DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Gigney
v
Qantas Airways Limited T/A Qantas
(U2017/10096)

Application for an unfair dismissal remedy – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Benjamin Gigney was employed by Qantas Airways Limited T/A Qantas (Qantas) performing baggage handling/ground crew services. He commenced his employment in December 2005 and was based in Darwin. Mr Gigney was dismissed from his employment by Qantas effective 28 August 2017. Mr Gigney says that his dismissal was harsh, unjust or unreasonable and therefore unfair. He now seeks relief from the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act).

Permission

[2] Prior to the hearing I granted permission for Qantas to be represented by a lawyer. Mr Gigney was represented by the Transport Workers’ Union of Australia (TWU).

Events leading to dismissal

[3] On 19 May 2017 Mr Gigney commenced his shift at approximately 4.30 am.

[4] At approximately 5.50 am Mr Gigney greeted Mr Liam Hale, Senior Airline Services Coordinator, and then greeted Mr Agostinho Alves, Airline Services Operator. Mr Hale apparently responded verbally to Mr Gigney but Mr Alves acknowledged the greeting either by lifting his chin/raising his nose in the air 1 or by giving him the “thumbs up”.2

[5] At approximately 7.15 am Mr Gigney went to the locker room where he had an altercation with Mr Alves stemming from Mr Alves’ non-verbal response to the earlier greeting.

[6] Mr Tom Lay, Senior Airline Services Coordinator, and Mr Hale, who were in the Leading Hand’s Office, heard “yelling and screaming”. 3 Mr Lay went into the locker room to investigate. What Mr Lay saw is contested but it is not disputed that he did go into the locker room at the time of the incident and saw Mr Gigney and Mr Alves.

[7] At about 7.20 am Mr Alves went to see Mr Alan Drysdale, the Airport Duty Manager. Mr Alves was apparently upset and advised Mr Drysdale that he was “sick of copping crap from Ben” and wanted “to make a complaint”. 4 Mr Alves relayed to Mr Drysdale what he said occurred in the locker room between Mr Gigney and himself. He showed Mr Drysdale his ripped shirt he said was caused in the incident.

[8] Mr Drysdale contacted Mr Chris Lekkas, Senior Human Resources Consultant, to get guidance on what should be done. Mr Drysdale, with the assistance of Mr Lekkas, took a statement from Mr Alves on what he said had occurred. 5

[9] Later that day, on instructions from Mr Lekkas, Mr Drysdale met with Mr Gigney and advised him that allegations had been made against him and that he had been stood down pending an investigation.

[10] Mr Gigney was subsequently issued with a stand down letter. 6

[11] Between 23 and 26 May 2017 Ms Ronae (Ronnie) Jennings, Manager NT Airports, met separately with Mr Alves, Mr Lay and Mr Hale as part of the investigation of the matter.

[12] On 26 May 2017 Ms Jennings met with Mr Gigney and provided him with a letter of allegations (first letter of allegations). 7 That letter contained nine allegations set out below:

[13] The first letter of allegations invited Mr Gigney to provide a written response to the allegations by 31 May 2017 and to attend a meeting in relation to the allegations on 2 June 2017. That letter indicated that Mr Gigney was welcome to bring a support person to the meeting.

[14] The first letter of allegations also outlined the potential breaches of the Qantas Group Standards of Conduct Policy (Conduct Policy) and attached a copy of that Policy.

[15] Mr Gigney provided a written response (first written response) to the first letter of allegations on 31 May 2017. 8 In that reply Mr Gigney denied or partially denied each of the allegations.

[16] A meeting was held with Mr Gigney on 2 June 2017 (first response meeting). Present at the meeting were Mr Gigney, Ms Jennings and Ms Naomi Meade (company witness and note taker, by telephone).   Mr Gigney disputed Mr Alves’ version of events in the locker room on 19 May 2017. He said that Mr Alves pushed into him and yelled “you have no respect”. Mr Gigney denied placing anyone in a headlock. Mr Gigney said that there was not much room and all Mr Alves had to say was “excuse me” and that it was “common decency” for a person to say excuse me as they move past in a confined space. 9

[17] Mr Gigney said he could not comment on Mr Alves’ ripped shirt or broken sunglasses saying “I’ve got ripped shirts, too”. 10

[18] Mr Gigney denied any knowledge of moving the lockers and said any noise that was heard might be explained by him kicking the clothes dryer.

[19] Mr Gigney described the incident as a bit of “argy-bargy.” 11

[20] Mr Gigney raised an issue with some letters that had been left in his locker earlier in the year (before this incident).

[21] During the first response meeting, in answer to a question asked of him, Mr Gigney said “Unbelievable. It has to be Tom…” 12

[22] As a result of issues raised by Mr Gigney about “Tom” (Mr Lay), Ms Jennings interviewed a number of staff to ask for their assessment of the relationship between Mr Gigney and Mr Lay 13 and the extent that this might have effected Mr Lay’s recollection of and/or reaction to the events on 19 May 2017.

[23] On 20 June 2017 Mr Alves delivered to Ms Jennings a USB stick which contained two letters addressed to Ms Jennings. 14 Those letters related to other incidents involving Mr Gigney. Ms Jennings interviewed other employees named in those letters.

[24] On 20 July 2017 Ms Jennings met with Mr Gigney and provided him with a letter containing further allegations (second letter of allegations). 15 That letter contained a further four allegations:

[25] The second letter of allegations invited Mr Gigney to provide a written response by 27 July 2017 and invited him to a meeting on 31 July 2017.

[26] The second letter of allegations also outlined potential breaches of the Conduct Policy.

[27] Mr Gigney provided a written response to the allegations 16 (second written response) and attended the meeting (second response meeting) on 31 July 2017.

[28] The meeting was attended by Mr Gigney, his support person, Ms Jennings and Ms Liz Neale. Ms Neale attended by phone and took notes of the meeting.

[29] Mr Gigney denied talking to Mr Alves about the Zika virus, going to Brazil or his wife.

[30] Mr Gigney denied talking to Mr Alves about going off sick or telling him to “fuck off” to his own country.

[31] Mr Gigney totally disagreed with the incident with the spinning coin and said he could not recall it.

[32] Ms Jennings, in conjunction with Ms Meade and Ms Neale completed the investigation into Mr Gigney’s conduct and on 11 August 2017 met with Mr Gigney to provide him with a copy of the outcome of the investigation (findings letter). 17 That letter found, in relation to each of the allegations:

[33] The findings letter set out those parts of the Conduct Policy that Mr Gigney had breached.

[34] Mr Gigney was asked to provide a written response as to why his employment should not be terminated (show cause) by Friday 18 August 2017.

[35] The decision in relation to Mr Gigney’s employment was made by Mr Alan Hirst, Manager Canberra Airport. In undertaking this task Mr Hirst was provided with relevant documents by Ms Jennings in relation to the incidents including the allegations, record of statements of staff involved in, or witness to, the incidents and notes of interviews including the first and second response meetings with Mr Gigney. The documents related to both the incident on 19 May 2017 and the matters raised in the letters of complaint provided by Mr Alves to Ms Jennings on 20 June 2017.

[36] Mr Hirst was also provided with a copy of Mr Gigney’s response to the show cause request contained in the letter of findings (show cause written response 18). In the show cause written response Mr Gigney:

•  Said that he was “sorry for my actions and this entire situation”.

•  Expressed that he had hoped for “a timely, impartial and fair investigation” but considered this was not the case;

•  Expressed dissatisfaction that witness statements had not been collected on the day of the incident as this would “avoid any possibility of false memories, the possibility of collusion and or the leading of witnesses into making false statement”;

•  Said that some of the statements made were outrageous and he would never put anyone in a headlock or, tell someone if they were not willing to go sick to “[f] off to your own country”;

•  Believed that mediation should have occurred;

•  Said that over the years of his employment he had expressed concerns about bullying and victimisation and these were disregarded by management;

•  Believed he had been a victim of bullying and victimization during the “supposedly impartial investigation into a relatively minor incident”;

•  Expressed his regret and sorrow that he “reacted with sarcasm” to Mr Alves’ “non plussed reply” to his “good morning” and for “shoving” Mr Alves “in reaction to his rudely making contact with me”;

•  Expressed his disappointment in his reactions;

•  Apologised unreservedly. 19

[37] On 21 August 2017 Mr Hirst met with Mr Gigney via Skype (video) (show cause response meeting). That meeting was attended by Mr Gigney and his support person in Darwin, Mr Hirst in Canberra and Ms Sandra Borella, Airport Manager Alice Springs who attended by telephone and took notes. 20

[38] In that meeting the notes indicate that Mr Gigney:

•  Did not consider Ms Jennings impartial as she “had issues stemming from questions from Overtime”;

•  Had no evidence that witnesses had been led;

•  Believed that mediation would help as Mr Alves had pushed him in response to his simple question. He said he is a reasonable person who gets along with everyone and Mr Alves was not civil;

•  Said he had raised concerns about the note left in his locker that said “get rid of Ben Gigney”. He had raised it with two duty managers and the response was not helpful;

•  Considered the incident on 19 May 2017 as relatively minor and said Mr Alves is “notorious for being rude”, had been “violent in the past” and his behaviour is “disgusting”;

•  Had been with the company for 20 years and the work he did was “pretty much all [he] know[s]”;

•  Agreed he shoved Mr Alves when Mr Alves “rudely pushed past” him although agreed shoving was not a “minor” matter;

•  The shove was just a reaction with no thought in it;

•  Denied he held Mr Alves in a headlock and said that Mr Lay who claimed to witness the incident had an issue with him;

•  When asked how the business could have confidence in him said that he would “like to go on my track record. If right questions were asked of people…I’m a decent person, I’ve never done anything like that to anyone. ‘He’ is well known for being physical”.

[39] As a result of this interview Mr Hirst asked some follow up questions of Ms Jennings and Ms Borella. Ms Jennings said she did not know what the issues about overtime raised by Mr Gigney were about; was not aware of Mr Alves being physical with other employees; the first time she saw the note Mr Gigney says was in his locker was when he produced it during the interview with her and that Mr Gigney had not raised bullying issues in the past.

[40] Mr Hirst also reviewed Mr Gigney’s training record.

[41] On a consideration of all of the information Mr Hirst had, including the show cause written response and response meeting, the findings in relation to Mr Gigney’s conduct and the seriousness of that conduct, Mr Hirst considered that termination of Mr Gigney’s employment was an appropriate outcome.

[42] Mr Hirst and Ms Borella met with Mr Gigney in person in Darwin on 28 August 2017 where he was given a letter terminating his employment. 21

Evidence and findings

[43] Evidence was given for Mr Gigney by:

•  Mr Benjamin Gigney, applicant.

•  Mr Justin Nicholl, Baggage Handler, Qantas Darwin.

•  Mr Glenn Watson, Baggage Handler, Qantas Darwin until July 2016.

[44] Evidence was given for Qantas by:

•  Ms Ronae (Ronnie) Jennings, Manager NT Airports, Qantas.

•  Mr Agostinho Alves, Airline Services Operator, Qantas Darwin.

•  Mr Tom Lay, Senior Airline Services Coordinator, Qantas Darwin.

•  Mr Alan Drysdale, Airport Duty Manager, Qantas Darwin.

•  Mr Damien Lloyd, Coordinator Training Development, Qantas Darwin.

•  Mr Gage Leso, Airline Services Operator, Qantas Ground Service Pty Limited Darwin.

•  Mr Kerry Ferteklis, Airline Services Operator, Qantas Darwin.

•  Mr Adam Hirst, Manager Canberra Airport, Qantas.

[45] Following the completion of the evidence Mr Gigney’s representative, in submissions, conceded a number of the allegations. However, he said that Mr Gigney was not guilty of all the allegations that Qantas, in its investigation, found to be substantiated.

[46] To the extent that Mr Gigney does concede a number of the allegations I am satisfied that the incidents described in those allegations occurred. Where Mr Gigney did not concede that incidents occurred as detailed in the allegation (see for example allegation 3(c) and 3(d) below) I have considered each of these and made findings as necessary.

[47] Qantas does not rely on the allegations it could not substantiate in its investigation. I have not considered these.

[48] There is some but not an abundance of conflict in the evidence given by the parties. The case primarily rests on whether the incidents that I find did occur, collectively, provide a valid reason for dismissal.

[49] I found the witnesses for Qantas in this matter to be open, honest and forthright in giving their evidence. Their evidence was consistent from the time they provided statements as part of the investigation process to the evidence given under oath. In particular, Mr Alves did not seek to overstate the issues or events surrounding his relationship with Mr Gigney or his recollection of the incident of 19 May 2017. Where he could not remember he said so. The reason given by Mr Alves for not reporting Mr Gigney in relation to the sick leave incident (see below) is convincing and I accept it.  22

[50] I found Mr Gigney’s evidence to be less reliable. His memory of events has changed over time and matters he was emphatic about at the time of his first and second written responses and his first and second response meetings differed at the time of giving evidence before the Commission. The inconsistency over time raises doubts as to the reliability of his evidence. Mr Gigney was prone to exaggeration, for example suggesting he has “never pushed, wrestled or punched any one, ever, at work”. 23 I also had the benefit of observing Mr Gigney’s demeanour in Court. I found him wary in giving evidence. For these reasons where there is a conflict in the evidence of Mr Gigney and Mr Alves, in particular, I have preferred the evidence of Mr Alves as more reliable. I have noted where this is relevant to the determination of a factual dispute.

Allegation 1

[51] Mr Gigney conceded that this allegation was reasonably substantiated. 24 I am therefore satisfied, on the basis of the evidence and submissions that on 19 May 2017 at approximately 5.50 am, as Mr Gigney approached Bay 10, he said to Agostinho Alves words to the effect:

(a) ‘You should say G’Day’

(b) ‘You think you are so much better than anyone else’.

Allegation 2

[52] Mr Gigney conceded that this allegation is substantiated. 25 On the basis of the evidence and submissions I am satisfied and find that Mr Gigney’s comments described in Allegation 1 were:

(a) said in a sarcastic or smart-alec tone.

(b) overheard by other staff.

Allegation 3(a)

[53] This allegation is that Mr Gigney positioned himself in front of Mr Alves, blocking Mr Alves’ ability to exit the locker room.

[54] There is some dispute as to whether Mr Gigney entered the locker room once or twice. I am satisfied that Mr Gigney entered the locker room twice, the second time being after Mr Alves had entered.

[55] Mr Alves’ evidence is that, after seeing Mr Gigney come out of the locker room, he entered the locker room to wash his hands and collect his mobile phone. In this period Mr Gigney entered the locker room and “was standing in the space between the dryer and the bench, where there is only room for one person to get through”. 26

[56] Mr Gigney said that Mr Alves was drying his hands. “He just looked at me. Threw the paper across probably to the bins…and then he just walked past - put his shoulder down and walked past me through that spot where I was standing…” 27

[57] Whilst Mr Gigney said in his first written response that he “never positioned myself in front of Agostino (sic). I refute the claim I blocked his ability to exit the room” 28 and “[t]o say I blocked his path is arrogant”29 he agreed in the first response meeting that “we were both trying to get out the door. There’s not much room” and that “[t]here’s no room at all for two people to walk past each other”.30

[58] During cross-examination Mr Gigney claimed that Mr Alves could have walked around the other side of the bench to get out. 31 I do not consider this was an option for Mr Alves.

[59] Mr Gigney also complained that Mr Alves just needed to ask to get past. This supports the conclusion that Mr Gigney was blocking Mr Alves’ path to exit the locker room. Had Mr Alves been able to walk around the bench to get out he would not have had to ask to get past Mr Gigney. Mr Gigney agreed with Mr Alves’ diagrammatic representation of where the incident occurred. 32 From this it is clear that he was positioned between Mr Alves and the doorway. If there was no room for two people to walk past each other than Mr Gigney was positioned to block Mr Alves. There is no indication Mr Gigney asked Mr Alves to wait while he finished what he was doing or could move on. What is clear on the evidence is that he did stay in place where he acknowledged there was not enough room for two people.

[60] Further, it seems, on the evidence of both men, that soon after they fronted each other Mr Gigney grabbed Mr Alves and pushed him into the locker. They appear to have gone from that position to both trying to get through the doorway which is where they were when Mr Lay entered the locker room.

[61] For these reasons I find that Mr Gigney did position himself in from of Mr Alves, blocking his exit. This is not to excuse either person in their failure to show a modicum of civility in such a situation.

Allegation 3(b)

[62] This allegation was not substantiated in Qantas’ investigation and is not relied on.

Allegation 3(c)

[63] The allegation is that Mr Gigney grabbed Mr Alves by the shirt.

[64] Mr Alves’ evidence is that Mr Gigney “grabbed the chest area of my shirt with both hands and pushed me against the lockers...I tried to push myself away...and he grabbed me again.” 33 He says that “[d]uring the interaction…my shirt ripped”.34 Mr Alves says that his shirt sleeve was ripped and buttons undone after the incident. Mr Alves included a photograph of the tear on his shirt sleeve with his written statement.35 This was not disputed. Mr Alves also gave undisputed evidence that he would not wear a torn shirt to work.

[65] Mr Gigney denied in his evidence that he had grabbed Mr Alves with both hands 36 although in the first response meeting he said he possibly grabbed Mr Alves when they stumbled.37 In closing submissions Mr Gigney’s representative conceded that Mr Gigney may have grabbed Mr Alves’ shirt and “in that context…the allegation is substantiated”.38

[66] I am satisfied and therefore find that Mr Gigney did grab Mr Alves by the shirt and, that in doing so, he tore Mr Alves’ shirt sleeve.

Allegation 3 (d)

[67] This allegation is in relation to how Mr Alves impacted the locker.

[68] Mr Alves’ evidence is that he could “remember [Mr Gigney’s] hands being on my chest and being thrown like a bag of potatoes against the lockers”. 39

[69] Mr Drysdale’s evidence is that he took two photographs of lockers on 19 May 2017 showing the lockers moved from their normal positions. 40

[70] Whilst Mr Gigney conceded when giving evidence that he had “pushed” Mr Alves into the locker 41 I note that in his first written response he maintains that he “never pushed, wrestled or punched anyone ever.”42 Mr Gigney also suggested in his first response meeting that the loud bangs heard by Mr Lay and Mr Hale were caused when he “kicked the dryer…or something like that.”43 In his show cause written response Mr Gigney expresses regret for “shoving Agostino (sic) in reaction to his rudely making contact with me.”44 In final submissions made on his behalf, Mr Gigney’s representative conceded that Mr Gigney had pushed Mr Alves “which could be considered forceful”.45

[71] The changing nature of Mr Gigney’s evidence does raise questions with respect to the reliability of his evidence on this matter.

[72] Whilst evidence was given of how heavy the lockers might be it is not possible to make any judgement on that.

[73] I am satisfied however, and find, that Mr Gigney did forcefully push Mr Alves into a locker. I do not consider it necessary to find whether or not Mr Alves was “thrown” into the locker. This, it seems, would depend on whether Mr Alves was lifted off the ground in the process of being forcefully shoved and there was no evidence of this. This, however, does not reduce the seriousness of Mr Gigney’s actions.

Allegation 3(e)

[74] This allegation was not substantiated in Qantas’ investigation and is not relied on.

Allegation 3(f)

[75] An allegation was made that Mr Gigney put Mr Alves in a headlock during the incident in the locker room.

[76] Mr Lay’s evidence is that, when he went into the bathroom he saw that “Mr Gigney had Mr Alves in a headlock…Mr Gigney had his right arm around Mr Alves’ neck. Mr Alves’ head was under Mr Gigney’s arm”. 46 Mr Lay says that he saw this when he was standing in the doorway between the staff room and the bathroom and Mr Gigney and Mr Alves were further into the bathroom in the next doorway. He said that he got between them to break them up.47 Mr Lay included details of this in the statement he made on 24 May 2017. Mr Lay could not recall if he told Mr Alves what he had seen.48

[77] Mr Gigney said that he never put Mr Alves in a headlock. 49 He said that a headlock was a “chump move”.50

[78] Mr Alves did not mention being put in a headlock in the report he made to Mr Drysdale 51 on 19 May 2017, the statement he made on 19 May 2017 or the statement he made on 20 May 2017.

[79] The headlock is mentioned in an email Ms Jennings sent to Ms Neale on 23 May 2017 where she said “Ago said that Tom told him he saw Ben had him in a headlock…” 52

[80] In response to questions from Ms Jennings on 1 June 2018 about how his glasses came to be broken Mr Alves said “I’m pretty sure he [Mr Gigney] tried to get me in a headlock…” 53 and again on 2 June 2017 in a further interview with Ms Jennings, in response to a question as to what Mr Lay did when he came into the locker room, Mr Gigney said “He asked what was going on…I think he saw me, Ben had me in a headlock…”54

[81] Mr Alves, in cross-examination, said that he could not recall the [headlock] incident 55 and he only brought it up because Tom [Mr Lay] told him what he had seen.56 Mr Alves could not recall what he said to Ms Jennings on 1 June 2017.

[82] Mr Alves said it all happened so quickly he could not recall everything. 57

[83] I accept the results of the investigation undertaken by Ms Jennings into the suggestion Mr Lay was biased against Mr Gigney. There is no evidence to support such a conclusion.

[84] On the balance of probabilities, I cannot find that Mr Gigney put Mr Alves in a headlock. Mr Alves’ recollection of this incident appears to be driven by what Mr Lay told him he had seen. Mr Gigney was emphatic on the question. Whilst his demeanour in the witness box and changes in evidence might raise questions as to the reliability of his answers he remained consistent, clear and responsive that he had not put Mr Alves in a headlock. Further, Mr Alves had an excellent recollection of the majority of the incident such that his failure to recollect a headlock casts doubt as to the incident.

[85] I do not doubt what Mr Lay believes he saw but, as Mr Alves said, the whole thing happened so quickly. It may be he saw the end of some pushing and shoving between the two and believed, in the tangle, he saw Mr Alves in the headlock and properly reported this. I do not consider Mr Lay to be misleading the Commission in his evidence but find I cannot reach a conclusion on this incident.

Allegation 3(g)

[86] The allegation is that Mr Gigney said to Mr Alves words to the effect “[y]ou should have some respect for me”. 58 Mr Gigney says that he never said that.59

[87] In his first written response Mr Gigney said that Mr Alves “yelled at me, You have no respect!” and that he “replied in kind, raising my voice, ‘[y]ou are the one who rudely shoved past me!”. 60 His representative however conceded in submissions that it is likely these words, or words to this effect, were said.61

[88] I am satisfied, on the balance of probabilities, and find that Mr Gigney did say words to the effect of “you should have some respect for me”.

Allegation 4

[89] Mr Gigney agreed that he raised his voice and that he said some things sarcastically to Mr Alves. 62 He said, in his first written response that he was “stripped of his dignity”63 by Mr Alves’ response to his early morning greeting.

[90] To the extent that allegation 4 is based on findings having been made in respect of allegation 3(g) only (and not allegation 3(b)), I am satisfied, on the balance of probabilities, that the comments Mr Gigney made to Mr Alves were said in a loud, angry and/or aggressive tone. The circumstances of the incident do not suggest that Mr Gigney was meek and respectful during the incident. In any event, Mr Gigney’s representative conceded that this did occur to the extent it relates to allegation 3(g).

Allegation 5

[91] This allegation is that Mr Gigney’s conduct described in allegation 3 resulted in Mr Alves’ shirt being torn and his sunglasses being broken.

[92] I have found above that Mr Gigney grabbed Mr Alves by the shirt. I have also found that Mr Gigney forcefully pushed Mr Alves into the lockers. Mr Alves says that as a result of these actions his shirt was ripped and his sunglasses broke when they fell off his head.

[93] Mr Gigney, whilst in his evidence said he did not grab Mr Alves by both hands, conceded that the conduct which did occur (but without conceding that he did place Mr Alves in a headlock) did cause Mr Alves shirt to rip and his sunglasses to break. 64

[94] I am satisfied and find, on the balance of probabilities, that the conduct of Mr Gigney that I have found occurred did cause a tear in Mr Alves’ shirt and his sunglasses to come off his head and break. There is no other explanation put forward for the damage to Mr Alves’ clothing and sunglasses as recorded by him and the damage to them is consistent with the evidence given.

Allegation 6

[95] Allegation 6 is that Mr Gigney’s conduct was witnessed by other staff.

[96] The evidence of Mr Lay is that he and Mr Hale were in the Leading Hands’ office when they heard “some yelling and screaming”. 65 He entered the locker room and saw Mr Gigney with Mr Alves in a headlock.

[97] Mr Hale, in his statement to the investigators of the incident, said he heard “several loud bangs” coming from the locker room. 66 Further, Mr Hale said that when he entered the locker room he saw Mr Lay “standing between Ben and Agostino (sic) in the doorway.”67

[98] Whilst in his witness statement Mr Gigney said he “did not scream or yell”, 68 in his written response to the first letter of allegations he says that Mr Alves yelled at him and he “yelled back ‘you are the one who shoved past me’ “.69 He then said to Mr Lay “He’s arrogant & ignorant of others, instead of pushing past me all he had to say was ‘excuse me’, or indicate he would like me to move”.70 Further, in his first response meeting on 2 June 2017 Mr Gigney said that “we were both trying to get out of the door.”71

[99] I am satisfied and find, on the balance of probabilities, that the altercation between Mr Gigney and Mr Alves in the locker room on 19 May 2017 was heard by other employees of Qantas. Whilst I have dealt with the headlock incident elsewhere, I am satisfied, on the balance of probabilities, that Mr Lay walked in on the tail end of the incident and, to this extent he did see some of the incident. This is supported by Mr Hale’s statement that he saw Mr Lay between Mr Gigney and Mr Alves and by Mr Gigney’s first written response where he sequentially sets out the incident of that morning, including him explaining to Mr Lay why the incident had occurred. If Mr Lay was not witness to any part of the incident it is difficult to comprehend why Mr Gigney would feel the need to make such an explanation. My conclusion is further supported by Mr Gigney’s statement in the first response meeting that most of the pushing occurred when he and Mr Alves were both trying to get out of the doorway. If the pushing and shoving did occur in the doorway then Mr Lay is likely to have seen it when he entered the locker room. I am also satisfied that Mr Lay and Mr Hale heard the altercation coming from the locker room.

Allegation 7

[100] The allegation is that Mr Gigney’s conduct was “disrespectful, aggressive, threatening and/or intimidating”.

[101] Mr Alves’ evidence is that he was intimidated by (at least some of) Mr Gigney’s actions. 72

[102] Mr Gigney conceded in submissions that his actions were disrespectful and wrong but does not consider they were threatening or intimidating. 73

[103] In his first written response Mr Gigney denied that his conduct was “disrespectful, aggressive, threatening or intimidating” but said it was Mr Alves who was “disrespectful, aggressive & intimidating & threatening on the tarmac with the way he never said anything then glared at me”. 74

[104] Mr Gigney’s comment is a reference to the incident that happened at about 5.50 am on 19 May 2017 when he said he greeted Mr Hale and then greeted Mr Alves. He said in his first written response that “In greeting [Mr Alves] neither looked at me nor said ‘Hello’, but literally raised his nose in the air”. 75 This account was supported by the statement Mr Hale made for the investigation on 25 May 2017.76 Mr Alves then gave Mr Gigney the thumbs up.77

[105] Whilst, if Mr Alves did fail to respond to Mr Gigney’s greeting, this might be seen as rude and perhaps disrespectful, it is difficult to see how it could be construed as aggressive, threatening or intimidating. Such conduct is of a totally different character to that which occurred in the locker room which involved a degree of violence by Mr Gigney in forcefully pushing Mr Alves into the lockers.

[106] If, as Mr Gigney said, he “thought [he and Mr Alves] were friends. If not good friends just joke – it’s like a normal workplace. If not a little bit more uncouth. People joke and bag each other all the time” 78 it is difficult to understand why he should feel so slighted with Mr Alves’ non-verbal response to his morning greeting. Mr Gigney’s characterisation of his relationship with Mr Alves does not explain why he felt “stripped of his dignity” by Mr Alves’ non-verbal response. I find Mr Gigney’s explanation of, or reason for, this conduct unconvincing.

[107] I am satisfied that Mr Gigney’s conduct was disrespectful and aggressive. I am also satisfied that, in blocking Mr Alves’ exit from the locker room and forcefully pushing him against the locker, his conduct was designed to intimidate Mr Alves. Further, I am satisfied that the actions were threatening insofar as a “threat” is defined as “a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for…some action or course”. 79

Allegations 8 and 9 and further allegation 1

[108] These allegations were not substantiated and are not further considered.

Further allegation 2

[109] This allegation is in relation to comments Mr Gigney made about taking sick leave.

[110] On 20 June 2017 Mr Alves gave Ms Jennings a USB stick which contained further allegations against Mr Gigney. In particular Mr Alves said that Mr Gigney said that “[y]ou should go sick, that’s UNAUSTRALIAN to not go sick, if you are not willing to go sick you should fuck off to your own country (PORTUGAL).” 80 When questioned by Ms Jennings Mr Alves said that “Damien” was a witness to these comments.81

[111] Mr Gigney’s evidence is that “someone was talking about sick days and I jokingly said, ‘I might take a sick day. It’s un-Australian not to go sick.’ And Ago was sick at the time and I just turned to him and said, ‘If you’re sick you should fuck off home’ ”. 82 Mr Gigney said that he was not accusing Mr Alves of being “un-Australian”83 and that he did not say “Fuck off back to your own country.”84

[112] The evidence of Mr Damien Lloyd, Coordinator Training Development, is that he was in “one of the small offices in the lunch room and someone brought up taking sick days. Mr Gigney said words to the effect of:

‘It’s un-Australian if you don’t take sickies. If you don’t like it you can fuck off back to your own country.’ “ 85

[113] Mr Lloyd said that the comments were not made as a joke and were directed to Mr Alves. Mr Lloyd maintained under cross-examination that his recollection was correct and did not agree that Mr Gigney had said “fuck off home.” 86

[114] Mr Gigney, in his second written response, denies he said it was “un-Australian not to go sick” or “if you don’t like it you can fuck off back to your own country.” In the second response meeting he again denied saying these things or that he might have said something along these lines that Mr Alves misconstrued 87 although in his witness statement in these proceedings he said he “may have told Mr Alves and other co-workers that they should go home or stay home when they are sick.”88

[115] On balance, I am satisfied that Mr Gigney did say “It’s un-Australian if you don’t take sickies. If you don’t like it you can fuck off back to your own country.” 89 The evidence of Mr Lloyd and Mr Alves was unequivocal. Given the inconsistencies and changes in Mr Gigney’s evidence I prefer the evidence of Mr Alves and Mr Lloyd.

[116] Mr Gigney’s conduct in this respect was highly disrespectful, incredibly offensive, insensitive and discriminatory.

Further allegation 3

[117] This allegation arises from an incident in the lunch room in March or April 2017. Mr Alves and Mr Gage Leso, Airline Services Operator, were sitting at a table. Mr Gigney was lying on a couch. Mr Kerry Ferteklis, Airline Services Operator, was also in the lunch room.

[118] Mr Leso said he had some change and was “fiddling with the coins on the table.” He said that Mr Gigney “asked [him] to stop in an aggressive tone” but does not remember the exact words used. He said that Mr Gigney pushed the table which “hit Mr Alves in the chest area”. 90

[119] Mr Kerry Ferteklis said that at the time of the incident “around the second half of 2016 or early 2017…Mr Leso was spinning a coin on the table. Mr Gigney said words to the effect of ‘Stop spinning that fucking coin’, ‘Fucking stop it’ or ‘stop spinning that shit’ ”. He said that Mr Leso continued to spin the coin and on the third spin Mr Gigney “shoved the table with his hands. The table pushed into the second table, and the second table appeared to push into Mr Alves.” Mr Ferteklis said that he “got the impression that Mr Gigney did not mean to push the table into Mr Alves”. 91

[120] Mr Alves said that Mr Gigney said to Mr Leso words to the effect of, “Can you please stop, it’s starting to annoy me”. He said that Mr Gigney said it in a harsh way. He repeated this a few times and then got up and “pushed the table with his hands. The table hit me in the stomach area. I did not react…” 92

[121] In his second written response Mr Gigney denied any recollection of the matters contained in further allegation 3, a position he maintained in his second response meeting on 2 August 2017.

[122] In his oral evidence Mr Gigney said that “At the time of the investigation I had no recollections” but later on he recalled the incident. 93 In his witness statement filed in the proceedings he said that he “did ask Mr Leso to ‘stop spinning that shit’ on the table”. He did so because he was “trying to rest”. Mr Gigney said that he “recognised how I asked may not have been in the best taste so I said, ‘I’m sorry, I should ask nicely; can you please stop spinning the coin’. “94

[123] Mr Gigney said in his written witness statement in these proceedings that he “did not shove the table; I merely knocked the table as I got up to go and make a coffee; Mr Alves was on the other side of the table and I did not make contact with Mr Alves”. 95 However, his oral evidence was:

Mr Lawrie: Okay. You said just then you got up and bumped the table to knock the coin. So you intentionally bumped the table?  -Yes. Yes.

… Did you intentionally bump the table to hit Agostino?  -No, definitely not. No. 96

[124] Again, Mr Gigney’s evidence has evolved over time from not recalling the incident to bumping the table as he go up to get coffee to deliberately bumping the table. These are not changes in nuance but changes of substance in statements made to his employer and the evidence he has given to the Commission.

[125] There is nothing from any witness, except Mr Gigney, to suggest that he “bumped” 97 the table. The other three in the room say he pushed the table and I am satisfied that this finding is open to me on the evidence.

[126] I am satisfied, on the basis of the weight of evidence before me, that:

•  Mr Gigney asked Mr Leso to stop spinning the coin on the table by saying words to the effect of “stop spinning the fucking coin.” I do not accept, on balance, that Mr Gigney then said “I’m sorry I should ask nicely…”. 98 This does not sit with either his characterisation of the workplace (as a bit “uncouth”) or his conviction during his second response meeting that the incident did not occur. To now have such a good memory of an incident that six months earlier he was convinced did not occur and to now suggest that he asked politely in the workplace he described belies credibility ;

•  Mr Gigney deliberately pushed the table when Mr Leso did not stop spinning the coin;

•  The pushed table hit Mr Alves.

[127] I make no finding as to whether, in pushing the table, Mr Gigney had any intent to have the table hit Mr Alves.

Further allegation 4

[128] Mr Gigney conceded in final submissions that his comments and actions in further allegations 2 and 3 could have caused humiliation and been offensive, even on his version of the words used in further allegation 2. 99

[129] Whilst Mr Gigney conceded further allegation 4, it is not clear that he accepts the comments he made were intimidating.

[130] On the basis of my finding with respect to the conduct on Mr Gigney in relation to further allegations 2 and 3, I am satisfied that the comments and conduct would cause offence, humiliation and/or intimidation.

[131] I am satisfied Mr Gigney’s language was offensive.

[132] “Intimidate” is defined in the Macquarie Dictionary as “to make timid, or inspire with fear; overawe; cow” and “to force into or deter from some action by inducing fear”.  100

[133] There was no basis for what Mr Gigney said in relation to taking sick leave and I am satisfied it could have the effect of intimidating Mr Alves.

[134] I am therefore satisfied that Mr Gigney knew or should have known that his comments and actions in further allegations 2 and 3 would cause offence, humiliation and/or intimidation.

Submissions

[135] The TWU, on behalf of Mr Gigney, submits that Mr Gigney had over 10 years’ service with Qantas and that, until 19 May 2017, he had an unblemished record.

[136] Mr Gigney submits that there is a workplace culture at Darwin International Terminal of strength tests (squeezing hands) and name calling. It is a workplace where the work is physical and demanding and it is not unusual for derogatory remarks or jokes to be made at the expense of others or Qantas as an organisation. However, he submits that the line of what is and is not acceptable has never been drawn.

[137] Mr Gigney accepts that what he did was wrong but says he is not guilty of all of those matters raised by Qantas. It would be sufficient, he says, to issue him with a warning or a final warning. This he says is a relevant consideration in the Commission determining if the dismissal was otherwise harsh.

[138] Mr Gigney submits that if the only misconduct found is that excluding the headlock incident then there is no valid reason for dismissal. Even if it is found that a valid reason exists he submits that the dismissal should be found to be harsh. 101

[139] Whilst Mr Gigney now accepts that the comments made with respect to sick leave and the incident with the coin spinning were wrong he does not consider these inconsistent with the culture of the workplace at the time. It is said that if these were brought to Mr Gigney’s attention as being not in accordance with the expected standards at work he would not have been recalcitrant.

[140] As to the incident on 19 May 2017 Mr Gigney said it was over quickly, in five to 10 seconds, and no punch was thrown but it could not be said to be part of a pattern of misconduct. He did not know it was misconduct because he was never told.

[141] Mr Gigney submits that an important consideration in relation to his conduct on 19 May 2017 is that it was not an all-out brawl. Further, there was no intent in the incident. It is submitted that the events of 19 May 2017 gave Qantas an opportunity to identify potential workplace issues and rectify them by publicly stating that the conduct of Mr Gigney was not acceptable.

[142] Qantas submits that I should find that it had a valid reason for the dismissal of Mr Gigney. It submits that I can and should find that Mr Gigney engaged in the conduct it found substantiated, including the headlock. It says I should take into account that the two men did not like each other prior to the incident on 19 May 2017. Further, it submits that Mr Gigney’s actions were not a friendly push and shove but an unacceptable display of violence and that Mr Gigney deliberately returned to the locker room to confront Mr Alves.

[143] Qantas submits that I should find that Mr Gigney deliberately blocked Mr Alves’ exit from the locker room and that he knew he was doing so. It says that such a finding is supported by Mr Gigney’s comment that “all [Mr Alves] had to say was ‘excuse me’, or indicate that he would like me to move”. 102

[144] Qantas submits that I can rely on the evidence of Mr Lay that Mr Gigney put Mr Alves in a headlock. It submits that Mr Lay was not moved in his evidence on this point and that it is reasonable that Mr Alves might not remember all of the details of the incident given the speed with which it occurred and the violence of Mr Gigney in throwing him “like a sack of potatoes” against the locker.

[145] Qantas says that I can be satisfied that it undertook a thorough investigation and afforded Mr Gigney procedural fairness. Qantas spoke to witnesses and followed up on relevant matters, including the suggestion that Mr Lay may have been biased. On this it submits that there is no evidence to conclude that Mr Lay was biased in his account of what he saw when he entered the locker room.

[146] Qantas says that Mr Gigney undertook training on the Conduct Policy 12 months 103 before the incident and there is no reason he was not aware of the reasonable expectations Qantas has of its staff in this respect. It says that I can conclude that Mr Gigney’s actions were in breach of the Conduct Policy.

[147] Qantas submits that I should take into account the lack of remorse demonstrated by Mr Gigney in relation to the conduct. It adds that Mr Gigney only apologised for those things he admitted at the time had occurred and not for those things found to have been substantiated.

[148] Should I not find that all of those substantiated matters took place, Qantas says that I may still find a valid reason for dismissal on the basis of the admissions made by Mr Gigney and on his behalf during the proceedings.

[149] Qantas says that its employees must be able to be safe at work and that the conduct of Mr Gigney is contrary to this.

[150] Qantas do not suggest that Mr Gigney’s conduct can be equated to a trivial misdemeanour. It says I can rely on the decision of Vice President Hatcher in Raj Bista v Glad Group Pty Ltd T/A Glad Commercial Cleaning 104 (Bista v Glad Group) to guide my approach to resolving the matter.

Legislative requirements

[151] I am satisfied that Mr Gigney is protected from unfair dismissal, his dismissal was not a result of redundancy and the Small Business Fair Dismissal Code does not apply. Further, Mr Gigney made his application within the timeframe required in the FW Act.

[152] The determination of whether Mr Gigney was unfairly dismissed therefore requires a consideration of whether the dismissal was harsh, unjust or unreasonable.

[153] Section 387 of the FW Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Section 387(a) - a valid reason for the dismissal

[154] In determining if misconduct did occur it is necessary for the Commission to determine for itself, on the basis of the evidence before it, whether the conduct did, in fact, occur.

[155] I have set out above in my consideration of the evidence my findings in relation to each of the matters relied on by the Respondent to justify its decision to terminate the employment of Mr Gigney.

[156] In Bista v Glad Group 105 Vice President Hatcher considered, by reference to relevant authorities, what constitutes a valid reason for dismissal. In that decision the Vice President said:

[34] …merely establishing the factual basis for the reason for dismissal does not by itself demonstrate that it was a valid reason. It must, as s.387(a) makes clear, be a valid reason for dismissal - that is, dismissal must be a justifiable response to the relevant conduct or issue of capacity. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal. 106

[157] After considering the authority in Selvachandran v Peteron Plastics Pty Ltd 107 the Vice President said that:

[37] There is nothing in the reasoning in Selvachandran to suggest that some minor failing or trivial misdemeanour on the part of the employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be said to be sound, defensible or well founded, and to approach the concept of a “valid reason for dismissal” otherwise would not constitute a practical and commonsense way to ensure that employers and employees are treated fairly.

[38] This was made clear in the decision of the Federal Court Full Court in Edwards v Giudice,  which involved consideration of the need to make findings and give reasons in relation to a decision made under s.170CG(3) of the Workplace Relations Act 1996 (WR Act). Section 170CG(3) was in terms similar to the current s.387, except that it did not include the consideration found in paragraphs (d), (f) and (g) of s.387. In relation to s.170CG(3)(a), the majority judgment of Moore J said (underlining added):

“[6] Paragraph (a) speaks of “whether there was a valid reason ... related to the ... conduct of the employee”. The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

[7] The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e)...”

[39] The other member of the majority, Marshall J, similarly referred to the need, in relation to an employee dismissed for reason of misconduct, to make findings clearly identifying any misconduct which is found to have occurred and its gravity.

[40] Edwards v Giudice is, in my view, clear authority for the proposition that the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well- founded response to the conduct. Although Edwards v Giudice was decided under a different statute, the fact that s.387 of the FW Act is a highly similar provision to s.170CG(3) and is contained in the successor unfair dismissal regime in the FW Act means that it should be treated as a binding authority.

[endnotes omitted]

[158] It is clear from this decision that the proper approach requires the Commission to first consider the seriousness of the misconduct (which has properly been found to have occurred) prior to determining if that conduct constitutes a valid reason for dismissal. Proportionality of the decision to dismiss is properly considered having regard to all of the circumstances. 108

[159] I am satisfied that the conduct I have found to have occurred on 19 May 2017 and in the earlier two incidents (the sick leave and the spinning coin) are serious incidents. They are not trivial matters to be brushed aside. They are not the product of two colleagues at work having a bit of a friendly push and shove or test of strength.

[160] As to the incident on 19 May 2017 I am satisfied that Mr Gigney returned to the locker room after Mr Alves had entered and he did so to confront Mr Alves about the response he gave when Mr Gigney said hello to him earlier that morning. Whilst it may be true that Mr Gigney goes to the locker room a “dozen times a day” 109 I find the co-incidence of him re-entering soon after Mr Alves entered in circumstances where he says he felt “stripped of his dignity” over the incident earlier in the day not credible.

[161] Mr Gigney showed a lack of judgement in what he said to Mr Alves on 19 May 2017, how he said it and in physically confronting Mr Alves. None of his words or actions was necessary, much less justified. They are not excused by any workplace culture or because he felt “stripped of his dignity”. In any case, Mr Alves’ conduct at the morning greeting could hardly have had that effect. Mr Gigney and Mr Alves were not friends and the confrontation in the locker room was not a bit of banter.

[162] The conduct in relation to the sick leave incident is extremely serious and, on its own, would justify serious sanction. It, the spinning coin incident and the 19 May 2017 incident, considered as a whole, are substantially serious. That none of the incidents was an all-out brawl does not reduce the gravity of them individually or collectively.

[163] I am satisfied, on the basis of the conduct that I have found occurred, that the conduct was of such seriousness that it provided a valid reason for dismissal.

[164] In the letter of termination given to Mr Gigney on 28 August 2017 the misconduct he engaged in was identified as:

•  Speaking to a colleague in a sarcastic, abusive and/or intimidating tone;

•  Grabbing a colleague by the shirt and blocking his ability to leave the room during an altercation;

•  Shoving a colleague;

•  Pushing or otherwise physically moving a colleague in such a way that it caused his body to impact with a locker;

•  Restraining a colleague’s head or neck in a headlock;

•  Deliberately pushing or shoving a table in such a manner that it came into contact with the body of a colleague who was seated at the other end of the table;

•  Making discriminatory remarks to a colleague;

•  Behaving in a disrespectful, aggressive, threatening and/or intimidating manner.

[165] Whilst I have found that I do not have evidence to support a conclusion about the headlock, the characterisation of the conduct in the summary provided in the letter of termination in all other respects is accurate.

[166] I am also satisfied (and there was no submission from Mr Gigney to the contrary) that the conduct of Mr Gigney was in breach of various provisions of the Conduct Policy. In particular I am satisfied that Mr Gigney:

•  Breached clause 3.2 of the Conduct Policy. He failed to take responsibility for his actions (even if he did consider he was provoked by what he saw as Mr Alves’ slight that morning), did not comply with the Conduct Policy, failed to treat Mr Alves with respect and failed to act in the best interests of Qantas;

•  Breached clause 4.1(d)(ii) of the Conduct Policy in that he did not treat Mr Alves with respect or fairly;

•  Breached clause 15 of the Conduct Policy in that he threatened, intimidated and verbally abused Mr  Alves on 19 May 2017; verbally abused and discriminated against Mr Alves in the sick leave incident and engaged in intimidating behaviour in shoving the table in the spinning coin incident;

•  Breached clause 15.9 of the Conduct Policy in that he did cause damage to Qantas property.

[167] I make no finding as to whether Mr Gigney engaged in bullying conduct such that he breached clause 9.2 of the Conduct Policy only because scant attention was given to this aspect of the conduct. I do not find that Mr Gigney did not engage in such conduct – I leave the question open but do not need to resolve it for the purposes of this decision.

[168] In B, C and D v Australian Postal Corporation T/A Australia Post 110 the Full Bench majority said:

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.

[169] I have adopted this reasoning in the matter before me.

[170] Mr Gigney’s conduct was clearly in breach of the Conduct Policy. He made no submissions that it was otherwise. Whilst a breach of policy does not automatically justify dismissal, in this case I am satisfied that the conduct on his part was a fundamental breach of the Conduct Policy and provides a valid reason for his dismissal.

[171] I have taken into account that the conduct engaged in by Mr Gigney occurred within 12 months after he had completed training on the Conduct Policy.

[172] In all of these circumstances I am satisfied that the conduct of Mr Gigney was not trivial or of some minor nature. It was serious. It constitutes a valid reason for dismissal.

Section 387(b) - notified of the reason

[173] Mr Gigney was made aware of the reasons for his dismissal before the decision to dismiss him was made.

[174] Mr Gigney was advised of allegations against him and of the ultimate findings of the investigation team. He was invited to respond to the “show cause” letter issued to him.

Section 387(c) - opportunity to respond

[175] Mr Gigney was invited to provide his response to the allegations and then the findings of the investigation.

[176] The first and second letters of allegations were given to Mr Gigney in meetings with him. He was invited to respond to the first and second letters of allegations in writing and then in meetings with Ms Jennings and a member of the investigation team.

[177] Mr Gigney was given the result of the investigations into the allegations in a further meeting and was given an opportunity to respond as to why, on the basis of the findings, his employment should not be terminated.

[178] Mr Gigney was invited to a further meeting with Mr Hirst to provide his response. Following this meeting Mr Hirst made the decision to terminate Mr Gigney’s employment with Qantas.

[179] I am therefore satisfied that Mr Gigney was given every opportunity to respond to matters that formed the basis of the reason for his dismissal. These opportunities were afforded to him before any decision was taken to dismiss him from his employment.

[180] Mr Gigney says that the three months taken to finalise this matter created a deal of stress for him and that he had understood, at various stages, that it would take much less time.

[181] Whilst I appreciate and recognise the pressure created by a process that took from the time of the incident on 19 May 2017 until 28 August 2017 when the dismissal took effect, this is not a criticism of Qantas. I am satisfied that Qantas did, at every step of the way, afford Mr Gigney procedural fairness and was at pains to ensure it followed up on all matters raised, including the suggestion by Mr Gigney of bias, to ensure it had a sound basis for its decision.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[182] Mr Gigney was invited to bring a support person to each meeting he had with Qantas management.

Section 387(e) - unsatisfactory performance

[183] The dismissal did not relate to performance. This is not a relevant consideration.

Section 387(f) & (g) - the size of the employer’s business and absence of dedicated human resource management specialists or expertise

[184] Qantas is a large organisation. It has human resources and legal expertise available to it. It is to be reasonably expected that an organisation of this size has the professional capability to properly effect a dismissal.

Section 387(h) - any other matters

[185] I appreciate that the incident on 19 May 2017 did not go for long (between five and 20 seconds on the limits of each account) but that is not the only measure on which the seriousness of the matter is determined. In addition, it is not the only matter relied on for the dismissal of Mr Gigney and on which I have made findings. That incident was in addition to Mr Gigney’s comments with respect to sick leave and the suggestion that Mr Alves should “fuck off to [his] own country” 111 and his outburst including physically pushing the table in relation to the coin spinning.

[186] Mr Gigney has been employed by Qantas for almost 12 years. I understand that he had been undertaking similar work at Darwin International Airport for about eight years prior to working for Qantas. 112 Mr Gigney said, in one of his interviews, that this work was all that he knows.

[187] For his 12 years at Qantas Mr Gigney does have an unblemished record. Whilst this is a relevant consideration it does not excuse his conduct. An unblemished record is not a “free pass” to an incident of misconduct.

[188] Mr Gigney has shown little remorse for his actions. He has not reflected on those things he is found to have done. Having been provided with the findings from the investigation into the allegations of misconduct Mr Gigney was invited to respond. In his reply he considered the matter “minor”; suggested the investigation was “impartial”, and apologised for his “sarcasm” and for “shoving” Mr Alves.  113

[189] In this context his unreserved apology seems hollow and still does not deal with all of those things Qantas, in its investigation, found to be substantiated. Despite him being asked to show cause as to why his employment should not be terminated Mr Gigney continues to treat the totality of his conduct as minor or not his fault.

[190] Mr Gigney does not appear to understand that his conduct, on a range of levels, was wrong and does not constitute acceptable behaviour in the workplace. Mr Gigney has received training on the Conduct Policy. He should be capable of applying that policy in a reasonable manner without having to be told what is and is not acceptable.

[191] Instead of understanding his actions and the effect of them, Mr Gigney, through clear statements and innuendo, has sought to malign Mr Alves’ character. Mr Gigney said he had “no problems or issues” with Mr Alves and suggested that he and Mr Alves were “friends”. 114 The evidence however supports the opposite conclusion. Mr Gigney said to Mr Hirst on 21 August 2017 that Mr Alves was “notorious for being rude”,115 had been “violent in the past” and his behaviour was “disgusting”. He said to Mr Lay on 19 May 2017 that Mr Alves was “arrogant”. Mr Gigney referred to Mr Alves as “aggressive and intimidating”116 and “spiteful”117. Mr Ferteklis said Mr Gigney would “have a go at Mr Alves more than other people”.118 Mr Alves did not suggest he and Mr Gigney were friends, rather suggesting that Mr Gigney put him down and stating that Mr Gigney’s good morning greeting was “here comes fucking Ago”.119 (If this is the case it is not surprising Mr Alves did not engage verbally with Mr Gigney when he shouted a greeting in the morning of 19 May 2017.

[192] In his evidence Mr Gigney invited an inference that Mr Alves was a “call out king”, a person who responds (excessively) to requests to work overtime. Whilst Mr Gigney suggested nothing was implied by this name I did not take his evidence that way and there is no explanation as to why he thought the Commission should know of it. Whilst this is a relatively minor issue it is, in my view, reflective of Mr Gigney’s attitude to Mr Alves.

[193] This was not a case of two friends horsing around or a bit of “argy-bargy” or a friendly test of strength. Whilst I accept that such things may occur, and do occur, in this particular workplace, Mr Alves and Mr Gigney were not friends. If they were it is hard to see why Mr Gigney would take offence at Mr Alves tilting his chin or giving the thumbs up to a called out greeting.

[194] Mr Gigney said that he “[does] have [his] moments where he is a bit annoyed” and his moods are up and down.  120 On the basis of the material before the Commission, Mr Gigney’s “annoyance” at Mr Alves escalated inappropriately.

Conclusion as to harsh, unjust or unreasonable

[195] Whether the dismissal of Mr Gigney was harsh, unjust or unreasonable must be decided on the facts of the case before me.

[196] In Byrne and Frew v Australian Airlines Ltd 121 the High Court held that:

… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

…

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable.

[197] However, Mr Gigney did engage in conduct and breach the Conduct Policy such that it provides a valid reason for his dismissal. He has shown little remorse or contrition for the totality of the conduct he engaged in as found substantiated in the internal investigation. He maintains he did not engage in the totality of that conduct. Whilst I appreciate that the dismissal has had some impact on him because he has lost his job, Mr Gigney has put little to me such that this is an overriding factor in my decision. Further, I am satisfied that Mr Gigney was afforded procedural fairness in all aspects of the investigation and that Qantas undertook a thorough investigation of all matters.

[198] Mr Gigney was guilty of the conduct as I have found. In circumstances where I have found the conduct such that it provides a valid reason for dismissal and little contrition, I am satisfied that his dismissal was not harsh, nor was it unjust or unreasonable.

Conclusion

[199] For the reasons given above, I am not satisfied that Mr Gigney was unfairly dismissed.

[200] Mr Gigney’s application for relief from unfair dismissal is therefore dismissed. An order 122 to this extent will be issued with this decision.

COMMISSIONER

Appearances:

E. Lawrie for Mr Benjamin Gigney.

R. Warren, of counsel, for Qantas Airways Limited T/A Qantas.

Hearing details:

2018:

Darwin.

February 5, 6.

<PR600925>

 1   Exhibit R1, attachment RJ-8.

 2   Exhibit R2, paragraph 11.

 3   Exhibit R3, paragraphs 5-7.

 4   Exhibit R4, paragraph 4.

 5   Exhibit R4, paragraph 10-11.

 6   Exhibit R1, attachment RJ-1.

 7   Exhibit R1, attachment RJ-6.

 8   Exhibit R1, attachment RJ-8.

 9   Exhibit R1, attachment RJ-12.

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13   Exhibit R1, attachment R15.

 14   Exhibit R1, paragraph 14 and attachment RJ-17.

 15   Exhibit R1, attachment RJ-22.

 16   Exhibit R 1, attachment 23.

 17   Exhibit R1, attachment RJ-27.

 18   Exhibit R8, attachment AH-2.

 19   Ibid.

 20   Exhibit R8, attachment AH-3.

 21   Exhibit R8; attachment AH-6.

 22   Transcript PN828. Mr Alves said, in relation to an unrelated earlier incident in relation to another employee that suggested some harassment of his wife, that when he complained to management he was told to drop the matter.

 23   Exhibit R1, attachment RJ-8.

 24   Transcript PN1719.

 25   Ibid.

 26   Exhibit R2, paragraph 13.

 27   Transcript PN167.

 28   Exhibit R1, attachment RJ-8.

 29   Ibid.

 30   Exhibit R1, RJ-12.

 31   Transcript PN260.

 32   Transcript PN162-163. See exhibit R2, attachment AA-1.

 33   Exhibit R2, paragraphs 15-16.

 34   Exhibit R2, paragraph 27.

 35   Exhibit R2, attachment AA-2.

 36   Transcript PN181.

 37   Exhibit R1, attachment RJ-12.

 38   Transcript PN1723.

 39   Transcript PN808.

 40   Exhibit R4, attachment AD-2.

 41   Transcript PN285.

 42   Exhibit R1, attachment RJ-8.

 43   Exhibit R1, attachment RJ-12.

 44   Exhibit R8, attachment AH-2.

 45   Transcript PN1724.

 46   Exhibit R3, paragraph 11.

 47   Exhibit R3, paragraphs 11-12.

 48   Transcript PN999.

 49   Transcript PN192. See also Mr Gigney’s written response to the first letter of allegations, Exhibit R1, attachment RJ-8.

 50   Exhibit R1, attachment RJ-12.

 51   Transcript PN1188.

 52   Exhibit R1, attachment RJ-3.

 53   Exhibit R1, attachment RJ-11.

 54   Exhibit R1, attachment RJ-15.

 55   Transcript PN797.

 56   Transcript PN798.

 57   Transcript PN809.

 58   Exhibit R2, paragraph 20.

 59   Exhibit R1, attachment RJ-8.

 60   Ibid.

 61   Transcript PN1731.

 62   Exhibit R1, attachment RJ-8.

 63   Ibid.

 64   Transcript PN1741.

 65   Exhibit R3, paragraphs 5 and 7.

 66   Exhibit R1, attachment RJ-5.

 67   Ibid.

 68   Exhibit A2, paragraph 27.

 69   Exhibit R1, attachment RJ-8.

 70   Ibid.

 71   Exhibit R1, attachment RJ-12.

 72   Exhibit R2, paragraph 15.

 73   Transcript PN1757.

 74   Exhibit R1, attachment RJ-8.

 75   Ibid.

 76   Exhibit R1, attachment RJ-5.

 77   Exhibit R2, paragraph 11.

 78   Transcript PN157.

 79   Macquarie Dictionary (5th ed.).

 80   Exhibit R1, attachment RJ-17.

 81   Exhibit R1, attachment RJ-18. These are Ms Jennings annotated versions of the further complaint based on her interview with Mr Alves.

 82   Transcript PN131.

 83   Transcript PN354.

 84   Transcript PN355.

 85   Exhibit R5, paragraph 3.

 86   Transcript PN1281-2.

 87   Exhibit R1, RJ-24.

 88   Exhibit A2, paragraph 52.

 89   Exhibit R5, paragraph 3.

 90   Exhibit R6, paragraphs 3-5.

 91   Exhibit R7, paragraphs 7-11, 13.

 92   Exhibit R2, paragraph 10.

 93   Transcript PN136.

 94   Exhibit A2, paragraphs 53-55.

 95   Exhibit A2, paragraph 56.

 96   Transcript PN139-140.

 97   Transcript PN138.

 98   Exhibit A2, paragraph 55.

 99   Transcript PN1779.

 100   Macquarie Dictionary (5th ed).

 101   See Murray v Reliable Petroleum Pty Ltd [2017] FWC 3552.

 102   Exhibit R1, attachment RJ-8.

 103   Exhibit R8, paragraph 13(h) and attachment AH-5.

 104   [2017] FWC3009.

 105   Ibid.

 106   Ibid.

 107   (1995) 62 IR 371.

 108   See B,C and D v Australian Postal Corporation T/A Australia Post  [2013] FWCFB 6191.

 109   Transcript PN295.

 110   Ibid (per Lawler VP and Cribb C).

 111   Exhibit R1, attachment RJ-17.

 112   Exhibit R8, attachment AH-2 and AH-3.

 113   Exhibit R8, attachment AH-2.

 114   Transcript PN157

 115   Exhibit R8, attachment AH3.

 116   Exhibit R1, attachment RJ-8.

 117   Exhibit R1, attachment RJ-12.

 118   Exhibit R7,paragraph 6.

 119   Transcript PN837.

 120   Transcript PN121-2.

 121   (1995) 61 IR 32 at pp. 72, 74 (McHugh and Gummow JJ).

 122   PR601251.

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