Steven Gregory v Qantas Airways Limited - [2016] FWCFB 2108

[2016] FWCFB 2108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steven Gregory
v
Qantas Airways Limited
(C2015/2160)

DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER SAUNDERS

MELBOURNE, 3 MAY 2016

Appeal against decision [2015] FWC 1154 and Order PR561162 of Commissioner Cambridge at Sydney on 27 February 2015 in matter number U2014/7543 – dismissal for sexual harassment – defence of drink spiking – evidentiary issues.

[1] This matter has had a somewhat lengthy history. On 27 May 2014 Mr.Steven Gregory applied under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. The matter was heard and the following decisions were handed down:

● on 27 February 2015 Commissioner Cambridge of the Fair Work Commission (‘the Commission’) dismissed the application 1;

● on 24 April 2015 a Full Bench (Catanzariti VP, Harrison SDP, and Bull C) refused an application for permission to appeal and the appeal was dismissed 2;

● on 3 February 2016 the Federal Court 3 (Buchanan, Bromberg and Rangiah JJ) quashed the Full Bench decision of 24 April 2015 by a writ of certiorari and granted a writ of mandamus requiring the Commission to deal again with the notice of appeal filed on 19 March 2015 according to law4.

[2] The matter was listed for hearing for permission to appeal and for merit on 4 April 2016 and directions issued. Written submissions were filed in accordance with directions. We have taken account of the written submissions and oral submissions made on 4 April 2016.

The Decision under Appeal

[3] In the decision under appeal Commissioner Cambridge decided:

● that there was a valid reason for termination within s.387(a), namely an incident after dinner on 8 February 2014 during a stopover in Santiago, in which the appellant touched the breast of a co-worker during a taxi ride (paragraphs 48-75);
● that the appellant was under the influence of alcohol and cannabis which he had consumed (paragraph 73);
● that the appellant was not the victim of drink spiking (paragraphs 48-75);
● that the employer notified the appellant in writing of the reason for the dismissal within s.387(b) (paragraph 76);
● that the employer provided an opportunity to respond within s.387(c) (paragraph 77);
● that there was a support person present during interviews within s.387(d) (paragraph 78);
● that s.387(e) had no relevance (paragraph 79);
● that ss.387(f) and (g) had no relevance in this instance (paragraphs 80-81);
● that a range of matters were relevant matters within s.387(h), including his ‘long unblemished work record’, his ‘genuine remorse and contrition’, and ‘the financial and career impacts suffered as a result’ (paragraphs 82-89);
● that the dismissal for serious misconduct involved the ‘sexual harassment’ of a female colleague was not disputed (paragraph 90);
● that the actions of the appellant ‘were not consciously intended’, and ‘he was not in control of his faculties at that time’ (paragraphs 90-94);
● that the standards for commercial pilots are very high (paragraph 92);
● that the dismissal was…

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: [2016] FWCFB 2108
Decision Date: 3 MAY 2016

CaseChat Overview and Summary

Steven Gregory appealed against a decision made by Commissioner Cambridge in the Fair Work Commission (FWC) on 27 February 2015. The appeal related to his dismissal by Qantas Airways Limited for sexual harassment, with a focus on the defence of drink spiking and evidentiary issues. The case, U2014/7543, was heard in Sydney. The central dispute was whether the respondent had established that the appellant had sexually harassed a female colleague, and whether the respondent's decision to terminate his employment was lawful.

The court had to determine whether the evidence presented was sufficient to establish the appellant's guilt regarding the allegations of sexual harassment, and whether the respondent had a valid defence concerning the claim of drink spiking. The appellant argued that the decision was flawed due to a failure to properly consider the evidence of drink spiking and other factors. The court needed to examine the admissibility and weight of the evidence, particularly the appellant's claim that his drink had been spiked, which he argued could have affected his behaviour and memory.

The court found that Commissioner Cambridge did not err in law in reaching his conclusion that the appellant had sexually harassed the female colleague. The court held that the evidence, including CCTV footage and witness statements, sufficiently established the sexual harassment. The court further held that the appellant's claim of drink spiking was not substantiated and did not warrant a different outcome. The appeal was dismissed, and the original decision was affirmed. The court determined that the evidence was sufficient to support the decision that the respondent had valid grounds for dismissing the appellant, and that the process followed was fair and lawful.

Orders