Gregory v Qantas Airways Ltd

Case [2016] FCAFC 7

FEDERAL COURT OF AUSTRALIA

Gregory v Qantas Airways Ltd [2016] FCAFC 7

File number(s): NSD 554 of 2015
Judge(s): BUCHANAN, BROMBERG AND RANGIAH JJ
Date of judgment: 3 February 2016
Catchwords:

INDUSTRIAL LAW – applicant’s employment terminated for conduct while abroad – applicant alleged he could not recall behaviour that was the basis of his termination – applicant alleged his drink had been spiked – scientific expert evidence produced – no discussion of expert evidence in Commissioner’s decision – applicant claimed jurisdictional error in failure to address expert evidence – Commissioner did not find that termination was harsh, unjust or unreasonable – apparent from Commissioner’s reasons that he was able to reach decision without reference to expert evidence – challenge to Commissioner’s decision does not identify jurisdictional error

INDUSTRIAL LAW – application for leave to appeal considered by Full Bench of Fair Work Commission (“FWC”) – Full Bench gave direction that only question of permission to appeal would be dealt with in written and oral argument – Full Bench decided the matter by reference to the full ambit of the appeal – counsel had no adequate opportunity to develop or put a submission about merits
Legislation:

Fair Work Act 2009 (Cth), ss 385, 385(b), 387, 387(a), 387(b)–(g), 387(h), 394, 400, 400(1), 400(2), 604, 604(1)

Judiciary Act 1903 (Cth), s 39B

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630

Byrne v Australian Airlines Limited (1995) 185 CLR 410

Gregory v Qantas Airways Limited [2015] FWC 1154

Gregory v Qantas Airways Limited [2015] FWCFB 2599

Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178

Lu v Heinrich [2014] NSWCA 349

Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Osland v Secretary, Department of Justice (2008) 234 CLR 275

Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320

O’Sullivan v Farrer (1989) 168 CLR 210

Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636

Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537

Villani v Holcim (Australia) Pty Ltd (2011) 198 FCR 81

Date of hearing: 16 November 2015
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 88
Counsel for the Applicant: Ms K Nomchong SC with Mr I Latham
Solicitor for the Applicant: Turner Freeman Lawyers
Counsel for the First Respondent: Mr R Warren
Solicitor for the First Respondent: Ashurst Australia
Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs

ORDERS

NSD 554 of 2015
BETWEEN:

STEVEN GREGORY

Applicant
AND:

QANTAS AIRWAYS LIMITED

First Respondent

FAIR WORK COMMISSION
Second Respondent

JUDGES:

BUCHANAN, BROMBERG AND RANGIAH JJ

DATE OF ORDER:

3…

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Details
AGLC
Gregory v Qantas Airways Ltd and Another [2016] FCAFC 7
Case
[2016] FCAFC 7
Decision Date

CaseChat Overview and Summary

The applicant in this case, Mr. Gregory, sought to overturn a decision by the Fair Work Commission (FWC) to refuse his application for reinstatement to his position as a First Officer with Qantas Airways Ltd. Mr. Gregory's employment was terminated following an incident in Santiago, Chile, where he allegedly touched and "massaged" the breast of a female Second Officer in a taxi. Mr. Gregory contended that his drink had been spiked and he could not recall the events of the evening, a claim supported by scientific expert evidence. The Commissioner did not consider this evidence in his decision, and Mr. Gregory argued this was a jurisdictional error.

The primary legal issue in this case was whether the Commissioner's failure to address the expert evidence constituted a jurisdictional error. Additionally, the Full Bench of the FWC decided the matter by reference to the full ambit of the appeal, rather than just the question of permission to appeal, which counsel had not been adequately prepared to address. This procedural issue was significant, as it potentially deprived the applicant of a fair opportunity to present his case.

The Court found that the Commissioner did not make a jurisdictional error in failing to address the expert evidence, as it was apparent from his reasons that he was able to reach his decision without reference to this evidence. Furthermore, the Court held that the Full Bench's decision to address the full ambit of the appeal did not identify a jurisdictional error. The Court dismissed Mr. Gregory's application for leave to appeal and quashed the decision of the Full Bench.

The Court granted a writ of mandamus requiring the FWC to reconsider Mr. Gregory's notice of appeal according to law. This decision highlights the importance of procedural fairness in administrative law proceedings and the need for parties to be given a reasonable opportunity to present their cases.

Orders

Orders of the court

1. So much of the application as alleges jurisdictional error by Commissioner Cambridge in his decision on 27 February 2015 in Gregory v Qantas Airways Ltd [2015] FWC 1154 be dismissed.

2. A writ of certiorari be issued to quash the decision of the Full Bench of the Fair Work Commission (“FWC”) on 24 April 2015 in Gregory v Qantas Airways Ltd [2015] FWCFB 2599.

3. A writ of mandamus be granted requiring the FWC to deal again, according to law, with the notice of appeal filed by the applicant on 19 March 2015.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The proceedings in this Court were commenced on 18 May 2015. They rely on s 39B of the Judiciary Act 1903 (Cth), seeking that a writ of mandamus be issued to the FWC requiring that the application for reinstatement be heard again, supported by claims that writs of certiorari be issued to quash both decisions. Relief of this kind is only available to the applicant to address jurisdictional error. The merits of the application for reinstatement do not arise for consideration in this Court. The factual background The applicant was dismissed from his employment as a First Officer flying B747 aircraft on Qantas international services on 7 May 2014, as a result of events which occurred in Santiago, Chile on the evening of 8 February 2014 and into the early morning of 9 February 2014 (Santiago time). There was no suggestion in the proceedings before the FWC that the applicant had other than a satisfactory record as a pilot with the first respondent over a period of 20 years. The immediate cause of the termination decision was that the applicant touched and “massaged” the breast of a female Second Officer (“S/O”) in a taxi. The circumstances of that incident require further explanation. On 8 February 2014, the applicant flew with Captain David Hawkins, S/O Ryan Pratt, and the female S/O (who was anonymised by Commissioner Cambridge) to Santiago. After landing they arrived at their hotel at about 2 pm local time. They were not due to leave Santiago until early afternoon on 10 February 2014 to return to Sydney. On the afternoon of 8 February 2014, the pilots drank some rum (S/O Pratt drank only cola) and then went to dinner. All then drank beer and some wine. They then went to a bar, arriving at about 11.25 pm. The applicant left the others and returned about 25 to 30 minutes later. They noticed a significant change in his demeanour and behaviour. The applicant appeared to be very intoxicated and, for various reasons, his behaviour made them uncomfortable. They decided to take him back to the hotel. The applicant would later suggest that while he was away he must have taken a “spiked” drink although he could not remember much of the events of the evening after arriving at the bar. Drug tests performed on a urine sample taken in Santiago showed that the applicant had elevated levels of cannabinoids in his system, suggesting that he had ingested or smoked cannabis on the evening in question. On the taxi ride back to the hotel the applicant inappropriately touched the female S/O. She was upset by the incident, which was noticed by S/O Pratt and which was, a short time later, reported to Captain Hawkins who had apparently not observed it, having travelled in the front seat while the others were in the back seat. A short time after their return to the hotel, Captain Hawkins found the applicant “passed out” on the floor of his hotel room. The applicant did not respond to a phone call from Captain Hawkins at around 9.30 am that morning. Captain Hawkins rang again at around 1.30 pm and on this occasion woke the applicant. He advised the applicant that he would be stood down for the return trip. When told by Captain Hawkins of the reported inappropriate touching of the female S/O the applicant immediately apologised and claimed no memory of the previous evening, from shortly after their arrival at the bar when he left the others.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances of the applicant’s case, having regard to the procedures by which he was afforded an opportunity to address the first respondent’s concerns, the only matters which arose for consideration by Commissioner Cambridge were those stated by s 387(a) and (h). The first decision Commissioner Cambridge recorded the following matters put on behalf of the applicant which were relevant to s 387(a) and (h): The Case for the Applicant… [28] Ms Nomchong submitted that the first theory as to the applicant’s activities at the Irish pub involved a number of conclusions which had been broadly adopted by Qantas. In this first theory the applicant left his colleagues and went upstairs to another bar and got himself stoned or drunk or a combination of both, during the 25 to 30 minutes that he was away from the others. In this first theory, as had been adopted by Qantas, the actions of the applicant were deliberate to the extent that he was responsible for his highly intoxicated state when he returned to his colleagues and then subsequently inappropriately touched S/O x. [29] The second or alternative theory which was advanced by Ms Nomchong proposed that the applicant separated from his colleagues at the Irish pub when he went upstairs to look for a table and go to the toilet. On his way to the toilet the applicant ordered a beer then while he was in the toilet the drink was spiked. After he came back to the bar and consumed the spiked drink he was given food which contained Cannabinoids or THC. Ms Nomchong further submitted that if this second theory was correct, the actions of the applicant which followed was involuntary and the inappropriate touching of S/O x could not be held to have been intentional and was therefore not serious misconduct. Ms Nomchong said that in these circumstances the absence of serious misconduct meant that there was not a valid reason for the dismissal of the applicant. [30] Ms Nomchong made further submissions which she said supported the prospect that the second theory, as opposed to the first theory, was more likely to be the correct basis upon which to attribute the activities of the applicant in that period of time that he and the other flight crew were at the Irish pub immediately before the inappropriate touching of S/O x. In support of the second theory, Ms Nomchong relied upon the soundly established unblemished work record of the applicant. According to the submissions of Ms Nomchong, it would be completely out of character and inconsistent with the exemplary work record of the applicant for him to lie about what he did when he separated from his colleagues shortly after arriving at the Irish pub. [31] Further, Ms Nomchong submitted that the second theory was supported by what she described as the commonsense test. Ms Nomchong said that it did not make sense for the applicant to deliberately consume cannabis and/or large amounts of alcohol in the presence of Captain Hawkins who was at the time, the Acting Captain of the Qantas B747 fleet. As it was put by Ms Nomchong, it did not make sense for anyone who wanted to “go on a bender” to do so in the presence of their boss. [32] In addition, it was submitted by Ms Nomchong that if the applicant was lying about his activities at the Irish pub and he was endeavouring to fabricate a proposition involving his drink being spiked, he could have easily supported that fabrication by falsely stating that upon checking his wallet the next day money had been missing. Instead the applicant had advised his colleagues that he calculated that he must have spent only about 6000 pesos while he was at the Irish pub. According to Ms Nomchong, further support for the second theory was also provided by factors such as; the applicant’s contrition; the apology which was accepted by S/O x; the applicant’s immediate cooperation with the investigation into the incident; the absence of any formal complaint by S/O x; and, the evidence that S/O Pratt could not smell marijuana when he was in the close proximity of the applicant in the taxi. [33] Ms Nomchong urged the Commission to conclude that the second theory as she had described and advocated, correctly accounted for the applicant’s activities at the Irish pub. Therefore, according to Ms Nomchong, the subsequent inappropriate touching of S/O x could not be held to have been the intentional action of the applicant as he was an innocent victim of drink spiking. Ms Nomchong said that it consequently followed that there was no valid reason for the dismissal of the applicant. [34] As an alternative submission advanced by Ms Nomchong, it was proposed that even if the applicant voluntarily consumed a large quantity of alcohol and a large quantity of cannabis, notwithstanding those activities, the dismissal would be too harsh a penalty in the circumstances. In support of this submission, the personal circumstances of the applicant, including his long and unblemished career with Qantas, were factors which were said to provide a basis to conclude that the decision should be held to have been harsh. [35] Ms Nomchong summarised her submissions by concluding that the dismissal of the applicant was unfair because the reason given for dismissal was not a valid reason. She submitted that the absence of valid reason arose from a conclusion that should be drawn from the evidence which she said strongly supported the proposition that the applicant had his drink spiked at the Irish pub. [36] Further, Ms Nomchong submitted that the personal circumstances of the applicant including in particular, his long and exemplary work record should render a dismissal made in respect of one incident, to be harsh. Ms Nomchong urged that the Commission find in favour of the applicant and as there was no impediment to reinstatement, appropriate Orders for reinstatement, continuity of service and restoration of lost pay should be provided. (Emphasis added.)

Ratio Decidendi

Legal Principle Established

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