[2019] FWC 4819

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, 10 JULY 2019

Application by the Applicant for orders requiring persons to attend the Fair Work Commission –order to be issued requiring Mr Arancio to attend – applications otherwise refused. Application by the Respondent seeking permission to be legally represented in this matter – permission granted. Objections by the Respondent to aspects of the Applicant’s evidentiary material – a number of objections upheld Application for an unfair dismissal remedy.

[1] This is the fourth in a series of interlocutory decisions (excluding appeal decisions) 1 regarding Mr Ross Kennedy’s (the Applicant) unfair dismissal application which was lodged on 3 November 2017 alleging that the termination of his employment by Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS – the Respondent) on 2 November 2017 was unfair.

[2] This decision deals with the following issues:

1. Mr Kennedy’ application for orders requiring persons to attend the Fair Work Commission (the Commission);

2. QGS’ application under s.596 of Fair Work Act 2009 (the Act) for permission to be represented by a lawyer; and

3. QGS’ objections to aspects of the evidentiary material filed by Mr Kennedy in support of his unfair dismissal application.

[3] Issues 1 and 2 were heard on 28 May 2019, while issue 3 was heard on 14 June 2019.

[4] I deal with each of the issues separately below. However, before doing so I set out the summary of the grounds relied upon by Mr Kennedy in support of his unfair dismissal application which was included in Mr Kennedy’s Outline of Submissions filed with the Commission on 1 October 2018.

“Ground 1

That the dismissal of the Applicant was unfair because the medical and lay evidence before the decision-maker QGS Head Brett Hardy at the time of the dismissal was heavily conflicted and the evidence did not support a clear finding that there was a valid reason for the dismissal in the circumstances.

Ground 2

That the dismissal of the Applicant was unfair because the report of medical assessor Dr Kipling Walker of 27 February 2017 that Mr Hardy preferred and relied upon to dismiss the Applicant was not sound, defensible or well-founded.

Ground 3

That the Applicant was not given a reasonable opportunity to respond to reasons provided by Mr Hardy in his “show cause” letter of 27 September 2017 to dismiss the Applicant.

Ground 4

That the dismissal of the Applicant was unfair because the Applicant was not afforded procedural fairness in respect to procedures, policies and terms put in place by QGS on two Fitness-for-Duty Examinations conducted on the Applicant by Dr Walker and General Practitioner Dr Najat Kushada.

Ground 5

That the dismissal of the Applicant was unfair because a reasonable adjustment to the Applicant’s substantive role to enable him to return to work as proposed by medical assessor Dr Robert Gertler was not considered by Mr Hardy in his dismissal of the Applicant.

Ground 6

That the dismissal of the Applicant was unfair because QGS did not manage the Applicant’s return-to-work process and plan in a reasonable manner, failed to adequately support the Applicant whilst he was on sick leave, raised unreasonable and unsupported impediments to enable the Applicant to be returned to work and failed to take all reasonable steps to return the Applicant to work in accordance with QGS’ return-to-work policies.

Ground 7

That the Applicant was not afforded procedural fairness in respect to his return-to-work process and plan given that Recovery Partners’ Case Manager Pieter Ruyters was not of a reasonable level of competency to satisfactorily complete the return-to-work of the Applicant.

Ground 8

That the dismissal of the Applicant was unfair because the Applicant received differential treatment from QGS compared to the treatment given to other employees in a similar or same situation as that of the Applicant.

Ground 9

That the size of QGS, QAL and Qantas was not a valid reason which may have compromised its ability to dismiss the Applicant in a fair manner.

Ground 10

That the extensive human resources and legal specialists and expertise in QGS, QAL and Qantas was not a valid reason which may have compromised its ability to dismiss the Applicant in a fair manner.

Ground 11

That the dismissal of the Applicant was unfair because the Applicant was not afforded procedural fairness given that Dr Walker was not an objective or competent assessor of the capacity of the Applicant to complete the inherent requirements of the role.

Ground 12

That the dismissal was harsh on the Applicant due to the economic and personal consequences of the Applicant resulting from his dismissal.

Ground 13

That the dismissal of the Applicant was not consistent with the statutory imperative of ensuring ‘a fair go all round’.

Ground 14

That the dismissal of the Applicant was not fair given the consideration of other relevant matters raised by the Applicant to support his unfair dismissal application.” 2 (As per original)

[5] I set out the above grounds as they will be a relevant consideration in determining Mr Kennedy’s application for orders for persons to attend and QGS’ objections to aspects of the evidentiary material filed by Mr Kennedy.

[6] I note that Mr Kennedy’s Outline of Submissions was filed in advance of the determinative conference convened by the Commission on 23 November 2018 to determine the following issues:

1. Did Dr Walker conclude that Mr Kennedy had or had not been bullied at work whilst employed by Qantas Ground Services in Canberra or alternatively did Dr Walker not form a view on that question?

2. If Dr Walker concluded that Mr Kennedy had or had not been bullied at work, on what basis did Dr Walker come to that conclusion?

[7] Specifically, the Commission determined that Dr Walker did not form a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS and against that background decided it was not necessary to determine the second issue. 3

[8] I note also that revised Directions issued on 10 April 2019, i.e. after Mr Kennedy’s appeal against the outcome of the determinative conference had been determined, provided Mr Kennedy the opportunity to file revised submissions if he wished to do so (see paragraph [40] below). However, Mr Kennedy did not do so.

1. Mr Kennedy’ application for orders requiring persons to attend the Commission

[9] Mr Kennedy’s application for orders requiring persons to attend the Commission has a lengthy history. On 3 April 2018 Mr Kennedy in the context of filing submissions in respect of his application for orders requiring the production of documents provided a draft list of 30 persons in respect of whom orders to attend would be sought, with Mr Kennedy providing a revised list on 1 May 2018. The Commission’s decision 4 of 14 May 2018 regarding Mr Kennedy’s application for orders requiring the production of documents concluded with the following remarks:

“[22] … Mr Kennedy’s application for various persons to be required to attend the hearing of his unfair dismissal application will be listed for hearing once the parties’ respective outlines of submissions and evidentiary material have been filed in accordance with the Directions issued in conjunction with this Decision.” 5

[10] Following determination of Mr Kennedy’s appeal against the abovementioned decision, Directions regarding Mr Kennedy’s application for orders for persons to attend were issued on 20 August 2018, with the application listed for a telephone hearing on 19 October 2018. In other developments, on 16 September 2018 the Commission received an email application from Mr Kennedy seeking that the Commission issue orders to require 22 persons to attend before the Commission. The application was made under s.590(2)(a) of the Act. Specifically, Mr Kennedy sought orders in respect of the following persons:

1. Mr Nick Angelos – an employee of QGS;

2. Mr Paul Arancio – Rehabilitation Manager, Qantas Airways Limited (QAL);

3. Mr Simon Brown – Head of Industrial Relations, Qantas Domestic;

4. Mr Christopher Carney – an employee of QGS;

5. Mr Kevin Chalker – an employee of QGS;

6. Ms Debra Denne – Case Manager, HR Services with QAL;

7. Mr Omer Ferhan – Mr Kennedy’s supervisor at QGS;

8. Mr Brett Hardy – Head QGS;

9. Dr Ian Hosegood – Medical Officer, QAL;

10. Mr Pouvalu Latekefu – a former supervisor of Mr Kennedy at QGS;

11. Mr Chris Mackonnis – an employee of QGS;

12. Ms Sonia Millen – formerly of Herbert, Smith Freehills but now Executive Manager, Employee Relations with Qantas;

13. Ms Karen Maloney – Manager, HR Services with QAL;

14. Mr Michael O’Neil – Head of Industrial Relations, Associated Airlines and Services with QAL;

15. Mr Julian Piromalli – Operations Manager, Recovery Partners;

16. Mr Sanjay Prowse – Mr Kennedy’s supervisor at QGS;

17. Mr Pieter Ruyters – Case Manager, Recovery Partners;

18. Ms Tracey Silvester – Principal Advisor, MJSP Consulting (Ms Silvester conducted the investigation into Mr Kennedy’s allegations of bullying);

19. Ms Mimi Sirimanotham – QAL’s Acting Duty Manager, Canberra Port;

20. Mr Ashley Stephenson – QAL’s Airport Manager, Canberra Port;

21. Dr Kipling Walker – Director, National Health Group; and

22. Ms Jospehine Zovac – QAL’s Duty Manager, Canberra Port.

[11] Ultimately, the hearing on 19 October 2018 did not proceed and was further deferred pending finalisation of the outcome of the determinative conference convened by the Commission in late November 2018 at Mr Kennedy’s request. Following the outcome of Mr Kennedy’s appeal in respect of the Commission’s decision regarding the determinative conference, revised Directions were issued on 10 April 2019 with the matter listed for hearing on 28 May 2019.

[12] On 24 May 2019, Mr Kennedy sent an email to the Commission withdrawing his application for orders to attend in respect of the following seven persons – Mr Angelos, Dr Hosegood, Ms Maloney, Mr O’Neil, Ms Silvester, Ms Sirimanotham and Ms Zovac. In a further email the next day, Mr Kennedy also withdrew his application for orders to attend in respect of Dr Walker and Mr Hardy.

[13] At the hearing on 28 May 2019, Mr Kennedy withdrew his application for orders to attend in respect of the following six persons – Mr Chalker, Mr Mackonnis, Mr Piromalli, Mr Prowse, Mr Ruyters and Mr Stephenson. Mr Kennedy also undertook to discuss with Mr Latekefu following the hearing whether or not he would be willing to give evidence on his behalf. Mr Kennedy has provided no further advice regarding Mr Latekefu’s disposition. As such, I will defer considering Mr Kennedy’s application for an order in respect of Mr Latekefu until such time as the situation is clarified.

[14] I turn now to consider Mr Kennedy’s application as it relates to the remaining six persons named in his application. Mr Kennedy’s written submissions provided a chronology of events since mid-April 2016 when he was directed to attend a fitness for duty examination with his general practitioner, Dr Geetha Mathew. Beyond that Mr Kennedy provided submissions in regards of each of the persons in respect of who he sought orders to attend. Those submissions are set out in the table below.

[15] The overarching position of QGS as outlined in its written submissions regarding Mr Kennedy’s application for orders requiring persons to attend can be summarised as follows:

• the Commission should not exercise its discretion to issue any of the orders sought by Mr Kennedy;

• the discretion to compel attendance should not be exercised unless the Commission was of the view that there was a relevant matter about which it should be informed and the making of an order was both necessary and appropriate in the circumstances;

• courts often applied a two-stage test in determining whether a subpoena had a legitimate forensic purpose, asking firstly whether the applicant identified a legitimate forensic purpose for which access was sought and secondly whether the applicant had established that the documents sought or the evidence to be called would materially assist his or her case;

• the applications made by Mr Kennedy did not serve a legitimate forensic purpose, adding that given the Commission’s decision arising from the determinative conference evidence about the alleged bullying was irrelevant to the veracity of Dr Walker’s report and whether or not there was a valid reason for Mr Kennedy’s dismissal;

• it was evident from the written materials filed by Mr Kennedy in support of his application for orders that he was for the most part speculating about what witnesses may or may not say in relation to the various issues he considers relevant;

• curiosity on the part of an applicant was not a proper basis for making an order requiring a person to attend;

• it was an abuse of process to seek an order for a person to attend where it was plain that the evidence sought from that person was subject to a legitimate claim for privilege such as legal professional privilege;

• the compulsive processes of the Commission should not be exercised where a person would attend without an order;

• s.590 of the Act was directed to the Commission informing itself about relevant matters and was not a power which should be exercised in order to assist a party to run his or her case; and

• the issue of whether a person should be ordered to attend the Commission should be determined after the Respondent had filed its evidentiary material.

[16] In view of Mr Kennedy having filed amended grounds in respect of Messrs Arancio, Brown and Carney late on 27 May 2019 (i.e. the day before the hearing), QGS was provided with the opportunity to provide any written submissions in respect of those amended grounds and Mr Kennedy the opportunity to provide submissions in reply to any further submissions provided by QGS. Both parties availed themselves of that opportunity.

[17] In summary, I have decided to issue an order requiring Mr Arancio to attend the Commission. The order will be issued once hearing dates are set in respect of Mr Kennedy’s unfair dismissal application. However, for the reasons outlined above I have declined to make the orders sought by Mr Kennedy in respect of Mr Brown, Mr Carney, Ms Denne, Mr Ferhan and Ms Millen.

*Mr Paul Arancio*
Mr Kennedy submitted inter alia that Mr Arancio would: • identify the impediments to his return to work from 1 June 2016; • confirm that QGS and QAL failed to put in place a return to work plan or take reasonable and genuine steps to return him to work; and • provide evidence regarding QGS’ and QAL’s failure to resolve the dispute regarding his return to work in accordance with the applicable enterprise agreement and relevant policies. In support of his application regarding Mr Arancio, Mr Kennedy relied on the decision in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes (Jetstar) 6.	QGS submitted that Mr Arancio could not provide relevant evidence as any evidence he would give would not go to the case Mr Kennedy had made. More particularly, QGS submitted that Mr Arancio could not give evidence regarding whether there was any lack of procedural fairness afforded to Mr Kennedy. QGS also posited that Mr Kennedy’s reliance on the decision in Jetstar was misplaced given the significant factual differences between those existing in this case and those which existed in Jetstar. Finally, QGS submitted that Mr Arancio could not give probative evidence about the application and operation of the Disability Discrimination Act 1992 (Cth) or the Workers Compensation Act 1951 (ACT), adding that these were legal questions and matters for submission.
Decision I note that Mr Arancio’s attendance relates to Ground 6 in Mr Kennedy’s substantive submissions. Further, having regard to the decision in Jetstar in which the failure by Jetstar to make reasonable efforts to afford the applicant the return to work benefits of its Return to Work Policy was one of the reasons cited by the Full Bench as to why the dismissal in that case was harsh, unjust and unreasonable, I consider it appropriate to issue an order requiring Mr Arancio to attend the Commission. Mr Arancio’s evidence is likely to go to the steps taken by QGS to return Mr Kennedy to work and related issues, e.g. barriers/impediments to a return to work.
*Mr Simon Brown*
Mr Kennedy stated in his submissions that Mr Brown was the officer responsible for QGS’ response to his application for an order to stop bullying and coordination of the fitness for duty examination undertaken by Dr Walker. More particularly, Mr Kennedy contended that Mr Brown would identify impediments to his return to work from 1 June 2016 and could assist the Commission in determining whether any unfairness resulted from his failure to respond to Mr Kennedy’s letter of 18 December 2016 or the fitness for duty examination conducted by Dr Walker. Mr Kennedy also referred to performance issues which he said had been raised by Mr Brown during a conference convened by the Commission in respect of his application for an order to stop bullying and contended that Mr Brown refused a request to provide him with the letter of engagement and materials provided to Dr Walker by Qantas.	QGS submitted that it was not disputed that the materials provided to Dr Walker had not been provided to Mr Kennedy, adding that Mr Brown was not in a position to make any comment regarding Dr Walker’s report. QGS further submitted that if Mr Kennedy asserted that he had been denied procedural fairness as a result of not being provided with the abovementioned documents that he could give evidence to that effect. QGS also stated that it accepted the point made under the heading ‘Agreed facts’ in Mr Kennedy’s Outline of Submissions that his dismissal did not relate to unsatisfactory performance during his employment 7. QGS further submitted that Mr Brown should not be compelled to attend to give evidence about conversations or other interactions which occurred in a Commission convened mediation or conciliation conference.
Decision I am not satisfied that it is appropriate to issue an order requiring Mr Brown to attend the Commission for the following reasons: • Mr Kennedy can give evidence as to any unfairness that flowed from Mr Brown’s failure to respond to his letter of 18 December 2016 or provide him with a copy the letter of engagement and materials provided to Dr Walker by Qantas; • Mr Arancio as QAL’s Rehabilitation Manager is likely to be able to give more direct evidence regarding any issues relating to Mr Kennedy’s return to work; and • Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS 8.
*Mr Christopher Carney*
Mr Kennedy submitted inter alia that were Mr Carney required to attend the Commission his evidence would among other things reveal that: • Mr Carney had bullied him; • the findings of the MJSP investigation were incorrect; • the statements made to Dr Walker by QAL were false and misleading, resulting in an unreliable report which underpinned his dismissal; and • the findings in Dr Walker’s report were false and misleading. Mr Kennedy acknowledged at the hearing that the statement by Mr Carney that he sought to rely on had been given in the context of the investigation relating to his workers’ compensation claim, but later disputed that it had been obtained compulsorily such that it was captured by the Harman undertaking paragraph [44] (see below).	QGS submitted that there was nothing that Mr Carney could say in these proceedings that could put in doubt Dr Walker’s evidence, adding that the matters which Mr Kennedy sought to ventilate had been determined by the Commission as a result of the determinative conference convened in 2018. QGS also contended that: • the details of historical complaints, investigations and proceedings were not probative of the issues in dispute in this matter as such information had no relevance to the basis for Mr Kennedy’s dismissal; • Mr Carney should not be called as a means of introducing a witness statement made for the purposes of other legal proceedings; • Mr Carney was not an expert witness and such he could not confirm or otherwise whether the findings made by Dr Walker were “false and misleading”; and • Mr Carney could not give evidence about what happened or what Dr Walker observed in his clinical assessment of Mr Kennedy.
Decision I am not satisfied that it is appropriate to issue an order requiring Mr Carney to attend the Commission in circumstances where, based on the material before the Commission, it is unlikely that he will be in a position to give evidence relevant to the previously outlined grounds relied upon by Mr Kennedy in support of his unfair dismissal application.
*Ms Debra Denne*
Mr Kennedy contended that Ms Denne’s attendance was sought to inform the Commission as to the procedural fairness afforded to him in respect of his return to work from sick leave, Dr Walker’s fitness for duty examination, the termination of his employment and the reliability of Dr Walker’s report given the letter of engagement Ms Denne sent to Dr Walker on 12 January 2017. In his oral submissions, Mr Kennedy indicated that Ms Denne’s evidence would go to the question of unfairness, highlighting a number of issues he sought to question Ms Denne about. Those issues included what Mr Kennedy described as the false and incomplete statements included in her engagement letter to Dr Walker.	QGS accepted that the decision to refer Mr Kennedy to Dr Walker was relevant in this case, adding that the materials which Dr Walker had was clear. Against that background, QGS submitted that Ms Denne could not: • give evidence about whether there was a lack of procedural fairness afforded to Mr Kennedy; • provide opinion evidence as to whether or not the materials provided to Dr Walker were balanced; • give evidence regarding the appropriateness or otherwise of Mr Kennedy’s consultation with Dr Walker; and/or • give evidence as to the legitimacy of the findings in Dr Walker’s report. QGS also observed in its submissions that it appeared that Mr Kennedy wanted to cross-examine Ms Denne at large on a range of issues which were largely or wholly irrelevant to the matters in dispute, adding that he should not be permitted to do so. QGS also noted that Dr Walker could give evidence regarding the materiality or otherwise of the material provided to him by QAL in coming to the findings in his report, whilst the process by which Mr Kennedy was reviewed would be the subject of evidence by Mr Hardy.
Decision I am not satisfied that it is appropriate to issue an order requiring Ms Denne to attend the Commission for the following reasons: • Mr Kennedy can give evidence as to any procedural unfairness he suffered as a result of the process followed by Qantas in referring him to Dr Walker for a fitness for duty examination; • Mr Arancio as QAL’s Rehabilitation Manager is likely to be able to give more direct evidence regarding any issues relating to Mr Kennedy’s return to work; and • Dr Walker can give evidence regarding the materiality or otherwise of the materials provided to him by QAL in reaching the findings in his report.
*Mr Omer Ferhan*
Mr Kennedy submitted that Mr Ferhan’s attendance was sought to inform the Commission as to the procedural fairness afforded him in respect of his return to work from sick leave, the fitness for duty examinations undertaken by Dr Kushada and Dr Walker respectively and his termination of employment.	QGS submitted that Mr Ferhan’s evidence was not probative of an issue in dispute and would not assist the Commission in determining Mr Kennedy’s unfair dismissal application. QGS further submitted that Mr Ferhan’s opinion about Mr Kennedy cooperating or attending other medical examinations or about the reasonableness of the directions given to Mr Kennedy to attend medical examinations was not relevant to the medical evidence upon which his dismissal was based. QGS also noted that Mr Hardy’s evidence would deal with the processes adopted by QGS in respect of Mr Kennedy.
Decision I am not satisfied that it is appropriate to issue an order requiring Mr Ferhan to attend the Commission in circumstances where Mr Kennedy can give evidence as to any procedural unfairness he suffered in respect of QGS’s failure to facilitate his return to work, the fitness for duty examinations undertaken by Dr Kushada and Dr Walker respectively and the termination of his employment.
*Ms Sonia Millen*
Mr Kennedy contended that if Ms Millen was required to attend the Commission she would clarify matters regarding the background materials provided to Dr Walker by Ms Denne and any resulting unfairness stemming from her refusal to provide a copy of those materials to him or to respond to his questions. Mr Kennedy also contended that Ms Millen would give evidence relating to aspects of the proceedings relating to his application for an order to stop bullying.	QGS submitted that at all relevant times Ms Millen was engaged by it as its external legal representative and therefore would not be able to provide any evidence on the matters raised by Mr Kennedy as this information would be subject to legal professional privilege.
Decision I am not satisfied that it is appropriate to issue an order requiring Ms Millen to attend the Commission for the following reasons: • much of Ms Millen’s potential evidence is likely to be subject to legal professional privilege; • Mr Kennedy can give evidence as to any unfairness that flowed from him not being provided with a copy the materials provided to Dr Walker by Qantas; and • evidence related to matters traversed in conference proceedings the proceedings regarding Mr Kennedy’s application for an order to stop bullying (putting aside the confidential/without prejudice nature of those discussions) is not relevant in determining whether or not his dismissal was unfair, nor does it appear to relate to any of the previously outlined grounds relied upon by Mr Kennedy in support of his unfair dismissal application.

2. QGS’s application to be represented by a lawyer

[18] On 10 May 2019 QGS emailed the Commission advising that it wished to apply for permission to be represented by a lawyer and that it was in the process of preparing materials in support of that application. Such an application was foreshadowed by Mr O’Neil in a telephone mention and/or directions hearing held on 26 February 2019 (at the time Mr O’Neil also indicated that QGS was giving active consideration to making an application seeking security for costs). This is the second application by QGS seeking permission to be represented, the first application having been refused in a decision handed down on 28 March 2018. 9

[19] Directions were subsequently issued on 15 May 2019, with QGS’ application heard on 28 May 2019. Mr Jonathan Forbes of Counsel appeared for QGS at that hearing (solely in respect of the issue of permission to represent) with the agreement of Mr Kennedy and the Commission’s permission, while Mr Kennedy appeared on his own behalf.

The Respondent’s case

[20] QGS’ case was premised on ss.596(2)(a) and (b) of the Act. QGS submitted that the time and effort that was required to be dedicated to the proper preparation for courtroom advocacy in this matter would be substantial given the volume of material filed, the range of issues involved and the complex matter history. Relying on Mr O’Neil’s statement (see below), QGS further submitted that despite being well resourced internally, it simply did not have the personnel with the necessary time that could be dedicated to this crucial task in order to represent itself effectively or to enable the matter to proceed most efficiently.

[21] More particularly, QGS submitted among other things that:

• there had been extensive developments since 28 March 2018 (when permission was previously refused) which had changed the complexion of the proceedings and fundamentally altered the context in which its current application for permission to be represented should be assessed;

• it was difficult to envisage a set of circumstances that would provide a more compelling basis for a request under s.596 of the Act;

• as to the complexity of the matter, the question of relevance had been at the core of these proceedings, with Mr Kennedy consistently seeking to adduce evidence that he was bullied without yet having provided any coherent explanation as to why such a finding would have any bearing on the outcome of his unfair dismissal application and QGS having continually maintained that such evidence was of no relevance at all to this matter and therefore should not be received;

• the question of relevance was a substantial reason why the proceedings to date had become so convoluted and unusual; and

• ensuring that the Commission received detailed and considered oral and written submissions about what was and was not relevant to these proceedings was essential in order to ensure that the matter proceeded as efficiently and as expeditiously as possible, adding that a skilled and experienced lawyer would be the most appropriate advocate to assist the Commission in dealing with this complex issue.

[22] Key aspects of QGS’ oral submissions which went beyond its written submissions included that:

• Mr Kennedy’s concern as to its failure to file a Form F53 in conjunction with its request to be represented was misconceived as Mr Kennedy had been on notice since March 2018 that Herbert Smith Freehills was acting for it and had been advised of subsequent changes in contact details, adding that in the alternative Rule 6 of the Fair Work Commission Rules 2013 (the Rules) provided scope for the Commission to waive any procedural deficiencies;

• the test in s.596(2)(a) of the Act was relative in that the issue to be determined was, having regard to the complexity of the matter, whether representation would enable the matter to be dealt with more efficiently than it could be dealt with without representation, adding that this consideration did not require the Commission to weigh up fairness between the parties and that the Commission should direct its attention to whether granting permission would enable “the matter” to be dealt with more efficiently;

• extensive evidence, cross-examination and documentation would be involved in the hearing of Mr Kennedy’s unfair dismissal application matter;

• the Commission should not assume that if permission to be represented were granted that the matter would as a result become more complex or longer;

• there was a very strong and compelling case for permission to be granted on the grounds of efficiency;

• as to s.596(2)(b) of the Act, while QGS had a large industrial relations team it was not a team of litigation lawyers;

• the involvement of a self-represented party in a matter could not be a permanent injunction on another party seeking permission to be represented;

• it accepted that the volume of documents, the number of applications and the number of appeals considered individually may not warrant permission to be represented being granted, positing that its submission was that the aggregation of these considerations created a complexion in this case which warranted representation; and

• no unfairness would be imposed on Mr Kennedy were permission granted given that QGS could currently draw on Herbert Smith Freehills for assistance, adding that both Mr Forbes’ and Herbert Smith Freehills’ experience could lend itself to greater efficiency in the matter.

[23] QGS’ submissions were supported by a statement 10 by Mr O’Neil. In short, Mr O’Neil deposed that having regard to the complexity of the matter it was his belief that it could be more efficiently conducted by external legal counsel who had both the resources and expertise in these matters and that the Commission was likely to derive assistance from the presence of experienced counsel who owed duties to the Commission independent of their duties to their client. Beyond that, Mr O’Neil deposed that:

• he was currently managing and/or supervising the negotiations and/or approval process for six new enterprise agreements (including one in New Zealand), three major workforce transformation projects, a dispute brought under s.789 of the Act, defamation proceedings in the Supreme Court of Western Australia and two other unfair dismissal applications;

• the amount of time and resources that he had been required to dedicate to this matter had far surpassed anything he had experienced in his career as an industrial relations practitioner;

• since March 2018 he had dedicated in excess of 200 hours of his time to the matter;

• the matter was not a routine unfair dismissal case, adding that the matter was procedurally and legally complex and that the course of the proceedings had been intermittent and unpredictable;

• the volume of material filed by Mr Kennedy in support of his application since 28 March 2018 had been immense, highlighting inter alia that Mr Kennedy had served on him:

an order for QGS to produce 107 categories of documents,

five folders of evidence in support of his unfair dismissal application, with that material later revised and replaced,

22 applications for orders for persons to attend the Commission, and

282 emails, with those emails frequently having attached large numbers of documents (often repetitively);

• the sheer volume of material that he had received had become burdensome and oppressive, and

• whilst there were other industrial relations managers within Qantas they had not had the same level of involvement in the proceedings as he had had and as such the amount of time it would take for any of them to now take on the role as an advocate for QGS would be even more significant for them that it would be for him.

The Applicant’s case

[24] Mr Kennedy opposed the application by QGS for a number of reasons including that:

• QGS’ application for representation was not valid as a Form F53 Notice of representative commencing to act had not been filed with the Commission in conjunction with the application, though at the hearing Mr Kennedy indicated that this was not a big issue from his perspective and that he did not oppose the Commission exercising the discretion available to it under Rule 6 of the Rules;

• the volume of documents, number of applications and number of appeals filed by a party were not grounds for representation;

• QGS had failed to identify any specific complex legal matter that warranted legal representation in this case;

• QGS had not demonstrated any change in the specialist industrial relations and HR resources available to it;

• he should not be prejudiced as a result of Mr O’Neil’s decision not to devolve responsibility for the handling of the matter;

• QGS could utilise its legal representative to assist in managing the volume of documents in this matter without the need for representation in Commission proceedings;

• he remained self-represented;

• the scheme of the Act was that in matters before the Commission parties would generally represent themselves; and

• granting permission would be likely to protract and side-line the Commission proceedings in this matter.

Consideration of the issues

[25] I deal firstly with the issue raised by Mr Kennedy that QGS had failed to file a Form F53 prior to filing its most recent application seeking permission to be represented in these proceedings. I note that a Form F53 was filed by Herbert Smith Freehills on 13 November 2017 with updated advice as to the address for service in this matter provided to the Commission and Mr Kennedy on 19 January and 6 March 2018. I further note that no Form F54 Notice of representative ceasing to act has been filed in this matter. Accordingly, in the absence of any evidence to the contrary, Herbert Smith Freehills continues to act for QGS in this matter. As such, there was no need for QGS to file a further Form F53 in conjunction with its most recent application for permission to be represented in these proceedings.

[26] Section 596 of the Act deal with the issue of representation by lawyers and paid agents and provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”

[27] Justice Flick considered the application of s.596 of the Act in Warrell v Walton (Warrell) 11 as follows:

“24 A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...” The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

25 The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 …” 12

[28] At this stage, the Commission only has the benefit of Mr Kennedy having filed his outline of submissions and evidentiary material. Revised Directions setting out the timetable for QGS to file its outline of submissions and evidentiary material are yet to be issued (the Directions and Notice of Listing issued on 20 August 2018 were withdrawn to allow the previously mentioned determinative conference proposed by Mr Kennedy to proceed). Drawing on Mr Kennedy’s outline of submissions it is clear that Mr Kennedy disputes aspects of Dr Walker’s report and contends that the report was not “sound, defensible or well-founded” (see Ground 2 at paragraph [3] above). For instance, at paragraph 42 of his outline of submissions Mr Kennedy submits that:

“(ii) the Applicant disputes Dr Walker’s diagnosis that the Applicant was suffering from an unspecified “personality disorder” at the time of his dismissal given the failure of Dr Walker to demonstrate that the Applicant’s traits as he had claimed in his report that the diagnostic criteria of the American Psychiatric Association’s DSM5, and the weight of evidence from Dr Gertler and the Applicant’s GPs against a diagnosis of a “personality disorder;

(iii) … the FWC should prefer the evidence of Dr Kushada and Dr Hutton combined with the medical evidence of Dr Gertler over the evidence of Dr Walker;” 13

[29] In addition, Mr Kennedy contends in his submissions that QGS failed to provide him with all opportunities available under its return to work policies, including its National Injury Management Policy and Injury Management Guide for Employees 14. Mr Kennedy also contends that he was denied procedural fairness in respect of Dr Walker’s fitness for duty examination.
[30] Each of these issues is likely to involve contested facts and extensive cross examination, particularly of Dr Walker. I further note that Mr Kennedy in his submissions regarding QGS’ objections to aspects of his evidentiary material contends that the Disability Discrimination Act 1992 (Cth) required QGS to take reasonable steps to ensure that workplace barriers were removed at Canberra airport so that he was able to return to work to perform the inherent requirements of his role. This contention adds another potentially complex dimension to the matter.

[31] In Mr Ganesh Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul (Changan) 15 Commissioner Spencer had regard to the requirements of s.596(2)(a) of the Act. Specifically, Commissioner Spencer determined to grant permission in that case for reasons which included those set out below:

“[8] Permission was granted on the basis that the matter involved some complexity and that representation of the Respondent would enable the matter to be dealt with more efficiently. In particular it was taken into account that the credit of the Applicant was likely to be in dispute in the matter and that a consideration of the Respondent’s policies, employment contracts and safety issues would form central evidentiary issues in relation to the matter.” 16

[32] The Commissioner’s decision was cited by the Full Bench in Daniel King and others v Patrick Projects Pty Ltd (King) 17 which stated as follows:

“[50] ... [t]his is to be contrasted with that which will be before Her Honour in the substantive proceedings, where the factual material will be vigorously contested, summonses to give evidence have been foreshadowed to current and former employees of the respondent and on Mr Strauss’ own submission, the proceedings are likely to run for many days. Complexity arising from contested evidence or witness credit has been held by the Commission to be grounds for granting permission to be represented by a lawyer; See: Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul [2014 FWC 2790.” 18 (Underlining added)

[33] Having regard to the decisions in Changan and King and the factors identified at paragraph [30] above, I am satisfied that this matter now involves a degree of complexity which far exceeds that which either existed or could have been anticipated at the time of the Commission’s 28 March 2018 decision to refuse QGS permission to be represented by a lawyer or which exists in many unfair dismissal cases. Against that background, I consider that were permission granted it would enable the matter to be dealt with more efficiently. For all these reasons, I am satisfied that the requirement in s.596(2)(a) of the Act is met in this case.

[34] With regard s.596(2)(b) of the Act, while I note the heavy workload associated with responding to Mr Kennedy’s unfair dismissal application, I am not satisfied that QGS is unable to represent itself effectively in this matter having regard to the internal expertise and resources, as well as the assistance of Herbert Smith Freehills, it is able to draw on in defending Mr Kennedy’s unfair dismissal application.

[35] In circumstances where I am satisfied that the requirement in s.596(2)(a) of the Act is met, I turn now to consider whether it is appropriate to exercise the discretion available to the Commission to grant QGS permission to be represented in this matter. To that end, I note firstly that QGS has to date been represented by Mr O’Neil who is a lawyer and that QGS has been able to and would continue to be able to draw on the services of Herbert Smith Freehills in this matter irrespective of whether or not permission to be represented was granted. Against that background, drawing on the language in Warrell, I consider it unlikely that granting permission for QGS to be represented would fundamentally change the dynamics and manner in which the hearing of Mr Kennedy’s unfair dismissal application and any further interlocutory matters is conducted. I do not accept Mr Kennedy’s contention that granting permission in this case would be likely to protract and side-line the Commission proceedings in this matter. This consideration weighs in favour of the Commission exercising the discretion available to it to grant permission for QGS to be represented.

[36] On the other hand, my conclusion above that I am not satisfied that QGS is unable to represent itself effectively in this matter weighs against the Commission exercising the discretion available to it to grant permission for QGS to be represented.

[37] Further, I do not consider that granting permission for QGS to be represented in this case will result in any unfairness to Mr Kennedy. A relevant factor in coming to that view is my conclusion above that granting permission is unlikely to fundamentally change the dynamics and manner in which this matter proceeds.

[38] Finally, in my view significant weight should be attached to the prospect that this matter will be dealt with more efficiently were permission to be granted, particularly when regard is had to the potential for the proceedings to be highly contested and the complexity of some of the issues to be determined by the Commission in this matter. In attaching significant weight to this factor I am very mindful of the fact that these proceedings have now been on foot for almost two years with the matter still to be listed for substantive hearing.

[39] Weighing up the above considerations and in circumstances where the requirement in s.596(2)(a) is satisfied, I have decided to exercise the discretion available to the Commission under s.596 of the Act and grant QGS permission to be represented by a lawyer in these proceedings.

3. QGS’ objections to aspect of the evidentiary material filed by Mr Kennedy

[40] Revised Directions issued on 10 April 2019 provided inter alia that:

“1. Mr Kennedy is to file any revisions to the material he has previously filed and any future submissions and evidentiary material which he intends to rely on together with an index of the documents he has filed and intends to rely on by close of business Tuesday 16 April 2019.

...

3. Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd is to:

file a document setting out any objections it has to the evidentiary materials which Mr Kennedy intends to rely on and the basis of those objections by close of business Tuesday 21 May 2019.” (Emphasis as per original).

[41] Mr Kennedy filed his evidentiary material over the period 14 to 20 April 2019. The evidentiary material was organised into 14 “Lots” (i.e. Lots A-N), with each Lot indexed. QGS filed its material setting out its objections to aspects of Mr Kennedy’s evidentiary material on 23 May 2019 after the Commission granted it a two day extension to do so. QGS’ objections were heard on 14 June 2019.

[42] Among other things, QGS submitted that the Commission should not receive evidence which was irrelevant to the issues in dispute, contending that the task of the Commission in these proceedings was to consider and make findings based on the medical and lay evidence as to whether or not at the time of his dismissal Mr Kennedy suffered from the alleged incapacity relied upon as the reason for his dismissal. More specifically, QGS submitted that whether evidence should be admitted was a question to be determined by reference to the task before the Commission, adding that in this case the evidence must be probative of the following question – at the time of dismissal did Mr Kennedy suffer from the incapacity relied upon as the reason for his dismissal?

[43] QGS also noted in its submissions that Mr Kennedy asserted that the matter of perceived mistreatment was crucial in his case on the basis that “Dr Walker was of the unequivocal and unrelenting opinion that the bullying of the Applicant as claimed by the Applicant did not take place”. 19 On that issue QGS posited that Mr Kennedy’s submission was misconceived in circumstances where the Commission had determined that Dr Walker had not formed a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS.

[44] Beyond this, QGS submitted inter alia that:

• documents containing hearsay which Mr Kennedy intended to rely on for an impermissible hearsay purpose should not be received into evidence;

• it was concerned that Mr Kennedy may be seeking to introduce into evidence documents which had come to be in his possession by reason of him having made a workers’ compensation claim and his participation in workers’ compensation proceedings in the ACT, adding that the Harman undertaking 20 precluded such documents being adduced as evidence in these proceedings;

• any document which was subject to a claim for legal professional or other privilege should not be admitted into evidence unless it was established that the person entitled to claim the privilege had waived or no longer claimed it, adding for the avoidance of doubt that any documents created by Herbert Smith Freehills or any of its partners or lawyers and documents created by any other person for the purposes of seeking legal advice related to these proceedings were subject to privilege and that privilege was not waived; and

• statements made or communications between persons in conciliation or mediation proceedings before the Commission were confidential, without prejudice and made in an environment where there was a strong public interest in maintaining that confidence, adding that any documents which purported to reveal the content of conciliation or mediation proceedings were unfairly prejudicial and as a matter of discretion should not be received into evidence.

[45] At the hearing the Commission sought QGS’ view on the option of Mr Kennedy’s evidentiary material being received in its entirety on the basis that it would be subject to submissions as to what, if any, weight should be given to the material. QGS did not support such an approach largely because of concerns that this left some 2,500 pages/15 volumes of evidence which it needed to respond to. QGS further responded that while this could be managed it did not consider that such an approach would be efficient, adding that this process should narrow the material before the Commission.

[46] In short, Mr Kennedy opposed most of QGS’ objections (save for those specified below). Recurring themes in Mr Kennedy’s written submissions responding to QGS’ objections to particular documents included the following:

• the Commission was yet to determine whether or not Mr Hardy had in terminating his employment relied upon grounds that were based upon bullying complaints raised by him during his employment; and

• QGS’ objections were unexplained, unsupported and did not meet the required burden of proof.

[47] Key aspects of Mr Kennedy’s oral submissions included that:

• many of the 14 grounds he relied on in support of his unfair dismissal application and set out in his Outline of Submissions were considered by the Full Bench in Jetstar;

• the Commission needed to consider if he was given the benefit of Qantas’ policies;

• many of the documents he had filed would assist the Commission in getting to the heart of the matter as quickly as possible;

• the bullying issue was front and centre in this case given that Mr Hardy had relied on two grounds in Dr Walker’s report to dismiss him;

• the Harman undertaking was an irrelevant consideration in this case as he had not compulsorily obtained the particular documents objected to by QGS on that basis; and

• some of the documents he had filed were provided to give background and context.

[48] Also at the hearing on 14 June 2019 Mr Kennedy cited the decision of Commissioner Wilson in John Simon v NGS Group Pty Ltd ATF NGS Discretionary Unit Trust (Simon) 21 in support of his submissions opposing QGS’ objections to his evidentiary material relating to his allegations of bullying and his application for an order to stop bullying. In particular, Mr Kennedy highlighted the following paragraph in Simon:

“[93] It is unlikely in the overall context of the evidence before the Commission that Mr Simon’s complaint of workplace bullying was taken seriously by the NGS Group. A review of the available material on that subject would indicate that the conduct towards Mr Simon by Mr Hineman and Mr Nelson was likely unreasonable and that Mr Simon was entitled to view it as workplace bullying. Mr Simon’s complaints appear to be in at least two categories; complaints about the conduct of Mr Hineman and Mr Nelson towards him and complaints about aspects of performance management.” 22

[49] However, the circumstances in Simon are different to those in this case in that in Simon it was disputed that the applicant had been dismissed, with Commissioner Wilson concluding that the applicant elected to accept the employer’s repudiatory conduct and treated his contract of employment as having been terminated. 23 My reading of the decision in Simon is that the decision turned on the facts in that case.

[50] With regard to the first point at paragraph [46] above, I note that in his Outline of Submissions Mr Kennedy contends that:

“As the Applicant had claimed to Mr Hardy, the bullying complaints made by the Applicant during his employment were inextricably linked to the reasons put forward by Mr Hardy to dismiss the Applicant.” 24

[51] With regard to that contention, I note firstly that Mr Kennedy has not provided any further detail in his submissions to support that contention, nor has he provided any evidentiary material to support the contention. More importantly in the context of considering QGS’ objections to aspects of Mr Kennedy’s evidentiary material, I note that determining that issue does not require the Commission to determine whether or not Mr Kennedy was bullied at work whilst employed by QGS. While it is patently clear from the proceedings to date that Mr Kennedy vehemently maintains that he was bullied at work whilst employed by QGS and is strongly desirous of a finding to that effect, I note that in his Outline of Submissions Mr Kennedy contends that:

“2 …his dismissal was unfair because the medical and lay evidence at the time of his dismissal was heavily conflicted and the evidence did not overall support a clear finding that there was a valid reason for his dismissal.

…

4. As concluded in CSL Limited T/A CSL Bearing v Chris Papaiaonnou (C2017/6287) (CSL) and Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes (C2013/5863) (Jetstar) in a dismissal relating to incapacity of an employee to perform the inherent requirements of a role, s.387 of the FW Act requires the FWC to consider and make findings as to whether or not at the time of dismissal the Applicant suffered from the alleged incapacity based upon the medical and lay evidence. This should be the task of the Fair Work Commission in these proceedings.

5. As stated at [77] by Justice Ross in CSL:

‘The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical evidence and other evidence before the Commission.’” 25

[52] I agree with Mr Kennedy’s description of the Commission’s task in these proceedings. While the Commission is likely to have to determine whether Mr Kennedy’s allegations of bullying and harassment were a factor in QGS’s decision to terminate his employment, for the reasons outlined above I do not consider that this will require the Commission to determine whether or not Mr Kennedy was bullied at work whilst employed by QGS.

[53] I have had regard to the above analysis in considering the objections to Mr Kennedy’s evidentiary material relating to his allegations of bullying and his application for an order to stop bullying.

[54] I turn now to deal with QGS’s specific objections. Before doing so, I would point out that for reasons of brevity I have not set out the parties’ respective submissions regarding the various documents which are objected to. I would however highlight that I have had regard to the parties’ written and oral submissions in coming to decisions outlined below.

[55] Beyond the objections dealt with below, I note that QGS:

• did not object to any of the material included in Lot C – Attachments (23) provided by the Respondent to Dr Walker for the Applicant’s fitness-for-duty evaluation, Lot D – Termination documents, Lot G – Documents provided to Dr Walker by the Applicant for the fitness-for-duty evaluation held 1 February 2017 and Lot K – Errors and oversights of Dr Walker’s Report.; and

• submitted in respect of Lot M – Annexures relating to section 387(f) and (g) of Fair Work Act (2009) Cth that it would make appropriate submissions about the relevance of those documents at the hearing of Mr Kennedy’s unfair dismissal application and in respect of Lot N – Respondent’s policies, etc advised that while it did not object to the receipt of these documents it reserved its right to contest their relevance depending on how Mr Kennedy sought to rely on the documents.

Lot A – Medical reports, etc

Document 10 – Psychological Assessment Report by Mr Ilan Cohen dated 30 November 2017.

Decision: At the hearing the Commission determined that QGS’ objection was not sustained and that the document would be received into evidence. It will be open to QGS to make submissions as to what, if any, weight should be given to the document.

Document 53 – Email from Mr Kennedy to Mr Ashley Stephenson dated 1 September 2015.

Decision: At the hearing Mr Kennedy stated that QGS could be granted their objection and the Commission determined that QGS’ objection was sustained on the basis of relevance given that the email relates to an incident which occurred on 27 August 2015. The document will therefore not be received into evidence.

Lot B – Evidentiary evidence of alleged bullying and unreasonableness towards the Applicant by the Respondent in period 13 March 2013 – 30 May 2016

Documents 3-6 – Mr Kennedy’s summary of alleged bullying incidents and reasonable management actions for the calendar years 2013-2016 (inclusive).

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

Documents 7-12 – Various emails dated July and August 2013 and September 2014 from Mr Kennedy to himself concerning alleged harassment and bullying by colleagues and a report dated 11 August 2013 prepared by Mr Kennedy regarding incidents with Mr Darren Phillips on 9 August 2013.

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

Documents 13-25 – Correspondence related to Mr Kennedy’s application for a Ground Level 5 Supervisor role at Canberra airport.

Decision: At the hearing the Commission determined that QGS’ objections to these documents was sustained on the basis of relevance given that the documents do not go to any matter related to Mr Kennedy’s dismissal. The documents will therefore not be received into evidence.

Documents 26, 27, 30, 31, 40, 41, 43-48, 63-80 and 82-120 – Various documents and correspondence regarding a number of issues, including an allegation made against Mr Kennedy to Qantas’ Whistleblower hotline, allegations made by Mr Kennedy that he had been bullied by his colleagues, Mr Kennedy’s 2014/2015 performance review and correspondence regarding allegations about Mr Kennedy’s conduct.

Decision: QGS’ objection to these documents is sustained on the basis of relevance. Further, as previously mentioned, Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS. The documents will therefore not be received into evidence.

Lot E – Errors and oversights of MJSP investigation

Documents 1-9 (i.e. all the documents in Lot E) – Various documents relating to Mr Kennedy’s application for an order to stop bullying (including Mr Kennedy’s amended application and the Statement issued by Commissioner Hampton on 24 June 2016) and the MJSP investigation (including the Summary of findings prepared by Herbert Smith Freehills on 13 October 2016).

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

Lot F – Witness Statements

Documents 1-3 – Statutory Declaration by Mr Kennedy dated 10 December 2018, statement by Mr Kennedy dated 9 July 2016 and Mr Kennedy’s Supplementary statement for Dr Catherine Oelrichs dated 15 August 2018.

Decision: I am prepared to receive these documents into evidence given that QGS will have the opportunity to cross-examine Mr Kennedy regarding the contents of the statutory declaration and statements as well as make submissions as to what, if any weight should be accorded to the documents.

Documents 4-19 – Statements made by a number of Mr Kennedy’s former colleagues at QGS and emails from Mr Kennedy to two former colleagues seeking an indication as to whether they would be prepared to give evidence in support of his unfair dismissal application.`

Decision: I am willing to receive Document 7 (Statutory declaration by Mr Chalker dated 6 March 2018) but only to the extent that it deals with the performance and conduct of Mr Kennedy. It will be open to QGS to make submissions as to what, if any weight should be accorded to that aspect of Document 10.

Beyond that, QGS’ objections to these documents are otherwise sustained on the basis of relevance. The documents will therefore not otherwise be received into evidence.

Lot H – Issues concerning the Applicant’s claims for workers’ compensation, Failure by the Respondent to provide the Applicant with procedural fairness and reasonable opportunities on the Applicant’s return to work plan, Errors and oversights by the respondent on the Applicant’s return to work plan

Document 10 – Document identifying the overall return to work rate achieved by Recovery Partners.

Decision: QGS’ objection to this document is sustained on the basis of relevance given that the document does not go to any of the grounds relied upon by Mr Kennedy in support of his unfair dismissal application. The document will therefore not be received into evidence.

Documents 11 and 12 – Index taken from the Safe Work Australia report Return to work in psychological injury claims – Analysis of the Return to Work Survey results and the Position Statement by the Royal Australasian College of Physicians and the Australasian Faculty of Occupational & Environmental Medicine Helping People Return to Work – Using evidence for better outcomes

Decision: In his written submissions Mr Kennedy did not object to QGS’ objections to these documents.

At the hearing the Commission determined that QGS’ objection to these documents was sustained on the basis of relevance. The documents will therefore not be received into evidence.

Document 13 – Article by Mr Gary L. Fischler Assessing Fitness-For-Duty and Return-to-Work Readiness for People With Mental Health Problems.

Decision: QGS’ objection to this document is sustained on the basis of relevance. I note also that the document was first published in 2000, so it is quite dated. The document will therefore not be received into evidence. However, I am willing to mark the document as a Matter for Information.

Document 14 – QGS’ Form F73 – Response from an employer/principal to an application for an order to stop bullying.

Decision: In his written submissions Mr Kennedy did not object to QGS’ objections to this document. At the hearing the Commission determined that QGS’ objection to this document was sustained on the basis of relevance. The document will therefore not be received into evidence.

Document 15 – Mr Ashley Stephenson’s Form F74 – Response from a person against whom bullying has been alleged to an application for an order to stop bullying.

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

Document 16 – Mr Kennedy’s workers’ compensation claim form dated 16 June 2016.

Decision: At the hearing the Commission determined that QGS’ objection to this document was sustained on the basis of relevance given that the document does not go to any matter related to Mr Kennedy’s dismissal. The document will therefore not be received into evidence.

Documents 31 and 32 – Initial Needs Assessment Report dated 21 July 2016 prepared by Recovery Partners for Allianz Australia Insurance Limited and Initial Rehabilitation Worksheet (Same Employer) - Psych dated 28 June 2016.

Decision: At the hearing the Commission determined that QGS’ objections to these documents were not sustained and that the documents would be received into evidence. It will be open to QGS to make submissions as to what, if any, weight should be given to these documents.

Documents 49, 50, 52-59, 62-64, 66-71, 73-78, 80, 81, 83-87, 90-94, 97-110, 112-116, 118, 119, 121, 123-129, 132-137, 139-149, 151, 152, 154-161, 163, 164, 167-172 and 174-178 – Various documents relating to efforts to return Mr Kennedy to work and his workers’ compensation claim.

Decision: In his written submissions Mr Kennedy did not object to QGS’ objections to Documents 69, 164, 167-172 and 174. At the hearing Mr Kennedy reiterated that he did not press Document 69 – the report prepared by All States Investigations & Corporate Protection Group for Allianz Australia Insurance Limited in the context of Mr Kennedy’s workers’ compensation claim.

I am willing to receive Documents 49, 50, 52-59, 62-64, 66-68, 70, 71, 73-75, 77, 78, 80, 81, 83-87, 90-94, 97, 98, 102, 103, 106-108, 110, 118, 123 and 149 as the documents relate primarily to the efforts taken to return Mr Kennedy to work. It will be open to QGS to make submissions as to what, if any, weight should be given to these documents.

However, QGS’ objections in respect of Documents 76, 99-101, 104, 105, 109, 112-116, 119, 121, 124-129, 132-137, 139-148, 151, 152, 154-161, 163 and 175-178 are sustained on the basis of relevance as these documents relate mainly to either Mr Kennedy’s workers’ compensation claim or his application for an order to stop bullying. The documents will therefore not be received into evidence.

Lot I – Failure by the Respondent to provide the Applicant with procedural fairness on MJSP investigation

Documents 1-32 (i.e. all the documents in Lot I) – Various documents relating to the MJSP investigation undertaken in the context of Mr Kennedy’s application for an order to stop bullying, including a report, Review of Investigation – Ross Kennedy, dated 15 January 2018 prepared by Capital Workplace Investigations who were engaged by Mr Kennedy.

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

Lot J – Failure by the Respondent to provide the applicant with procedural fairness on fitness for duty evaluation undertaken by Dr Walker

Documents 19-24 – Letter dated 18 December 2016 from Mr Kennedy to Ms Millen and attachments.

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

Document 26 – Chain of emails from late 2016 and early 2017 in which Mr Kennedy asks why he had not received copies of the minutes of meetings of QAL’s Canberra Port Work, Health and Safety Committee.

Document 29 – Email dated 1 February 2017 from Mr Kennedy to Mr Ferhan in which he raises a grievance regarding the conduct of Mr Dean Maccarron.

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

Documents 32-35 – Correspondence from Ms Millen and Mr Kennedy to Commissioner Hampton regarding the MJSP investigation report.

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

Documents 36-39 – Emails dated 23 September 2014 and 7 August 2015 from Mr Kevin Chalker to Mr Paul Nicholas and Mr Stephenson respectively regarding Mr Carney.

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

Documents 41-44 – Various emails from Mr Kennedy to Mr Stephenson over the period 23 August 2015 to 9 February 2016 regarding his performance.

Documents 48-51 – Letter dated 9 December 2016 from Mr Kennedy to Ms Millen and attachments.

Decision: QGS’ objection to these documents is sustained on the basis of relevance given that the documents relate primarily to Mr Kennedy’s performance. As previously mentioned, Mr Kennedy’s Outline of Submissions sets out as an agreed fact that his dismissal did not relate to his performance during his employment with QGS. The documents will therefore not be received into evidence.

Documents 65-69 – Various documents related to Mr Kennedy’s workers’ compensation claim, including a copy of Mr Kennedy’s Form 3.57 Application for arbitration by injured worker dated 6 October 2017.

Decision: QGS’ objection to these documents is sustained on the basis of relevance given that the documents do not go to any of the grounds relied upon by Mr Kennedy in support of his unfair dismissal application. The documents will therefore not be received into evidence.

Lot L – Failure by the Respondent to provide the Applicant with procedural fairness on termination

Document 10 – Email dated 19 September 2017 from Mr Kennedy to the Commission as presently constituted in which he inter alia objects to an application from Herbert Smith Freehills on behalf of QGS to postpone a conference scheduled for 22 September 2017 in respect of his application for an order to stop bullying.

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

Documents 15 and 16 – Two emails dated 21 September 2017 from Mr Kennedy to Mr Ferhan regarding his return to work.

Decision: I am willing to receive these documents as they relate in very general terms to the efforts taken by Qantas to return Mr Kennedy to work. It will be open to QGS to make submissions as to what, if any, weight should be given to these documents.

Document 17 – Email dated 21 September 2017 from Mr Kennedy to Qantas expressing his preference that Ms Denne no longer oversee or manage his return to work.

Decision: I am willing to receive this document as it relates (albeit somewhat indirectly) to the efforts taken by Qantas to return Mr Kennedy to work. It will be open to QGS to make submissions as to what, if any, weight should be given to the document.

Document 29 – Email dated 12 February 2016 from Mr Stephenson to various colleagues providing an overview of his meeting with Mr Kennedy which canvassed allegations of bullying by Mr Kennedy and issues regarding Mr Kennedy’s performance.

Next steps

[56] On 16 June 2019 Mr Kennedy filed two applications with the Commission. The first that I recuse myself from this matter on the grounds of apprehended bias and the second requesting that the Commission “determine if four Statements made by Brett Hardy Head of Qantas Ground Services Pty Ltd as provided as grounds of termination and as included on page 1 of his letter to the Applicant dated 27 September 2019 at a) through to d) are excerpts from report of Dr Kipling Walker dated 27 March 2017 at pages 11 13” (as per application). Those applications are listed for telephone mention and/or directions hearing on 10 July 2019.

[57] Once those issues are determined, the matter will be listed (either by the Commission as presently constituted or another member) for a mention and/or directions hearing to agree on a revised timetable for the provision of QGS’ submissions and evidentiary material and Mr Kennedy’s submissions in reply and to set dates for the hearing of Mr Kennedy’s unfair dismissal application.

Appearances:

R. Kennedy on his own behalf.

M. O’Neil and Mr J. Forbes of Counsel (re request for permission to be represented only) for the Respondent.

Hearings:

2018

Canberra

May 28

June 14.

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 1818, [2018] FWC 2689 and [2019] FWC 837

2 Outline of Submissions filed by the Applicant on 1 October 2018 at pages 5 and 6

3 [2019] FWC 837 at [25]

4 [2018] FWC 2689

5 Ibid at [22]

6 [2013] FWCFB 9075

7 Outline of Submissions filed by the Applicant on 1 October 2018 at paragraph 12(ii) on page 9

8 Ibid

9 [2018] FWC 1818

10 Exhibit 1

11 (2013) 233 IR 335

12 Ibid at 24 and 25

13 Outline of Submissions filed by the Applicant on 1 October 2018 at paragraph 42 on page 13

14 Ibid at paragraph 200 on page 46

15 [2014] FWC 2790

16 Ibid at [8]

17 [2016] FWCFB 5069

18 Ibid at [50]

19 Outline of Submissions filed by the Applicant on 1 October 2018 at paragraph 32 on page 18

20 Hearne v Street (2008) 235 CLR 125 at [96]

21 [2019] FWC 3442

22 Ibid at [93]

23 Ibid at [71]

24 Outline of Submissions filed by the Applicant on 1 October 2018 at paragraph 180 on page 40

25 Ibid at paragraphs 2-5 on page 3

Ross Kennedy v Qantas Ground Services Pty Ltd

[2019] FWC 4819

10 JULY 2019

DECISION

Next steps