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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Daniel Matthews v Qantas Airways Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 654
Decision Date

CaseChat Overview and Summary

Daniel Matthews ("the applicant") has made an application for an unfair dismissal remedy against his employer, Qantas Airways Limited ("the respondent"). The applicant seeks reinstatement as an Aviation Safety Training Instructor, Flight Operations, payment of lost wages and superannuation, and other orders. The respondent disputes the applicant's claims and contends that the dismissal was not unfair. The Commission found that the applicant was unfairly dismissed because there was no valid reason for the dismissal. The Commission found that the applicant's conduct on 7 January 2021 did not warrant dismissal. The Commission also found that the applicant was not notified of the allegation that he looked at the complainant's breasts or breast area. The applicant was also not notified of the allegation that his conduct constituted sexual harassment. The respondent had given an undertaking that the applicant would be paid his salary and other entitlements, including superannuation, from the date of the decision. The Commission ordered the respondent to reappoint the applicant to the position in which he was employed immediately before the dismissal, by no later than 21 days after the date of this decision. The Commission also ordered the respondent to pay the applicant an amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal. The Commission directed the parties to confer on the matter of an order for lost pay and superannuation. If the parties were 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 would be relisted on the application of either party for programming to give the parties the opportunity to be heard. The Commission would then determine the discrete matter of the amount to restore lost pay.

Orders