Application by Craig Fletcher
[2021] FWC 6670
•23 DECEMBER 2021
| [2021] FWC 6670 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Craig Fletcher
(AB2020/18)
DEPUTY PRESIDENT DEAN | CANBERRA, 23 DECEMBER 2021 |
Application for an FWC order to stop bullying.
[1] On 10 January 2020, Mr Craig Fletcher made an application pursuant to s.789FC of the Fair Work Act 2009 for an order to stop bullying that he alleges has taken place within his workplace. Mr Fletcher is employed as a Licensed Aircraft Maintenance Engineer (LAME) by Eastern Australian Airlines Pty Ltd T/A QantasLink (Eastern Airlines) at the Canberra Airport.
[2] The application sought an order from the Commission against Mr Mace Rosenblatt, Manager Base and Line Operations, and Mr Andrew McDonald, in his capacity as Duty Maintenance Supervisor (the Persons Named).
[3] Mr Fletcher alleges that the Persons Named have engaged in bullying and unreasonable behaviour towards him and contends that he has been subjected to increasing intimidation and pressure in the workplace between 2017 and July 2019, principally as a result of him raising safety concerns and there being disagreements between the parties about the correct approach to aircraft maintenance. The Persons Named both deny that they engaged in any bullying action towards Mr Fletcher.
[4] Mr Fletcher contends that the instances of bullying behaviour include being verbally abused, coerced, and intimidated by the Persons Named and being the subject of investigation by Eastern Airlines in an unfair manner.
[5] A hearing was held in this matter on 3, 4, 5 May 2021 and 14 July 2021, with Ms L Saunders of Counsel appearing for Mr Fletcher, and Mr D Lloyd of Counsel appearing for Eastern Airlines and the Persons Named.
[6] Mr Fletcher gave evidence by way of a witness statement which annexed a large number of documents. He also relied on the evidence of Mr Stephen Re, Technical Manager at the Australian Licenced Aircraft Engineers Association (ALAEA).
[7] Eastern Airlines relied on the statements and evidence given by the following people:
• Mr Mace Rosenblatt, a Person Named;
• Mr Andrew McDonald, a Person Named;
• Mr Craig Gillespie, Manager Safety, Quality and Training, QantasLink;
• Mr Dave Delahay, Manager Maintenance Operations, QantasLink;
• Mr Kim Perkins, Manager Line Maintenance, Sunstate Airlines Pty Ltd;
• Mr Stephen Blakeney, Corporate Governance Adviser, Qantas Airways Limited;
• Mr Cameron Young, Line Maintenance Manager, QantasLink;
• Mr Michael Kibble, Planning Operations Coordinator, QantasLink;
• Mr Micky Jovanovski, LAME, QantasLink.
Relevant legislation
[8] Section 789FC of the Act sets out when a person can make an application to the Commission for an order to stop bullying:
Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.
[9] Section 789FD of the Act sets out the requirements for a person to have been bullied at work:
When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.
[10] Section 789FF of the Act sets out when the Commission may make an order to stop bullying:
“FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and
(d) any matters that the FWC considers relevant.
Background
[11] Mr Fletcher commenced employment as a LAME at QantasLink, Eastern Airlines on 9 May 2016, after working for 27 years with Qantas. As a LAME, Mr Fletcher maintains aircraft and certifies their airworthiness and performs line maintenance on Dash 8 and B717 aircraft.
[12] Line maintenance includes performing daily checks, termination checks and A-Checks, all of which are can be conducted at either the terminal or in the hangar. This can be distinguished to that of heavy maintenance, or base maintenance, which is usually defined as a C-Check or a major maintenance visit and is conducted in the hangar only.1
[13] There are four LAMEs to a crew in line maintenance, who then report to the Duty Maintenance Supervisors. Until late November 2020, Mr McDonald was a Duty Maintenance Supervisor. The two Duty Maintenance Supervisors then report to Mr Rosenblatt.
[14] Each crew of LAMEs includes one employee who is appointed to act as a Shift Supervisor. Mr Fletcher was the Acting Shift Supervisor in his crew until he was seconded from line maintenance to heavy maintenance in January 2018, where he then performed work as a Zonal Supervisor for the dual line B717 C-Check at the Canberra hangar. In about July 2018, Mr Fletcher’s secondment in heavy maintenance ended and he was placed back into a LAME line maintenance crew, however, was not made a Shift Supervisor at this time.2
[15] Eastern Airlines’ safety processes are governed by the Eastern Australia Airlines CASR Part 145 Approved Maintenance Organisation Exposition (MOE). Part of its safety management system involves the making of ‘Engineering/Maintenance Incident Reports’ (EMIRs), also commonly referred to as HIROs. A HIRO, ‘Hazard Incident Reporting Online’, is the company report form used to report on-ground work health and safety, and operational safety hazards, engineering or maintenance related issues, including maintenance errors detected during aircraft or aeronautical product maintenance.
[16] During Mr Fletcher’s employment with Eastern Airlines, he has generated a number of HIROs that he argues were identifying engineering and safety concerns, defects and errors which he believes his managers have been ignoring. Instead, Mr Fletcher contends that he has received constant criticism, intimidation and bullying for lodging such HIROs, which has consequently led to the making of his application before the Commission for an order to stop bullying.3 In addition, the parties are in dispute about whether ‘Just Culture’ has been applied to Mr Fletcher appropriately throughout Eastern Airlines’ internal investigations.
[17] Eastern Airlines has provided a helpful table titled ‘Short Chronology of Events’, which is set out below:
# | Date | Summary of Event |
1 | 9 May 2016 | Mr Craig Fletcher commences as a LAME employed by Eastern Australia Airlines Pty Ltd at the Canberra hangar. Mr Fletcher works on line maintenance and is appointed an acting shift supervisor. |
2 | 24 August 2017 | Discussions between Mr Fletcher and Mr Rosenblatt about maintenance on aircraft YQT. |
3 | January 2018 | Mr Fletcher seconded to heavy, or base, maintenance at the Canberra hangar. |
4 | 2 March 2018 | Maintenance error – Mr Fletcher submitted HIRO-169971 in relation to his use of uncontrolled data when performing maintenance on aircraft YQY on 18 February 2018. |
5 | 4 March 2018 | Mr Fletcher’s Company Authorised Number (CAN) was suspended by Mr Craig Gillespie as a result of the maintenance error on 18 February 2018. |
6 | 13 March 2018 | Mr Fletcher’s CAN was reinstated by Mr Gillespie, following investigation of the maintenance error by Mr Rosenblatt and a series of meetings between Mr Fletcher and Mr Rosenblatt to reinforce Mr Fletcher’s CAN related obligations. (Origin of the First instance of alleged bullying claimed in F72, as against Mr Rosenblatt and/or Mr Andrew McDonald.) |
7 | May 2018 | Alleged discussion between Mr Fletcher and Mr Rosenblatt concerning actions of Mr Naushad Ameen. |
8 | 3 July 2018 | Mr Fletcher submits HIRO-191377 in relation to worn latches on aircraft YQW. |
9 | 4 July 2018 | Mr Fletcher’s secondment to heavy maintenance ends and he returns to line maintenance on his next shift, two days later on 6 July 2018. Mr Fletcher is not appointed as a shift supervisor. (Origin of the Second instance of alleged bullying claimed in F72, as against Mr Rosenblatt and/or Mr McDonald.) |
10 | 4 July 2018 | Mr Fletcher has a discussion with Mr Michael Klibbe and subsequently a meeting with Mr McDonald. |
11 | Early July 2018 | Further discussion between Mr Fletcher and Mr McDonald. |
12 | 19 July 2018 | Meeting between Mr Fletcher and Mr Rosenblatt. (Fourth instance of alleged bullying claimed in F72, as against Mr Rosenblatt.) |
13 | 31 July 2018 | Grievance – Mr Fletcher lodges grievance against Mr McDonald and Mr Rosenblatt, in relation to 3 matters – (1), demotion, (2), bullying and victimisation by Mr McDonald, (3), intimidation by Mr Rosenblatt. Grievance subsequently reviewed by Kim Perkins. |
14 | 31 August 2018 | QantasLink Roadshow at Canberra – attended by management and staff, including Mr Fletcher, Mr Rosenblatt and Mr Delahay. Subsequent discussions between Mr Fletcher and Mr Delahay. |
15 | 25 October 2018 | Interaction between Mr Fletcher and Mr McDonald after Mr Fletcher had clocked in early to work that day. (Third instance of alleged bullying claimed in F72, as against Mr McDonald.) |
16 | February 2019 | Interaction between Mr Fletcher and Mr Rosenblatt concerning the alleged actions of Mr Rob Masling. (Fifth instance of alleged bullying claimed in F72, as against Mr Rosenblatt.) |
17 | February 2019 | Interaction between Mr Fletcher and Mr McDonald, that also involved Mr Micky Jovanovski. (Sixth instance of alleged bullying claimed in F72, as against Mr McDonald.) |
18 | 4-5 and 18 April 2019 | Alleged misconduct – Eastern alleged that Mr Fletcher was aware of aircraft defects but did not immediately report them. Allegations 1-3 relate to aircraft YQU. Allegations 4-6 relate to aircraft YQT. |
19 | 6 July 2019 | Mr Fletcher directed not to attend work pending an investigation into Allegations 1-6. (Origin of Seventh instance of alleged bullying in F72, as against Mr Rosenblatt, and Eighth instance – ALAEA Analysis of alleged bullying in F72, as against Mr Rosenblatt and/or Mr McDonald). |
20 | 22 July 2019 | Whistleblower disclosure – Mr Fletcher submitted a whistleblower disclosure under the Qantas Whistleblower Policy. Disclosure subsequently investigated by the Qantas Whistleblower Committee. |
21 | 31 July 2019 | Letter of allegations issued to Mr Fletcher from Mr Shane Wilden, investigator, regarding Allegations 1-6. Mr Fletcher subsequently provided his responses in writing, including to further correspondence from Mr Wilden. |
22 | 13 August 2019 | Grievance outcome – Outcome of the grievance review provided to Mr Fletcher by letter from, and in person during a meeting with, Mr Kim Perkins. |
23 | 15 August 2019 | Review of grievance outcome – Mr Fletcher requested a review of the grievance outcome. Review not completed. |
24 | 12 November 2019 | Whistleblower investigation completed - Mr Fletcher notified of the outcome of the whistleblower investigation in correspondence from Mr Stephen Blakeney, on behalf of the Qantas Whistleblower Committee. |
25 | 10 January 2020 | F72 filed by ALAEA. – Subsequently, conferences and conciliation before the Fair Work Commission. |
26 | 24 February 2021 | Completion of misconduct investigation - Letter from Mr Wilden to Mr Fletcher informing him that Allegations 1-3 were substantiated, and Allegations 4-6 were not substantiated. |
27 | 4 March 2021 | Commencement of show-cause disciplinary process – Correspondence from Mark Longmuir to Mr Fletcher commencing a show cause disciplinary process arising out of the substantiated Allegations 1-3. |
Just Culture
[18] The Qantas Group uses a Decision Tool called the Qantas Group Just Culture Tool. It is a key component of the Qantas Safety and Health Policy and aims to build an environment of trust in which people are encouraged to provide essential safety-related information, report maintenance and safety errors with the knowledge that they will be treated fairly and consistently. The ‘Just Culture’ Tool comprises of five steps and a flow chart, that acts as a guide for managers to assess both the quality of an employee’s behavioural choices and the resilience of organisational systems.
[19] Mr Re refers to the SMS For Aviation – A Practical Guide: Safety management system basis in his evidence, that defines ‘Just Culture’ as:
“[A]n organisational perspective that discourages blaming the individual for an honest mistake that has contributed to an accident or incident. Sanctions are only applied when there is evidence of a conscious violation, or intentional, reckless, or negligent behaviour.”4
[20] Further, Mr Re refers to the Boeing magazine AERO-QTR01/14 at pages 14-14 that discuss ‘Just Culture’ in the following terms:
“A Just Culture emphasizes shared accountability between the organisation and its employees. In the Just Culture, an individual employee is not held accountable for system failures over which he or she has no control, but it does not tolerate conscious disregard of rules, reckless behaviour, or gross misconduct. In a Just Culture, event investigation looks beyond the “who” and searched for the “why” so that system issues that lead to errors and violations can be fixed. A Just Culture recognizes that a large proportion of unsafe acts are honest errors, and there is not much corrective or preventative benefit from discipline. According to Reason, only about 10 to 20 percent of actions contributing to bad events are due to individual issues (e.g., complacency) which the remaining 80 to 90 percent are system issues, such as poor training, inadequate equipment and/or hangar facilities, misleading or incorrect maintenance task information, design issues, inadequate task handover process, task interruption, design issues, inadequate task handover process, task interruption, and time pressure. If 80 to 90 percent of actions leading to an unsafe event are caused by system issues, then discipline is not warranted in a majority of the events.”5
[21] Mr Rosenblatt states that the Just Culture Tool is not a standalone tool for the investigation process, Just Culture applies in conjunction with the MOE. Further, Mr Rosenblatt states that section 3.2 of the Qantas Link Management Systems Manual provides for an ‘Occurrence Investigation’, which is an investigation into a HIRO, which may be conducted at the same time as separate investigations.6
[22] Mr Re submits that in his view and in the best interests of safety, which is in accordance with minimum global standard practices, a safety investigation is always required before the commencement of a disciplinary process when dealing with an error or perceived error occurring during maintenance activities.7
Allegations of Bullying
[23] As an overview, it is clear that there were disagreements between Mr Fraser and others in the workplace arising from their differing views about the correct approach to aircraft maintenance. Many of the incidents that form the basis of the allegations of bullying involve a difference of opinion as to how aircraft maintenance ought be conducted.
[24] It is convenient to detail the evidence of the parties against each alleged incident. There are various factual disputes in relation to each alleged act which are resolved below.
[25] As a general finding, I prefer the evidence of Messrs McDonald and Rosenblatt to that of Mr Fletcher.
[26] There is no doubt that Mr Fletcher has exceptionally strong views about the importance of safety and his role as a LAME.
[27] There is also no doubt that Mr Fletcher was frustrated at times, and expressed this frustration, because he considered others in the workplace did not place a sufficient degree of importance on safety, or their views did not always align with his as to when and how maintenance should be conducted. He was critical of management and the safety culture in the workplace.
[28] I am also satisfied that Messrs McDonald and Rosenblatt were frustrated at times with Mr Fletcher, and also expressed their frustration towards Mr Fletcher because of Mr Fletcher’s strongly expressed opinions.
[29] I consider this combined frustration to be a major contributor to the friction that arose in some of the interactions that Mr Fletcher alleges constitutes bullying.
Identification of wing corrosion – August 2017
[30] During a routine A-Check inspection, on or around 24 August 2017, Mr Robert Masling, a worker on nightshift noticed some wing corrosion on a VH-YGT aircraft. Mr Masling reported it to his shift supervisor, Mr Steven Laub. The aircraft had been grounded, or was already AOG (aircraft on ground), in order for maintenance to be conducted in relation to another matter (the thrust reverser cracking). The identification of corrosion had led to a further reason for it being grounded. This defect report became Mr Fletcher’s responsibility when he started his shift as Shift Supervisor the following day.
[31] Mr Fletcher alleges that Mr Rosenblatt directed him not to fully investigate the extent of the corrosion, not to inspect the other wing and to “just blend what we saw”8 Mr Fletcher described this interaction as “very hostile” and he said he felt intimidated by Mr Rosenblatt and was being unfairly pressured into not performing his role efficiently as a LAME.9 In cross examination, Counsel for Eastern Airlines put to Mr Fletcher that in his Whistleblower disclosure made in 2019, he did not make any reference to feeling intimidated or unfairly pressured by Mr Rosenblatt, or to any hostility, during this alleged incident.10
[32] Mr Rosenblatt asked Mr Fletcher what steps had been taken to recover the aircraft, the timeframe for repairs and required resources, however Mr Rosenblatt denies the allegations that he was hostile or intimidating towards Mr Fletcher. Instead, Mr Rosenblatt contends that he was not concerned about the corrosion, he was concerned about the number of hours that had lapsed and that it appeared no progress had been made in relation to the management or recovery of that aircraft.11
[33] I am satisfied that Mr Rosenblatt was not hostile towards Mr Fletcher. What Mr Fletcher appears to perceive as being pressured by Mr Rosenblatt to not perform his role correctly can also objectively be viewed as Mr Rosenblatt being appropriately focussed on ensuring the necessary work was done in an efficient and timely manner. To the extent Mr Rosenblatt expressed concerns regarding timeframes and the like, I consider these were appropriate and reasonable in the circumstances. Further, Mr Fletcher did not make any such allegation in his Whistleblower disclosure. As a result, I prefer Mr Rosenblatt’s description of the incident.
First Instance of Alleged Bullying – Mr Fletcher’s CAN was suspended – 4 March 2018
[34] On 2 March 2018, Mr Fletcher reported an issue in a HIRO where he could not find controlled data to confirm the correct anti-seize lubricant for a YGY engine installation he was performing on 18 February 2018.
[35] Mr Fletcher stated the following in his HIRO-169971 report of 2 March 2018:
“In desperation I asked a fellow LAME (previously employed by Cobham) for help & he gave me an uncontrolled copy of the ‘Douglas Process Material Index’ dated April 1 2007. This uncontrolled / out of date data, on page 270 listed DPM 5782 + suppliers etc. #1. listing is Royco 81MS as meeting DPM 5782 specifications. This satisfied me that Royco 81MS is the correct anti-seize to use on B717 engine mounts & I continued with the task in order to meet YQY Maintenance schedule. However it was obtained from an uncontrolled source of data.”
[36] Mr Fletcher lodged HIRO-169971 as he believed he was obliged to report a defect in the safety systems, insofar as he could not find the answer he was looking for in the controlled reference material.12 Mr Fletcher said he was trying to highlight a significant and existing maintenance problem by lodging HIRO-169971, however in doing so, he had self-reported his use of uncontrolled data.13
[37] On 4 March 2018, Mr Craig Gillespie, QantasLink Acting Manager Safety, Quality and Training, suspended Mr Fletcher’s Company Authorisation Number (CAN) as a result of an alleged maintenance error that Mr Fletcher had made. The alleged maintenance error was that Mr Fletcher used uncontrolled data in breach of the Code of Conduct in the MOE (the Maintenance Error). Based on the information available to Mr Gillespie in HIRO-169971, Mr Gillespie considered that there had been a wilful violation of procedure and the matter needed to be reviewed.14 Mr Gillespie’s email to Mr Fletcher stated the following:
“Hi Fletch,
I have a number of concerns following an initial review of HIRO No.169971 submitted last Friday (2nd March), including your acknowledgement that you conducted maintenance in accordance with uncontrolled data.
With the evidence currently available to me, this is considered a wilful violation of procedure and pending further investigation your CAN has been suspended.
You are not to partake in any aircraft maintenance duties until receipt of advice your CAN has been re-instated.”
[38] Mr Fletcher alleges that the initial reaction of Mr Gillespie in deeming the matter a ‘wilful violation’ was disproportionate and, in addition, it was contrary to ‘Just Culture’ both in process and substance.
[39] In Mr Gillespie’s witness statement, he submitted that the CAN restriction did not restrict Mr Fletcher from performing maintenance work, other than certification. Mr Gillespie stated that during his suspension, Mr Fletcher was still able to perform aircraft maintenance work under supervision, but could not certify for aircraft maintenance on behalf of Eastern.15 In cross examination however, Mr Gillespie agreed that his statement and the email sent to Mr Fletcher on 4 March 2018 appeared to be in conflict. The action taken by Eastern Airlines, as communicated in Mr Gillespie’s email, went beyond simply suspending Mr Fletcher’s CAN.16
[40] It is clear that Mr Fletcher was significantly aggrieved (and remained so at the time of the hearing) that his CAN was suspended.
[41] Mr Rosenblatt conducted an investigation into the alleged Maintenance Error. Mr Fletcher submits that Mr Rosenblatt did not conduct the Maintenance Error investigation in accordance with Part 2.23 of the MOE, nor did he apply ‘Just Culture’ under section 1.3.2.3 of the MOE, and instead treated the investigation as disciplinary. Mr Fletcher believes the penalty imposed was not only unjustified and humiliating, but also argues the enquiry was fundamentally blame-focused, rather than addressing the systematic issue.
[42] Mr Rosenblatt gave evidence that he did conduct a proper investigation in accordance with the MOE, which included the ‘Just Culture’ Tool, and determined that Mr Fletcher’s conduct was ‘at-risk behaviour’.17 Eastern Airlines submits that there were other options available to Mr Fletcher to access the approved and controlled data, such as escalating the matter to his Supervisor, contacting Cobham Maintenance Watch or a Cobham Technical Engineer, or raising a Technical Services Request.18
[43] Controlled data can be found via the My Boeing Fleet, however Mr Fletcher did not try to access it at the time. He claims he was locked out of the system and that he did not believe My Boeing Fleet to be controlled data in any event. Mr Gillespie admits that it might be a system problem if not everyone knows how to access the My Boeing Fleet data.19
[44] Eastern Airlines contends that Mr Fletcher was trained as a LAME to use approved data in accordance with the Code of Practice found in section 2.23.3 of the Eastern Airlines’ MOE, which states that when conducting maintenance on QantasLink aircraft the maintenance employees will always perform maintenance in full compliance with current approved data, not omitting any steps unless written permission from an authorised person to do so has been provided.
[45] Mr Fletcher and Mr Rosenblatt had three meetings during the Maintenance Error investigation. Mr Fletcher alleges that Mr Rosenblatt said during the course of these meetings, amongst other things, words to the following effect: “What were you thinking putting in a report like that anyway?”, “It’s your fault that you didn’t renew your ‘My Boeing Fleet’ online access”, and “I don’t think you want that Fletch it won’t be good for your career”. Mr Rosenblatt denies making these comments, however, does admit to saying that “it is your responsibility to manage your MBF [My Boeing Fleet] account accessibility.”
[46] Mr Fletcher accepts that he used uncontrolled data and performed a Maintenance Error on 18 February 2018.20 He also accepts that the Maintenance Error should have been reported earlier than 12 days after the incident. However, he argues that there was insignificant risk and, that due to his workload, he lodged the report at the first available opportunity he had which was on 2 March 2018.21
[47] During the investigation, Mr Rosenblatt was satisfied that Mr Fletcher correctly understood his responsibilities and demonstrated an understanding of his Maintenance Error. The ‘at risk behaviour’ that was identified was dealt with by coaching Mr Fletcher and having him confirm his understanding what was required of him in the future. Mr Gillespie states that after reviewing the task report completed by Mr Rosenblatt, it was his view that Mr Fletcher’s actions did not involve a Maintenance Error as such, but rather a failure to follow a procedural rule known to him.22 Mr Gillespie was also satisfied that Mr Fletcher now understood his responsibilities, based on his discussions with Mr Rosenblatt.23
[48] On 13 March 2018, Mr Fletcher’s CAN was therefore reinstated by Mr Gillespie after nine days of suspension.
[49] In a separate discussion in relation to this incident, Mr Fletcher alleges that Mr McDonald told him that he “needed to lie” in his reports and called him an ‘idiot’ for self-reporting.24 Mr McDonald denies advising Mr Fletcher that he needed to lie, however he does admit saying words to the following effect: “you admitted you signed it out without an ICA [Instrument of Controlled Airworthiness], of course they’re going to have to act, you idiot, you put the company in a position where they had to do something”.25
[50] Eastern Airlines denies the allegation that Mr Fletcher’s suspension of his CAN involved bullying behaviour.
[51] It is clear that the decision to suspend Mr Fletcher’s CAN was made by Mr Gillespie and not by the Persons Named. The suspension decision was made based on Mr Fletchers report of the Maintenance Error. It was appropriate in my view for an investigation to be undertaken to understand what had led to the Maintenance Error occurring. I am satisfied that the investigation undertaken by Mr Rosenblatt was reasonable and appropriate.
[52] The finding that Mr Fletcher’s conduct was ‘at risk behaviour” was open to Mr Rosenblatt, particularly because of the 12 day delay in making the report. There is no doubt that requiring the use of approved data when conducting maintenance on aircraft is reasonable and appropriate, and that Mr Fletcher was aware of the requirement of CASA as well as Eastern Airlines to only use approved data. As noted above, the ‘at risk behaviour’ was dealt with by coaching, which I consider to be reasonable management action in the circumstances. Further, Mr Fletcher’s CAN was reinstated nine days after it was suspended, on recommendation of Mr Rosenblatt. Mr Fletcher continued to perform some work and was paid during this period.
[53] To the extent there is a dispute in the recollection of the verbal exchanges between Mr Fletcher and the Persons Named, I prefer the evidence of the Persons Named. Overall, I do not consider that this incident can reasonably be viewed to constitute bullying behaviour on the part of either of the Persons Named.
Second Instance of Alleged Bullying - Mr Fletcher was not reappointed as a Shift Supervisor - July 2018
[54] When Mr Fletcher’s secondment in heavy maintenance ended in July 2018 and he returned to the position of a LAME in line maintenance, Eastern Airlines did not reappoint him as a Shift Supervisor. Mr Fletcher alleges that his lodgement of HIRO-191377 on 3 July 2018 played a part in Eastern Airlines’ decision making process, and that this decision was unreasonable and was communicated to him in an unfair manner.
[55] Eastern Airlines submits that their decision not to reappoint Mr Fletcher as an Acting Shift Supervisor was not because he lodged a HIRO, but instead was due to two alleged incidents of poor performance (which Mr Fletcher alleged were never raised with him).
[56] On 3 July 2018, Mr Fletcher submitted HIRO-191377 in relation to aircraft maintenance quality control issues. The incident was set out in the HIRO report as follows:
“Detailed Description: During VH-YQW post C Check, Service Check it was found that the R/H engine cowl IDG service door had very worn latches that required replacement. The IDG service door was not flush with cowl skin. This aircraft was due to return to service within hours of the discovery of this defect. I struggle to understand how other defects on the engine cowls are identified & repaired during the C Check & in this case both engines were removed during the C Check which provided another opportunity to identify the worn latches.
Actions taken: Latches replaced between midnight & 0100 hours in CBR at temp of -3 Degrees Celsius. Conversation with LAME responsible for Engine Zone on the C Check. Engine Zone LAME laughed at me & indicated that I am too fussy.
Suggestions (if applicable): Review / audit quality standards at CBR B717 heavy maintenance & communicate to staff at all levels Investigate this & other quality issues found on aircraft / AOG’s post C Check. Example - YQY spoiler actuator leak, NXQ pitch oscillations in flight due slack control cables, etc, etc. Management to reward staff that find & rectify defects in heavy maint regardless of if a card / inspection is called for the area where the defect is found. I have constantly been requested & told ‘not to find anything’, ‘why did you look there, with no card’, ‘if your not happy with that, then I will sign for that’. I was instructed to ‘go away’ after I identified a major flap defect on YQX & my supervisor took over the repair so that I would not find anything else & my suggestions on how to fix the problem were ignored due time constraints & the check being very late & over budget. Heavy maint needs to shift its focus from providing C Check to a time schedule, to producing a quality product that will be reliable when returned into service. The aircraft needs to be cleaned prior to C Check in order to carry out a proper inspection. The workplace culture needs to be improved at CBR.”
[57] During a toolbox meeting on 4 July 2018, Mr Fletcher was asked to follow Mr Michael Klibbe, QantasLink Senior Base Maintenance Production Planner, to the Canberra Line Maintenance Office. Mr Klibbe was filling in for Mr Rosenblatt who was on leave. Mr Klippe then said words to the following effect to Mr Fletcher:
“Mace is very unhappy with your HIRO and the language you used in it. You have no idea how many people have seen your report. All QantasLink upper management and all Cobham management have seen your report. Your report has damaged the image of Canberra Heavy Maintenance. What do you think you were doing putting in a report like that! Andrew [Mr McDonald] will be able to provide further detail. Fletch, please understand I am only the messenger, I’m just delivering this message on behalf of Mace. You are now going to be put back into Line Maintenance. Andrew will have more information for you when he gets back”.26
[58] Mr Klibbe denies saying “what do you think you were doing putting in a report like that”, however he acknowledged that he did say words to the effect of “opinion does not belong in a safety report. Safety reports should be factual only.”27
[59] Shortly after this discussion on 4 July 2018, Mr Fletcher met with Mr McDonald. Mr Fletcher alleges Mr McDonald said to him, amongst other things, words to the following effect:
“You’re on a new crew now. I’m putting you on Micky’s [Micky Jovanovski] crew, and you are no longer a supervisor.”
“You’re a shit supervisor and you have poor leadership qualities. There is no leadership on your crew. You are too close to your guys and you’re a shit leader. You also posted a picture on Facebook which is a sackable offence.”
“You’re being demoted because you are a shit leader”.
“It was Mace’s decision so I’m just doing what Mace told me to do.”
“Your HIROs are only part of it, along with having your CAN suspended. You are too soft and too close to the guys that’s why you are not an effective leader.”28
[60] It was Mr McDonald’s evidence that on 4 July 2018 he said words to the following effect to Mr Fletcher:
“I’m not sure what happened at base maintenance, but this has nothing to do with it. This is purely based on your performance as a shift supervisor. You’re not resuming your role as shift supervisor, I am placing you on Mickey Jovanovski’s crew
“It’s because of your performance as a leading hand. It’s because of poor communication, both from the crew up to the leading hands meeting and from the meeting back to your crew; lack of leadership.
“Your irrational and emotional emails, and addressing up to including the CEO at 2:30am to 3am in the morning. Lying about your overtime, and in general your lackadaisical attitude. As of now you are a B1 on Mickey’s crew.”29
[61] Mr McDonald denies that he ever bullied, harassed, or unfairly treated Mr Fletcher and further denies that Mr Fletcher was not appointed to the role of Shift Supervisor due to him reporting HIRO-191377.30
[62] Mr Fletcher and Mr McDonald had another conversation regarding this issue, on or around 12 July 2018, where Mr Fletcher alleged Mr McDonald said: “I had the authority to demote you and I am not going to back down from my decision. You’ll just have to learn to deal with it and get over it.” Mr Fletcher alleged Mr McDonald became quite aggressive, raised his voice and leaned over the table towards him and said, “so you have something to say to me?” which left Mr Fletcher feeling ‘shaken’.31
[63] In relation to the discussion on 12 July 2018, Mr McDonald admits calling Mr Fletcher a ‘shit supervisor’, he admits the conversation was heated and both raised their voices, however Mr McDonald denies leaning over the table.32
[64] Mr McDonald accepted in cross examination that the news of Mr Fletcher not returning to a Shift Supervisor role would have been a surprise to him and could have been perceived as a demotion, as he was never warned that his position as a Shift Supervisor was at risk.33 Mr McDonald also accepted that his behaviour towards Mr Fletcher was not appropriate.34
[65] It was Mr Rosenblatt’s evidence that Mr Fletcher was one of 12 LAMEs/AMEs seconded from line maintenance to heavy maintenance. The secondments finished on various dates with the employees then returning to line maintenance. Mr Rosenblatt contends that Mr Fletcher’s secondment ended for that reason, not because he submitted HIRO-191377.35 I am satisfied that his secondment did end for the reason provided by Eastern Airlines, in that all employees who were seconded returned to line maintenance around this time.
[66] Further, Mr Rosenblatt submits that on 6 June 2018, he had a meeting with Mr McDonald and Mr Constable to discuss who should be appointed as the Shift Supervisors for the line maintenance crews.36 Mr Rosenblatt said that Mr Fletcher was aware that he would not be reappointed as a Shift Supervisor on or before 21 June 2018, when a meeting was held with all current and past line maintenance Shift Supervisors.37
[67] Mr Rosenblatt denies that he ever bullied, harassed, or unfairly treated Mr Fletcher, however he acknowledges that in hindsight, he could have addressed the performance concerns he held in relation to Mr Fletcher’s shift supervisory skills through formal performance management rather than informally.38
[68] Despite Mr Fletcher not being reappointed as a Shift Supervisor in July 2018, he still did regularly work as a Shift Supervisor during the following year, for example when Mr Jovanovski was absent, Mr Fletcher would act as a Shift Supervisor on his behalf and he did so on multiple occasions.39
[69] Mr Fletcher alleges that HIRO-191377 remained “open/under investigation” for approximately 19 months, with no investigation conducted into the issues raised. Further, Mr Fletcher states that there were no findings or outcomes reported apart from Mr Fletcher not being appointed to Shift Supervisor.40
[70] In relation to this allegation, I am satisfied that Eastern Airlines did not offer Mr Fletcher a further Acting Supervisor role because of his performance in the role while on secondment and that his secondment had come to an end. I am satisfied it was not because of the fact he submitted a HIRO. It is clear, however, that the communication of the decision not to reappoint him to a supervisory position was less than ideal. This includes Mr McDonald referring to Mr Fletcher as a ‘shit supervisor’. So, while the decision itself was reasonable, the method of communication and lack of proper performance feedback was not reasonable.
[71] I am satisfied Eastern Airlines has already taken appropriate steps to address this matter. I note that Mr McDonald readily agreed that his behaviour towards Mr Fletcher at this time was not appropriate. Mr McDonald is no longer in a managerial position and is now a LAME (ie the same level as Mr Fletcher). Further, Mr Rosenblatt and Mr McDonald were counselled by Mr Delahay as to the adequacy of their communication to Mr Fletcher about his performance as an acting supervisor.
[72] It is also clear that Mr Fletcher did continue to work as a shift supervisor to cover for absences on many occasions after this time and was paid for doing so. In that respect, he continued to be afforded opportunities to perform an acting supervisory role, which would not have been the case if Mr Fletcher was being targeted.
QantasLink Roadshow in Canberra – 31 August 2018
[73] Mr Fletcher attended a QantasLink Roadshow in Canberra on or about 31 August 2018, in relation to QantasLink’s financial result. Mr Fletcher alleged that at the end of the Roadshow, he put his hand up to raise his concerns about the base maintenance program and certain improvements that were necessary in respect of the wing corrosion. After raising this issue, Mr Fletcher says he felt intimidated by Mr Todd Chapman, QantasLink Head of B717 Operations, and then said nothing further.41
[74] Mr Rosenblatt recalls Mr Fletcher speaking for approximately 8-10 minutes at the Roadshow about the technical defects he had found, the heavy maintenance dual line and the technical defects he identified while on secondment to heavy maintenance. He also states that Mr Fletcher spoke about not being re-appointed to Shift Supervisor and started to criticise the quality of some of the heavy maintenance team.42
[75] Mr David Delahay recalls Mr Fletcher speaking for around 12 minutes at the Roadshow. Mr Delahay alleges that Mr Fletcher said, amongst other things, that LAMEs had been asked not to look too hard for defects, and that he was demoted for highlighting concerns about safety. At which point, Mr Delahay interrupted and told Mr Fletcher that they would discuss this outside of the Roadshow forum.43
[76] Following the Roadshow, Mr Fletcher alleges that Mr Delahay said words to him to the following effect:
“Fletch, you really need to stop putting in emotional HIRO reports. If I read a HIRO and it’s emotional, I stop reading it, because it is clear to me that this guy is just having a whinge and that is not what we need in a HIRO … That meeting was not the right forum to discuss your safety reports”44
[77] Mr Delahay denies saying words to this effect. Instead, it was Mr Delahay’s evidence that their conversation was about the factual reporting of statements and he reinforced the requirement for the CAMO to review his reports and decide on any action.45
[78] While ‘emotional language’ in a report is not, in my view, a significant issue such as to warrant counselling or disciplinary action, it is also not inappropriate to provide feedback to Mr Fletcher as to the benefit of a more factual report. It is also appropriate to limit the time afforded for one employee to speak at a Roadshow, particularly when the topic Mr Fletcher wished to discuss did not relate to everyone present, and instead arrange to discuss the topic outside of that forum.
Third Instance of Alleged Bullying – Interaction with Mr McDonald on 25 October 2018
[79] On or around 25 October 2018, Mr Fletcher clocked into work two hours before his shift commenced in order to attend a pre-organised teleconference with Ms Katina Demitri, Qantas Senior Consultant Case Management Support, to provide a formal statement in relation to his internal grievance.
[80] Upon commencing work after the teleconference, Mr Fletcher says he was the subject of verbal abuse from Mr McDonald and recorded this incident in an email diary note, alleging that Mr McDonald aggressively stated that “you just can’t rock up early to work without prior warning/approval” and that Mr Fletcher was going to breach his fatigue hours.
[81] Mr McDonald denies verbally abusing Mr Fletcher and denies using an aggressive tone.46 Eastern Airlines contends that the words spoken by Mr McDonald “you just can’t rock up early to work without prior approval”, do not amount to bullying conduct in any event. However, Mr McDonald accepted in cross examination that he could have come across as being ‘annoyed’ in circumstances where Mr Fletcher started to walk away from him during their discussion and ignored him.47
[82] I am satisfied that it is not unreasonable to express a concern about fatigue when Mr Fletcher attended work two hours prior to his normal starting time. I do not consider this to be bullying, rather it is a reasonable discussion for a manager to have with an employee. It is also not unreasonable for Mr McDonald to be frustrated if, part way through a conversation with Mr Fletcher, he started to walk away. Overall, I do not consider this to be bullying behaviour.
Fourth Instance of Alleged Bullying – Meeting with Mr Rosenblatt on 19 July 2018
[83] On or around 13 July 2018, Mr Fletcher was performing a ‘Termination/Daily Inspection’ on aircraft VH-YQV (YQV), which he says is a general visual inspection conducted from the ground level externally, with flaps extended in addition to an internal inspection of the flight deck and cabin interior. Mr Rosenblatt however contends that a Daily Inspection does not include an internal investigation of the flight deck and cabin interior, or of the aft accessory bay.48
[84] During this Daily Inspection, Mr Fletcher identified and reported a ‘fastener’ defect in the tail section of the aircraft in the aft accessory bay, which is accessed from the rear of the cabin. This resulted in YQV being grounded and the defect was recorded in the Discrepancy Log of the aircraft. Mr Fletcher also reported this defect in HIRO-194660.
[85] On 16 July 2018, Mr Rosenblatt requested Mr Fletcher to attend a meeting on 19 July 2018 for a “general catch-up”. On 19 July 2018, Mr Fletcher attended a meeting with Mr Rosenblatt and brought Mr Simon Goldstone, QantasLink LAME, as his support person. Mr Fletcher alleges that Mr Rosenblatt was intimidating during this meeting.
[86] Mr Fletcher alleges Mr Rosenblatt had a hostile demeanour, was stern and aggressive, and said words to the following effect:
“You point out on the daily checklist where is says to look there. Nowhere on that checklist does it say that you should inspect that area of the aircraft.”
“You shouldn’t have been looking up there in the first place, and now this defect has turned into a 5-day AOG!”
“Well Fletch you could probably ground every aircraft that flies in here, if you really wanted to”49
[87] Mr Rosenblatt denies Mr Fletcher’s version of events and submits that he was not critical of Mr Fletcher raising the defect. Mr Rosenblatt submits that he asked Mr Fletcher words to the effect, “what part of the daily inspection had him in the aft accessory bay” to which Mr Fletcher responded, “none but I always look there as it bit me at Cobham”. He also recalls saying words to the effect: “we don’t perform unauthorised inspections”. In their discussions, Mr Rosenblatt reminded Mr Fletcher of his obligations to only perform the inspections he is scheduled to perform.50
[88] Mr Fletcher admits that Mr Rosenblatt is correct, that the Daily Inspection did not have a specific requirement to inspect this area, however due to his experience with B717s, Mr Fletcher knew this to be a common defect and therefore always included it in his Daily Inspections. Mr Fletcher said it would be negligent of him to ignore a known problematic area.51
[89] Eastern Airlines contends that Mr Fletcher’s evidence regarding this meeting is inconsistent with earlier statements he has made in which he has described Mr Rosenblatt as being composed, as opposed to having a ‘hostile demeanour’. Mr Fletcher however clarified that Mr Rosenblatt was composed in the latter part of the meeting, and he was hostile at the beginning of the meeting.52
[90] Mr Goldstone did not provide any evidence in relation to this matter.
[91] I accept that the maintenance and checking schedule for aircraft is highly regulated, and with good reason. In saying that, it is not unreasonable for Eastern Airlines to require its LAMEs to adhere to the scheduled checks and maintenance programs, including the daily checks. The obvious exception is where a LAME becomes aware of a defect or other issue that requires reporting or attention. In terms of this allegation, it was reasonable for Mr Rosenblatt to have a discussion with Mr Fletcher as to why he accessed and inspected the parts of the aircraft which were not required as part of the daily inspection.
[92] It may have been the case that Mr Rosenblatt was frustrated with the discussion with Mr Fletcher, but I am not satisfied on the evidence that he was hostile. Mr Fletcher did not raise any allegations of hostility in his earlier statements and he did not call Mr Goldstone to give evidence of any hostility or inappropriate behaviour on the part of Mr Rosenblatt.
Fifth Instance of Alleged Bullying – Interaction with Mr Rosenblatt around February 2019 (re: Rob Masling)
[93] In or around February 2019, during repairs on aircraft VH-NXE, Mr Fletcher alleges that he was approached by Mr Rob Masling, LAME, who asked Mr Fletcher to report a defect for him. Mr Masling claimed that he had recently applied for a job with QantasLink and did not want to jeopardise his application by reporting a defect. Mr Fletcher says it was the first time he had ever been asked to raise a defect on behalf of another LAME.
[94] A few weeks later, Mr Fletcher reported this interaction with Mr Masling to Mr Rosenblatt. Mr Fletcher submits that Mr Rosenblatt’s response was dismissive and forceful, saying words to the effect of “what makes you think I have any influence over what Rob Masling’s opinion is or what he thinks and does?”. It was Mr Fletcher’s evidence that he felt he could no longer report any problems or defects for fear of being victimised, bullied, or disciplined.
[95] Mr Rosenblatt denies these allegations. Mr Rosenblatt argued that he was not responsible for QantasLink line maintenance in Canberra at this time, nor was he Mr Fletcher’s manager. However, Mr Fletcher submits that he had many discussions with Mr Rosenblatt while he was not his direct manager and while he was the base maintenance manager.
[96] Mr Masling did not provide any evidence in this matter.
[97] I am not satisfied, based on the evidence, that this conversation did in fact occur. If it did occur, I would not be satisfied that it could reasonably be considered bullying. It is difficult to see how Mr Fletcher could feel he could no longer report any problems or defects for fear of being victimised, bullied, or disciplined even based on his view of this allegation.
Corrosion Identification
[98] Relevantly, in relation to the incidents described in this matter surrounding the identification of corrosion on aircraft, Mr Rosenblatt provided the following evidence in his statement to the Commission about the approved maintenance program and schedule of inspections:
“85. Eastern is required to follow the inspection schedule set out in CAMO as per the Approved Maintenance Program. The schedule of inspections set out in the Approved Maintenance Program is designed such that any corrosion will be identified at a time prior to that corrosion being capable of jeopardising the safety of the aircraft. That is, the period between C-Checks is such that if corrosion develops following a C-Check, the next C-Check is scheduled before that corrosion could develop beyond the limit of structural integrity. This is set out in section 2.7 of the Cobham Maintenance Program Manual.
86. Eastern is not authorised to perform out of schedule inspections to try to identify corrosion without CAMO approval. However, if corrosion is identified in the course of conducting other maintenance, Eastern follows the CAMO Procedures for defect management which comprises of the following steps:
a. record the defect on the Discrepancy Log;
b. use the B717 Instructions for Continued Airworthiness to repair or defer the defect;
c. assess the damage against the limitation in the Structural Repair Manual (SRM);
d. if the damage is outside of those limits (e.g. larger or deeper etc) then report this to the CAMO using the Technical Service Request (TSR) Process; and
e. map the location, dimensions and measurements of the damage.
87. However, if a defect is identified in the course of conducting other regular checks, such as A-Checks, the process in paragraph 84 above must be followed. The Approved Maintenance Program is also applied to determine whether an aircraft is safe to fly from the time the corrosion is identified and reported, until its next C Check. The CAMO will determine whether this is the case as the aircraft owner, and will instruct Eastern accordingly.”
[99] Mr Delahay provided evidence to the Commission that it was not a requirement to report all aircraft defects through the HIRO system. The raising of a HIRO is generally reserved for significant or major defects, safety events, occupational safety events, near misses or observations that may be relevant to the operation or maintenance of the aircraft. A general aircraft defect is reported on the aircraft technical log or as a non-routine task.53
[100] Further, during re-examination at the hearing, Mr Delahay provided the following evidence regarding the action that should be taken when someone suspects corrosion:
“MR LLOYD: Yes. Mr Delahay, in relation to a suspected defect and in the context of that being corrosion, in other words suspected corrosion, a person who suspects corrosion what action should they take in the context of the work of a LAME? -The - the engineer should inspect the corrosion or the defect, and then consult what we call the structural repair manual, and that gives you the available limits to what corrosion you’re allowed in that particular area. The aircraft’s divided into zones so that that differs, but the structural repair manual is really clear on what is allowable and what’s not allowable, and once you get outside the allowable limits you then send a technical service request off to the operator or the owner of the aircraft and say, “This is what we have, what next steps would you like us to take?” But every - if just suspecting something it is a defect until it’s proved otherwise.
Mr Delahay, how is the suspected corrosion notified? -It’s reported in the technical log of the aeroplane. So there’s - it will be recorded as an open defect in the aircraft technical log, and that’s - if there’s an open defect it immediately notifies the pilot or the owner of the aircraft that it can’t be operated until that defect’s cleared. So it can be cleared by being within limits or be cleared by being repaired or concessions provided by Boeing or - there’s a myriad of ways you go about it, but once you (indistinct) have the available data we endorse the tech log and then you go and tell the owner of the aeroplane.” 54
Sixth Instance of Alleged Bullying – Interaction with Mr McDonald around February 2019 (re: Micky Jovanovski)
[101] On or about 31 January 2019, Mr Fletcher discovered wing corrosion on aircraft VH-NXQ. After discovering the corrosion, Mr Fletcher showed it to his supervisor Mr Micky Jovanovski. Mr Fletcher alleges that Mr Jovanovski said words to the effect: “We can’t have three AOG’s in Canberra all at the same time so we should let it go”, to which Mr Fletcher replied: “Ok well I’m not signing for it”55
[102] Several weeks after the incident, in or around February 2019, Mr Fletcher had a discussion with Mr Jovanovski and Mr McDonald in relation to the corrosion problems. Mr Fletcher objected to Mr Jovanovski’s suggestion to “make a shift handover log note to track aircraft with corrosion or start an exercise book to monitor corrosion without formally logging in the aircraft log”.
[103] Mr McDonald allegedly had a strong reaction and said words to the effect of: “Well Fletch, you can’t ground five aircraft at once. You will destroy the QantasLink business, so it’s just not an option!”. Mr Fletcher found Mr McDonald’s response to be very forceful and he did not respond to Mr Fletcher’s request to escalate the problem to senior management before leaving the room. As a result, Mr Fletcher felt like his “job would be at risk” if he continued to report corrosion defects.56
[104] Mr McDonald denies being forceful, having a strong reaction and being non-responsive. It was Mr McDonald’s evidence that Mr Fletcher did most of the talking during the conversation and was critical of the maintenance system and of management. It is in that context that Mr McDonald said words to the effect: “What do you want to do mate, ground the entire fleet?” 57
[105] Eastern Airlines submits that Mr Fletcher makes no mention in his Whistleblower Statement of Mr McDonald being forceful during this conversation, which is therefore inconsistent with his witness statement before the Commission.58 . To this end I note Mr Fletcher said that Mr McDonald became “frustrated with the lack of suitable solutions to the problem”, but nothing further.
[106] As set out earlier and for the same reasons, I prefer the evidence of Mr McDonald.
[107] I also note that if Mr Jovanovski did suggest that an unapproved monitoring system be used (which was denied), then it was in my view reasonable and appropriate for Mr Fletcher to object, particularly given the high level of regulation around the maintenance of aircraft.
Seventh/Eighth Instance of Alleged Bullying – Direction to Mr Fletcher on 6 July 2019 not to attend work following allegations of misconduct and allegations against the Persons Named in relation to the misconduct investigation
[108] On 4 April 2019, Mr Fletcher was the acting Shift Supervisor on nightshift and whilst performing a Daily Inspection on aircraft YQU, he discovered some suspected wing corrosion. Mr Fletcher believed a Detailed Visual Inspection (DVI) was required to confirm any corrosion defects; however, this was outside the scope of a Daily Inspection. Mr Fletcher therefore sent an SMS text message to Mr Dane Constable, Duty Maintenance Supervisor, requesting guidance on how to proceed, as Mr Fletcher was concerned that he would have been subjected to further management intimidation and disciplinary action if he had performed a DVI without management support and approval.
[109] From the SMS text exchange between Mr Fletcher and Mr Constable, Mr Fletcher understood that Mr Constable did not instruct him to perform a DVI and instead advised Mr Fletcher that manpower and hangar space would be available the following week, and that Mr Constable would inform Mr Rosenblatt of this issue the next morning. The following SMS exchange took place:
Mr Fletcher: YQY tonight (with attached photo of the suspected corrosion)
Mr Constable: Struth. Upper wing?
Mr Fletcher: Yep. Any word from anyone yet?
Mr Constable: We have 12 blokes until the end of June. At this stage. And that is all I have.
Mr Fletcher: No worries. Still the ostrich management approach?
Mr Constable: Perhaps, but I am not here to question any LAMEs decision. I trust what you guys call out. There will be an Avenue next week though with a hangar space and manpower.
Mr Fletcher: Just venting. Perhaps we should send to Mace & Cam? What would you do?
Mr Constable: Cam on hols. I can talk to Mace tomorrow morning. I think Cobham should roll them through the hangar 1 after the other calling up inspections. Either that or all 550 packs called up through Canberra and if there are findings – we can fix.
Mr Fletcher: Ok
[110] Mr Fletcher did not perform a DVI on the aircraft and a discrepancy log was not completed. During cross examination, Mr Fletcher stated that a DVI was not able to be performed on the tarmac, and the hangar was full so it was not able to be performed in there either.
[111] At 1:00am on 5 April 2019, Mr Fletcher released YQU by signing the certificate of release to service. Mr Fletcher admits that with the benefit of hindsight, he should have adhered to his principles as a LAME and not released the aircraft.
[112] On or around 16 April 2019, Mr Rosenblatt submits that Mr Constable spoke to him about the SMS text message exchange concerning aircraft YQU. Mr Rosenblatt conferred with Mr Delahay about this incident, applied the ‘Just Culture’ Tool and therefore determined that the alleged conduct, if it had occurred, would constitute “at risk behaviour”.59
[113] On 1 July 2019, Mr Rosenblatt submits that he became aware that aircraft YQT was grounded for upper wing corrosion and he received a copy of HIRO-258329 which stated, “it would appear that the aircraft was flown to CNS [Cairns] with unreported defects repaired in CNS.” After conferring with Mr Delahay, case management and human resources, Mr Rosenblatt formed the view that it was necessary to conduct an investigation based on the events concerning the two aircraft, YQU and YQT.
[114] On or about 6 July 2019, Mr Fletcher was suspended from his employment, with full pay, pending the outcome of a disciplinary investigation. He received the following letter from Mr Rosenblatt directing him not to attend work:
“Eastern Australian Airlines Pty Ltd (Company) has received allegations that you were aware of aircraft defects but did not immediately report them. The Company is undertaking an investigation into these allegations involving you.
…
You are directed to not attend work from today until further notice from the Company during the investigation.”
[115] Eastern Airlines contends that the direction not to attend work pending the investigation was properly given in accordance with the Qantas Group Standards of Conduct Policy as a consequence of the nature of the allegations.
[116] On or about 31 July 2019, Mr Fletcher received a letter of allegations from Mr Shane Wilden, Audit and Planning Manager, Qantas Airways Limited, informing him that he was the subject of a disciplinary investigation in accordance with clause 24.2 of the QantasLink Agreement (the Letter of Allegations).
[117] In relation to aircraft YQU, the Letter of Allegations stated:
“At 0100 hours on 5 April 2019, you certified that YQU was cleared to return to service, and the aircraft left the Hangar and returned to service. YQU was then utilised to perform regular public transport flights until 5 May 2019, when it returned to the Hangar for overnight scheduled maintenance.
…
[O]n 6 May 2019, you completed an Engineering/Maintenance Report (known as a ‘HIRO’) in which you reported that YQU had ‘several areas of significant exfoliation corrosion evident L/H & R/H upper wing skin that requires rectification prior to flight’ and ‘Discrepancy Logs’ which stated ‘L/H upper wing skin has several areas of exfoliation corrosion evidence beyond SRM limit. DVI & mapping req’d for repair’ and ‘R/H upper wing skin has several areas of exfoliation corrosion evident beyond SRM limits. DVI and mapping req’d for repair’. This resulted in YQU being ground for repairs to the wings.
Allegations
It is alleged:
You identified and had knowledge of corrosion on a wing or wings of YQU when it was in the Hangar on 4 April 2019, but did not raise a HIRO or complete a Discrepancy Log until 6 May 2019; and/or
You failed to follow the correct procedure by completing a Discrepancy Log to report the corrosion on the wing or wings of YQU when you identified it on 4 April 2019; and/or
On 5 April 2019, you certified YQU to be released to service knowing that corrosion had occurred on a wing or wings which would have otherwise prevented the aircraft from returning to service.”
[118] In relation to aircraft YQT, the Letter of Allegations stated:
“It is alleged:
On 1 July 2019 at approximately 1845 hours, you were allocated by your supervisor, Micky Jovanovski, to perform brake changes on YQT; however, instead of performing the allocated tasks, you proceeded directly to the right-hand wing of YQT, positioned a stand next to the right-hand wing and inspected the wing for corrosion, which you identified and reported in the Discrepancy Log; and/or
You had knowledge of, or suspected that, the corrosion you reported on 1 July 2019 was present on the right-hand wing of YQT when it was previously in the Hangar on 18 April 2019; and/or
You failed to follow the correct procedure by completing a Discrepancy Log to report your knowledge or suspicion of the corrosion on the right-hand wing of YQT on 18 April 2019.”
[119] On 15 August 2019, Mr Fletcher responded to the Letter of Allegations. The investigation into the allegations was put on hold while Mr Fletcher’s Whistleblower complaint was being investigated and while the current application before the Commission was being conciliated. Mr Fletcher submitted a further response to the Letter of Allegations on 18 December 2020.
[120] Mr Fletcher alleges that Mr Rosenblatt and Mr McDonald failed to follow process in relation to the underlying factual matters that gave rise to the misconduct investigation. Mr Fletcher sought the assistance of his union, the Australian Licenced Aircraft Engineers Association (ALAEA), in relation to the misconduct investigation, in or around August 2019.
[121] In his F72 Application to the Commission dated 20 January 2020, Mr Fletcher stated the following:
“83. On review of the Respondent’s Letter of Allegations and further to the Applicant’s Letter of Allegations Response, the Applicant holds the following positions in relation to Mr Rosenblatt and/or Mr McDonald:
a) there was a requirement, and consequential failure, to follow Part 2.23 of the MOE in relation to the maintenance errors of aircrafts VH-YQT and VH-YQU, which resulted in the Misconduct Investigation;
b) the Misconduct Investigation could only have resulted once a Maintenance Error Investigation had conducted and concluded in accordance with Part 2.23 of the MOE;
c) Attachment A of the Letter of Allegations did not include the entire SMS (YQU-SMS) of 4 April 2019 that the Applicant had sent to Dane Constable; Duty Maintenance Supervisor (Mr Constable). Attached to this application and marked “CF-19” is a copy of the YQU-SMS;
d) the YQU-SMS shows that Mr Constable:
i) was made aware of potential wing corrosion on aircraft VH-YQY;
ii) would intervene on following day (5 April 2019);
iii) would inform Mr Rosenblatt; and
iv) knew that the Applicant was expecting his intervention.
e) that Mr Rosenblatt was aware of the potential wing corrosion on aircraft VH-YQU on or about 5 April 2019.”
[122] On 24 February 2021, after the misconduct investigation resumed, Mr Fletcher received a Findings and Outcomes letter which stated that allegations 1-3 above had been substantiated:
“In finding that Allegations 1, 2 and 3 are substantiated, you have been found to be in breach of the Standards of Conduct Policy, the Safety and Health Policy and Sections 2.15 and 2.9 of the Eastern Australian Airlines CASR Part 145 Approved Maintenance Organisation Exposition, Civil Aviation Safety Regulations 1998 (CASR) Part 42.D.6.1 and Section 9.5.1 of the Cobham Continuing Airworthiness Management Organisation (CAMO) Procedures Manual.”
[123] Mr Wilden stated that he took into consideration Mr Fletcher’s lengthy experience as a LAME, and that on 4 April 2019, he was acting Supervisor on night shift and therefore was the most responsible person in charge of aircraft YQU. Mr Wilden found inconsistencies between Mr Fletcher’s written responses of 15 August 2019 and 18 December 2020, which Mr Wilden says questioned Mr Fletcher’s credibility in providing his version of events. Furthermore, Mr Wilden did not accept Mr Fletcher’s reasons that he required the authorisation of Mr Constable before he could conduct a Detailed Visual Inspection on 4 April 2019.
[124] Eastern Airlines relies upon Mr Wilden’s Findings and Outcomes letter as relevant to the alleged bullying and, to the extent that may be relevant, the making of any stop bullying order. In addition, Eastern Airlines contends that the commencement of the misconduct investigation and consequent direction not to attend work pending the investigation was not unreasonable behaviour in all of the circumstances and does not amount to bullying.
[125] I agree with Eastern Airlines that it was reasonable in this context to commence an investigation and direct Mr Fletcher not to attend work pending the outcome of the investigation. An investigation, in the circumstances, is in my view a reasonable and appropriate course of action given the nature of the allegations and does not amount to bullying. Mr Fletcher was the acting shift supervisor at the time, and having seen what he suspected to be corrosion on the wing, did not undertake a detailed visual inspection and did not complete a discrepancy log at the time. He then released the aircraft to service. The allegations put to Mr Fletcher were in my view reasonable and appropriate in the circumstances. They do not support his argument that Eastern Airlines does not take safety seriously. I am also satisfied that the process was undertaken in a manner consistent with the relevant policies including the Standards of Conduct policy.
Investigations Involving Mr Fletcher
[126] There have been a number of investigations involving Mr Fletcher and his employment with Eastern Airlines. For completeness, they are listed as follows:
1) An investigation by Eastern Airlines into a maintenance error self-reported by the Applicant (commenced on 2 March 2018 and ended on 13 March 2018) (discussed above);
2) Review by Eastern Airlines into a grievance lodged by the Applicant against Mr Rosenblatt and Mr McDonald (commenced on 31 July 2018 and ended on 13 August 2019);
3) An investigation by Eastern Airlines into allegations of misconduct by the Applicant (commenced on 6 July 2019 and ended on 24 February 2021) (discussed above);
4) A whistleblower disclosure by the Applicant (commenced on 22 July 2019 and ended on 12 November 2019);
5) Review of the grievance outcome determined by Mr Perkins (commenced on 15 August 2019 and ended on 10 January 2020); and
6) A show-cause disciplinary process against the Applicant that commenced on 4 March 2021 and was ongoing at the date of the hearing of this application.
[127] At the time of the hearing, Mr Fletcher was subject to a show cause disciplinary process. The relevant decision maker is Mr Mark Longmuir, Manager Regional Engineering for Eastern Airlines. The decision of the show cause process has been deferred pending the determination of this application before the Commission.
Mr Fletcher’s Internal Workplace Grievance – 31 July 2018
[128] On 31 July 2018, Mr Fletcher lodged a grievance against Mr Rosenblatt and Mr McDonald concerning three matters:
1. The Applicant not being appointed as an acting Shift Supervisor when he returned to line maintenance (from a secondment to heavy maintenance) in early July 2018 allegedly because of HIRO 191377 submitted by him on 3 July 2018 (the ‘demotion’);
2. Alleged victimisation and bullying of the Applicant by Mr McDonald on 4 July 2018’
3. Alleged intimidatory behaviour by Mr Rosenblatt on 19 July 2018 (discussed below).
[129] Mr Fletcher’s grievance was reviewed by Mr Kim Perkins, QantasLink Maintenance Manager. On 17 November 2018, Mr Fletcher provided Mr Perkins with a formal statement in relation to his workplace grievance.
[130] Some nine months later, on or around 13 August 2019, Mr Fletcher received a letter from Mr Perkins informing him of the Findings and Outcomes of his workplace grievance. Mr Fletcher submits that he was subject to further intimidation from both Mr McDonald and Mr Rosenblatt while he waited for his workplace grievance to be processed.60
[131] Mr Fletcher responded to Mr Perkins’ workplace grievance Findings and Outcome on 15 August 2019 and requested a review of the grievance outcome. This response was escalated to Ms Jessykah Flower, Qantas Group Manager, People and Culture, however Mr Fletcher was then advised on or around 22 November 2019 that his Workplace Grievance Findings and Outcome Review was being paused so that his Whistleblower Complaint could be dealt with. The review has not been completed as at the time of this hearing.
[132] Arising out of the grievance process, Eastern Airlines took appropriate steps in relation to both Mr Rosenblatt and Mr McDonald’s management of issues in the workplace. As a result, Mr Delahay met with both Mr Rosenblatt and Mr McDonald and provided each of them with counselling about their work performance.61
Mr Fletcher’s Whistleblower Complaint
[133] Mr Fletcher lodged a Whistleblower complaint on 22 July 2019, pursuant to the Qantas Group Whistleblower Policy. The Whistleblower Complaint was headed ‘Manager Victimisation of staff for raising safety concerns. Directing LAME’s to take short cuts’.
[134] On 12 November 2019, Mr Fletcher received an email from Mr Stephen Blakeney, Corporate Governance Adviser within Group Secretariat, informing him of the outcome of the Whistleblower investigation, that being, that the report was finalised and that it did not recommend suspending the disciplinary investigation.
[135] On 15 November 2019, Mr Fletcher emailed Mr Blakeney outlining his concerns that the Whistleblower Committee did not share his opinion in relation to the alleged victimisation.
[136] Mr Fletcher had two or three telephone conversations with Mr Blakeney following the conclusion of the Whistleblower investigation. Mr Fletcher alleges that Mr Blakeney said that the outcomes of the investigation are strictly confidential and are only given to management for appropriate action, they are not provided to the reporter of the incident, or words to that effect. Mr Fletcher alleges that he asked Mr Blakeney whether he would be protected as a Whistleblower. Mr Blakeney allegedly told Mr Fletcher that because Qantas does not have the correct subject matter experts to investigate his case, his Whistleblower complaint would be referred externally for a fully independent investigation and assessment.62
[137] Mr Blakeney disagrees with Mr Fletcher’s version of events surrounding these telephone conversations. It was Mr Blakeney’s evidence that he said, “I am not in a position to provide the final report and that this was standard across all of our disclosures”. Mr Blakeney recalls Mr Fletcher asking about HIRO-247222, to which he replied it had not been forgotten, the safety concerns that had been raised in HIRO-247222 were considered in the Whistleblower investigation and that any recommendations from the investigation would be implemented at a Group level.63
[138] On 22 November 2019, Mr Blakeney advised Mr Fletcher via email that the Disciplinary Investigation was being put on hold again while his Whistleblower Complaint Findings and Outcome was being reviewed by Ashurst. Ms Barbara Deegan was the external investigator. The investigation was completed and Eastern Airlines initially refused to provide any details to Mr Fletcher of the outcome.
[139] During the course of the hearing in this matter, the Whistleblower report was provided to Mr Fletcher and his representative in confidence.
Submissions for Mr Fletcher
[140] Mr Fletcher submits that he has been subject to ongoing, and steadily escalating, patterns of isolation, targeting and detrimental treatment that must be considered as a whole. He contends that it is not lawful, let alone reasonable, management action to discourage LAMEs from making safety reports in the interest of protecting QantasLink’s commercial interests.
[141] Mr Fletcher alleges that he has been bullied at work within the meaning of s.789FD of the Act and that he will continue to be subjected to a course of conduct by the Persons Named which is inconsistent with Eastern Airlines’ legal obligations, policies and procedures, therefore resulting in unreasonable management action that will create a risk to health and safety.
[142] Mr Fletcher alleges that it would be a mistake to view each allegation of bullying alone, separated from the broader context in which it occurred, and further he submits that the evidence shows a pattern of bullying behaviour directed towards him.
[143] Mr Fletcher relies on the following policies, guides, tools and employee information material that are attached to his statement, in support of his allegation that LAMEs are encouraged to self-report in his line of work:
• Section 2.23.2 of Part 2.23 of the MOE;
• Section 3.1.1 (Reporting Policy) of the QantasLink Management System Manual;
• Sections 2.3 and 2.4 of the Qantas Group Safety and Health Policy;
• Sections 3.1.3 and Appendix B (Definitions) of the Qantas Group – Group Management System Standard;
• Qantas Group Human Factors in Investigations Guide;
• In the Overview section of the Qantas Group Investigation Analysis Guide;
• In the Overview section of the Qantas Group Investigation Interview Guide;
• Qantas Group Just Culture Tool;
• Qantas Group Occurrence Investigation Tool;
• Two Qantas Group employee information sheets.64
[144] Mr Fletcher relies on the decision in Amie Mac v Bank of Queensland 65 where Vice President Hatcher summarises a range of behaviours that may constitute bullying at work:
“During a longueur in the hearing, I attempted to draw up a list of the features at least some of which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work. My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.
…
It is not unknown for performance management techniques to be used as a means to achieve and justify a predetermined outcome of termination of employment. Conceivably, if this occurred, it might be able to be characterised as a series of repeated instances of unreasonable behaviour such as to fall within the first limb of the definition of bullying at work.”66
[145] In the context of management action, Mr Fletcher also contends that carrying an investigation into a worker’s performance or conduct in a ‘grossly unfair manner’ could also constitute bullying.67
[146] As outlined in the Applicant’s Further Submissions dated 14 June 2021, Mr Fletcher seeks a remedy in response to alleged workplace bullying pursuant to Part 6-4B of the Act, and has asked the Commission to make the following orders in respect to his application:
a) an order requiring QantasLink to ensure that in respect of the EMIR/HIROs submitted by Mr Fletcher to date and in future:
i) these are investigated in full, by persons other than Mr Rosenblatt or Mr McDonald;
ii) that such investigations are carried out in accordance with Part 2.23 of the MOE and Just Culture requirements; and
iii) feedback in respect of these reports is communicated to Mr Fletcher in a timely fashion.
b) an order requiring QantasLink to ensure that in respect of any maintenance error, incident or occurrence involving Mr Fletcher in future:
i) these are investigated in full, by persons other than Mr Rosenblatt or Mr McDonald; and
ii) that such investigations are carried out in accordance with Part 2.23 of the MOE and Just Culture requirements.
c) an order requiring QantasLink to:
i) discontinue the disciplinary investigation into Mr Fletcher, with any findings removed from his file; and
ii) to conduct an investigation into the maintenance error involving VH-YQT in accordance with Part 2.23 of the MOE and Just Culture requirements.
d) an order requiring QantasLink to, in respect of HIRO-169971:
i) remove any reference to the CAN suspension from Mr Fletcher’s file;
ii) reopen the HIRO and have an investigation conducted in accordance with Part 2.23 of the MOE and Just Culture requirements, with focus upon analysis of the violation, the organisational issues leading to the violation, actions taken in respect of the reporter when considering best industry expectations or practice and actions taken to address the reported documentation short comings; and
iii) have said investigation conducted by persons other than Mr Gillespie, Mr Rosenblatt or Mr McDonald.
e) an order restraining Mr McDonald and Mr Rosenblatt from:
i) speaking to Mr Fletcher in an abusive or aggressive manner;
ii) engaging in coercive or intimidatory conduct that prevents or discourages Mr Fletcher from performing his role as a LAME, including by discouraging him from reporting defects.
f) an order requiring QantasLink to reinstate Mr Fletcher to the position of Acting Shift Supervisor on Line Maintenance.
Mr Fletcher’s Current Health
[147] Mr Fletcher gave evidence that he lodged a workers compensation claim on or around 19 July 2019, and his claim was subsequently rejected by the insurer on 30 October 2019. Mr Fletcher appealed the insurers decision, and his appeal was further rejected by the insurer. Mr Fletcher submits that he did not pursue this any further, as he was suspended from work on full pay and was therefore not suffering any financial hardship.68
[148] Mr Fletcher submits that the investigations have been “long and protracted with no final resolution” with the workplace grievance first being lodged in July 2018 and the Disciplinary Investigation commencing in July 2019. Mr Fletcher continues to see his psychologist every month and in total has had 18 appointments. Mr Fletcher submits that returning to work will cause him distress and anxiety if he does not have the protection of a stop bullying order from the Commission. 69
Submissions for Eastern Airlines and the Persons Named
[149] Eastern Airlines submits that Mr Fletcher has not been bullied at work by Mr Rosenblatt and/or Mr McDonald, having proper regard to the exclusion in respect of reasonable management action, and in addition, they submit that there is no risk Mr Fletcher will continue to be bullied at work. Eastern Airlines contends that the Commission should not make any orders as sought by Mr Fletcher in this matter.
[150] Eastern Airlines alleges that many of Mr Fletcher’s workplace related concerns are directed at the application of the employer’s processes or Eastern Airlines as the employer, as opposed to Mr Rosenblatt and/or Mr McDonald.
[151] Eastern Airlines relied on the decision of Commissioner Hampton in Re SB 70, in particular, on the following paragraphs:
“[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:
• the circumstances that led to and created the need for the management action to be taken;
• the circumstances while the management action was being taken; and
• the consequences that flowed from the management action.
…
[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:
• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be ‘reasonable action’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.” (Citations omitted)
[152] In its submissions, Eastern Airlines contends that there are five reasons that count against any risk Mr Fletcher will continue to be bullied at work, noting that they deny all the allegations raised:
1. There is presently no risk as the Applicant has not been at work since 6 July 2019 as he has not had the capacity to perform work due to illness/injury;
2. There has been a long period of time since the bullying allegations, some dating back three years;
3. Mr McDonald is no longer a Duty Maintenance Supervisor, and is now a LAME on one of the shift crews, and as such, Eastern Airlines is able to roster them on different shifts;
4. Both Persons Named have been appropriately trained in workplace behaviours and related matters, and have been appraised of the learnings arising out of the review of the Applicant’s grievance;
5. The ‘maintenance work’ operational requirements at the Canberra hangar have diminished and now only compromise of line maintenance, with heavy maintenance work no longer performed at Canberra.
[153] Eastern Airlines relies on a bundle of documents tendered into evidence, in addition to those documents attached to their nine witness statements:
• Employee Grievance Resolution Guidelines;
• Employment contract of Craig Robert Fletcher;
• Eastern Australia Airlines Line Maintenance Enterprise Agreement 2016;
• Employee Performance Policy;
• Safety and Health Policy;
• Standards of Conduct Policy;
• Email from Amanda Chan to Craig Fletcher entitled “Confidential”;
• Whistleblower Policy;
• Correspondence in relation to misconduct/show cause disciplinary processes;
• Email from Jeannine Whitmore to Mace Rosenblatt, among others.
Consideration
[154] Having considered the extensive evidence and submissions filed by both parties and based on the findings made earlier in this decision, I am not satisfied that Mr Fletcher has been bullied at work within the meaning of s.789FD.
[155] I accept the submissions made on behalf of Mr Fletcher that it would be a mistake to view each event alone, separated from the broader context in which each event occurred. I also agree that carrying out an investigation in a ‘grossly unfair manner’ could also constitute bullying. However, I do not consider that in these particular circumstances, the evidence shows a pattern of bullying behaviour towards Mr Fletcher. In terms of the investigations, I consider that it was reasonable to conduct the investigations because the alleged conduct was on its face a breach of the relevant Eastern Airlines procedures.
[156] It is clear that at times, Mr Fletcher was frustrated with various management employees (including the Persons Named), and they were frustrated with him. As was submitted by the CAOOAA, there was a ‘misalignment’ between what Mr Fletcher considered to be an appropriate safety culture and the approach actually taken by Eastern Airlines, and this gave rise to a level of frustration which became evident in some of the interactions. While it is possible for the expression of frustration to give rise to a finding of bullying, for example where frustration is unreasonable or a disproportionate response to the circumstances, I do not consider in this case that the frustration expressed at times by the Persons Named was unreasonable such as to constitute bullying.
[157] I do not consider that Mr Fletcher was put under pressure by either of the Persons Named to avoid identifying or reporting defects. He was at one stage clearly told to limit himself to the maintenance schedules that were in place, and this was a reasonable request to make. I am also not satisfied that Mr Fletcher was targeted because of his reporting of defects. There is no evidence which supports such a finding. To the extent Mr Fletcher’s conduct has been the subject of investigations, for the reasons already given those investigations were reasonable.
[158] Where the allegations of bullying involved management action, I find that such action was reasonable. The management action taken in relation to Mr Fletcher was not always perfect, and it does not need to be perfect in order to be reasonable.
[159] Whether considered individually or collectively, the allegations made by Mr Fletcher do not meet the standard required for the Commission to make a finding that Mr Fletcher has been bullied.
[160] Accordingly, I dismiss the application.
DEPUTY PRESIDENT
Appearances:
L Saunders of Counsel for Mr Fletcher
D Lloyd of Counsel for Eastern Australia Airlines Pty Ltd, Mr
Hearing details:
2021.
Canberra (by video):
May, 3-5;
July, 14.
Printed by authority of the Commonwealth Government Printer
<PR737086>
1 Exhibit 21 at 15-16.
2 Ibid at 17-24.
3 Exhibit 1 at 7-9.
4 Exhibit 5 at 18.
5 Ibid at 22.
6 Exhibit 21 at 90-95.
7 Exhibit 5 at 66.
8 Exhibit 1 at 26.
9 Ibid at 28-29.
10 Transcript PN207-211.
11 Exhibit 21 at 29.
12 Exhibit 1 at 36-40.
13 Ibid at 54.
14 Exhibit 7 at 19.
15 Ibid at 24.
16 Transcript PN1554-1561.
17 Exhibit 21 at 51.
18 Ibid at 47.
19 Transcript PN1571.
20 Transcript PN245-246.
21 Transcript PN256 & PN268.
22 Exhibit 7 at 27.
23 Ibid at 31.
24 Exhibit 1 at 57.
25 Exhibit 18 at 13.
26 Exhibit 1 at 78.
27 Exhibit 11 at 7.
28 Exhibit 1 at 81.
29 Exhibit 18 at 21.
30 Ibid at 22-24.
31 Exhibit 1 at 99.
32 Exhibit 18 at 25.
33 Transcript PN2514, PN2491-2492.
34 Transcript PN2540.
35 Exhibit 21 at 55.
36 Ibid at 56.
37 Ibid at 57.
38 Ibid at 57-58.
39 Transcript PN 813-816
40 Exhibit 1 at 85.
41 Exhibit 1 at 122-123.
42 Exhibit 21 at 70.
43 Exhibit 8 at 13,
44 Exhibit 1 at 124.
45 Exhibit 8 at 15.
46 Exhibit 18 at 32.
47 Transcript PN2582-2591.
48 Exhibit 21 at 60.
49 Exhibit 1 at 110-111.
50 Exhibit 21 at 63-68.
51 Exhibit 1 at 114, 188.
52 Transcript PN746.
53 Exhibit 8 at 7.
54 Transcript PN1800-1801.
55 Exhibit 1 at 136.
56 Exhibit 1 at 138-140.
57 Exhibit 18 at 27-29.
58 Transcript PN834-839
59 Exhibit 21 at 76.
60 Exhibit 1at 179.
61 Exhibit 8 at 17-18.
62 Exhibit 1 at 164-165.
63 Exhibit 10 at 12.
64 Exhibit 1 at 17 and accompanying attachments.
65 [2015] FWC 774.
66 Amie Mac v Bank of Queensland[2015] FWC 774 at [99]-[100].
67 Ms SB [2014] FWC 2104.
68 Exhibit 1 at 199.
69 Exhibit 1 at 203-207.
70 [2014] FWC 2104.
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