Ross Kennedy v Qantas Ground Services Pty Ltd

[2019] FWC 7886

[2019] FWC 7886

The attached document replaces the document previously issued with the above code on 19 November 2019.

Has been reissued to correct paragraph numbering.

Associate to Deputy President Kovacic

Dated 19 November 2019

[2019] FWC 7886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Kennedy
v
Qantas Ground Services Pty Ltd
(U2017/11691)

DEPUTY PRESIDENT KOVACIC CANBERRA, 19 NOVEMBER 2019

Objections by the Respondent to aspects of the Applicant’s evidentiary material.

[1] This decision deals with a number of objections by Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS – the Respondent) to aspects of the evidentiary material filed by Mr Ross Kennedy (the Applicant) in support of his unfair dismissal application. The objections concern various documents contained in Lot J (Part B) of Mr Kennedy’s evidentiary material which were inadvertently not dealt with in my decision of 10 July 2019 (the July 2019 decision)  1.

[2] My decision of 29 October 2019 (the October 2019 decision) 2 regarding Mr Kennedy’s recusal application noted that the July 2019 decision did not deal QGS’ objections to the abovementioned documents. The October 2019 decision also stated that, subject to QGS confirming that it maintained its objections to the documents, a decision in respect of those objections would be issued in due course having regard to the parties’ submissions (both written and oral) regarding the relevant documents3.

[3] On 6 November 2019 QGS’ legal representative advised the Fair Work Commission (the Commission) that QGS maintained its objections to the documents.

[4] The July 2019 decision among other things set out the grounds relied upon by Mr Kennedy in support of his unfair dismissal application as outlined in his Outline of Submissions filed on 1 October 2018 4 and summarised QGS’ and Mr Kennedy’s respective submissions regarding QGS’ objections to aspects of Mr Kennedy’s evidentiary material5. As foreshadowed in the October 2019 decision, I have had regard to the parties’ respective submissions in coming to the decisions set out below. However, I do not consider it necessary to repeat the summary of those submissions as set out in the July 2019 decision in this decision.

[5] By way of background, the documents in Lot J (Part B) of Mr Kennedy’s evidentiary material were described by him as relating to “Failure by the Respondent to provide the Applicant with procedural fairness on fitness-for-duty evaluation undertaken by Dr Walker.” In his written submissions regarding QGS’ objections in respect of the documents at Lot J (Part B) Mr Kennedy posited that the documents demonstrated the absence of procedural fairness regarding inter alia Dr Walker’s fitness-for-duty evaluation and hence that he was not provided procedural fairness in relation to the termination of his employment. In short, QGS objected to the documents on the grounds of relevance and in once instance on the ground of hearsay (Document 20).

[6] I turn now to deal QGS’ specific objections.

Document 20 – Email dated 22 March 2017 from Mr Kennedy to Ms Debra Denne (Case Manager, HR Services with Qantas Airways Limited) regarding the length of time taken by Dr Walker (Director, National Health Group) to finalise his fitness-for-duty report and raising concerns about Dr Walker’s potential findings.

Decision: The concerns raised in the document regarding Dr Walker’s potential findings are little more than speculative given that Dr Walker had not as at the date of the email provided his report to QGS. As previously noted, QGS objected to the document on the basis that it was hearsay. That objection is sustained in respect of the speculative aspects of the document. Beyond that, the document raises issues regarding the length of time taken by Dr Walker to complete his fitness-for-duty report. Those issues can be put to Dr Walker by Mr Kennedy in cross examination should he wish to so without recourse to the document. As such, the document will not be received into evidence.

Documents 67-70 – Various emails from Mr Kennedy to the Commission and from the Commission to Mr Kennedy dated 30 August and 1 September 2017 regarding Mr Kennedy’s application for an order to stop bullying.

Decision: QGS’ objections to these documents are sustained on the basis of relevance. The documents will therefore not be received into evidence. As noted in both the July 2019 and October 2019 decisions, in determining Mr Kennedy’s unfair dismissal application the Commission does not need to determine whether or not Mr Kennedy was bullied at work.

Documents 76-90 – Various emails and other correspondence from Mr Kennedy to the Commission and from the Commission to Mr Kennedy and the parties to his bullying application regarding the listing of that application for conference/mention and/or directions and other issues related to the application. The documents also include an email from Mr Kennedy to Ms Denne inquiring about a supplementary report from Dr Walker and correspondence from QGS’ legal representative concerning the listing of Mr Kennedy’s bullying application. The emails and correspondence are all dated between 5-28 September 2017.

Decision: As the documents relate primarily to Mr Kennedy’s bullying application QGS’ objections to the documents are sustained on the basis of relevance. The documents will therefore not be received into evidence.

Documents 93-97 – Various emails and correspondence dated August, September and October 2016 from Mr Kennedy to Mr Arancio (Rehabilitation Manager, Qantas Airways Limited) and Mr Ruyters (Recovery Partners) regarding the slow progress in developing a return to work plan for Mr Kennedy.

Decision: The documents relate broadly to Ground 6 in Mr Kennedy’s Outline of Submissions. Accordingly, QGS’ objections to the documents are not sustained and the documents will be received into evidence. It will be open to QGS to make submissions as to what, if any, weight should be given to the documents.

Document 98 – The cover page and page 18 of 26 of a paper titled “Pitfalls of an Expert?” presented at a meeting of the Medico-Legal Society of NSW Inc on 15 November 2017.

Decision: QGS’ objection to this document is sustained on the basis of relevance. The document will therefore not be received into evidence.

Documents 99-100 – Extracts from two Victorian Workcover Authority documents regarding Supplementary Reports.

Decision: QGS’ objections to these documents are sustained on the basis of relevance. The documents will therefore not be received into evidence.

Appearances:

R. Kennedy on his own behalf.

M. O’Neil for Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas

Group.

Hearing details:

2018

Canberra

June 14.

Printed by authority of the Commonwealth Government Printer

<PR714416>

 1   [2019] FWC 4819

 2   [2019] FWC 7387

 3   Ibid at [25]

 4   [2019] FWC 4819 at [4]

 5   Ibid [40]-[54]