could attend to other stores under his management. Mr Curran also argued that he kept in phone contact after leaving early. Nick Scali, despite making the claim Mr Curran regularly left early, did not provide sufficient evidence of the actual dates that he did.

“I am satisfied the evidence does not show the Applicant was leaving work early 3-4 times per week,” Fair Work Commission Deputy President Dean said.

Lack of procedural fairness found

Another glaring issue with Nick Scali’s dismissal of Mr Curran was that the company had denied him the opportunity to respond to the allegations against him. The phone call, during which he was informed of his sacking, was deemed insufficient for a comprehensive discussion. This was because it lasted only about 15 minutes and lacked detailed information regarding the allegations of leaving work early.

“Had he been provided with dates and a reasonable period of time, he could have checked his own records to ascertain his whereabouts,” stated the Fair Work Commission.

The Fair Work Commission also emphasised that Mr Curran had not received any prior warnings about performance-related issues before his sacking. In its decision, the commission asserted that the absence of warnings was particularly significant given that Mr Curran had recently been promoted.

“I am satisfied and it is not in dispute that no warning was given to the Applicant that his employment was at risk prior to his dismissal,” Fair Work Commission Deputy President Dean said.

The Fair Work Commission ordered Nick Scali to pay Mr Curran $46,218 in compensation, equivalent to four months’ salary. The calculation of this amount reflected was based on how long he would have likely remained employed had the correct dismissal processes been followed.

Have you been denied the right to respond?

Not being given the right to respond to allegations is one of the most common ways employees are denied procedural fairness. But there are other ways you can be denied procedural fairness. For instance, if the investigation into your conduct was mishandled or biased. Or if you were not allowed to have a support person present in meetings discussing your dismissal.

If you suspect you were denied procedural fairness prior to being fired, give us a call today. Our team at A Whole New Approach are Australia’s leading workplace mediators. We’ve helped over 16,000 employees seek reinstatement or compensation through the Fair Work Commission.

We can help you understand what action you can take and how to go about it. Call us today on 1800 333 666 for a confidential and private discussion.

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