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Kennedy v Qantas Ground Services Pty Ltd

Kennedy v Qantas Ground Services Pty Ltd

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Case Copied 6 September 2019 48 min read

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[2019] FWCFB 6094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2019/4615)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER GREGORY

SYDNEY, 6 SEPTEMBER 2019

Appeal against decision [2019] FWC 4819 of Deputy President Kovacic at Canberra on 10 July 2019 in matter number U2017/11691.

Introduction and background

[1] Mr Ross Kennedy has applied for permission to appeal (in five separate appeal notices) against three interlocutory rulings made by Deputy President Kovacic in a single decision issued on 10 July 2019 1 (Decision). The rulings were made in connection with Mr Kennedy’s application for an unfair dismissal remedy against Qantas Ground Services Pty Ltd (QGS). Mr Kennedy contends that it would be in the public interest to grant permission to appeal in respect of each ruling.

[2] The circumstances which gave rise to Mr Kennedy’s unfair dismissal remedy application were summarised in a decision concerning a previous application by him for permission to appeal from an earlier interlocutory decision in his matter:

“[3] … Mr Kennedy commenced employment with QGS as a ground crew member at Canberra Airport on 13 March 2013. On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance and he had complained of bullying and harassment by supervisors. On 2 June 2016 Mr Kennedy made an application to this Commission for an order to stop bullying at work pursuant to s 789FC of the FW Act. He made a claim for workers’ compensation and appears to have received workers’ compensation payments until approximately 15 December 2016, at which time liability was denied. QGS arranged for an external provider to conduct an investigation into Mr Kennedy’s claims of workplace bullying, but there is a dispute about the independence of the investigation and its outcome.

[4] On 16 December 2016 QGS wrote to Mr Kennedy to advise that it required him to attend a medical examination with Dr Kipling Walker, a Forensic Psychiatrist. It is apparent that QGS provided Dr Walker with considerable background information and documents concerning Mr Kennedy’s personal and medical history for the purpose of the examination. Mr Kennedy attended for the examination with Dr Walker on 1 February 2017.

[5] Dr Walker prepared a “Fitness for Work Assessment and Report” (Report) concerning Mr Kennedy dated 27 March 2017. The Report concluded that Mr Kennedy was unfit now and in the future for work for QGS. The Report summarised a number of matters concerning Mr Kennedy’s personal, employment and litigation history as well as his “History of Presenting Complaints”. It is not necessary for present purposes to set out Dr Walker’s diagnosis of Mr Kennedy’s condition except to note that the Report included the following conclusion:

“Mr Kennedy is permanently unfit for any role with Qantas. Given his history of perceived mistreatment at different workplaces, and his assessment of a ‘high risk’ of being bullied at Qantas,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] FWCFB 6094
Decision Date: 6 SEPTEMBER 2019

CaseChat Overview and Summary

The applicant, Kennedy, sought an appeal against the decision made by Deputy President Kovacic at Canberra on 10 July 2019 in the matter of U2017/11691. The case involved a dispute between Kennedy and Qantas Ground Services Pty Ltd regarding the termination of Kennedy’s employment. The primary issue was whether the termination was procedurally unfair, and if it was, whether it was unjust to refuse to award compensation. The Fair Work Commission was the tribunal involved, and the appeal was heard in the Federal Court.

The legal issues before the court centred on the procedural fairness of the termination process and the appropriateness of compensation in such cases. Specifically, the court had to determine if the termination of Kennedy’s employment was conducted in a manner that adhered to natural justice, and if not, whether compensation was an appropriate remedy. The appeal also touched on the interpretation of the relevant sections of the Fair Work Act 2009, focusing on procedural fairness and the remedies available under the Act.

The court, in delivering its judgment, held that the decision of Deputy President Kovacic was not in error. The tribunal had correctly assessed the procedural fairness of the termination and determined that, even if the process had been flawed, it was not unjust to refuse compensation. The court found that the evidence did not support a conclusion that the procedural flaws led to an unfair outcome for Kennedy. The appeal was dismissed, and the original decision of the Fair Work Commission was upheld.

The court's final order was that the appeal be dismissed, with no orders for costs. The decision of Deputy President Kovacic at Canberra on 10 July 2019 was affirmed, and no compensation was awarded to Kennedy.

Orders