Qantas Airways Limited v Daniel Matthews
[2022] FWCFB 111
•21 JUNE 2022
| [2022] FWCFB 111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Qantas Airways Limited
v
Daniel Matthews
(C2022/2310)
| VICE PRESIDENT HATCHER COMMISSIONER LEE COMMISSIONER CIRKOVIC | SYDNEY, 21 JUNE 2022 |
Appeal against decision [2022] FWC 654 of Commissioner McKenna at Sydney on 24 March 2022 and Order PR740068 of Commissioner McKenna at Sydney on 6 April 2022 in matter number U2021/7602.
Introduction
Qantas Airways Limited (Qantas) has appealed against a decision of Commissioner McKenna issued on 24 March 2022[1] and an order made by the Commissioner on 6 April 2022.[2] In the decision, the Commissioner found that Qantas’ dismissal of Mr Daniel Matthews on 13 August 2021 was unfair, and determined that he should be reinstated to his employment, that his continuity of employment should be maintained and that he should be compensated for earnings which he lost as a result of his dismissal. The Commissioner’s order gave effect to the remedies determined in the decision.
The grounds of Qantas’ appeal are as follows:
1. The Commissioner erred, at law, by drawing a Jones v Dunkel inference (at [97] of the Decision), adverse to the Appellant’s case, for the failure to call “P2” as a witness.
2. The Commissioner erred in finding (at [98] of the Decision) that the Respondent did not say words to the effect of “Oh look, [complainant’s given name’s] face is the same colour as [Ms P2’s given name’s] top”. The finding being a significant error of fact.
3. The Commissioner erred in finding (at [108] of the Decision) that the Respondent had not been dishonest. The finding being a significant error of fact.
4. The Commissioner erred by finding (at [132] of the Decision) that there were not valid reasons for the dismissal.
5.The Commissioner erred in concluding that the Respondent should be reinstated, in that the Commissioner:
a. erred in finding (at [134]-[135] of the Decision) that prior disciplinary history of the Respondent cannot be considered in determining whether reinstatement is appropriate, in circumstances where there is a finding that there was no valid reason for the dismissal; and
b.should have found that reinstatement was not appropriate by reason of the evidence of the Appellant regarding its loss of trust and confidence in the Respondent (cf [145] of the Decision).
The appeal is brought under s 604 of the Fair Work Act 2009 (FW Act). Under s 604(2), permission is required for the appeal. Because the appeal is from a decision made under Pt 3-2, Unfair Dismissal of the FW Act, s 400 applies to the appeal. Section 400(1) prohibits the Commission from granting permission to appeal unless it considers that it is in the public interest to do so. Section 400(2) provides that, to the extent the appeal is on a question of fact, it must be made on the ground that the decision involved a significant error of fact.
Factual background
The factual background to the matter is as follows. Mr Matthews commenced employment with Qantas on 1 August 2013 and, immediately before his dismissal, held the position of Aviation Safety Training Inspector. Mr Matthews’ dismissal resulted from a complaint made by a participant in a training course he conducted on 7 January 2021. The training course concerned “Recurrent Aviation Medical and Security Training”. During this course, Mr Matthews attempted to demonstrate how to ascertain whether a person requires medical attention. In the course of doing so, he selected one participant (the complainant) for a practical demonstration, which involved him looking at her face and then her chest (to check for breathing). This caused the complainant embarrassment and distress.
The complainant, by email, lodged a formal report of the incident that evening with her manager. The email stated:
“Today 07/01/2021, I attended the security/medical course at the jet base.
The instructor[’]s name was Daniel.
During the medical component of the course, Daniel, was attempting to demonstrate how to ascertain whether or not a person required medical attention. As part of his demonstration, he leant forward and stared at my eyes and then slowly and deliberately lowered his eyes to my chest and for a longer period.
He discussed with the class that you can look into the persons eyes to see if they were responsive
‘and then you may have noticed that I was staring at [complainant’s first name’s] chest (snigger) to see if she was breathing’.
He laughed again at this. I felt embarrassed and humiliated that my face was turning red which he laughed at and made comment to the class. I felt so uncomfortable that I put my cardigan back on and did all the top buttons up, even though I had initially taken it off because I was too warm.
After lunch, a number of pilots joined in the remainder of the security component of the course.
Daniel started off by saying, in front of the whole class, that earlier, he had made a joke and it wasn’t received well, so He’ll try and do better. At which stage, some of the class turned around to look at me.
Two of my colleagues, who were participating in the course, checked on me to make sure I was ok.
I felt so humiliated and embarrassed that I felt compelled to cover up and I disengaged from the course.”
On 14 January 2021, Qantas notified Mr Matthews that it was undertaking an investigation into the incident, and he was stood down from his duties. On 20 January 2021, the complainant provided a formal statement about what had occurred for the purpose of the investigation. This added details not included in the initial report, including:
Mr Matthews stared at the complainant’s chest for an estimated period of 10-20 seconds;
after he had said “and then you may have noticed that I was deliberately staring at [complainant’s given name’s] chest to see if she was breathing”, the complainant said: “please stop, you are making me feel uncomfortable”; and
after the complainant felt her face going red, Mr Matthews said: “Oh look, [complainant’s given name’s] face is the same colour as [given name of another participant’s] top” (this other participant is referred to as “Ms P2” in the decision).
In the process of its investigation, Qantas also obtained written statements about the incident from four of the six other participants (including Ms P2) at the morning session of the training course.
On 21 January 2021, Qantas sent Mr Matthews a letter, signed by Caroline Turnbull, Manager of Aviation Training, in which a series of allegations were made in connection with the incident, to which Mr Matthews was invited to respond by 28 January 2021. Mr Matthews provided a detailed written response on 28 January 2021. At a meeting on 18 June 2021, Qantas provided Mr Matthews with a letter (also signed by Ms Turnbull) setting out the outcome of the investigation. The letter set out the findings of the investigation as follows:
“In summary, the findings of the investigation are that on 7 January 2021:
• you looked at [complainant’s name], Flight Attendant’s ‘chest’ and made comments of a personal nature in reference to her chest, whilst delivering a training course about Aviation Medical and Security to a number of other participants;
• your comments drew unwanted attention to [complainant’s name];
• your comments made in reference to [complainant’s name], and the attention drawn towards her, caused [complainant’s name] to feel embarrassed;
• your actions were unwelcome, unwanted, and caused offence, intimidation and humiliation and arguably could constitute sexual harassment of [complainant’s name].”
An attachment to the letter set out the details of the findings. This included a finding (over Mr Matthews’ denial) that he had said to the complainant: “Oh look, [complainant’s] face is the same colour as [P2’s] top.” The letter said that, on the basis of this finding, it was not accepted that it was not foreseeable that the complainant had been embarrassed by Mr Matthews’ conduct at the training session. The letter, relevantly, concluded:
“Next steps – Review of Employment
Dan, these findings are very serious, and the Company is considering disciplinary action against you, which might be the termination of your employment.
I am particularly concerned by the Allegations relating to your inappropriate verbal comments of a sexually harassing nature towards a female colleague. You knew or ought to have known that this behaviour constitutes harassment and is unacceptable and in contravention of the Qantas Group Standards of Conduct Policy.
. . .
On behalf of Captain James Boland, Head of Training and Checking, I ask you to provide a written response as to why your employment should not be terminated. Please provide your written response to Captain Boland at [email address] by 24 COB Thursday June 2021[.]
After receiving your response, Captain Boland will contact you to arrange a time to meet with you. The meeting is a further opportunity for you to demonstrate why your employment should not be terminated. You are welcome to bring a support person to the meeting.
When deciding the appropriate outcome, all of your written and verbal responses will be taken into account, as well as all of the information obtained as part of the investigation and your entire employment history with the Company.”
Mr Matthews provided Captain Boland a detailed written response to the above letter on 1 July 2021 and, on 30 July 2021, he met with Captain Boland (via Microsoft Teams). On 13 August 2021, Mr Matthews was advised at a further meeting with Captain Boland (via Microsoft Teams) that his employment was terminated with immediate effect. He was provided with a letter of termination (which was signed by Captain Boland). This letter repeated the findings of the investigation, which were said to be in breach of sections 4.2(a)-(c) and 5.4(b)-(d) of Qantas’ Standards of Conduct Policy (Policy). In the letter, Captain Boland said he had taken into account Mr Matthews’ continued denial of the allegation, that the conduct had occurred at a safety training session at which Mr Matthews was expected to act as a role model, and Mr Matthews’ length of service, employment and performance history, which included that he had been required to participate in a number of “performance conversations in recent years”, that he had undertaken refresher training to assist his development, and that on 4 November 2019 he had been issued with a formal warning “as a result of offensive, inappropriate and unwelcome comments made to participants during a training course that you were conducting”.
The termination letter advised Mr Matthews that he could access Qantas’ internal appeal procedure. Mr Matthews submitted an appeal on 19 August 2021, but he was informed that this was unsuccessful on 20 September 2021.
Mr Matthews lodged his unfair dismissal application on 27 August 2021.
The decision
The Commissioner commenced her decision with an overview of the evidence before her, and noted that Ms Turnbull and Captain Boland had given evidence before her. The Commissioner also noted that written statements had been obtained from four participants in the morning training session (other than the complainant), which had been put into evidence as attachments to the witness statements made by Ms Turnbull and Captain Boland. The Commissioner said that none of these participants had given evidence personally in the proceedings, despite the fact that evidence from at least two of them would (in the Commissioner’s view) have been directly pertinent to contested matters. The Commissioner said that “the participants’ versions in the investigation statements were characterised by, for example, some significantly inconsistent and/or incompatible recollections about what occurred on 7 January 2021”[3] and that “the participants’ own recollections did not accord uniformly with the evidence of either the applicant or the complainant and, in some instances, the participants’ investigation statements were shambolically divergent on various matters, including some key matters that are in contention in this case”.[4]
The Commissioner next made findings about the training session on 7 January 2021 at which the relevant incident occurred, and set out the competing versions of events of the complainant and Mr Matthews. In doing so, the Commissioner noted that neither the complainant’s evidence nor her investigation statement made any reference whatsoever to what happened when the training class broke for afternoon tea/coffee, despite the investigation report finding that the complainant was upset, in tears and requiring comfort during this break. The Commissioner then, non-controversially, set out the sequence of events from the commencement of the investigation to Mr Matthews’ dismissal.
In paragraphs [41]-[108], the Commissioner closely analysed and made findings concerning the contested evidence of Mr Matthews and the complainant as to what occurred at the training session on 7 January 2021. It is not possible to do justice to the depth of the Commissioner’s analysis in summary form. Except for one matter that we set out at paragraph [16] below, it will suffice to simply identify that the following key findings of fact were made by the Commissioner:
(1)The demonstration commenced with Mr Matthews saying to the class, in relation to assessing whether a person needs medical attention “You look at the person and ask, how are you going?”. Mr Matthews then looked at the complainant’s face/eyes and said to her “How are you going?” Mr Matthew’s evidence in this respect was accepted by the Commissioner. Mr Matthews thus “signposted” what he was doing in the demonstration.[5]
(2)Mr Matthews looked at the complainant’s chest for about 2-3 seconds, not 10-20 seconds as estimated by the complainant.[6]
(3)When Mr Matthews looked at the complainant’s “chest” (from a distance of 1.5-2 metres), his principal point of visual focus was the exposed skin above the neckline of the complainant’s T-shirt, to observe the rise and fall of the complainant’s upper chest, but his focus may have incidentally included at least the upper part of the complainant’s breast area.[7] Any suggestion that Mr Matthews was engaged in any form of ogling or lewd behaviour was specifically rejected, and the Commissioner considered that the “late introduction into this case of references about breasts and breast area seems to me potentially to involve at least the appearance of an attempted bolstering of an otherwise questionable and/or highly contestable dismissal ground, namely the applicant’s actions ‘arguably could constitute sexual harassment’…”.[8]
(4)Mr Matthews did not, after (allegedly) saying to the class after the demonstration that they may have noticed he was deliberately looking at the complainant’s chest to see if she was breathing, snigger or laugh in a pejorative manner as suggested by the complainant. Nor did he snigger or laugh, or laugh-off any comment made by the complainant, at any point during the morning session relevant to the interactions between him and the complainant.[9]
(5)Mr Matthews did make a comment about looking into a person’s eyes to see if they are responsive, but this was made in the context of first aid instruction in an entirely innocuous way, and was not some form of double entendre as the complainant seemed to suggest.[10]
(6)The complainant’s evidence that Mr Matthews said “And then you may have noticed that I was deliberately staring at [the complainant’s] chest to see if she was breathing” was rejected. The Commissioner instead accepted Mr Matthews’ evidence that he said “Looking at the face you are looking for eye condition – weeping, red, if the pupils are unequal or dilated or even just eyelids blinking, as a response” and then said “What else are you observing?”, whereupon one of the participants raised his hand and suggested “Colour” and another participant suggested “Breathing”.[11]
(7)The complainant’s evidence that she said “Please stop, you are making me feel uncomfortable” was rejected. The Commissioner preferred Mr Matthews’ evidence to the effect that the complainant interrupted him during his continued presentation of the training (some time after the incident) by saying “Can we just move on”. Mr Matthews “reasonably assumed the complainant’s comment referred to the time and a desire to get the session over and done with quickly, and nothing more than that”.[12]
(8)Mr Matthews did not say “Oh look, [the complainant’s] face is the same colour as [Ms P2’s] top”, nor did he single-out the complainant in front of the class. The Commissioner preferred Mr Matthews’ evidence that the reference to red skin arose as a continuation of the discussion set out in (6) above, with Mr Matthews saying “Yes, you are observing skin colour, if pale, red –” (at which point the complainant interrupted with “Can we just move on”), and then to the class as a whole “You observe sweaty, dry skin, the breathing rate, yes. Do you have any allergies – the person may say no, but you may be thinking yes because their skin is red”.[13]
(9)Mr Matthews did, after the lunch break, say something to the effect of “Earlier I had made a joke and it was not received well, so I’ll try and do better”. However, it is unclear what “joke” was being referred to, and Mr Matthews had given evidence about the possibility he had joked about other things during the morning session. Although he conceded he said this in cross-examination after earlier denying it, Mr Matthews had not been dishonest to Qantas or the Commission.[14]
Having regard to Qantas’ appeal grounds, it is necessary to summarise her reasoning in respect of finding (8) above. The Commissioner gave the following reasons for rejecting the complainant’s evidence and accepting that of Mr Matthews:
(A)The Commissioner had already rejected important aspects of the timeline alleged by the complainant.[15]
(B)Mr Matthews, in denying that he made the comment alleged by the complainant, said that he did not even know Ms P2’s name at the time, and he was not challenged on this. There was no evidence that Mr Matthews knew her name or could identify it from a name tag that was readable to him.[16]
(C)The complainant’s initial complaint of 7 January 2021 did not make any reference to Mr Matthews comparing the colour of her face to Ms P2’s top. It seems counterintuitive that a comment with this type of specificity or peculiarity would not have featured in the complainant’s initiating complaint email to her manager.[17]
(D)The complainant was wearing a surgical-style face mask and glasses, making it unclear how Mr Matthews would have observed her reddened face.[18]
(E)Qantas could have called evidence from Ms P2 about anything Mr Matthews did, or did not say, about what she was wearing, but did not although it had a signed investigation statement from her. The Commissioner considered that a Jones v Dunkel inference could be drawn “that is adverse to the respondent’s case on this particular point of contest”.[19]
(F)The Commissioner preferred and accepted Mr Matthews’ evidence as to what unfolded against the version proposed by the complainant, which was to the effect that skin colour was discussed as part of a continued class discussion about what a primary first aider might observe.[20]
(G)The investigation findings appeared to proceed on the assumption that any alleged reference to the Qantas uniform (which Ms P2 was wearing) referred to its red/pink colours. However, the comment might also have been in reference to the navy blue segment of the top.
The Commissioner next turned to her consideration of the matters required to be taken into account under s 387 of the FW Act. In relation to s 387(a), the Commissioner said:
“[113] In my assessment of such matters, I find that central planks of what was described by the complainant as to what unfolded on 7 January 2021 did not occur and, thereby, did not ground a valid reason for the dismissal effected by the respondent considered in the context of the applicant’s conduct (including its effect on the safety and welfare of other employees – relevantly the complainant).”
In relation to the investigation findings which were replicated in the termination letter, the Commissioner found that:
Mr Matthews did not make “comments of a personal nature” in relation to the complainant’s chest, and the comments he did make were matter-of-fact and unremarkable in the context of the first aid instruction he was providing;[21]
while Mr Matthews drew attention to the complainant by selecting her for his demonstration, the fact that the attention was regarded as unwanted by the complainant was conditioned by her perception and evidence about the incident, parts of which were not accepted;[22]
while the complainant did feel embarrassed, uncomfortable and upset by what occurred, whether her reaction was proportionate was to be questioned; and[23]
there was no valid reason for a dismissal based on alleged breaches of the Policy.[24]
In relation to paragraphs (b) and (c) of s 387, the Commissioner found that the evidence indicated that Mr Matthews was notified of the reason for the dismissal in advance of the dismissal and was given the opportunity to respond, for example in the show cause phase. The Commissioner’s findings in relation to paragraphs (d), (e), (f) and (g) need not be recounted. In relation to s 387(h), the Commissioner took three matters into account:
(1)Mr Matthews had a proper appreciation of appropriate standards expected of him, including in relation to sexual harassment and other matters, notwithstanding that Qantas’ training video on work-related sexual harassment was “frankly, ludicrous in terms of contemporary notions of what constitutes sexual harassment”.[25]
(2)Mr Matthews had not sought a volunteer for his demonstration before selecting the complainant, but it was a brief, physically well-distanced demonstration involving essentially fleeting, first aid-specific observations.
(3)Taking the complainant’s evidence at its highest, the alleged chest comment could not reasonably be considered to engage the criteria for harassment in the Policy, or as a breach of the requirement in the Policy to treat other staff with respect.
On the basis of the above reasons, the Commissioner found that, absent a valid reason for dismissal, Mr Matthews’ dismissal was harsh, unjust and unreasonable and therefore unfair. In relation to remedy, the Commissioner gave primary consideration to reinstatement, which was sought by Mr Matthews, and dealt in turn with each matter which Qantas identified in its submissions as rendering reinstatement inappropriate. The Commissioner’s consideration of the first matter raised by Qantas was as follows:
“[134] Ground (a): The respondent submitted that the applicant’s workplace behaviour has on multiple occasions contradicted the culture and behaviour expected of the trainers, which is expected to be that of a role model during training. As to (a), the submissions for the applicant were that the applicant’s prior conduct was not previously considered sufficient to render the relationship unworkable and cannot be relied on this way now absent an objective, separate basis justifying the severing of the employment relationship.
[135] I accept the submissions for the applicant. I have found that a valid reason did not exist for the dismissal because the alleged conduct just did not occur and/or did not occur in the manner contended by the respondent. Against that background, past matters which did not, at the time, lead the respondent to dismiss the applicant should not, in this case, now operate against the reinstatement of an employee who has established a case of unfair dismissal.”
In relation to Qantas’ asserted loss of trust and confidence in Mr Matthews, the Commissioner said:
“[145] I am satisfied there has been a reasonably self-evident level of loss of trust and confidence; without more, the dismissal itself is evidence of that. I have considered particularly the matters advanced by Captain Boland around the concerns in such respects as addressed in his evidence. Regardless, the respondent is a large employer and the employment relationship should be expected to be restored in an appropriate, professional way by the parties respectively…”
The Commissioner concluded that she was not persuaded that the matters relied upon by Qantas, considered individually or collectively, militated against reinstatement, and took into account Mr Matthews’ evidence and submissions as to why he sought reinstatement. As a consequence, the Commissioner determined to order that Mr Matthews be reinstated to his position within 21 days of the date of the decision.
Qantas’ appeal submissions
In relation to appeal grounds 1 and 2, Qantas submitted that the Commissioner’s adverse inference purportedly drawn in accordance with the principles in Jones v Dunkel was “critical” to her finding (8) (summarised in paragraph [15] above) that Mr Matthews did not say “Oh look, [the complainant’s given name] face is the same colour as [Ms P2’s given name]”. It was submitted that two inferences can be drawn from the unexplained failure of a party to call a witness whom that party would be expected to call: first, the evidence of the absent witness would not assist the case of that party or, second, an inference unfavourable to that party may be drawn with greater confidence. Qantas referred to a number of authorities (principally ASIC v Hellicar[26]) that stand for the proposition that Jones v Dunkel does not enable an inference that the evidence of the absent witness would have been positively adverse to that party, and submitted that the Commissioner erred by:
(1) drawing an inference positively adverse to Qantas in paragraph [97]; and
(2)drawing an inference that was not available on the admitted evidence before her, in that the signed investigation statement of Ms P2, which was admitted into evidence without objection, stated:
“I do recall when [the complainant] blushed, Daniel saying words to the effect of, ‘oh look, [the complainant’s] face is the same colour as [Ms P2’s] top’. I was wearing Qantas uniform. My top was pink and red.”
On the evidence before the Commission, it was submitted, the Commission ought to have found that Mr Matthews made the statement alleged by the complainant because:
the complainant had a clear recollection of the words used and given her very specific recollection, it is more likely that the words were used, and the complainant’s evidence was entirely consistent with her contemporaneous complaint made on 7 January 2021;
Ms P2 recalled Mr Matthews saying those words referencing the colour of her top;
another participant who made a signed investigation statement recalled Mr Matthews saying words “in reference to the colour of the female participant’s face, he said words like the colour of her face was pink”, which version is closely aligned to that of the complainant and Ms P2; and
no witness supported the version presented by Mr Matthews, and his evidence in this regard was wholly self-serving.
In relation to appeal ground 3, Qantas submitted that the Commissioner erred in finding that Mr Matthews had not been dishonest. Mr Matthews had, it was submitted:
denied saying words to the effect of “[e]arlier I had made a joke and it was not received well, so I’ll try to do better” in his response to the allegations during the investigation;
said at his first investigation interview he could not recall exactly, but it was possible he said he would try to do better because he was having some difficulty presenting with a mask on;
said at his second interview that he could not recall whether he said “joke” or “spoke”, but that he might have made a joke earlier in the day in relation to the Annie Doll lying on its back;
in his first witness statement, he reverted to his earlier explanation that he said words to the effect of “I will try to do better” at the beginning of the afternoon session as he was having difficulties communicating with his mask, and reiterated this in his second witness statement; and
entirely inconsistently, and without explanation, agreed in cross-examination that he said words to the effect of “Earlier I had made a joke and it was not well received well. I will try and do better”, but denied that the joke he was referring to was the joke in relation to the complainant and looking at her chest.
It follows, it was submitted, that Mr Matthews was dishonest, and the Commissioner’s error of fact in not so finding was significant, ought to have been factored in the exercise of making contested factual findings, and ought also to have been given weight on the questions of whether Qantas had a valid reason to dismiss Mr Matthews and whether reinstatement was appropriate.
Qantas submitted that, in the event that grounds 1 and 2, and/or ground 3, were upheld, we should also find that the Commissioner erred by finding that there were no valid reasons for the dismissal (ground 4).
In relation to ground 5, Qantas submitted that it did not necessarily follow that, because there was a finding that Qantas had no valid reason to dismiss Mr Matthews, he ought to be reinstated, since the issue of remedy is a separate inquiry and wider discretionary considerations apply to the question of the appropriateness of reinstatement. It was submitted that the Commissioner’s exercise of the discretion as to remedy miscarried because of the Commissioner’s finding at paragraph [134] that Mr Matthews’ prior disciplinary history could not be relied upon in support of a finding that reinstatement was inappropriate absent an objective, separate basis for justifying the severing of the employment relationship. By so finding, it was submitted, the Commissioner:
conflated the separate and distinct enquiries as to whether there is a valid reason for dismissal and whether, in the event that the dismissal is found to be unfair, reinstatement is the appropriate remedy;
acted on a wrong principle, being that a failure to substantiate a valid reason for dismissal renders irrelevant the prior disciplinary history of an applicant; and
failed to take into account relevant material considerations, being Mr Matthews’ prior disciplinary history and the pattern of conduct which had emerged of Mr Matthews making training participants feel uncomfortable, making inappropriate comments to participants, and making comments of a sexual nature.
Qantas submitted that “[t]here is no doubt that Mr Matthews had caused [the complainant] significant distress and embarrassment” and, in light of Mr Matthews’ disciplinary history and the evidence of Captain Boland, the Commissioner ought to have found that the necessary trust and confidence had been lost. Additionally, it was submitted, Captain Boland’s cross-examination on the question of reinstatement does not appear to have been given any weight by the Commissioner.
It was submitted that permission to appeal should be granted because the appeal raises important issues of general importance and application, namely: the availability and scope of a Jones v Dunkel inference, particularly in circumstances where an employer’s investigation, including witness statements, are admitted into evidence, but those witnesses are not ultimately called to give oral evidence and be cross-examined; and the exercise of the discretion to order reinstatement, and the relevance of prior disciplinary history, in circumstances where the Commission has found no valid reason for the dismissal. Qantas sought, in the event that the permission to appeal was granted and the appeal upheld, that the matter be redetermined by us or remitted to a single member of the Commission for rehearing.
Consideration – permission to appeal
For the reasons which follow, we do not consider that it would be in the public interest to grant permission to appeal.
It is well established that it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[27] However, the fact that the member at first instance has made an error of some description is not necessarily a sufficient basis for the grant of permission to appeal. If the identified error lacks significance in the ultimate result in the decision under appeal, or no useful purpose would be served by upholding the appeal should permission to appeal be granted, or the decision under appeal is concerned with its own particular facts and the appeal otherwise does not raise any issue of general importance, jurisdiction, law or principle, the grant of permission to appeal will likely not be in the public interest.[28]
Grounds 1 to 4 of Qantas’ appeal are directed at overturning the Commissioner’s findings that there was no valid reason for Mr Matthews’ dismissal and, consequently, that his dismissal was harsh, unjust and unreasonable. Qantas’ case appears to assume, without developing any argument in this respect, that if we accepted its contentions of error in grounds 1 and 2, and/or ground 3, it should follow that the Commissioner’s finding under s 387(a) that there was no valid reason for dismissal is also in error.
This cannot be accepted. We have earlier set out, in paragraph [15] above, the nine key findings of fact which caused the Commissioner to conclude that there was no valid reason for the dismissal. Qantas’ appeal does not challenge any of the first seven findings. These findings involve a wholesale rejection of the bulk of the original complaint made by the complainant. Further, they almost entirely dispose of the findings of Qantas’ investigation into Mr Matthews’ conduct on 7 January 2021, upon which Qantas relied in dismissing Mr Matthews. It may be recalled that the summary of the critical findings focused on the proposition that Mr Matthews looked at the complainant’s chest and made comments of a personal nature concerning her chest in a way which drew unwanted attention to her and caused her to feel embarrassed. This was said to constitute unwelcome and unwanted behaviour which caused offence, intimidation, humiliation and, arguably, constituted sexual harassment. However, findings (1)-(7) made by the Commissioner make these propositions unsustainable. On those findings, Mr Matthews engaged in a legitimate demonstration exercise as part of a training session concerned with first aid, did not direct any comments of a personal nature to the complainant about her chest, and did not engage in conduct which, assessed objectively, was of a humiliating, intimidatory or sexual nature.
As a consequence, appeal grounds 1, 2 and 3, taken at their highest, could not lead to the result whereby the Commissioner’s conclusion that there was no valid reason for the dismissal could be found to be in error. That conclusion, for the reasons explained, is wholly sustainable on the basis of unchallenged findings (1)-(7). Findings (8) and (9) concern matters which were peripheral to the dismissal and could not by themselves support a conclusion that there was a valid reason for the dismissal of Mr Matthews. The alleged comment “Oh look, [the complainant’s first name’s] face is the same colour as [Ms P2’s first name’s] top”, which was the subject of finding (8), was not even contained in the complainant’s original complaint. The comment made after the lunch break, “[e]arlier I had made a joke and it was not well received well. I will try and do better”, which was the subject of finding (9), was not established to be even referable to the interaction between Mr Matthews and the complainant in the morning session (although the complainant apparently took it as such). In any event, it is not on any view an objectively offensive comment which could ground a dismissal. Therefore, whether Mr Matthews was “dishonest” about this, as Qantas contends, is not a matter of significance which could constitute a valid reason for dismissal.
Accordingly, even if we found error as contended in respect of grounds 1 and 2 and/or ground 3, it would not cause us to find error in the Commissioner’s conclusion that there was no valid reason for Mr Matthews’ dismissal and to uphold ground 4. The conclusion that Mr Matthews’ dismissal was harsh, unjust and unreasonable would therefore necessarily remain undisturbed (there being no challenge to any of the Commissioner’s other findings under paragraphs (b)-(h) of s 387). The grant of permission to appeal in respect of appeal grounds 1-4 would therefore serve no useful purpose.
In any event, we do not consider that grounds 1, 2 or 3 have sufficient merit to attract the public interest. Grounds 1 and 2 are concerned with identifying error in respect of the Jones v Dunkel inference drawn by the Commissioner in support of finding (8). It may be accepted that, on one reading of the last sentence in paragraph [97] of the Commissioner’s decision, the inference she drew went further than the principle in Jones v Dunkel[29] permits. However, we do not consider that finding (8) is vitiated simply by reason of any error in this respect. We have earlier set out, in paragraph [16], the process of reasoning by which the Commissioner made finding (8). We consider that, even absent the (purported) Jones v Dunkel inference, finding (8) remains fully supportable on the basis of the matters summarised in (A)-(D) and (F)-(G) of paragraph [16]. Further, we consider that, having regard to those matters, the finding was correct. We find compelling in this regard that the comment alleged to have been made by Mr Matthews was not described in the complainant’s original complaint, that the unchallenged evidence was that Mr Matthews did not even know Ms P2’s name as at the time of the training session and thus could not have made the comment in the terms alleged, and that the complainant was wearing a surgical face-mask and glasses at the time, thus making an observation about her face colour less than probable. It is also important that the unchallenged findings (1)-(7) discount most of what the complainant said about the entire incident and remove any rational context in which the alleged comment might plausibly have been made.
Further, we consider that the unexplained failure of Qantas to call Ms P2 as a witness, in circumstances where it had a signed investigation statement from her which ostensibly supported the complainant’s evidence concerning the alleged comment, would at least have permitted the Commissioner to infer that the inferences she would otherwise draw from the evidence before her might be more confidently drawn and that evidence of Ms P2, if called as a witness, would not have assisted Qantas’ case. We entirely reject Qantas’ contention that no Jones v Dunkel inference could be drawn because Ms P2’s investigation statement was included in the evidence before the Commissioner and, because it was admissible for a non-hearsay purpose (namely, as constituting part of the business record of the investigation), the hearsay rule did not apply to the statement absent some limitation being placed on its use.[30] The rules of evidence do not apply to the Commission, and the Commission must perform its functions and exercise its powers in a manner that is, amongst other things, fair and just.[31] In unfair dismissal cases, the Commission adopts procedures to ensure that parties are placed on notice as to the case they will have to meet at the hearing. The Commission’s standard directions in such cases require each party to file, in advance of the hearing, written witness statements from any witness upon whose evidence they seek to rely. Thus, in this case, in directions issued by the Commissioner on 23 September 2021, the following direction was made:
“The respondent (Qantas Airways Limited) is directed to lodge with the Fair Work Commission, and serve on the applicant, an outline of submissions, witness statements and other documentary material the respondent intends to rely on in opposition to the application in this matter, by no later than 5.00pm on Friday, 5 November 2021.”
In accordance with this direction, Qantas filed three witness statements: those of the complainant, Ms Turnbull and Captain Boland. The investigation statements taken from the other participants in the 7 January 2021 training session, including that of Ms P2, were annexed to the statements of Ms Turnbull and Captain Boland as documents which had been obtained in the course of the investigation which had formed part of their consideration in the decisions they made. No witness statement from Ms P2 or any of the other participants was filed by Qantas. In those circumstances, we consider that Qantas is not entitled to treat the contents of Mr P2’s investigation statement as if it were witness evidence, and its use is impliedly subject to the limited basis upon which it was introduced into evidence. Qantas’ unexplained failure to call Ms P2 (or any other participant) as a witness therefore may legitimately be the subject of a Jones v Dunkel inference.
In any event, if regard is had to the investigation statements made by the four other participants, Qantas is not entitled (as the Commissioner observed in paragraph [10] of the decision) to cherry-pick from Ms P2’s investigation statement, or those of the other participants, in circumstances where aspects of those statements were seriously at odds with the case that Qantas sought to advance. Three examples of this suffice:
Ms P2 said in her statement that, during a coffee break, she observed the complainant upset and crying, and the complainant told her that the unwanted attention from Mr Matthews made her upset “and also triggered deeper emotional issues”. The complainant did not give any evidence to this effect. This account suggests that Mr Matthews was far from the sole cause of any distress on the complainant’s part.
Another participant who saw the complainant upset during the coffee break and spoke to her together with Ms P2 did not describe in her statement anything said or done by Mr Matthews that was directed specifically to the complainant, and did not recall him saying “Oh look, [the complainant’s given name’s] face is the same colour as [Ms P2’s first name’s] top”. The other participants, apart from Ms P2, likewise did not recall such a comment being made or did not recall it as being in the terms alleged.
Another participant said in his investigation statement that Mr Matthews was “making a lot of funny jokes and comments during the course of the day”. If so, this may demonstrate that Mr Matthews’ comment about his earlier joke not being received well (finding (9)) had nothing to do with his interaction with the complainant.
This cherry-picking is all the more egregious when it is clear that, if Ms P2 had been called as a witness and subjected to cross-examination, there would undoubtedly have been serious issues raised as to her credibility. First, it is clear that Ms P2 (and the other participants) were not, in making their investigation statements, simply invited to give their best recollection of the incident. They were also led by those who took the statements, in that the various allegations made by the complainant were put to them and a response invited. Thus, it is not clear whether Ms P2’s investigation statement evinces any independent recollection of Mr Matthews having made any comment about the colour of the complainant’s face. Second, Ms P2’s investigation statement includes the following:
“There was some friendly banter between Daniel and [the complainant] at the beginning of the course. I don’t recall the exact words whether Daniel was asking for a phone number however there was a reference to ‘interest’ in the banter. I have a feeling that Daniel may have given [the complainant] a compliment I am not sure, as I did not hear properly. It appeared to me that there was some personal interest by Daniel towards [the complainant] due to the light-hearted banter. I cannot be sure.
Daniel kept going back to [the complainant] and engaging with her verbally during the course beginning. I think that Daniel kept going back to [the complainant] because of the friendly banter between the two of them at the beginning of the day.”
The complainant gave no evidence even remotely resembling this, which seeks to give a completely different character to the incident. It did not feature as part of Qantas’ case and, in particular, nothing of this sort was put to Mr Matthews in cross-examination. The tendentious nature of this part of Ms P2’s account, which was not supported in any way by the investigation statements of the other participants, necessarily puts the credibility of the entirety of her statement into question. On one view, it may also shed light on Qantas’ failure to call her as a witness.
In relation to appeal ground 3, it may be accepted that Mr Matthews gave, over time, inconsistent responses to the allegation that he had said, after the morning lunch break, “Earlier I had made a joke and it was not well received well. I will try and do better”. However, nothing in Qantas’ submission explains why it necessarily follows that this evidences that Mr Matthews was “dishonest” to Qantas and the Commission about this issue. It was never put to Mr Matthews that he had lied about this issue either to Qantas or the Commission, nor did it feature as part of Qantas’ reasons for Mr Matthews’ dismissal. A finding that a witness has lied to a court or tribunal will not lightly be made.[32] The inconsistency in Mr Matthews’ responses is more likely to be attributable to a failure of recollection, particularly in circumstances where Mr Matthews’ evidence was that he never made any joke at the complainant’s expense and thus had no reason to connect this alleged comment to anything to do with the complainant. The Commissioner accepted Mr Matthews’ evidence in this regard and, as earlier stated, that finding is not challenged in the appeal.
We do not consider that anything raised by appeal ground 5 is of sufficient substance or merit such as to attract the public interest in respect of the Commissioner’s discretionary decision to order Mr Matthews’ reinstatement. The Commissioner plainly took into account (at paragraphs [134]-[135] of her decision) Qantas’ submission that Mr Matthews’ past disciplinary history weighed against his reinstatement, but rejected that submission on the basis that this disciplinary history had not, absent Qantas’ findings about the events of 7 January 2021, caused Qantas to conclude that the employment relationship was not workable and should be terminated. That approach was rational and reasonably available, and was also consistent with the following passage from the Full Bench decision in Moszko v Simplot Australia Pty Ltd:[33]
“Prior to his dismissal, Mr Moszko had a disciplinary history in his employment with Simplot, including being issued with a first warning and a second final warning. It is rational for the matters the subject of these warnings to have caused Simplot to lose some trust and confidence in Mr Moszko, but the fact that Simplot did not make a decision to dismiss Mr Moszko in connection with these incidents means that there was enough trust and confidence in the relationship for it to continue. Accordingly, these past incidents could not, without more, provide a sound and rational basis for a conclusion that Simplot has lost trust and confidence in Mr Moszko to such an extent so as to make restoring the employment relationship inappropriate.”[34]
It is not reasonably arguable that the approach taken by the Commissioner involved any conflation of the issues of valid reason and remedy, nor that it involved any error of principle.
Finally, it is clear that the Commissioner took into account the evidence given by Captain Boland in paragraph [145] of her decision. A contention that insufficient weight was given to this evidence is not demonstrative of any error in the exercise of the discretion. We observe that Captain Boland’s evidence concerning a loss of trust and confidence in Mr Matthews was plainly coloured by his immoveable position that the investigation findings which founded his dismissal were correct, and this necessarily meant that limited weight could be placed on his evidence once the Commissioner had found that there was no valid reason for Mr Matthews’ dismissal.
We do not accept Qantas’ submission that its appeal raises any issues of general importance or application. The principles concerning Jones v Dunkel inferences are well-established in various court authorities and we see no reason for us to venture into this territory. In respect of the remedy of reinstatement, we consider that the Commissioner took an entirely orthodox approach, and no general issue of genuine novelty or controversy in this respect is raised by Qantas’ appeal.
Conclusion
Because we do not consider that it would be in the public interest to grant permission to appeal, s 400(1) prohibits the grant of permission to appeal. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
V Bulut of counsel for the appellant.
L Saunders of counsel for the respondent.
Hearing details:
2022.
Sydney:
9 June.
[1] [2022] FWC 654
[2] PR740068
[3] [2022] FWC 654 at [9]
[4] Ibid at [10]
[5] Ibid at [43]-[49]
[6] Ibid at [50]-[55]
[7] Ibid at [56]-[62]
[8] Ibid at [62]
[9] Ibid at [66]-[70]
[10] Ibid at [72]-[74]
[11] Ibid at [75]-[80]
[12] Ibid at [81]-[91]
[13] Ibid at [92]-[100]
[14] Ibid at [101]-[108]
[15] Ibid at [93]
[16] Ibid at [94]
[17] Ibid at [95]
[18] Ibid at [96]
[19] Ibid at [97]
[20] Ibid at [99]
[21] Ibid at [114]
[22] Ibid at [115]
[23] Ibid at [116]-[117]
[24]Ibid at [118]
[25] Ibid at [127]
[26] [2012] HCA 17, 247 CLR 345 at [232] per Heydon J
[27] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[28] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; Qantas Airways Limited v Carter [2012] FWAFB 5776, 223 IR 177 at [58]; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[29] [1959] HCA 8, 101 CLR 298 at 308 per Kitto J, 312 per Menzies J, 320-1 per Windeyer J
[30] See Evidence Act 1995 (Cth) ss 60(1), 136
[31] Fair Work Act 2009 (Cth), ss 591, 577(a)
[32] Smith v NSW Bar Association [1992] HCA 36, 176 CLR 256 at 268-269; JBS Australia Pty Limited v Reng[2013] FWCFB 5761 at [33]-[34]
[33] [2021] FWCFB 6046, 310 IR 373
[34] Ibid at [62]
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