Qantas Airways Limited v Daniel Matthews - [2022] FWCFB 111

[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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] FWCFB 111
Decision Date: 21 JUNE 2022

CaseChat Overview and Summary

Qantas Airways Limited appealed a decision of Commissioner McKenna, who found that Qantas’ dismissal of Mr Daniel Matthews was unfair. The Commissioner ordered that Mr Matthews should be reinstated to his employment, that his continuity of employment should be maintained and that he should be compensated for lost earnings. Qantas submitted that the Commissioner erred in a number of respects, including by drawing a Jones v Dunkel inference for the failure to call a witness, and by finding that there were no valid reasons for the dismissal. The appeal was brought under s 604 of the Fair Work Act 2009. The appeal was dismissed because it was not in the public interest to grant permission to appeal. The Court found that the appeal did not challenge any of the first seven findings of the Commissioner, which involved a wholesale rejection of the bulk of the original complaint made by the complainant. Further, the appeal did not challenge the Commissioner’s finding that there was no valid reason for the dismissal. The Court found that the Commissioner’s conclusion that Mr Matthews’ dismissal was harsh, unjust and unreasonable would necessarily remain undisturbed.

Orders