Gary Mellios v Qantas Airways Limited
[2020] FWC 2989
•2 JULY 2020
| [2020] FWC 2989 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gary Mellios
v
Qantas Airways Limited
(U2019/3179)
DEPUTY PRESIDENT ASBURY | BRISBANE, 2 JULY 2020 |
Application for an unfair dismissal remedy – Use of Company issued device to view and store pornographic and offensive material – Distinction between private use and viewing pornographic and offensive material at work – Valid reason for dismissal – Mitigating factors not sufficient to outweigh valid reason – Dismissal not unfair – Application dismissed.
BACKGROUND
[1] Mr Gary Christopher Mellios (the Applicant) applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment by Qantas Airways Limited (the Respondent/Qantas). The Applicant was employed by the Respondent as a Licensed Aircraft Engineer (LAME) from 4 January 1978 until his dismissal on 26 February 2019. The background to the matter can be summarised as follows.
[2] In 2016 Qantas issued LAMEs with iPads for use at work. LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees. Upon being issued with the iPad on 26 May 2016, the Applicant, in accordance with instructions from Qantas, enrolled it into the then MDM system. Qantas subsequently changed the MDM system and on 26 June 2017, the Applicant enrolled his iPad into the new system which operated through an application (app) known as “Comp Portal”.
[3] The Comp Portal app has two settings: “corporate” and “personal”. Regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed. When the Applicant enrolled his iPad by installing the Comp Portal app, the privacy statement in the app (which was also set out in a step by step guide to enrolling the iPad), informed him that Qantas could not see a range of personal material stored on the iPad including his web history and photographs.
[4] The Applicant used the iPad to browse a range of URLs and websites containing pornographic material and downloaded and viewed that material on the iPad. Qantas became aware of the Applicant’s use of the iPad to view pornographic material following reports made in or around July and September 2018 by a female refueller (Ms Remfrey) employed by Caltex who alleged that on two occasions during working hours, she had seen the Applicant viewing a video selection page containing pornographic images on his iPad. The Applicant’s iPad was seized by Qantas and forensically examined. Following the forensic examination, an investigation commenced in relation to allegations that the Applicant used his iPad at work and privately, to store, access and view material, variously described as obscene, pornographic and/or offensive. The allegations included that such material had been seen by Ms Remfrey at work, in circumstances where the Applicant knew, or ought to have known, that it was visible and would cause offence.
[5] After the investigation commenced Ms Remfrey reported that another female refueller (Ms Downes) had informed her that she had also seen the Applicant viewing pornographic material on his iPad at work. Ms Downes was approached by Qantas and agreed to make a statement. In that statement Ms Downes alleged that on three occasions in 2016, she witnessed the Applicant viewing pornographic images in the workplace during working time. The investigation was expanded to include an allegation in relation to Ms Downes. Ultimately all allegations were substantiated and following a show cause process the Applicant was dismissed.
[6] The Applicant maintains that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The Applicant contends that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad. The Applicant also contends that there was no valid reason for his dismissal and the dismissal was harsh and unjust due to its disproportionality to the Applicant’s actual conduct, the poor process followed by Qantas and his personal circumstances including that he is 59 years old, has worked for Qantas for 41 years and has minimal prospects of gaining other employment in the only profession that he knows. The Applicant seeks reinstatement to his former position together with orders that he be paid the remuneration lost because of his dismissal and that his continuity of employment be maintained.
[7] Qantas maintains that its investigation substantiated that the Applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy. Qantas contends that the privacy statement in the Comp Portal app relates only to what Qantas can see through the Comp Portal app and does not over-ride the SOC Policy and the IT Policy which apply to personal use of the iPad. Qantas also maintains that the Applicant’s misconduct was compounded by his failure to recognise the seriousness of his actions and misleading responses to questions during the investigation which sought to mitigate the seriousness of his misconduct by misstating its nature. Qantas further maintains that: the totality of the Applicant’s misconduct constitutes a valid reason for dismissal; there was no procedural defect in Qantas’ disciplinary process; and the Applicant has failed to advance any other relevant matters sufficient to sustain a finding that the dismissal was otherwise unfair.
[8] The matter was listed for a conciliation conference before a Fair Work Conciliator, was not resolved and was then allocated to me for determination. A hearing was conducted and both parties sought to be represented by Counsel. Permission was granted on the basis that the matter involved complexity given that it concerned serious misconduct and I was satisfied that representation would enable the matter to be dealt with more efficiently.
[9] The Applicant was represented by Ms Saunders of Counsel instructed by the Australian Licenced Aircraft Engineers Association (ALAEA). The Respondent was represented by Mr Pollock of Counsel instructed by Ashurst. The Applicant gave evidence on his own behalf. 1 Evidence on behalf of the Applicant was also given by Mr Stephen Purvinas, Federal Secretary of the ALAEA.2 Evidence on behalf of the Respondent was given by:
• Ms Jennifer Louise Remfrey, Aircraft Refueller, Caltex; 3
• Ms Jennifer Maree Downes, Aircraft Refueller, Caltex; 4
• Mr Martin Leslie Grimshaw, Engineering Shift Manager, Line Maintenance Operations (LMO) Qantas; 5
• Ms Christina Leonardi, Cyber Security Incident Response Manager, Qantas; 6
• Mr Gerald-Jan Henry Pinto, Engineering Applications Delivery Manager, Qantas; 7
• Mr Paul Michael Barry, Senior Security Manager, IBM Australia; 8
• Ms Tracey-Anne Marion Hobl, LMO Engineering Manager, Brisbane, Qantas; 9 and
• Mr Glen Andrew Stapleton, Leading Hand, Caltex. 10
[10] The statements of witnesses for Qantas comprised a statement made for these proceedings appending (among other documents) earlier statements made in the investigation conducted by Qantas before the Applicant was dismissed. It has been necessary to examine those statements and the range of documentation tendered by both parties in some detail.
[11] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about any of those matters. I find that:
(a) the application was made within the period required by s.394(2);
(b) the Applicant was a person protected from unfair dismissal;
(c) Qantas was not a “small business employer” as defined in s.23 of the FW Act; and
(d) the dismissal was not a case of genuine redundancy.
LEGISLATION
[12] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:
“(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); and
(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; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(h) any other matters that the FWC considers relevant.”
[13] The employer bears the onus of establishing that there was a valid reason for a dismissal.11 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”12 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,13 and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.14
[14] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response. 15 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.16
[15] The Applicant was dismissed as a result of Qantas finding that he had engaged in serious misconduct. The essence of the most serious allegation found to have been substantiated was that the Applicant’s conduct amounted to harassment of two female employees by viewing pornographic material in the workplace in circumstances where he knew or ought to have known that it would be seen by the employees concerned and would cause offence, intimidation or humiliation. In determining whether the Applicant did engage in the conduct alleged and whether there was a valid reason for his dismissal, the standard of proof is the balance of probabilities.
[16] Given the seriousness of the allegations, the principle in Briginshaw v Briginshaw 17is relevant to the effect that while the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct. In Neat Holdings v Karajan18the High Court held in relation to earlier consideration of the principle in Briginshaw, that statements to the effect that clear or cogent or strict proof is necessary where a question of whether a person in civil proceedings has engaged in criminal conduct or fraud is to be determined, should not be understood as directed to the standard of proof. Rather such statements should be understood as: “…merely reflecting a conventional perception that members of our society do not ordinarily engage in criminal or fraudulent conduct.”19 The Court went on to observe that:
“When an issue falls for determination on the balance of probabilities and the determination depends on the choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but on an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately however it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” 20
[17] In considering whether there is a valid reason for the Applicant’s dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct. Where the case is inferential the cumulative effect of the evidence must be considered. Proof of any fact on the balance of probabilities can be established by circumstantial evidence – that is by proof of primary or intermediate facts from which a further fact can be inferred. 21 In United Group Resources Pty Ltd and Others v Calabro and Others (No 5)22 McKerracher J set out the principles in civil cases in relation to finding facts by inference, as follows:
“A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible and is not required. All that is necessary is that circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought. For the purpose of considering whether this test is met, the Court must consider the accumulation of the evidence. It is appropriate not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence, by considering the weight which is to be given to the united force of all of the circumstances together. The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference.” 23 (citations omitted).
[18] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 24
EVIDENCE
Qantas policies and procedures
[19] The Qantas SOC Policy relevantly provides that employees must not:
• Engage in threatening or intimidatory behaviour (Clause 15.1);
• Engage in discrimination, harassment, bullying or victimisation (clause 15.2);
• Engage in unauthorised use of Company time, resources, facilities or the IT Environment for personal benefit or private purposes (clause 15.5);
• Use the Company’s electronic communication facilities, equipment or the IT environment (eg internet, email, phone, fax, iPad, electronic organiser) for conducting unlawful or unethical activities or transmitting, accessing, storing, copying or otherwise being in possession of illegal, unethical, defamatory or offensive material (clause 15.6(a)); and
• Accessing, storing, processing or transmitting any information, material and/or images of a threatening, obscene, pornographic, discriminatory or harassing nature (clause 15.7).
[20] In relation to harassment, the SOC Policy at clause 8, provides examples of such conduct, which include: the display or circulation (by email, text message or on social media) of sexual material, including magazines, posters, or pictures and messages and of pornographic or other offensive material. The SOC Policy also provides at clause 13.2 that:
“13.2 Monitoring of communication and the IT Environment
(a) Qantas will notify its Employees that it will carry out ongoing, intermittent monitoring, recording and surveillance of the use of the Qantas Group’s IT environment by the Employee - including emails, internet and files (including files stored on the Employee’s work computer).
(b) The surveillance may be carried out by all means available to the Qantas Group which may include:
(i) accessing the Employee’s email account or emails;
(ii) accessing files of the Employee;
(iii) accessing the Employee’s work computer; and
(iv) accessing records of internet usage by the Employee (including sites and pages visited, files downloaded, video and audio files accessed and data input);
(c) Employees must comply with all applicable laws and Qantas policies relating to the use of all communications, information technology and electronic resources, as amended from time to time.
Refer: Qantas Group Information Technology Policy.”
[21] The term “IT Environment” is defined in the SOC Policy as: “any facility, equipment, network, system (infrastructure or application) or device component that is used by the Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means.” The SOC Policy was in effect at the time the alleged conduct engaged in by the Applicant occurred although the version tendered by Ms Hobl is dated 5 December 2018. Ms Hobl was unable to confirm in cross-examination when the reference to an iPad was included in clause 15.6(a) of the SOC Policy at the time the Applicant was issued with the iPad or whether it was related to the rollout of iPads for LAMEs. 25 It was submitted for the Applicant that given the fact that other documents provided to the Applicant at the time he was issued with the iPad do not define the IT environment to include devices such as iPads, the Commission could not be satisfied that the SOC Policy contained this provision at the relevant time.26 The definition of the IT environment in Qantas policies is a matter to which I will return.
[22] Qantas also has a Cyber Security Policy which was summarised by Ms Hobl in paragraph 12 of her witness statement as follows:
“12. The Cyber Security Policy relevantly provides that employees must not use the Qantas IT environment (defined by the Cyber Security Policy to include any facility, equipment, network, system or device component that is used by the Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means) for unacceptable reasons, including:
a) transmitting, accessing, storing, copying or otherwise being in possession of illegal, unethical, defamatory or offensive material (clause 2.13(a));
b) transmitting, accessing, storing or copying pornography or other material which may be generally regarded as objectionable, discriminatory or harassment (clause 2.13(b));
c) excessive access, transmission, copying or storing of data unrelated to the Group's business (clause 2.13(c));
d) excessive personal or unauthorised use of the IT Environment (clause 2.13(d));
e) accessing information not directly related to the employee's immediate Qantas Group work requirements (clause 2.13(f)); and
f) any activity which does or may bring the Group into disrepute, cause the Group or any of its customers to bear unreasonable risks or costs, cause disruption to any Qantas Group business or service, or breach any laws or regulations (clause 2.13(p)).” 27
[23] The Cyber Security Policy was formerly known as the IT Policy. At the time the Applicant was issued with the iPad, the IT Policy relevantly provided (with reference to a Surveillance and Usage Notice set out in the Policy) that:
“Your use of Qantas Information Technology systems may be monitored and investigated to ensure compliance with the law, applicable regulations and Qantas Policies.”
[24] Other relevant provisions of the IT Policy were set out in clauses 2.7, 2.8, 2.9 and 3.1 as follows.
“Acceptable Usage
2.7 Users must only use the IT Environment:
a) to perform authorised and lawful business activities for Qantas; and
b) with prior approval from their Manager, to conduct or undertake professional development activities.
2.8 Users are permitted to use the IT Environment for limited personal use which is lawful, not excessive, does not result in excessive cost and does not interfere with, impact upon or interrupt the efficient, lawful, ethical operation of Qantas’ business.
Unacceptable Usage
2.9 Users must not use the IT Environment for unacceptable reasons, including:
a) conducting unlawful or unethical activities or transmitting, accessing, storing, copying or otherwise being in possession of illegal, unethical, defamatory or offensive material, or material in breach of copyright or licensing conditions;
b) transmitting, accessing, storing or copying pornography or other material which may be generally regarded as objectionable, discriminatory or harassment;
c) excessive access, transmission, copying or storing of data unrelated to Qantas business;
d) excessive personal or unauthorised use of the IT Environment; …
…
p) any activity which does or may bring Qantas into disrepute, cause Qantas or any of its customers to bear unreasonable risks or costs, cause disruption to any Qantas business or service, breach any laws or regulations.
…
Employees
3.1 Employees are responsible for:
a) understanding and complying with the requirements of this Policy; …”. 28
[25] The terms “IT Device” and “IT Environment” were defined separately in clause 6 of the IT Policy as follows:
“IT Device” means any personal computer, mobile phone, tablet or portable storage device.
“IT Environment” means any facility, equipment, network, system (infrastructure or application) or device component that is used by the Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means.
[26] Ms Hobl stated that the substantive content of the Cyber Security Policy clauses referred to in paragraph 12 of her statement were also contained in the IT Policy. The Cyber Security Policy also defines the terms “IT Device” and “IT Environment’ in the same terms as the previous IT Policy.
[27] Ms Hobl tendered the Applicant’s training records to establish that he attended SOC Policy Refresher training in July 2016 which included a segment on harassment. The refresher training was in the form of an interactive on-line module in which various scenarios were portrayed by actors and participants were asked to respond to questions about those scenarios by clicking on one of a number of possible responses posed in a multiple-choice format. The training was self-paced and when a wrong answer was given an explanation was provided so that the participant could understand why the answer was incorrect and move on. Under cross-examination, Ms Hobl was asked to view a scenario and answer a question related to the point at which conduct that is apparently accepted by another party, becomes harassment. Ms Hobl took a more conservative view about the point at which conduct became harassment so that her response would have been incorrect had she been undertaking the training.
[28] Mr Grimshaw, Ms Hobl and Ms Leonardi agreed under cross-examination that the IT Policy has a range of purposes and that not all aspects of the Policy apply to employees on the tarmac. They also agreed that there is a need to train employees in their obligations under the Policy and ensure that they understand those obligations. Mr Grimshaw agreed with the proposition put to him by Counsel for the Applicant that whether conduct is intentional is relevant to whether it is misconduct and that if someone has not been trained that is also relevant to whether conduct is misconduct. Mr Grimshaw also agreed that if someone has been acting on an incorrect understanding of a policy but had reasonably held a view about the policy it would not be misconduct. 29
[29] In cross-examination, the Applicant agreed that he is familiar with Qantas policies and procedures and has been trained in various policies and procedures during his employment. The Applicant also agreed that as a LAME he understands the importance of policies and procedures in performing all aspects of his work. The Applicant agreed that he had received training in the SOC Policy and that it is accessible on the Company’s intranet site. Further the Applicant agreed that the SOC Policy requires that he be familiar with other Company and applicable Qantas Group policies and procedures and relevant legislation. The Applicant said that he understood that harassment as defined in the SOC Policy included display or circulation, for example by email, text message or on social media, of sexual material, including magazines, posters or pictures and messages and that the SOC Policy prohibited harassment taking that particular form.
[30] The Qantas information technology environment is variously referred to as the IT environment or the ICT environment. Ms Leonardi’s evidence in relation to the Qantas IT environment is that the Company operates a technical policy so that when a device is connected to the Qantas Wi-Fi network, access to websites that Qantas does not want employees to visit, can be blocked. Ms Leonardi accepted that Qantas cannot mandate what an employee does on the 4G network or their own home Wi-Fi.
The provision of the iPad to the Applicant
[31] Ms Leonardi also gave evidence about the Mobile Device Management (MDM) system Qantas uses to allow employees to remotely access work information such as emails, calendar information and documents, from mobile devices. That system allows employees to access such information on their privately owned or leased devices or on Qantas issued devices by enrolling those devices into the MDM system.
[32] It is not in dispute that in around 2016 Qantas issued LAMEs (including the Applicant) with iPads. The iPads were provided for use at work including for the purpose of LAMEs downloading and looking at maintenance manuals and other material necessary for their role. Ms Leonardi states that she has reviewed Qantas business records which indicate that the Applicant received his iPad on 26 May 2016.
[33] Mr Grimshaw tendered a Declaration form signed by the Applicant on 26 May 2016. The Declaration form is headed “Qantas Engineering iPad Declaration (to be completed by each Engineering member collecting an iPad”. On completing the form, the Applicant declared a number of matters by ticking a box beside them including:
“I have read and understood the Qantas IT Policy and the Qantas Mobile Computing and Remote Access Policies.” 30
[34] Ms Leonardi’s evidence is that when the Applicant received his iPad, Qantas was using software called Citrix XenMobile to operate its MDM system. Ms Leonardi tendered a copy of the step by step guide published by Qantas at the time the Applicant was provided with an iPad, for employees to enrol their device in the Citrix XenMobile system.31 The document entitled “Qantas Mobility Service Enrolment Guide – iPad” includes a screen which states:
“installing this profile will allow the administrator … to remotely manage your iPad. The administrator may collect personal data, add/remove accounts and restrictions, list install and manage apps. and remotely erase data on your iPad.”
[35] Ms Leonardi also tendered a copy of a policy entitled “Staff Privately Owned Mobile Device Terms and Conditions” which applied when the Applicant was provided with the iPad.32 Those terms and conditions define “Device” as any mobile equipment owned or leased by a staff member that is used to access the Qantas ICT environment, which is separately defined as follows:
“ICT Environment” includes any infrastructure, equipment, system or database that is used by a Qantas Group entity in connection with the access, storage, transmission or processing of any information via electronic means.”
[36] The Terms and Conditions document provided at clause 11.1 that the employee acknowledges and agrees that use of the Qantas ICT environment is subject to compliance with the IT Policy which is available at a hyperlinked address in the document. In about November 2016 Qantas transitioned to new software for its MDM system known as Microsoft InTune. This required employees to migrate devices – including private devices and Qantas issued devices – to the new InTune MDM system and involved removing Citrix XenMobile from those devices and installing an app known as Comp Portal. A Step by Step Guide was provided to employees explaining how to remove Citrix XenMobile from an iPad and install the Comp Portal app. This Guide replaced the previous Enrolment Guide dated 07/02/2014.
[37] Ms Leonardi stated that business records indicate that the Applicant migrated his iPad onto the Microsoft InTune system on 26 June 2017. Ms Leonardi said that in order to do this, employees were required to download the Comp Portal app on their device and to register or “enrol” their device. The Qantas iPad Enrolment Guide tendered by Ms Leonardi detailed steps to be taken by employees enrolling iPads in the Qantas Mobility Service. 33 The Enrolment Guide depicts copies of screens that employees see as they take each step to enrol their iPads. In relation to the subject of “Privacy” there is a screen containing the following statement in relation to privacy:
“We care about your privacy
IT Admin cannot see this on your device:
• Call and web history
• Location
• Email and text messages
• Contacts
• Passwords
• Calendar
• Camera roll
IT Admin can see this on your device:
• Model
• Serial number
• Operating system
• App names
• Owner
• Device name” 34
[38] The same or a substantially similar statement is installed on the iPad as part of the Comp Portal app (“What your organisation can never see”), and can be viewed at any time by the user of the iPad. Ms Leonardi said that once the device has been registered in the Comp Portal app, employees can (among other things) access their work emails and calendars. When an employee installs the Comp Portal app on a device (whether it is a personal or a Qantas device) the employee must agree to certain terms and conditions, which describe how the Comp Portal app works, including the privacy and security features of the app. The terms and conditions are described in the Qantas Mobility Service Terms and Conditions (Mobility Terms and Conditions) which was also tendered by Ms Leonardi.35 Unlike the previous Staff Privately Owned Mobile Device Terms and Conditions which it replaced, the Mobility Terms and Conditions define a “Device” as follows:
“(b) Device means any Qantas Approved Mobile Device which includes:
Qantas issued Mobile Devices; and
Staff Privately Owned Mobile Devices.”
[39] Clause 5 of the Mobility Terms and Conditions provides as follows:
“5. MONITORING OR INSPECTING YOUR DEVICE
5.1 When you register your Device you acknowledge and understand that Qantas will periodically remotely monitor the Device to check that security configuration has not changed and the Device continues to conform to Qantas security requirements.
5.2 Qantas will not prevent you from installing software or applications to your Device. However Qantas may block your Device from connecting to the Qantas ICT Environment if your Device contains data, software or applications that may compromise the security of Qantas’ ICT Environment or are not otherwise approved for operational or policy reasons.
5.3 Qantas will not actively monitor your phone call history. Qantas may restrict access to certain sites while your Device is connected to the Qantas network to maintain security of Qantas’ ICT environment or for operational or policy reasons.”
[40] The Mobility Terms and Conditions define “Data” as follows:
“(a) Data means any information including software, facts, documents, emails, music, data files, photos or application stored on your device.”
[41] The term “Qantas ICT Environment” is defined as follows:
“Qantas ICT Environment includes any infrastructure, equipment, system or database that is used by a Qantas Group entity in connection with the access, storage, transmission or processing of any information via electronic means.”
[42] The definition of the ICT environment does not include a reference to devices. The Mobility Terms and Conditions state at clause 11 that employees acknowledge and agree that their use of the Qantas ICT Environment is subject to their compliance with the IT Policy. The Mobility Terms and Conditions also contain a link to the IT Policy. As previously noted, the IT Policy also does not define the IT Environment to include devices such as iPads. Ms Leonardi said that clause 5 of the Mobility Terms and Conditions dealing with Privacy, explains the extent to which Qantas is able to see details about a device (whether a personal device or a Qantas device) through the Comp Portal app. That is, information about the device that Qantas is able to access remotely as distinct from information that Qantas would be able to see or access if it physically seized and forensically analysed a device.
[43] Under cross-examination, Ms Leonardi agreed that the point of the Mobility Terms and Conditions is to deal with a device that is sometimes on the Qantas network and to allow devices – either Qantas issued or privately owned – to connect to the Qantas IT environment.
[44] In relation to the step by step enrolment guide for the InTune system in Annexure CL-3 to her witness statement, Ms Leonardi agreed that an employee enrolling an iPad would have seen a screen setting out the privacy statement. In response to the proposition that employees enrolling iPads using the step by step guide were told nothing more about what paper policies applied, Ms Leonardi said that if employees clicked on a previous screen they would have been linked to the mobility terms and conditions. Ms Leonardi agreed however that this was “it” in terms of the enrolment process.
[45] In relation to the privacy statement on the Comp Portal app, Ms Leonardi said that this screen comes up when an iPad is being enrolled by an employee and remains on the iPad as and can be accessed by the user of the iPad at any time. Ms Leonardi agreed that it is not stated on any screen in the Enrolment Guide or the Comp Portal app, that the privacy statement applies only to what can or cannot be seen by Qantas through the Comp Portal app. Ms Leonardi maintained that notwithstanding this, an employee would be using the Comp Portal app to access the ICT environment and it would be assumed that the privacy statement deals with what can and cannot be seen through this app. Ms Leonardi had the following exchange with Counsel for Mr Mellios:
“You accept that an employee could read that and think this is what Qantas can see on my device? --- Remotely, yes.
There's no other information on the device about what Qantas can or can't see? --- Via the remote MDM system.
At all? --- At all? No, we cannot see what's on the device unless we have physical possession. …
I don't mean what Qantas can access remotely. This is the only piece of information actually accessible on the iPad directly that talks about Qantas viewing things in general terms? --- Correct.
It says it can't view your browsing history on this device? --- That's right.” 36
[46] In relation to the Mobility Terms and Conditions (Annexure CL-6 to her witness statement) Ms Leonardi agreed that this is the document referred to in the Enrolment Guide relating to the change from Citrix to Microsoft Intune and that unlike the previous Mobility Terms and Conditions, the version in use at the time the Comp Portal app was installed, refers to both Qantas issued and privately owned devices. Ms Leonardi also agreed that the definition of the ICT environment in both versions of the Mobility Terms and Conditions is the same and that there is a difference between the device and the ICT environment. 37
[47] The proposition was put to Ms Leonardi that the reason for the changed Terms and Conditions is that there are now Qantas owned iPads enrolled in the mobility program as well as privately owned devices. Ms Leonardi initially agreed with that proposition, 38 but later said that she did not know the history of the changes or whether they were to catch Qantas issued devices. Ms Leonardi agreed that Qantas can block devices from connecting to the Qantas ICT environment but also said that Qantas cannot see what is on a device and cannot block it from browsing to a specific website, unless the browsing occurs on the Qantas Wi-Fi.39 Ms Leonardi also agreed that there is nothing in the Mobility Terms and Conditions that would stop people from using their personal devices to access pornography on their own Wi-Fi but said that the Cyber Security Policy is relevant in this regard.40
[48] Mr Pinto was the Lead Subject Matter Expert for the trial and rollout of iPads to all Qantas LAMEs in 2016 and as part of that role was responsible for the development of materials for training to be delivered to LAMEs in relation to the iPads. Mr Pinto delivered “train the trainer” sessions to subject matter experts across Qantas who were responsible for delivering training about the iPads on the job. Mr Mya Gray, Senior LAME, was one of the subject matter experts in Brisbane instructed by Mr Pinto. Mr Pinto attended a session delivered by Mr Gray and was satisfied in relation to his performance and that the information he delivered was accurate and in accordance with the training materials prepared by Mr Pinto. Mr Gray delivered the iPad training session attended by the Applicant on 26 May 2016.
[49] The training materials developed by Mr Pinto included a PowerPoint presentation. Mr Pinto said that while slightly different versions were used across the rollout the substantive content remained the same. That content included an entire slide dedicated to the IT Policy. Mr Pinto also said that the trainers’ notes for the PowerPoint presentation contained specific parts of the IT Policy for trainers to highlight, being clauses 2.7, 2.8, 2.9 and 3.1. In addition, Mr Pinto instructed trainers to hand out copies of the IT Policy at the training sessions. To receive their iPad, each LAME was required to sign a declaration confirming, among other things, that the LAME had read and understood the IT Policy. The PowerPoint Presentation tendered by Mr Pinto does not refer to the SOC Policy.
[50] The trainers’ notes for the PowerPoint presentation were also tendered by Mr Pinto and state that the ICT environment must only be used to perform lawful business activities for Qantas; users are permitted to use the ICT environment for limited personal use which is lawful, not excessive, does not result in excessive cost and does not interfere with, impact upon or interrupt the efficient, lawful or ethical operation of Qantas’ business. The notes also emphasise that users must not use the ICT environment for unacceptable reasons.41
[51] In relation to the Applicant’s evidence that he was told to use the iPad outside of work as if it was his own personal device, Mr Pinto said that the consistent message delivered across the training sessions, as set out in the PowerPoint presentation, was that limited personal use was acceptable as long as it was in accordance with Qantas policies, including the IT Policy. Mr Pinto also said that the sessions made it clear that the iPad was a Qantas device. In relation to the Applicant’s evidence that the 1.5GB of data was not a hard limit and that individual use would not be monitored, Mr Pinto accepted that the training included information about a data pool but maintained that LAMEs were also told that 1.5GB was an adequate amount of data for daily work use, outside a Wi-Fi network. Mr Pinto also said that LAMEs were told that individual data use would be reviewed from time to time to ensure that 1.5GB was not consistently exceeded because that would result in a substantial cost increase for the business.
[52] Under cross-examination, Mr Pinto agreed that it would be Qantas’ preference if engineers took their iPads home overnight and that the iPads were personal issued devices. Mr Pinto also agreed that there were different versions of the PowerPoint presentation and that it evolved over time including changes to the text in the slides and the addition of information to the speaking notes underneath the slides. The most recent version of the presentation was tendered to the Commission by Mr Pinto and he said in cross-examination that this is the only version that he currently has.
[53] Mr Pinto agreed that the notes to the presentation indicate that employees were asked to complete the declaration form early in the session as it requires the serial number of the iPad to be recorded, which is easier to access at the beginning of the session when the iPad is unboxed and before it is put into a case. Mr Pinto also agreed that he stated to the engineers in the sessions he ran that they could use the iPad for “limited personal use” and they should “treat it as if it was your iPad.”
[54] The Applicant said that when Mr Gray issued the iPad Mr Gray said words to the effect of:
“This is your iPad. You can use it outside of work as if it was your own personal device. There is 1.5GB of data per month. This is not a hard limit, the data is part of a shared pool. Individual data use will not be monitored.” 42
[55] The Applicant tendered the second version of the Mobility Terms and Conditions document43 and the Qantas iPad Enrolment Guide for the InTune MDM system (the same documents tendered by Ms Leonardi) referring to the documents as the “Mobility Policy” and said that he understood that these documents applied to his use of the iPad both at work and at home. The Applicant also said that these were the documents he read when he enrolled his iPad and that some of the information was also included on the iPad, in particular the privacy statement about what Qantas could and could not see on the iPad. The Applicant stated that the Mobility Terms and Conditions do not prohibit accessing adult websites or storing explicit images. The Applicant also referred to the Terms and Conditions which state that: “Qantas may restrict access to certain sites while your device is connected to the Qantas network to maintain the security of the Qantas ICT environment or for operational policy reasons”, and said he understood that:
• Qantas would not monitor sites he looked at outside of work hours, or be able to see photographs he stored on the iPad;
• His viewing history would be private; and
• There was no restriction to him using the iPad to view adult websites outside of work hours or storing explicit images on the iPad.
[56] In cross-examination, the Applicant was shown the declaration he signed on 26 May 2019 when he was issued with the iPad. The Applicant agreed that by ticking a box on the form he declared that he had read and understood the Qantas IT Policy. In relation to a question about whether he had actually read the IT Policy, the Applicant said: “No, not entirely” and went on to confirm that he had read some of the IT Policy. The Applicant was taken to provisions of the Policy dealing with acceptable use, including storage and accessing pornography, and said that he did not recall reading them at the time and may have done so.
[57] The Applicant also agreed that he had undertaken some training at the time the iPad was provided to him and was shown the training material tendered by Mr Pinto including a version of the Acceptance Form. During cross-examination on this point, issue was taken by Counsel for the Applicant on the basis that the material tendered by Mr Pinto was said to be the most recent version of the PowerPoint presentation rather than the version used at the training course attended by the Applicant when he was issued with his iPad. It was pointed out that the Acceptance form signed by the Applicant was different than the Acceptance Form in the PowerPoint presentation tendered by Mr Pinto, albeit the first box, which refers to the person making the declaration having read and understood the Qantas IT Policy, was the same.
[58] The Applicant confirmed that he signed the Form tendered by Mr Grimshaw as Annexure MG-1 to his witness statement but could not recall whether the slide pack in the presentation he attended included a slide dealing with the IT Policy. The Applicant also said that he signed the declaration form at the conclusion of the training.
[59] The Applicant did not agree that the IT Policy was handed out during the training or that he had an opportunity to read it before he signed the declaration. In response to the proposition that he accessed the Policy on-line during the training the Applicant said that he had not done so and that LAMEs had been using IT for years before the iPad and he signed the declaration on the basis that he was familiar with the IT Policy because of his earlier experience using IT. The Applicant maintained that notwithstanding that he had read the IT Policy and the SOC Policy at an earlier time, he thought at the time he was given the iPad that the Mobility Policy was the only policy that applied and that he had not breached the Mobility Policy. 44
[60] In relation to the Mobility Terms and Conditions, the Applicant said that he did not read these at the time he was provided with the iPad but read the Terms and Conditions “about the time there was a change in one of the systems”. This indicates that the Applicant read the Terms and Conditions at or around 26 June 2017 when he migrated his iPad to the InTune MDM system. There is no evidence that he read the earlier version of the Mobility Terms and Conditions which applied when he was issued with the iPad. The Applicant also said that he did not read the Mobility Terms and Conditions carefully, 45 and while he accepted clause 1.11 of the Mobility Terms and Conditions makes reference to the IT Policy, he could not recall whether he read that clause at the relevant time.
The complaints
[61] On 12 July 2018, Mr Grimshaw was contacted by a colleague regarding an incident involving a Caltex refueller and a Qantas LAME which had been reported by the Manager of Caltex Aviation Operations who had forwarded an email exchange in relation to the matter. The email exchange indicated that a Caltex refueller (Ms Remfrey) had stated that on 11 July 2018 she had witnessed a Qantas Engineer viewing pornographic images on his iPad during working hours.
[62] Mr Grimshaw states that he regarded the incident as very serious and attempted to escalate it internally. On 23 July 2018, Mr Grimshaw contacted the Caltex Operations Manager and enquired whether Ms Remfrey would make a statement about the incident. The Response from the Caltex Operations Manager on 31 July 2018, was that Ms Remfrey did not wish to make a statement as she was not “overly phased” and did not want the other party to lose their job. Notwithstanding this response Mr Grimshaw conducted further enquiries and ascertained that information about the Applicant’s browsing history could not be obtained from Qantas’ cellular data provider. Mr Grimshaw then considered whether further action could be taken without an eyewitness who was prepared to make a statement. Mr Grimshaw took a period of leave from 21 September to 5 October 2018 and returned to work on 7 October 2018.
[63] Upon his return to work Mr Grimshaw noted a further email from the Caltex Operations Manager, which had been sent to him on 25 September 2018, regarding a second incident involving the same Caltex employee, Ms Remfrey, which had occurred on 24 September 2018. Upon receiving the second email after his return to work, Mr Grimshaw considered it to be of great concern and escalated matters internally to his manager, Ms Hobl.
[64] After discussing the matter with the Regional Manager to whom she reports and with Ms Coakley, Ms Hobl decided that the matter should be investigated and that the Qantas-owned iPad the Applicant had been using should be seized and forensically analysed. Ms Hobl appointed Mr Grimshaw as the investigator of the allegations against the Applicant. Ms Hobl instructed Mr Grimshaw to meet with the Applicant and advise that the incidents had been reported and that he was stood down with pay. Ms Hobl told Mr Grimshaw to sieze the iPad that the Applicant had been using so that it could be analysed. Thereafter Ms Hobl had no substantial involvement in the investigation other than to receive updates and to confirm that the Applicant was receiving regular welfare checks.
[65] On 9 October 2018, Mr Grimshaw met with the Applicant, confiscated his iPad and informed him that there was a complaint involving his conduct at work and that information could not be shared with him at this stage, but the matter would be investigated. Mr Grimshaw provided the Applicant’s iPad to Ms Coakley and was informed that she arranged for it to be sent to the Qantas IT Team in Sydney for analysis. Mr Grimshaw also arranged for Ms Sonja Saddi, Case Management Support, to meet with Ms Remfrey in relation to her complaint.
The analysis of the Applicant’s iPad
[66] On 9 October 2018 Ms Leonarndi was requested to arrange a forensic analysis of the browsing history on the Applicant’s iPad and gave the iPad to Mr Barry of IBM to conduct the analysis. Ms Leonardi received the report from Mr Barry on 17 October 2018 and a further email which included the full web browsing history from the iPad as well as extracted pornographic URLs identified by Mr Barry. The report also identified potentially explicit or pornographic images on the iPad and Ms Leonardi passed on a request from Ms Saddi to Mr Barry for further details about these images.
[67] Mr Barry tendered an email sent to him by Ms Leonardi on 10 October 2018 requesting that a forensic investigation be performed on the Applicant’s iPad. The email states that Qantas is specifically looking for web browsing history of the device (pornographic in nature) and the time frame is 11 July 2018 until “now”. 46 Mr Barry’s Report dated 17 October 2018 (the Report) contains the following executive summary:
• Evidence of the Apple iPad being used to visit 150 pornographic URLs between the 11th of July 2018 and the 12th of October 2018 was observed.
• Activity identified on the Apple iPad indicated that pornography was specifically searched on Google between the 11th of July 2018 and the 12th of October 2018.
• Evidence of the Apple iPad being used to view pornography as early as the 29th September 2016 was observed.
• Pornographic images saved on the Apple iPad were also identified.
• No malicious, suspicious or pornographic applications were observed on the Apple iPad during analysis.
[68] The Report states that there were multiple searches for a website “ElephantTube”, which is described by Google as being for “Free Porn Movies”. These searches were conducted between 28 July 2017 and 25 September 2018. Within the requested timeframe there were five Searches for “Elephant Tube” which occurred between 9 September 2018 and 25 September 2018. In relation to Safari Web Browser history, the Report states that during the investigation, more than 450 pornographic URLs were observed within the Safari Web Browser activity history. The Report also included details of the URLs visited and the title of what was viewed. It is not necessary to list the titles of the pornographic videos viewed by the Applicant and it suffices to say that there are numerous titles containing references to “teens”, “step-moms”, “step-sisters”, “Asian Porn” and “Philippine teens”.
[69] The Report also included thumbnail images of photographs on the iPad. By email dated 18 October 2018, Ms Leonardi requested further details about the images found on the iPad including: source; date stored; and larger thumbnails or photos to enable the image to be viewed. Mr Barry provided a further Report in relation to the images. The larger versions of the images in that Report depict a woman who is at times clothed or partially clothed and in a number of the images the woman is exposing her breasts either fully or partially and in others the woman is exposing her abdomen. In one image the woman’s legs are open and the image is a closeup of her genitalia. 47 The further Report indicates that the images were created on 31 May 2016 at 1:06:02 pm. The further Report also indicates that the images were viewed on a range of dates and times in 2016 and 2018.
[70] On or around 18 October 2018, Ms Leonardi reviewed the full web browsing history from the iPad and identified a period, from 17 May to 16 August 2018, during which there was no web browsing recorded on the Applicant’s iPad at all. Ms Leonardi also considered a report from Qantas’ cellular data provider Vodafone, detailing data usage on the Applicant’s iPad for the period 1 August 2016 to 30 September 2018. The Vodafone data usage report shows, among other things, that there was data used on the iPad every day during the period 17 May 2018 to 16 August 2018, inclusive. Ms Leonardi said that on many days during this period, there was a significant amount of data used, often in excess of 50MB.
[71] Following a telephone discussion with Ms Saddi, Ms Leonardi signed a statement on 27 November 2018, prepared for her by Ms Saddi, in relation to her involvement in the investigation and the forensic analysis of the iPad. In that statement, Ms Leonardi confirmed that based on the findings of the Report there was no browsing history recorded on the Applicant’s iPad during the period between 17 May and 16 August 2018. In that statement, Ms Leonardi posited four potential explanations for this:
• The device was not used during this period;
• The internet browsing history for that specified period was deleted manually;
• The internet browsing history was wiped (that is, the user cleared the browser history) although Ms Leonardi considers this unlikely given that there is still a browsing history visible prior to 17 May 2018; or
• Private incognito browsing was used during this period.
[72] Ms Leonardi explained that when private browsing is enabled, the browsing history of a device is not saved on the device. In her witness statement to the Commission Ms Leonardi said that she no longer considers that the device not being used for the period from 17 May and 16 August 2018 to be a feasible explanation for lack of browsing history on the basis that there was data used on the iPad each day. Ms Leonardi also said that manual deletion of browsing history is a relatively time-consuming process and requires that the user individually select each web browsing record to be deleted, rather than clearing all web browsing history at once. Ms Leonardi said that she considers that the most likely explanation for lack of browsing history between 17 May and 18 August 2018, is that the Applicant engaged in private or incognito browsing.
[73] In her statement of 27 November 2018, Ms Leonardi said that there are currently no restrictions on Company mobile devices that prevent them from downloading apps on mobile data, but that by default, Apple disables the ability to download automatic app updates over mobile data. Ms Leonardi also said in that statement that even if this option is enabled, there is a 150MB cellular download limit imposed by Apple so that any download greater than 150MB requires a Wi-Fi connection. In her later statement of evidence to the Commission, Ms Leonardi said that the views in her 27 November 2018 statement are incorrect to the extent that it suggests that there is a 150MB cellular download limit on all applications when in fact, some applications not managed by Apple may allow for cellular downloads greater than 150MB including Qantas apps.
[74] Under cross-examination, Ms Leonardi agreed that in her 27 November 2018 statement, she had not made an assessment as to which of the four options to explain the gap in the Applicant’s browsing was more likely. Ms Leonardi accepted that her statement to the Commission does identify private or incognito browsing as the most likely reason for the gap although she had the same information including the Vodafone data report when preparing her statement to the Commission, as she had when she provided her 27 November 2018 statement to the internal investigation. Ms Leonardi said that she was not informed that the Applicant had stated that he did not know how to use private browsing and she had no understanding of his skill levels with respect to IT. Ms Leonardi accepted that it is plausible that an employee might not know how to use private browsing but also said that it is easy to enable.
[75] Ms Leonardi agreed that at the time she made her 27 November 2018 statement she understood one of the questions she would be asked was whether the data usage at the time of the gap in the Applicant’s browsing history could be explained by apps being updated using data. Ms Leonardi also agreed that this remains an explanation for why data would be used at a time when there was no browsing history on the iPad and that she had not included it in her statement as a possibility. Ms Leonardi further agreed that there are apps on the Applicant’s iPad – including Qantas apps which contain engineering and other information that are not managed by Apple. Ms Leonardi agreed that she had not looked at updates to apps in the period where there had been a gap in browsing history and that Qantas could have looked at this in relation to non-public apps if it wished to do so. Ms Leonardi had the following exchange with Counsel for the Applicant in relation to the browsing gaps:
“It's entirely possible that this iPad has been in full use, been used for work, been updating work apps, been happily shopping, checking fish, checking Facebook, watching videos without opening Safari once? --- Potentially, yes.
It's possible? --- It's possible.
You can't rule it out? ---- I can't rule it out.
It's not something you considered when you reached your conclusion in your statement? --- No.” …
You did not, in fact, consider app use as an explanation for data consumption without browsing history, did you? --- No.” 48
[76] Ms Leonardi maintained that the most likely explanation in her view was that the iPad was used in private browsing for the period where there was a gap in browsing data. Ms Leonardi based this view on the Applicant’s browsing history viewed in the Report, showing browsing on almost every single day in the months before and after August 2018. 49
[77] Ms Leonardi said in response to a question from me that if an employee used a Qantas issued iPad on their personal Wi-Fi to view a video selection page, and left the tab open in Safari, it would be cached on the iPad so that it could be viewed on the next occasion that the person opened Safari. If the person refreshed the content using the Qantas Wi-Fi and the content was inappropriate, it would be blocked by the Qantas technical system. If the page was not refreshed it could remain open on the iPad until it was closed by the user. As long as the page was not refreshed, it would not appear on the browsing history as being viewed. 50
[78] Ms Leonardi agreed that there are areas on the tarmac at Brisbane Airport where Qantas Wi-Fi is difficult to access and employees may use the 4G network when working in those areas. Ms Leonardi also said that if a cached page was refreshed using the 4G network rather than the Qantas Wi-Fi Network, it would show on the iPad as use of a package of cellular data without showing what the data was used for. 51 Ms Leonardi agreed under cross-examination that while Qantas could mandate what sites employees could browse while on Qantas Wi-Fi, it could not do so when they are using 4G cellular data.52 Ms Leonardi also said that the only way that Qantas could stop a device from accessing the ICT environment is if it was detected that the device had browsed to a specific web-site on the Qantas Wi-Fi.
[79] In his evidence to the Commission the Applicant agreed that he used the iPad most days including to check his emails, browse the internet and to use various Qantas apps. The Applicant said that he browsed the internet occasionally and when asked to clarify, said every other day. The Applicant also said that he used Qantas apps every day. The Applicant agreed that he mostly used the iPad on Wi-Fi and when he was at home used his own personal Wi-Fi. At work the Applicant used the Qantas Wi-Fi and if that was not available, cellular data. The Applicant said that when he was working airside, Qantas Wi-Fi was available but not always usable because its bandwidth was inadequate. Accordingly, it was sometimes necessary to use cellular data at work. The Applicant maintained that he did not know how to turn on private browsing or that there was such a function on an iPad.
The allegations
[80] Following the interview with Ms Remfrey and the analysis of the iPad the Applicant was sent a letter dated 30 October 2018 setting out six allegations (the first allegation letter). The allegations as set out in that letter can be summarised as follows:
• Allegation 1 was that on 3 August 2017 at 1035 hours the Applicant used the Company iPad to access a website containing images that were obscene, pornographic and/or offensive in nature – • Allegations 2 and 3 were that on 11 July 2018 at approximately 0913 hours and 24 September 2018 at approximately 1937 hours a female Caltex refueller (Ms Remfrey) entered the Engineers hut and observed the Applicant using the iPad to access what appeared to be a video selection page containing thumbnails of images that were pornographic in nature and the Applicant accessed the page in circumstances where the content could be observed by other persons entering the hut and when he knew or ought to have known that the page would have been visible and accessing it at work would cause offence. • Allegation 4 concerned seven images stored on the iPad said to be pornographic which included photographs of exposed female genitalia and breasts. • Allegation 5 was that on dates between 29 September 2016 and 25 September 2018 the Applicant used the iPad to access websites containing images that were obscene, pornographic and/or offensive in nature and that the Applicant knew or ought to have known that using the Company iPad to access the websites was inappropriate and in excess of reasonable personal use. • Allegation 6 was that the Applicant exceeded Qantas’ monthly data limit in a single day on various dates between 11 July 2018 and 8 October 2018. [81] The Applicant responded to those allegations in writing on or around 11 November 2018 (the first written response). 53 On 15 November the Applicant was provided with a list of websites and URL links pertaining to Allegation 554 on the basis that he advised in his first written response that it was not possible for him to respond to Allegation 5 without details of the websites. The Applicant was invited to provide a further written response after he had examined the list of websites and URL links. The Applicant provided a further written response on 21 November 2018.55 [82] After the Applicant responded to the allegations set out in the letter of 30 October 2018, further allegations were raised against him by another female refueller employed by Caltex (Ms Downes) in relation to alleged incidents in 2016. On 5 December 2018 a letter (the second allegations letter) was sent to the Applicant setting out allegations that between January and September 2016 while working in the Engineers hut the Applicant used the iPad to access graphic pornographic images at a time when Ms Downes entered the hut and that the Applicant was aware or should have been aware that Ms Downes could see the images. The Applicant was requested to respond to these allegations. 56 The Applicant provided a response on 11 December 2018 (the further written response).57 General points about the use of the iPad [83] In his written responses to the allegations, the Applicant made some general points about the use of Company iPads and Qantas policies and statements about such use. In his first written response, the Applicant asserted his understanding that his personal use of the iPad would not be seen by anyone other than himself and that the basis of this understanding was that the iPad was set to “personal” in accordance with the Qantas Mobility Terms and Conditions which could be accessed on the iPad. The Applicant also referred to the privacy statement in the Comp Portal App and the Enrolment Guide. Further, the Applicant stated his view that the Mobility Terms and Conditions do not state any prohibitions on accessing lawful adult websites or storing images. The Applicant also stated his belief that the Mobility Terms and Conditions are more recent than the Cyber Security Policy that he was alleged to have breached and that neither the Mobility Terms and Conditions or the iPad declaration form issued when he received the iPad made any reference to the Cyber Security Policy. [84] The Applicant went on in his first written response to state that he had been informed when the iPad was issued that it could be used outside work hours as if it was his own personal device and that if he had understood that Qantas could or would be looking at photos and web browsing history, despite what is clearly stated in the Mobility Terms and Conditions, then he would have been more conscious of whether any of the content was contrary to other Qantas policies or Code of Conduct. The Applicant also stated: “If I have breached any Qantas policies or procedures then I apologise sincerely for this. However, I think it extremely unfair to have a Qantas Policy on the device itself which states that photos and web browsing history will ‘never be seen’ by Qantas Airways Limited but subsequently be presented with stored photos and web addresses I have allegedly visited which Qantas have apparently accessed in contravention of the company’s own policy. If I have breached other Qantas policies which apply then I emphasise that it appears Qantas is also in breach of its own policies and that what is stated by Qantas in the Mobility Service Terms and Conditions is simply false.” 58 [85] The Applicant reiterated these points in subsequent written responses. A meeting was held with the Applicant on 17 December 2018 to discuss the allegations and the Applicant’s responses. Notes of that meeting were tendered by Mr Grimshaw who conducted it on behalf of Qantas. 59 At the meeting on 17 December, the Applicant’s support person Mr Murray is recorded in the meeting notes as having showed Mr Grimshaw the screens on his iPad that had been referred to by the Applicant in his written responses including the privacy statement in the Comp Portal app. Screenshots of this information are set out in the notes of the meeting. The notes record that the Applicant was asked whether he accepted that the Qantas Mobility Terms and Conditions he had referred to also stated that he acknowledged that use of the Qantas ICT environment was subject to compliance with the Qantas IT Policy, which is the old version of the Cybersecurity Policy. The meeting notes also record that the Applicant was asked about the agreement he signed in relation to use of the iPad and that he stated that it was a “tick and flick” whereby he was given the iPad and asked to sign the agreement without being given an explanation about the agreement. [86] The meeting notes also record a discussion about the Applicant’s claim that the iPad was set to “personal” in accordance with the Mobility Terms and Conditions and what the Applicant meant by this. Mr Grimshaw is recorded as stating that the iPad was not considered by Qantas to be part of the personal use program and that the Applicant stated that it came that way and had always been set to personal. Further, the meeting notes record that the Applicant’s support person showed Mr Grimshaw the setting on his own iPad and stated that this was the basis upon which the iPad was supplied. In response to a proposition from Mr Grimshaw that the Applicant changed the setting on his iPad to personal, the meeting notes record that the Applicant stated that he did not do this and the iPad was set to personal when it was given to him. [87] I turn now to consider each of the allegations and the Applicant’s responses to them both in writing and in meetings before his dismissal and his evidence to the Commission. Allegation 1 [88] Allegation 1 concerned the Applicant using his Qantas-issued iPad to access a website published at during work hours on 3 August 2017. In the letter of allegations sent to the Applicant on 30 October 2018, it was stated that the Applicant was rostered to work between 0600 and 1800 hours on 3 August 2017 and that the website was accessed at 1035 hours. The website was described in the allegations letter as “containing images that were obscene, pornographic, and/or offensive in nature”. During a meeting with the Applicant he was shown a printout of content from the website which included photographs of women wearing a range of lingerie items and advertisements for sex toys and “sex-help books”. 60 [89] In his first written response to the allegation provided to Mr Grimshaw on 11 November 2018, 61 the Applicant said that the website in question is a retail website that he visited briefly during a break in his work duties to purchase a gift for his partner. The Applicant also stated that the website is “an underwear retailing website” and does not depict naked genitalia or any sexual acts and that he did not consider it to be obscene, pornographic or offensive.62 Further, the Applicant said that if was seen by other employees and they took offence, he is remorseful and sincerely apologises. [90] The notes of the 17 December 2018 meeting indicate that the Applicant said that the website contained retail images, that he could see nothing wrong with them and that the images are no different to what you would see on television or a beach or anywhere else. The meeting notes also record that the Applicant stated, in response to a question, that he did not believe that if someone came into the Engineers hut and saw him looking at these images that they would see them as offensive. 63 In his witness statement to the Commission, the Applicant reiterated these points and added that he does not understand what Qantas means by alleging that the images on the website are offensive, pornographic or obscene and added that he does not understand what Qantas means by this.64 [91] Under cross-examination, the Applicant said that he was on a mailing list for that web site and had previously accessed it during a work break to buy his partner a gift. The Applicant said that he used his private email address rather than his Qantas address for the mailing list for the site. In response to the proposition that he holds the view that the web site is not offensive, pornographic or obscene, the Applicant said that this is his personal view and he now understands that Qantas has a different “interpretation”. While acknowledging that he had previously told Mr Grimshaw that he did not think there was anything wrong with the images on the site, the Applicant said that his current understanding is that this website is inappropriate to be viewed at work and accepted that it is fair that some people may find the contents of the site to be objectionable or offensive. 65 Allegations 2 and 3 [92] Allegations 2 and 3 were framed in identical terms and were that on two occasions – at approximately 0913 hours on 11 July 2018 and 1937 hours on 24 September 2018 – Ms Remfrey entered the Engineers hut after refuelling a flight and that the Applicant: a) Utilised the Company iPad to access what appeared to be a video selection page containing thumbnails of images that were pornographic in nature while on duty; b) Accessed the page in circumstances where the content of the page could be observed by other persons entering the hut; and c) Knew or ought to have known that the page would have been visible, and that accessing the page at work was likely to cause offence, intimidation or humiliation. [93] In relation to Allegation 2, the email exchange tendered by Mr Grimshaw in which he was informed of the report made by Ms Remfrey, indicates that on 11 July at 2.08 pm, Mr Aaron Dighton, Operations Manager Brisbane Airport for Caltex, emailed Mr Paul Sharp, Manager of Caltex Aviation Operations, stating that: “I am unsure how to handle this one. I overheard a conversation this morning between our Refueller Jennifer Remfrey, and other BAFS Refuellers when she came back into the office. After she refuelled Qantas domestic flight QF515 (Rego: VHVCX) on Bay 17 (refuel was finished at 09:13) she went to deliver the fuel docket to the engineer’s hut. She knocked on the door (which was shut) opened the door and entered the room as per normal practice. When she entered she noticed that the engineer in there closed down an iPad page that was a pornographic material selection page. The engineer appeared startled that she walked in. Jennifer gave him the docket and then left. No words were spoken between the two. I have spoken with Jennifer regarding this, and she says that it is nothing that she can’t handle and is not concerned about it. I feel however that I have a responsibility to act on this as the material is inappropriate for a workplace. Could you please engage with Qantas on how best to handle this matter.” 66 [94] Mr Sharp then emailed Mr de Guingand, Fuel Quality and Supply Specialist for Qantas, who after ascertaining that the allegation related to a Qantas Engineer, forwarded it to Mr Grimshaw. Allegation 3 was brought to Mr Grimshaw’s attention by a further email from Mr Dighton sent at 4.21 pm on 25 September 2018 in the following terms: “Unfortunately I need to bring to your attention another incident that has occurred with the same Refueller and the same Engineer yesterday, 24th September 2018. Our Refueller serviced QF563 to Sydney on Bay 18 and delivered the fuel docket to the Engineers hut. The Engineer in the Hut was the same Engineer that had been observed looking at pornography in July (what the below email thread was about). The docket was delivered in this case without any incident. The next aircraft for the refueller was QF639 to Melbourne on Bay 21, and the same Engineer was in the Engineers hut for this aircraft. When the docket was delivered in the Hut the Engineer had an iPad which had a page up showing pornographic material (it was described as a video selection page). When the refueller entered the hut the Engineer quickly put the iPad down and took the docket. What is of concern is that our refueller is feeling uncomfortable when they see this Engineer on the tarmac, and has been delaying going into the hut to deliver the docket, hoping they will come out to get it. I have asked the refueller whether if they wish to make a complaint or statement about this behaviour – they will think about it, but is concerned the Engineer will lose his job. The Engineer has been identified as “Moose”, however I am sure that through your own investigations that you will be able to identify who was assigned to these aircraft.” 67 [96] On 3 December 2018, Ms Saddi prepared and sent to Ms Remfrey a statement recording the matters they had spoken about in the telephone discussions in October and November and Ms Remfrey reviewed the statement and signed and returned it to Ms Saddi on 14 December (the 14 December statement). Ms Remfrey tendered that statement as an annexure to her witness statement in these proceedings and said it remains an accurate account of the incidents she witnessed. [97] The 14 December statement can be summarised as follows. On 11 July 2018 Ms Remfrey entered the Engineers hut after knocking twice. The Applicant was sitting down “semi-facing the door” holding an iPad up on the table. Ms Remfrey said that the iPad was facing up and was positioned so that whoever came into the hut would be able to see what was on the screen. Ms Remfrey stated: “I saw on the iPad a video selection page. The background of the page was black with splashes of white and contained squares, known as thumbnails, of all different video clips. Inside each thumbnail was images of semi-clothed girls and the thumbnail in the middle of the page had an image of a lady with a red outfit. I knew this was a video selection page of a pornographic nature as anybody at a certain age has watched porn, so you know what a selection page looks like. After I entered the engineering hut, [the Applicant] proceeded to have a startled look on his face and put the iPad face down on the table. However, it was too late as I had already seen the contents of the iPad scree. I rolled my eyes and said ‘It’s alright mate, its too late.’ ” 70 [98] Ms Remfrey went on in the 14 December statement to say that on 24 September 2018 a similar incident occurred. On that occasion, Ms Remfrey states that she had refuelled flight QF639 and was reluctant to enter the Engineers hut and hoped the Applicant would come out to collect the fuel docket. Eventually Ms Remfrey entered the Engineers hut without knocking and observed the Applicant sitting in a similar position as when she saw him on 11 July, facing the same way and holding the iPad up in the same way. Ms Remfrey also states that she saw the same video selection page that she saw on the previous occasion with the same page background and the same squares/thumbnails. Ms Remfrey further states that when the Applicant saw her, he put the iPad facing down on the table and said : “oh oh”. Ms Remfrey is also recorded as asserting that the Applicant’s reaction was fake as he would have known that she was walking towards him because he knows what time the refuellers finish and that it would be time to collect the docket. In contrast to the email from Mr Sharpe on 25 September reporting the incident, Ms Remfrey’s statement does not include that she delivered the fuel docket from QF563 without incident and that the alleged conduct occurred on the second occasion that she entered the Engineers hut.
[95] The investigation into Ms Remfrey’s allegations was conducted by Mr Grimshaw with the assistance of Ms Saddi, who interviewed Ms Remfrey by telephone on 22 October 2018. A file note of a teleconference with Ms Remfrey conducted by Ms Saddi 22 October was called for and produced by Qantas and was tendered into evidence on behalf of the Applicant. 68 Ms Saddi had a further telephone discussion with Ms Remfrey on 23 November to finalise her statement. Mr Grimshaw tendered a file note contained in an email sent to him on that date by Ms Saddi indicating that during the 23 November telephone discussion Ms Remfrey had “shared” with Ms Saddi that Ms Remfrey had spoken to another female refueller (Ms Downes) who had informed Ms Remfrey that she had also seen the Applicant “on multiple occasions” watching pornography on his iPad in the Engineers hut. Ms Saddi also informed Mr Grimshaw that Ms Remfrey had contacted Ms Downes and that Ms Downes was prepared to make a statement to support Ms Remfrey.69
[298] The fact that Ms Remfrey said that she saw the same video selection page on both occasions is also not a matter which could properly be found to negatively impact on Ms Remfrey’s credit as a witness. A video selection page for a website featuring pornographic videos may be similar to that of another such selection page notwithstanding that the images in the thumbnail sketches are different, and this was conceded by Ms Remfrey in cross-examination.
[299] I have also considered that Ms Remfrey was unable to remember incidental details, about the incidents with the Applicant and that notwithstanding this, Ms Remfrey did not depart from her evidence about what she saw. I do not accept that the fact that Ms Remfrey could not remember incidental details indicates any lack of recollection about the essence of her allegations. Nor do I accept the fact that Ms Remfrey’s recollection became more detailed in subsequent statements and in her evidence to the Commission, is a basis to place less reliance on that evidence. I accept the submission of Counsel for Qantas that subsequent to making her first statement, Ms Remfrey was asked for more detail including being subjected to cross-examination and questioning at the hearing of this application and that this explains any additional details she recalled. It is also the case that the additional details were not significantly at odds with Ms Remfrey’s original statements so that any assertion of recent invention could be sustained.
[300] Issue could be taken with Ms Saddi’s record of Ms Remfrey’s allegation – in particular that Ms Saddi removed statements made by Ms Remfrey to the effect that her views that she was being treated differently by engineers after she reported the Applicant’s conduct may be paranoia. While I accept that Ms Saddi may have placed a gloss on the record of interview, I do not accept that this goes to the credit of Ms Remfrey or her recollection about the incidents that she alleged. Ms Remfrey appropriately conceded during cross-examination, that her perceptions about how she was being treated by other engineers, after reporting the Applicant’s conduct were not correct. Ms Remfrey made a similar concession that the contents of her statement indicating concern about going into the Engineers hut on 24 September 2018, may also have been incorrect, based on the fact that she had refuelled with the Applicant on a number of occasions, between the first and second incidents. As I have previously noted, it is possible that on 24 September Ms Remfrey went into the hut once without incident before seeing the material she complained of on the screen of the Applicant’s iPad, and that her evidence that she was anxious before she entered the Engineers hut may not have been accurate or may have been embellished. However, I do not accept that either of these matters provide a basis to disbelieve Ms Remfrey’s evidence about what she saw on the screen of the Applicant’s iPad.
[301] Quite simply there is no evidence that Ms Remfrey had any reason to invent such a serious allegation about the Applicant and any antipathy that she displayed towards him in giving her evidence, including embellishing her feelings about entering the Engineers hut at the relevant time, can be explained by the fact that she was distressed and angry at what she had seen and that she had to be placed in the difficult situation of reporting it, and being a witness in these proceedings.
[302] I also found Ms Downes to be an entirely credible witness. While Ms Downes was also angry and distressed when she gave her evidence, this is explained by the fact that Ms Downes strongly believed that she should not have been put in a position whereby she was exposed to pornography in the workplace and required to report it and give evidence about her experience. In this context her emotional state during the hearing is understandable. Ms Downes’ distress and anger are further explained by her feelings of guilt about not reporting her experiences in 2016, and her belief that had she done so, Ms Remfrey would not have experienced the same conduct. I accept that there was a delay between the occurrence of the incidents that Ms Downes complained of and her reporting those incidents. However, that delay was explained by Ms Downes, and her explanation was reasonable. It remains the case that Ms Downes had a clear recollection of what she saw on the screen of the Applicant’s iPad, and I see no basis to doubt her evidence. It is also the case that Ms Downes contemporaneously reported her experience to a supervisor who confirmed this in a statement to the Commission.
[303] Further, I consider that the discussion between Ms Remfrey and Ms Downes about their experiences with the Applicant did not affect their credit in any way. Ms Downes and Ms Remfrey did not seek each other out for the purposes of collaborating in relation to statements about the Applicant’s conduct. They were together in a vehicle by coincidence. It is entirely understandable that in circumstances where Ms Downes and Ms Remfrey were together at the Brisbane airport by coincidence, and where Ms Remfrey was in the process of providing a report to Qantas about her experiences, that they would have a discussion. This is made even more likely by the fact that Ms Downes and Ms Remfrey were in a minority, being female aircraft refuellers, working almost exclusively with males.
[304] It is also significant that both Ms Remfrey and Ms Downes reported what they had seen to their supervisors, and notwithstanding that their reports were made almost two years apart, and without any collaboration, both described that they had seen a selection page for pornographic videos on the screen of the Applicant’s iPad on multiple occasions.
[305] I do not accept the Applicant’s denial that he viewed pornographic material in the workplace. My reasons for not accepting the Applicant’s evidence and preferring the evidence of Ms Remfrey and Ms Downes, are as follows. The Applicant was a prolific viewer of pornographic material, to the extent that he viewed some 32 pornographic videos while he was absent for two days on personal leave. The Applicant was also a frequent visitor to websites where free pornographic movies may be viewed. The titles of the URLs viewed by the Applicant contain references which are consistent with some of the images which Ms Downes claimed to have seen on the screen of the Applicant’s iPad. While the Applicant specifically denied that he viewed pornography involving young women, this denial is at odds with the listed titles which contain multiple references to teenagers engaging in a range of sexual acts including with “step-moms” and step-sisters, although it is not the case that any of the titles indicate unlawful content.
[306] I do not accept that the lack of browsing history on the Applicant’s iPad for the period 17 May to 16 August 2018, including to sites where pornographic material is found, establishes a basis for finding that the allegations about viewing pornography at work, made by Ms Remfrey, should not have been substantiated. I note that the gap in browsing history includes the date of 11 July 2018 when Ms Remfrey claims that she saw the pornographic video selection page on the screen of the Applicant’s iPad. I also note that in the period leading up to 24 September 2018 (the second date alleged by Ms Remfrey) there was no record of browsing in the days immediately before the incident.
[307] There are a number of possible explanations for the lack of browsing history in these periods:
• The Applicant did not browse the internet at all during that period and only used 4G data to update work related apps on the iPad;
• The Applicant engaged in private or incognito browsing; or
• The Applicant manually deleted his browsing history for that period.
[308] All possible explanations need to be assessed in light of the fact that there was data used on every day during the period of the gap in browsing history between 17 May and 16 August 2018 and on some days large amounts of data exceeding 50MB was used. The explanations also need to be considered in light of the Applicant’s browsing history and his evidence that he used the iPad to browse the internet at least every second day.
[309] In relation to the first possibility that he did not browse during the gap period, the Applicant provides no explanation as to why he would have significantly altered his habits in the gap period. The lack of personal browsing both on pornographic and other sites, is uncharacteristic when the Applicant’s browsing history from 2016 onwards is considered. In relation to the second possible explanation, the Applicant’s denial of knowing how to engage private browsing may be untruthful or he may have turned on private browsing inadvertently. On Ms Leonardi’s evidence, this is not difficult. In relation to the third possibility, while it is unlikely that the Applicant would have selectively deleted browsing in this period and left all his other browsing history on the iPad – particularly to pornographic sites – it cannot be ruled out.
[310] Even if the Applicant did not browse the internet at all during this period, it does not remove the possibility that he was viewing pornographic material on the iPad while at work. This is because sites browsed by the Applicant could have simply been cached on the iPad and been available to be viewed when the Applicant opened safari. In this regard, Ms Leonardi’s evidence was that if the page was not refreshed it still could have been viewed. It is also possible that a pornographic video selection page cached on the iPad could have been refreshed using 4G data. Ms Leonardi also said this would not have been recorded on the browsing history of the iPad.
[311] I accept that the possibility of pages being cached on the Applicant’s iPad was not put to him and that he may have denied this possibility by stating that he always took care to close pages to avoid such a situation. However, in circumstances where I prefer the evidence of Ms Remfrey and Ms Downes to that of the Applicant, it is an explanation to which I am able to have regard in weighing the evidence and concluding that on the balance of probabilities, the Applicant was viewing pornographic material on his iPad at work.
[312] In relation to Ms Downes’ allegations there was evidence of the Applicant viewing pornographic material on the iPad in 2016. While I accept that the Applicant’s concession that Ms Downes stated to him on one occasion that what he was viewing on his iPad was “fucking disgusting” is to his credit, that evidence supports a finding that the Applicant was viewing a video selection page for a pornographic video site, in the context of the other evidence in relation to his viewing of such sites privately, and in light of Ms Downes’ rejection of the proposition that what she saw on the iPad was the erotic lingerie site. As I have noted, there are numerous titles in the videos searched by the Applicant on the iPad that meet the description Ms Downes gave of what she saw on the screen of the iPad.
[313] In my view the existence of these possibilities and the intermediate facts which underpin them, in combination with the evidence of Ms Remfrey and Ms Downes – both of whom were credible witnesses – supports a finding that the Applicant was viewing pornography in the workplace on his Qantas issued iPad. Accordingly, I am satisfied and find that on at least five occasions the Applicant was viewing a video selection page containing thumbnail images of pornographic videos on his Qantas issued iPad.
[314] It is irrelevant whether the page had been refreshed and it is sufficient to make out the allegations of Ms Remfrey and Ms Downes that such material was on the screen of the Applicant’s iPad and seen by them. It follows that I do not accept the Applicant’s denial that he viewed such material in the workplace. In light of the Applicant’s denial of these allegations, there is no room for a finding that any viewing of such material in the workplace was accidental or that his viewing of such material at work is mitigated by a lack of understanding about the interaction between various policies and terms and conditions relating to the use of the iPad.
[315] The Applicant can have been in no doubt that viewing pornographic material in the workplace was a serious breach of the SOC Policy and the IT Policy and that Qantas would respond strongly to such conduct. The Applicant should also have known that other work colleagues, including female colleagues, could enter the engineering hut at any time with little warning, and that there was a possibility that they could see the screen of his iPad. The Applicant should also have known that female colleagues are not the only group of persons who might find such material offensive or be intimidated or harassed by it.
[316] It is also the case that at the point the incidents with Ms Remfrey occurred, the Applicant had been forewarned by Ms Downes informing him in no uncertain terms that what he was viewing on the screen of his iPad was “fucking disgusting”. If the Applicant did not realise the danger of viewing such material at work where it could be seen by colleagues before Ms Downes made that comment, he can have been in no doubt after she said this. Regrettably, the Applicant ignored the comment and chose to tempt fate by continuing to view pornographic material in the Engineers hut, where it was also seen by Ms Remfrey. In a further twist of fate, both women found themselves sharing a vehicle and their mutual experiences, with the result that their allegations were corroborated.
[317] I do not accept that the Applicant deliberately timed his viewing of pornographic material for the purpose of harassing Ms Remfrey or Ms Downes. The evidence does not establish this aspect of the allegation. Nonetheless, two women on five separate occasions were subjected to pornography in the workplace. The serious repercussions of this conduct cannot be understated. In circumstances where both women walked into a hut and were alone with the Applicant, in circumstances where he was looking at pornography, their perceptions that his conduct was intentional were reasonable. I am satisfied that the Applicant ought to have known that the iPad screen was visible and that it was probable or even possible that a female refueller would enter the hut. The Applicant should also have known that this could cause offence, intimidation or humiliation to female colleagues or other colleagues.
[318] There is no excuse for the Applicant viewing pornography at work. There is no basis upon which he can reasonably assert that he did not know that to do so would breach the SOC Policy. Given my finding that the Applicant did engage in this conduct, despite his denials, the Applicant’s preparedness to apologise for any offence he may have caused to Ms Remfrey or Ms Downes, or to undertake that the conduct will not be repeated because he now understands Qantas policies, is not a matter to which I attach significant weight. The Applicant should not have viewed such material at work and by doing so he has caused significant distress to both Ms Remfrey and Ms Downes, the effect of which continues. It is also the case that despite the Applicant’s apologies and expressions of regret, and notwithstanding that he accepted that Ms Downes and Ms Remfrey may have seen something on the iPad screen which upset them, the Applicant’s denial that he was viewing pornography, implicitly impugns the credit of Ms Downes and Ms Remfrey.
[319] I find that the applicant’s conduct in relation to Ms Remfrey and Ms Downes was a valid reason for his dismissal. This conduct, viewed in isolation or in combination with viewing an erotic lingerie website and offensive and obscene images at work, is such that dismissal is a sound, defensible and well-founded response. This conclusion is further supported by the Applicant’s continued denial of his conduct with respect to Ms Remfrey and Ms Downes and the ongoing impact of that conduct on them.
[320] Accordingly, I am satisfied and find that there was a valid reason for the Applicant’s dismissal.
Whether the Applicant was notified of the reason for his dismissal
[321] I am satisfied and find that the Applicant was notified of the reason for his dismissal in a number of pieces of correspondence including a letter advising of his dismissal and orally at a meeting prior to the dismissal.
Opportunity to respond to any reason for dismissal related to capacity or conduct
[322] There is substance to the submission for the Applicant that he was not given an opportunity to respond to reasons for his dismissal related to his conduct by virtue of the manner in which he was dealt with by Mr Grimshaw and Ms Hobl. In particular, there was a complete lack of engagement with the Applicant’s responses to the allegations in relation to the Mobility Terms and Conditions and the Comp Portal app and the Applicant’s belief that his private use of the iPad had not breached any Qantas policies.
[323] For the reasons set out above, the Applicant’s views about private use of the iPad were reasonable. Despite the Applicant and his support person demonstrating to Mr Grimshaw that the iPads were set to personal and the privacy statement in the Comp Portal, Mr Grimshaw did not make any inquiries about these matters or have regard to the Applicant’s response. Ms Hobl’s view about these matters was even more fixed than the view of Mr Grimshaw. As a result, Allegation 5 was substantiated in circumstances where it should not have been and Allegations 1 and 4 were given more weight than was justified.
[324] It is also of significant concern that Ms Hobl was unable to provide a cogent explanation about the meanings of terms set out in the policies she purported to apply – for example “pornographic”, “offensive” and “obscene”. Ms Hobl was the decision maker and regrettably she was incapable of bringing an objective view to her task. Of particular concern, was Ms Hobl’s propensity to assess the Applicant’s conduct by reference to irrelevant and subjective matters such as whether she would be happy if her daughter was portrayed in some of the images on his iPad. Ms Hobl also maintained untenable positions such as her definition of “unlawful” conduct as being conduct in breach of Qantas policies.
[325] With respect to Ms Hobl, her approach to deciding whether the Applicant had engaged in misconduct justifying dismissal was inappropriate, particularly in circumstances where she was dealing with serious allegations against a long-term employee, with an otherwise unblemished work history. Ms Hobl was pressed in cross-examination and made a number of significant concessions about her findings. In other instances Ms Hobl refused to make concessions and maintained an untenable position. Mr Grimshaw also made significant concessions – in my view correctly – to the effect that a number of the allegations should not have been substantiated. The overwhelming impression from Mr Grimshaw’s evidence was that he readily accepted under cross-examination that a number of allegations against the Applicant should not have been substantiated. Quite simply, Mr Grimshaw should have come to that conclusion as part of the findings and outcomes he forwarded to Ms Hobl.
[326] Notwithstanding my concerns about these matters, they are not of such significance that they render the dismissal unfair in circumstances where I am satisfied that the Applicant did engage in conduct to which dismissal was a sound, defensible and well-founded response. I am also of the view that responses to the allegations relating to Ms Downes and Ms Remfrey, and the other allegations which I have found to have been made out, have now been ventilated by and on behalf of the Applicant in these proceedings. I do not accept the responses and I do not accept that had they been provided to Qantas before the Applicant was dismissed, that these matters are of such significance that they would properly have resulted in an outcome other than dismissal.
Any unreasonable refusal to allow the Applicant to have a support person
[327] The Applicant had a support person present to assist him in discussions relating to dismissal and this consideration is not relevant in the present case.
Whether the Applicant was warned about any unsatisfactory performance
[328] The Applicant was not dismissed for unsatisfactory work performance and this consideration is not relevant in the present case.
Impact of size of employer’s enterprise and any absence of dedicated human resource management representatives on procedures followed in effecting the dismissal
[329] Qantas is a major employer with dedicated internal human resource management representatives and access to experienced external advisors. It is appropriate to hold Qantas to a high standard in terms of its dismissal processes. Issues with those processes have been considered elsewhere in this decision and there are no additional matters for consideration under these provisions.
Other relevant factors
[330] The Applicant raises a number of factors said to be relevant to whether his dismissal was unfair. First, the Applicant points to his extraordinarily long period of excellent service with Qantas and submits that this renders his dismissal harsh. It is further submitted that there is an absence of future risk of similar conduct and that this supports a conclusion that the dismissal was unfair.
[331] I accept that the length and unblemished nature of the Applicant’s employment weighs in favour of a finding that his dismissal was harsh as does the impact of the dismissal, because it is unlikely that the Applicant will find a similar role with another employer. However, this must be balanced against my finding that the Applicant engaged in misconduct involving the viewing of pornography in the workplace in blatant disregard for Qantas Policies. It is also the case that the Applicant has steadfastly denied this conduct in circumstances where I have found that on the balance of probabilities it did occur. Further, the pornographic material viewed by the Applicant was seen by two female employees on five occasions and had a significant impact on them. These factors weigh against a finding of harshness.
[332] I do not accept the Applicant’s second point to the effect that the conduct he engaged in is at the lower end of the scale of misconduct. To the contrary. It goes without saying that employees should not view pornography in the workplace and that an employee who engages in this pastime will generally be found to have engaged in serious misconduct. By viewing pornography in the workplace, the Applicant placed Qantas at risk in its duty of care to its own employees and those of its contractors. One needs to look no further than the distress of Ms Remfrey and Ms Downes, and the ongoing impact that the Applicant’s conduct had on them, to appreciate its serious implications.
[333] I also do not accept that the misconduct cases cited by Mr Purvinas involve a proper comparison for the purposes of establishing differential treatment. The cases do not involve comparing apples with apples and I am not persuaded that they are relevant to the present case.
[334] In all of the circumstances and after weighing the criteria in s 387 of the Act, I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable. In reaching this conclusion I have considered the harshness of the Applicant losing his employment close to the end of a long career with Qantas. I have also considered whether the manner in which Mr Grimshaw and Ms Hobl dealt with the allegations has resulted in the dismissal being unjust. For the reasons set out above, I have concluded that any injustice to the Applicant does not outweigh the validity of the reason for the dismissal.
CONCLUSION
[335] Accordingly, the Applicant’s dismissal was not unfair. The Application in U2019/3179 is dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms L Saunders of Counsel instructed by the ALAEA for the Applicant.
Mr A Pollock of Counsel instructed by Ashurst for the Respondent.
Hearing details:
23 - 25 October and 8 November.
2019.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR720009>
1 Witness Statement of Gary Mellios Exhibit A1; Witness Statement in Reply of Gary Mellios Exhibit A2.
2 Witness Statement of Stephen Purvinas Exhibit A3; Witness Statement in Reply of Stephen Purvinas Exhibit A4.
3 Statement of Jennifer Louise Remfrey Exhibit R2.
4 Statement of Jennifer Maree Downes Exhibit R3.
5 Statement of Martin Leslie Grimshaw Exhibit R4.
6 Statement of Christina Leonardi Exhibit R5.
7 Statement of Gerald-Jan Henry Pinto Exhibit R6.
8 Statement of Paul Michael Barry Exhibit R7.
9 Statement of Tracey-Anne Marion Hobl Exhibit R9.
10 Statement of Glen Andrew Stapleton, Exhibit R10.
11 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
12 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
13 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
14 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
15 Bista v Glad Group Pty Ltd [2016] FWC 3009.
16 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
17 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].
18 (1992) 110 ALR 449.
19 Ibid at 450.
20 Ibid at 451.
21 Shepherd v The Queen (1990) 170 CLR 573 at 579.
22 (2011) 198 FCR 514.
23 Ibid at 541.
24 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
25 Transcript PN4796.
26 Transcript PN29.
27 Exhibit R9 at paragraph 12.
28 Exhibit R4 Annexure MG-2.
29 Transcript PN2038 – 2072, 2085 – 2092.
30 Exhibit R4 Annexure MG-1.
31 Exhibit R5 Annexure CL-1.
32 Exhibit R5 Annexure CL-2
33 Exhibit R5 Annexure CL-3.
34 Exhibit R5 Annexure CL-3
35 Exhibit R5 Annexure CL-6.
36 Transcript PN3100 – 3105.
37 Transcript PN3112 – 3117.
38 Transcript PN3118.
39 Transcript PN3152-3156.
40 Transcript PN3164-3178.
41 Exhibit R6 Annexure GP-1.
42 Exhibit A1 Statement of Gary Christopher Mellios paragraph 9.
43 Exhibit A1 Annexure GM-2.
44 Transcript PN278 – 283.
45 Transcript PN273 – 276.
46 Exhibit R7 Annexure PB-1.
47 Exhibit R4 Annexure MG-18.
48 Transcript PN3359 – 3362; Transcript PN3372 – 3381.
49 Transcript PN3378.
50 Transcript PN3404 – 3414.
51 Transcript PN3429 – 3439.
52 Transcript PN3014.
53 Exhibit A1 Annexure MG-5; Exhibit R4 Annexure MG-10.
54 Exhibit R4 Annexure MG-11.
55 Exhibit A1 Annexure GM-6.
56 Exhibit A1 Annexure GM-7; Exhibit R4 Annexure MG-14.
57 Exhibit A1 Annexure GM-8.
58 Exhibit R4 Annexure MG-10.
59 Exhibit R4 Annexure MG-19.
60 Exhibit R4 Annexure MG-17.
61 Exhibit A1 Annexure GM-5.
62 Exhibit R4 Annexure MG-10.
63 Exhibit R4 – Annexure MG-17.
64 Exhibit A1 paragraphs 18 – 22.
65 Transcript PN334 – 345.
66 Exhibit R4 – Annexure MG-3.
67 Exhibit R4 – Annexure MG-4.
68 Exhibit A5.
69 Exhibit R4 Annexure MG-13.
70 Exhibit R2 Annexure JR-1.
71 Exhibit R3 paragraph 12.
72 Exhibit A5.
73 Transcript PN980 – 1008.
74 Transcript PN1057 – 1064.
75 Exhibit R4 Annexure MG-18.
76 Exhibit A2.
77 Exhibit A2 Annexure GM-15.
78 Exhibit R90 Annexure TH-7.
79 Transcript PN460.
80 Exhibit R9 Annexure TH-9.
81 Transcript PN479 – 486.
82 Exhibit A1 Annexure GM-6.
83 Transcript PN490 – 491.
84 Transcript PN492 – 493.
85 Exhibits R10 and R11.
86 Exhibit R3, Witness Statement of Jennifer Maree Downes Annexure JD-1.
87 Ibid at paragraph 34.
88 Transcript PN1547 – 1549.
89 Transcript PN17 29 – PN1741.
90 Transcript PN1840 – 1846.
91 Transcript PN1920 – 1930.
92 Transcript PN1935.
93 Exhibit R8, Witness Statement of Glen Stapleton.
94 Transcript PN528.
95 Transcript PN537.
96 Exhibit R9 Annexure TH-10.
97 Transcript PN572 – 574.
98 Transcript PN724.
99 Exhibit R4 Annexure MG-26.
100 Transcript PN2189 – 2196.
101 Transcript PN2022 – 2206.
102 Transcript PN2216 – 2227.
103 Transcript PN2232 – 2246.
104 Transcript PN2249 – 2261.
105 Transcript PN2281 – 2287.
106 Transcript PN2291 – 2300.
107 Transcript PN2302 – 2310.
108 Transcript PN2311 – 2323.
109 Transcript PN2332 – P2358.
110 Transcript PN2398 – 2415,
111 Transcript PN2430 – 2437; PN2445 – 2453.
112 Transcript PN2454 – 2464.
113 Transcript PN2468 – 2477.
114 Transcript PN2513 – 2521.
115 Transcript PN2490 – 2497, 2504, 2507 – 2512.
116 Transcript PN2480.
117 Transcript PN2525 – 2536, 2547 – 2549, 2574.
118 Transcript PN2607.
119 Transcript PN2610 – 2619.
120 Transcript PN2460 – 2854.
121 Exhibit R9 Annexure TH-4.
122 Exhibit R9 Annexure TH-10.
123 Transcript PN3848, PN3860, 3871.
124 Transcript PN3999 – 4007.
125 Transcript PN4008 – 4025.
126 Transcript PN4045 – 4064.
127 Transcript PN4185.
128 Transcript PN4317 – 4326.
129 Transcript PN4327.
130 Transcript PN4328 – 4330.
131 Transcript PN4338 – 4339.
132 Transcript PN4344 – 4349.
133 Transcript PN4376 – 4377.
134 Transcript PN4386 – 4387.
135 Transcript PN4410 – 4419.
136 Transcript PN4555 – 4569.
137 Transcript PN4625 – 4626.
138 Transcript PN4634.
139 (2006) 156 IR 393.
140 Queensland Rail v Wake (2006) 156 IR 393 at [3].
141 Transcript PN8 – 10; 16 – 19.
142 Ibid at 395.
143 [2011] FWA 1230.
144 Ibid at [282].
145 [2012] FWAFB 4810 at [26].
146 Exhibit R5 Annexure CL-2.
147 [2011] FWA 1230.
148 Ibid at [280].
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