Daniel Matthews v Qantas Airways Limited
[2022] FWC 654
[2022] FWC 654
The attached document replaces the document previously issued with the above code on 24 March 2022 to correct minor typographical and formatting errors.
Associate to Commissioner McKenna
Dated 28 March 2022
| [2022] FWC 654 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Matthews
v
Qantas Airways Limited
(U2021/7602)
| COMMISSIONER MCKENNA | SYDNEY, 24 MARCH 2022 |
Application for an unfair dismissal remedy
Daniel Matthews (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy concerning his dismissal by Qantas Airways Limited (“the respondent” or “Qantas”).
As to preliminary matters, there were no issues, and I otherwise find the application was made within time; the applicant is a person who was protected from unfair dismissal; the respondent is not a small business, so consideration of the Small Business Fair Dismissal Code does not relevantly arise; and the dismissal did not involve a case of genuine redundancy.
Background
The applicant was employed by the respondent in the period 1 August 2013 until his dismissal, with a payment in lieu of notice, on 13 August 2021. Immediately before the dismissal, the respondent employed the applicant as an Aviation Safety Training Instructor, Flight Operations. The dismissal arose against the immediate background of a training course conducted by the applicant on 7 January 2021 and an ensuing complaint by one of the respondent’s employees who was a participant in that training course. Following certain investigation and show cause processes undertaken by the respondent consequent upon the complaint, the respondent dismissed the applicant. (In addition to lodging this application before the Commission, the applicant requested an appeal under the respondent’s Internal Appeal Procedure. That internal appeal was dismissed on 20 September 2021, after this application had been lodged.)
The respondent proposed, without objection from the applicant, that the name of the employee who made the complaint should not be publicly identified in the decision or, for example, identified in the transcript of the proceedings. I acceded to the respondent’s proposals in such respects. An order as to certain other confidentiality-related matters concerning the conduct of the hearing was also made by consent. In the decision, I will refer to the employee who made the complaint about the applicant as “the complainant” rather than identifying her by name. Apart from noting that the complainant has been an employee of the respondent since the mid-1990s and now holds a managerial-level job title, I will not otherwise set-out any identifying details about the complainant. Consistently with the approach of not setting-out any identifying details concerning the complainant, references to the names of employees who attended the training course (including two who had worked in the past with the complainant) have also been de-identified in the decision. I will refer to those participants as “Ms P1” and “Ms P2”, as in participant numbered “Participant #1”, “Participant #2”, etc (in no particular numerical order).
Due to the nature of the of the competing versions by the complainant and the applicant of what unfolded on 7 January 2021, there is an unfortunate necessity for a large amount of repetition in the decision concerning the description of, and my consideration of, various matters. I should also add that while each party’s submissions referred in some detail to matters around making findings as to the credibility, reliability and the like, it is unnecessary to address that in the broad; my findings in relation to each of the contested issues speak for themselves.
The witnesses
Evidence was given in the proceedings by the applicant and the complainant. Evidence about matters generally related to the respondent’s investigation processes was given by Caroline Turnbull, Manager of Aviation Training for Qantas (by name and/or “the investigator”). Ms Turnbull led the investigation, assisted by employees from the respondent’s case management team, and made certain findings. Ms Turnbull reports to Captain James Boland, Head of Training and Checking for Qantas (by name and/or “the decision-maker”). Captain Boland was the final decision-maker concerning the dismissal; he also gave evidence in the proceedings.
Some, but not all, employees of the respondent who were co-participants with the complainant in the training course (“the participants”) were interviewed during the respondent’s investigation processes about what had unfolded during the training course. Of the five participants in the morning session (other than the complainant herself), four were interviewed. Of the three additional afternoon session participants, one was interviewed.
The participants who were interviewed about their recollections of events on 7 January 2021 signed written statements (“the investigation statement/s”). The participants’ investigation statements were based on notes of interviews, which were then put into the form of written statements by staff of the respondent and signed by the participants. The participants’ investigation statements were put into the evidence as attachments to the written evidence of Ms Turnbull and Captain Boland. The investigation statements apparently were not made available to the applicant before the dismissal; what he knew of their contents comprised what was set out in an attachment to a letter that set out the investigator’s findings.
Although references were made repeatedly in the parties’ written submissions to matters in the participants’ investigation statements, none of the participants personally gave evidence in the hearing before the Commission. To the extent that repeated references were made in the proceedings to the participants’ investigation statements, neither the participants’ investigation statements nor the parties’ submissions concerning those statements assisted me particularly, if at all, in the resolution of the contested versions and characterisations of events given directly by the applicant and the complainant in their own evidence before the Commission. Counsel for the respondent made a submission that “The Commission knows exactly what those witnesses would have said had they been called.” I reject the respondent’s submission that I know what the participants’ evidence would have been, let alone exactly, had any or all of them given evidence in the proceedings; and, assuredly, I do not know what may have been elicited in the scrutiny of cross-examination had evidence in fact been given in the proceedings by any or all the participants (there are some imponderables, for example, such as how a participant seated in the third row behind the complainant might have seen the face mask-wearing complainant blush at the same time the applicant was looking at the complainant’s chest). The participants’ versions in the investigation statements were characterised by, for example, some significantly inconsistent and/or incompatible recollections about what occurred on 7 January 2021. The absence of any reference at all in the complainant’s evidence before the Commission as to what unfolded during the afternoon coffee/tea break is a particularly conspicuous absence given it formed part of the backdrop to findings eventuating in dismissal, specifically referencing parts of the investigation statements signed by Ms P1 and Ms P2 in relation to Allegation 7.
The parties’ submissions each cherry-picked the parts of the participants’ investigation statements which supported their respective contentions and largely ignored the parts which did not support those respective contentions. As to that, the information in the participants’ investigation statements was, put colloquially, all over the place. Had the participants who were interviewed given evidence in terms the same as, or relevantly similar to, what is set out in their investigation statements, I observe that the participants’ own recollections did not accord uniformly with the evidence of either the applicant or the complainant and, in some instances, the participants’ investigation statements were shambolically divergent on various matters, including some key matters that are in contention in this case.
While both parties made submissions on Jones v Dunkel-type inferences, I do not propose to deal with the evidence on the bases respectively contended for by either party in such respects or in any overall sense. However, evidence from two of the participants, in particular, would have been directly pertinent to matters. As noted earlier, I will refer to those participants as “Ms P1” and “Ms P2” (with two other interviewed morning session participants as “Mr P3” and “Ms P4”). The complainant knew Ms P1 and Ms P2 as work acquaintances because she had occasionally flown with them in the past. The significance is that the investigator referred in her findings to matters in the investigation statements of Ms P1 and Ms P2 in making certain conclusions, in circumstances where neither the complainant’s investigation statement before the investigator nor her evidence before the Commission referred to what was recounted by Ms P1 and Ms P2 concerning the afternoon tea/coffee break. I will return to this matter later in the decision. Other significance arises from the contested claim that the applicant referenced the colour of a Qantas uniform top being worn by one of these participants, Ms P2, in connection with a comment he allegedly made. Moreover, the complainant’s evidence before the Commission referred to her variously having exchanged looks with Ms P1 and Ms P2 said by the complainant to have involved, or having been taken by the complainant to have involved, return looks of shock and concern at the points of time described in that evidence. The morning session exchange of looks was not described in the complainant’s investigation statement, but there was reference in her investigation statement to an afternoon session exchange of looks. The investigation statements of Ms P1 and Ms P2 did not refer to any such exchanges of looks with the complainant.
The training setting on 7 January 2021
The training course was conducted by the applicant on 7 January 2021 at one the respondent’s premises, namely the Qantas Jet Base in Sydney. The training was conducted across different rooms between 8.00am and 3.30pm. There was a morning session and an afternoon session, interspersed by a morning tea/coffee break, a lunch break and an afternoon tea/coffee break.
It appears that 7 January 2021 may have been the first occasion that some or all the participants had interacted in any form of an employment setting for a long time due to exigencies associated with the then-prevailing COVID-19 situation. All course participants were seated at distances further apart than might otherwise have been the case were it not for social distancing requirements and they were wearing face masks. Unlike the participants, the applicant was not wearing a face mask during the segments of the morning session relevant to the case; he was not required to do so, subject to certain specifications – which he observed.
The complainant was wearing glasses as well as a face mask - being one of the now-familiar, disposable surgical-style blue creased masks. Unlike all the other uniformed participants, the complainant was not wearing a Qantas uniform; the complainant said in her written reply evidence that she informed a number of the training participants, when the applicant was not present, that she was not in uniform because she could not fit into her uniform. On the upper part of her body, the complainant was wearing a T-shirt with what I gather from the evidence had some form of a scooped neckline – which meant that the complainant’s skin on part of her upper thorax/upper chest area was visible above the neckline of the T-shirt. The complainant had a Qantas nametag identifying her name affixed to her T-shirt. The complainant also had a cardigan with her, which she donned and removed a number of times over the course of the day.
The applicant and the complainant had not met or known each other before the training course, which was concerned with “Recurrent Aviation Medical and Security Training”. The applicant presented the initial part of the morning session while standing in front of the seated participants. The applicant was periodically moving around the front of the room during this part of the training. The complainant was seated in a chair with a desk in front of her, in the middle of the second row of chairs and desks. No one was seated in front of the complainant at the desk in the first row. At all times, the distance between the applicant and the complainant in the room was a minimum of about 1.5m, due to the COVID-19 measures – with the applicant estimating 1.5m to 2.0m at the time of the first relevant interaction. There was at least a suggestion, in photographic evidence, that there was no desk and chair in the first row, or that the first-row desk and chair were not immediately in front of the complainant’s desk. Nothing turns on that because, for example, there is no suggestion that the applicant otherwise moved closer to the complainant by virtue of any empty floor space that would have been occupied by the first-row desk and chair. As such, I proceed on the basis there was, as the complainant contended, a first-row desk and chair in front of her second-row desk and the chair on which she was seated.
The component of the course that was being presented by the applicant in the morning session concerned instruction in basic aviation first aid, using a methodology which goes by the acronym/mnemonic of “SAMPLE” - with the “S” being for “signs and symptoms”, the “A” for “allergies”, and so forth. The methodology includes physical observations by a first aider, such as in relation to an individual’s breathing.
The differing versions of the complainant and the applicant
I will turn next to my distillation of the relevant evidentiary accounts - first the complainant’s version about what happened on 7 January 2021 and, second, the applicant’s version. I set out the versions in that order because it was the version by the complainant which led the applicant to providing his version in response to the complainant’s complaint during the investigation processes and, subsequently, in these proceedings. The versions given by the complainant and the applicant differed in matters of detail as between what was said by each of them in their investigation-phase versions and in their evidence in the proceedings before the Commission (and, in the case of the complainant, differed in some matters of detail from the version described in her initiating written complaint that she emailed to the manager on 7 January 2021, not long after the training course had completed that day).
The complainant’s version
The complainant’s version in her evidence before the Commission included the following.
· The applicant attempted to demonstrate to the participants how to ascertain whether a person requires medical attention. The applicant first verbalised some different work-related scenarios, during which time he was walking from one side of the classroom to the other. The applicant went into his demonstration of how one would ascertain whether someone was breathing. In so doing, the applicant stopped in the middle of the room directly in front of where the complainant was seated. The applicant leaned forward towards the complainant, stared into her eyes and made eye contact with her – from a distance, at most, of 1.5m to 2.0m. (The complainant’s cross-examination indicated this eye interaction was “probably about 10 seconds”, albeit feeling very much longer). The complainant observed the applicant’s eye gaze move towards her chest, where his eyes remained for approximately 10-20 seconds.
· The applicant’s demonstration was undertaken without asking for a volunteer, and without the complainant’s permission to participate in the demonstration or any signposting that he was about to conduct a demonstration.
· The complainant remembers thinking, at the time, that the applicant would eventually say something while he was looking at her, but the applicant was silent. This made the demonstration feel particularly uncomfortable for the complainant, and the time felt to her like it was passing particularly slowly.
· After the applicant had stared at the complainant’s chest, he looked up to her eyes and he said words to the effect of “You can look into a person’s eyes to see if they are responsive”. The applicant then sniggered or laughed and said words to the effect of “And then you may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing.”
· The complainant was confused and shocked by what had just happened and recalls turning her head behind her to one or other of the two participants she knew though work (the complainant cannot recall whether it was Ms P1 or Ms P2) with the complainant gesturing her shock with her facial expression. The complainant “observed that [her] colleague reciprocated the facial expression”, which appeared to the complainant also to be shocked by the demonstration.
· Around this time, the complainant took out her cardigan, put it on “with all the buttons done up, trying to draw attention away from myself” - in circumstances where the complainant had, at the beginning of the session, taken off the cardigan because the room was too hot.
· After the applicant’s comments, the complainant said to the applicant words to the effect of “Please stop, you are making me feel uncomfortable. Can we please move on?”. The applicant did not respond to, or acknowledge, the complainant’s comment. The applicant laughed and then continued with the training.
· Following the demonstration, the complainant felt her face heating-up and she assumes her face turned red. The complainant felt embarrassed and humiliated because her face was turning hot and red from the comments the applicant had made and his response, being to laugh-off her request for him to stop. The applicant laughed again and said words to the effect of “Oh look, [complainant’s given name’s] face is the same colour as [Ms P2’s given name’s] top”. Ms P2 was wearing a Qantas uniform which had three stripes on the top in the colours of blue, red and fuchsia/pink. The complainant understood that the reference was to the red and pink colours of the uniform’s top. To the complainant, the applicant had again singled her out in front of the class, disregarding her previous comment requesting that the applicant “move on”; she felt even more embarrassed.
· The applicant briefly turned back, with a shocked expression on her face, towards Ms P2, who was seated behind her and made eye contact with that participant. The complainant had a shocked look on her face. The complainant did not notice the applicant draw attention to any other participant during the morning session.
· Approximately 45-60 minutes after the applicant’s demonstration, the class had a break for morning tea/coffee. During this break, the complainant stood with Ms P2 and Ms P1, and she spoke about what happened still feeling quite shocked. The complainant recalls saying words to the effect of “Am I overreacting?” (referring to the applicant’s behaviour towards her during the morning session) to which they both replied with words to the effect of “No”. The complainant felt reassured by their responses. Either Ms P1 or Ms P2 then said words to effect of “Are you okay?” to which the complainant replied: “I want this day over and done with”.
· During the next portion of the training session, which included a practical section, the complainant felt disengaged and did not want to participate as she was concerned about the possibility that the applicant would make further comments about her.
· The afternoon session commenced around 1.00pm in a different room and with three additional participants. Following a suggestion from Ms P2 and Ms P1, the complainant sat at the back of the room. The applicant introduced himself to the (additional) participants and said words to the effect of “Earlier I had made a joke and it was not received well, so I’ll try and do better”. The complainant understood that this was a reference to what happened during the demonstration earlier in the day. The complainant saw the applicant looking at her when he made this statement. The complainant noticed in her peripheral vision that some of the participants turned around to look at her. The complainant once again felt embarrassed and humiliated. To the complainant, it felt like the applicant was repeating what had happened in the morning session without him having to say anything. The complainant felt quite upset and she wanted to cry; she did not want to leave the room as she considered doing so would draw more attention to her. The complainant turned to her left where Ms P1 was sitting. The complainant observed that Ms P1 had a facial expression which indicated that she was worried or concerned. The complainant assumed that Ms P1 was concerned about her.
· As the complainant again felt uncomfortable, she again put on her cardigan and again fully buttoned it (i.e., in circumstances where she had taken it off during the lunch break, following the first wearing with full buttoning in the morning session). For the rest of the training, the complainant felt very disengaged. The complainant did not volunteer any information or answer any questions, as she typically would in other training sessions, due to feeling uncomfortable from the experience during the demonstration. The complainant wanted the day to finish as soon as possible as she felt so uncomfortable.
It is important to note, as this point in the overview of the complainant’s evidence before the Commission, that the complainant’s evidence made no reference - none whatsoever - to anything related to what happened when the class broke for afternoon tea/coffee. Part of the importance lies in the fact that the investigator in her findings letter and, in its reliance on it, the dismissal decision, set out matters about the complainant being upset during the afternoon tea/coffee break in relation to Allegation 7. Moreover, it also may be apposite to note that, among other matters, the iteration of the investigation statement signed by Ms P2 on 3 March 2021 appears incomplete in that paragraph 17 contains text which reads: “[The complainant] said to me (what did she say in response to that?)”. Certain matters were set out in Attachment 1 to the findings letter, which detailed the investigator’s findings. The segment of the findings letter concerning Allegation 7 read as follows (underline, italics and bold in original):
“7. You knew or ought to have known that your actions described in Allegations 1 – 6 inclusive were:
a) unwelcome, or unwanted; and/or
b) could cause offence, intimidation and/or humiliation.
In your Written Response you stated:
[Three paragraphs of text from the applicant’s written response]
In the Response Meeting, I asked you what you meant by ‘it seems apparent she was offended’? You explained you did not know until you got the Allegations that [the complainant’s] perception was incorrect as to the delivery of the demonstration.
In the Statement of [Ms P2], she states:
‘After lunch at approximately 1200pm three Technical Crew (pilots) joined the remainder of the security component of the training. We moved into another room that was bigger than the one we were in for the morning’s training.’
‘I recall that [the complainant], [Ms P1] and myself went and sat at the back of the class. Both [Ms P1] and I suggested to [the complainant] that it might be best to sit in the back of the room and away from [the applicant’s] attention, to which [the complainant] agreed to.’
‘At approximately 2.30pm we had a coffee break. During this time, I was comforting [the complainant] who was visibly upset, and she was crying. [Ms P1], [occupation] was also there at the time, we were in the 3rd floor kitchen/tea area getting a coffee. [The complainant] told me the unwanted attention from [the applicant] made her upset and that it also triggered deeper emotional issues, but [the complainant] did not share any more information with me about those particulars.’
In the Statement of [Ms P1], she states:
‘…during the afternoon coffee break I entered the kitchen area where both [the complainant] and [Ms P2] were.’
‘I noticed [Ms P2] was giving [the complainant] a hug and [the complainant] appeared to be crying.’
Based on the information available to me including the evidence of [Ms P2] and [Ms P1], and as I have described above, I find [the complainant] to be a credible witness. On balance, I find Allegation 7 is substantiated. I find your comments directed at and/or in reference towards [the complainant] were unwelcome, unwarranted, and caused her offence, intimidation and humiliation.”
On the topic of the findings letter and its findings concerning Allegation 7, the letter was emailed to the applicant and his union representative by the investigator during a meeting on 18 June 2021. The respondent-prepared meeting notes recorded what was said about 15 minutes later, after the letter had been read by them and the meeting resumed. The meeting notes used the initials of the names of the individuals in the meeting, i.e., “CT” for Caroline Turnbull, the investigator; “DM” for Daniel Matthews, the applicant; and “GS” for Glynn Sowter, the applicant’s union representative/support person). Part of the meeting notes (as opposed to a transcript) read as follows concerning what was said (as written; my underlining):
“CT as I said earlier, an instructor as part of their situational awareness, they need to read the room...the people in the room......he should have known to stick with his lesson plan. This has caused [the complainant] and her colleagues to note several things during the course, which left her feeling uncomfortable. [The complainant] has told me she has attended many courses thru her career at [Qantas] and never been left feeling like this in the past, ever
DM - I am not lost on what [the complainant] felt, I can hear it in your voice......I am not lost on that at all.....I delivered the course in accordance with guidelines. [The complainant] has mis-interpreted, and she has embellished the situation......she did not raise it in the meeting, you say read the room – I ran the course in accordance with AST guidelines......
CT - thanks Dan...
DM - the statements in general that he (meaning me) should know, but there were no irregularities, it is unreasonable to say I should assess those things....
CT - I think we should now conclude the meeting. I acknowledge your comments Dan. To you point about how she felt, you made a good point ...and your role. These people came in after a long time away from work, their first interaction with [Qantas] after being away for a long time [due to COVID-19-related issues/stand-downs]....it was evident from what she has said, at some point during the day she felt very insecure and unsafe, she was in tears in the kitchen and had to be comforted. I know that is not lost on you
DM - and I stated that in the document. But by triggering deeper emotional issues, I am not aware of a person there with deeper issues.
CT - and nor did she share that information with her colleagues or anyone else.”
Thus, there was discussion in the meeting when the findings letter was provided to the applicant about the complainant being in tears in the kitchen and having to be comforted (during the afternoon tea/coffee break), but the investigator did not have in the complainant’s own investigation statement any reference to that in connection with the findings the investigator made in relation to Allegation 7. Moreover, as noted earlier, the complainant’s own written evidence before the Commission did not refer to any such manifestation of being upset.
I return next to continuing an overview of the complainant’s evidence before the Commission.
While driving home after the training had concluded on 7 January 2021, the complainant telephoned her manager about what had happened earlier in the day. Once she was home, the complainant then sent emailed correspondence at 5.34pm to that manager to formally report matters. That email was the trigger for the ensuing investigation process that the respondent commenced. That email read (as written):
“Today 07/01/2021, I attended the security/medical course at the jet base.
The instructors name was Daniel.
During the medical component of the course, Daniel, was attempting to demonstrate how to ascertain whether or not a person required medical attention. As part of his demonstration, he leant forward and stared at my eyes and then slowly and deliberately lowered his eyes to my chest and for a longer period.
He discussed with the class that you can look into the persons eyes to see if they were responsive
“ and then you may have noticed that I was staring at [given name of complainant’s] chest(snigger) to see if she was breathing”.
He laughed again at this. I felt embarrassed and humiliated that my face was turning red which he laughed at and made comment to the class. I felt so uncomfortable that I put my cardigan back on and did all the top buttons up, even though I had initially taken it off because I was too warm.
After lunch, a number of pilots joined in the remainder of the security component of the course.
Daniel started off by saying, in front of the whole class, that earlier, he had made a joke and it wasn’t received well, so He’ll try and do better. At which stage, some of the class turned around to look at me.
Two of my colleagues, who were participating in the course, checked on me to make sure I was ok.
I felt so humiliated and embarrassed that I felt compelled to cover up and I disengaged from the course.”
On 20 January 2021, the complainant provided a formal statement for the purposes of the investigation conducted by the respondent. The complainant’s investigation statement in relation to the morning session relevantly read (referring in the statement to the applicant by his given name of “Daniel”):
“6. At approximately 0900 hours, about an hour into the medical component of the course, Daniel attempted to demonstrate to the class how to ascertain whether or not a person requires medical attention.
7. As part of Daniel’s demonstration, he leaned forward and stared into my eyes and then slowly and deliberately lowered his eyes to my chest for a longer period of time. I estimate that he stared at my chest for about ten to twenty seconds.
8. Even though Daniel only stared at my chest for approximately ten to twenty seconds it felt like a lifetime. This made me feel uncomfortable and it felt awkward. There was absolute silence in the class, I believe all six [sic] people attending the class could see that Daniel was staring at my chest.
9. At this stage, Daniel then explained to the class that ‘you can look into a person's eyes to see if they are responsive’. He then laughed or sniggered and said words to the effect of ‘and then you may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing’. Daniel kept staring at me whilst making that comment.
10. At this point I said to Daniel ‘please stop, you are making me feel uncomfortable’ or words to the effect. Daniel just giggled it off and continued with the lesson.
11. My face turned red, and I felt embarrassed and humiliated that my face was turning red because of the comments that Daniel had made, and that he had laughed following his comments. Daniel then laughed again saying words to me to the effect of ‘Oh look, [complainant’s given name’s] face is the same colour as [given name of Ms P2’s] top’ [MsP2] was wearing the shell top from the Qantas uniform. [Ms P2’s] top had navy, red and fuchsia stripes.
12. I felt so uncomfortable that I put my cardigan back on and did all the top buttons up, even though I had initially taken it off because I was too warm.”
Following on from what I have written earlier about the absence in the complainant’s evidence before the Commission about the afternoon tea/coffee break, it may be reiterated that the complainant’s own statement provided for the purposes of the investigation made no reference to the afternoon tea/coffee break and/or being upset during that break.
The complainant’s evidence as to 7 January 2021 was that “the incident had a significant impact on me, and made me feel extremely uncomfortable”. The complainant said she has experienced jokes and comments directed towards her over the course of her lengthy employment with the respondent; however, “this particular incident was different and was distinguishably lewd.” The complainant added she had “never felt so singled out in a group” as had occurred with the applicant (whom she had not met previously) and in a group setting comprising other employees whom she did not know well. The complainant had made one previous work-related complaint over the course of her employment with Qantas.
The applicant’s version
The training presented by the applicant started with an explanation of the theory of safe manual handling, before changing to the “Medical section” using the relevant PowerPoint slides. The applicant led the discussion into what aviation medical involves, including the role of a first aider to promote, preserve and protect patients and the effects of altitude like hypoxia, being a lack of oxygenated blood to the brain, which is statistically the most common cause of illness at height. Slide 10 of the PowerPoint slides dealt with the Primary Survey DRSABCD (Danger, Response, Send for Help, Airways, Breathing, CPR, Defibrillator) Action Plan. The applicant went through the plan, with reference to the notes – including note 3, which stressed the need to look for breathing rather than touch the patient or listen. The applicant continued through the module and got to slide 11, concerning the Secondary Survey SAMPLE process. The applicant read aloud the text of the first line of slide 11, namely “S – What are the signs and symptoms?”, and then said: “Signs are what you see, symptoms are what they say. You don’t ask a person what are your signs and symptoms, that’s just silly.”
The applicant then began a practical demonstration of how a primary first aider would use this tool, adopting his usual practice of picking a class participant to demonstrate on. In the training course on 7 January 2021, the class participant the applicant picked was the complainant. On the applicant’s version, the following transpired.
· The complainant was sitting directly in front of where the applicant was standing. The applicant said: “You look at the person and ask, how are you going?”. The applicant looked at the complainant’s face and said to her “How are you going?”, as a demonstration.
· The applicant could not tell anything from the complainant’s face as she was wearing glasses and a face mask, and the two of them were 1.5m apart.
· The applicant then looked at the complainant’s chest area to process breathing. He waited for the duration of a breath, estimated by him as looking for about 2-3 seconds’ duration, then looked up.
· The applicant said: “Yes, you are observing skin colour, if pale, red –”, at which point the complainant interrupted, saying “Can we just move on”. For the reasons explained in his evidence, the applicant assumed that the complainant’s comment “Can we just move on” was referring to the time and a desire to get the session over and done with quickly.
· The applicant did not observe any change in the complainant’s demeanour. The applicant said that, normally, he also would have touched the subject demonstration participant on the shoulder to demonstrate a method for assessing temperature - but COVID-19 restrictions made this impossible.
· The applicant’s evidence was that he did not, at the time, understand that he was making the complainant feel uncomfortable. The applicant said that if he had realised this, or if the complainant had told him so, he would have apologised and used another participant to demonstrate the training module.
· The applicant continued instructing the class as a whole. He said: “You observe sweaty, dry skin, the breathing rate, yes. Do you have any allergies – the person may say no, but you may be thinking yes because their skin is red”.
· The applicant finished the particular training module and then everyone later went to the practical training area. There was some level of communication difficulties because of the mask-wearing during the practical training session, as detailed in the applicant’s evidence in a way that at least seems uncontroversial given the difficulties mask-wearing can raise. After the lunch break, three additional participants joined the training course. At the start of the session, the applicant said words to the effect of: “I will try to do better”, referring to the communication difficulties with the participants that he was having during the practical training session because of wearing the face mask.
· After moving the entire group from the lunch seating area to different classroom, the complainant had sat at the back of the room. The applicant did not think anything of this at the time, as it is common for people to choose their own seats.
The response of Qantas to the complaint
In response to the complainant’s complaint, the respondent commenced an investigation process. By letter dated 21 January 2021, Ms Turnbull advised the applicant that Qantas was conducting an investigation under its Standards of Conduct Policy in relation to allegations that involved him (“the allegations letter”). I do not reproduce the allegations here, because they are dealt with later in the decision in connection with the investigator’s findings. Among other matters, the allegations letter adverted to parts of the Standards of Conduct Policy. Again, those provisions are set out later in the decision.
The applicant was directed not to attend work until further notice while the allegations were investigated. By letter dated 18 June 2021, Ms Turnbull advised the applicant of the findings of her investigation (“the findings letter”), attaching details of the findings and details of the breaches.
The findings letter
In a much-abbreviated form, the allegations and the corresponding findings of the investigator were as follows in Attachment 1 to the findings letter:
Allegation 1: As part of the demonstration to the morning class participants on how to ascertain whether a person requires medical attention, the applicant:
(a) leant towards the complainant and stared into her eyes;
(b) lowered his eyes and looked towards the complainant’s chest; and/or
(c) kept his eyes on the complainant’s chest for a period of around 10-20 seconds.
Findings: Allegation 1(a) could not be confirmed. Allegations 1(b) and 1(c) were found to be substantiated.
Allegation 2: The applicant then said to the morning class participants:
(a) “You can look into a person’s eyes to see if they are responsive”; and
(b) “You may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing”, or words to that effect.
Findings: Allegations 2(a) and 2(b) were found to be substantiated. Acknowledging the words used in Allegation 2(a) might be said in a training course when explaining first aid principles, a further finding was made that no breaches of Qantas policies were made in relation to Allegation 2(a).
Allegation 3: While saying the words described in Allegations 2(a) and 2(b), the applicant:
(a) laughed or sniggered towards the complainant; and
(b) continued to stare at the complainant.
Findings: Allegations 3(a) and 3(b) were found not to be substantiated.
Allegation 4: The complainant said to the applicant “Please stop, you are making me feel uncomfortable” [and “Can we please move on”], or words to that effect. The applicant laughed at the complainant’s comment and continued with the lesson.
Findings: The investigator noted that the applicant confirmed the complainant said to him “Can we just move on”. Allegation 4 was found to be partially substantiated, to the extent it related to the comment made by the complainant to “Please stop, you are making me feel uncomfortable”. The investigator was unable to substantiate that the applicant then laughed at the complainant.
Allegation 5: The complainant felt embarrassed and humiliated by the comments and the applicant’s laugher set out in Allegations 2-4 and felt her face turning red. The applicant responded to the participants with “Oh look, [complainant’s given name’s] face is the same colour as [Ms P2’s given name’s] top”, or words to that effect.
Finding: Allegation 5 was found to be substantiated.
Allegation 6: The applicant started the afternoon session by saying to the participants “Earlier I had made a joke and it was not received well, so I’ll try and do better”, or words to that effect, which resulted in some participants turning around and looking at the complainant.
Findings: Allegation 6 was found to be partially substantiated (as to the alleged comments), but the investigator was not able to make a finding that the applicant’s comments caused some of the participants then turning around and looking at the complainant.
Allegation 7: The applicant knew or ought to have known that his actions described in Allegations 1-6 inclusive:
(a) were unwelcome, or unwanted; and/or
(b) could cause offence, intimidation and/or humiliation.
Findings: Based on the information available to the investigator, including the evidence of Ms [P2] and Ms [P1], the investigator found the complainant to be a credible witness. On balance, the investigator found Allegation 7 was substantiated, that is, the applicant’s comments directed at and/or in reference to the complainant were unwelcome, unwanted and caused her offence, intimidation and humiliation.
In relation to Allegation 1, the investigator identified the following finding: “Having regard to the information available to me, including the evidence of [the complainant, Ms P2 and Ms P1], I find you did look towards [the complainant’s] chest and remained looking at [the complainant’s] chest for a length of time that was long enough to make [the complainant] feel uncomfortable.” As to that, the investigator had before her the applicant’s estimate of 2-3 seconds, Ms P2’s estimate of 5 seconds and the complainant’s 10-20 seconds. Ms P1’s investigation statement referred, in part, to a time estimate – but that appears to have referred to a “definite pause” of a “few seconds” after the applicant made a joke (the contents of the joke could not be recalled by Ms P1) during which pause after the joke the applicant was “gazing downward”. Ms P1’s investigation statement identified she was unable to say exactly where the applicant was looking as she was seated to the “rear” of the complainant, that is “seated behind and slightly to the right of” the complainant. (I note in passing that, incongruently with the complainant’s evidence that Ms P1 was seated at a desk to her right and a photograph of the room layout indicating the seating arrangements of the participants on 7 January 2021 suggesting the same, Ms P1’s investigation statement indicated she was seated behind the complainant.)
The findings letter identified matters as to the findings as follows under the heading “Breaches”:
“In finding that Allegations 1 (b) & (c), 2 (a) & (b), 4, 5, 6 and 7 are partially substantiated, or substantiated, you have been found to be in breach of the Standards of Conduct Policy, Sections 4.2 (a), (b), (c), 5.4 (b), (c), and (d). …”.
Consequent upon the findings letter, a show cause process ensued. It is unnecessary for the purposes of this decision to detail the many steps or everything that unfolded during the period covering the investigation and the show cause processes to the eventual dismissal. It suffices to say that the culmination of the processes was set out in the dismissal letter dated 13 August 2021.
The dismissal letter
Among other matters, the dismissal letter identified that allegations found to have been substantiated were in breach of sections 4.2 (a)-(c) and 5.4 (b)-(d) of the respondent’s Standards of Conduct Policy and, in summary, the findings of the investigation were that on 7 January 2021:
· the applicant looked at the complainant’s “chest” and made comments of a personal nature in reference to her chest, whilst delivering a training course about Aviation Medical and Security to a number of other participants;
· the applicant’s comments drew unwanted attention to the complainant;
· the applicant’s comments made in reference to the complainant, and the attention drawn towards her, caused the complainant to feel embarrassed;
· the applicant’s actions were unwelcome, unwanted, and caused offence, intimidation and humiliation and arguably could constitute sexual harassment of the complainant.
The relevant parts of the Standards of Conduct Policy to which reference was made in the dismissal letter read:
“4.2 Employees are responsible for:
(a) their own behaviour and actions at all times;
(b) being aware of and complying with all Qantas Group policies;
(c) ensuring that their behaviour is, at all times, consistent with applicable Qantas Group policies, the Non-Negotiable Business Principles, the Qantas Group Beliefs and the Cardinal Rules;
(d) …
(e) …
…
5.4 Employees must treat other Staff with respect and work as a team. This includes, but is not limited to, Employees:
(a) …
(b) treating other Staff with trust, dignity, respect, fairness and equity;
(c) not engaging in in threatening or intimidating behaviour including verbal or written abuse, physical abuse or violence;
(d) not engaging in conduct which constitutes Discrimination, Harassment, Bullying or Victimisation (see sections 8 to 11 for relevant definitions);
(e) …
(f) …
(g) …;
(h) …”.
As to the conduct which constitutes discrimination, harassment, bullying or victimisation as referred to in section 5.4(d) of the Standards of Conduct Policy, the following definition is provided for harassment:
“9. Harassment
9.1 Conduct will constitute harassment if:
(a) it is unwelcome or unwanted; and
(b) it causes offence, intimidation or humiliation; and
(c) it occurs in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated; and
(d) it is behaviour of a sexual nature or it is on a ground that is covered by discrimination law (see section 8.4 above).”
9.2 Harassment can take many different forms. It may include verbal comments, physical contact, jokes, propositions, the display of offensive material or other behaviour which creates a hostile working environment.
9.3 Harassment is usually a pattern of behaviour but one act may constitute harassment if it is serious.”
It may be noted that the references to “chest” were explained by the complainant, for the first time in her oral evidence in the hearing, to mean her “breast area” and, later in that evidence, to her chest and breast area. As to this newly-introduced description in evidence before the Commission, the complainant explained that she was very embarrassed about the whole incident and she was just trying to make it as easy as possible for her to recall without having to use those terms.
The respondent submitted that “it is plainly evident that [the complainant] was not treated with trust, respect and dignity. Plainly enough, [the applicant’s] conduct amounted to harassment.” Moreover, a dismissal that had proceeded on matters including conduct that “arguably could constitute sexual harassment” of the complainant seemingly changed in form or character in the Commission proceedings to a dismissal with a strong emphasis on sexual harassment considerations – albeit I note that in the findings letter the investigator had advised the applicant that she was “particularly concerned by the Allegations relating to your inappropriate verbal comments of a sexually harassing nature towards a female colleague”. In referencing parts of the Standards of Conduct Policy, the respondent submitted that, as to looking at the complainant’s chest or breasts, the “conduct was clearly unwelcome, it clearly did cause offence, embarrassment and/or humiliation, [the applicant] concedes that the circumstances give rise to the possibility that [the complainant] would have been offended, embarrassed and/or humiliated, and the conduct was inherently sexual in nature” (emphasis not reproduced). Later, the respondent also submitted:
“… the allegation was never that [the applicant] “arguably” engaged in conduct contrary to Qantas’ policies. Indeed, the findings letter makes it plain that it was found that [the applicant] had breached the policies. The word “arguably” only appears in the letter of termination – in reference to sexual harassment. For avoidance of doubt, as communicated in the findings letter and as set out above, Qantas’ position is that Mr Matthews did breach the policy as alleged and that his conduct did amount to harassment; …”.
It is apposite to note that the respondent’s submissions incorrectly asserted, in the preceding extract, that the word “arguably” appears only in the dismissal letter. The dismissal letter directly replicated certain wording from the findings letter in such respects – being wording, the evidence indicated, that was included in the findings letter at the suggestion of a person other than the investigator. That is, the words “and arguably could constitute sexual harassment” of the complainant were added to the findings letter (being an inclusion which was also replicated in the dismissal letter, along with its other findings) following suggested amendments contained in an email dated 11 June 2021.
Consideration of the evidence
While the investigator in her findings letter found various allegations had or had not been made out, and the decision-maker in turn referred to the findings letter in the dismissal letter, it appeared that every matter, or practically every matter, that had been put in the original allegations was relied on by the respondent in the proceedings – and sometimes in an amplified way. This was the case even where the investigator’s findings were that some of the original allegations had not been substantiated - and, thereby, presumptively were not relied on in the decision to dismiss.
As such, it appears necessary to, in effect, start from scratch in terms of the contested allegations as between the complainant and the applicant – regardless of the presumptive bases and findings upon which the dismissal had proceeded.
The commencement of the demonstration
The applicant’s evidence was that, as part of a prelude in the demonstration that was to follow involving the complainant, the applicant said (to the class): “You look at the person and ask, how are you going?”. The applicant then looked at the complainant’s face and said to her “How are you going?”, as part of the demonstration.
The complainant’s written evidence was to the effect that, relevantly, there was an entirely uncontextualized commencement by the applicant of staring into her eyes, before lowering his “eye gaze”. That is, the complainant’s evidence-in-chief was:
“… I observed Mr Matthews attempt to demonstrate to the participants how to ascertain whether or not a person requires medical attention. As part of Mr Matthews’ demonstration, he first verbalised some different scenarios in which this may occur in the work environment during which time he was walking from one side of the room to the other, and then went into his demonstration of how you would ascertain whether someone was breathing or not. Mr Matthews then stopped in the middle of the room directly in front of where I was sitting. Mr Matthews leaned forward towards me, stared into my eyes, and made eye contact with me. …”.
The complainant’s version on this matter in her written evidence-in-reply was:
“… I deny that Mr Matthews said to me personally words to the effect of ‘how you are going?’. To the extent that Mr Matthews said words to this effect, I recall that they were directed to the group generally. There was no introduction and I otherwise rely on my evidence above in paragraph 11.”
Thus, in written reply evidence which was filed and served before giving oral evidence in the hearing, the complainant acknowledged that the applicant said words to effect “How you are going?”, but, to the extent the applicant said words to this effect, the complainant denied he said those words to her personally and recalls that those words were directed to the group of participants generally.
As to the complainant’s oral evidence in cross-examination, following question was put by counsel for the applicant and answered by the complainant as follows:
“I see. He looked you in the eyes and said, ‘How you going?’ Do you recall that?‑‑‑Yes.”
As such, the combined operation of the complainant’s written reply evidence and her cross-examination before the Commission entails the finding that applicant said words to the effect of “How are you going?”, both (a) to the class generally; and (b) while looking her in the eyes.
Having considered the evidence of the applicant and the complainant, I find that the applicant did not just launch into staring into the complainant’s eyes in the manner described in her evidence-in-chief. I accept the applicant’s evidence as to the context and what he said, both to (first) the class generally and (second) to the complainant specifically. Indeed, a combination of the complainant’s written evidence-in-reply and her cross-examination effectively renders this formerly contested matter as now being, broadly speaking, a matter of common evidentiary ground. The applicant had signposted matters as to the demonstration.
What happened next in the demonstration – length of time
The question of the length of time that the applicant looked at (however described – with other descriptors including “gazing” and “staring”) the complainant’s chest was a matter of disagreement in the contested versions in the evidence of the applicant and the complainant. I will return later to the descriptor of the part of the complainant’s anatomy, but for now I will use the word “chest”. The complainant’s version was that the length of time was 10-20 seconds. The applicant’s version was that the length of time was 2-3 seconds. For the reasons that follow, I find that the length of time was not, as the complainant contended in her evidence, 10-20 seconds.
The cross-examination of the complainant indicated her sense of time was effectively distorted during the demonstration. For example, some of questions and answers in the complainant’s cross-examination on the topic of the length of time involved the following exchanges:
“You say he stared in silence [at your chest] for 10 to 20 seconds?‑‑‑(No audible reply)
Well, you say at least that length of time?‑‑‑Yes.
That is quite a long time?‑‑‑It actually felt much longer, to be honest with you.
I want to come to that in a moment, but you would accept that 10 to 20 seconds of an instructor, in silence, staring at someone is going to look like a long time to any observer?‑‑‑I will not comment on what other people may think, but that's what it was like for me.
Sure. If you saw someone standing in silence for 20 seconds, you would remember it in a situation like that?‑‑‑I may have.”
…You’ve said it a couple of times, time was moving really slowly for you during this period, wasn’t it?‑‑‑It felt like that, definitely.
You said as early as your complaint that it certainly felt longer to you. That’s what you said to your supervisor?‑‑‑Yes.
And you said in your statement it expanded, it felt like a lifetime?‑‑‑Yes.
You accept that your perception, what you were feeling, was a lot longer than what was actually happening?‑‑‑It’s possible, yes. Obviously it wasn’t a lifetime.
No, I accept that. But your estimate of time has been affected by how it felt to you. Is that correct?‑‑‑No, that is my recollection, that that’s how it felt. So I don’t know exactly the time, but for me that’s what it felt like.
Yes, what it felt like when you were having this sensation that time was moving incredibly slowly. Yes?‑‑‑Yes.
Of course you’ve never been made aware before that [Ms P1] saw [the applicant] looking at you only for a few seconds?‑‑‑No.
And you’ve never been made aware before that [Ms P2] says it was only five seconds - said to Qantas it was only five seconds?‑‑‑No.”
The complainant’s evidence in cross-examination indicated that the eye staring was probably 10 seconds (albeit feeling longer), immediately followed by the chest staring of 10-20 seconds (albeit also feeling longer). That is, the complainant’s version is that the applicant stood in complete silence in front of a class of other participants staring at her for an uninterrupted period of, fully, up to about a half a minute (albeit feeing longer).
Having regard to the complainant’s distorted sense of the time in relation to the demonstration, as illustrated by way of example in the extracts of evidence above, I find that the applicant’s estimate is more reliable than the complainant’s estimate concerning length of time concerning the chest staring/looking.
It is relevant to note that in cross-examination the complainant said: “Yes, it felt like a lifetime. Obviously it wasn’t a lifetime. But I said 10 to 20 seconds, 10 seconds, I will accept that. But if someone said less, that’s their perception. No one was sitting there with a timer.” As such, the complainant appeared to accept 10 seconds for the chest component. But even if the applicant’s highest estimate of 3 seconds was too short by a matter of seconds and if the complainant’s lowest estimate at 10 seconds of chest staring was too high by a matter of seconds (which I firmly consider it was, in the case of the complainant’s estimate – even at 10 seconds), then what is left - in the end - is a tiny difference in terms of seconds in time.
On the question of length of time in relation to the chest, I accept the applicant’s evidence as being the better or preferred estimate at 2-3 seconds as against the complainant’s estimated 10-20 seconds. (I do not understand from the evidence that it was ever previously contended that the applicant’s eye interaction had lasted for 10 seconds in addition to the 10-20 seconds of looking at her chest.)
Where did the applicant look after the eyes?
The effect of the applicant’s evidence was that the section of the complainant’s body that he looked at was the area of visible skin above the line of her scoop-necked T-shirt. Until the complainant gave oral evidence in the hearing, no issue ever seems to have arisen that the applicant looked at the part of the complainant’s anatomy variously referred to as her “chest”, “chest area” and “upper chest area”. The words chest, chest area or upper chest area were the subject of reference in all preceding discussions and documents concerning the complainant’s complaint culminating in the dismissal. Indeed, the dismissal letter itself referred to chest, with quotation marks buffering that word in the text of the letter.
The applicant was the first witness who gave evidence in the hearing. In a surprising turn in the cross-examination of the applicant by counsel for the respondent, surprising given that previously there had never been any suggestion – anywhere – that the part of the anatomy involved was the complainant’s breasts or breast area, the following exchanges occurred:
“You then moved your eye gaze down towards her chest, and just so there’s no ambiguity here, to the breast area on her chest. Is that right?‑‑‑Can you repeat that for me please?
You moved your eye gaze down towards her chest, and to avoid any ambiguity, when I say chest, I mean to her breast area. Is that right?‑‑‑
No, did you say?‑‑‑Correct.
Where do you say you were looking?‑‑‑(Name anonymised) was wearing a T-shirt and I was looking at her chest area, which was the exposed skin above the line of the T-shirt.
So, you were looking at her neck, is that your evidence?‑‑‑No, I said chest.
Chest, so just below the neck area. You say your eyes didn’t look down any further than that. Is that right?‑‑‑Correct.”
Having introduced the proposition about the applicant looking at the breast area, there later followed a series of more generalised questions put by counsel for the respondent to the applicant which included multiple references to “breast area” and “breasts”.
Not only were the questions put by counsel for the respondent to the applicant surprising given that there had never been any mention anywhere to that point about the complainant’s breasts or breast area, but it also proved to be the case that the questions put in cross-examination seemed to show remarkable prescience given what was later to arise in the complainant’s cross-examination.
The complainant was the second witness to give evidence in the proceedings. When the complainant was cross-examined by counsel for the applicant, the following exchanges occurred:
“And then he moved, he lowered his gaze?‑‑‑Correct.
To your chest, is the phrase you use in your statement?‑‑‑To my breast area, definitely, yes.
You’ve never used the word ‘breast area’ in any of your statements, have you?‑‑‑ I want to be very clear with where his gaze was, because ‘the chest’ can be quite a subjective term. I want to be very clear of where his eyes were.
Do you accept that the term ‘chest’ is ambiguous?‑‑‑Yes.
And you never, in any statement that you provided to Qantas, or indeed anything you've written down before today, said ‘breast area’, did you?‑‑‑I was very embarrassed about the whole incident, and I was just trying to make it as easy for me to recall as possible without having to use those terms.
Sure. And so the answer is no?‑‑‑Correct.
And has it been suggested to you before giving your evidence that it might be a good idea to say ‘breast area’ today?‑‑‑No, not at all.
…… At the time where he said to you – sorry, said to the class I should say – ‘You may have noticed I was deliberately staring at (Name anonymised)’s chest’?‑‑‑Yes.
He’d at that point lifted his gaze?‑‑‑Yes.
Yes. And you then proceeded to look at – and because it was the comment, in part, that shocked you. Is that – have I understood your evidence right?‑‑‑Well, it was the whole thing that he actually – it was more really that he had stared at my chest and my breast area for so long and then actually said what he said that he had deliberately looked there and it just made me feel extremely uncomfortable and very hot in the face and that’s when I said what I said.”
The meaning of “chest” was never described to the applicant during the investigation and show cause processes as meaning “breasts” or “breast area”. It may be noted that the respondent was later to submit in closing submissions that “Much is made out of the use ‘breast area’ rather than ‘chest area” at the hearing …”. Indeed it was – and all introduced in an effectively unheralded way by counsel for the respondent during cross-examination of the applicant and the late-arising evidence of the complainant about what she had earlier meant by “chest”. In any event, it appears I am now called upon to make conclusions about something that had not been an issue, or a live issue, in connection with the dismissal itself. For example, the applicant submitted “The point is there is a genuine difference between breast and chest. It is an important distinction in these proceedings in that: a. it greatly affects the seriousness of the allegation, including whether it can rationally be described as sexual harassment …”.
I make the following findings. First, I find the applicant’s principal point of visual focus was just as he described in his evidence, namely, the complainant’s chest area being the exposed skin above the neckline of the T-shirt, i.e., as in looking at the rise and fall of the complainant’s (upper) chest – because I accept the applicant’s evidence in such respects as to where he was looking. That said, second, I doubt it would have been possible to visually focus - as if with some type of laser-point precision - solely or exclusively on the upper chest area above the scooped neck of the complainant’s T-shirt line, without that focus also incidentally encompassing the complainant’s breast area or at least the upper parts of her breasts/breast area, given the applicant was standing a minimum of approximately 1.5m to 2.0m away from the seated complainant. Third, I specifically reject any suggestion that the applicant was involved in any form of ogling or similar and, in so finding, I do not accept the complainant’s characterisation of allegedly “distinguishably lewd” behaviour by the applicant, albeit while accepting that may be what she perceived at the time and/or now. Last, while references to chest and breasts are sometimes used synonymously, I propose also to add that the late introduction into this case of references about breasts and breast area seems to me potentially to involve at least the appearance of an attempted bolstering of an otherwise questionable and/or highly contestable dismissal ground, namely the applicant’s actions “arguably could constitute sexual harassment” of the complainant.
Contested comments and/or characterisations
Relevantly, the disputed comments and/or characterisations from the morning session of the training were as follows.
The effect of the complainant’s evidence was that:
· After the applicant had stared at the complainant’s chest (subsequently clarified, as noted above, to mean her breasts or breast area) he looked up to her eyes and he said words to the effect of “You can look into a person’s eyes to see if they are responsive”.
· The applicant then sniggered or laughed and said words to the effect of “And then you may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing.”
· After these comments by the applicant (and with the complainant having exchanged shocked looks with either Ms P1 or Ms P2 and having taken her cardigan out of a bag, put it on and fully buttoned it), the complainant said to the applicant words to the effect of “Please stop, you are making me feel uncomfortable. Can we please move on?”. The applicant did not respond to, or acknowledge, the complainant’s comment. The applicant laughed and continued with the training, characterised by the complainant as involving a laugh-off of her request for him to stop.
· Shortly thereafter, the applicant laughed again and said words to the effect of “Oh look, [complainant’s given name’s] face is the same colour as [Ms P2’s given name’s] top”.
The effect of the applicant’s evidence was that:
· After having looked at the complainant’s chest area to process breathing for about 2-3 seconds’ duration, the applicant then looked up and continued the discussion about what a primary first aider is processing.
· The applicant said words to the effect of: “Looking at the face you are looking for eye condition – weeping, red, if the pupils are unequal or dilated or even just eyelids blinking”.
· The applicant said words to the effect of “What else are you observing?”, whereupon one of the participants raised his hand and suggested “Colour” and another participant suggested “Breathing”.
· The applicant said: “Yes, you are observing skin colour, if pale, red –”, at which point the complainant interrupted, saying “Can we just move on”. The applicant assumed the complainant was referring to the time and a desire to get the session over and done with quickly.
Alleged sniggering and/or laughing
I will deal first with the complainant’s allegations about the applicant sniggering and/or laughing, being allegations which were denied by the applicant. This is an appropriate starting point, because these allegations about sniggering and/or laughing infuse parts of the what the complainant alleged in relation to what she contends otherwise was said by the applicant.
In turning to my consideration of the evidence, the questions and answers in the cross-examination of the complainant by counsel for the applicant are extracted in part:
“And you say he said something like, ‘And then you may have noticed I was deliberately looking at (Name anonymised)’s chest to see if she was breathing’?‑‑‑Yes.
…
… But he never said anything else about your chest?‑‑‑No, he just said to everyone that he was looking at my chest. He said that, ‘You’ll notice that I deliberately looked at (Name anonymised)’s chest.’And nothing else, about your chest that is?‑‑‑Don’t remember at the moment, no.
Well, if you remembered, it would be in your statement, wouldn’t it?‑‑‑Yes.
You say he then either laughed or sniggered?‑‑‑Yes.
You’re not sure which?‑‑‑Well, he laughed and/or sniggered. It was a long time ago, so - to me it’s the same. He didn’t laugh out loud. A laugh, to me, was the same.
Okay. So you heard him make a noise, and you interpreted that as him laughing at you?‑‑‑Yes.
Again, an instructor laughing at a student would stand out to you if you saw it happen to someone else?‑‑‑Not necessarily. It depends on the context of what had happened.
And you’ve never been made aware before that [Ms P2] doesn’t recall any laughter?‑‑‑I’m not aware of that.
[Ms P1] doesn’t recall any laughter. You’ve never been made aware of that?‑‑‑I’m not aware of that.
You’ve never been made aware that [Mr P3] didn’t recall any laughter?‑‑‑No.
And you’ve never been made aware that [Ms P4] heard laughter, but thinks it was you? I’m just asking if you’re aware that that’s what she said?‑‑‑No, I’m not aware.
Nobody from Qantas raised that issue with you?‑‑‑No, I haven’t spoken to anyone from that class, or any of my colleagues, for that matter, about this.
So in this small classroom it appears only you heard the laughter?‑‑‑Well, if no one else said that they heard it, then yes, that must be correct.
So you would accept that it was a very minor sound?
…
It was relatively quiet?‑‑‑It was loud enough for me to hear.Yes, but relatively, in the grand scheme of things, quiet?‑‑‑Yes.”
I find that the applicant did not snigger or laugh in the pejorative manner suggested in the respondent’s case. Indeed, I find that the applicant did not snigger or laugh (or laugh-off any comment by the complainant) at any point during the morning session relevant to the interactions between the complainant and the applicant. The complainant took some initial sound she heard to be a snigger or laugh, which I find it was not. I also find that to the extent the applicant supposedly engaged in further laughs as described in the complainant’s evidence about the first alleged snigger/laugh it is, considered in the context of what she said about the first alleged instance, highly improbable that there were further laughs.
It follows that I accept the applicant’s evidence that he did not engage in the alleged sniggering and laughing. That is, the evidence in the cross-examination of the complainant indicated that what the complainant initially heard, taken at its highest, was the applicant made a noise which she interpreted as him sniggering or laughing, and then engaging in further laughing at subsequent points. (I note, in passing, that in her investigation statement the complainant asserted initially that the applicant had “giggled off” a comment she allegedly made, but that characterisation did not feature in her evidence before the Commission.)
It may be noted that the complainant’s allegations about the applicant having engaged in sniggering/laughing were, to the extent that those findings have any relevance, found not to have been substantiated by the investigator. Even though the respondent’s own investigation found the sniggering/laughing allegations were not substantiated, the submissions for the respondent in the proceedings before me referred to the applicant having sniggered/laughed, and later having laughed again, in the manner and at the junctures described in the complainant’s evidence. Moreover, the respondent’s submissions elevated matters in submitting, for example, the applicant had also “… smirked in the face” of the complainant’s “discomfort” – but the evidence of the complainant did not refer to any alleged smirking and nor did her earlier investigation statement or initial written complaint. The respondent’s submissions addressed such matters, I reiterate, notwithstanding the fact that the alleged sniggering/laughing described by the complainant was found not to have been substantiated by the investigator - and presumptively was not, thereby, relied upon as a reason for the dismissal. As to that, the applicant’s submissions aptly put matters this way: “The lack of support for key aspects – e.g., laughter – led the initial investigator to be unable to make the findings that Qantas now seeks [from the Commission].”
Contested comments and/or characterisations
With the alleged sniggering and laughing now pared from what was said by the complainant to have occurred, I turn to the contested comments and/or characterisations of what was said, albeit while leaving-in the references to the alleged sniggering/laughing – but only to contextualise the complainant’s version of what was said in connection with alleged words or comments.
Comment about eyes/responsiveness
The effect of the evidence of the complainant was that after the applicant finished staring at her chest (now clarified to refer to her breasts/breast area), the applicant looked up to her eyes saying: “You can look into a person’s eyes to see if they are responsive”. Relevantly in this regard, the cross-examination of the applicant by counsel for the respondent included the following question and answer:
“… After you had finished gazing at (Name anonymised)’s chest, you then said to the room, along the lines of ‘You can look into a person’s eyes to see if they are responsive.’ Is that right?‑‑‑It was a little bit more detailed than that, but I think that was part of the words, yes.”
Thus, the applicant agreed in his cross-examination with what the complainant contended was said, albeit with the qualifications that what he said was a little bit more detailed than just the words “You can look into a person’s eyes to see if they are responsive.” As to that, applicant’s evidence included that, in a continuing discussion about what a primary first aider is processing, the words he said around this matter were directed to the class participants generally - as opposed to commenting directly to the complainant while looking (only) into her eyes - were to the effect of: “Looking at the face you are looking for eye condition – weeping, red, if the pupils are unequal or dilated or even just eyelids blinking, as a response.”
I find that the applicant did make a comment about eyes and responsiveness. Any such comments were made, I find, in the context of first aid instruction and in an entirely innocuous way – and not as, for example, some form of double entendre as the complainant seemed to suggest. That is, the complainant recounted the phrase “You can look into a person’s eyes to see if they are responsive” as an identified source of concern to her and she otherwise used the descriptor “distinguishably lewd” as to what unfolded in the morning session of the training, including the assertion the applicant had “gazed” into her eyes for, the complainant’s cross-examination indicated, “probably about 10 seconds” albeit feeling very much longer.
Comment about deliberately looking at complainant’s chest to see if she was breathing
The complainant’s evidence was to the effect that, having made the comment about eyes and responsiveness, the applicant then relevantly next sniggered/laughed and said words to the effect of “And then you may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing.” The applicant’s evidence was that he did not say these words.
The demonstration involving the complainant was relevantly concerned with training participants in what to do and what to be alert to. Slide 10 of the PowerPoint presentation included text which read at one of the dot-points (uppercase in original): “When assessing breathing, LOOK for breathing. …”). Slide 11, concerning the “S” in the acronym/mnemonic SAMPLE, referred to “signs” and “symptoms”.
The training session was an interactive adult learning environment. It is not disputed that the applicant looked at/into the complainant’s eyes and looked at her chest. This included looking at a person’s chest – here, the complainant’s chest – in assessing the breathing by looking, as a demonstration. It would seem an unremarkable thing, in that context, to accept that the applicant said something about breathing in connection with having conducted a looking demonstration in such respects. How this unfolded necessitates a finding as to whose version is to be preferred – the applicant’s version or the complainant’s version.
Consistently with the applicant’s description of his continued discussion about what a primary first aider is processing, I accept the applicant said words to the effect of: “Looking at the face you are looking for eye condition – weeping, red, if the pupils are unequal or dilated or even just eyelids blinking, as a response” and then said “What else are you observing?”, whereupon one of the participants raised his hand and suggested “Colour” and another participant suggested “Breathing”.
It also seems counterintuitive that the applicant would have asked the class participants if they had noticed that he was deliberately staring at the complainant’s chest so as – and I emphasise these alleged words – to see “if she was breathing”, i.e., whether she was actually breathing at all as opposed to, for example, something related to observing breathing or the rate of breathing.
I prefer the applicant’s version and, in so concluding, also find that the applicant did not say words to effect as those alleged by the complainant. Given I prefer and accept the applicant’s version of what said around the breathing matter to the complainant’s version, I will add this: It is unclear to me why the complainant seems to me effectively to have extrapolated what was being said about breathing in this interactive adult learning environment into the alleged comment to participants about noticing him deliberately staring at her chest to see if she was (literally) breathing – but it is similarly unclear to me why the complainant similarly seemingly extrapolated what she now apparently concedes was some indistinct sound as the applicant being involved in sniggering or laughing. Based on the evidence before me, I consider the complainant misapprehended what was said about breathing, just as I consider she misapprehended the alleged snigger or laugh and - as her evidence otherwise indicated – she had a distorted sense of time in connection with what was unfolding. Moreover, to the extent anything was said about breathing, this was not preceded by some form of comment about eyes/responsiveness with, relevantly, the inappropriately suggestive characteristics apparently assigned by the complainant.
Comment about “stop”, “uncomfortable”, “move on”
The effect of the complainant’s evidence was that she said to the applicant words to the effect of “Please stop, you are making me feel uncomfortable. Can we please move on?”. The applicant did not respond to, or acknowledge, the complainant’s comment; he laughed at her request for him to stop and continued the training.
· the complainant once again felt embarrassed and humiliated;
· it felt to the complainant the applicant was repeating what had happened in the morning session without him having to say anything;
· the complainant felt quite upset and she wanted to cry;
· the complainant did not want to leave the training room as she considered doing so would draw more attention to her;
· the complainant turned to Ms P1 and assumed from Ms P1’s facial expression that Ms P1 was concerned about her;
· as the complainant felt uncomfortable, she again put on her cardigan and again fully buttoned it (i.e., in circumstances where she had taken it off in the lunch break, following the first wearing with full buttoning in the morning session);
· for the rest of the afternoon training session, the complainant felt very disengaged and was not participatory in the training session due to feeling uncomfortable from the experience during the demonstration; and
· the complainant wanted the day to finish as soon as possible, as she felt so uncomfortable.
Separately, as outlined earlier, the investigator had before her signed statements from Ms P1 and Ms P2. The general effect of relevant parts of those statements was that during the afternoon tea/coffee break after this comment had been made by the applicant at the start of the afternoon session, the complainant was visibly upset, crying and was comforted and hugged; and the complainant referred to the unwanted attention from the applicant having made her upset and having triggered deeper emotional issues. A question was put in cross-examination to the complainant about whether she recalled the alleged “deeper emotional issues” exchange. While the question appears to have mistaken the morning session and the afternoon session (and one of the respondent’s comparison tables similarly appeared also to have mistaken this alleged exchange as occurring during the lunch break), the complainant’s answer, in any event, was “No”.
In cross-examination, the following questions were posed by counsel for the applicant and answered by the complainant about the afternoon session comments by the applicant:
“Mr Matthews came in and he said something like, ‘Earlier I’d made a joke and it wasn’t received well. So I will try and do better’?‑‑‑Yes.
He didn’t mention you by name?‑‑‑No. But he was looking at me when he said the statement.
And he wasn’t staring at you in the same way as before was he?‑‑‑No.
No. He didn’t explain what he meant?‑‑‑Not to the – no.
He didn’t directly refer to the sample tool demonstration module?‑‑‑No.
He hadn’t really made any jokes as such in there, had he?‑‑‑No. No. He thought it was a joke.
And so you just assumed he was talking about the interaction between you?‑‑‑Yes.
You’ve read his evidence in these proceedings?‑‑‑Yes.
You understand he says, no he meant he was talking about something else?‑‑‑Yes.
It’s possible you misunderstood him in this particular exchange?‑‑‑No.
Okay. You accept that ‘I’ll try and do better’, is not an objectively offensive thing to say to you?‑‑‑No, but I think by him saying that he made a joke that he’ll try and – and it wasn’t received well – try to do better – is acknowledging that what he did was not right. That his behaviour was not right.
And you have just inferred all that and the sentence?‑‑‑Yes.
…Okay. Well, when we’re talking about what he said when he came in?‑‑‑Yes.
Earlier I’d made a joke. It wasn’t well received?‑‑‑Yes.
I’ll try and do better?‑‑‑Yes.
You assumed that was about you?‑‑‑Yes.
And you were not, at the time, prepared to give Mr Matthews the benefit of the doubt that you might misunderstand that?‑‑‑I was very – so upset – I just disengaged from the whole class. I just wanted it over and done with so I could go home.
Okay. And you know now that he says he was actually talking about something else but you’re not prepared to give him the benefit of the doubt, are you?‑‑‑No.”
Despite the complainant’s own firm views about the matter, it is unclear on the evidence what “joke” was being referred to. The applicant allowed for the possibility during the investigation phase that he may have joked about something or other during the morning session. For example, the applicant postulated “comically” asking who had said something in connection with the communication difficulties brought about by, during the practical session, both the applicant and the participants wearing face masks. There had also, for example, been some earlier suggestions about any reference to a joke possibly referring to his comments about a CPR Annie doll. That is, the applicant is recorded as describing matters in the following way concerning the possibility of a joke falling flat in connection with a CPR Annie doll:
“[Investigator] - Dan, I have now spoken to a number of witnesses who tell me you have in fact said the words as alleged. I am trying to understand what you might have been referring to, or what joke you might have referenced – can you recall any more information to help me understand at all?
[Applicant] - so what you are saying is that some witnesses have said I said ‘earlier I had made a joke etc’ comment, is that correct?
[Investigator] - correct
[Applicant] - I can’t recall if I said joke, or the word spoke, I just don’t know. What I had observed though, when doing the CPR I recall I referred to the Annie Doll, it is a doll not a human being. I might have said she is lying flat on her back; I might have made a joke about that...something like you won’t see these persons lying like this if they are collapsed. I looked for a response, there was none...I saw a person to my left moving forward maybe to hear me, this alerted to me my communication behind my mask was hindered. So later on, I made a brief that I was aware that I would amend my communication (later on)
[Investigator] - so the joke was around the Annie Doll?
[Applicant] - I am not a comedian, so I don’t know if I was funny about the Annie Doll, there was no response from anyone, ...this was the medical practical. Have you got some feedback from the course, around my efforts on the course and my voice?
[Company representative] - Dan, do you mean direct feedback, or have you received some feedback you want to share, i.e. via emails etc?
[Applicant] - no it is in my response pack, page 3.
[Company representative] - thanks yes, we have that...I just thought you might have some other form of feedback you wanted to share
[Applicant] - no
[Investigator] - Why do you think a number of witnesses would say you said that?
[Applicant] - I don’t know what you mean
[Union representative] - What [the investigator and the company representative] are saying is that several witnesses have corroborated what you said, or what is alleged
[Applicant] – that is fine, they might but what I am saying is I don’t recall saying that...I only recall what I have told you I recall saying. I can’t tell you anymore.”
Counsel for the respondent submitted that the “late, and unexplained, concession is entirely inconsistent with the variety of versions” given by the applicant about what was said in the afternoon sees and that his “evidence on this subject, like others, speaks volumes against his credit”. I do not accept that characterisation. Despite the respondent’s submissions that the applicant was not honest with Qantas or the Commission, I do not consider the evidence on the topic of what was said in the afternoon session to be a manifestation of alleged dishonesty by the applicant - any more than I would characterise as dishonesty: (a) the complainant’s newly-introduced allegation in her evidence before the Commission that the applicant was staring (specifically) at her breasts or breast area, rather than her chest or chest area; or (b) the complainant’s concession in cross-examination that she recalled that the applicant looked her in the eyes and said, “How you going?” being a comment following upon his similarly-worded comment to the class generally.
Consideration - statutory criteria
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission
must take into account certain criteria specified in s.387 of the Act. I turn to a consideration of these statutory criteria.
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
The dismissal of the applicant concerned the applicant’s conduct on 7 January 2021. The findings of the investigation as set out in the findings letter, and replicated in the dismissal letter, were that on 7 January 2021:
· the applicant looked at the complainant’s “chest” and made comments of a personal nature in reference to her chest, whilst delivering a training course about Aviation Medical and Security to a number of other participants;
· the applicant’s comments drew unwanted attention to the complainant;
· the applicant’s comments made in reference to the complainant, and the attention drawn towards her, caused the complainant to feel embarrassed;
· the applicant’s actions were unwelcome, unwanted, and caused offence, intimidation and humiliation and arguably could constitute sexual harassment of the complainant.
The dismissal letter identified that allegations found to have been substantiated were in breach of sections 4.2 (a)-(c) and 5.4 (b)-(d) of the respondent’s Standards of Conduct Policy.
I have set out in my earlier consideration of the evidence and my findings as to the applicant having looked at the complainant’s chest and/or breasts or breast area and what was said as between the applicant and the complainant. I do not repeat those matters.
In my assessment of such matters, I find that central planks of what was described by the complainant as to what unfolded on 7 January 2021 did not occur and, thereby, did not ground a valid reason for the dismissal effected by the respondent considered in the context of the applicant’s conduct (including its effect on the safety and welfare of other employees – relevantly the complainant).
As to what was set out in the dismissal letter, I also find that the applicant did not make “comments of a personal nature” in reference to the complainant’s chest; he made comments that were (relevantly only) matter-of-fact and otherwise unremarkable when considered in the context of the first aid instruction he was providing to the class participants about matters whilst delivering a training course, structured by reference to the sequence of information in the numbered PowerPoint slides then being shown. As the applicant’s submissions correctly noted: “It is not disputed that Qantas has a legitimate interest in managing bullying and harassment within its workplace. This does not mean that every moment of offence caused generates a valid reason for dismissal; questions of fact and degree remain important. On Mr Matthew’s evidence, his conduct could not justify his dismissal. … This is so notwithstanding that [the complainant] may well feel genuinely aggrieved or upset. Mr Matthews must be found to have engaged in some conduct objectively warranting his dismissal; the subjective reaction of another is not itself enough.”
As to the second matter in the dismissal letter, the applicant’s comments drew attention from the other participants – as might be expected when a training instructor selects a class participant as his or her subject in a first aid demonstration. That attention was unwanted by the complainant, as her evidence made plain; but this was plainly very much conditioned by the complainant’s perceptions of what was unfolding and her evidence as to what she and the applicant allegedly said or did, the time involved and the like – with parts of her contested evidence not preferred or accepted by me as having been said or done.
The third matter in the dismissal letter in some ways traverses what was set out in the second matter as to the applicant’s comments made in reference to the complainant and the attention drawn towards her, with the additional finding that these matters “caused the complainant to feel embarrassed”. Separately from reiterating my findings in relation to the second matter as to the complainant’s perceptions of what was unfolding and her evidence as to what she and the applicant allegedly said or did, the complainant’s evidence squarely indicated that she felt embarrassed. The complainant’s evidence in such respects, included, but was not limited to: that the demonstration felt particularly uncomfortable for her; feelings of confusion and shock, including turning with a shocked look to another participant who appeared to the complainant also to be shocked by the demonstration (and, later in the afternoon, turning to a participant whom the complainant considered was concerned for her); donning a cardigan and fully buttoning it to try to draw attention away from herself; perceiving that the applicant had sniggered and/or laughed at her on a number of occasions; feeling her face heating-up, which she assumes had turned red; feeling embarrassed and humiliated because her face was turning hot and red; feeling the applicant again singled her out in front of the class, in disregard of her previous comment to the applicant to “move on” and feeling even more embarrassed. In the afternoon session, after the comment “Earlier I had made a joke and it was not received well, so I’ll try to do better, the complainant once again felt embarrassed and humiliated because her evidence was that she had noticed in her peripheral vision that some of the participants turned around to look at her. The complainant’s evidence in such respects is as it is (although, in passing, the investigator did not find that the allegation about other participants turning to look at her was substantiated). The complainant felt quite upset and she wanted to cry. As the complainant felt uncomfortable, she again put on her cardigan in the afternoon session and again fully buttoned it. The complainant felt very disengaged and non-participatory due to feeling uncomfortable from the experience during the demonstration; she wanted the day to finish as soon as possible as she felt so uncomfortable.
All things considered, the matter of whether what the complainant described was proportionate is, respectfully, to be questioned – and this is putting aside what the investigator took into account from the investigation statements of Ms P1 and Ms P2 as to the crying that occurred during the afternoon tea/coffee break - being a matter simply not addressed in the complainant’s own investigation statement and/or her evidence before the Commission (except to say she in cross-examination that she did not recall a discussion referring to “deeper personal issues”).
The fourth matter in the dismissal letter was that the applicant’s actions were unwelcome, unwanted, and caused offence, intimidation and humiliation and arguably could constitute sexual harassment of the complainant. The foregoing matters appear largely to pivot on the respondent’s determination as to the complainant’s description of matters concerning her subjective assessments and/or reactions to what unfolded. As to that, I accept the submissions for the applicant which read (emphasis not reproduced): “… the fact that [the complainant] is upset does not mean [the applicant] has done something which objectively warrants his dismissal” and that “… the cornerstone of Qantas’ case is that [the applicant’s] conduct was ‘inherently sexual’. Ogling someone’s breasts is capable of being described in this way. Looking at their general chest region for the purpose of assessing breathing rate is not.” My acceptance of the submissions for the applicant in such respects tempers what was said in the dismissal letter that the allegations found to have been substantiated were in breach of sections 4.2 (a)-(c) and 5.4 (b)-(d) of the respondent’s Standards of Conduct Policy. On what was before me considered in the context of my findings, a dismissal based on the alleged breaches of the relevant policies falls away as a valid reason.
I find a valid reason for the dismissal related to the applicant’s conduct did not exist concerning the events in the training session on 7 January 2021. The investigation and the decision-making were, I consider, also imperfect in as much as, viewed in some ways, they focussed on the subjective reactions of the complainant rather than properly balancing with a fuller consideration of what unfolded and the context. Moreover, the older matters that were referred to as having been considered in the decision to dismiss cannot now reasonably be relied upon as stand-alone valid bases for the dismissal (and nor do I understand it is suggested by the respondent they could, albeit they are raised in opposition to any order reinstating the applicant). That is, these older matters would have lain dormant on the applicant’s personnel file but for the circumstances that unfolded following the complainant’s complaint and the respondent’s reliance on them as part of the decision-making rationale in the dismissal that ensued.
(b) Whether the person was notified of that reason and (c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
While the applicant’s submissions levelled various criticisms at procedural fairness-related issues, the evidence indicated that the applicant was notified of the reason for the dismissal in advance of the dismissal and was given the opportunity to respond, for example in the show cause phase. The applicant provided detailed responses during the processes undertaken by the respondent. Given my findings that the applicant’s conduct did not constitute a valid reason for the dismissal, it is unnecessary to dwell in the decision on the evidence and submissions about procedural fairness-type considerations.
The principal exceptions in terms of the respondent affording procedural fairness to the applicant were that: (a) the applicant was not notified that the allegation involved looking at the complainant’s breasts or breast area – and even the dismissal letter itself refers to the complainant’s “chest” (but that is not surprising or a criticism of the investigator or the decision-maker, because this contention about breasts/breast area arose for the first time only in the complainant’s evidence in the proceedings); and (b) the applicant’s conduct was, as now forcefully contended in the respondent’s submissions, “inherently sexual” and did constitute harassment.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions relating to dismissal. The applicant had the assistance of a representative of his union, the Australian Licenced Aircraft Engineers Association, in relevant discussions as well as in detailed the written communications.
(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
The applicant’s dismissal was conducted-related, so warnings about unsatisfactory performance before the dismissal do not appositely arise for consideration in this case.
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and (g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
The respondent is a major employer in the aviation industry with a sizeable number of employees (albeit various employees were, for example, stood-down in the 2021 period in question due to COVID-19-related impacts). The procedures that were followed by the respondent in effecting the dismissal were broadly consonant with the types of procedures that might be expected from an employer of that size and which has dedicated human resource management specialists or expertise, including those who assisted the investigator. I might add that I consider the investigator, Ms Turnbull, and the final decision-maker, Captain Boland, made their best endeavours to deal conscientiously with what they had before them. This is so notwithstanding the fact that I have respectfully reached various conclusions, based on what was in evidence before in the proceedings, which self-evidently differ in some key areas from the evaluative conclusions based on what was before them. Notably, in such respects, the complainant was not, in any sense of the word, cross-examined during the investigation about her account - as both she and the applicant were in the hearing before the Commission.
(h) Any other matters that the Commission considers relevant
There are three other matters that I should address.
The training video: The evidence of an official training video shown to the respondent’s employees as part of training modules with the respect to sexual harassment just cannot go unremarked, when considered in the context of certain of the findings concerning the applicant leading to his dismissal. That video was described in the applicant’s submissions in the following way (references not reproduced):
“The standard of conduct that Qantas has set, apparently for decades, is that a man who continues touching a woman on the leg and thigh after she has twice asked him to stop, has not engaged in ‘harassment’ because, to paraphrase, the woman in question initially invited the conduct through ‘provocative dancing’ and the man eventually stopped when asked.”
The evidence showed what seemed to be a decades-old training video, but one which, nonetheless, was still being shown to its employees around the time of the dismissal as part of a work-related sexual harassment training module used by Qantas. The video and what the training module identified as to the correct responses in relation to it were, frankly, ludicrous in terms of contemporary notions of what constitutes sexual harassment (and should have been recognised as ludicrous even in its day in its descriptive references to, for example, a woman dancing “provocatively” and the repeated, unwanted conduct of the man in the video). While the applicant’s submissions sought to make something of this, I did not consider this training module/video to be relevant to my determination of the application for an unfair dismissal remedy. What was relevant, instead, is that the applicant’s evidence and cross-examination indicated that the applicant personally has a proper appreciation of appropriate standards expected of him, including in relation to sexual harassment and other matters – and this was so notwithstanding this unfortunate training module that he had apparently undertaken in the course of his employment with the respondent.
Volunteering/consenting to participation in the demonstration: It is common ground that the applicant did not call for a volunteer to participate in the demonstration he conducted before involving the complainant. The complainant’s evidence noted that the demonstration was undertaken without asking for a volunteer and without her permission to participate in the demonstration, as did the submissions for the respondent in critical tones. (The complainant also said that what occurred was conducted without any “signposting”, but I have already dealt with that evidence – finding the applicant did say certain prefatory words and noting the complainant recalled in cross-examination that the applicant had indeed said some of those signposting words described in his evidence). As the applicant’s submissions noted, the applicant made appropriate concessions, including that, effectively with the benefit of hindsight, he should have asked for a volunteer.
Those matters noted, I also note the applicant’s evidence was that he would generally call for a volunteer for a demonstration, but did not do so on this occasion because the demonstration did not involve touching the complainant as the demonstration subject. The applicant said that, normally, he also would have also touched the demonstration participant on the shoulder to demonstrate a method for assessing temperature, but COVID-19 restrictions made this impossible. I consider it is relevant that this demonstration on 7 January 2021 did not, and could not, involve any touching due to COVID-19 social distancing requirements.
Here, it is common ground that the applicant and the complainant were always a minimum of 1.5m apart. The complainant estimates that she and the applicant were 1.5m to 2.0m apart. While there was no challenge to this evidence (or what appears to have been the applicant’s slightly lower estimate of 1.5m): (a) the complainant was seated in the second row with a desk in front of her; (b) then there was a passageway-type gap between the second row and the first row; (c) then there was an unoccupied chair and a desk in front of the applicant in the first row; and (d) there was no evidence that the applicant ever leaned on the unoccupied desk in the first row or evidence he was standing immediately proximate to it. While the complainant’s evidence indicated that the applicant leaned towards her during the demonstration, it was unclear what she contended this lean involved - but she did not contend, for example, that the applicant leaned onto the desk in the first row, let alone lean onto her own second-row desk. The demonstration included a breathing observation conducted, I have found, in the manner described in the applicant’s evidence. True it is that the applicant did not seek a volunteer before selecting the complainant as the demonstration subject, but it was a brief, physically well-distanced demonstration involving essentially fleeting, first aid-specific observations. The applicant did not, for example, physically demonstrate the Heimlich manoeuvre on a class participant without first asking for a volunteer or seeking permission.
The alleged chest comment: Even if it were the case that the complainant’s evidence about the words within the single alleged comment was taken at its highest and accepted as having been said by the applicant (albeit I have in fact preferred and accepted the applicant’s version of what was said around this matter), then I also say this: A first aid instructor saying to class participants “And then you may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing”, when considered in the context of my other relevant findings including the amount of time involved in looking and that there was no sniggering/laughing), just could not reasonably be considered to engage all the cumulative criteria in clause 9.1(a)-(d) (concerning harassment) and/or involve breaches of clauses 5.4(b)-(d) (concerning treating other staff with respect) of the respondent’s Standards of Conduct Policy.
Conclusion
I am satisfied the applicant was unfairly dismissed. Absent a valid reason for the dismissal, the dismissal was harsh, and unjust, and unreasonable. In the circumstances, I am also satisfied the applicant should have an unfair dismissal remedy. Reinstatement is the remedy that has been sought by the applicant and that is the primary remedy under the Act.
I have considered that the respondent’s submissions, which encapsulated the following matters as rendering reinstatement inappropriate. I have also identified the corresponding reply submissions for the applicant.
Ground (a): The respondent submitted that the applicant’s workplace behaviour has on multiple occasions contradicted the culture and behaviour expected of the trainers, which is expected to be that of a role model during training. As to (a), the submissions for the applicant were that the applicant’s prior conduct was not previously considered sufficient to render the relationship unworkable and cannot be relied on this way now absent an objective, separate basis justifying the severing of the employment relationship.
I accept the submissions for the applicant. I have found that a valid reason did not exist for the dismissal because the alleged conduct just did not occur and/or did not occur in the manner contended by the respondent. Against that background, past matters which did not, at the time, lead the respondent to dismiss the applicant should not, in this case, now operate against the reinstatement of an employee who has established a case of unfair dismissal.
Ground (b): The respondent submitted that reinstatement will not foster the emotional safety and welfare of participants such as the complainant who have complained about the applicant’s conduct which the respondent has taken seriously. As to (b), the submissions for the applicant were that concerns about the complainant’s emotional safety must be balanced against the fact that she is never likely to see or hear from the applicant again, and the basic need for a sufficiently serious objective basis justifying his dismissal.
I accept the submissions for the respondent that it had taken the complaint about the applicant seriously; the steps the respondent took indicated it appropriately took matters very seriously indeed. One only need examine the tables setting out the different responses in the investigation for an illustration of the level of serious endeavour. Moreover, the investigator and the decision-maker had reams of materials which, I find, were carefully considered by them. Nothing in this decision should be taken to diminish any employee’s or course participant’s confidence in bringing a complaint forward to the respondent. Here, it is the case that the respondent took the steps it did and, as is not uncommon in employment relations, an application subsequently was brought before the Commission; in this case, the applicant has established his case for an unfair dismissal remedy. That outcome could not reasonably be construed to operate against fostering the emotional safety and welfare of participants such as the complainant, or act against them making their own complaints. It is also the case that the applicant and the complainant would be unlikely ever to interact again. In any event, administrative steps readily could be taken by the respondent to ensure that the complainant is not enrolled in a course to be conducted by the applicant.
Ground (c): The respondent submitted that the applicant’s lack of insight and contrition, particularly considering his disciplinary history, gives the respondent serious concerns that the conduct may be repeated. As to (c), the submissions for the applicant were that the allegations rely on the respondent’s misunderstanding of the applicant’s actual contrition. (I note that part of the remainder of the applicant’s submission as to (c) appears to be a typographical error or an incomplete sentence.)
I have carefully examined the evidence and submissions around matters such as the applicant’s preparedness to have apologised to the complainant in a statement-of-regret-type way that he had (unwittingly) caused the applicant to have feelings of embarrassment and the like. One would hardly expect that the applicant would have given an apology admitting to all the things the complainant had alleged, when he had disputed the applicant’s characterisations of various matters – and, as to that, I have made my own findings. I specifically reject the respondent’s submissions characterising the applicant as having been involved in gaslighting the complainant. The words that were particularly impugned in the respondent’s submissions included what was were effectively a direct lift from what was said in the investigation statement of one of the female participants. The applicant was aware of those words said to have been used by the complainant (although not recalled by her in the proceedings), because those words were set out in an attachment to the findings letter. The applicant’s detailed letter of 1 July 2021 to Captain Boland, being his “Response to show cause letter”, quoted an extract of the statement in raising what I consider to be may have been a legitimate matter for the decision-maker’s consideration. Last, on this topic of the respondent’s concern about a repeat of the behaviour, I think it confidently may be expected the applicant would always seek permission or a volunteer in connection with any demonstration following his reinstatement.
Ground (d): The respondent submitted that the complainant fears victimisation should the applicant return to the workplace and expresses fears of discomfort about attending further training if the applicant was reinstated. As to (d), the submissions for the applicant were that the complainant’s fears of victimisation cannot be said to be soundly and rationally based, and in circumstances where they do not work together are not an obstacle to the resumption of employment.
As to the submissions concerning Ground (d), there is nothing to indicate there would be any prospect of victimisation; and fears of discomfort by the complainant do not lead me to the view that reinstatement should not be ordered. I have also made some associated or related findings in my consideration of grounds (b) and (c).
Ground (e): The respondent submitted that the applicant has not been entirely transparent when responding to the allegations or in these proceedings. He has repeatedly sought to downplay his conduct and blame others. As to (e), the submissions for the applicant were that the respondent’s claims as to dishonesty are baseless.
I have already dealt in the decision with submissions concerning alleged dishonesty. As to alleged downplaying of conduct, the findings in the decision speak to that; and I do not consider that the applicant engaged in blame-laying. The evidence of the steps he voluntarily had proposed and had been prepared to take are indicative of that.
Ground (f): The respondent submitted that it is evident the necessary trust and confidence have been lost. As to (e), the submissions for the applicant were that a bare statement of subjective loss of trust and confidence is not a proper basis to resist reinstatement.
I am satisfied there has been a reasonably self-evident level of loss of trust and confidence; without more, the dismissal itself is evidence of that. I have considered particularly the matters advanced by Captain Boland around the concerns in such respects as addressed in his evidence. Regardless, the respondent is a large employer and the employment relationship should be expected to be restored in an appropriate, professional way by the parties respectively. In that regard, I separately note that there is an extant complaint matter which the respondent’s evidence indicated will need to be addressed. That extant matter will take its own course, following the reinstatement, should the respondent decide to take further steps.
I am not persuaded that the matters relied upon by the respondent, individually or collectively, militate against ordering the primary legislative remedy in this case. I have also considered the evidence of the applicant and/or the submissions of the applicant as to why reinstatement is sought (as opposed to any alternative remedy).
Orders
In view of the foregoing, the disposition of the application as to remedy is as follows.
Reinstatement
The respondent shall reappoint the applicant to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location the applicant previously worked) by no later than 21 days after the date of this decision.
Order to maintain continuity
In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of the applicant’s employment.
Order to restore lost pay
In connection with the reappointment, I consider it is appropriate to make an order causing the respondent to pay to the applicant an amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal. Nothing in the evidence would lead me to discount or reduce the amount in an order to restore lost pay, because I have not been satisfied as to the respondent’s allegations concerning misconduct or similar by the applicant should act in favour of a reduction. Relevantly, however, there was no evidence before the Commission concerning:
(a) the amount of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the applicant during the period between the making of the order for reinstatement and the actual reinstatement.
I direct the parties to confer on the matter of an order for lost pay and superannuation. The payment in lieu of notice will also need to be considered, together with any payments on termination of employment of accrued but untaken leave. Other matters will also need to be taken into account, such as the widespread stand-downs within the respondent’s operations at different points in time when the applicant may not have been in receipt of wages/full wages from the respondent. That is, the applicant should not have any type of, however described, double-dip or windfall benefit in terms of lost pay (for example, if his trainer colleagues would not have been in receipt of wages/full wages from the respondent over relevant time periods).
If the parties are unable to reach agreement on the amount in question concerning lost pay, having regard to the tenets of a fair go all round, the matter will be relisted on the application of either party for programming to give the parties the opportunity to be heard. I will then determine the discrete matter of the amount to restore lost pay.
The parties are to confer on the settlement of draft minutes of an order to give effect to these conclusions, and lodge the draft order by no later than 14 days after the date of this decision. If there are any issues that arise or may arise in relation time to obtain, for example, aviation-specific security clearances, or anything similar, such as to delay the actual return to work, that should be addressed in the draft order.
COMMISSIONER
Appearances:
L Saunders of counsel for the applicant, Matthew Daniels.
V Bulut of counsel for the respondent, Qantas Airways Limited.
Hearing details:
2021.
Sydney (by video):
November 23, 24.
Final written submissions:
7 February 2022.
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