Mr Paul Warner Dobson v Qantas Airways Limited

[2010] FWA 6431

Note: An appeal pursuant to s.604 (C2013/6564) was lodged against this decision - refer to Full Bench decision dated 23 December 2013 [[2013] FWCFB 10037] for result of appeal.

[2010] FWA 6431

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Paul Warner Dobson
v
Qantas Airways Limited
(U2010/7498)

COMMISSIONER CARGILL SYDNEY, 26 AUGUST 2010

Termination of employment.

[1] This decision arises from an application by Mr P Dobson (Mr Dobson or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Qantas Airways Limited (Qantas, the company or the respondent).

[2] By way of background it should be noted that Mr Dobson had lodged a previous application (U2009/5210) (the previous application) before his employment had been terminated. That application was filed on 18 December 2009. Mr Dobson’s employment was terminated on 21 January 2010. The previous application was the subject of proceedings before me on 15 and 22 March 2010.

[3] On 31 March 2010 Mr Dobson discontinued the previous application and lodged the present application which is the subject of this decision. The present application was made outside the time period set out in section 394(2)(a) of the Act. Mr Dobson sought an extension of time.

[4] Correspondence to my Associate from the respondent’s Manager Industrial Relations indicated that Qantas did not oppose the applicant making a fresh and out of time application. The correspondence noted that it was a matter for Fair Work Australia (FWA) to decide whether or not to accept the application.

[5] After considering the factors set out in section 394(3) I was satisfied that there were exceptional circumstances in this instance such that I should exercise my discretion to extend the time for making the application. That decision was reflected in an order [PR995678] dated 1 April 2010.

[6] An issue concerning legal representation was dealt with by written submissions and my decision [2010] FWA 3532 dated 4 May 2010.

[7] The substantive matter was heard on 17 and 18 May and 10 and 11 June 2010. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken into account the factors set out in section 399 of the Act.

[8] Mr Dobson represented himself and Qantas was represented by Ms Bernasconi, solicitor.

[9] Mr Dobson gave evidence and his witness statement was marked Exhibit Applicant 1. His oral testimony is at PN105-758 of Transcript. The following witnesses gave evidence in the applicant’s case:

•	Mr H Hamzavian	Customer service agent with Qantas. His oral testimony is at PN 761 - 858 of Transcript;
•	Ms J Youett	Customer service agent with Qantas. Her oral testimony is at PN 862 - 919 of Transcript;
•	Mr M Brown	Customer service agent with Qantas and delegate of the Australian Municipal, Administrative, Clerical and Services Union (ASU). His oral testimony is at PN 921 - 1149 of Transcript;
•	Mr G McKirdy	Presently Head of Customer Service, Qantas Link. At the time of relevant events he was Customer Service Manager for the respondent at Sydney International Airport. Mr McKirdy’s oral testimony is at PN 1157 - 1654 of Transcript;
•	Mr C Grasso	Customer Service Manager for Qantas at Sydney International Airport. His oral testimony is at PN 1663 - 2892 of Transcript;
•	Mr K Whyte	Security Operations Manager for Sydney Airport Corporation Ltd (SACL) at Sydney International Airport. His oral testimony is at PN 2971 - 3486 of Transcript.

[10] Each of these witnesses appeared in response to orders to attend which were issued at the request of Mr Dobson.

[11] The following witnesses gave evidence on behalf of the respondent:

•	Mr P Ofria	Customer service agent with Qantas. His witness statement is Exhibit Respondent 3 and his oral testimony is at PN 3510 - 4868 of Transcript;
•	Ms J Brown	Senior Advisor, People Relations for Qantas at Sydney International Airport. Her witness statement is Exhibit Respondent 6 and her oral testimony is at PN 4916 - 5602 of Transcript;
•	Ms T Doedens	Manager, Customer Operations for Qantas at Sydney International Airport. Her witness statement is Exhibit Respondent 7 and her oral testimony is at PN 5613 - 6730 of Transcript.

[12] It was agreed that the parties would provide written submissions. A process was put in place for that purpose. It concluded with the receipt of Mr Dobson’s submissions in reply on 11 August 2010.

[13] There was extensive evidence and much material provided in these proceedings. Whilst I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.

SUMMARY OF FACTS AND EVIDENCE

[14] Mr Dobson commenced his employment with Qantas on 27 June 2002. He was employed as a customer service agent at Sydney International Airport.

[15] Prior to the incident in November 2009 which ultimately led to his dismissal, Mr Dobson had received two written warnings. The first, in July 2006, is at Annexure JB3 to Exhibit Respondent 6 and is signed by Mr McKirdy. The warning notes that the applicant had not followed proper procedures when checking in a customer and that his subsequent actions towards his supervisor had breached the respondent’s Standards of Personal Behaviour and Harassment/No Bullying Policy. It also notes that the applicant did not want to accept responsibility for his actions.

[16] In the warning Mr McKirdy offered to work with Mr Dobson to assist in controlling his stress/anger. Mr McKirdy testified that he made this offer based upon the incident itself together with Mr Dobson’s responses during the subsequent investigation. Mr McKirdy’s evidence is that Mr Dobson did not take him up on the offer.

[17] I note that Mr Dobson did not give any evidence about this incident. However, as I understand from statements he made during the course of questioning Mr McKirdy, Mr Dobson vehemently disagreed with the warning. His position appears to be that he had been trying to assist the passenger concerned and that the aggressor during the ensuing altercation was actually the supervisor, a Mr Lilley. Mr Dobson also had issues about the conduct of the investigation itself.

[18] The second written warning was issued to the applicant on 19 June 2007. It is at Annexure JB4 to Exhibit Respondent 6. The warning notes that Mr Dobson had misused his status as a Qantas employee to seek and obtain a gratuity from a company supplier. The warning also notes that Qantas considered Mr Dobson’s conduct to be in breach of the Standards of Conduct Policy. I note that Mr Dobson gave no evidence about this issue. However, he does address it at length in his written submissions.

[19] Both written warnings note that further breaches of policy or misconduct could result in disciplinary action including termination of employment.

[20] Mr Dobson and Mr Ofria had been work colleagues for approximately five years before the relevant events in November 2009. Mr Ofria’s evidence is that there had been no previous conflict between them. Mr Dobson’s evidence is that he had always found Mr Ofria’s jokes to be “unfunny bordering on the offensive”. The applicant also gave evidence that Mr Ofria spoke loudly and tended to invade other people’s personal space. Mr Ofria’s evidence is that he did not intentionally do this.

[21] On the evening of 22 November 2009, a group of employees was watching the television program “Australian Idol” in the staff room during a break between flights. The group included Mr Dobson, Mr Ofria, Ms Youett and Mr Hamzavian. Mr Dobson and Mr Ofria exchanged comments about the respective degrees of talent in Australia and New Zealand. There is some difference in the evidence as to exactly what was said. Nevertheless, Mr Dobson took particular exception to Mr Ofria saying words to the effect of “... You saying there’s no talent in Australia? You saying New Zealanders are more talented than Australians?”

[22] Mr Dobson’s evidence is that he is New Zealand born and was shocked at these comments which he found to be deeply offensive and in the same category as racism.

[23] Mr Hamzavian’s evidence is that he couldn’t recall exactly what Mr Ofria had said but observed that the comment had been awkward and inappropriate. Ms Youett’s evidence is that, although she could not remember exactly what was said, Mr Ofria’s comment had been unusual and uncalled for.

[24] Mr Dobson’s evidence is that, during the following day, 23 November, Mr Ofria repeated his offensive comments on a number of occasions in a loud voice. This took place at the check-in counter in front of both passengers and staff. Mr Ofria emphatically denied doing this. His evidence is that the only time he made any further comment about the subject was in the car park later that night.

[25] Mr Dobson and Mr Ofria finished work at about the same time that day. Mr Dobson’s evidence is that they swiped off within a few seconds of each other at the same swipe card reader. His evidence is that, whilst they were waiting to swipe off, Mr Ofria continued to make remarks about Australian and New Zealand talent along similar lines to those he had made before.

[26] Mr Dobson’s evidence is that both he and Mr Ofria proceeded to the car park via the escalators. During this time Mr Ofria kept bumping into him. Mr Dobson’s evidence is that, as they approached the level on which both had parked their cars, Mr Ofria assaulted the applicant with his right elbow. Mr Dobson told him to cease but Mr Ofria intensified his assaults, baiting and teasing.

[27] On the other hand, Mr Ofria’s evidence is that he did not swipe off with Mr Dobson, neither did he walk with him to the car park or assault Mr Dobson with his elbow or bump into him. Mr Ofria’s evidence is that he used the lift to access the relevant level of the car park and didn’t see the applicant until he had exited the lift and started to walk towards his car.

[28] Ms Doeden’s evidence is that, when she later viewed surveillance footage of the car park, she observed that Mr Dobson came up the escalator by himself while Mr Ofria came out of the lift, also by himself. After that both came towards each other in a common area and then moved out of view of the camera. Mr Whyte’s evidence is that he is unsure whether it would be possible to have seen the full view of the areas outside all of the lifts and at the top of the escalator at the same time.

[29] Incidentally, Ms Doeden’s evidence is that, when she viewed this footage, she was the only Qantas representative present. Mr Whyte’s evidence is that he recalled that there was also a second Qantas employee there at the time of the viewing. Mr Grasso denied that he had seen or had attempted to see the footage.

[30] Mr Dobson’s evidence is that, when he and Mr Ofria reached the relevant level of the car park, he told Mr Ofria to stop or he would hit him. Mr Dobson’s evidence is that, in order to defend himself from further attack from Mr Ofria’s elbow, he lightly “thumped” Mr Ofria on the top of the arm or shoulder. He denied that he had “punched” Mr Ofria. Mr Dobson’s evidence is that it was not possible that Mr Ofria could have been hurt by the “thump” which he described as a “pinch and a punch for the first of the month type thing”.

[31] Mr Dobson’s evidence is that Mr Ofria then took off his jacket and invited Mr Dobson to hit him again. A loud verbal altercation took place between them. This ended in Mr Ofria apologising and farewelling the applicant in a friendly manner. Mr Dobson considered that this was the end of the matter.

[32] Mr Ofria’s evidence is that, when he and Mr Dobson encountered each other in the car park, he made a comment about Australian talent. Mr Dobson then swung his arm back and hit Mr Ofria with a clenched fist. Mr Ofria thought he was going to be hit on the face so swerved and the punch landed on his right shoulder. Mr Ofria’s evidence is that the punch was hard and he felt pain. Mr Dobson appeared to be very angry and aggressive. Mr Ofria testified that there had been no pain in his shoulder before this incident.

[33] Mr Ofria’s evidence is that he thought Mr Dobson might hit him again and tried to move away. Mr Dobson kept advancing towards him so Mr Ofria took off his jacket and told Mr Dobson that, if he hit him again, he would retaliate. A shouting match then ensued between them. Mr Ofria specifically denies either apologising to or farewelling Mr Dobson.

[34] Mr Whyte’s evidence is that, in response to a request from the Regional Security Manager for Qantas, he initiated a review of surveillance footage from the relevant cameras in the car park. His evidence is that he was informed by the officer who viewed the footage that it did not show any altercation.

[35] Mr Dobson tendered photos of relevant areas of the car park, Exhibit Applicant 2. In response to an order to produce issued at Mr Dobson’s request, Mr Whyte provided a series of photos taken at various angles from the relevant camera. By agreement, the most relevant of these became Exhibit Applicant 9.

[36] Mr Ofria’s evidence is that he was not sure what to do about the incident. He attempted to report it to Mr Grasso the following day but was unable to find him. He didn’t want to report it to anyone other than Mr Grasso because of the serious nature of the matter. Mr Ofria was then rostered off for two days.

[37] When he returned on 27 November he informed Mr Grasso that he had been assaulted but did not disclose Mr Dobson’s identity because of concern for Mr Dobson’s employment. Mr Grasso informed him that he would need the person’s name in order to investigate the matter. Mr Ofria’s evidence is that he thought about the issue over the next few days and decided to name Mr Dobson as he was fearful that he might be hit again.

[38] On 1 December 2009 Mr Ofria informed Mr Grasso of Mr Dobson’s identity and was asked to provide a written statement about the incident. He did this later that morning. The statement is Annexure PO1 to Exhibit Respondent 3. Mr Ofria denied that Mr Grasso, Mr Lilley or anyone else had suggested, encouraged or pressured him to make a complaint against Mr Dobson or to write the statement. Meanwhile, Mr Grasso informed Ms Doedens and Ms Brown about the information he had received from Mr Ofria and asked them to investigate the matter.

[39] The evidence of both Ms Brown and Ms Doedens is that they decided that, in view of the nature of the allegations, it was appropriate that Mr Dobson and Mr Ofria both be stood down on full pay. Letters informing them of this situation were prepared. Those letters are both at Annexure TD3 to Exhibit Respondent 7 and are in relevantly identical terms.

[40] A meeting was held with Mr Dobson. One of the Airport Duty Managers collected Mr Dobson and accompanied him to the meeting room but was not present during the meeting. Whilst on route to the meeting this manager asked Mr Dobson if he wanted a support person. Mr Dobson’s evidence is that he thought that the meeting might be about an issue concerning a recent period of leave and hence considered that a support person was not necessary. In any event the person he would have chosen as a support person was not at the airport and he would have needed to organise for them to be present. Mr Dobson’s evidence is that, if he had been aware of the actual purpose of the meeting, he would not have proceeded without such a person.

[41] At the commencement of the meeting Ms Doedens asked Mr Dobson if he wanted a support person. He responded that he didn’t know as he had no idea what the meeting was about. Ms Doedens briefly outlined the allegation against him and again asked if he wanted a support person. She offered to reconvene the meeting to enable Mr Dobson to arrange such support. Mr Dobson declined.

[42] Mr Dobson’s evidence is that during the meeting he was highly stressed and distressed. He felt that he was under duress and pressure. His evidence is that he was a “nervous wreck”.

[43] During the meeting Mr Dobson gave a partial account of what had occurred with Mr Ofria. He conceded that he had hit Mr Ofria. The evidence of Ms Brown and Ms Doedens is that Mr Dobson said that he would hit him again to “shut him up”. Mr Dobson testified that he probably had made such a statement during the meeting, however, he denied that he would in fact have carried out such an action.

[44] Mr Dobson informed Ms Doedens and Ms Brown that, as the incident had happened outside working hours, and outside of the workplace, it should not be investigated by Qantas.

[45] At the conclusion of the meeting Mr Dobson was given his stand down letter. He was also required to hand over his security cards. Mr Dobson told Ms Doedens that he didn’t wish to speak to her anymore and that any further contact must be in writing. Mr Dobson was then escorted to his car.

[46] Ms Brown and Ms Doedens each took notes during the meeting. These are respectively Annexure JB2 to Exhibit Respondent 6 and Annexure TD4 to Exhibit Respondent 7. Mr Dobson disagrees that these notes are accurate reflections of what was said in the meeting. His evidence is that anything that reflected badly on Qantas had been left out. Mr Dobson testified that, although he had informed Ms Doedens and Ms Brown about Mr Ofria’s “elbow nudging”, this also was absent from the notes. Ms Brown and Ms Doedens both testified that their notes were accurate. Ms Doeden’s evidence is that, at no time during the meeting, did Mr Dobson allege that Mr Ofria had physically assaulted him. Her evidence is that the first occasion on which Mr Dobson made such an allegation about Mr Ofria was in his correspondence of 20 January 2010.

[47] Mr Ofria was also stood down on 1 December 2009 and was required to hand in his security cards. Mr Ofria’s evidence is that he was upset at being stood down as he had not done anything wrong. He feared for his job.

[48] Mr Ofria’s evidence is that on 3 December 2009 he saw his GP about his shoulder. He saw his GP again after obtaining an x-ray as instructed. Mr Ofria’s medical certificates are at Annexure PO2 to Exhibit Respondent 3. Mr Ofria’s evidence is that he received massage treatment and took analgesics to reduce the pain in his shoulder. His evidence is that the pain did not completely disappear until early January 2010.

[49] On 3 December 2009 Mr Dobson was provided with a letter of the allegations against him and was requested to provide a written response. This letter is Annexure TD6 to Exhibit Respondent 7. In a letter dated 5 December, Annexure TD7 to Exhibit Respondent 7, Mr Dobson informed Ms Doedens that, before he made any response to the allegations, he required Qantas to provide him with legal justification of its right to investigate the matter as it had occurred outside of work hours and outside the workplace.

[50] Ms Doedens responded in a letter dated 7 December, Annexure TD8 to Exhibit Respondent 7. She referred to various clauses of the Qantas Group Standards of Conduct Policy (the Policy) as justification for the company’s right to investigate. Ms Doedens confirmed that Mr Dobson was required to provide a response to the letter of allegations and noted that failure to do so might lead to findings being made on the material which was presently before Qantas.

[51] On 7 December 2009 Mr Ofria attended a meeting with Ms Doedens and Ms Brown. Mr Ofria gave an account of the events on 23 and 24 November. Mr Ofria was accompanied to that meeting by his union representative, Mr Pieri. At other times and at other meetings during the investigation, Mr Brown was Mr Ofria’s support person.

[52] As Mr Dobson had not responded to the letter of 7 December by the due date, a voicemail message was left for him. In his email reply, Mr Dobson advised that he had not received such a letter and was waiting on a response to his earlier letter. Ms Doedens then provided Mr Dobson with a copy of the 7 December letter and, in the accompanying emails, she informed him that he had until 21 December to respond. This email exchange is at Annexure TD10 to Exhibit Respondent 7.

[53] In correspondence dated 21 December 2009 Mr Dobson stated that he had received legal advice that confirmed his view that Qantas had no jurisdiction to investigate the matter as the incident had occurred out of hours and outside the workplace. Mr Dobson requested that Mr Ofria be invited to lodge a complaint with the police. Mr Dobson noted that he did not believe anyone at Qantas could be impartial in considering the matter and consequently, on 18 December, had lodged a grievance with FWA about his suspension. As I understand it, that grievance was in fact the previous unfair dismissal application referred to in paragraphs 2 and 3 of this decision.

[54] Ms Doedens replied to Mr Dobson in a letter dated 24 December 2009 which was sent by email, Annexure TD12 to Exhibit Respondent 7. Ms Doedens informed Mr Dobson that, notwithstanding his comments as to jurisdiction, the investigation would proceed. Mr Dobson responded by email dated 27 December, Annexure TD13 to the Exhibit. His response only related to the question of jurisdiction and an insistence that Mr Ofria be invited to lodge a formal police complaint.

[55] Ms Doedens’ evidence is that, as Mr Dobson was not providing anything in response to the substantive allegations against him, she finalised her investigation. Ms Doedens’ evidence is that her findings were based on Mr Dobson’s comments during the meeting on 1 December 2009 as well as information provided by Mr Ofria and other material such as roster plans.

[56] In an email dated 5 January 2010 Ms Doedens invited Mr Dobson to meet with her in order to provide him with her findings. Mr Dobson noted that his support person was not available to attend on the suggested date and put forward an alternative date. That alternative date did not suit Ms Doedens who provided a further date.

[57] Mr Dobson then noted that, as he would not be responding to the findings during any such meeting, he would prefer not to meet but to receive the findings by email or post. This exchange of emails is at Annexure TD14 to Exhibit Respondent 7.

[58] Ms Doedens provided the findings to Mr Dobson on 13 January 2010 by both email and by registered mail, Annexure TD15 to Exhibit Respondent 7. Mr Dobson was informed that various allegations, set out in the letter, had been found to have been substantiated. Ms Doedens noted that, in view of the nature of those allegations, she considered that Mr Dobson had engaged in serious misconduct. She also noted that his lack of any expression of remorse was of serious concern, as was Mr Dobson’s statement that he would do it again.

[59] The letter informed Mr Dobson that Qantas was considering terminating his employment and he was invited to put forward any matters or information that he wished the company to take into account. Mr Dobson was informed that his employment history would be considered. Reference was made to the previous written warnings referred to earlier in this decision as well as a letter concerning an incident in January 2009. Copies of each of these pieces of correspondence were provided to Mr Dobson, as was the Policy.

[60] Mr Dobson’s support person requested an extension of time for the provision of a response, Annexure TD16 to Exhibit Respondent 7. A short extension was provided, Annexure TD 17 to the Exhibit.

[61] On 18 and 19 January 2010 Mr Dobson sent emails to Ms Doedens in which he raised a number of issues and questions to which he required answers before he could respond to the letter of findings, Annexure TD18 to Exhibit Respondent 7. Ms Doedens provided the material requested by Mr Dobson and responded to some of the issues he had raised. She gave Mr Dobson a further period in which to put any material relevant to the possible termination and noted that this was the final opportunity for him to put such material, Annexure TD19 to the Exhibit. Mr Dobson’s response is at Annexure TD20.

[62] Ms Doedens’ evidence is that she considered Mr Dobson’s response. She then made the decision, which was endorsed by Mr Grasso, to terminate Mr Dobson’s employment for reasons set out in the letter of dismissal, Annexure TD21 to Exhibit Respondent 7. Those reasons were:

“In determining the outcome regarding your employment, the Company has considered a number of factors including, but not limited to; the Company’s duty to provide a safe workplace for all employees, your responses during the investigation and your employment record for the duration of your employment with the Company, including the previous formal warnings issued to you.

Paul, your serious misconduct, the lack of contrition and regret over your actions along with your employment record as a whole demonstrates a complete disregard for your employment obligations.”

[63] Mr Dobson was paid four weeks in lieu of notice.

[64] Ms Doedens’ evidence is that, in late January 2010, she became aware that Mr Dobson had attended the workplace and had handed a flyer to some employees. Mr Dobson’s evidence is that he had given the flyer to two supervisors who would supervise Mr Ofria from time to time and had shown the document to a few other employees. Mr Dobson testified that the flyer was his version of what had occurred and had been prepared when he considered that Mr Ofria had been responsible for his dismissal. He also testified that he no longer believed that but now blamed Mr Grasso for the termination.

[65] The flyer is Annexure TD22 to Exhibit Respondent 7 and Annexure PO3 to Exhibit Respondent 3. It should be noted that, in addition to providing outlines of and comments upon different versions of events and information about the FWA claim, the flyer contains a number of accusations about Mr Ofria’s private life. Mr Ofria’s evidence is that he found these statements to be distressing and offensive.

[66] Mr Dobson agreed that Mr Ofria would find these accusations to be offensive. He testified that he now regretted making them and noted that he had felt very bitter towards Mr Ofria at the time.

[67] In February 2010 Ms Doedens and other Qantas personnel received an emailed document from Mr Dobson, Annexure TD23 to Exhibit Respondent 7. The document contained an outline of submissions, case summary and list of witnesses for Mr Dobson’s previous unfair dismissal claim. It also contained a Media Statement. Mr Dobson testified that this statement had not been provided to the media. He agreed that, if the statement had been taken up by the media, it would have damaged Qantas’s reputation.

[68] During the course of proceedings Mr Dobson alleged that managers at Qantas made a practice of recording, by means of an electronic or other device, conversations and meetings which they had with staff. In particular, Mr Dobson suggested that Mr Grasso recorded a telephone conversation on 4 October, Exhibit Applicant 7, and a meeting on 1 October 2008, Exhibit Applicant 8. Mr Grasso denied recording these or any other conversations other than in writing.

[69] Mr Dobson also alleged that the meeting of 1 December 2009 was similarly recorded. Both Ms Brown and Ms Doedens denied the allegation. Mr McKirdy denied that he had ever recorded conversations with staff by using any device. He testified that he had never observed any other Qantas personnel taking such a step.

[70] Mr Dobson’s evidence is that, during the period of his employment with the respondent he, and fellow employees, had made a number of complaints against various persons, including Mr Lilley, alleging bullying and harassment. Some of these are contained within Exhibit Applicant 3. His evidence is that these complaints had not been investigated properly by Qantas managers, especially Mr Grasso. Mr Dobson accuses Qantas of having an ulterior motive in pursuing him over the incident with Mr Ofria. That motive is said to be a desire to dismiss Mr Dobson because of his history of making complaints about managers and other staff.

[71] Mr Grasso’s evidence is that he deals with any complaints which are brought to him including those which allege workplace bullying. Mr Grasso denied that he had ignored Mr Dobson’s letters of complaint although he did concede that the investigation of a particular complaint made by the applicant in October 2008, Document 11 of Exhibit Applicant 3, had taken longer than it should have.

APPLICANT’S SUBMISSIONS

[72] Mr Dobson has provided voluminous written submissions. His outline of submissions, provided prior to the hearing is 12 pages; the submissions themselves, including several attachments, consist of 73 pages; and his closing submissions are 32 pages long. I have carefully considered each and all of the submissions, however, the following is a brief summary of the main points of Mr Dobson’s arguments.

[73] Mr Dobson disputes the respondent’s jurisdiction to have investigated the matter at all. The incident took place outside work hours and in a car park not run and operated by Qantas. Qantas policies do not apply in such a situation, neither do they apply just because staff are in uniform. The matter of an alleged assault should properly have been investigated by the police. Mr Dobson would have fully co-operated with such an investigation.

[74] Mr Dobson submitted that Mr Ofria had not made a complaint about the incident. Consequently there was nothing for Qantas to have investigated even if there had been jurisdiction for it to do so.

[75] Mr Dobson also submitted that he had refused to co-operate with the investigation as it was biased and based on false evidence.

[76] It is submitted that the dismissal is unfair. The evidence of Mr Grasso, Ms Doedens and Mr Ofria is unreliable as each had lied about a number of important issues. Qantas knew that there were contradictory versions of events but had failed to investigate. Qantas also misused the false medical evidence provided by Mr Ofria. There was no injury to Mr Ofria. Further, Qantas failed to consider that Mr Dobson had hit Mr Ofria only after he was assaulted himself.

[77] The dismissal is also unfair because of the procedure followed by Qantas. Mr Dobson submits that he was tricked into attending the meeting on 1 December 2009 without having a support person. He submits that this is a general practice of Qantas Human Resources personnel (Qantas HR). Mr Dobson also submits that he was misled into believing that Mr Ofria had made a complaint against him.

[78] Mr Dobson disputes the accuracy of the written records of the meeting and submits that the meeting was recorded without his knowledge. Mr Dobson also submits that Mr Grasso made a practice of recording meetings with staff. Mr Dobson submits that, because the alleged misconduct involves an assault, Qantas had to meet the higher evidentiary standard in Briginshaw v Briginshaw (1938) 60 CLR 336. He submits that the company had failed to meet this test. Mr Dobson also submits that Qantas was bound by the Evidence Act 1995.

[79] Mr Dobson submits that his dismissal is both harsh and unjust. A number of arguments are put forward to support this submission some of which have already been put in relation to the unfairness of the dismissal. Additional arguments include; Mr Grasso’s real role in instigating the investigation; the company’s failure to inquire into Mr Ofria’s racial taunts; the company’s action to suspend Mr Dobson before Mr Ofria had provided a statement; the humiliating effect of the suspension and the manner in which it was carried out; the company’s imposition of a “gag order” on Mr Dobson; and, the effect of the events of 1 December 2009 and since upon Mr Dobson’s health and his ability to continue with his other part time employment.

[80] Further factors which have caused the dismissal to be harsh and unjust include the brutalising effects of the unfair dismissal claim process; the fact that Qantas is weaker because it has lost a good and faithful employee; and, the lack of respect shown towards Mr Dobson by Ms Doedens and her team including the tone of phone calls from Ms Brown and the absence of a hard copy of the termination letter.

[81] Mr Dobson submits that his dismissal is harsh when his actions are compared with those of other employees who he alleges have violated Qantas policies. He submits that it is also harsh and unjust because he was described as an occupational health and safety risk.

[82] Mr Dobson submits that Mr Grasso had been looking for any excuse to dismiss him and had used Mr Ofria’s “fable” for this purpose. In support of this submission Mr Dobson makes a number of accusations against not only Mr Grasso but also several other Qantas employees both past and present. He also provides comments about Qantas HR and other issues which he describes as “Qantas management Culture”, “overstaffing”, “duty of care”, “cancerous environment”, “bullying”, “HR brutality”, “career suicide” and “what I think and know”. Mr Dobson also asserts that the respondent’s legal representatives have acted inappropriately in relation to various aspects of the matter.

[83] Mr Dobson submits that his second written warning, referred to in paragraph 18 of this decision, was unwarranted. He also submits that the investigation which led to that warning was not fair, honest or ethical.

[84] Mr Dobson has undertaken a very detailed analysis of the witness evidence, in particular that of Mr Ofria, Mr Whyte, Ms Doedens, Ms Brown and Mr Grasso. He concludes that this analysis demonstrates the falseness of much of the evidence of these witnesses. Mr Dobson submits that Mr Whyte’s evidence is further compromised by communications between SACL and Qantas and an inappropriate connection between the legal representatives for the respective corporations.

[85] Mr Dobson submits that the Qantas witnesses, Mr Ofria in particular, have provided false evidence about the rosters and actual times worked by both himself and Mr Ofria during the relevant period. He referred to the various rosters and other material which had been put into evidence.

[86] Mr Dobson submits that the Qantas Standards of Conduct Policy and disciplinary practices are deliberately vague and open to be interpreted in a selective manner by Qantas HR. He submits that the policies are used to abuse the rights of staff as in his case.

[87] Mr Dobson seeks reinstatement. His personal dislike of a small number of staff would have no adverse bearing on his performance. Mr Dobson submits that there would be no obstacle to restoring him to his former position.

[88] Mr Dobson concludes that: there was no assault, in the legal sense of the word; Mr Ofria did not lodge a complaint; Qantas did not conduct an investigation in accordance with its policies; the witnesses who were connected with Qantas each lied during the investigation and the hearing of this claim; and, the termination was harsh, unjust and unfair.

[89] Mr Dobson has provided six attachments to his submissions. Some of these are already in evidence having been marked as Exhibits. Others are in the nature of further evidence, which cannot be admitted at this late stage.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[90] An outline of submissions was provided prior to the hearing and substantial written submissions were provided following the receipt of the applicant’s submissions. The following is a summary of the main points of the position put on behalf of the respondent.

[91] The respondent submits that there is a valid reason for the applicant’s dismissal. It submits that the evidence shows that Mr Dobson hit Mr Ofria with a clenched fist with such force that it caused physical injury and pain to Mr Ofria. Mr Ofria’s consistent evidence on this point should be accepted.

[92] It is submitted that there were no extenuating circumstances such as self defence or provocation that would justify the applicant’s actions. The weight of the evidence is that he and Mr Ofria did not walk to the car park together and, consequently, there was no elbow nudging as described by the applicant. Further, there is no basis to suggest that punching Mr Ofria was a reasonable response to his comments. Those comments in no way amounted to racist remarks as suggested by the applicant. Indeed Mr Dobson had testified that the comments were petty.

[93] It is submitted that the applicant’s conduct breached several parts of the respondent’s Policy relating to behaviour standards and unacceptable behaviours. This further supports a finding that there was a valid reason for Mr Dobson’s dismissal.

[94] It is further submitted that Mr Dobson had shown no remorse for his actions and indeed had stated that he would do it again. Qantas could not be confident that Mr Dobson would not repeat his actions in the future. In addition, the evidence is that Mr Ofria feared that Mr Dobson might hit him again.

[95] The respondent submits that there was a relevant connection between Mr Dobson’s conduct and his employment such that it was entitled to investigate. The incident involved two employees who were still in uniform and who had just finished their shifts. Further, the incident arose out of comments exchanged during working hours on the previous day. The car parking facilities are paid for by Qantas for the benefit of employees and are in close proximity to the terminal where both Mr Dobson and Mr Ofria worked.

[96] It is also submitted that the respondent’s reputation could have been adversely affected if members of the public had seen the altercation. Qantas had an additional interest and responsibility in relation to the health and safety of its employees. It is submitted that the company’s Policy makes it clear that it is not restricted to premises which are owned by or under the exclusive control of Qantas.

[97] The respondent rejects Mr Dobson’s contention that there was an ulterior and improper reason for the investigation and dismissal which was related to his previous complaints. A number of submissions are made on this point including: Mr Grasso’s lack of active involvement in the investigation; the unsolicited complaint from Mr Ofria; the absence of prior dealings of Ms Brown and Ms Doedens with any of Mr Dobson’s earlier complaints; and, the fact that Mr Lilley had no involvement at all in the investigation or dismissal.

[98] The respondent submits that it was reasonable that the applicant’s two earlier written warnings were taken into account. It notes that Mr Dobson had been informed on each occasion that further misconduct could result in dismissal. The respondent submits that each of the warnings had been justified and it was not open to the applicant to now dispute the factual findings underpinning them.

[99] The respondent submits that the gravity of the incident together with the applicant’s employment history establishes that there was a valid reason for the termination.

[100] The respondent submits that Mr Dobson had been notified of the allegations against him, the findings which arose out of the investigation and the reason for his dismissal. It also submits that Mr Dobson had been provided with full opportunities to respond to the allegations and findings. Despite the applicant’s failure to co-operate with the investigation, any information that he had provided had been taken into account by the respondent. The respondent notes that, upon his request, Mr Dobson had been provided with additional time in which to respond. The respondent submits that the applicant’s reluctance to answer the allegations against him is consistent with him realising the serious nature of his actions.

[101] It is submitted that there had been no refusal to allow Mr Dobson to have the assistance of a support person. Indeed he had been asked on more than one occasion on 1 December whether he wished to have such support. It is noted that Mr Dobson had some assistance from his support person during the later part of the investigation.

[102] The respondent submits that there are no other matters which would cause the dismissal to be harsh, unjust or unreasonable. The investigation process had been procedurally fair. The applicant’s stand down was consistent with the respondent’s practice and did not indicate any prejudgement of the issue. The respondent submits that the stand down and the fact that Mr Dobson was escorted from the premises were both reasonable in the circumstances.

[103] Mr Dobson’s length of service was a relevant factor but needed to be weighed against his conduct. The respondent submits that it could have summarily dismissed the applicant. The fact that it chose not to do so mitigates any potential harshness.

[104] The respondent submits that reinstatement or re-employment would be inappropriate. The relationship of trust and confidence between the parties is fundamentally broken. If compensation was to be considered, the applicant’s misconduct should be taken into account as well as the fact that he had been paid in lieu of notice.

[105] The respondent submits that no weight should be given to certain parts of the evidence and, further, that no regard should be had to new evidence which Mr Dobson has attempted to introduce in his written submissions. In addition, the respondent strongly rejects Mr Dobson’s assertions regarding the personal integrity of various of its employees and legal representatives.

[106] The respondent also rejects a number of other issues raised in the applicant’s submissions including: whether the incident should only have been investigated by the police; the relevant standard of proof; the suggestion that the evidence of the respondent’s witnesses was inconsistent and that those witnesses had lied; and, any inappropriate relationship between SACL, the respondent and the respondent’s legal representatives.

[107] The respondent submits that the termination of Mr Dobson’s employment was not harsh, unjust or unreasonable and his application should be dismissed.

APPLICANT’S SUBMISSIONS IN REPLY

[108] As indicated earlier, Mr Dobson provided extensive submissions in reply to the respondent’s submissions. I have carefully considered all that Mr Dobson has raised but do not believe it would be helpful to detail it here. Suffice to say that I have taken it into account in reaching my decision.

CONCLUSIONS

[109] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[110] It should be noted that neither paragraph (c) nor (d) are relevant in this case.

[111] As indicated earlier in this decision, the present application was not made within the period required by the Act, however, I exercised my discretion to extend the time.

[112] It is accepted that Mr Dobson is a person who was protected from unfair dismissal in accordance with the criteria set out in section 382 of the Act.

[113] Section 385 provides that a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[114] Paragraph (a) is clearly met. Again, paragraph (c) and (d) have no relevance in this matter.

[115] In order to decide whether Mr Dobson’s dismissal was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are 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 FWA considers relevant.”

[116] Before specifically addressing each of the factors set out above it is necessary to comment upon four issues which are relevant to my findings in general.

[117] The first of these issues concerns conflicts in the evidence. As indicated earlier in this decision there are significant differences between the evidence of Mr Dobson and Mr Ofria in particular. There are also conflicts between Mr Dobson’s evidence and that of Ms Doedens and Ms Brown about the meeting on 1 December 2009.

[118] I have carefully considered the evidence and the various areas of conflict and have decided that I prefer the evidence of Mr Ofria, Ms Doedens and Ms Brown where it conflicts with that of Mr Dobson. I found each of the respondent’s witnesses to be credible and helpful. Contrary to the applicant’s submissions, each of these witnesses was responsive and consistent in their evidence especially during cross-examination. The difference between the evidence of Ms Doedens and Mr Whyte as to the number of persons present during the viewing of the surveillance footage is explicable as being due to different recollections rather than anything more sinister as suggested by Mr Dobson.

[119] As will have been apparent from earlier parts of this decision there are some differences between the evidence of Mr McKirdy and Mr Grasso on the one hand and the submissions and position, though not evidence, of Mr Dobson on the other hand. I accept the evidence of Mr McKirdy and Mr Grasso. Each was firm, consistent and responsive in his evidence.

[120] The second issue is whether there is a necessary connection between Mr Dobson’s alleged conduct and the employment relationship such that it was reasonable and appropriate that it be the subject of investigation by Qantas. In this case the alleged conduct took place after the two employees had swiped off and it occurred in a car park that is owned and operated by SACL not Qantas. However, it is important to note that the respondent pays for employees to park in the car park, the employees were in Qantas uniforms and the incident happened within a short period after the end of their working hours and in close proximity to the workplace.

[121] In all of the circumstances I am satisfied that there is a sufficient temporal and physical connection between the incident and the employment relationship. In my view Qantas had the right to investigate. Whilst on this issue of the company’s right to investigate, it should be noted that I am satisfied that Mr Ofria did make a complaint about the incident even if his oral and written statements were not specifically couched in such terms. Although the written complaint was not received by Qantas until after the investigation began, that in itself, was no obstacle. The company was entitled to act upon the oral report from Mr Ofria to Mr Grasso.

[122] The third issue concerns the question of whether the incident should have more properly been handled by the police. It was not the respondent’s responsibility to have referred the matter to the police. It was up to Mr Ofria to decide whether he wished to lay a complaint with the police. In any event, even if such a complaint had been made, Qantas still had the right to investigate the matter insofar as it related to Mr Dobson’s employment.

[123] The fourth issue concerns the relevant standard of proof. There is clear authority that the standard of proof in matters of this kind is the balance of probabilities, not any higher standard. The fact that the alleged conduct concerned in part a physical altercation does not change this standard.

[124] I now turn to address each of the factors in section 387 as set out above. The first is whether there was a valid reason for the termination, in this case, related to Mr Dobson’s conduct rather than his capacity or performance. Mr Dobson conceded that he had hit or thumped Mr Ofria. Consistent with my preference for Mr Ofria’s evidence I find that the contact was in the nature of a hard punch which caused pain. I accept Mr Ofria’s evidence that the pain did not dissipate until early January 2010.

[125] Also consistent with my preference for Mr Ofria’s evidence, I find that there were no extenuating factors such as provocation or self defence which would justify Mr Dobson’s actions. There was no protracted bumping, baiting or assault by Mr Ofria’s elbow. At most, Mr Ofria made an injudicious comment in the car park which led on from his verbal exchange with Mr Dobson the previous night. I understand that Mr Dobson was upset at the comment, however, when considered objectively, there was nothing said which could possibly have warranted any physical response.

[126] Mr Dobson’s actions also amount to a breach of the respondent’s Standards of Conduct Policy especially that part which relates to unacceptable behaviour.

[127] In addition, Mr Dobson’s comment that he would “do it again” and his lack of remorse for his actions are both relevant. It may be that Mr Dobson would not have hit Mr Ofria again, however, I accept that there was a real possibility that he might.

[128] I am satisfied that Mr Dobson’s actions amount to misconduct and give rise to a valid reason for the termination of his employment. I now turn to consider what might be termed the “procedural fairness” factors in section 387, paragraphs (b), (c) and (d).

[129] I am satisfied that Mr Dobson was properly notified of the reason for his dismissal and was provided with an opportunity to respond. Mr Dobson was informed of the general nature of the allegation against him in the meeting on 1 December 2009. He was then provided with detailed written allegations, detailed written findings and, ultimately, the reasons for his dismissal.

[130] I accept that Mr Dobson was stressed and upset during the meeting on 1 December. However, he was provided with more than adequate opportunities to respond to the written allegations and the written findings. Extensions of time for him to respond were provided on two occasions.

[131] Mr Dobson did himself no favours by refusing to reasonably engage with his employer in its investigation. The fact that he did not properly respond to material which had been put to him does not detract from him having been given the opportunity to do so. Further, the correspondence to Mr Dobson put him on due notice of the possible consequences of any failure to respond.

[132] There was no unreasonable refusal by Qantas to allow Mr Dobson to have a support person to assist him at the meeting on 1 December. Mr Dobson agrees that he was asked on more than one occasion whether he wanted such a person. The evidence does not support Mr Dobson’s assertion that he was tricked into attending the meeting without any assistance.

[133] The dismissal does not relate to unsatisfactory performance so paragraph (e) is of no particular relevance in this case. I note however that there had been previous written warnings issued to Mr Dobson in respect of his conduct.

[134] Qantas is a very large employer with dedicated human resource management specialists. I am satisfied that the procedures followed in effecting Mr Dobson’s dismissal were appropriate in the circumstances.

[135] There are several matters which I consider to be relevant under paragraph (h) of section 387. The first is the length of Mr Dobson’s service with Qantas. The second is the fact that it is obvious that the whole process leading up to the dismissal, the dismissal itself, as well as these proceedings, have been very stressful and upsetting for Mr Dobson.

[136] The third matter concerns the stand down and Mr Dobson being escorted from the premises. Although I accept that Mr Dobson found this to be very distressing, in my view, it was open to the respondent to have taken such steps. I am satisfied that there was no prejudgement of Mr Dobson’s case.

[137] The fourth matter of relevance concerns Mr Dobson’s submissions that his dismissal really occurred because Qantas had an ulterior and improper reason relating to his complaints against various managers, supervisors and staff. Although I accept that Mr Dobson genuinely believes that this is the case, the evidence does not support it. The cause of Mr Dobson’s dismissal was his own actions.

[138] I have had regard to all of the other issues which have been raised by Mr Dobson but do not consider them to be of relevance to the matters I have to decide.

[139] In all of the circumstances of the case and having taken account of each of the factors in section 387 and my findings thereon, I have determined that Mr Dobson’s dismissal was not harsh, unjust or unreasonable. The application is dismissed.

COMMISSIONER

Appearances:

P. Dobson the applicant

R. Bernasconi, solicitor, with P. Smith and J. Li for Qantas Airways Limited

Hearing details:

Sydney.

May, 17 and 18.

June, 10 and 11.

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<Price code G, PR500821>