Nathan Woods v Jetstar Airways Pty Ltd
[2023] FWCFB 85
•20 JUNE 2023
| [2023] FWCFB 85 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Nathan Woods
v
Jetstar Airways Pty Ltd
(C2023/1491)
| VICE PRESIDENT CATANZARITI | SYDNEY, 20 JUNE 2023 |
Appeal against decision [2023] FWC 501 of Commissioner Ryan at Sydney on 28 February 2023 in matter number U2023/672 – permission to appeal refused – appeal dismissed.
Background
Mr Nathan Woods (Mr Woods) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required. The appeal is brought with respect to a decision[1] (Decision) of Commissioner Ryan (Commissioner) issued on 28 February 2023.
Mr Woods alleged that he was unfairly dismissed from his employment with Jetstar Airways Pty Ltd (Jetstar). Mr Woods was dismissed by Jetstar following an investigation into allegations of misconduct by Mr Woods. In the Decision, the Commissioner concluded that Mr Woods’s dismissal was not unfair.
This matter was listed for permission to appeal and the merits of the appeal and directions were set on 21 March 2023 for the filing of materials by the parties. Both parties later indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the FW Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
Decision under appeal
Mr Woods commenced employment as a licensed aircraft maintenance engineer (LAME) with Jetstar on 15 August 2005.[2]
His contract of employment required him to comply with the Qantas Group’s ‘Standards of Conduct Policy’ (Conduct Policy). The stated purpose of the policy is to set out the standards of conduct that is expected of employees and to outline a range of processes including termination of employment that may be activated to address conduct by an employee that does not meet the standard required.[3]
In broad terms, the standards set out in Conduct Policy require employees to:[4]
a.Act with honesty and integrity.
b.Abide by applicable laws and regulations, policies and procedures.
c.Conduct their duties in a safe manner to ensure personal safety, the safety of others, including other Staff, customers and visitors, as well as the safety of operations and assets.
d.Treat other Staff with respect and work as a team, including not engaging in conduct which constitutes discrimination, harassment, bullying or victimisation.
e.Act in the best interests of Jetstar and protect and enhance Jetstar’s image, profitability and success.
f.Exercise reasonable care and skill in the performance of their duties.
Jetstar’s engineering operations in Sydney are responsible for the safe and compliant maintenance of Jetstar’s aircraft, as well as customer aircraft. To achieve this, the engineering operations in Sydney are organised into crews that work 11-hour shifts on a 4-days on, 4-days off basis across a continuous 24-hour cycle. Each crew has a supervisor and a 2IC and a crew of workers comprising LAME’s and Aircraft Maintenance Engineers (AME).[5]
In or around September 2013 Mr Woods was promoted to the role of shift supervisor. In this role he was responsible for the supervision and management of a crew of 15-20 employees and contractors while remaining ‘on the tools’.[6]
On 17 February 2021, Mr Cory Smith (Mr Smith) a member of Mr Woods’ crew, complained to Mr Woods that somebody had impersonated him and registered him with a women’s only gym. Mr Woods discovered that the culprit was another member of his crew. He directed the individual to apologise to Mr Smith. Mr Smith confirmed in writing the same day that the matter was resolved and that he did not wish to proceed with his complaint.[7]
On 23 February 2021, conflict arose between Mr Woods and another member of his crew, Mr Kristian Troyak (Mr Troyak) regarding the correct approach to rectifying a defect which resulted in a heated argument between the men.[8]
On 19 March 2021, further conflict occurred between Mr Woods and Mr Troyak, following Mr Troyak refusing to self-report a maintenance error. This led to Mr Woods holding a toolbox talk on 20 March 2021, to discuss the importance of logging any maintenance work undertaken.[9]
On 21 April 2021, Mr Troyak sent an email to Mr Woods’ superiors complaining about Mr Woods. Jetstar commenced an investigation into the complaints.[10]
On 24 June 2021, Mr Woods and Mr Troyak had a further disagreement relating to the Mr Woods’ approach to dealing with an aircraft on the ground.[11]
On 2 July 2021, Mr Woods convened a toolbox talk to discuss the importance of ‘good communication between crew members and the supervisory staff regarding the approach to defect rectification. During this meeting, Mr Troyak said “this is absolute horse shit and I’m not going to sit here and listen to it”, before leaving the toolbox talk.
Following the toolbox meeting, Mr Woods sent an email to his superiors raising concerns about Mr Troyak’s conduct and seeking their assistance in managing Mr Troyak’s behaviour. His superiors instructed him to address his concerns directly with Mr Troyak. The same day Mr Woods held a meeting with Mr Troyak and told him that his conduct was disrespectful and that he would be placing Mr Troyak on a performance review program to improve his communication skills.[12]
Later the same day, further conflict occurred between Mr Woods and Mr Troyak over an aircraft that had been grounded due to a defect.[13]
Between 2 July 2021 and 13 July 2021, Jetstar received complaints about Mr Woods from Mr Smith and Mr Troyak.[14]
On 20 July 2021, Mr Woods met with his managers and was presented with a letter informing him that a disciplinary investigation had commenced into whether he had engaged in behaviour which amount to misconduct (First Letter of Allegations). The examples provided were as follows:[15]
a.The matter involving Mr Smith being signed up to a woman’s only gym which had been resolved on 17 February 2023.
b.The incident on 23 February 2021 involving Mr Troyak disagreeing with Mr Woods’ approach to rectifying the defect.
c.That at the 20 March 2021 toolbox meeting, Mr Woods had said ‘this is a great experience of what not to do and you should learn from KT’s [Mr Troyak’s] error in making sure you document everything’.
d.On 21 March 2021, Mr Woods had publicly mocked Mr Troyak’s maintenance error notwithstanding knowing that it is a requirement to raise a tech log on each occasion maintenance is performed.
e.On 10 July 2021, Mr Woods described another employee as being a ‘fucking dumb cunt for making us look shit and stupid as a port’.
f.On 12 July 2021, while in the office area, Mr Woods expressed an opinion that the residents of Fairfield Council were responsible for spreading COVID-19, that they pretend they cannot speak English and don’t follow health orders. When questioned by about his views he responded, ‘I lived there, they’re Asians, I know what they’re like’.
g.On 13 July 2021, between approximately midnight and 4:00am, Mr Woods was witnessed in the quiet room sitting on the couch interacting with his mobile phone while his team was performing work. At no point during this four (4) hour span did he ascertain the needs of the team or offer assistance.
The First Letter of Allegations directed Mr Woods to provide a written response by close of business on 26 July 2021 ahead of a meeting at 3:00pm on 2 August 2021. The letter also advised that Mr Woods would be stood down on pay in accordance with the Jetstar Engineering and Maintenance Enterprise Agreement 2018 (Agreement) for the duration of the investigation.[16]
Mr Woods provided a response to each of the allegations on 22 July 2023.[17] He explained in his response that a number of the matters had previously been resolved, questioned why others had been raised many months after they occurred and indicated that he believed allegations had been made in retaliation to his efforts to performance manage Mr Troyak. Following receipt of his response an investigation was conducted. During the investigation additional allegations of misconduct by Mr Woods were reported.[18]
On 6 August 2021, correspondence was sent to Mr Woods setting out additional questions relating to the First Letter of Allegations as well as three additional allegations (Second Letter of Allegations). The three additional allegations were as follows:[19]
“(i) During the period around August of 2020, Rob Clarke came into the office with two similar parts and asked you which one was the correct part to use. You provided the answer and when Rob left the office stated ‘what a dumb cunt’ in reference to Rob
Clarke.(ii) Around May of this year, Pat Bagnet sent an email to SYD ENG in reference to aircraft damage form a cargo loader and the requirement to use a hangar. You then referred to Pat in the Sign-Up Room as a “fucking dumb cunt”.
(iii) Around Christmas of 2020, you referred Sean Castrodes as “the Bali Bomber” while in a vehicle with others present.”
Mr Castrodes is a colleague of Mr Woods and of Southeast Asian descent.
On 13 August 2021, Mr Woods provided a response to the Second Letter of Allegations stating simply that he refuted each allegation.[20]
On 3 September 2021, Mr Woods was advised that the first and second allegations had not been substantiated, that the seventh allegation was partially substantiated and the remaining allegations were substantiated.[21]
On 8 September 2021, Mr Woods raised a dispute in accordance with clause 20 of the Agreement alleging that the investigation had not been consistent with Jetstar policies including because the complaints had not been reported promptly and his own grievances had not been investigated.[22]
On 13 September 2021, a meeting was held to discuss Mr Woods’ dispute. During the course of that meeting Mr Woods alleged that Mr Troyak had behaved inappropriately in the workplace. Mr Woods was asked to put his allegations in writing. Those allegations were subsequently investigated and a number substantiated.[23] Mr Troyak was ultimately issued with a written warning.
Mr Woods alleges that not all of his complaints about Mr Troyak were put to Mr Troyak and that the allegations against him were investigated more promptly and vigorously than those involving Mr Troyak.
On 9 November 2021, correspondence was sent to Mr Woods setting out three further allegations (Third Letter of Allegations) as follows:[24]
“(i) Between mid-February 2021 and July 2021, members of your crew, including Reece Jumeau and David Hampton, reported to you that Kristian Troyak, a member of your crew, regularly displays an erection whilst at work and deliberately touches his penis through his clothing in view of other crew members. You failed to report this conduct to your line manager, a People & Culture / HR representative and/or Employee Relations.
(ii) In February 2021, you witnessed Mr Troyak make an inappropriate comment about ‘gas chambers’ to Matt Paynter, a member of your crew with Jewish heritage. You failed to report this conduct to your line manager, a People & Culture / HR representative and/or Employee Relations.
(iii) Between mid-February 2021 and July 2021, you witnessed Mr Troyak repeatedly engage in inappropriate and anti-social behaviour in the workplace, specifically passing wind loudly and publicly, but have failed to counsel Mr Troyak about this behaviour or report the conduct to your line manager, a People & Culture / HR representative and/or Employee Relations.”
Mr Woods says that the second allegation was never put to Mr Troyak.
On 22 November 2021, Mr Woods provided a written response to the Third Letter of Allegations.[25]
On 2 December 2021, Mr Woods was sent correspondence (Show Cause Letter) advising that:[26]
a.Jetstar had reviewed the findings made on 3 September 2021 and did not consider those findings were disturbed by the matters raised by Mr Woods concerning Mr Troyak’s conduct.
b.The allegations set out in the Third Letter of Allegations had been substantiated.
c.Jetstar considered the 11 substantiated allegations to be in breach of the Conduct Policy.
The Show Cause Letter invited Mr Woods to provide a written response as to why his employment should not be terminated ahead of a meeting to held on 13 December 2021.[27] On 8 December 2021 Mr Woods provided a written response to the Show Cause Letter (Show Cause Response).[28] On 13 December 2021, Mr Woods and his representative attended a meeting with Jetstar to discuss the Show Cause Letter and Show Cause Response (Show Cause Meeting).[29]
Subsequently Jetstar determined that it would terminate Mr Woods employment and informed him so in writing on 22 December 2021.[30] The Termination Letter set out the reasons for termination as the substantiation of the following allegations in breach of the following parts of the Conduct Policy:
| Substantiated Allegations | Standards of Conduct Policy | |
| 1. | On 20 March 2021, at approximately 4:40am, you held a toolbox talk with your crew. During this toolbox talk you singled out Kristian Troyak (LAME B1/B2) when discussing a maintenance error from the previous day involving a window trim stating ‘to you AME’s this is a great experience of what not to do and you should learn from KT’s error in making sure you document everything’; | Clause 5.4(b) |
| 2. | On 21 March 2021 you publicly mocked Kristian’s maintenance error (referred to in the above point) by sarcastically asking Reece if you both should raise a tech log for the maintenance you have done. You did this on numerous occasions, out aloud in front of people in the office. You have made this comment with the knowledge that it is a requirement to raise a tech log on each occasion you perform maintenance. | clauses 5.4(b) and (c) |
| 3. | On 10 July 2021 you read out an email from Daniel Benincasa (LAME B1), in the email Daniel had requested a deferral from the previous shift. Following reading out this email you referred to Daniel as being a ‘fucking dumb cunt for making us look shit and stupid as a port’ | clauses 5.4(b) and (c) |
| 4. | On 12 July 2021, while in the office area, you expressed your opinion that the residents of Fairfield Council were responsible for spreading COVID-19 and that your view was that they pretend they cannot speak English and don’t follow health orders. When questioned by Victor Tam (LAME B1/B2) about your comments, you responded ‘I lived there, they’re Asians, I know what they’re like’ | Clauses 5.4(b) and (d) |
| 5. | On 13 July 2021, between approximately midnight and 4:00am, you were witnessed in the quiet room sitting on the couch interacting with your mobile phone. You were doing so while your team was performing work which included an AOG situation. At no point during this four (4) hour span did you ascertain the needs of the team or offer assistance. | Clause 5.4(a) |
| 6. | During the period around August of 2020, Rob Clarke came in to the office with two similar parts and asked you which one was the correct part to use. You provided the answer and when Rob left the office stated ‘what a dumb cunt’ in reference to Rob Clarke. | Clauses 5.4(b) and (c) |
| 7. | Around May of this year, Pat Bagnet sent an email to SYD ENG in reference to aircraft damage form a cargo loader and the requirement to use a hangar. You then referred to Pat in the Sign- Up Room as a “fucking dumb cunt”. | Clauses 5.4(b) and (c) |
| 8. | Around Christmas of 2020, you referred to Shaun Castrodes as “the Bali Bomber” while in a vehicle with others present. | Clauses 5.4(b) and (d) |
| 9. | Between mid-February 2021 and July 2021, you failed to act on reports from members of your crew that an employee regularly displays an erection whilst at work and deliberately touches his penis through his clothing in view of other crew members. You failed to report this conduct to your line manager, a People & Culture / HR representative and/or Employee Relations. | Clause 4.2(d) |
| 10. | In February 2021, you witnessed Mr Troyak make an inappropriate comment about ‘gas chambers’ to Matt Paynter, a member of your crew with Jewish heritage. You failed to report this conduct to your line manager, a People & Culture / HR representative and/or Employee Relations. | Clause 4.2(d) |
| 11. | Between mid-February 2021 and July 2021, you witnessed Mr Troyak repeatedly engage in inappropriate and anti-social behaviour in the workplace, specifically passing wind loudly and publicly, but have failed to counsel Mr Troyak about this behaviour or report the conduct to your line manager, a People & Culture / HR representative and/or Employee Relations. | Clause 4.2(d) |
The Decision first sets out the background facts and makes findings in relation to the contested facts. It subsequently summarises the submissions of the parties then considers the factors in s.387(a)-(h) of the FW Act to determine whether the dismissal was harsh unjust or unreasonable.
Valid reason for dismissal related to capacity or conduct – s.387(a)
In relation to valid reason for dismissal, the Commissioner was not satisfied that the conduct underpinning Allegation 1 (that Mr Woods singled out Mr Troyak during a toolbox talk) and Allegation 5 (that Mr Wood spent four hours during an overnight shift interacting with his phone rather than supervising his crew) occurred.[31]
The Commissioner was however satisfied that the conduct underpinning the following allegations did occur and that the conduct was in breach of the Conduct Policy:
a.Allegation 2 – that Mr Woods made sarcastic comments on 21 March 2021 about Mr Troyak’s failure to log maintenance. [32]
b.Allegations 3,6 and 7 (that Mr Woods referred to colleagues and subordinates as ‘dumb c*&^s’).[33]
c.Allegation 4 (that Mr Woods made racist remarks concerning residents of Fairfield).[34]
d.Allegation 8 (that Mr Woods referred to Mr Castrodes as the ‘Bali Bomber’).[35]
e.Allegations 9,10 and 11 (that Mr Woods failed to report inappropriate conduct by Mr Troyak.[36]
The Commissioner concluded that the use of the offensive language to describe co-workers in the presence of other workers and a failure to act to stop sexual harassment in the workplace constituted valid reasons for dismissal. He expressed the view that each of the remaining Allegations (2, 4, 8, 10 and 11) would not justify dismissal in isolation but when considered collectively did so.[37]
Notification of valid reason – s.387(b)
The Commissioner found that Mr Woods was notified of the reasons for his dismissal in the Show Cause Letter and the Show Cause Meeting. Consequently, the Commissioner found that this factor weighed in favour of the dismissal not being unfair.[38]
Opportunity to respond to any reason related to his capacity or conduct – s.387(c)
The Commissioner was satisfied that Mr Woods was aware of the precise nature of Jetstar’s concerns and given an opportunity to respond to the reasons for his dismissal prior to the decision to dismiss being made.[39]
Unreasonably refuse to allow a support person – s.387(d)
The Commissioner found that the Jetstar decision maker did not unreasonably refuse to allow Mr Woods a support person and treated this factor as neutral.[40]
Warned about unsatisfactory performance before the dismissal – s.387(e)
The Commissioner accepted that the reasons for dismissal related to conduct and not performance and therefore a disciplinary process of warnings was not relevant. He therefore treated this as a neutral factor.[41]
To what degree would the size of the enterprise and degree of human resource expertise be
likely to impact on the procedures followed in effecting the dismissal? – s.387(f) and (g)
The Commissioner found that the size of Jetstar’s enterprise had no impact on the procedures followed and that Jetstar did not lack dedicated human resource expertise. The Commissioner therefore found this factor was neutral.[42]
Other relevant matters – s.387(h)
The Commissioner considered the matters identified by the parties as relevant such as whether Mr Woods was treated differentially to other employees, the proportionality of the disciplinary action taken against him and the impact on the dismissal upon his personal and economic situation.[43]
Conclusion
The Commissioner then weighed up all the factors in s.387 of the Act and the circumstances of the case to find that Mr Woods’s dismissal was not unfair.
Grounds of appeal and submissions
Mr Woods’ grounds of appeal can be summarised as follows:[44]
a. The Commissioner erred by failing to deal with a substantial element of Mr Woods’ case denying him procedural fairness (Appeal Ground 3).
b. The Commissioner erred by making and relying on internally inconsistent factual findings in his consideration of whether there was a valid reason for Mr Woods’ dismissal (Appeal Ground 2).[45]
c. The Commissioner erred in taking an erroneous approach to the question of valid reason generally (Appeal Ground 1).
d. The Commissioner erred in his approach to determining that the dismissal was unfair including by giving primacy to the question of whether there was a valid reason for dismissal (Appeal Ground 4)
e. To the extent that the Commissioner made alternative findings in respect of the appropriateness of reinstatement at [238]-[243] of the Decision, the Commissioner erred (Appeal Ground 5).
Mr Woods submits that the appeal is in the public interest because:
a. The appeal concerns questions of general application and importance, including the correct approach to proportionality in matters concerning multiple disconnected allegations, the significance of a failure to deal with a material part of a party’s case, and the impact of a rigid list-based approach to decision making; and
b. The decision is on its face affected by significant jurisdictional error because the Commissioner failed to engaged with a substantial aspect of his case and it is in the public interest that this be corrected.[46]
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the FWC considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin[47] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[48]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[49] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Appeal Ground Three – Failure to address Mr Woods’ case
Mr Woods asserts that the Commissioner failed to deal with a key proposition of his case that the investigation should not have been commenced and was conducted in a procedurally unfair manner. Mr Woods submits that by failing to deal with this proposition the Commissioner fell into jurisdictional error.
To the contrary, however, the Decision reveals that the Commissioner considered the issue of procedurally fairness generally and engaged with Mr Woods’ proposition specifically.
The Commissioner set out in some detail the factual background to the investigation and dismissal including:
a.The age and nature of the allegations;
b.That some of the allegations included matters previously dealt with;
c.That additional allegations were added in the course of the investigation;
d.The investigative process adopted by Jetstar; and
e.The nature of the allegations, investigation process and outcome of the investigation involving Mr Tryosky.
In the Decision, the Commissioner summarised Mr Woods’ submissions in relation to the proposition as follows:[50]
“[181] The Applicant submitted that the manner in which the investigation was conducted was not procedurally fair. In this respect the Applicant submitted that the way the Respondent loaded the Applicant up with new allegation letter after new allegation letter was an unfair way to proceed, caused confusion to the Applicant and Mr Richardson, resulting in a seriously deficient and unfair process for the Applicant.
[182] The Applicant submitted that he has been singled out or received special, harsher treatment in contrast to his colleagues, which suggests the Applicant’s dismissal was unjust.
[183] The Applicant submitted that the extreme length of time between the allegations, the aged and minor nature of many of the allegations, and the Applicant’s extensive period of service and specialised trade skills render the dismissal harsh.”
The Commissioner then went on to make findings with respect to these submissions as follows:
“[206] I do not accept the Applicant’s submissions that the investigation was flawed or procedurally unfair. Complaints were raised against the Applicant. The Respondent investigated those complaints. It is not uncommon for further allegations to arise during the course of an investigation. The Respondent provided the Applicant with the details of each allegation and provided an opportunity to respond to each allegation as they arose.
[207] I also do not accept the submission that the Applicant was confused by the additional allegations, leading him to providing the response, “I refute the premise” of the question or allegation. It was abundantly clear that the Respondent was in response to further questions and/or allegations.”
The Commissioner did not simply decide that dismissal was not unfair because he determined that a valid reason existed for the dismissal. The Commissioner also dealt with and made findings with respect to the mandatory procedural fairness considerations set out in sub sections 387(b), (c) and (d).[51] The Commissioner ultimately found that Mr Woods was aware of the precise nature of Jetstar’s concerns and was given an opportunity to respond to the allegations, the investigation findings, and the proposed termination of his employment.
Mr Woods also complains that the Jetstar decision maker misunderstood the investigation processes which had been followed and that Jetstar failed to listen to Mr Woods’ explanations. This is irrelevant in circumstances where it is clear that the Commissioner made his findings based on the evidence before him and there is nothing to suggest that he simply relied on the view or opinion of the Jetstar decision maker.
We are satisfied that Appeal Ground 3 does not disclose an arguable case of appealable error and accordingly, we reject it.
Appeal Grounds 1 and 2 – The Commissioner erred by making and relying on internally inconsistent factual findings in his consideration of whether there was a valid reason for Mr Woods’ dismissal and the Commissioner erred in taking an erroneous approach to the question of valid reason generally.
Mr Woods initially submitted that the Commissioner made inconsistent findings in relation to Allegation 8 at [159] and [205] of the Decision and that had this error not occurred, he may have reached a different view as to whether substantiated allegations justified a finding that a valid reason existed. He subsequently withdrew this submission by way of Submissions in reply filed on 12 May 2023.
Mr Woods submits that the Commissioner erred more broadly in his approach to assessing whether the relevant conduct constituted a valid reason for dismissal.
In our view the Commissioner’s approach to assessing valid reason was orthodox. The Commissioner made findings as to whether the conduct occurred, whether the conduct amounted to a breach of the Conduct Policy, and whether the conduct as found warranted dismissal both in isolation and together, ultimately finding that:[52]
“[211] Accordingly, I am satisfied that the Applicant’s conduct in relation to each of the Allegations 3, 6 and 7 was a valid reason for his dismissal.
[212] In relation to Allegation 9, I am also satisfied this constituted a valid reason for the Applicant’s dismissal. It was common knowledge that Mr Troyak was regularly engaging in conduct constituting sexual harassment in breach of the Conduct Policy. The Applicant failed to make any enquiry to ascertain whether that was occurring or report it to management, allowing that conduct to perpetuate.
[213] In relation to each of the remaining allegations (Allegations 2, 4, 8, 10, and 11), I am not satisfied that they would justify dismissal in isolation. However, considered collectively, I am satisfied those matters constituted a valid reason for dismissal.”
We do not accept, as alleged by Mr Wood, that the Commissioner simply engaged in mechanically exercise of determining whether or not policy breaches occurred. It is clear from the Commissioner’s analysis of the evidence in relation to each allegation that he considered both the fact of the policy breach and the relevance of the policy breach.
Mr Woods submits that that the Commissioner failed to engage with Mr Woods’ arguments as to why his referral to colleagues as ‘dumb cunts’ did not constitute a valid reason for dismissal in the circumstances in which it was used. Mr Woods also asserts that the Commissioner had no basis for finding that the use of the phrase constituted a valid reason for his dismissal.
It is clear that the Commissioner considered the context in which the phrase was used in the extract from transcript set out at [119] to [121] of the Decision. The Commissioner also took into account the concessions made by Mr Woods in relation to the use of the phrase ultimately finding that:[53]
“[122] Having regard to the evidence before me, and in particular the Applicant’s concessions, I am satisfied, and so find that the conduct underpinning Allegations 3, 6 and 7 occurred and was in breach of clauses 5.4(b) and 5.4(c) of the Conduct Policy.”
In our view the finding that the use of the phrase formed a valid reason for Mr Woods dismissal was open to the Commissioner for the reasons expressed in the Decision as follows:[54]
“[210] Furthermore, and in the context the Respondent’s maintenance operations, the Applicant’s conduct in referring to subordinates as ‘dumb cunts’ after they have sought his advice or guidance potentially leads to situations where junior AME’s and LAME’s will not seek guidance for fear or being labelled a ‘dumb cunt’…”
Mr Woods also submits that the Commissioner failed to afford Mr Woods procedural fairness in finding that Mr Woods was aware that Mr Troyak was engaging in sexual harassment in breach of Jetstar policy when this proposition was not put to Mr Wood’s during the course of the investigation or raised at the hearing.
Mr Woods also submits that the Commissioner failed to engage with his explanation of why he did not take action against Mr Troyak and that there is no apparent assessment of proportionality as to valid reason with respect to this matter.
The evidence reveals that the substance of the allegation – namely that Mr Woods had failed to report that he had been told by members of his crew that Mr Troyak regularly rubs and displays his erect penis through his trousers – was clearly put to Mr Woods. Mr Woods himself identified the conduct as unacceptable in bringing the allegations to Jetstar’s attention.
It is clear from paragraphs [162] to [164] that the Commissioner did give consideration to Mr Woods’ explanation as to why he did not take action against Mr Troyak at the time. In addition, paragraphs [169] – [171] reveal that the Commissioner regarded Mr Woods’ conduct in failing to take any steps to enquire whether this conduct was occurring and/or report it as serious as this was inconsistent with Mr Woods’ duties as a supervisor and it allowed the conduct to perpetuate. The Commissioner’s reason for concluding that Mr Woods’ inaction was a valid reason for his dismissal is set out in the Decision as follows:
“[212] In relation to Allegation 9, I am also satisfied this constituted a valid reason for the Applicant’s dismissal. It was common knowledge that Mr Troyak was regularly engaging in conduct constituting sexual harassment in breach of the Conduct Policy. The Applicant failed to make any enquiry to ascertain whether that was occurring or report it to management, allowing that conduct to perpetuate.”
Finally, Mr Woods submits that the Commissioner’s conclusion at [213] of the Decision with respect to Allegations 2, 4, 8, 10 and 11 is not adequately supported by reasons and could not reasonably have been reached on the evidence before him.
At [213] the Commissioner stated that:
“[213] In relation to each of the remaining allegations (Allegations 2, 4, 8, 10, and 11), I am not satisfied that they would justify dismissal in isolation. However, considered collectively, I am satisfied those matters constituted a valid reason for dismissal.”
Earlier in the Decision, the Commissioner reviewed the relevant evidence and explained his conclusions in relation to Allegation 2 at [96]-[106], in relation to Allegation 4 at [123]-[139], in relation Allegation 8 at [148]-[159] and in relation to Allegations 10 and 11 at [160]-[177].
In the cases of each of Allegations 2, 4, 8, 10 and 11 the Commissioner found that the relevant conduct occurred and that it constituted a breach of policy. When read in the context of the Decision as a whole, we are satisfied that the rationale for his conclusions in relation to Allegations 2, 4, 8, 10 and 11 are adequately expressed. Even if Mr Woods submissions that the Commissioner’s reasons were inadequate or that he could not have reasonably reached them on the evidence before him this would not alter the outcome of this Appeal in light of the findings made at [211] to [212] which we are satisfied were open to the Commissioner.
We are satisfied that Appeal Grounds 1 and 2 do not disclose arguable cases of appealable error and accordingly, we reject them.
Appeal Ground 4 - The Commissioner erred in his approach to determining that the dismissal was unfair including by giving primacy to the question of whether there was a valid reason for dismissal.
Mr Woods submits that Commissioner’s discretion miscarried because the Commissioner:
a.took into account irrelevant considerations in respect of valid reason, in that the findings incorporated Allegation 8;
b.otherwise applied a wrong principle in his approach to considering whether a valid reason existed;
c.failed to take into account material considerations in respect of Jetstar’s processes; and
d.failed to take into account relevant considerations.
In support of this submission Mr Woods relies on matters canvassed in relation to Appeal Grounds 1 to 3. For the reasons set out above we do not accept that Allegation 8 was irrelevant to the finding of whether a valid reason existed for Mr Woods’ dismissal. As explained above we are satisfied that the Commission took into account the processes adopted by Jetstar in the course of the investigation. We are satisfied that the Commissioner took an orthodox approach to determining whether a valid reason existed and we do not accept that the Commissioner applied a wrong principle in his approach.
Mr Woods submits that Commissioner’s discretion also miscarried because the Commissioner failed to take into account relevant considerations. In particular, Mr Woods submits that the Commissioner failed to have regard to relevant considerations which render his dismissal harsh including:
a.the relative lack of seriousness of the valid reason as established;
b.the aged nature of the allegations, and their individual low levels of seriousness;
c.Mr Woods’ personal circumstances, and the disproportionate nature of dismissal in the context of a long-serving employee.
We do not accept that reasons identified by the Commissioner as valid reasons for Mr Woods’ dismissal lack sufficient seriousness. Such a submission ignores the unchallenged findings as to the conduct which occurred, the context in which the conduct occurred, the position which Mr Woods held and that the conduct found to have occurred constituted multiple breaches of the Conduct Policy. The age of the allegations was considered by the Commissioner and properly taken into account.
In support of the submission that the Commissioner did not give consideration to Mr Woods’ personal circumstances he points to [236] of the Decision where the Commissioner states that:
“…the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.”
While the phrase taken out of context is unfortunate, it is clear from the Decision that the Commissioner did take into account Mr Woods’ personal circumstances:
“Personal Impact
“[234] I have taken into account the matters raised by the Applicant, and in particular the impact of the dismissal upon his personal circumstances. Notwithstanding this, I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable in the circumstances.”
We do not accept that the Commission gave undue primacy to the question of valid reason. When the decision is read as a whole, it is clear the Commissioner considered all relevant factors but ultimately concluded that the factors weighing in favour of the dismissal being unfair (such as Mr Woods’ personal circumstances) were outweighed by those in favour of a finding that it was not unfair.
We are satisfied that Appeal Ground 4 does not disclose an arguable case of appealable error and accordingly, we reject it.
Appeal Ground 5 - The Commissioner erred in taking an erroneous approach to the question of valid reason generally.
Mr Woods submits that to the extent that the Commissioner made alternative findings in respect of the appropriateness of reinstatement at [238]-[243] of the Decision, the Commissioner erred.
These findings are irrelevant as the Commissioner found the dismissal was not unfair, a finding which this Full Bench is satisfied was open to him.
Public Interest
The public interest in not enlivened in this appeal. The Commissioner undertook the task of determining whether the dismissal was unfair in an orthodox way. Namely, the Commissioner:
a.Made factual findings in circumstances where there was a contes as to whether the conduct relied upon by Jetstar actually occurred.[55]
b.Summarised the parties’ submissions.[56]
c.Dealt with threshold jurisdictional issues.[57]
d.Considered each of the mandatory considerations, as required under s 387 of the FW Act.[58]
e.Undertook the evaluative and weighing up exercise, having had regard to the totality of the matters to be considered pursuant to s 387 of the FW Act.[59]
Therefore, the appeal does not identify any error that attracts the public interest.
Conclusion
For the reasons set out above, we order as follows:
a.Permission to appeal is refused.
b.The appeal is dismissed.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
12 May 2023, for the Appellant.
16 May 2023, for the Respondent.
[1] [2023] FWC 501.
[2] [2023] FWC 501 at [10].
[3] Ibid [11]-[12].
[4] Ibid [14].
[5] Ibid [16].
[6] Ibid [17].
[7] Ibid [18]-[22].
[8] Ibid [23].
[9] Ibid [24]-[29].
[10] Ibid [32]-[37].
[11] Ibid [38].
[12] Ibid [40]-[42].
[13] Ibid [43].
[14] Ibid [32]-[49].
[15] Ibid [50].
[16] Ibid [51].
[17] Ibid [52].
[18] Ibid [53].
[19] Ibid [55].
[20] Ibid [56].
[21] Ibid [58].
[22] Ibid [59].
[23] Ibid [66].
[24] Ibid [66].
[25] Ibid [67].
[26] Ibid [69].
[27] Ibid [69].
[28] Ibid [71].
[29] Ibid [72].
[30] Ibid [73]-[74].
[31] Ibid [78]-[95], [140-147].
[32] Ibid [96]-[106], [148].
[33] Ibid [107] – [122].
[34] Ibid [123] – [139].
[35] Ibid [148]-[159].
[36] Ibid [160]-[177].
[37] Ibid [211]-[213].
[38] Ibid [216].
[39] Ibid [220].
[40] Ibid [221].
[41] Ibid [222].
[42] Ibid [223]-[224].
[43] Ibid [225]-[233].
[44] Appellant’s Outline of Submissions filed on 14 April 2023 at [5], Amended Notice of Appeal filed on 20 March 2023.
[45] By way of the Appellants Submissions in Reply filed on 12 May 2023 Appeal Ground 2 in respect to Allegation 8 was withdrawn.
[46] This was clarified in the Appellants Submissions in Reply filed on 12 May 2023.
[47] (2010) 197 IR 266.
[48] (2010) 197 IR 266 at [27].
[49] Wan v AIRC (2001) 116 FCR 481 at [30].
[50] Nathan Woods v Jetstar Ai8rways Pty Ltd [2023] FWC 501 at [181]-[183].
[51] Ibid [214]-[221].
[52] Ibid [211]-[213].
[53] Ibid [122].
[54] Ibid [210].
[55] Ibid [76]-[177].
[56] Ibid [180]-[185].
[57] Ibid [192]-[198].
[58] Ibid [199]-[234].
[59] Ibid [235]-[237].
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