Cicciarelli v Qantas Airways Ltd
[2012] FCA 56
•7 February 2012
FEDERAL COURT OF AUSTRALIA
Cicciarelli v Qantas Airways Ltd [2012] FCA 56
Citation: Cicciarelli v Qantas Airways Ltd [2012] FCA 56 Parties: LUIGI CICCIARELLI and MICHAEL INGUANTI v QANTAS AIRWAYS LTD (ACN 009 661 901) File number: VID 398 of 2009 Judge: KENNY J Date of judgment: 7 February 2012 Catchwords: INDUSTRIAL LAW – termination of employment of first and second applicants – alleged breaches of s 792 of the Workplace Relations Act 1996 (Cth) – applicants delegates of industrial organisation – whether applicants’ employment was terminated for a prohibited reason – whether respondent discharged the reverse onus imposed by s 809 – respondent provided an explanation of reasons for termination of applicants’ employment and extensive evidence of investigation prior to dismissals – respondent alleged that applicants organised and incited industrial action or attempted to do so – applicants denied those allegations – respondent undertook investigation process – found that first applicant had organised and incited industrial action – found that second applicant had attempted to organise and incite industrial action – applicants challenged investigation process – held that the investigation process was sufficient and it was open to decision maker to make relevant findings on material – delegates dismissed for misconduct – held: onus under s 809 discharged
CONTRACTS – whether breach of employment contract – applicants summarily – respondent claimed that relevant contracts of employment contained processes for dealing with alleged misconduct – open to respondent to dismiss employee on summary basis where those procedures followed – whether respondent’s policies and procedures followed – applicants challenged investigation process – no contractual right to protection from harsh, unjust or unreasonable termination – applicants engaged in conduct warranting summary dismissal – held: no breach of contract by the respondent
Legislation: Workplace Relations Act 1996 (Cth)
Cases cited: Jones v Dunkel (1959) 101 CLR 298
Fabre v Arenales (1992) 27 NSWLR 437
Plumton v Cathay Hotel Pty Ltd (1987) 21 IR 410
Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2011) 191 FCR 212
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251
Wood v City of Melbourne (1979) 41 FLR 1
Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Australian Health and Nutrition Association Ltd (2003) 147 IR 380
General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605
Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173
Cuevas v Freeman Motors Ltd (1975) 25 FLR 67
Harrison v P & T Tube MillsPty Ltd (2009) 181 IR 162
North v Television Corporation Ltd (1976) 11 ALR 599 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Malik v Bank of Credit and Commerce International SA [1998] AC 20
Van Efferen v CMA Corporation Ltd (2009) 183 IR 319
Rogan-Gardiner v Woolworths Ltd [No 2] [2010] WASC 290
State of South Australia v McDonald (2009) 104 SASR 344
Brambles Holdings Ltd v Carey (1976) 2 ACLR 176Cross on Evidence Eighth Australian Edition (LexisNexus Butterworths Australia, 2010), J D Heydon
Date of hearing: 18 - 28 October 2010 and 2 December 2010 Date of last submissions: 3 December 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 355 Counsel for the Applicants: Mr E P White Solicitor for the Applicants: Ryan Carlisle Thomas Counsel for the Respondent: Mr F Parry SC with Mr P J Wheelahan Solicitor for the Respondent: Freehills
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 398 of 2009
BETWEEN: LUIGI CICCIARELLI
First ApplicantMICHAEL INGUANTI
Second ApplicantAND: QANTAS AIRWAYS LTD (ACN 009 661 901)
Respondent
JUDGE:
KENNY J
DATE OF ORDER:
7 FEBRUARY 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The amended application dated 21 July 2009 be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 398 of 2009
BETWEEN: LUIGI CICCIARELLI
First ApplicantMICHAEL INGUANTI
Second ApplicantAND: QANTAS AIRWAYS LTD (ACN 009 661 901)
Respondent
JUDGE:
KENNY J
DATE:
7 FEBRUARY 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
This is an application under ss 807 and 841 of the Workplace Relations Act 1996 (Cth) (as in force at the relevant time) (‘the Act’) regarding alleged breaches by the respondent, Qantas Airways Ltd (‘Qantas’), of s 792 of the Act. Qantas is a large employer operating an airline throughout Australia and internationally. The applicants were its employees. They allege that, in contravention of s 792 of the Act, they were unlawfully dismissed because they were officers and delegates of the Transport Workers Union (‘TWU’). The applicants also seek damages for breaches of their employment contracts constituted, so they allege, by their summary dismissals.
For the reasons set out below, I would dismiss the application.
The first applicant, Luigi Cicciarelli, worked for Qantas from 25 November 1993 until 5 March 2009, when Qantas terminated his employment. He had received a Long Service Badge on 3 February 2009. From 1997 until his dismissal, Mr Cicciarelli worked as a Qantas airline services operator in the ramp area. His responsibilities included loading and unloading baggage, freight, mail and livestock from aircraft, and operating motor vehicles and other ground-handling equipment.
The second applicant, Michael Inguanti, also worked for Qantas for many years – from 22 March 2000 until 2 March 2009 when his employment was also terminated. From the end of 2002 until his dismissal, Mr Inguanti worked as airline services operator in the Qantas baggage department, where his duties included loading baggage on designated flights. On occasions, he had worked as a relieving leading hand. Relevantly for this proceeding, Mr Inguanti became an occupational health and safety representative (‘OH&S representative’) in around March 2008 and remained so at the time of the events in question.
Until their dismissals in March 2009, both Mr Cicciarelli and Mr Inguanti had intended to continue working at Qantas until retirement.
The TWU represented members on the ramp and in the baggage department. Both applicants were union members, Mr Cicciarelli having joined the union in about February 1994 and Mr Inguanti, in about March 2000. They remained members at all times material to this proceeding. On 5 January 2007, Mr Cicciarelli was appointed a delegate of the TWU on the ramp services (apron area). On 12 October 2007, Mr Inguanti was appointed a delegate of the TWU in the domestic and international baggage rooms.
BACKGROUND TO THE PROCEEDING
There are a number of industrial instruments binding on Qantas, the TWU and other unions representing the Qantas workforce. At the relevant time, employees in the ramp and baggage areas, which included the applicants, were covered by the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011) (‘Enterprise Agreement 7’).
This proceeding is particularly concerned with events in the ramp and baggage areas on 14 February 2009. On that day, employees working in the ramp area at Melbourne Airport (‘the Ramp’) stopped work at around 10 am following a vote conducted in the presence of Mr Cicciarelli. The employees resumed work shortly after 4 pm after proceedings in the Australian Industrial Relations Commission (‘the Commission’). The stoppage caused significant disruption to the operations of Qantas and its customers.
Also on 14 February 2009, employees working in the baggage area (‘the Baggage Room’) conducted a vote on whether to stop work in support of the employees on the Ramp. Mr Inguanti took the vote at around 11.15 am. The vote was close, with the result that the Baggage Room employees remained working.
Over the subsequent weeks, Qantas conducted an investigation into the events of 14 February. The investigation was led by Peter Smith, Industrial Relations Manager at Qantas, who gave evidence at trial. Other Qantas managers were also involved at various times in the investigation. Mr Smith and the other managers gathered material and made allegations against numerous employees, including Mr Cicciarelli and Mr Inguanti.
Because the allegations against the applicants are relevant to the case they make, it is convenient to set them out in full here. Thus, in a letter dated 18 February 2009, addressed to Mr Cicciarelli, Qantas alleged, “[b]y way of summary … in relation to [Mr Cicciarelli’s] conduct on Saturday 14 February”:
●that you organised meetings with Melbourne ramp employees on the morning of Saturday 14 February 2009 without authority from Qantas management;
●that you participated in meetings with Melbourne ramp employees on the morning of Saturday 14 February 2009 without authority from Qantas management;
●that you ceased, refused to perform duties and/or withdrew your labour from Qantas on 14 February 2009;
●that you incited and/or organised Melbourne ramp employees to cease, refuse to perform duties or withdraw their labour from Qantas on 14 February 2009;
●that you caused, incited and/or induced Melbourne ramp employees to engage in conduct which constituted a breach of their individual contracts of employment with Qantas to the detriment of Qantas;
●that you refused, disobeyed or disregarded a lawful direction from Qantas management to return to work within a stipulated period on at least two separate occasions;
●that you engaged in unprotected industrial action in breach of the Workplace Relations Act 1996 (Cth);
●that you incited and/or organised for Melbourne ramp employees to engage in unprotected industrial action in breach of the Workplace Relations Act 1996 (Cth);
●that you failed to refer matters which were the subject of a potential dispute between Qantas and yourself to be conducted in accordance with the dispute resolution process pursuant to clause 11 of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011);
●that you failed to seek advice and/or authorisation prior to undertaking an action or activity that was contrary to Qantas policy pursuant to clause 2 of the Standards of Conduct Policy;
●that you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy;
●that you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth));
●that you engaged in conduct which has brought/is likely to bring Qantas into disrepute and has damaged/is likely to damage the reputation, viability or profitability of Qantas;
●that as a result of the conduct engaged in on 14 February 2009, Qantas sustained losses in excess of $1.5 million.
If found to be substantiated, the alleged conduct would constitute serious misconduct/gross misconduct and would constitute a breach of the following:
●the terms and conditions of your employment with Qantas as a Airline Services Operator, including your obligations pursuant to your letter of appointment, the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011) and Qantas’ Policies and Procedures including Qantas’ Standards of Conduct;
●your obligation to comply with the dispute resolution process pursuant to clause 11 of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011);
●wrongfully causing, inciting and/or inducing Melbourne ramp employees to engage in conduct which constituted a breach of their individual contracts of employment with Qantas to the detriment of Qantas;
●your obligation to conduct yourself in a manner of trust and confidence as an employee of Qantas and a senior member of the ramp services team.
Qantas made further allegations of misconduct against Mr Cicciarelli in a letter dated 3 March 2009. These allegations were as follows:
1.After your attendance at the meeting between the TWU and Qantas at 11.30 am on Friday 13 February 2009, you organised a further meeting in the lunchroom with Qantas employees:
In particular, it is alleged that:
(i)you met with approximately 12 other employees in the lunchroom at some stage between 4.30 pm – 7.20 pm;
(ii)at this meeting you determined to conduct a meeting the following morning, Saturday 14 February 2009, at which you would conduct a report back to employees;
(iii)you intended at that meeting to report back on the part-time issue, which was not the subject of the meeting on 13 February 2009 between the TWU and Qantas; you knew that this was a significant issue and that it was likely that it would incite unlawful industrial action;
(iv)you did not seek authorisation from Qantas management to conduct this report back on Saturday 14 February 2009;
(v)you contacted Mr Peter Mancuso (TWU) in order to solicit union support for a stop work meeting; and
(vi)you left the workplace at 7.24 pm.
2.You state that you attended for duty on Saturday 14 February 2009 and worked ‘as directed and in accordance with’ your leading hand’s direction. You state that ‘after constant pestering by co-workers’ you indicated the outcome of a meeting between the TWU and Qantas on Friday 13 February 2009. You have failed to identify the individual/s who requested you to address them or the time/method by which the alleged request was made.
3.You state that you were requested to notify Qantas of the employees’ decision and to advise Qantas that staff would ‘wait for the TWU to come to the airport to discuss and resolved the matter’.
Qantas disputes this and alleges that you organised a meeting to take place in the lunchroom at approximately 10 am in order to advise employees on the results of the meeting and encourage or incite industrial action:
In particular, it is alleged that:
(i)you swiped in to work at 7.16 am and immediately commenced organising employees to attend a meeting in the lunchroom at 10 am;
(ii) you were observed on CCTV footage doing so;
(iii)sometime between 8.00 am and 9.30 am you so[ught] support from employees from Melbourne Freight Terminal for a proposed Ramp stoppage of work.
(iv)you led an unauthorised meeting at 10 am in the lunchroom;
(v)you reported back to employees on matters which were not the subject of the meeting [o]n Friday 13 February 2009 between Qantas and the TWU and which you knew would be likely to incite a stoppage of work;
(vi)you conducted a vote with a group of employees in the lunchroom at this meeting. This vote was concerned with a proposed unlawful stoppage of work;
(vii)shortly after 10 am you and Chris Briggs informed Mr Shane Murphy that “the boys had walked” meaning that the ramp employees had unlawfully stopped work;
(viii)you were observed to have informed at least one employee who was not present at the 10 am meeting that there was a meeting in block 5 and they were required to attend;
(ix)you ceased work and incited or encouraged others to do so.
Qantas alleges that:
(i)Connie Corrente and [Doug Brooke] spoke with you in the lunchroom at approximately 10.40 am. [Doug Brooke] addressed you and the other employees and directed that all employees return to work within the next 5 minutes otherwise the action would be considered an unlawful stoppage and your pay would be docked. You refused to return to work;
(ii)You were directed again to return to work at 12.30 pm. You refused to do so.
4.Qantas alleges that you organised a meeting and conducted a vote to cause/incite ramp employees to engage in an unlawful stoppage of work.
Also in a letter dated 18 February 2009, Qantas made the following allegations against Mr Inguanti:
1.that whilst you were not rostered to work on Saturday 14 February 2009, you attended at Melbourne airport in order to organise meeting/s and/or conduct discussions with Melbourne baggage room employees and Melbourne ramp employees without authority from Qantas management;
2.that during the course of those meetings and/or discussions you sought to incite, induce and/or organise Melbourne baggage room employees to cease, refuse to perform duties or withdraw their labour from Qantas on 14 February 2009 in breach of the Workplace Relations Act 1996 (Cth);
3.that during the course of those meetings and/or discussions you sought to cause, incite and/or induce Melbourne baggage room employees to engage in conduct which constituted a breach of their individual contracts of employment with Qantas to the detriment of Qantas;
4.that such action was engaged in by you in support of and/or in conjunction with unprotected industrial action which was being organised and/or engaged in by Melbourne ramp employees in breach of the Workplace Relations Act 1996 (Cth);
5.that you refused, disobeyed or disregarded a lawful direction from Qantas management on several occasions to leave the workplace on the basis that you were engaging in conduct which constituted a breach of your contract of employment, Qantas’ Policies and Procedures and the Workplace Relations Act 1996 (Cth);
6.that following several lawful directions from Qantas management to leave the workplace, you refused to do so;
7.that after being directed to leave the workplace, you made false misrepresentations to Qantas management and employees in relation to alleged safety concerns in order to continue to engage in discussions and/or meetings with baggage room and ramp employees in order to cause, incite and/or induce baggage room employees to refuse to perform duties or withdraw their labour from Qantas in support of ramp employees;
8.that after being directed to leave the workplace, you made false misrepresentations to Qantas management and employees in relation to alleged safety concerns with respect to the manner in which Qantas’ contingency workforce performed ramp services duties;
9.that your conduct constituted an abuse of your position as a health and safety representative for Qantas, Qantas’ Policies and Procedures (including its Occupational Health and Safety Responsibilities, Authorities and Accountabilities Policy) and the powers with respect to right of entry to a workplace pursuant to the Workplace Relations Act 1996 (Cth) and Occupational Health and Safety Act 2004 (Vic);
10.that you failed to refer matters which were the subject of a potential dispute between Qantas and its employees to be conducted in accordance with the dispute resolution process pursuant to clause 11 of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011);
11.that you failed to see[k] advice and/or authorisation prior to undertaking an action or activity that was contrary to Qantas policy pursuant to clause 2 of the Standards of Conduct Policy;
12.that you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy;
13.that you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth));
14.that you engaged in conduct which has brought/is likely to bring Qantas into disrepute and has damaged/is likely to damage the reputation, viability or profitability of Qantas;
15.that as a result of the conduct engaged in on 14 February 2009, Qantas sustained losses in excess of $1.5 million.
Qantas made further allegations of misconduct against Mr Inguanti in a letter dated 25 February 2009. These allegations were as follows:
1.You stated that you attended the workplace on Saturday 14 February 2009 in your capacity as health and safety representative in response to an ‘express request’ of your work group. You have failed to identify the individual/s who made the alleged request, the time/method by which the alleged request was made and the nature of any such request (ie what was the safety issue).
Qantas disputes this and alleges that you attended the workplace on your day off for the specific purpose of causing or organising domestic baggage room employees to engage in unlawful industrial action in support of an unlawful stop work engaged in by ramp employees.
In particular, it is alleged that:
(i) you attended the workplace at 11.07 am and proceeded to the baggage room;
(ii) you were not rostered on for work;
(iii)that contrary to your assertion that you were responding to an ‘express request’ from your work group to attend at work due to a safety issue, you attended at the request of and/or following discussions with Luigi Cicciarelli (such discussions occurring on either Friday 13 February 2009 and/or Saturday 14 February 2009) in order to organise an unlawful stoppage by baggage room employees in support of a proposed unlawful stoppage by ramp employees;
(iv)accordingly, you were aware that the ramp employees had ceased work by way of an unlawful stoppage at approximately 10.15 am;
(v)shortly after you swiped on you were observed by an Airline Services Operator in the baggage room to conduct a vote with the 18 baggage employees on shift. It is alleged that the purpose of the vote was to see whether baggage staff would cease work in support of the unlawful industrial action being engaged in by ramp employees.
(vi)at no stage prior to, during or following the conduct of the vote did you refer to any safety issues in the workplace (whether in the baggage room or at the ramp) or state that any proposed stopwork was related to any such stoppage. The vote was purely concerned with a proposed unlawful stoppage of work in support of the ramp action.
(vii)the outcome of the vote was 9 employees in favour of an unlawful stoppage and 9 against. When the Airline Services Operator entered the baggage room he immediately voted against the stoppage, making the vote 10-9 to remain on the job.
(viii)you indicated that you would return in half an hour to conduct another vote regarding a stoppage.
2.You stated that ‘soon after your arrival’ you informed Connie Corrente and [Doug Brooke] that you were in attendance in your capacity as health and safety representative and that this was acknowledged by [them].
Qantas disputes your version of the conversation and alleges that:
(i)Connie and [Doug Brooke] saw you in the bagroom shortly after you had conducted the vote and you indicated to Connie and myself that you had taken a vote from the baggage room employees in relation to whether they would cease work in support of action taken by the ramp employees and that the baggage room had determined to continue working ‘for now’;
(ii)that you would return to the bagroom to conduct another vote ‘in half an hour’;
(iii)at no stage did you indicate that you were in attendance at the workplace in your capacity as a ‘health and safety representative’;
(iv)at no stage did you indicate that you had been ‘expressly requested’ by your work group to attend the workplace in relation to a safety issue;
(v)at no stage did you refer to any safety issues being raised by the baggage room employees, ramp or any other employee;
(vi)at no stage did we indicate to you that your presence in the workplace was authorised.
3.In relation to the conversation which you state occurred at 1.45 pm, Qantas alleges the following:
(i)At approximately 11.50 am [Doug Brooke] saw you near the arrivals hall and [Doug Brooke] indicated to you that you were to leave the workplace (ie landside) as you were not rostered on for work;
(ii)you refused to leave the workplace and stated that ‘it was a public place’ and that ‘you can’t tell me to leave as I need to support my employees’;
(iii)at no stage during that conversation did you indicate to [Doug Brooke] that you were present at the workplace in your role as health and safety representative or that any safety concerns had been raised by any employees.
4.Qantas security was directed not to allow you to re-enter the workplace.
5.Qantas contingency was deployed at approximately 12.15 pm.
6.At approximately 12.45 pm you called [Doug Brooke] and demanded that you be ‘let through security’. [Doug Brooke] indicated that you had been directed to leave the workplace. You then indicated to [Doug Brooke] that you were ‘acting as an health and safety representative’ and you needed to ‘inspect the workplace as there were new people working there’ (ie Qantas contingency). When [Doug Brooke] indicated that you were not required to attend for work, you indicated that you would be ‘instructing your members to stop work’. This was the first time that you raised any safety issue with [Doug Brooke].
7.At approximately 12.55 pm you called Connie Corrente and left a voice message on her phone in which you stated ‘Connie, it’s Michael Inguanti, the guys called me in because they’ve got an OHS concern of drivers bringing stuff in…just to inform you that under OHS I am walking onto the premises so could you please contact Chubb security immediately and inform them to allow me through under OHS thank you’.
8.When Connie returned your call, you indicated that the safety issue related to the ‘individuals in the bagroom’ (ie Qantas contingency).
9.It is alleged that it was not until you telephoned [Doug Brooke] at approximately 12.45 pm that you raised any alleged safety concerns. It is alleged that these concerns related to Qantas contingency performing certain duties in the bagroom. At no stage prior to this time did you raise any safety concerns with Qantas management, including Connie or [Doug Brooke].
10.It is alleged that you misrepresented to both Connie and [Doug Brooke] that you had safety concerns regarding the contingency employees for the express purpose of entering the workplace after you had been excluded by security, in order to conduct a further vote in the bagroom and/or to cause or organise the baggage room employees to engage in an unlawful stoppage in support of the ramp employees.
11.Accordingly, Qantas disputes that you attended at the workplace on Saturday 14 February 2009 in response to any legitimate safety concerns and alleges that instead you attended for the express purpose of organising or attempting to organise an unlawful stoppage of baggage employees in support of the ramp action.
12.It is further alleged that in both your written response and your responses to Qantas management to date regarding this matter, that you have been dishonest. For example, you have alleged that you told both Connie and [Doug Brooke] from the outset that you were attending in the workplace in your capacity as ‘health and safety representative’.
Mr Cicciarelli and Mr Inguanti gave written responses to these allegations, in the circumstances discussed hereafter. Both were interviewed. Numerous other employees who stopped work on 14 February 2009 were also interviewed. Some other employees gave written responses to the allegations against them.
Ultimately, Mr Smith advised John Hall – Qantas Airport Manager (Victoria and Tasmania) – of the outcome of the investigation. The investigation resulted in findings that led to warnings for some employees, final warnings for others, and dismissal for Mr Cicciarelli and Mr Inguanti. Mr Hall decided that Mr Cicciarelli and Mr Inguanti were guilty of serious misconduct that warranted dismissal and dismissed them.
THE RELEVANT LEGISLATION
Section 792(1)(a) of the Act provides that an employer must not, for a prohibited reason, or for reasons that include a prohibited reason, dismiss an employee or threaten to dismiss an employee. Section 793(1)(a) relevantly provides that an employee is dismissed for a prohibited reason “if [dismissal] is carried out because the employee … is … an officer, delegate or member of an industrial association”.
It was not in issue that the applicants were, at the relevant time, delegates and officers of the TWU – an industrial association within the meaning of the Act. The effect of s 809(1) of the Act is that Qantas bears the onus, on the balance of probabilities, of excluding a conclusion that the applicants were dismissed for the reason that, or for reasons including that, they were officers or delegates of the TWU. Section 809(1) provides that:
If:
(a)in an application under section 807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being carried out for that reason or with that intent, unless the person proves otherwise.
THE PARTIES’ SUBMISSIONS
The applicant’s case – breach of s 792
The applicants contended that, in dismissing them, Qantas acted in breach of s 792 of the Act, for reasons that included a prohibited reason, namely, that they were officers or delegates of the TWU. Throughout his submissions, counsel for the applicants emphasised that the applicants, especially Mr Cicciarelli, did not have a great deal of education and that they both saw themselves as long-term Qantas employees.
The applicants’ case commenced with the proposition that they had been assiduous in the discharge of their responsibilities as delegates and that, as a result, Qantas came to view both of them as troublemakers. According to the applicants, Qantas management had not only told them as much but, as a result, in the case of Mr Cicciarelli, had tried to diminish his credibility with his fellow workers and the TWU. In this context, the applicants noted that, during 2008-2009, there were numerous unresolved industrial issues affecting Ramp and Baggage Room employees, such as the payment of a disability allowance, meal breaks, and part-time to full-time rostering issues.
The parties agreed that a meeting on 13 February 2009 was relevant to the events of 14 February 2009. The applicants argued that this meeting was significant because it had been called to resolve a number of outstanding industrial issues. Wayne Mader, TWU State Secretary, and Peter Mancuso, a TWU organiser, attended the meeting with Qantas management staff (relevantly, Mr Smith and Ms Corrente) and TWU delegates (relevantly, Mr Cicciarelli and Mr Inguanti). According to the applicants, the meeting failed to achieve its purpose. Further, when Mr Cicciarelli went to see Douglas Brooke, the Ramp manager, after the meeting, Mr Brooke told Mr Cicciarelli that he had changed his mind with regard to previously agreed rostering outcomes for part-time staff.
The applicants’ case was that Mr Cicciarelli attended work as usual on Saturday, 14 February 2009; and that, when Mr Cicciarelli entered the Ramp lunchroom around 10 am that day, the TWU members requested him to give a report back, as was his usual practice after a meeting with management. According to the applicants, when Ramp employees in the lunchroom learnt of the outcome of Friday’s meeting and Mr Brooke’s change of mind, they became very angry and proposals were put that there should be a work stoppage. In this context, so the applicants said, Mr Cicciarelli found himself in a very difficult position and asked those in the lunchroom what they wanted. According to the applicants, Mr Cicciarelli “didn’t seek a vote, put a proposition or a motion that work should cease, or in any other way utter any words, … which could be taken in any way as an encouragement that industrial action be taken”. Mr Cicciarelli subsequently informed management of the employees’ decision to stop work.
The applicants’ case with respect to Mr Inguanti was that, although not rostered to attend work on 14 February 2009, Mr Inguanti came to work that day at 11.07 am, after he received a telephone call from a Mr Fox indicating that strangers might be on the tarmac to perform work at the airport. Mr Inguanti, so the applicants said, was concerned that the use of untrained people might well raise OH&S issues. According to the applicants, when Mr Inguanti arrived at work, he sought approval from his supervisor to have a meeting of all baggage staff, union and non-union. Mr Inguanti advised them that he had come as a result of being told that there were potentially untrained people working on the tarmac. As the employees in the Baggage Room knew by then that the Ramp employees had voted to stop work, the meeting in the Baggage Room was a noisy and heated one, in the course of which someone asked Mr Inguanti for a vote to be held. The applicants maintained that Mr Inguanti acceded to that request and falsified the result so that the employees went back to work. Mr Inguanti left the Baggage Room immediately thereafter.
The applicants submitted that the evidence gathered in the course of the Qantas investigation showed that the no-one had planned the events of 14 February 2009. The Ramp employees’ vote to stop work was, so they said, the spontaneous outcome of a heated and tense atmosphere. At most Mr Cicciarelli “had fed issues to the room and in the heat of debate invited the floor to vote”.
In opening, the applicants claimed that: (1) Mr Hall did not consider the evidence of the employees who had been interviewed about the events of 14 February 2009; (2) there was nothing to show that Mr Smith had made any analysis of this evidence; and (3) there was nothing to explain how Mr Smith came to conclude that Mr Cicciarelli and Mr Inguanti were guilty of the serious misconduct as alleged. Viewed in these ways, Qantas had failed to discharge its onus under s 809 of the Act.
Also in opening, the applicants argued that, even if Mr Hall had a genuine belief that the applicants had engaged in conduct justifying summary termination, the Court should not, without more, accept that the reasons for their termination were unconnected with their status as delegates. The applicants argued that the relevant inquiry was whether the reasons for their dismissals included that they were delegates; and this inquiry was broader than just the subjective reasons of Mr Hall. In this connection, so they said, the Court was also bound to consider their workplace history, including their activities as delegates, and the whole of the investigation process. The Court should, so the applicants said, “be reluctant merely [] to act on the avowed subjective view of the final decision-maker, particularly in circumstances where the decision itself encompasses an antecedent procedure”.
Also in opening, the applicants argued that the letters formally terminating their employment showed that Qantas had acted in part for a prohibited reason. This was because (amongst other things) the letters relied on their failures to observe the dispute resolution procedure in Enterprise Agreement 7 and to conduct themselves in accordance with the Qantas Standards of Conduct Policy; and only the applicants were dismissed for reasons that included these reasons, although most other employees who stopped work on 14 February 2009 were in no relevantly different position. Further, the applicants argued that numerous other reasons advanced in these letters showed that the applicants were dismissed because they were delegates.
In closing address, the applicants specifically focussed on the reasons advanced by Qantas for dismissing them. The applicants took issue with the respondent’s case that there was “a compendious reason for dismissal” – organising and inciting, or attempting to organise and incite, industrial action. The applicants’ argument began with the letters of allegation sent to each of them after 14 February 2009. The applicants’ counsel referred to the letter of 18 February 2009 sent to Mr Cicciarelli, which, so he said, made 14 distinct allegations: see [11] above. Counsel continued:
That they were separate allegations can be seen by the nature of the allegations. For example, failure to refer matters under the dispute resolution procedure is a separate and identifiable breach of either the employment conditions or the EBA alleged against Mr Cicciarelli. That breach … is quite separate from, for example, another allegation that you ceased, refused to perform duties and withdrew your labour on 14 February.
The letter is not to be taken as a compendious allegation of misconduct with isolated particulars but rather … they are specific allegations each in their own right.
Counsel for the applicants submitted that the same was equally true of the allegations made in the other letters of allegation sent to Mr Cicciarelli and Mr Inguanti: see [12]-[14] above.
According to the applicants, Mr Hall gave effectively two sets of reasons in respect of Mr Cicciarelli. The first set was contained in his notes of 5 March 2009: see [164] below. The second set was contained in the letter of dismissal that Mr Hall read to Mr Cicciarelli, and that Qantas later sent to him. According to the applicants, the letter contained some 19 findings and were relied on “separately and together to reach a decision to dismiss” Mr Cicciarelli.
The applicants’ position with respect to Mr Inguanti was that Mr Hall relied on the six findings arising out of the investigation conveyed to him by Mr Smith. These findings became part of the letter of dismissal from which Mr Smith read when he informed Mr Inguanti that he was dismissed. This was the letter dated 2 March 2009, which Qantas subsequently sent to Mr Inguanti.
The applicants argued that many of Mr Hall’s views were “informed by his view as to the role of the applicants within the workplace”. The applicants’ written submissions read as follows:
[Mr Hall] has the view that delegates hold leadership positions [in the workplace] and they are to behave as if they are holding leadership positions. Further … he has an expectation that delegates would influence positively members of the union to comply with the EBA by reason of their leadership position. He had these expectations of both the applicants.
[A]s persons holding leadership positions Mr Hall has different expectations of delegates compared with other employees.
The applicants referred to certain of Mr Hall’s emails as indicative of his belief in the importance of the delegate’s role in the workplace. In closing submissions the applicants introduced the concept of a “Grand Plan” which was a reference to Mr Cicciarelli’s purported premeditation of the work stoppage on 13 February. The applicants argued that the evidence did not support a case that Mr Cicciarelli had a Grand Plan because there was no evidence to show that, on 13 February, Mr Cicciarelli had told others about a planned work stoppage on 14 February and because Mr Cicciarelli could not have known precisely which individuals, including how many part-time employees, would be rostered on to work on 14 February.
The applicant’s case – no basis for summary dismissal
In the second part of their case, the applicants argued that their conduct did not justify summary dismissal under their employment contracts. The applicants argued that there had to be conduct in fact warranting summary dismissal. The applicants sought to refute the respondent’s argument that there need not be shown actual conduct justifying summary termination, in order for summary termination to be permissible under the applicants’ contracts.
The applicants argued that Qantas was wrong in forming the view that: (1) Mr Cicciarelli attended work with the intention of organising a stoppage of work; and (2) Mr Inguanti attended work for the purpose of attempting to organise a stoppage of work. The applicants’ closing written submissions read as follows:
Whe[ther] the conduct amounts to conduct sufficiently serious to warrant the summary termination of employment is a question of fact. It is not to be determined in a merely theoretical fashion. In this case the Court knows that in the context of the dispute on 13 and 14 February 2009 the respondent did not consider it serious enough that participation in meetings, incitement to and indeed stopping, warranted dismissal. It is against that background that the conduct of Mr Cicciarelli and Mr Inguanti should be determined. That is, the Court in determining whether or not each of the applicants was in breach of their contract of employment sufficiently serious enough to warrant summary termination should proceed from the basis that any conduct which other employees engaged in which did not lead to dismissal is not, for the purposes of this case, sufficiently serious to amount to serious and wilful misconduct justifying summary termination of their employment. The distinguishing feature is an overt organisation of industrial action or the attempts to do so. The Court should find that neither of the applicants engaged in this conduct.
The applicants argued that the investigation preceding their dismissal was conducted by persons who had an antipathy to them. They also maintained that the investigation was unfair because it was conducted by persons who were immediately concerned in the events alleged to have constituted the serious misconduct. Additionally, the applicants asserted that they were not given the material on which Qantas relied in terminating their employment, and that there was a lack of particularity in the allegations against them.
In written submissions, the applicants stated:
While each of them contend that the respondent was also in breach in respect of the procedure leading up to the termination of their employment and the breach of their implied terms the substantive case put by each of the applicants is that, in the absence of proper grounds for the summary termination of their employment the respondent was in breach of their respective contracts. The applicants accept that in the event that the Court was to find that they had engaged in conduct which would justify the summary termination of their employment then a breach of the other provisions of the contract identified above would have little effect on the remedies available to them.
(Errors original)In respect of the statutory claim, the applicants sought reinstatement, back pay and a full return to the previous status quo in terms of their employment. They also sought payment of penalty. If unsuccessful in their statutory claim and successful in their contract claim, the applicants sought damages not limited to the amount of notice otherwise required by the employment contract or enterprise agreement. In this regard, the applicants submitted:
Whilst people are entitled to discharge their contract in a way that would be most beneficial to [them], [this] does not alter the proposition that damages should be awarded. …
In the event that the Court was to find that the applicants had not relevantly engaged in conduct which, in the circumstances of this case, warranted summary termination of employment it should not find that the contract would in any event have been terminated on the provision of the requisite notice.
The evidence in relation to this is that each applicant wished to have a long term career at Qantas, that long term careers at Qantas were available and that absent serious and wilful misconduct different from the types engaged in by other employees the applicants’ contracts would not have been terminated.
Qantas’ case – no breach of s 792
Qantas argued that, in the case of each applicant, the decision-maker was John Hall and, in order for Qantas to rebut the presumption in s 809(1), Qantas needed to prove that Mr Hall terminated the applicants’ employment for a reason other than, or for reasons not including, that they were officers or delegates of the TWU. Building on the proposition that a delegate can lawfully be dismissed for misconduct, Qantas further contended that relevant misconduct included: (1) conduct that was not authorised by the employer; (2) conduct that was carried out in an employee’s capacity as a delegate though not carried out for the purpose of furthering or protecting the industrial interests of the relevant industrial association; (3) unlawful conduct notwithstanding it was carried out in the employee’s capacity as a delegate; and (4) conduct carried out as a delegate though not authorised by the delegate’s industrial association. Mr Hall’s belief as to what had occurred was, so Qantas submitted, crucial; and, accordingly, if Mr Hall believed that there had been any misconduct of the kind to which Qantas referred, and he had terminated the applicants’ employment on the basis of such misconduct, then there was no contravention of s 792, as read with s 793.
Qantas submitted that, on 2 March 2009, Mr Hall formed the view that, on 14 February 2009, Mr Inguanti had attended Qantas premises, with the intention of organising industrial action and had attempted to organise such action. Mr Hall’s view was, so Qantas said, based primarily on a report provided to him by Mr Smith. Qantas’ case was that Mr Hall believed that Mr Inguanti’s action was unlawful misconduct and in breach of Mr Inguanti’s employment contract, the Qantas Group Standards of Conduct Policy and Enterprise Agreement 7. According to the respondent, Mr Hall believed that the attempted organisation of industrial action was not authorised by the TWU and that, with all these considerations in mind, Mr Hall had decided to terminate Mr Inguanti’s employment. Qantas submitted that Mr Hall’s reasons for terminating Mr Inguanti’s employment were accurately set out in a document referred to by Mr Hall in his meeting with Mr Inguanti on 2 March 2009.
Qantas further submitted that, on 5 March 2009, Mr Hall formed the view that, on 14 February 2009, Mr Cicciarelli had attended work with the intention of organising industrial action and in fact had organised industrial action. This view was, so Qantas said, based primarily on a report provided to Mr Hall by Mr Smith. According to Qantas, Mr Hall believed that, as in the case of Mr Inguanti, Mr Cicciarelli’s action was, relevantly, unlawful misconduct and in breach of Mr Cicciarelli’s employment contract, the Qantas Standards of Conduct Policy and Enterprise Agreement 7. The respondent argued that Mr Hall believed that the organisation of industrial action was not authorised by the TWU; and that, with all these considerations in mind, Mr Hall decided to terminate Mr Cicciarelli’s employment. Qantas submitted that Mr Hall’s reasons were as stated in the letter of termination sent to Mr Cicciarelli.
With respect to the applicants’ dismissals, Mr Hall was not, so Qantas argued, actuated by the prohibited reason in s 793(1)(a) of the Act.
Qantas’ case – basis for summary dismissal
Qantas argued that:
(a)When properly construed, the applicants’ contracts of employment contain processes for dealing with alleged misconduct. Where those processes have been followed, and Qantas has determined that allegations have been substantiated, Qantas may determine to terminate employment on notice or summarily. The content of the termination clause has to be read consistently with the incorporation of Qantas policies. Accordingly, there does not need to be proven misconduct before employment can be terminated.
(b)In any event, on all the material before the Court, the Court can be satisfied that there was conduct that would justify summary termination.
(c)There is no contractual right to protection from harsh, unjust or unreasonable termination. That is a statutory right.
(d)Even if there was no conduct that would justify summary dismissal, Qantas could terminate the applicants’ employment on the notice provided in their contracts.
THE EVIDENCE AT TRIAL
The evidence led at trial was extensive and included voluminous documentary evidence.
Mr Cicciarelli and Mr Inguanti gave evidence at trial and were cross-examined. They called numerous other witnesses – Brett Storen, Mark Fischer, Craig Thomson, Rocco Cicciarelli, Gary Runnalls, Sam Loporto, Chris Briggs, Mario Bordignon, Pasquale (‘Pat’) Ardino and Michael Fong – all of whom were subject to cross-examination. As well, the applicants relied on the statements of Tony Cassar and Ashneel Kumar, which, by agreement, were admitted into evidence without cross-examination. Mr Inguanti relied on the statement of Gary Agresta, which was also, by agreement, admitted into evidence without cross-examination.
Qantas also relied on the evidence of the following witnesses – Peter Smith, Connie Corrente, John Hall, Douglas Brooke, Lindsay Parsons and Dragan Koscak – all of whom were cross-examined. Qantas also relied on a statement of Craig Thomas, which was, by agreement, admitted into evidence without cross-examination.
The following is an abbreviated account of the evidence of the principal witnesses.
Mr L Cicciarelli
In an outline of evidence adopted at trial, Mr Cicciarelli detailed his role as a TWU delegate, stating, amongst other things, that he had “dealt with a number of industrial issues on a regular basis”; and, in so doing, had extensive dealings with particular Qantas management and human relations staff, including Mr Brooke and Ms Corrente. Mr Cicciarelli’s evidence was that he had been an active union delegate and a vigorous participant in contentious industrial issues, particularly in the year or so prior to his termination, and had on this account been criticised by management staff.
Mr Cicciarelli detailed the meeting on 13 February 2009, which he had attended. He said that various items were discussed, including the issues of a disability allowance (which, so he said, had been an ongoing and unresolved issue for Ramp employees) and meal breaks. Mr Cicciarelli’s evidence was that the TWU Branch Secretary, Mr Mader, had failed to support him on these issues.
In cross-examination, whilst maintaining that “Qantas still could have paid that”, Mr Cicciarelli agreed that the TWU had previously told him there was no way employees would receive the $810 claimed by him as a disability allowance. Further, Mr Cicciarelli agreed that, at the meeting on 13 February, Mr Mader had wanted Mr Cicciarelli “to sort of quieten down” on this issue. Mr Cicciarelli conceded that, after the meeting, he was “upset with the TWU” about its failure to support him on the disability allowance issue and not “happy with this so-called meeting”. It was, moreover, plain from Mr Cicciarelli’s evidence that he was also upset about Mr Mader’s and Qantas’ approach to the issue of meal breaks. The TWU and Qantas agreed on this issue, and disagreed with Mr Cicciarelli.
Mr Cicciarelli stated that:
On exiting the meeting, I told Mr Mancuso that the Qantas Ramp staff wanted to talk directly with the TWU organisers regarding the lack of progress by the TWU in resolving the outstanding issues. Mr Mader replied “you can explain this to the troops, Lou”, as they had another meeting to go to. I also told Mr Mancuso that Mr Brooke had told me that he had changed his mind on the part time roster, contrary to his commitment in the part time monitoring committee meeting. Mr Mancuso told me to speak to Mr Brooke about it again.
Mr Cicciarelli’s evidence was that, later that day, he spoke to Mr Brooke about the roster issue. Mr Brooke told Mr Cicciarelli that he had changed his mind with respect to the part-time/full-time rostering issue. Subsequent intervention that day by the union organiser, Mr Mancuso, did not alter Mr Brooke’s approach. In cross-examination, Mr Cicciarelli said he was “upset [with Mr Brooke] because he went back on his word”. Mr Cicciarelli’s evidence was that, as a result, he asked Mr Mancuso to meet with the Ramp employees. Mr Cicciarelli stated in cross-examination that after his conversation with Mr Brooke he felt that management was making a joke out of him.
Mr Cicciarelli’s evidence, again in cross-examination, was that he spoke to some Ramp staff after the 13 February meeting and also had a heated conversation with Mr Mancuso at about 6 pm that day. The conversation with Mr Mancuso was heated. Mr Cicciarelli’s evidence was that he told Mr Mancuso that the Ramp members were upset and that he would be reporting back to them the next morning. Mr Cicciarelli acknowledged that he realised on the evening of 13 February that there was a real possibility of a strike, but denied organising one.
In his outline, Mr Cicciarelli described his role in the events of 14 February 2009 as follows. He was, so he said, rostered to commence work at 7.45 am on that Saturday; and that “[b]etween my tasks I was constantly being approached by Ramp staff wanting to know about the outcome of the meeting held on Friday 13 February 2009 with Management and TWU organisers”. Mr Cicciarelli continued:
I had a break (down time) between 8:00 am and 9:30 am. In order to avoid [] being hassled by Ramp staff, I had breakfast upstairs with Sam Loporto.
On my return whilst waiting for my next task in the lunchroom, ramp staff continuously hassled, pressured and demanded from me answers to their questions in relation to the meeting. After continuous pressure by numerous Ramp staff, I felt I had to respond to their questions and informed them of the content of the meeting on 13 February 2009. I spoke about the site works claim, red circle, higher duties, crib breaks and meal breaks. I told them what we discussed, in relation to the outstanding Disability Allowance claims and other outstanding issues and that they were going to arrange another meeting but no details of the time or date of the next meeting were given at the meeting. Qantas part-time staff were asking me about the roster, so I also mentioned the conversation I had with Doug Brooks [sic] on the afternoon of Friday 13 February 2009 about him changing his mind in relation to the full time relief positions on the 25 February 2009 roster. The Ramp staff could not believe that Doug Brooke had again reneged on his word. … The Ramp staff appeared to be outraged by lack of progress by the TWU on all of the outstanding issues and by Mr Brooke’s change of mind. The Ramp staff were asking me for my opinion and I replied that it was up to them, they make the call. The Ramp Staff … then began randomly putting through motions to cease work. The majority of Ramp staff were present in the lunchroom at this time. I tried to calm them down but was unsuccessful and before I knew it, there were a number of motions put forward to cease work, a show of hands and the motion to cease work was endorsed unanimously by the TWU members. I did not participate in this motion. At no stage did I incite, instigate, order or persuade any Qantas employees to engage in any industrial action or [to act] in a manner which constitutes a breach of their individual contract of employment with Qantas. After the motion had been passed, all of the Ramp staff ceased work and waited in the lunchroom. The Ramp staff then insisted on me, as their Union Delegate notifying Qantas Management of their decision to cease work and that they would be waiting for their TWU organisers to come to the airport to discuss and resolve this matter. By this time, it was almost 10:00 am.
At approximately 10.00 am Chris Briggs (TWU Co-delegate) and I spoke to BSM Shane Murphy … and notified him that the Qantas staff/TWU members had put through a motion to cease work and were waiting on their TWU organisers so they could resolve the matter. …
At approximately 10:17 am I rang Peter Mancuso on his mobile phone and left a message on his voicemail informing him of the current situation at the Melbourne ramp and asked him to call me back.
At approximately 10:50 am Doug Brooke, Connie Corrente and Scott Spears entered the lunchroom and Mr Brooke told the ramp staff they had 5 minutes to get back to work.
At approximately 11.10 am Doug Brooke and Connie Corrente entered the lunchroom again and this time, approached me. Mr Brooke told me that Sydney had been informed about this situation. He told me and Chris Briggs that this was not Union endorsed. I replied that this is what the TWU members have decided and the Ramp staff were waiting for their TWU organisers so they could resolve the matter.
At approximately 11.25 am I rang Peter Mancuso again and left a message notifying him of the situation at Melbourne Airport.
Mr Cicciarelli went on to say that he made numerous unsuccessful attempts to contact other TWU personnel and also that Mr Inguanti had rang him about 12:17 pm, with the news that Mr Inguanti had been told by management to leave the premises.
In his outline, Mr Cicciarelli continued:
At approximately 12.30 pm Doug Brooke and Connie Corrente approached me in the lunchroom in the presence of Chris Briggs and Brett Storen. Mr Brooke said to me that “this is coming from Sydney, there is a change in management, you will be going to the Commission, you are the instigator of this”. I replied to Mr Brooke that the Ramp staff were waiting on their TWU organisers to discuss and resolve the matter. I also mentioned to Mr Brooke and Ms Corrente that I had been trying to get in contact with the TWU and had left message[s] on their mobile phones. I asked Mr Brooke and Ms Corrente if they had contacted the TWU but they did not respond.
Some time afterwards, a TWU official informed Mr Cicciarelli that there was to be a Commission hearing at 2:30 pm later that day. At about 4:15 pm, the Commission ordered the Ramp employees to return to work. Mr Cicciarelli said that he phoned the Ramp lunchroom to inform the employees of the order.
In examination in chief, Mr Cicciarelli emphasised that, when he told staff in the lunchroom on 14 February about the meeting the previous day and about his conversation with Mr Brooke, the lunchroom became “very loud” and “like a riot” (although Mr Cicciarelli conceded in cross-examination that he had not said this to Qantas management during the subsequent investigation). According to Mr Cicciarelli, “the guys … had enough”, and “[t]he people in the lunchroom started to put forward that they wanted to cease work. That they wanted the union organisers to come in and explain themselves.” Mr Cicciarelli added, “[a]mongst themselves there was a show of hands. They also said that they wanted to make a stand.”
In cross-examination, Mr Cicciarelli agreed that he had said to the employees that it was up to them. That is, to quote Mr Cicciarelli:
They decide if they wanted to continue work. They decide if they wanted to cease work. It was up to them to decide for me to say to management, “Hey, what the heck is going on here”.
Senior Counsel for Qantas put to Mr Cicciarelli that, in addressing the employees on 14 February 2009, he said nothing that would have discouraged industrial action. Mr Cicciarelli replied, “[l]ike I said, under the circumstances of the constant pestering, that’s how the atmosphere was.”
In his testimony at trial, Mr Cicciarelli said that, on 14 February 2009, he first saw and spoke with Mr Inguanti about 11:15 am when Mr Inguanti came into the Ramp lunchroom. Mr Cicciarelli said that, at that time, he had last spoken with Mr Inguanti via mobile phone, when Mr Cicciarelli called Mr Inguanti about 2.30 pm on 13 February and asked him for his thoughts about the meeting that day. Mr Cicciarelli denied that he had raised with Mr Inguanti the possibility of a strike on 14 February.
In his outline, Mr Cicciarelli described events after 14 February 2009, commencing with a meeting that he, Mr Inguanti and Mr Storen had with Mr Smith, Mr Brooke and Ms Corrente on Wednesday, 18 February 2009 when he was given a letter of the same date. Mr Cicciarelli said:
After we sat down, Mr Smith handed all three of us letters signed by Doug Brooke, which contained allegations of serious misconduct regarding the events of 14 February 2009.
Mr Cicciarelli’s employment was suspended pending Qantas’ investigation. The letter to Mr Cicciarelli was in evidence: see [11] above.
On 20 February 2009, Mr Cicciarelli, with his lawyer, met with Mr Smith, Mr Brooke and Ms Corrente; and a letter written for Mr Cicciarelli by his lawyer was read out. In his outline, Mr Cicciarelli specifically said “I did not provide responses to the allegations”. In cross-examination, Mr Cicciarelli added that Qantas was also told that the allegations against him were untrue. Upon his lawyer’s request, Mr Smith gave Mr Cicciarelli until Monday, 23 February 2009 to respond; and Mr Cicciarelli replied by letter on or about that date, denying the allegations against him.
Mr Cicciarelli recounted that he subsequently received another letter from Qantas dated 3 March 2009, making further allegations against him and asking him to attend a meeting the next day. On 4 March 2009, Mr Cicciarelli (with support people) met with Mr Smith, Ms Corrente, and Mr Brooke, who asked him again about his involvement in the events of 14 February 2009. Mr Cicciarelli noted that he gave another letter to Mr Brooke, denying the further allegations against him.
At trial, Mr Cicciarelli accepted that, save for some relatively minor matters, Ms Corrente’s notes of the 4 March meeting were “pretty much” accurate. In cross-examination about the 4 March meeting, Mr Cicciarelli said that he felt “that I was being more interrogated than anything else. The atmosphere with three managers looking over me was intimidating … and it was a very hostile environment”.
Mr Cicciarelli (with a support person) attended a further meeting on 5 March, this time with Mr Smith, Mr Hall and Mr Brooke. In his outline, Mr Cicciarelli said:
I explained to Qantas Management my personal situation and that I had to see a psychologist. I was very upset and started to weep. I told Management [that] I thought what they were doing to me was wrong. After giving me a break, Management came back in. Mr Hall then read out a letter which contained the outcome of their investigation and informed me that I had been terminated from my employment due to serious misconduct.
Mr Cicciarelli received a letter formally terminating his employment on 6 March 2009. As appears below, I have not accepted much of Mr Cicciarelli’s evidence. Whilst Mr Cicciarelli was not perhaps dishonest per se, he was less than frank in some of his answers and given to self-justification after the event.
Mr Inguanti
In his outline of evidence adopted at trial, Mr Inguanti described his role as a TWU delegate, stating that he had “dealt with a number of industrial issues on a regular basis” and, in this connection, had also had extensive dealings with certain management and human relations staff, including Mr Brooke and Ms Corrente. Mr Inguanti’s evidence was that he too had been an active union delegate and participant in industrial issues, particularly in the year or so prior to his termination and, on this account, had attracted criticism from management staff.
Mr Inguanti’s outline described the 13 February meeting in much the same terms as that of Mr Cicciarelli. Mr Inguanti’s evidence in cross-examination was that TWU officers – Mr Mader and Mr Mancuso – had led him to believe that this would be the meeting to resolve all outstanding issues. Mr Inguanti agreed that, at the meeting, there was a “slightly” heated disagreement between Mr Cicciarelli and Mr Mader over the disability allowance issue. In Mr Inguanti’s view, Mr Mader was “very rude” to Mr Cicciarelli. Mr Inguanti said:
I was disappointed with the attitude and the professionalism presented by Wayne Mader, considering the fact that he is supposed to represent the union, the delegates and the union members.
Further, Mr Inguanti said that he was disappointed with Qantas.
Mr Inguanti’s evidence was that numerous requests had been made by the delegates to the TWU to have the matters listed in the Commission but “[o]nce again, deaf ears”. Mr Inguanti said that the two issues that concerned the Baggage Room employees – disability allowance and meal breaks – had not been “resolved at all” at the 13 February meeting; and that, by the end of that meeting, he was angry with the TWU:
… because Peter Mancuso said to me at the end of the meeting that the company can make you work a whole eight hours as long as they pay you double dollars at the end of – after the five hours. I thought that was really disappointing and showing no support for the members.
In oral testimony, Mr Inguanti said that he spoke to Mr Cicciarelli by telephone twice later that day about the meeting and their disappointment with the union. Although Mr Inguanti could not recall the details of the conversations, he denied that Mr Cicciarelli had mentioned a report back the next day, or anything about a work stoppage.
Mr Inguanti’s evidence was that, on the morning of 14 February 2009, an airline services operator in the Baggage Room had telephoned him twice – first (about 8:30 am) to say there was “a rumour that Ramp Staff were going to cease work possibly over outstanding issues with management and the union” and, secondly (about 10 am), to say that the Ramp staff had in fact stopped work. In cross-examination, Mr Inguanti admitted to telephoning the switchboard for Channel 7 (a Melbourne television channel) sometime after this, adding “I must have just been angry”. He denied making the call to say there was a stoppage on the Ramp at Melbourne Airport.
Mr Inguanti said in evidence that he swiped on at work at 11:07 am because he was “there as an OH&S representative and wanted to be paid for [his] time at work, should any safety issues occur”. Mr Inguanti’s evidence was that he went first to the Baggage Room and then to speak with Mr Cicciarelli, “to find out more about the Ramp cease work and whether he knew of ‘outside ports staff coming in’”. According to Mr Inguanti, Mr Cicciarelli told him “he didn’t know but the guys in his section had decided to cease work over all the outstanding issues with Management and they were waiting for their Union Organiser to come in”. In his outline, Mr Inguanti continued:
I approached separately the Leading Hands on the floor at the time, Lindsay Parsons and Lui Luwang and asked them if I could address the Baggage staff as to why I was there and what was going on. I also told both Leading Hands to make sure to leave enough skeleton staff on the floor to keep the operation going. When I was asked who I wanted in the meeting, I said anyone (meaning Union or non-union staff). Both Mr Parsons and Mr Luwang agreed and organised the staff. I walked to the lunchroom and waited for the Baggage staff so I could speak to them.
According to Mr Inguanti, the Baggage Room staff assembled at approximately 11.20 am, when he addressed them:
Saying something to the effect of “hi guys. I am here because I got a call that the Ramp had ceased work and I had a concern that ‘outside staff’ were going to work on Ramp because they had ceased work and they will be bringing bags in here. So I am here for a bit on my day off to oversee that there is no risk and then I’m going back home”.
In cross-examination, Mr Inguanti thought he had said, “If you stop work, I’ll support you”.
This was said by Mr Inguanti to have had a heated response, because, according to Mr Inguanti, “the Baggage staff immediately began bombarding me with questions about what was going on outside. The questions started to become louder with everyone trying to talk over everyone else and it was getting out of control and I felt overwhelmed …”. Mr Inguanti said that he “could see the Baggage staff beginning to get agitated and some wanted to support the Ramp”. According to Mr Inguanti:
The staff were asking if a vote should be taken. … I said at top of my voice “what do you want to do guys?” They told me to count a vote so I said “I’ll do a quick count”. I conducted a quick count and falsified it to show “NO” majority with nine votes “YES” and ten votes “NO”.
Mr Inguanti did not inform Qantas management during the investigation that he had falsified the vote.
In cross-examination, Mr Inguanti said:
The members wanted to take a vote and it was very heated in the lunchroom. I have never been in a position such as that … My main goal … at that very point in time was to just – to get out of there … I knew that the issues concerning the baggage room needed to be discussed a bit further with Doug [Brooke] and Peter Mancuso. So I knew – if they decided to go off, it would be wrong within myself – myself, as the delegate – and being responsible for these people, I felt it was wrong.
According to Mr Inguanti, the meeting was out of control and “it was bedlam”.
When the meeting ended, Mr Inguanti said he spoke with Mr Parsons in the Baggage Room and, subsequently at about 11:30 am, Mr Brooke and Ms Corrente (who were also in the vicinity) as he “noticed they were not wearing high visibility vests”. According to Mr Inguanti, Mr Brooke asked him what he was doing at work and Mr Inguanti replied “I am here as OH&S as I got a call”. Mr Inguanti told them, so he said, that there were “no problems, everything’s okay here, everyone is working as per normal and there is no talk of cease work in support”. Also, according to Mr Inguanti, he undertook to let Ms Corrente know if any problems emerged and asked Mr Brooke and Ms Corrente to put on “some hi-vis vests”, which they said they would. In cross-examination about this conversation, Mr Inguanti denied telling Mr Brooke and Ms Corrente that there was to be a second vote in the Baggage Room and conceded that he did not identify the specific OH&S concern that led him to come to work.
Mr Inguanti said that he subsequently walked out to the front of the airport terminal “for a smoke”, but began to return inside when Baggage Room staff told him that “outside staff” were beginning to drive in the Baggage Room. On his way back, Mr Inguanti met Mr Brooke and Ms Corrente again. Mr Inguanti said that, this time and later in the canteen, Mr Brooke told him to go home. Mr Inguanti denied saying that he was present to support the workers. In cross-examination, Mr Inguanti reiterated that he did not organise any industrial action at any time.
According to Mr Inguanti, at about 12.54 pm that Saturday, he tried to contact Ms Corrente, and left a message on her voicemail asking her to let him in to check on OH&S concerns about the outside staff. He said that he also called Mr Brooke, who again told him to go home. According to Mr Inguanti, when Ms Corrente returned his call at about 1.20 pm, she told him that he could return to the Baggage room only if he was escorted by a manager. At about 1.25 pm, Mr Inguanti said that he spoke to a manager (Scott Speers), who seemed to be unaware of this direction, saying he would come back when he had time. Mr Inguanti said that, at about 2.20 pm, Mr Brooke and Ms Corrente served him with the Commission papers requiring him to appear at 3.00 pm at the Commission that afternoon. Mr Speers eventually contacted Mr Inguanti as he was on his way to the Commission.
In his outline, Mr Inguanti also described events after 14 February 2009, commencing with the meeting that he, Mr Cicciarelli and Mr Storen had with management on 18 February 2009, in the course of which he was suspended (along with Mr Cicciarelli and Mr Storen) and a letter of 18 February 2009 alleging serious misconduct given to him: see [13] above.
On 20 February 2009, Mr Inguanti, with his lawyer, met with Mr Smith, Mr Brooke and Ms Corrente and a letter written for Mr Inguanti by his lawyer was read out. In his outline, Mr Inguanti stated:
I said that I was at work on 14 February 2009 as an OH&S Representative and that I had told Mr Brooke and Ms Corrente this on the day and that there was no cease work in my area.
Mr Inguanti also said that, at this meeting, he denied the allegation of serious misconduct. Mr Smith gave Mr Inguanti until 23 February to respond further.
Mr Inguanti subsequently received a further letter dated 20 February 2009 signed by Ms Corrente, also seeking a response by 23 February 2009. Mr Inguanti replied by letter of that date, denying the allegations made against him. On 25 February 2009, Mr Inguanti received another letter containing additional allegations of serious misconduct, to which he responded by letter dated 26 February 2009; and, on 27 February 2009, he received a further email requiring him to attend a meeting on 2 March 2009.
On 2 March 2009, at 11:00 am, Mr Inguanti (with a support person) met with Mr Brooke, Ms Corrente, and Mr Hall; gave another letter to Mr Brooke; and was asked about his involvement in the events of 14 February 2009. Mr Inguanti said in his outline that:
Mr Brooke asked me about the events of 14 February 2009 and asked if I was happy to answer five questions. … I said that at no stage did I come into work on the 14 February 2009 for the reasons they assumed. Mr Brooke asked who called me on the 14 February 2009. I had not spoken to David Fox about disclosing his name and so I replied that I had not spoken to him or my solicitor about this. Mr Brooke then asked me if I spoke to Mr Cicciarelli before 11:07 am on 14 February 2009. I replied “no”. Mr Brooke asked me if Mr Cicciarelli said he was going to report back to staff on 13 February 2009. I replied “not to my recollection, I went home at the end of my shift”. Mr Brooke then asked me whether I had anything to say or add to this. I said that “despite the allegations and assumptions in my presence, at no time have or would I ever or even consider jeopardising the Qantas name or reputation as I take great pride in working for the Kangaroo”.
At this point, 11:35 am, there was a break in the meeting. The meeting resumed at 1:03 pm. Mr Hall informed Mr Inguanti that his employment contract was terminated. Mr Inguanti received a letter dated 2 March 2009 later that day also stating that his contract was at an end. As stated below, I did not find Mr Inguanti an entirely truthful witness and also given to self-justification after the event.
Other workplace witnesses
Rocco Cicciarelli
As at 14 February 2009, the first applicant’s brother, Rocco Cicciarelli, was a TWU member and a co-delegate for Ramp services. Mr Rocco Cicciarelli confirmed his brother’s evidence about his practice of reporting back to members, adding that his brother “would just tell the facts as they were”. Although Mr Rocco Cicciarelli was at work on 13 February, he said that he did not speak with his brother until the evening and then only about domestic matters.
Mr Rocco Cicciarelli gave evidence that, from October 2008, he observed that his brother was given what he considered to be a heavier work load than normal. This evidence was challenged in cross-examination and, ultimately, I would not accord it any weight. Mr Rocco Cicciarelli was not at work on 14 February 2009.
Pat Ardino
Mr Ardino was part of the Ramp staff on 14 February 2009 and at work that day. He was also a TWU member. In his outline, he stated that he was working a morning shift from 5:00-11:30 and, at some point, he walked into the locker room. From here, he could “hear a lot of noise coming from the lunchroom”. When he went into the lunchroom, he “saw everyone yelling and telling [Mr Cicciarelli] they weren’t happy, let’s walk off”. Many people were, so he said, saying “let’s put it to a vote”. According to Mr Ardino, Mr Cicciarelli was just listening; and he “looked like he’s sort of stuck between a rock and a hard place sort of thing”. An informal vote was taken. Mr Ardino did not recall Mr Cicciarelli saying anything.
The effect of this evidence was, however, diminished by Mr Brooke’s notes of the interview that he and Mr Smith conducted with Mr Ardino on 26 February 2009, in which Mr Ardino was recorded as telling Mr Smith and Mr Brooke that “a decision [was] made to stop work before he got there”. Further, it appeared that he had also said that he did not see any delegate in the room. This account is confirmed by Mr Smith’s notes. Both Mr Brooke and Mr Smith made their notes contemporaneously with the relevant interviews.
Mark Fischer
Mr Fischer was part of the Ramp staff on 13 and 14 February 2009 and at work both days. He was also a TWU member. In his outline, Mr Fischer said that he was in the lunchroom after Mr Cicciarelli had the 13 February meeting and he “could hear [Mr Cicciarelli’s phone conversation in which Mr Cicciarelli] was trying to get Peter Mancuso to come into work to sort all of the issues out”. Mr Fischer said that he heard Mr Cicciarelli warn Mr Mancuso of the possibility that there might be a strike and that Mr Cicciarelli did not want this to occur.
In interview notes prepared by Qantas management and signed by Mr Fischer on 6 March 2009, Mr Fischer said of this conversation:
On the afternoon of Friday 13 February 2009, I overheard Luigi Cicciarelli talking to Peter Mancuso on a mobile phone in the lunchroom. It appeared to me that he was having a heated argument with Mancuso.
I heard Luigi tell Mancuso that there were a lot of part timers who wanted to stop work, and he was trying to get Mancuso to sort things out. He was relaying a message to Mancuso that the guys wanted to stop work. I heard Luigi ask Mancuso to come to the airport. Luigi then walked out of the lunchroom and I did not hear the rest of the conversation.
Mr Fischer’s evidence was that he commenced his shift on 14 February 2009 at 7:00 am. He said that he was present when Mr Cicciarelli and Mr Briggs gave a report to the members in the Ramp lunchroom about the 13 February meeting and Mr Cicciarelli’s conversation with Mr Brooke. According to Mr Fischer, this was in accordance with Mr Cicciarelli’s usual practice. Mr Fischer said that Mr Cicciarelli did most of the talking and, at the end of his report, said “What do you want to do?” or “It’s up to you”. In his outline Mr Fischer’s evidence was that:
Many of the members were getting upset and angry about Doug Brooke changing his mind and some were yelling and swearing. As he usually did, [Mr Cicciarelli] asked us what we wanted to do. A lot of people were yelling and someone from the floor put a motion to stop work. … A spontaneous vote was taken by the members and the result was that the majority wanted to stop work.
Mr Fischer’s evidence was that he suggested to Mr Cicciarelli that he tell management of the work stoppage.
Mr Fischer confirmed that Mr Brooke had entered the lunchroom “soon after” and told everyone that they had five minutes to return to work. Mr Fischer also confirmed that Mr Cicciarelli had told him and the members at large that he was trying, unsuccessfully, to contact the TWU. Mr Fischer also said that Mr Cicciarelli had remained in the lunchroom for most of the time until he went to the Commission.
Mr Fischer stated that he had stopped work in support of the motion that had been put to the floor. He subsequently received a letter from Qantas alleging serious misconduct against him. Mr Fischer said that he was stood down following the work stoppage and was interviewed during the subsequent investigation. He also provided a written response to Qantas’ allegations dated 23 February 2009. Ultimately, Qantas sent a letter to Mr Fischer dated 6 March 2009, stating that it considered his conduct to be unacceptable and in breach of the terms and conditions of his employment. Mr Fischer was given a written warning, a copy of which was placed on his file.
Further, counsel for the applicants submitted that the effect of Mr Hall’s evidence was that the reasons for dismissal in Mr Cicciarelli’s letter of dismissal could not be aggregated into one compendious reason – organising and inciting industrial action – but, rather, Mr Hall had relied on each matter separately and the reasons were to be considered in that light.
Counsel for the applicants propounded a similar analysis of the reasons for Mr Inguanti’s dismissal. As already noted, the matters that formed the basis of Mr Inguanti’s final interview were contained in his dismissal letter: see [280]-[281]. Again, Mr Inguanti’s counsel argued that Mr Hall relied on each matter separately and the reasons were to be considered in that light.
I reject the submission that Mr Hall relied on each matter alleged against Mr Cicciarelli and Mr Inguanti as separate and distinct from each other alleged matter. In relation to Mr Inguanti, Mr Hall’s evidence was that he relied on “[t]hose six findings and the information in his responses. And the fact that Mr Inguanti’s “story not adding up”. In relation to Mr Cicciarelli, Mr Hall’s evidence was that he relied on “the collective – all of those things happening”. I accept Mr Hall’s evidence. The alternative propounded by the applicants is not tenable.
The applicants also contended that the allegations in their letters of dismissal showed that the reason for dismissing them included reasons associated with the fact that they were delegates. In relation to Mr Cicciarelli, the applicants’ counsel argued that his dismissal letter:
… shows that the reasons for his dismissal included reasons associated with the circumstance that he was a delegate, in particular:
(i) the letter reveals that the respondent dismissed him for matters associated with him being a delegate, including a matter associated with him being a delegate, but common to all relevant employees;
(ii)the letter reveals that the respondent dismissed him for reasons common to a large number of employees who were not dismissed.
The applicants’ counsel made the same argument with respect to the matters referred to in Mr Inguanti’s dismissal letter.
By way of example, the first matter in Mr Cicciarelli’s dismissal letter stated that Mr Cicciarelli “met in the lunchroom with other Qantas employees, including with some part-timers, during the course of the afternoon” on 13 February. Counsel for the applicants maintained that this was conduct engaged in by Mr Cicciarelli in his capacity as a delegate. Counsel made the same submission in relation to the conduct of the report back, the failure to invoke the disputes resolution procedures of Enterprise Agreement 7 and Mr Cicciarelli’s advice to management that the Ramp employees had stopped work (all mentioned in Mr Cicciarelli’s dismissal letter). In this way, counsel for the applicants characterised numerous matters relied on in Mr Cicciarelli’s dismissal letter and Mr Inguanti’s dismissal letter as conduct which occurred in the course of the duty of each as a delegate.
Further, counsel for the applicants submitted that the dismissal letters revealed that Qantas had dismissed Mr Cicciarelli and Mr Inguanti for reasons common to a large number of employees who were not dismissed. For instance, Mr Cicciarelli’s dismissal letter stated that “you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth))”. Counsel for the applicants submitted that this statement was also applicable to the other employees who participated in the industrial action. Counsel made the same point about a range of other matters mentioned in Mr Cicciarelli’s and Mr Inguanti’s letters of dismissal. Having regard to these statements, so the applicants’ counsel submitted, the proper inference to draw was that Mr Cicciarelli and Mr Inguanti were treated differently for reasons associated with the circumstance that each was a delegate.
I reject the submission that I should infer from any of the dismissal letters, or from the other evidence concerning Mr Hall’s reasons, that Mr Cicciarelli and Mr Inguanti were dismissed for reasons associated with the circumstance that they were delegates. As already stated, I accept that Mr Hall, as advised by Mr Smith, genuinely believed that not only had the applicants been involved in the industrial action on 14 February, but that their position differed from that of other employees, because none of the other employees had organised and incited, or had attempted to organise and incite, the industrial action. This is consistent with a proper reading of the dismissal letters and the other evidence as to Mr Hall’s reasons – all of which are properly to be read and understood as a whole and not dissected in the manner for which the applicants contended.
Each of the various matters mentioned in the dismissal letters was in the nature of a finding along the way to the conclusion that the applicants had organised and incited or attempted to organise and incite the work stoppage that day. As noted above, I accept that, as the respondent submitted, the matters referred to in Mr Hall’s reasons should not be considered in isolation from one another. Mr Hall’s evidence regarding his decision to dismiss Mr Cicciarelli (which I accept) showed that Mr Hall considered matters as a whole, and the impact that Mr Cicciarelli’s conduct had had on Qantas. Thus, Mr Hall said (and I accept) “I sat in my room by myself for a while and read it all again. I decided it was a very serious offence. It had inconvenienced a lot of our people. It had put the company and our operation in jeopardy…”.
Mr Cicciarelli was not dismissed simply because he made a report back. Nor was he dismissed because Mr Hall (or Mr Smith) considered that he had lost control of the meeting. Rather, Mr Cicciarelli was dismissed because Mr Hall (and Mr Smith) believed (amongst other things) that, at the report back on 14 February, he set out to, and did, organise and incite industrial action. This organisation and incitement was not authorised by the TWU. In this regard, Mr Cicciarelli was not in fact acting as a delegate of the union. Mr Inguanti asserted that he was acting as an OH&S representative but his assertion was not believed by Mr Hall (or Mr Smith).
The applicants relied on two further factors as indicative of the fact that they were dismissed for a reason that included their delegate status. The applicants contended that Mr Hall’s reasons for dismissing them “were informed by his view as to the[ir] role … within the workplace”. The applicants specifically relied on Mr Hall’s evidence that, in his view, delegates held leadership positions in the workplace and that he expected delegates to behave accordingly – that is, delegates were to encourage union members to comply with agreed disputes resolution procedures. I accept that Mr Hall held these views and that he therefore considered that Mr Cicciarelli and Mr Inguanti in their capacity as delegates had particular obligations that differed to some extent from the Ramp and Baggage Room employees who were not delegates. This proposition is unremarkable. A delegate might reasonably be expected to have responsibilities as a delegate that do not attach to a non-delegate. As the respondent submitted, however, this did not excuse misconduct or permit a delegate to engage in unlawful and unauthorised activities.
Counsel for the applicants submitted that the respondent could not rely on the status of being delegate – acquired by virtue of union membership and affiliation – as a reason to expect more of an employee and use a failure to meet that expectation as a reason for dismissal. This may be accepted. Counsel argued that the real reason that Mr Hall dismissed the applicants and not the other employees also involved in the industrial activity of 14 February 2009 was that he expected more of the applicants than the other employees because the applicants were delegates. I reject this submission. The evidence in this case does not justify the conclusion that Mr Hall’s particular expectation about a delegate’s conduct formed any part of his reasons for dismissing the applicants. As I have said, the gravamen of Mr Hall’s reasons for dismissing Mr Cicciarelli was that he had organised and incited industrial action and, in Mr Inguanti’s case, that he had attempted to organise and incite industrial action; and that the union had not authorised any of this industrial action, whether actual or attempted. That is, Mr Cicciarelli and Mr Inguanti were dismissed for unlawful conduct that was not authorised by the union. In this sense, they were not dismissed because they were delegates at all. The kind of difficulty that arose in Barclay does not arise in this case.
The second factor that the applicants relied on in this connection arose from their activities as delegates in the workplace. There was evidence (which I accept) that, in the year or so prior to termination, the applicants had been active union delegates. There was evidence that Mr Brooke had told Mr Hall that he thought the applicants were troublemakers. There was also evidence that, in the previous six months, Mr Hall had been unhappy and frustrated with Mr Cicciarelli about roster options. The applicants particularly relied on the email from Mr Hall about roster options, in which he had stated that Melbourne management was working “very hard … to undermine Cicciarelli’s credibility with the workforce and the TWU”: see [154] above. Counsel for the applicants argued that this email was significant for two reasons – first, because it “[was] a little window to Mr Hall’s modus operandi”; and, secondly, because it was “reflective of his view of the importance of the position of delegate in a workplace”.
Having heard all the evidence, however, I reject the proposition that this email, either alone or with other evidence, justifies a finding that, as at 14 February 2009, Mr Hall and/or other members of Qantas’ management were actively involved in a campaign against Mr Cicciarelli and/or that Mr Hall was motivated to dismiss Mr Cicciarelli because of his past activities as a delegate. I accept Mr Hall’s evidence about the circumstances addressed by the email and that these circumstances did not enter into his reasons to dismiss Mr Cicciarelli.
Further, the evidence does not justify a finding that the investigation led by Mr Smith was in any way biased in favour of dismissing Mr Cicciarelli or Mr Inguanti. Mr Smith had dealings with both applicants in their role as delegates. There was, however, no evidence to justify the view that Mr Smith was, for this reason, biased against them. In this context, I observe that Ms Corrente, who assisted Mr Smith, did not have any adverse view of the applicants. Further, there was no evidence that indicated that Mr Brooke’s views about the applicants, even if unfavourable, affected the course of the investigation or Mr Smith’s findings as conveyed to Mr Hall. Mr Smith was, plainly enough, an independent and fair-minded person. As already stated, he conducted the investigation in a fair and orderly way. In this connection, I note that the record of the investigation, including the applicants’ letters of response, indicates that the applicants failed to take proper advantage of the opportunities provided to them to explain their conduct on 14 February 2009. Mr Smith reached his conclusions fairly, after an appropriate investigation.
I would therefore reject the applicants’ submission that the evidence about their activities as delegates should lead me to find that Mr Hall made his decision to dismiss them for a prohibited reason, or for reasons that include a prohibited reason.
Further, I would reject the applicants’ assertion that the deficiencies in the investigation were such as to infect the findings made by Mr Smith and accepted by Mr Hall. I accept Mr Hall’s evidence that he took time to consider the position of each applicant, having regard to Mr Smith’s reported findings and did not reach his own decision because of any subjective bias against them. When read fairly, there is nothing in the evidence concerning the investigation or in the voluminous documents created in the course of the investigation that demonstrates that a prohibited reason was part of the reasons for the decisions to dismiss Mr Cicciarelli and Mr Inguanti.
I accept that the investigation process had faults. In view of his previous dealings with the applicants, Mr Hall may not have been the ideal choice as decision-maker. Perhaps it would have been better if neither Mr Brooke nor Ms Corrente had been involved in the investigation process since both were also directly involved in the events of 14 February 2009 (although Qantas’ policy contemplated the involvement of relevant managers). Nonetheless, I accept that, as counsel for the respondent submitted, the investigation was, overall, a reasonable attempt by Qantas to get to the bottom of the events of the day.
The evidence satisfies me that, on the balance of probabilities, Mr Inguanti’s and Mr Cicciarelli’s employment was not terminated for reasons that included that they were delegates or officers of the TWU. It follows that Qantas discharged the onus of proving that the applicants were not dismissed for a prohibited reason, or for reasons that included prohibited reasons.
For the reasons stated, I would reject the applicants’ claim that they were unlawfully dismissed because they were delegates and officers of the TWU in contravention of s 792 of the Act.
The contract claim
On or about 23 December 1996, Mr Cicciarelli and Qantas entered into a contract of employment. Qantas’ letter of engagement stated:
Qantas’ policies and procedures set out conditions which are relevant to your employment. You are required to comply with such policies and procedures as determined or varied from time to time where relevant and any breach of those policies and procedures may result in you being disciplined and/or dismissed where appropriate. A copy of the Corporate Policies and Procedures Manual is available from your divisional Employee Relations Manager, or (other position or location to be specified) upon request. It is your responsibility to keep up to date and seek information regarding Qantas policies and procedures.
…Your employment may be terminated by yourself or by the Company in accordance with the following schedule or by equivalent payment in lieu of notice.
Employees period of continuous service with the Employer Notice of period Not more than 1 year 1 week More than 1 year but not more than 3 years 2 weeks More than 3 years but not more than 5 years 3 weeks More than 5 years 4 weeks NB: The period of notice is increased by one week if the employee is over 45 years old and has completed at least 2 years continuous services with the employer.
Qantas shall terminate your employment without notice in the event of serious misconduct or other sufficient cause, in which case salary and other remuneration is payable up to the date of dismissal only. Serious misconduct includes but is not limited to theft, consumption of or being under the influence of alcohol whilst on duty, fighting and matters as set out in the Company Policy and Procedures Manual. (Emphasis added.)
On or about 18 May 2002, Mr Inguanti and Qantas entered into a contract of employment. Qantas’ letter of engagement stated:
You are required to comply with Qantas policies and procedures as determined or varied by Qantas from time to time. Any breach of these policies and procedures may result in you being disciplined and, where appropriate, dismissed. A copy of the Qantas Policy Manual is available from your Human Resources Manager, upon request or can be accessed through the Qantas intranet site. In addition, a copy of the current Standards and Conduct Policies and the IT Usage Policy are attached. It is your responsibility to keep up to date and seek information regarding Qantas policies and procedures.
…
Your employment may be terminated by you[] or by Qantas giving notice of termination in accordance with the following table:
Employees period of continuous service with the Employer Notice of period 1 year or less 1 week 1 year and up to 3 years 2 weeks 3 years and up to 5 years 3 weeks 5 years and over 4 weeks If, at the time of the termination of your employment you are over 45 years of age and have completed more than two years continuous services with Qantas, Qantas will give you an extra week’s notice. Qantas may, instead of giving you notice, pay you an amount equal to your salary for the period of notice not given.
Qantas may terminate your employment without notice in the event of serious misconduct or other sufficient cause, in which case salary and other remuneration is payable up to the date of dismissal only. “Serious misconduct” includes but is not limited to theft, consumption of or being under the influence of alcohol or other drugs whilst on duty, fighting, representing Qantas without authorisation, including acting in a manner that will bring Qantas’ image into disrepute, and other matters in accordance with Qantas policies as varied from time to time. (Emphasis added.)
In terms, the applicants’ letters of engagement contemplated that Qantas might dismiss the applicants without notice for serious misconduct or other sufficient cause. The expression “serious misconduct” is inclusively defined in the letters of engagement. This definition and the context in which it is used indicate that “serious misconduct” here means much the same as “misconduct” in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 (Smithers and Evatt JJ), 616 (Franki J).
Qantas maintained (and broadly speaking I accept) that these letters of engagement incorporated the company’s policies, including the Standards of Conduct Policy and the Employee Misconduct and Disciplinary Policy and, in consequence, they too formed part of the applicants’ employment contracts.
The preamble to the Standards of Conduct Policy stated:
Employees are expected to be aware of and comply with this policy, other relevant Company and Qantas Group policies as well as obligations set out in relevant legislation. Where breaches of this policy occur, disciplinary action will be taken in accordance with the Employee Misconduct and Disciplinary Policy, which in serious cases may include termination of employment.
Qantas relied on various provisions of this Policy, including clause 2.2(d) and (g) and clause 5.5. Pursuant to clause 2.2(d) and (g), employees were responsible for, amongst other things, “acting in the best interests of the Company and the Qantas Group at all times” and “seeking advice and/or authorisation before undertaking an action or activity that may be contrary to the Company policy”. Clause 5.5 read as follows:
Staff must not engage in Unacceptable Behaviour. Unacceptable behaviour includes, but is not limited to:
…
breach of relevant laws and regulations.The expression “relevant laws and regulations” is not defined in the Policy document. Ordinarily, one would expect that a breach of the Act would fall within the expression. In particular, as at 14 February 2009, employees were prohibited from organising or engaging in industrial action by virtue of s 494(1) of the Act. Clause 11 of Enterprise Agreement 7 made provision for the procedure to be followed to settle industrial disputes. Organising or attempting to organise industrial action in breach of s 494 of the Act would, I accept, fall within “breach of relevant laws and regulations” in clause 5.5 of the Qantas’ Standards of Conduct Policy. Accordingly, organising or attempting to organise industrial action would constitute unacceptable behaviour within the meaning of that clause.
Clause 13.3 of the Standards of Conduct Policy further provided:
(a)Where an Employee breaches this policy, action will be taken in accordance with the Employee Misconduct and Disciplinary Policy. In serious cases, such action may include termination of employment.
(b)Any appeals regarding disciplinary action or grievances will be dealt with in accordance with the Employee Appeals Policy.
The Employee Misconduct and Disciplinary Policy (referred to in clause 13.3) commenced as follows:
1.Policy Objectives
…
1.2This policy sets out a framework whereby Employees and Managers can address issues of Unacceptable Behaviour and Misconduct by:
(a)ensuring Employees and Managers are aware of their rights and responsibilities with respect to the Company’s disciplinary process;
(b)taking steps to improve Employee conduct where necessary; and
(c)ensuring that all matters involving inappropriate conduct are dealt with fairly, objectively, promptly and consistently.
2.Application
…
2.2This policy applies in respect of conduct which relates in any way to employment with a Qantas Group company, or in connection with a Company provided benefit. This includes, but is not limited to, Employees who are:
(a) on Company Premises;
(b)on duty in any place where Staff of any Qantas Group Company are working;
…
2.3This policy operates in conjunction with relevant awards, workplace agreements, legislation and other Company and/or Qantas and/or Qantas Group policies including but not limited to the Qantas Group Standards of Conduct Policy, IT Usage Policy and the Employee Grievance Resolution Policy.
Clause 3.2 provided that employees were responsible for:
(d) participating fully in any disciplinary investigations so that:
(i) their version of events can be heard;
(ii)any allegations can be fully investigated and appropriate action taken; and
(iii)any training or development issues or barriers to improvement can be identified and addressed …
Part 4 of the Employee Misconduct and Disciplinary Policy concerned the Qantas disciplinary process. In particular, clause 4.3 stated:
Where Serious Misconduct is alleged, the incident must be managed formally. An investigation must be conducted fairly and promptly and in accordance with this policy and/or any other process set out in a relevant award or workplace agreement.
A “formal process” was set out in clause 4.6, with provision for: (1) interim actions including suspending employees; (2) procedural fairness; and (3) the investigation process. Investigations were to be “confidential, prompt and procedurally fair” and involved the following stages: gathering evidence; preparing a letter of allegation; obtaining written responses and reports; conducting interviews; and
(vii)after all of the above, making an assessment of the evidence and a determination of whether the allegation is substantiated or unsubstantiated on the balance of probabilities;
(viii)preparation of an investigation report, including recommendations for action to be taken in regards to any substantiated allegations; and
(ix)communication of the findings of the investigation to the Complainant and the Respondent. This communication should be made by the investigator, face to face where possible. (Emphasis added.)
Clause 4.6(g) made provision for determining the appropriate outcomes and taking disciplinary action.
Pursuant to the applicants’ contracts of employment, Qantas had power to terminate an employee’s employment, with or without notice, depending on the circumstances. When the applicants’ letters of engagement and Qantas’ policy documents, particularly clause 4.6 ([331] above), are read together, the contract provided that Qantas was bound to determine whether an allegation of serious employee misconduct was substantiated on the balance of probabilities by reference to the evidence obtained in the investigation. See generally Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40].
It follows from this that, under the contracts of employment with the applicants, it was for Qantas to determine on the balance of probabilities on the evidence in the investigation whether the serious misconduct allegations to which the events of 14 February 2009 gave rise were made out. Under the contracts, this was not a question for resolution by a court. For present purposes, I assume that Qantas bore the onus of proof that it had made the determinations concerning Mr Cicciarelli and Mr Inguanti in the manner required by their employment contracts.
Qantas conducted an investigation under the Employee Misconduct and Disciplinary Policy into allegations of serious misconduct on the part of a number of its employees. Mr Smith conducted the investigation in accordance clause 4.6 of that policy. The investigation was appropriate and clearly bona fide. Mr Smith’s evidence about the investigation and his findings concerning Mr Inguanti and Mr Cicciarelli established that he made his determination as to whether or not the allegations against them were substantiated on the evidence on the balance of probabilities. As noted above, Mr Hall accepted Mr Smith’s findings as reported to him and determined to dismiss the applicants summarily after conscientious reflection on Mr Smith’s report to him. That is, after conducting a bona fide investigation, Qantas determined on the balance of probabilities that Mr Cicciarelli had engaged in serious misconduct – namely, the organisation and incitement of unprotected industrial action. Qantas also determined on the balance of probabilities that Mr Inguanti had engaged in serious misconduct – namely, the attempted organisation and incitement of unprotected industrial action. Having so determined, Qantas decided that their conduct justified their summary dismissal. In this way, Qantas fulfilled its relevant contractual obligations.
The applicants referred to an implied term of a duty of mutual trust and confidence, but this does not assist them. The contracting parties can modify or exclude a term of this kind; and, in this case, such a term would not override the contractual provisions to which reference has been made. Compare Malik v Bank of Credit and Commerce International SA [1998] AC 20 at 45. Indeed, whilst some authorities favour the implication of a term of mutual trust and confidence (and, perhaps, good faith), others have expressed doubt about this proposition: see, for example, Tracey J’s discussion in Van Efferen v CMA Corporation Ltd (2009) 183 IR 319 at 337-338 [79]-[86]; Rogan-Gardiner v Woolworths Ltd (No 2) [2010] WASC 290 at [112]-[125] (Hall J); and State of South Australia v McDonald (2009) 104 SASR 344 at 383-390 [206]-[239]. It is unnecessary to resolve this debate because, in this case, even if there were such terms in the applicants’ employment contracts, I would, for the reasons indicated, reject the proposition that they were breached.
As stated earlier, whilst acknowledging that the investigation had its faults, I would reject the applicants’ challenge to the investigation process and the findings made by Mr Smith and accepted by Mr Hall. The applicants were fully informed of the allegations against them and given ample opportunities to respond. Mr Smith reported the outcome of the investigation led by him to Mr Hall, the relevant manager at the time, and recommended that a decision be made with respect to the applicants. Mr Hall accepted Mr Smith’s report and made his decisions to dismiss the applicants summarily. Mr Smith and Mr Hall discharged their responsibilities fairly and conscientiously. Even if Mr Smith should have provided a written, as opposed to an oral, report (which I doubt), the applicants did not argue that the absence of a written report had any material affect on the outcome of the investigation. There was indeed no evidence to support any such argument.
The applicants also argued, however, that it was not enough that Qantas determined, in the manner discussed, that the serious misconduct allegations against them were substantiated. The applicants contended that, under their contracts of employment, they could not be summarily dismissed unless they in fact engaged in conduct justifying summary termination; and that this required Qantas to satisfy the Court that they had engaged in such conduct.
Earlier in these reasons for judgment, I set out the facts as I found them on the evidence adduced at the trial. I note that the evidence led at trial was greater than the material gathered in the investigation.
I have found that: (1) Mr Cicciarelli attended work on 14 February 2009 with the intention of holding a report back meeting at which he would raise matters that he knew might well lead to industrial action; (2) on that Saturday morning, Mr Cicciarelli conducted the report back that had the effect of angering the Ramp employees; (3) Mr Cicciarelli would have known that his report back would anger them and lead to a vote to stop work; and (5) Mr Cicciarelli took no steps to dissuade the employees from stopping work, either before the vote was taken or subsequently when his attempts to contact the union had failed. On the facts as found, I am satisfied on the balance of probabilities that Mr Cicciarelli organised and incited the work stoppage to put pressure on the union and on Qantas, with respect to the industrial matters that he had agitated the previous day.
As indicated at the outset of these reasons, counsel for the applicants argued that, having regard to the large overall size of the Ramp staff on 13 and 14 February 2009, and the relatively small number of Ramp staff who were at work on both days (who included an even smaller number of part time staff), the “Grand Plan” that the respondent attributed to the applicants was untenable. I reject this submission. Mr Cicciarelli’s conduct did not involve a Grand Plan, of the kind to which the applicants referred.
Further, I have found that, on 14 February 2009, Mr Cicciarelli knew the parameters of the industrial regime that governed him and the Ramp employees. In particular, Mr Cicciarelli knew that, under Enterprise Agreement 7, work was to continue whilst an industrial dispute was determined in accordance with the disputes resolution procedure in the Agreement. He also knew that the work stoppage was unprotected and unlawful, as well as contrary to Qantas’ policies.
I have also found that, on 14 February 2009, Mr Cicciarelli had no reason to believe that Mr Mancuso or any other TWU official would be available to attend at the airport on that Saturday. In the circumstances, especially having regard to his conversation with Mr Mancuso on the evening of 13 February and his conversation with Mr Brooke in the morning of 14 February, Mr Cicciarelli must also have know that the work stoppage did not have the union’s authorisation or endorsement. Mr Cicciarelli’s actions with respect to the work stoppage were not done to advance the industrial position of the union.
On the facts as found, I would conclude that Mr Cicciarelli’s conduct on 14 February 2009 constituted the organisation and incitement of unlawful industrial action. Mr Cicciarelli must have known at the time that the industrial action would cause substantial damage to Qantas, as in fact it did. This conduct would fall within the expression “serious misconduct”.
The evidence at trial established that Mr Cicciarelli’s conduct was in breach of the contract of employment between Qantas and Mr Cicciarelli. In the circumstances, it was open to Qantas to determine that Mr Cicciarelli’s conduct constituted serious misconduct, which justified summary dismissal pursuant to the employment contract between him and Qantas. Even on the applicants’ construction of the contract, Mr Cicciarelli failed to establish that Qantas had breached his employment contract, as he alleged.
Mr Inguanti’s case was that he had attended the airport on Saturday, 14 February 2009, because of OH&S concerns first raised by a Mr Fox; and that he had not attended to take a vote to see whether the Baggage employees would stop work in support of the Ramp. The evidence was overwhelmingly against him.
Mr Inguanti failed to identify the source of the OH&S concerns during the investigation and named Mr Fox only when he filed his outline of evidence. As already noted, Mr Fox was ultimately not called as a witness. The evidence showed that Mr Inguanti felt strongly about the issues raised at the 13 February meeting and was angry with the union for its lack of support; that he discussed these issues with Mr Cicciarelli after the meeting; and that he attended work the next day specifically to facilitate a vote on whether to stop work – in support of the Ramp employees. I reject Mr Inguanti’s evidence that the possibility of industrial action never crossed his mind on 14 February 2009.
I reject Mr Inguanti’s claim that he was not given an opportunity during the Qantas investigation to explain the OH&S issues that motivated him to act as he did, or to answer the allegations against him. He might have set out a full explanation in his letters of response or sought to explain himself in his interviews but he did not do so.
There were at trial numerous contradictions and inconsistencies in Mr Inguanti’s evidence as to when he became aware of the alleged OH&S issue. Ultimately, I have found that, after making numerous phone calls, he came into work, entered the Baggage Room, subsequently spoke with Mr Cicciarelli, then returned to the Baggage Room where he took a vote on whether to stop work in support of the Ramp employees. Mr Inguanti made no attempt to contact Qantas management about any OH&S issue before taking the vote because, in his own words, he did not “think it was relevant at that point”. These were not the actions of an employee who had a genuine OH&S concern and was motivated to act because of that concern. Further, on first meeting with Mr Brooke and Mr Corrente, Mr Inguanti did not inform them that he was at the airport on account of an OH&S concern, as one would have expected if this was his motivating reason. Rather, I have found that the OH&S claim emerged only after Mr Inguanti found that he had been denied access to the Baggage Room. I find that Mr Inguanti’s claimed OH&S concern was no more than a ruse, either to gain access to the workplace or to disguise his earlier activities.
On 14 February, Mr Inguanti wanted to alert the media to the events at the airport. As Qantas submitted, his efforts to contact Channel 7 were more consistent with a desire on his part to draw the media’s attention to the stoppage by the Ramp employees, and, in so far as he was able, to foster their cause. Mr Inguanti agreed in evidence that telephoning Channel 7 was “of no benefit to no one [sic]”; and he did not mention that he had telephoned Channel 7 either in his outline of evidence or during the Qantas investigation.
I would infer from the circumstances established by the evidence in this case that Mr Inguanti attended the airport on 14 February 2009 in order to hold a vote of Baggage Room employees to decide whether they would stop work in support of the Ramp. Mr Inguanti’s conduct in this regard was the attempted organisation and incitement of industrial action and was as such unlawful and in breach of Qantas’ policies. Mr Inguanti’s conduct in this regard was “serious misconduct”, in breach of the contract of employment between him and Qantas.
Mr Inguanti was, moreover, well aware that Enterprise Agreement 7 made provision for the resolution of disputes that arose in the Baggage Room and on the Ramp. On a number of occasions, Mr Inguanti had in fact raised issues on behalf of members in his own name and initiated disputes resolution under that procedure. Mr Inguanti was also aware that the Agreement provided that work was to continue pending the resolution of a dispute and that he was required to comply with Qantas’ policies and procedures during the course of his employment, including the Standards of Conduct Policy.
The evidence at trial established that Mr Inguanti’s conduct was in breach of the contract of employment between him and Qantas. In the circumstances, it was open to Qantas to determine that Mr Inguanti’s conduct constituted serious misconduct justifying summary dismissal. Even on the applicants’ construction of the contract, Mr Inguanti failed to establish that Qantas had breached his employment contract, as he alleged.
For the reasons stated, I would dismiss the applicants’ claim for damages for breaches of their employment contracts said to be constituted by their summary dismissals.
DISPOSITION
For the reasons stated, I would dismiss the applicants’ amended application dated 21 July 2009.
I certify that the preceding three hundred and fifty-five (355) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 7 February 2012
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