Craig Robert Fletcher v Eastern Australian Airlines Pty Ltd T/A Qantas Link, Mace Rosenblatt, Andrew McDonald
[2022] FWCFB 56
•8 APRIL 2022
| [2022] FWCFB 56 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Craig Robert Fletcher
v
Eastern Australian Airlines Pty Ltd T/A Qantas Link, Mace Rosenblatt, Andrew McDonald
(C2022/479)
| VICE PRESIDENT CATANZARITI | SYDNEY, 8 APRIL 2022 |
Appeal against decision [2021] FWC 6670 of Deputy President Dean at Canberra on 23 December 2021 in matter number AB2020/18 – permission to appeal refused.
Background
Mr Craig Fletcher (the Appellant) is a licensed aircraft maintenance engineer employed by Eastern Australian Airlines Pty Ltd, trading as QantasLink (the Respondent). In January 2020, Mr Fletcher made an application pursuant to s.789FC of the Fair Work Act 2009 (the Act) for orders to stop bullying at work by his managers, Mr Mace Rosenblatt and Mr Andrew McDonald. An exhaustive conciliation was conducted over a period of approximately one year but no resolution was found. The application was then heard in May and July 2021.
On 23 December 2021, Deputy President Dean determined the application. The Deputy President was not satisfied that Mr Fletcher had been bullied at work (the Decision)[1] and dismissed the application (the Order).[2] The Deputy President found that for the most part, the alleged instances of bullying were reasonable management action, carried out in a reasonable manner. Mr Fletcher seeks permission to appeal and appeals the entirety of the Decision.
An appeal under s.604 of the Act is an appeal by way of rehearing.[3] An appeal may only be made with the permission of the Commission. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, because an appeal cannot succeed in the absence of appealable error.[4]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[5] However, it is necessary to engage with the appeal grounds to consider whether there is an arguable case of appealable error such that permission to appeal should be granted.
For the following reasons, permission to appeal is refused.
The Decision
In the Decision, the Deputy President deals separately with each instance of alleged bullying at work. The various findings of the Deputy President are found throughout the Decision:
At paragraphs [51]-[53] of the Decision, the Deputy President found that an investigation by Mr Rosenblatt into a maintenance error involving Mr Fletcher’s use of ‘uncontrolled data’ was reasonable and appropriate, and that his subsequent response to Mr Fletcher’s ‘at risk behaviour’ was reasonable management action in the circumstances. Overall, the Deputy President found that the incident “could not reasonably be viewed to constitute bullying behaviour” by either Mr Rosenblatt or Mr McDonald.
At paragraphs [70] and [71] of the Decision, the Deputy President found the decision not to return Mr Fletcher to his former position of Acting Shift Supervisor in July 2018 was reasonable management action. However, the Deputy President found unreasonable the method by which the decision was communicated, together with the lack of proper performance feedback. The Deputy President was satisfied that QantasLink had taken appropriate steps to address the matter, including through counselling and a change of position for Mr McDonald.
At paragraph [78] of the Decision, the Deputy President considered alleged acts of bullying by other employees at a QantasLink roadshow in August 2018. The Deputy President found these to be either appropriate or not inappropriate.
At paragraph [82] of the Decision, the Deputy President found that an interaction with Mr McDonald on 25 October 2018 after Mr Fletcher attended for work two hours early was reasonable management action. The Deputy President observed that it was not unreasonable for Mr McDonald to have been frustrated with Mr Fletcher if, part way through their conversation, Mr Fletcher started to walk away. Overall, the incident was not considered to involve bullying behaviour.
At paragraphs [91]-[92] of the Decision, the Deputy President found that requiring Mr Fletcher to adhere to scheduled checks and maintenance programs was not unreasonable. The Deputy President also found that it was reasonable for Mr Rosenblatt to have a discussion with Mr Fletcher about why he had accessed and inspected parts of the aircraft that did not fall within a scheduled daily inspection. The Deputy President was not satisfied on the evidence that Mr Rosenblatt was hostile to Mr Fletcher in this discussion.
At paragraph [97] of the Decision, the Deputy President was not satisfied that an alleged conversation in or around February 2019, which was alleged to involve bullying behaviour, occurred.
At paragraph [106] of the Decision, the Deputy President preferred Mr McDonald’s evidence over Mr Fletcher’s evidence about whether Mr McDonald acted forcefully in a conversation between them in February 2019. No finding of bullying behaviour was made.
At paragraph [125] of the Decision, the Deputy President found that it was reasonable and appropriate for QantasLink to commence an investigation into Mr Fletcher’s alleged release to service of aircraft with suspected wing corrosion and to direct Mr Fletcher not to attend work pending the outcome of that investigation. The Deputy President found that the allegations made against Mr Fletcher were reasonable and appropriate in the circumstances and that the process undertaken to address the concerns was “in a manner consistent with the relevant policies including the Standards of Conduct policy”.
The Deputy President’s ultimate findings are set out at paragraphs [154] to [160] of the Decision:
“[154] Having considered the extensive evidence and submissions filed by both parties and based on the findings made earlier in this decision, I am not satisfied that Mr Fletcher has been bullied at work within the meaning of s.789FD.
[155] I accept the submissions made on behalf of Mr Fletcher that it would be a mistake to view each event alone, separated from the broader context in which each event occurred. I also agree that carrying out an investigation in a ‘grossly unfair manner’ could also constitute bullying. However, I do not consider that in these particular circumstances, the evidence shows a pattern of bullying behaviour towards Mr Fletcher. In terms of the investigations, I consider that it was reasonable to conduct the investigations because the alleged conduct was on its face a breach of the relevant Eastern Airlines procedures.
[156] It is clear that at times, Mr Fletcher was frustrated with various management employees (including the Persons Named), and they were frustrated with him. As was submitted by the CAOOAA, there was a ‘misalignment’ between what Mr Fletcher considered to be an appropriate safety culture and the approach actually taken by Eastern Airlines, and this gave rise to a level of frustration which became evident in some of the interactions. While it is possible for the expression of frustration to give rise to a finding of bullying, for example where frustration is unreasonable or a disproportionate response to the circumstances, I do not consider in this case that the frustration expressed at times by the Persons Named was unreasonable such as to constitute bullying.
[157] I do not consider that Mr Fletcher was put under pressure by either of the Persons Named to avoid identifying or reporting defects. He was at one stage clearly told to limit himself to the maintenance schedules that were in place, and this was a reasonable request to make. I am also not satisfied that Mr Fletcher was targeted because of his reporting of defects. There is no evidence which supports such a finding. To the extent Mr Fletcher’s conduct has been the subject of investigations, for the reasons already given those investigations were reasonable.
[158] Where the allegations of bullying involved management action, I find that such action was reasonable. The management action taken in relation to Mr Fletcher was not always perfect, and it does not need to be perfect in order to be reasonable.
[159] Whether considered individually or collectively, the allegations made by Mr Fletcher do not meet the standard required for the Commission to make a finding that Mr Fletcher has been bullied.
[160] Accordingly, I dismiss the application.”
Grounds of appeal and relevant legal principles
There are six grounds of appeal:
The Deputy President failed to take into account the proper application of QantasLink’s Just Culture policy in the management of Mr Fletcher’s workplace reports and grievances.
The Deputy President failed to take into account the nature of Mr Fletcher’s workplace reports.
The Deputy President failed to take into account the nature of Mr Fletcher’s whistleblower report and the subsequent outcome report.
The Deputy President failed to take into account the witness evidence of Stephen Re, Michael Klibbe and Craig Gillespie.
The Deputy President failed to give adequate reasons for preferring the evidence of Mr Rosenblatt and Mr McDonald over that of Mr Fletcher.
The Deputy President mistook the overall factual matrix when finding that the actions of Mr Rosenblatt and Mr McDonald were reasonable management actions.
Each ground of appeal asserts error in the exercise of discretion of the kind described in House v R[6] as follows:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
These principles apply to the statutory exercise of discretion by Members of the Commission.[7] This means that a Full Bench of the Commission can only intervene in relation to the discretionary decision of a Member if there has been an error of the kind described above. This includes a decision about whether to make orders to stop bullying at work, which relies on the Commission’s satisfaction that the conditions for making such orders have been met.
The conditions about which the Commission must first be satisfied are whether the worker has been bullied at work by an individual or group of individuals, and whether there is a risk that the worker will continue to be bullied at work by the individual or group. A worker has been bullied at work if, while they are at work in a constitutionally-covered business, an individual or a group of individuals repeatedly behaves unreasonably toward them (or a group of workers of which they are a member), and the behaviour creates a risk to health and safety. A worker is not bullied at work if the alleged behaviour is reasonable management action carried out in a reasonable manner. While these questions necessarily involve objective findings of fact, they also require the Commission to be satisfied about questions of reasonableness and the likelihood of future risk.
Consideration
Ground 1 – whether failure to take into account the proper application of QantasLink’s Just Culture system in the management of Mr Fletcher’s workplace reports and grievances
In support of Ground 1, it is submitted that the Just Culture framework is mandated by civil aviation legislation in Australia and international civil aviation regulations. Its purpose is to ensure that persons working in aviation can report incidents and concerns without fear of disciplinary action or retribution unless the conduct – after proper inquiry – is taken to be reckless, intentional or negligent.
Mr Fletcher submits that if proper regard had been given to how the Just Culture system was applied in relation to Mr Fletcher, the only possible outcome would have been a finding that QantasLink had not applied the Just Culture framework correctly. Ground 1 deals in particular with an incident in 2018 involving an alleged “wilful violation” of procedure, which the Deputy President dealt with at paragraphs [51]-[53] and [70]-[71] of the Decision. Mr Fletcher submits that the only available conclusion on the evidence was that QantasLink had not followed the Just Culture framework in dealing with the incident. This is because his conduct in relation to the incident was a “situational violation” and not a “wilful violation”. In those circumstances, no disciplinary action should have been taken against him.
The difficulty with Ground 1 of the appeal is that on any view, the conduct of Mr Fletcher did involve a wilful violation of a procedural rule by Mr Fletcher. So much was conceded by Counsel at the hearing on permission to appeal and appeal. This is consistent with the evidence before the Deputy President, which demonstrated that when Mr Fletcher performed a maintenance error using “uncontrolled data”, he did so knowing this was contrary to the first procedural rule in QantasLink’s Approved Maintenance Organisation (AMO) Maintenance Error Reduction Code of Practice (Code of Practice) - itself part of the Just Culture framework.
Further, we are not persuaded that there is an arguable case that QantasLink failed to follow the Just Culture Tool in dealing with Mr Fletcher’s use of uncontrolled data. The Just Culture Tool, which guides the assessment of safety-related behavioural choices and organisational system resilience, contains a flowchart for dealing with three separate duties: the duty to produce an outcome; the duty to follow a procedural rule; and the duty to avoid causing unjustifiable risk or harm. Flowcharts are applied on the available evidence as judged by QantasLink.
At the first instance hearing, the Deputy President proceeded on the basis that the applicable duty in relation to the incident was the “duty to follow a procedural rule”. The procedural rule was “Use Approved Data”.
The flowchart for this duty required QantasLink to follow a series of steps. These were:
Decide whether the duty to use controlled data was known to Mr Fletcher. The answer was plainly ‘yes’, as evidenced by Mr Fletcher’s report of the incident and as he admitted on transcript at PN246.
Decide whether it was possible to follow the rule. Mr Rosenblatt decided the answer to this question was ‘yes’. Mr Fletcher’s own evidence supports this finding (transcript at PN270 – PN294).
Decide whether the employee knowingly violated the rule. Mr Rosenblatt decided that the answer to this question was ‘yes’, based on an admission by Mr Fletcher (transcript at PN2784 and PN2847). The word ‘knowingly’ is defined in the Just Culture Response Guidelines as “having knowledge that harm is practically certain to occur”. Whether the conduct met this threshold was not the subject of any meaningful evidence in the proceeding. In those circumstances, the Deputy President was entitled to treat the decision of Mr Rosenblatt as one that was available to him on the evidence he had at the time.
Decide whether the social benefit exceeded the risk. There is no direct evidence about how Mr Rosenblatt decided this question. Mr Rosenblatt’s evidence was that he had followed the Just Culture Tool and classified Mr Fletcher’s conduct as “At-Risk Behaviour” (transcript at PN2848-9). To have reached this conclusion, it must be that Mr Rosenblatt answered the question ‘no’.
Decide whether the employee had a good faith but mistaken belief that the violation was insignificant or justified. As above, there is no direct evidence about how Mr Rosenblatt answered this question, but it must have been ‘yes’ because of his subsequent conclusion that Mr Fletcher had engaged in “At-Risk Behaviour” according to the Just Culture Tool.
Deal with At-Risk Behaviour by coaching employee and conducting an ‘At-Risk Behaviour’ investigation. Mr Rosenblatt met with Mr Fletcher three times, on 5, 7 and 9 March 2018.
So far as the incident with Mr Fletcher is concerned, it is not apparent that any further steps were required to be taken by QantasLink. At the time, Mr Rosenblatt was not aware of any previous incident of ‘at-risk behaviour’ (transcript at PN2850) and the final “Step 5” of the Just Culture Tool did not apply.
Ground 2 – failure to take into account the nature of Mr Fletcher’s workplace reports
Ground 2 asserts that the Deputy President gave no weight to the workplace reports that Mr Fletcher submitted around the same time as events that led up to an investigation process undertaken by QantasLink. The reports in question were:
Identification of wing corrosion on 24 August 2017 by a contractor while Mr Fletcher was Shift Supervisor
Submission of Hazard Incident Reporting Online (HIRO) on:
a.3 July 2018, in relation to worn latches, quality control and workplace culture
b.13 July 2018, in relation to a sheared fastener in an area of the plane not specified for inspection as part of the Daily Inspection, and
Verbal reports about wing corrosion on or about 31 January 2019 and 4 April 2019.
We are not persuaded that there is an arguable case of appealable error in relation to Ground 2. The Deputy President dealt expressly with each of these reports in the Decision, including by making findings, at paragraphs [54]-[65], [83]-[92] and [98]-[125] respectively.
Ground 3 – failure to take into account the nature of Mr Fletcher’s whistleblower report and the subsequent outcome report
Ground 3 asserts that the Deputy President failed to take into account Mr Fletcher’s whistleblower complaint and a subsequent report into that complaint by Mr Philip Naughton, including his observations that were contrary to the evidence of witnesses for QantasLink and his recommendation that QantasLink take further action in relation to Mr Fletcher’s self-reporting of the use of uncontrolled data (discussed above).
In essence, Ground 3 asserts that the Deputy President should have adopted the findings of Mr Naughton, whose role it was to investigate the whistleblower complaint. However, this overlooks the different nature of the Deputy President’s role, which was to decide whether she was satisfied that Mr Fletcher had been bullied at work by Mr Rosenblatt and Mr McDonald on the evidence before her. Mr Naughton’s report formed only one part of this evidence. Mr Naughton’s report also relied on evidence collected as part of his own investigation, which it cannot be said was the same as the evidence before the Commission.
The subject matter of the whistleblower complaint was the identification of wing corrosion, which was dealt with extensively from paragraphs [98] - [125] of the Decision, including an express reference to investigation of the whistleblower complaint at paragraph [119]. The Deputy President further considered the whistleblower complaint from paragraphs [17], [126], [133] – [139] and [153]. No arguable case of appealable error arises in relation to Ground 3 of the appeal.
Ground 4 – failure to take into account the witness evidence of Stephen Re, Michael Klibbe and Craig Gillespie
Ground 4 asserts that the Deputy President failed to take into account the totality of the evidence, and in particular the evidence of:
Mr Re, in relation to how the Just Culture system works within QantasLink;
Mr Klibbe, in relation to concessions made about Mr Fletcher’s reporting on worn latches following a C-Check; and
Mr Gillespie, whose finding that Mr Fletcher’s use of uncontrolled data was a ‘wilful violation’ was not available under the Just Culture framework.
We have dealt above with Mr Fletcher’s use of uncontrolled data and whether it was a wilful violation. We do not consider it arguable that the Deputy President erred in the manner contended about Mr Gillespie’s preliminary finding on this issue. Nor are we persuaded that the Deputy President paid no, or no adequate, regard to the evidence of Mr Re about Just Culture, which is dealt with directly from paragraphs [18] – [22] of the Decision. The evidence of Mr Klibbe about HIRO 191377 dealing with “worn latches” was in connection with the alleged demotion of Mr Fletcher by Mr Rosenblatt in July 2018. This was a matter plainly considered by the Deputy President both directly, in relation to Mr Klibbe’s evidence at [57]-[58] and generally in relation to the alleged demotion from paragraphs [54] - [72] of the Decision. Further, to the extent that concessions were made by Mr Klibbe under cross-examination, they do not appear to have departed from the tenor of his evidence which was to the effect that aspects of Mr Fletcher’s HIRO report were “good” but that others did not “stick to the facts” (transcript at PN2025).
We find no arguable case of error in relation to Ground 4.
Ground 5 – failure to give adequate reasons for preferring the evidence of Mr Rosenblatt and Mr McDonald over that of Mr Fletcher
By Ground 5, Mr Fletcher submits that the Deputy President failed to explain why the evidence of Mr Rosenblatt and Mr McDonald was preferred over the evidence of Mr Fletcher. The Deputy President gave reasons of this kind at paragraphs [25]-[29], [33], [53], [65], [70]-[72], [92], [97] and [105]-[106]. We accept that these reasons were brief, but that is not to say that the exercise of discretion miscarried. The Deputy President found that almost all of the behaviour that Mr Fletcher saw as unreasonable was in fact reasonable. On one such issue, the Deputy President was not satisfied that it had occurred at all.
The Deputy President clearly considered conflicts in the evidence and resolved them by preferring one version of events over another. The Deputy President’s acceptance of the proposition at paragraph [156] that there was a ‘misalignment’ between Mr Fletcher’s views about an appropriate safety culture and the actual approach of QantasLink provides further insight in this regard. We find no arguable case of appealable error in relation to Ground 5.
Ground 6 – mistaking the overall factual matrix when finding that the actions of Mr Rosenblatt and Mr McDonald were reasonable management actions
Ground 6 asserts that when the totality of the evidence is considered in context, the Deputy President’s findings in relation to reasonable management action were not open to her on the evidence. In the Notice of Appeal, this was put as a mistake of fact. In the submissions on appeal, Ground 6 appears to have morphed into one of legal unreasonableness.
In Minister for Immigration v Li[8], the High Court observed that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. Reasonable minds may differ as to the correct or appropriate decision in a particular case, but an appeal bench cannot substitute its own views for those of the decision maker at first instance simply because it would have reached a different conclusion. If the decision under review was reasonably open on the evidence, it will not be legally unreasonable.
One cannot exclude the possibility that this Full Bench might have reached different conclusions on the evidence to those of the Deputy President. But that is not enough. We are unable to see how it could be said that the Deputy President had no evident and intelligible basis for reaching the conclusions that she did. The Deputy President gave detailed consideration to each separate instance of alleged bullying at work together with references to the particular evidence relied upon in many instances. The Deputy President accepted explanations given by Mr Rosenblatt and Mr McDonald about the reason certain actions were taken, which on the face of the record had an evidentiary basis. Ground 6 falls well short of establishing an arguable case of appealable error on the basis of legal unreasonableness.
As to mistake of fact, a party seeking to overturn a decision on appeal based on an “overall factual matrix” bears the onus of identifying those findings of fact not reasonably open on the evidence. Instead, what is urged is a finding based on inference - that the coincidental timing of reports made by Mr Fletcher under the Just Culture framework and the commencement of disciplinary action against him must be bullying at work. An argument to the same effect was considered and rejected by the Deputy President. While the evidence in the case was comprehensive and often technical, ultimately it turned on the Deputy President’s assessment as to the reasonableness of Mr Rosenblatt and Mr McDonald’s conduct in relation to Mr Fletcher in 2018 and 2019. No arguable case is made out in relation to Ground 6.
Should permission to appeal be granted?
Mr Fletcher submits that permission to appeal should be granted because the appeal raises issues of public interest and general importance in relation to:
the construction and application of sections 789FC, 789FD and 789FF of the Act, and in particular what constitutes reasonable management action in the context of disciplinary processes and human resources intervention in matters regulated by civil aviation legislation; and
the application of a “Just Culture” approach to the management of safety concerns across the aviation industry.
Mr Fletcher also submits that the permission to appeal should be granted because the Decision manifests an injustice in that disciplinary action may now continue against him.
The Full Bench has decided not to grant permission to appeal. If what Mr Fletcher seeks is a finding that disciplinary action cannot coexist with the Just Culture framework, we would not accept the proposition. The Just Culture framework is one that balances two competing and important priorities: an environment where people are encouraged to report safety issues, but also a clear line between acceptable and unacceptable safety-related behaviour. Managing unacceptable behaviour of this kind is just as much a feature of Just Culture as a trusting reporting environment. To say that no disciplinary action can follow the identification of unsafe behaviour is to misunderstand the Just Culture framework.
Further, we do not agree that the appeal invites consideration of the proper construction or application of sections of the Act dealing with orders to stop bullying at work. This is a case that turns on its own facts as well as the Deputy President’s reasonable exercise of discretion. The facts arise in the context of a heavily regulated industry, but there is no question of law or operation of law in issue. On our review of the materials, the parties were in general consensus about the application of civil aviation regulation to QantasLink, which underpins its own Just Culture framework. To the extent that the Just Culture framework arises for consideration, it does so only in relation to how it was implemented by QantasLink in relation to Mr Fletcher. No broader issue of importance for the aviation industry emerges from the materials.
On the issue of injustice, we accept that one consequence of the Decision is that QantasLink may decide to continue to take disciplinary action in relation to Mr Fletcher. However, the source of the disciplinary action is the alleged conduct of Mr Fletcher, rather than any apparent error of law by the Deputy President.
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A Guy of counsel, on behalf of the appellant.
D Lloyd of counsel, on behalf of the respondent.
Hearing details:
2022.
Microsoft Teams (Video).
10 March.
[1] Application by Craig Robert Fletcher [2021] FWC 6670 (23 December 2021).
[2] Application by Craig Robert Fletcher PR737111 (23 December 2021).
[3] On appeal, the Commission has power under s.607(2) to receive further evidence: see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[4] Wan v AIRC (2001) 116 FCR 481 at [30].
[5] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[6] [1936] 55 CLR 499 per Dixon, Evatt and McTiernan JJ.
[7] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21].
[8] Minister for Immigration v Li (2013) 249 CLR 332.
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