DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Jeffs
v
Qantas Ground Services Pty Ltd
(U2019/7292)

Application for an unfair dismissal remedy.

[1] Ms Jeffs made an application to the Fair Work Commission for a remedy in respect of her dismissal. The remedy sought was reinstatement into a different department to that which she previously worked in and employment with a different employer, namely Qantas Airways Limited (QAL). Her former employer was Qantas Ground Services Pty Ltd (QGS).

[2] At the time of her dismissal, Ms Jeffs was employed as a permanent part-time member of the Ground Crew in the Fleet Presentation Team. Ms Jeffs’ responsibilities included ensuring all designated areas of Qantas aircraft arriving at Perth Airport were clean and hygienic in time for the next flight. Amongst other tasks, Ms Jeffs’ role included picking up rubbish, vacuuming, cleaning the aircraft interior, and preparing the pillows. At the time of her dismissal, Ms Jeffs was on a graded return to work plan (RTWP) having sustained a knee injury in or around June 2016.

[3] Ms Jeffs was dismissed on 13 June 2019, following what QGS described as an ‘exhaustive enquiry’. As part of that enquiry, a findings letter of 9 May 2019, was authored. Findings from the enquiry included:

a) Ms Jeffs had failed to comply with directions given to her on 30 October 2018 and had subsequently left her workplace and abandoned her rostered shift without the approval of management;

b) the RTWP No.6, established by agreement that Ms Jeffs would attend for work as rostered, and work in accordance with that RTWP; 1

c) Ms Jeffs did not attend for work and work as rostered between 5 December 2018 to 21 December 2018 and failed to contact QGS during the time of her absence and give any reason for her absence. This was despite numerous attempts by QGS to make contact with her during this period;

d) Ms Jeffs failed to comply with a written direction issued to her on 20 December 2018, to make contact with Mr Richard Yeo, Regional Manager for QGS;

e) Ms Jeffs had applied for annual leave electronically on 14 January 2019 to cover the period from 16 January to 22 January 2019, and subsequently absented herself from duty for her rostered shifts during that period without first obtaining approval for that leave. Ms Jeffs had, from 18 January 2019, received specific advice that her leave had not been approved; and

f) on 23 January 2019, when Ms Jeffs attended at work, 13 ½ hours before her rostered shift time, she was spoken to about this by Mr Visser, QGS Supervisor, and addressed him in a dismissive, confrontational and sarcastic manner contrary to the Standards of Conduct Policy (the SOC Policy) and specific directions given to her on 12 June 2018, to comply with the SOC Policy. 2

[4] Mr Hardy, Head of QGS, ultimately made the decision to dismiss Ms Jeffs in light of the abovementioned findings, and having considered Ms Jeffs’ employment history which included earlier counselling, a formal written warning in 2018, and directions given to comply with lawful and reasonable management directions - and Ms Jeffs’ undertaking to comply with the same. QGS dismissed Ms Jeffs because of her consistent pattern of inappropriate behaviour and non-compliance with instructions or direction lawfully given to her by the management of QGS.

[5] Ms Jeffs was unwavering with her narrative and it was readily apparent she genuinely believed she had been wronged by QGS on multiple occasions. Her perception remained solidly steadfast while indubitable facts rose to the surface whether through oral testimony or direct evidence, such as the QGS email activity log, her signature on the RTWP No.6 and information from the staff travel record. Most telling at times was Ms Jeffs’ own evidence which revealed the very conduct that QGS was reliant upon to ground the reason for her dismissal; Ms Jeffs was hoisted by her own petard, one might say. Where there was a conflict in the evidence between what was reported by Ms Jeffs and that of the witnesses for QGS, I have preferred the evidence of QGS witnesses because it was not plagued by inconsistencies, unlike Ms Jeffs’ account.

[6] Notable in the evidence of Ms Jeffs was an air of indignation and repetitive accusation, which, at times, flowed over into Ms Jeffs’ witness statement. Ms Jeffs squarely asserted that Mr Hardy had ‘specifically accelerated and changed procedures associated with the allegations process’, which evinced, according to Ms Jeffs, ‘aggressive micromanagement abuse of his managerial position to bully’ her out of employment. It was apparent that Ms Jeffs assumed no agency for her own behaviour.

[7] I find that Ms Jeffs’ dismissal was not the result of the rogue action of a QGS Head who possessed a bent for bullying Ms Jeffs. It was a most measured response to repeated and reprehensible misconduct, carried out with an admirable amount of unyielding patience, understanding and procedural fairness.

[8] The evidence before me clearly shows that there was a valid reason for Ms Jeffs’ dismissal. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and must be treated as a matter of significance in the decision making process. Having taken into account all the factors set out in s 387 of the Fair Work Act 2009 (Cth) (the Act), in the Peko Wallsend 3 sense of ‘taking into account’, I have concluded that Ms Jeffs’ dismissal was not harsh, unjust or unreasonable. On that basis, the application is dismissed. An Order to that effect is published concurrently with this decision.4 A fulsome explanation of my reasons follow.

BACKGROUND

[9] The background to this matter is extensive. However, the detail presented has been provided with a view to accurately portraying the employment relationship between Ms Jeffs and QGS. In saying that, I note that a letter of 21 August 2017 from Mr Hardy to independent psychiatrist, Dr Terace, refers to Ms Jeffs having made 30 internal grievances over the past six years, two external claims of bullying to the Commission, and one underpayment claim to the Commission. 5 It would therefore come as no surprise that not all of these grievances have been traversed in these reasons for decision. However, those that have bearing on the context of this application are traversed.

QGS personnel referred to in the decision

[10] The following employees of QGS are referred to in the decision. To assist the reader, they are:

a) Mr Hardy - Head of QGS;

b) Mr Yeo - Regional Manager QGS, based at Perth Airport;

c) Mr Visser - QGS Supervisor;

d) Mr Davies - Ground Service Coordinator;

e) Mr Dragicevic - Operations Manager – Freight;

f) Ms Barber - Case Manager, of Case Management Support;

g) Ms Thirumale - Senior Consultant of Case Management Support;

h) Ms White - QGS Training Coordinator;

i) Mr Parker – QGS Shift Supervisor;

j) Ms Fitzgerald - QGS Ground Services Manager; and

k) Ms Whitmore - QGS and QAL Manager Equal Employment Opportunity.

QGS structure and operations

[11] QGS is a wholly owned subsidiary of QAL, sitting within Group Operations Services. 6 It provides ‘below the wing’ personnel support to QAL, including ground handling operations.7 Ground handling operations comprise of:

(a) Ramp Services – for example, towing with pushback tractors, lavatory drainage, and water cartage;

(b) Baggage Services – for example, loading and unloading passenger luggage and other cargo;

(c) Fleet Presentation – for example, cleaning operational aircraft;

(d) Freight Services – for example, loading and unloading freight; and

(e) Passenger Services – for example, marshalling passengers to board aircraft or commissionaires who assist passengers in wheelchairs. 8

[12] Mr Hardy gave evidence that QAL manages the operations at the airports (exception of QantasLink in Sydney), whereas QGS manages all employment related matters for its employees, including performance management, attendance, disciplinary matters, pay and leave. 9

[13] Mr Hardy stated that due to the nature of aircraft operations, the Fleet Presentation Team generally only have between 10 to 21 minutes to complete their tasks on any given domestic aircraft. 10 If the tasks are not completed in the designated timeframe, inevitably the next flight will be late or the aircraft will operate in a state that QAL considers to be unacceptable.11

[14] QGS employees at the Perth Airport ultimately report to Mr Yeo, who reports to Mr Hardy in turn. 12 However, on a day to day basis, QGS employees are supervised and managed by Leading Hands and Ground Services Operations Team Managers (GSOTs).13 The GSOTs are responsible for ‘on the ground’ operational management throughout the day.14

[15] Ms Jeffs reported directly into Mr Visser. Mr Visser gave evidence that he was not responsible for making decisions on what work needed to be performed and at what time, as the instructions came out of the QAL hub in Sydney, having been determined by a group of employees referred to as the ‘planners’. 15 The planners allocated tasks through an electronic system known as the GUI.16 In practical terms, the planners had knowledge of the various aircraft arrivals and departures on the day, what time these occurred and to which bay of the airport they were to be allocated.17 Based on that information, the planners allocated staff to perform duties through the GUI system.18 The GSOTs, referred to previously, were responsible for making sure that the plans allocated by the planners were implemented and they dealt with last minute operational changes were dealt with.

[16] In addition to the GSOTs, QAL employs Ground Service Coordinators, or GSCs, who were also known as ‘Level 8s’. The Level 8s operated as the eyes and ears of the GSOTs on shift and could access the full GUI. They also assisted in the operational management of each day. 19

[17] Regarding the GUI, the Fleet Presentation staff did not have access to the full GUI system, but could use computers in various locations (including the lunchroom), where they could retrieve their assigned tasks through software referred to as the Staff Notification System (SNO). Mr Visser gave evidence that, throughout each shift, staff use these computers to log into SNO, and SNO advised them of the details of their next task. 20 In addition to SNO, was the Flight Information Display Screen (FIDS).21 FIDS was an operational information display that provided staff with an overview of various aircraft movement.22 Hence, if an aircraft was cancelled this could be seen on FIDS and then the staff member could check SNO for a new task allocation.23

[18] Access to rosters was provided to the Fleet Presentation staff through an online system called ‘webroster’. 24 Employees accessed webroster through the QGS internet, and were required to do so, so that they knew when they were to work.25 At a minimum, employees had access to rosters two weeks in advance, but ordinarily employees would have access to rosters four weeks in advance.26 Webroster was the only means by which QGS disseminated rosters for Fleet Presentation staff, and all staff knew that they were required to check webroster so that they knew when they were required to attend for work.27

A history of Ms Jeffs’ employment with QGS

[19] Ms Jeffs commenced employment with QGS on 20 June 2011.

[20] In her application, Ms Jeffs referred to a sexual harassment complaint she had made against another employee and being required to work with that employee. 28 The complaint was levelled at a Mr Haron. Ms Jeffs had alleged that Mr Haron was staring at her. The complaint was investigated, and it was determined that there was insufficient evidence to substantiate the complaint.29 Ms Jeffs lodged a workers’ compensation claim regarding symptoms she attributed to her concerns regarding Mr Haron, but the claim was denied by QGL’s insurer.30

[21] However, in or around 26 November 2013, Ms Jeffs was certified as having a medical restriction by her treating General Practitioner, a Dr James Setiwan, to ‘not be tasked with the person that stares at her.’ At or about that same time, an independent psychiatrist report also suggested accommodating the restriction, if possible. 31

[22] Mr Hardy stated that, at the time, QAL and QGS management and resourcing hub were given explicit instructions by Mr Yeo not to task Mr Jeffs with Mr Haron. 32 There were inadvertent clashes where both were allocated to the same task.33 In his evidence, Mr Hardy spoke of how operationally challenging accommodating the restriction was.34 However, when a clash occurred, QGS would contact the resource hub and either Ms Jeffs or Mr Haron would remove themselves from the task, or would be removed.35

[23] According to Mr Hardy, in or around April 2015, Mr Haron transferred to another work location for 12 months and thereafter returned as Leading Hand. 36 Ms Jeffs at the time had a knee injury, however she returned in June 2017 to her pre-injury duties and QGS considered it necessary to assess whether Ms Jeffs was able to perform the inherent requirements of her role.37 Mr Hardy stated that Dr Terace, an independent psychiatrist, had previously assessed Ms Jeffs in December 2014 and April 2015.

Bullying application of June 2017

[24] In June 2017, Ms Jeffs filed an application in the Commission for an order to stop bullying. 38 Ms Jeffs had named Mr Hardy, Mr Yeo, Mr Parker and Mr Visser as the persons against whom bullying was alleged.39 Mr Yeo gave evidence that a conference was conducted. The matter, from all accounts, appears to have been resolved.

The medical enquiries

[25] Between August and November 2017, following the conference, Ms Jeffs was stood down on pay while QGS completed two lines of enquiry to ascertain her fitness for work as a Ground Crew Member. 40 The first with the Psychiatrist, Dr Terace, and the other with an Orthopaedic Surgeon, regarding Ms Jeffs’ knee.41

[26] Mr Hardy gave evidence that on or about 21 August 2017, he wrote to Dr Terace requesting his assistance in determining Ms Jeffs’ current and ongoing fitness for work. 42 The letter to Dr Terace outlined Mr Hardy’s observations and concerns, namely, that there were a large number of complaints involving Ms Jeffs and that she may have an underlying medical condition, which was impacting her ability to perform her role.43

[27] Regarding the large number of complaints, Mr Hardy referred to Ms Jeffs having lodged in excess of 30 internal grievances over the past six years of her employment as well as two external claims of bullying in the Commission and one underpayment claim in the Commission. 44

Meeting on 6 December 2017 following Ms Jeffs’ return to work after the medical enquiries

[28] Mr Yeo gave evidence that after the medical enquiries, he invited Ms Jeffs to attend a meeting on 6 December 2017 to discuss the company’s expectations about Ms Jeffs’ performance, responsibilities and conduct. 45 Ms Jeffs was issued a letter of direction of 6 December 2017. Mr Hardy explained that the meeting was to discuss next steps and expectations following the completion of the medical enquiries.46

[29] It was Mr Hardy’s evidence that, in addition to issuing Ms Jeffs with the letter of 6 December 2017, he read out its contents, informing Ms Jeffs:

a) she was to return to work from 11 December 2017;

b) she was to be on a gradual RTWP, including further off-site and on-the-job physiotherapy assessments to assist her with a full eventual return to pre-injury duties, with her knee restrictions being over the 3 month period from December 2017 to March 2018;

c) it was the company’s view that a Baggage Functional Assessment was not to be conducted until the reported weakness in her knee had resolved and she was fully fit for work. Although she had expressed an interest as a Push Back Driver, this required the successful completion of a Baggage Functional Assessment;

d) she was required to follow both the verbal and written instructions given to her;

e) she was required to treat other staff with courtesy, dignity and respect;

f) she was not to speak to any management in a disrespectful manner or tone, including insisting that the direction or instructions be in writing before complying;

g) she was at all times to notify her Leading Hand if she was delayed to an assigned task and provide the reasons for any delay;

h) she was expected to comply with any applicable uniform or dress policies, and a direction not to wear denim shorts and/or non-prescribed “beanies” or hats;

i) she was no longer subject to a medical restriction that required her to be separately rostered from Mr Haron, as the assessment of the IME Psychiatrist stated that all previous mental health medical conditions had been resolved;

j) she was expected to work as rostered in the absence of any medical restriction;

k) she was required to meet performance expectations;

l) if she wished to raise any grievances, that she communicate these in a respectful and professional manner, and that disrespectful behaviour toward other staff would not be tolerated; and

m) if she failed to comply with any of her obligations, it may result in disciplinary action up to an including the termination of her employment. 47

[30] In response to the letter of direction from Mr Hardy, of 6 December 2017, Ms Jeffs provided a medical statement from her General Practitioner that stated, ‘Amanda would like not to be tasked together with Mr James Haron’. 48 Mr Hardy stated that, given the note from the General Practitioner did not constitute a medical restriction and there were significant rostering difficulties associated with such request, Ms Jeffs’ preference was not accommodated.49

The Coffee Shop Incident – 23 January 2018

[31] Mr Yeo gave evidence that on 23 January 2018, at around 11:00am, he overheard a discussion between Ms White and Mr Visser. During the conversation, he heard Ms White say she had expected Ms Jeffs in the training room at the commencement of her shift at 11:00am to complete some online compliance training, but she had not arrived. 50 Mr Yeo stated that Mr Visser made attempts to contact Ms Jeffs on her mobile, but did not receive any response from her.51 Mr Yeo noted that at around 11:50am on that same day, Ms White informed him that Ms Jeffs had still not arrived for the training.52 Mr Yeo’s evidence was that by this time Ms Jeffs had been missing from the training room for almost an hour without notification to, or the authorisation of, any of her managers.53

[32] Having been told by another co-worker that Ms Jeffs had been seen in Hudson’s Coffee Shop, he immediately departed for the shop. 54 The two had a conversation in which Mr Yeo said he asked Ms Jeffs if she was okay and she went on to refer to her eyes looking puffy, swollen, watery, bloodshot and her nose drippy. Mr Yeo stated that Ms Jeffs exclaimed ‘I AM DYING… I have hay fever’. When asked if she was too sick to work, Mr Yeo stated that Ms Jeffs responded in a sarcastic tone ‘No! I am out here taking my tablets!’ Mr Yeo gave evidence that he asked Ms Jeffs to please come and see him once she had finished taking her tablets as he was not going to continue the conversation ‘out here’.55

[33] As instructed, Ms Jeffs attended Mr Yeo’s office. 56 Mr Yeo reported that he said to Ms Jeffs that it was one hour after her start time and if she was too sick to be at work, he was happy for her to go home or if fine to continue with her shift, she was required in the training room to complete some courses.57 Mr Yeo referred to Ms Jeffs as becoming agitated at this point and argumentative about him having approached her in the coffee shop. The discussion continued with Ms Jeffs claiming that Mr Visser had seen her swipe in.58 Mr Yeo stated that he informed Ms Jeffs that he was not going to split hairs and if she was well enough to be at work she was to please see Ms White to complete some online training courses.59 Mr Yeo stated that Ms Jeffs responded ‘clearly you are trying to split hairs’ and then proceeded to storm off.60 After the incident, Mr Yeo sent an email to Mr Hardy and Ms Whitmore reporting what had occurred.61

Investigations following the coffee shop incident

[34] On receipt of Mr Yeo’s email, Mr Hardy stated that he decided that Ms Jeffs’ conduct needed to be investigated. 62 He assigned the matter to Ms Fitzgerald to investigate.63

[35] Mr Hardy went on to state that Ms Jeffs thereafter raised a formal complaint about Mr Yeo’s conduct toward her in the coffee shop. 64 Ms Jeffs reduced her complaint to writing; in part, it stated:

There was only one aircraft to be serviced from 11:00 to 12:00, and I went outside to wait for it. As soon as I got outside I felt a hay fever attack start. I sat down near bay 15, as the arrival was listed on bay 16. The attack got worse and worse, and I went to my locker to get my eye drops. I used the eye drops and returned to the area near bay 15.

On Jan 23 2018 at 11:50am I was sitting out in the public terminal with 3 other staff members. We were seated in the middle of Hudson’s Coffee in Terminal 4. I had been there for about 15 minutes when Richard Yeo apparently hurriedly approached me. I did not see him until he was standing next to me. He appeared to be very tense, and his verbal communication confirmed this assessment.

Richard Yeo asked me, quite abruptly what I was doing. (I was sitting in the middle of Hudson’s Coffee in Terminal 4, with an empty take away coffee cup in font of me, filled to the brim with used tissues.

Startled at his demeanour, I stated the one thing that might not have been completely obvious; I was suffering/recovering from a hay fever attack. He then asked me if I intended on doing any work that day, very rudely, within earshot of not only my 3 other co-workers, but the general public in the coffee shop surround us on all sides.

His body language indicated he had intent. His verbal was rude, short and not unlike something you would say to anyone, you were set on intimidating or harassing them publically [sic].

Upon my response regarding the allergy attack, I noted to observe my appearance. (puffy red swollen eyes, and easily my speech, scratchy and requiring constant throat clearing) Richard’s response was that he was not a doctor, in a very rude and harassing way. He then continued on with this rant, in front of all these people mentioned previously.
…

…went directly to Richard’s cubicle. Richard’s demeanour hardly changed, and he started speaking to me again in a very rude tone, at one point stating that if I was having hay fever attack that I was not fit to be at work, and maybe I should go home.. 65

[36] Mr Hardy stated that he responded to Ms Jeffs’ complaint by informing her that he had received a report about her own conduct in the coffee shop, which was going to be investigated and that he had assigned both her formal complaint against Mr Yeo and the report about her own conduct to Ms Fitzgerald to manage. 66

[37] Mr Hardy explained that he assigned both investigative processes to Ms Fitzgerald, as they arose from the same factual circumstances and she was independent, given she was not a manager within the QGS management team. 67 Ms Fitzgerald was assigned to make findings of fact in both processes in accordance with the SOC Policy. Mr Hardy said that it would be his role to determine the appropriate outcome.68 Ms Jeffs’ observation in her witness statement was that Ms Fitzgerald sat at a desk right beside Mr Yeo in the very back of the office area.69 However, I consider that this point has no bearing on the findings later reached.

[38] Ms Jeffs emailed Mr Hardy on 21 February 2018, regarding the lack of communication she had received about her grievance concerning the coffee shop incident. 70 Mr Hardy stated that he replied by apologising for the delay and informed Ms Jeffs that the company was making additional enquiries about a number of other reports which had been received about her conduct.71 In his email to Ms Jeffs, Mr Hardy foreshadowed that Ms Jeffs would receive an invitation to an informal meeting with Mr Yeo to address four additional issues the company had with her performance.72

[39] In the findings letter of 12 June 2018, issued after the investigation had been conducted into Ms Jeffs’ conduct regarding the coffee shop incident, it stated Ms Jeffs had informed Ms Fitzgerald:

At the Response Meeting, you advised me that you signed on for duty at around 10.54am for a shift that commenced at 11.00am (Sign On). You confirmed that you went to Hudson’s Coffee Shop but indicated that you did this after doing certain functions such as printing off your FIDS and tasks; going to the bus stop; and collecting your eye drops from your locker.

A number of witnesses have confirmed that you joined them for coffee at the Hudson’s Coffee Shop. This includes Derek Statze (Airline Services Operator), Lisa Kidman (Airline Services Operator) and Dzevad Hodzic (Senior Airline Services Coordinator). One of the witnesses recalls that this was at around 11.00am.

Based on your own evidence, I accept that you may have performed certain ancillary functions following Sign On such as printing off your FIDS and walking to the bus stop. Relevantly, however, you have confirmed that you did not attend the Training Department; you did not present yourself to a Leading Hand to confirm whether there were any allocated tasks for you; and you did not perform any Fleet Presentation tasks prior to deciding to take a break and have a coffee at Hudson’s Coffee Shop. 73

[40] The findings letter of 12 June 2018, also addressed, amongst other allegations, that Ms Jeffs did not notify any managers that she would be late attending assigned training in the training room. In the letter Ms Fitzgerald writes:

In your Written Response, you state: “There was no training assigned or tasked verbally or in the online staff communication system.”

In the Response Meeting, you indicated to me that it was your view that nobody cared where you were. You also indicted to me that it was your view that you did not have to inform anyone about your whereabouts because you simply ‘go where I think I am needed.’

[41] According to Ms Fitzgerald’s enquiries, her review of the ‘Workday’ records indicated that as at the end of Ms Jeffs’ shift on 22 January 2018, she was yet to complete at least two of the three online training courses. 74 Further, having interviewed Ms White, Ms White indicated to Ms Fitzgerald that she advised Ms Jeffs that she would be required to attend the Training Department on 23 January 2018 at Sign On to complete any training that she was unable to complete on 22 January 2018.75

[42] In Ms Jeffs’ witness statement, she gives an account of what occurred when required to undertake compliance training. 76 Ms Jeffs’ evidence was:

As all Qantas Ground Services employees are subject to renewing their training on a preset schedule, for each aspect of their job within the Company, it would only be normal to undergo all the online training that I had missed. To include this in this letter is just pointless, as it is routine to have to do online compliance training. However, as I progressed though the courses, and finished them, and the instruction to report to Maree White, at the start of my shift, was unnecessary, as the online courses I was instructed to do had all been completed, and I was not instructed to do any others. The day after I finished all the courses as instructed, (a two day effort) I clocked in for my shift and was asked by a leading hand to assist them with tasks. I (as I always do) complied with this request. Upon my return to the hub, I was bombarded with management, brashly and rudely regarding my not reporting to Maree White that morning. As there was no more training for me to actually complete, there was no reason for me to report to Maree White that morning. I actually did what I was supposed to do, my job. 77

[43] Mr Hardy considered the findings of Ms Fitzgerald’s investigation into Ms Jeffs’ conduct at the coffee shop and arrived at the view that Ms Jeffs had breached company policy. 78 However, he determined that there were mitigating factors including a lack of clarity regarding the allocation of tasks to her and decided not to issue Ms Jeffs with a warning.79 He did however reissue to Ms Jeffs the letter of direction he had previously provided of 6 December 2017, the aforementioned findings letter of 12 June 2018 and a separate outcome letter of 12 June 2018.

[44] The outcome letter of 12 June 2018 included the following excerpt:

Over the last few years, a considerable amount of effort has been spent by my managers and myself trying to facilitate a successful working relationship with you. Most recently, this included issuing you with the Directions which imposed certain obligations on you in an attempt to address ongoing concerns around your failure to attend tasks on time; your failure to notify Leading Hands where you were; and the manner in which you interact with staff.

I have adopted the Findings reached by Pauline that (amongst other things) you were issued a direction to attend a task at the Training Department on 23 January 2018; that you failed to attend that task; that you did not notify the Training Department about your inability to attend the task; and that you were unable or unwilling to respond to a phone call and text message from your supervisor when he was trying to ascertain your whereabouts.

It is my observations that the Findings around your conduct on 23 January 2018 are not inconsistent with feedback you have been given informally over a number of years regarding your behaviour in the workplace. Namely (but not exhaustively):

•  It is not for you to decide which tasks you should and should not compete based on your assessment of the urgency or importance of the functions you are being asked to perform. Rather, you are expected to comply with all reasonable and lawful directions of your supervisors;

•  You must attend to work tasks on time and as allocated to you;

•  If you are unable to attend to a task, you are required to advise your Manager, Supervisor, Leading Hand and/or the appropriate person about your whereabouts; and

•  You are required to respond to queries or communications made to you by a Manager, Supervisor, Leading Hand and/or appropriate person regarding work related issues (including if they ask where you are).

The Directions and Guidelines are attached to this letter. You are required to review the Directions and Guidelines again so that you understand your obligations under these documents. If you have any uncertainty around your obligations under the Directions and/or the Guidelines, you are to advise me as a matter of urgency.

[45] As observed, the outcome letter of 12 June 2018 attached a copy of the Perth Local Important Notice (Employees on Restricted or suitable Duties) Guidelines dated 7 May 2018 (Guidelines). The Guidelines set out the expectations for employees on restricted duties or workers compensation. 80 On 10 May 2018, Mr Hardy instructed Mr Yeo to publish a copy of the Guidelines on the QGS intranet page.81 There are several grammatical errors within the Guidelines document, nevertheless it states:

1. On commencement of each shift, prior to undertaking any task, activity, or break staff member is required to report directly to the GSC

This process must be undertaken for each and every shift while on restricted duties

2. If the GSC is not at his/her desk employee to wait by the GSCs desk for his/her return or go to see the shift GSOT/ACEM Manager for the allocation of a task

3. The GSC will allocate employee task/s for either whole shift or part of employee’s shift. The employee will be required to complete those allocated tasks

4. If the GSC allocates employee a task for part of shift the employee is required to complete the task and return back to notify the GSC of task completion; GSC will allocate additional tasks

5. Employees are not permitted to determine tasks of what Leading Hands they will work with, employees will be directed by GSC in accordance with their certified medical restrictions or return to work plan…. 82

[46] With regard to the document that Ms Jeffs referred to as the ‘Local Notice (Employees on Restricted or Suitable Duties)’, Ms Jeffs stated that she had not seen it, and did not sign a ‘read and sign’ related to it.

The four additional issues with Ms Jeffs’ performance

[47] Mr Yeo sent an email to Ms Jeffs on 8 March 2019, advising her of an informal meeting on 14 March 2018. 83 Later in the day on 8 March 2019, Ms Jeffs sent an email to Mr Hardy, in which she raised concerns about meeting with Mr Yeo while having a grievance against him, and requested alternative management conduct the meeting.84 Ms Jeffs gave evidence that she emailed Mr Yeo informing him that because of the formal investigation (regarding the coffee shop incident), him overseeing the meeting was a conflict of interest. On 10 March 2019, Mr Hardy responded to Ms Jeffs’ email dated 8 March 2019, noting that while there was an outstanding grievance this did not prevent Mr Yeo from having an informal discussion with her about his expectations of her in his role as her manager.85

[48] Ms Jeffs attended the scheduled meeting on 14 March 2019 with her support person. She gave Mr Yeo a letter addressing the four additional issues that had been raised but otherwise did not participate in the meeting. 86 Ms Jeffs’ evidence was that she walked into the meeting, sat down, was introduced to the company witness, she waited for Mr Yeo to start the conversation, and at that point she ‘kindly stopped him, informing him again that if he was conducting the meeting with me, while I had a formal and currently investigated complaint against him, specifically regarding his communication skills, to oversee this meeting was a conflict of interest’.87 Ms Jeffs stated that she slid the letter in the envelope across the table directly to Mr Yeo, and got up and left.88

[49] A second informal meeting was scheduled but Ms Jeffs was sick, so it was subsequently re-scheduled. 89 Ms Jeffs attended the rescheduled meeting and again provided Mr Yeo with a letter.90 Ms Jeffs gave evidence that prior to the re-scheduled meeting ‘she took the time to respond accordingly, reminding them that due to the still ongoing investigation against Richard Yeo, and his communication skills, that this still was a conflict of interest.91 Ms Jeffs gave evidence that she attended the meeting, sat down, and slid the same letter (the letter she provided to Mr Yeo at the meeting on 14 March 2019) across the table to Mr Yeo.92

[50] Ms Jeffs’ evidence was that there were three meetings with Mr Yeo where she slid over a letter responding to the four issues, however at the third meeting, when she got up to leave, the company witness turned to her and is purported to have said that if Ms Jeffs left there would be serious consequences. 93 Ms Jeffs stated that she was unable to recall if she responded to the company witness, but she continued to get up from the chair and leave.94

[51] As a consequence of her conduct, Mr Hardy issued Ms Jeffs with a formal warning on 16 April 2018, for failing to follow the written direction to participate in the second meeting with her Manager. 95 Ms Jeffs appealed the formal warning and was later informed by Mr Hardy’s Manager that the appeal had not been upheld.96 Ms Jeffs gave evidence that her requests for other managers to oversee the meeting were ignored, even after Mr Hardy was involved and could have easily overseen the meeting himself.97 While Mr Hardy gave evidence at hearing that another manager could have overseen the meeting, he considered it appropriate for Mr Yeo to conduct the meeting because he was her manager.

[52] A third meeting was scheduled for the four additional issues to be discussed, but never eventuated due to medical appointments and confusion – Ms Jeffs’ confusion about the allotted date. However, a fourth informal meeting was scheduled, Ms Jeffs attended, and the four additional issues were discussed. 98 Mr Yeo emailed Mr Hardy about the meeting and noted:

a) following reports that Ms Jeffs would not turn up to tasks she was expected to be working on, Ms Jeffs was instructed to get her tasks on a day to day basis from the shift Ground Services Coordinator or shift manager when she attended for work;

b) Ms Jeffs may be required to work with Mr Haron when their teams were working on the same plane clean together, as there was no longer any valid medical reason for Ms Jeffs to not work with Mr Haron. Ms Jeffs disagreed that this was required of her;

c) following receipt of a report, on or around 3 February 2018, Ms Jeffs sat on an aircraft while it was in tow by Engineering from the International to the Domestic terminal, Mr Yeo confirmed that this incident was a serious breach of local area safety procedures issued by the Perth Engineering team. However, a decision was made to not take it to a formal investigation but rather to manage it informally at this stage; and

d) Ms Jeffs had previously refused to read and confirm she had read three different local operational notices. Ms Jeffs stated that she believed the documents that she was being asked to sign were incorrect. 99

Bullying application 2018

[53] In or around April 2018, Ms Jeffs filed an application for an order to stop bullying. Mr Hardy and Mr Yeo were the named persons against whom bullying was alleged. While an amended application was filed in July 2018, 100 the matter was resolved at conference.

Return to work plan No. 5 and the system of work

[54] Ms Jeffs began reporting to Mr Visser in or around 12 July 2018. 101 At that time, Mr Visser said that he was aware that Ms Jeffs had a knee injury and was working in accordance with a graded RTWP as part of a workers’ compensation process.102 The RTWP was reviewed, amended and agreed periodically, and was managed by an external provider called ‘Work Focus’. A representative from Work Focus would attend conference calls with Ms Jeffs, her doctor and QAL’s rehabilitation coordinator, Mr Thackray, to ascertain Ms Jeffs’ capacity for work, and document the RTWPs based on the agreed medical information.103 Mr Visser gave evidence that he would meet with Ms Jeffs to work through the new RTWP, and it would be signed by her. Once it was complete, he would then send the RTWP to operations management, and generally communicate with operations management about Ms Jeffs’ capacity for work so that the planners and relevant personnel understood the situation.104

[55] Mr Visser stated that in October 2018, Ms Jeffs was on RTWP No. 5 . This RTWP had a couple of inaccuracies which Ms Jeffs amended, and Mr Visser’s evidence was that he informed Ms Jeffs that the RTWP would be effective with those corrections. 105

[56] For Fleet Presentation employees working on a RTWP, generally their work is not allocated by the planners via the GUI in the same way as other employees. 106 On the GUI they are allocated to ‘light duties’, which is referred to as being put on a ‘static line’.107 This status also appears in the SNO. It then rests with the GSCs/Level 8s on shift to manage the particular person and allocate them duties in accordance with their capacity to work.108

[57] According to Mr Visser there were some instances where an employee working in accordance with a RTWP would be tasked with duties through the GUI/SNO rather than being placed on the static line. 109 Mr Visser stated that this might happen where there was a new planner working who was unfamiliar with the process.110 Mr Visser said this was the reason why Fleet Presentation employees working on a RTWP were required to report to the GSC at the start of each shift to be advised of their work allocations.111 In relation to Ms Jeffs, Mr Visser gave evidence that this requirement had been previously explained to Ms Jeffs, including by way of a letter from Mr Hardy on 12 June 2018, which had the Guidelines attached to it.112

The events of 30 October 2019

[58] It was Mr Visser’s evidence that Ms Jeffs was rostered to work on 30 October 2018 at 6:00am. By 8:30am he had been approached by the two GSCs on duty, a Mr Davies and a Mr Sulic. They informed him that the planners had been trying to contact Ms Jeffs to advise her to go to Bay 15 to help on an aircraft but were unable to contact her. 113 The two GSCs informed Mr Visser that they had been trying to contact Ms Jeffs to no avail.114

[59] After the conversation with the two GSCs, Mr Visser tried to contact Ms Jeffs at 8:38am on her mobile. 115 He left a voice message for her to contact him, but she did not respond.116 Mr Visser said that at 8:45am he went to the hanger as this was where the GSCs believed she was. Mr Visser’s evidence was that Ms Jeffs could often be located here because that was where the pillows and restocking tasks were performed.117 Ms Jeffs was there.118

[60] Mr Visser gave evidence that he had a conversation with Ms Jeffs and said words to the effect of ‘it is in your RTWP that you need to report to the Level 8s for task allocation’. 119 Mr Visser reported that Ms Jeffs explained the process that she undertook in the morning, which was to check the FIDS, see the crews that were on, and then plan her day around that. Mr Visser emphasised that the GSCs were in contact with the planners and she may be required on a particular aircraft to assist with work that needed to be performed within her restrictions.120 Mr Visser’s evidence was that Ms Jeffs commented that there was never a Level 8 on and ‘the GSOT does not look at the fleet planner and my return to work plan is wrong’.121 Mr Visser’s evidence was that he informed Ms Jeffs they had discussed the changes and he would speak to Mr Thackray to have the RTWP changed.122

[61] Regarding the availability of Level 8s, Mr Visser gave evidence that it was incorrect of Ms Jeffs to say there was never a Level 8 on. However, there were times, for example between 5:00am – 7:00am with the first wave of aircraft, where the Level 8s or the GSOT might be on the ramp to ensure that the operations were running smoothly and were therefore not at Terminal 4. 123 However, in those circumstances they had a phone by which they could be contacted, or the employee on restrictions was to wait in the lunch room to be allocated tasks by the GSC or GSOT.124 Mr Visser stated that for operational and safety reasons a staff member was not permitted to go off on her or his own direction and find something to do.125

[62] According to Mr Visser, at approximately 10:30am, Ms Jeffs returned to the Ground Operations office in Terminal 4 to notify Mr Davies that she had been tasked on the GUI on an aircraft by the planners. Mr Visser said that he heard Ms Jeffs state to Mr Davies that this was against her RTWP. Mr Visser recollects that Ms Jeffs voice was raised and she sounded frustrated. 126 Mr Visser stated that Mr Davies called him over to the conversation.127

[63] Mr Visser’s evidence was that he explained to Mr Davies that Ms Jeffs should not have been tasked as employees on light duties should be placed on the static line on the planner and are to report to the Level 8 for tasks that are within their restrictions. 128 Mr Visser stated that Ms Jeffs raised her voice when talking to Mr Davies and said words to the effect ‘no one knows what’s going on and the process changes from day to day’. 129 Mr Visser reiterated calmly to Ms Jeffs the point about seeing the Level 8 on shift commencement.130 To which Ms Jeffs replied that the Level 8 was not there when she started at 6:00am.131 Mr Visser’s evidence was that Ms Jeffs was now speaking loudly and she was agitated.132 It was Mr Visser’s account that Ms Jeffs walked away from the conversation towards the lunchroom while saying words to the effect ‘we need to sort it out as this isn’t working’.133 Ms Jeffs is said to have returned to Mr Visser’s desk after about 5 minutes and asked him ‘have you even read my return to work plan?’.134 Mr Visser said that he confirmed with Ms Jeffs he had.135

[64] Mr Visser stated that Ms Jeffs then said words to the effect of ‘you’re changing my return to work plan and it is stressing me out, I’m going home’. 136 Mr Visser said that he replied, ‘Amanda would you like to discuss this further?’ but Ms Jeffs walked away without acknowledging his question.

[65] Ms Jeffs’ account was not remarkably different to that provided by Mr Visser regarding her premature departure from the workplace. Ms Jeffs’ evidence was that Mr Visser approached her in Bay 13 (not Bay 14 as Mr Visser stated) and informed her, ‘while holding me back from assisting with a tasked aircraft, that he was going to change my RTW to suit “them”’. Ms Jeffs continued:

As this continued behaviour from Jacob Visser continued upon my return to the office, my ability to function at work under such harassment diminished, and I simply said to everyone in the office, “Let me know when you have read and sorted out my RTW plan, and I will return then”. I then, in full view of all the office staff, clocked out, and left the workplace. 137

[66] At hearing, Ms Jeffs expressed her indignancy that no in local management made any attempt to contact her to see if she was okay for a period of two weeks. She stated that she awaited contact from local management to advise her that they had read, and sorted out their lack of knowledge about the current RTWP, as set out by procedure, policy and law.

[67] Mr Visser’s evidence was that there had been no changes to RTWP No.5 save the amendments made and all tasks allocated were consistent with it.

[68] Mr Jeffs called in sick for her rostered shift on 31 October 2018 and on 1 November 2018, provided a workers’ compensation medical certificate saying she had no capacity for work due to stress. 138 Ms Jeffs was off for the remainder of November 2018 due to medical reasons and not being rostered on.

Return to Work Plan No. 6

[69] Mr Visser gave evidence that on 4 December 2018, Ms Jeffs attended a medical case conference with Mr Thackray and Work Focus, at which RTWP No.6 was agreed with her. Mr Visser’s evidence was that Ms Jeffs signed the RTWP on that day. 139 Mr Visser said that RTWP No.6 was provided to him by email on 5 December 2018, he signed it and provided it to the GSOTs and planners.140 He did not discuss RTWP No.6 with Ms Jeffs because she was not at work on that day.141

[70] Following 5 December 2018, Mr Visser understands that Ms Jeffs returned to work on 21 December 2018. Therefore, Ms Jeffs was absent from work without authorisation, for her rostered shifts between 5 December and 21 December 2018. 142 The authentication logs for the use of webroster showed that Ms Jeffs had logged into webroster on 7 December 2018 at 2:18pm and thereafter logged out at 2:40pm.143

[71] On 20 December 2018, Mr Yeo sent Ms Jeffs a written direction to make contact with him. He sent the email to all known email addresses for her and sent her a text message on 21 December 2018. While Ms Jeffs may rely upon not having had access to her QGS email account at this time, the Email Activity Log 144 showed that on 20 December 2018, Ms Jeffs had accessed emails earlier on that day.

[72] On 27 December 2018, Ms Jeffs applied for leave from 28 December 2018 until 15 January 2019. It was accepted that Ms Jeffs’ mother, who resides in Canada, was unwell and the leave was approved. 145

[73] On 14 January 2019, at around 2:22pm, Ms Jeffs submitted an annual leave application for an extra one week’s leave. 146 The leave request arrived via the SHR ADMIN email address that the supervisors use, including Mr Visser, and on the QGS staff internet page. Ms Jeffs was rostered to work on 16, 17, 20, 21 and 22 January 2019, but did not attend.147 Mr Visser stated that he was on leave when Ms Jeffs’ request came in, but having returned on 16 January 2019, he and Mr Yeo instructed that the leave was to be declined as it was not accompanied with any information as to why the leave was required.148

[74] It was Mr Yeo’s evidence that on 14 January 2019, he was in the Administration Office with Mr Watts, who, from all accounts, appeared to be the partner of Ms Jeffs. At about midday, he overheard Mr Watts inform the Ramp Manager that he was leaving to collect Ms Jeffs from the airport as she was arriving back in Perth from Canada. 149

[75] Enquiries were made regarding Ms Jeffs’ staff travel details regarding her flights from Canada to Perth. 150 The staff travel record indicated that Ms Jeffs travelled from Canada to Sydney on 13 January 2019, and from Sydney to Perth on 14 January 2019 scheduled to arrive at 12:20pm.151

[76] Mr Yeos’ evidence was that leave applications are sent to an email group that includes him, Mr Visser and some others, including Ms Katselas - who generally processes the applications. 152 On or about 16 or 17 January 2019, Ms Katselas spoke to Mr Yeo about Ms Jeffs’ application and asked whether he had heard from Ms Jeffs, and Mr Yeo informed her he had not.

[77] Mr Visser gave evidence that on 18 January 2019, he emailed Ms Jeffs to send her a letter of direction to contact him and he also sent her a text message asking that she check her email. 153 Ms Jeffs called Mr Visser back on that same day and. after initially discussing her health status, Ms Jeffs purportedly said to the effect of, ‘I don’t know what the issue is I am on annual leave and I have sent the application in’.154 Mr Visser stated that he advised Ms Jeffs that her leave had not been approved because of the late notice and that there had been no contact to explain the reason for the leave.155 The evidence of Mr Visser was that the conversation continued but he was unable to interject as Ms Jeffs spoke over the top of him.156 Ms Jeffs informed him to the effect that she would not have been able to call because she was in Canada, and that he should never email her private email or contact her on her private phone when she is on leave; she would never contact him similarly by such means.157 Mr Visser said that Ms Jeffs then stated ‘I’m on annual leave, it’s not my problem if you guys didn’t process it, thank you,’ and hung up as he was trying to speak.158 Following the conversation, on that same day, Ms Jeffs sent an email asking for the discontinuation of sending work related emails to her private email address.159

[78] The narrative provided by Ms Jeffs concerning the leave application differed to Mr Visser’s account. Ms Jeffs was insistent that she was in Canada when she made the request for leave on 14 January 2019 and given her lack of access to the Qantas intranet based email, she was unable to provide a reason as to why the leave was required. 160 Further Ms Jeffs reasoned that she was on workers’ compensation and was therefore not ‘tasked’ or in the ‘numbers’, that is she was supernumerary and QGS could have found other ways to inform her the leave extension was not approved.161

[79] When asked at hearing how Ms Jeffs knew that the extension request for leave had been approved, Ms Jeffs conceded that she had assumed it would be. When asked what the usual process was to ascertain whether a leave request approval had been given, Ms Jeffs acknowledged that it falls upon the employee to check whether the leave request has been approved.

[80] Ms Jeffs provided no documentary evidence to rebut the staff travel record, although she verbally disagreed with her arrival time in Perth. Further Ms Jeffs’ evidence appeared to suggest that even if she was in Perth at the time of the requested leave, she was still providing caring duties remotely to her mother. No evidence was adduced to rebut that which Mr Hardy heard Mr Watts say about collecting Ms Jeffs from the airport on 14 January 2019, notwithstanding that Mr Watts was called to give evidence on behalf of Ms Jeffs.

[81] Mr Visser stated that Ms Jeffs was rostered to work on 23 January 2019 at 7:30pm. 162 This information was available on webroster.163

An investigation of Ms Jeffs’ conduct

[82] Mr Visser gave evidence that concerns about Ms Jeffs’ conduct resulted in QGS making the decision to stand her down while her conduct was investigated. 164

[83] On 23 January 2019, Ms Jeffs arrived at work at 6:00am although she was not rostered to start at this time. 165 Mr Visser stated that this did not surprise him because Ms Jeffs had on a number of occasions arrived at work at 6:00am, as this was required under RTWP No.5 (which was no longer in effect). However, Mr Visser approached Ms Jeffs at approximately 6:10am as he needed to give her a letter of direction. At that time Ms Jeffs was at the computer in the lunchroom.166

[84] A conversation followed in which Ms Jeffs disputed her start time and said she was on 6:00am starts and had been for ages. 167 Mr Visser gave evidence that he asked Ms Jeffs to step into his office to continue the discussion as a courtesy to Ms Jeffs’ privacy, which Ms Jeffs questioned, and asked ‘why? do we need to have a meeting?’. Mr Visser said that he informed Ms Jeffs that he needed to give her a letter, but if she wanted a support person that was fine.168 Ms Jeffs declined to meet unless a support person was present – a further conversation ensued and from Mr Visser’s account it was apparent that Ms Jeffs continued to dispute her start time stating ‘the roster is wrong and not in line with the return to work plan’, and during the course of the conversation spoke in a sarcastic and dismissive tone.169 At approximately 10:15am, the meeting was held and the letter provided.170

[85] Mr Hardy gave evidence that he assigned Mr Dragicevic to investigate Ms Jeffs’ alleged misconduct on behalf of QGS. Mr Hardy stated that he chose Mr Dragicevic because he worked entirely independently from Ms Jeffs and the Fleet Presentation Team, and he had conducted other investigations with the Perth Case Management Team. 171 Between 30 January 2019 and 1 March 2019, Mr Dragicevic conducted the investigation.172 From 10 March 2019 until 4 April 2019, Ms Jeffs was on extended compassionate leave.173

[86] Mr Dragicevic gave evidence that Ms Barber, the then Case Manager, of Case Management Support, approached him to inform him that he was to run an investigation into the conduct of Ms Jeffs on the instruction of Mr Hardy. 174 Ms Barber provided Mr Dragicevic with a letter of allegations and asked that he contact Ms Jeffs to discuss the allegations made against her as soon as possible as she had been suspended with pay.175

[87] Having called Ms Jeffs on 30 January 2019 at approximately 5:00pm, Mr Dragicevic gave evidence that Ms Jeffs advised that she did not have access to her QGS email account and refused to provide an alternative email address. 176 Mr Dragicevic said that in order to get the letter of allegation to Ms Jeffs as soon as possible, he offered to send a copy by text message, to which she agreed, in addition to sending a copy to the QGS email address.177 To send the text message, he used the ‘pool’ mobile phone that was used by Freight Operations Managers whilst they are on shift as a single point of contact.178 Mr Dragicevic stated that after sending the text messages to Ms Jeffs he deleted the photos and texts.179 Emails were sent to Ms Jeffs’ work email and ‘hotmail’ account on 30 January and 31 January 2019, attaching the letter of allegations.180

[88] On 6 February 2019, Ms Jeffs responded to the letter of allegation by sending a text message to the pool mobile phone, which included a link to download her response. 181 Mr Dragicevic was not on shift that day so he contacted Ms Jeffs on 7 February 2019 to request the letter.182 Mr Dragicevic gave evidence that, after making the call to Ms Jeffs, he handed the phone to the relevant Freight Operations Manager and advised them to contact him if they received any calls or correspondence from Ms Jeffs. Mr Dragicevic’s evidence was that Ms Jeffs sent a screenshot of her response that she had provided on 6 February 2019 to the ‘pool’ mobile phone, and once Mr Dragicevic was aware of this, he used the link to download a copy of Ms Jeffs’ response.183

[89] Ms Jeffs’ was most aggrieved that Mr Dragicevic had breached the confidentiality of the investigation. Ms Jeffs sent correspondence to Mr Dragicevic that outlined that in her view, ‘the reality is that you have breached the privacy and confidentiality of this investigation’. 184 In her witness statement Ms Jeffs expressed:

Bernard Dragicevic had directly violated, without prior consent, and breached the process with his admission of three other individuals within Qantas accessing the material. There is nothing that can be said to contradict this fact. For Brett Hardy to use his position of management to overlook this breach within this specific process is micromanagement of my employment, and bullying me out of my job. 185

[90] Ms Jeffs was provided with an opportunity to respond to the allegations in a meeting, which Mr Dragicevic stated lasted approximately 4.5 hours. Ms Jeffs had her support person present, Mr Watts, and Ms Barber also attended the meeting. 186

[91] During the period of 22 February to 27 February 2019, Mr Dragicevic was purportedly assisting to resolve the ongoing issues Ms Jeffs was experiencing with accessing her emails. 187 Furthermore, Mr Dragicevic had attempted to call Ms Jeffs and text Ms Jeffs requesting that she contact him and meet with him four times.188 On 27 February 2019, Ms Jeffs confirmed that email access had been restored and stated to Mr Dragicevic that she was not prepared to meet with him on the basis that proper procedure in relation to notification and confidentiality had not been followed.189 On 28 February 2019, Mr Dragicevic sent Ms Jeffs an email which outlined why he had assisted in rectifying the issue with her access to emails and confirming that sending the letter of allegation by text message was not a breach of confidentiality obligations that he held as an investigator.190

[92] Following a discussion Mr Dragicevic had with Ms Barber about Ms Jeffs’ email issues, Ms Barber arranged for a report to be generated from Qantas’ IT systems that would demonstrate whether Ms Jeffs’ QGS email account had been active and accessible over the preceding 12 months, and whether Ms Jeffs had received emails, viewed emails or sent emails during this time. 191 A report was generated which, in summary, showed that over period of 2 December 2018 to 12 March 2019, Ms Jeffs’ email account was active and Ms Jeffs’ email account was in receipt of email correspondence, some of which was read by Ms Jeffs, some of which was not read by Ms Jeffs, and that Ms Jeffs had sent some emails from her email account during the period, including on 14 and 16 January 2019.192

[93] Ms Jeffs had a period of compassionate leave from 10 March 2019 until 4 April 2019.

[94] Ms Thirumale informed Ms Jeffs on 3 May 2019 that the investigation had been completed. Ms Thirumale assisted Mr Dragicevic after Ms Barber left Qantas during the investigation. On that same date, Ms Jeffs replied to Ms Thirumale advising that she had been attempting to contact Ms Barber since 1 April 2019. 193

[95] Mr Dragicevic’s evidence was that on 7 May 2019, Ms Jeffs was invited to attend a meeting on 9 May 2019 to discuss the findings of the investigation and advised that she could bring a support person. Ms Jeffs attended the meeting on 9 May 2019 with her support person. Mr Dragicevic stated that he read out the letter of findings in its entirety (excluding attachments) and provided Ms Jeffs the opportunity to ask any questions. Ms Jeffs left without asking questions.

[96] Mr Dragicevic gave evidence that the letter of findings asked Ms Jeffs to show cause in writing to Mr Hardy as to why her employment with QGS should not be terminated. Ms Jeffs was asked to provide a written response by 16 May 2019. 194

[97] According to Mr Hardy, Ms Jeffs provided a written response on 24 May 2019 (an extension had been granted in which to provide the written response), which questioned aspects of the investigation but did not provide any submission on why her employment should not be terminated. 195

[98] On 28 May 2019, Mr Hardy stated that he emailed Ms Jeffs to clarify that one of the possible outcomes he was considering included termination of her employment with QGS. 196 He therefore emailed Ms Jeffs informing her that she had until 30 May 2019 to provide information as to why her employment should not be terminated, and that he would be in Perth on 31 May 2018 to meet with her to discuss her response.197

[99] Mr Hardy flew from Sydney to Perth to meet with Ms Jeffs on 31 May 2019. Ms Jeffs did not attend the meeting, and it was rescheduled to 6 June 2019. During the meeting on 6 June 2019, Mr Hardy said that he informed Ms Jeffs that he had concerns that there appeared to be a pattern of behavior where she was either unwilling or unable to follow verbal or written directions of her managers, and he was considering terminating her employment. 198 An opportunity was provided for Ms Jeffs to provide any information that she wanted Mr Hardy to consider.199

[100] Ms Jeffs raised some issues in the meeting on 6 June 2019. In response, on 7 June 2019, Mr Hardy sent to Ms Jeffs an email that addressed the issues that she raised in the meeting and again provided another opportunity to provide additional information she wanted Mr Hardy to consider regarding the potential termination of her employment – by 10 June 2019. 200 Mr Hardy stated that Ms Jeffs provided a further written response on 10 June 2019, which he considered in addition to Ms Jeffs’ earlier response.201

[101] Ms Jeffs’ evidence was that Mr Hardy accelerated and changed the procedures associated with the allegations process. She considered this aggressive micromanagement abuse of his managerial position to bully her out of her employment. 202

[102] Mr Hardy requested that Ms Jeffs attend a meeting on 13 June 2019, which she did. 203 At the meeting Mr Hardy provided Ms Jeffs with a letter terminating her employment with QGS effective on 13 June 2019, with payment in lieu of notice.204 Mr Hardy stated that in brief terms, Ms Jeffs was dismissed as a result of her repeated failure to comply with her employment obligations without any remorse or acknowledgement that any of her behavior was inappropriate.205 In the letter of termination of 13 June 2019, Mr Hardy responded to Ms Jeffs’ claim that ‘the entire situation has been targeted around [your Mother’s] illness and passing’. In this respect Mr Hardy stated:

I am aware of a number of occasions over the years where the Company has accommodated your leave for you at short or no notice due to compassionate reasons – most recently, your leave from 28 December 2018 until 15 January 2019 and 10 March 2019 to 4 April 2019 were approved with less than 24 hours’ notice when you explained the circumstances surrounding your mother’s ill health and passing, respectively. As you were aware, from 10 March until 4 April 2019, the investigation was paused whilst you were on compassionate leave….  206

[103] Mr Hardy gave evidence that the termination letter that was provided to Ms Jeffs on 13 June 2019 made clear that the substantiated allegations, as outlined in the letter of findings, were in breach of:

(a) Ms Jeffs’ employment obligations under the SOC Policy;

(b) Qantas Ground Services (QGS) Pty Limited Ground Handling Agreement 2015;

(c) the QGS Personal Carer’s Leave Policy;

(d) the Letter of Direction; and

(e) Perth Local Important Notice (Employees on Restricted or suitable Duties) dated 7 May 2018.

Ms Jeffs appeals the decision to terminate her employment

[104] Ms Jeffs appealed the decision to terminate her employment, sending a seven-page letter of 20 June 2019 to Mr O’Connor, Head of People Services. 207 Ms Jeffs traversed each of the findings made in the letter of findings, in addition, drawing upon the stress she had endured due to her mother’s illness and subsequent passing. Ms Jeffs levelled assertions of workplace bullying and harassment against Mr Visser and Mr Yeo, again.

Differential treatment

[105] In her evidence Ms Jeffs provided detail regarding two employees who had engaged in various acts of misconduct and, according to Ms Jeffs, were treated differently to her because both were offered other avenues to end their employment, just prior to termination. Ms Jeffs stated that one of the employees was given the option to resign and therefore kept their staff travel benefits, and the other was offered a redundancy whilst on workers’ compensation. 208

CONSIDERATION

Protection from unfair dismissal

[106] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It was uncontroversial that Ms Jeffs was a person protected from unfair dismissal and was dismissed within the meaning of s 386 of the Act.

Was the dismissal harsh, unjust or unreasonable?

[107] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... 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. 209

[108] When determining if a dismissal was unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 210

[109] Where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 211

[110] The reasons considered are the employer’s ‘reason(s)’. 212 The Full Bench in B, C, and D v Australia Postal Corporation T/as Australia Post213 (Australian Postal Corporation) stated:

... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (e.g. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

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”.

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. 214

[111] Therefore, the question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. As referred to in Australian Postal Corporation, the test is not whether the employer believed, on reasonable grounds and after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 215

[112] It is the case that the provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly. 216

Matters to consider

[113] Section 387 requires that the Commission consider certain criteria when determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’. They include:

(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.

[114] Regarding ss 387(b)-(d), I am satisfied on the evidence that Ms Jeffs was:

(a) notified of the reasons relied upon by QGS for the termination of her employment, and was given the opportunity to respond to allegations made against her during the investigations into her conduct;

(b) was given the opportunity to respond to the reason for her proposed dismissal; and

(c) was not unreasonably refused by QGS to have a support person present to assist at any discussions relating to dismissal.

Procedural flaws

[115] It has been observed previously in both Mr Ian Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO (Mr Ian Law), 217 and Rogers v Millennium Inorganic Chemicals Limited & Anor218 that there is no obligation on an employer to conduct a perfect workplace investigation. What is required is for the employer to conduct an investigation into the alleged misconduct which establishes the allegations on the balance of probabilities. As observed in Mr Ian Law, and employer is not required to investigate to the standard that would be expected of a police investigation. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.219

A conflict of interest, the coffee shop incident and the meetings with Mr Yeo

[116] Evidence was given that a month or two after the coffee shop incident, Mr Yeo sent an email to Ms Jeffs, advising her of an informal meeting to be held on 14 March 2018. 220 Ms Jeffs gave evidence she emailed both Mr Hardy and Ms Jeffs informing them that because of the formal investigations regarding the coffee shop incident, Mr Yeo overseeing the meeting amounted to a conflict of interest. Mr Hardy responded to Ms Jeffs’ concern noting that, while there was an outstanding grievance, this did not prevent Mr Yeo from having an informal discussion with her about his expectations of her in his role as her manager.

[117] Ms Jeffs still considered that Mr Yeo overseeing the meeting on 14 March 2019, and the subsequent meetings scheduled to address the same topic of the four additional performance issues, constituted a conflict of interest. Her reasoning for arriving at this conclusion was - at the time of the meetings, preliminary enquiries were being conducted to ascertain whether Mr Yeo had engaged in harassing and intimidating Ms Jeffs.

[118] In some circumstances it would be appropriate and preferable practice not to involve a supervisor or manager in a performance discussion, when that same manager or supervisor faces a complaint made by the relevant employee. Where both the leader and employee have lodged complaints about each other, a question may arise regarding the efficacy of such a meeting, if not anything else. However, context is important.

[119] In this matter, Mr Hardy exercised managerial prerogative to direct that Mr Yeo would conduct the meetings, notwithstanding the complaint raised by Ms Jeffs concerning Mr Yeo’s interaction with her on 23 January 2018. In the circumstances of this matter, I do not consider that the direction for Mr Yeo to conduct the meetings, and the direction for Ms Jeffs to attend (and participate) was unjust or unreasonable when the context is considered.

[120] Mr Hardy was in receipt of both Mr Yeo’s account of what had occurred and Ms Jeffs’. The commonality between the accounts was that, not long after Ms Jeffs commenced work, she was in a coffee shop. While Ms Jeffs refutes that she was required to attend to training, it was nevertheless the case that she had not reported she was unwell to a supervisor, and she was aware of the direction that had been read out to her on 6 December 2017 that ‘she was at all times to notify her Leading Hand if she was delayed to an assigned task and provide the reasons for any delay’. 221 Having had the opportunity to read the accounts of Mr Yeo and Ms Jeffs, Mr Hardy was cognisant of the subject matter of the incident and was well positioned to assess whether Mr Yeo’s involvement in conducting an informal performance meeting with Ms Jeffs would compromise the integrity of the meeting.

[121] While Ms Jeffs had referred to Mr Yeo’s body language as ‘indicating intent’, and that his ‘verbal was rude, short and not unlike something you would say to anyone, you were set on intimidating or harassing them publically [sic]’, I would simply make the observation that in circumstances where an employee commences shift and then contrary to direction, takes themselves off to have a break, while justifying the action based on a hay fever attack, they should expect to be spoken to in a ‘short’ manner when permission has not be sought to attend to their compromised state, or notification given to their supervisor that notwithstanding they have only just commenced work, they are taking a break. This does not constitute harassment or intimidation; it is merely a manifestation of a justified frustration regarding an employee’s insubordination – in the circumstances of this matter.

[122] Further, the subject matter of the proposed discussion, while traversing Ms Jeffs’ four additional performance issues, did not warrant Mr Yeo being replaced by another manager to conduct the meeting. In the XPT Case, 222 it was expressed that, unless an employer’s managerial prerogative was expressly prevented by law, the role of the Commission was ‘to examine all the facts and not to interfere with the right of an employer to manage [its] own business unless [it] is seeking from the employees something which is unjust or unreasonable’.

[123] I consider while it may have been unproblematic for QGS to accommodate Ms Jeffs’ request for an alternative manager to conduct the meetings, it was not obliged to do so and its decision not to, was not unjust or unreasonable. However, if I am wrong regarding this conclusion, it is nevertheless the case that there remained a valid reason for Ms Jeffs’ dismissal absent the formal written warning and reliance upon Ms Jeffs’ misconduct in those March 2018 meetings.

Confidentiality

[124] Ms Jeffs was evidently concerned about what she perceived to be a breach of confidentiality committed by Mr Dragicevic during his investigation into the several allegations she was facing. Her upset manifested in her assertion to Mr Hardy that the investigation was ‘null and void’ because of Mr Dragicevic’s breach of confidentiality during the investigation process. 223

[125] On 6 February 2019, Ms Jeffs had responded to the letter of allegation 224 by sending a text message to the Manager’s pool mobile phone.225 She had, after all, received the letter of allegation by this means, having notified Mr Dragicevic that she did not have access to her QGS email and that she would not provide an alternative email address. Ms Jeffs stated that she had not been informed that the phone to which she was providing her response to the letter of allegations was a pool phone and that the first time she became aware that it was a ‘publicly used work phone’ was when someone other than Mr Dragicevic answered it.226

[126] Mr Hardy responded to Ms Jeffs’ concern about the breach of confidentiality and her assertions that because of such breach, it rendered Mr Dragicevic’s investigation null and void. In the letter of termination of 13 June 2019, Mr Hardy set out that he enquired into the alleged breach of confidentiality and had found: 227

•  It is clear that you texted your response to the mobile phone (Operational Mobile) at 4.56pm on 6 February 2019.

•  Mr Dragicevic has now confirmed that he did not have the Operational Mobile at that time, but rather retrieved your written response from the Operational Mobile on or around 11.49am on 7 February 2019, following your call to the Operational Mobile on 7 February 2019. This is inconsistent with what Mr Dragicevic has previously advised. However, he has been upfront in these enquiries in correcting his error after he has checked his movements on those days.

•  At 11.49am on 7 February 2019, Mr Dragicevic immediately forwarded your response from the Operational Mobile to his work email, and then Mr Dragicevic recalls deleting your response in its entirety from the Operational Mobile.

•  Three Operations Managers had possession of the Operational Mobile between 4.56pm on 6 February 2019 and 11.49am on 7 February 2019.

•  Enquiries have been made with all three of these managers. As Operations Managers they are regularly in receipt of personal information regarding employees (such as contact from sick employees) and are bound by Qantas Standards of Conduct Policy. I am satisfied that the three Operations Managers spoken to realised that the message was not relevant to them and have not spoken to anyone (directly or indirectly) about you, the workplace investigation, any documents relating to the investigation or any texts shared between yourself and Mr Dragicevic.

•  I have received mixed information about the ability to access the original letter of allegation on the Operational Mobile. But Mr Dragicevic has consistently asserted that he deleted this from the Operational Mobile.

•  I am further satisfied that there is no evidence on the Operational Mobile, or on any work phone used by the Operations Mangers, of any record of the Letter of Allegations, your written response and/or texts exchanged between you.

[127] The abovementioned content accorded with the evidence provided at hearing, by Mr Hardy and Mr Dragicevic. Understandably, Ms Jeffs was upset that both the letter of allegations and her response to the same, had been shared with the three Managers who were not investigating the issues at hand. Arguably, the subject matter of the allegations and the response, were sensitive. Sensitive in the sense that Ms Jeffs had been accused of wrong-doing, and for some this in and of itself may have evoked a variety of emotions – whether, for example, shame, anger, sadness, or distress. In these circumstances it would be entirely reasonable for an employee to be aggrieved when her or his information was shared with persons other than the investigative team or management responsible for making decisions regarding the alleged misconduct.

[128] There was, however, no evidence that the inadvertent sharing of such information detracted from an objective process of investigation or from pursuing a considered course to permit Ms Jeffs to put forward her version of events – on several occasions. The employees with whom the information was inadvertently disclosed held senior positions within QGS. Mr Hardy observed that as Operations Managers they were regularly in receipt of personal information regarding employees (such as contact from sick employees) and were bound by the ‘Qantas Standards of Conduct Policy.’

[129] In the circumstances, I have concluded that the inadvertent sharing of the letter of allegation and Ms Jeffs’ response, did not impact upon the integrity of the investigation, and would not have led to a different outcome to that which was actioned. The investigation was not rendered null and void by Mr Dragicevic’s oversight.

The other factors to take into account under s 387

[130] As to s 387(e), I am satisfied that Ms Jeffs’ termination of employment involved misconduct, not unsatisfactory performance. Therefore, it is not in dispute in this case.

[131] In relation to s 387(f), QGS is a national organisation with dedicated human resource expertise. I do not consider that its size would be likely to impact on the procedures followed in effecting Ms Jeffs’ termination of employment.

[132] As to s 387(g) of the Act, Qantas employed human resources advisors at the time of Ms Jeffs’ dismissal, so this consideration is not relevant.

[133] Attention, therefore, initially turns to s 387(a) and whether there was a valid reason for the dismissal related to Ms Jeffs’ conduct.

Whether there was a valid reason for the dismissal – s 387(a) of the Act

[134] To determine a valid reason relating to conduct, the Commission must determine, whether, on the balance of probabilities the conduct allegedly engaged in by the employee actually occurred. 228

[135] In Parmalat Food Products Pty Ltd v Wililo, 229 (Parmalat) the Full Bench held:

The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 230

[136] Ms Jeffs was provided with payment in lieu of notice on her dismissal. It was not concluded in her letter of termination that she had engaged in serious misconduct. However, as the Full Bench in Parmalat held, the finding of a valid reason is a very important consideration in establishing the fairness of a termination.

[137] On 6 December 2017, Mr Hardy issued Ms Jeffs with a letter of direction and read out its contents. There can be no misapprehension that a line in the sand had been drawn of what was required of Ms Jeffs, regarding behavioural expectations.

[138] Despite this direction, on 23 January 2018, the coffee shop incident occurred. While Mr Hardy did not issue Ms Jeffs with a written warning regarding her conduct in the coffee shop, he did take the opportunity in the outcome letter of 12 June 2018, to counsel her again regarding her behaviour, raising salient points that had been reiterated previously. I do not intend to repeat the entire contents of the letter here, but the pertinent part can be seen at paragraph [44] of this decision, and I draw specific attention to the bullet points commencing ‘It is not for you to decide which tasks you should and should not complete based on your assessment of the urgency…,’ and so on.

[139] Before proceeding to discuss the Guidelines, it’s timely to traverse further the coffee shop incident, notwithstanding that Mr Hardy decided not to issue a warning regarding Ms Jeffs’ conduct on the 23 January 2018. The evidence given at hearing, which was not contested, was that Ms Jeffs signed-in on that day at around 10.54am. In the response meeting with Ms Fitzgerald, Ms Jeffs confirmed she went to Hudson’s Coffee Shop, but did this after performing certain functions such as printing off her FIDS and tasks, going to the bus stop and collecting her eye drops from her locker. However, in the findings letter of 12 June 2018, Ms Fitzgerald notes that one of the witness recalls Ms Jeffs joined a group of operators at around 11.00am. Ms White informed Mr Yeo at approximately 11.50am that Ms Jeffs had not presented for training.

[140] At no time did Ms Jeffs notify a leader that she was ill. At no time did a leader authorise her to take the break that she took in the coffee shop. Having only signed on at 10.54am, it is evident that soon after, she was on a coffee break.

[141] Attached to the outcome letter of 12 June 2018 were the Guidelines. The Guidelines set out the expectations for employees on restricted duties or workers’ compensation. There was no evidence to show that Ms Jeffs did not receive the outcomes letter of 12 June 2018 or the Guidelines. Ms Jeffs stated that she had not seen the Guidelines, and did not sign a ‘read and sign’ related to them. Based on the totality of the evidence, I am unpersuaded that Ms Jeffs had not received them. Further, a version of the Guidelines was accessible on the QGS intranet page.

[142] Arising from the coffee shop incident were the subsequent complaints of Mr Yeo and Ms Jeffs, regarding the conduct of each other. On or around this same time, other issues had arisen regarding Ms Jeffs’ performance, namely the ‘four additional performance issues’.

[143] Ms Jeffs’ conduct in the meetings regarding the additional performance issues in March 2018, ultimately resulted in her receiving a formal written warning on 12 June 2018. That conduct constituted a wilful refusal to verbally communicate in the meetings about the performance issues. Instead, Ms Jeffs slid across the table to Mr Yeo a letter addressing the performance issues. While it is true that Ms Jeffs responded in writing to the issues concerning her performance, the way she behaved in the meetings was disrespectful and was non-compliant with written instructions given to her. 231 In this respect, I observe that on 16 March 2018 and, thereafter, 22 March 2018 Mr Yeo wrote to Ms Jeffs.232 The letter provided, amongst other matters, ‘[A]t the second informal meeting, we will discuss the four agenda items’.233

[144] While Ms Jeffs may not have agreed with Mr Hardy’s decision to have Mr Yeo facilitate the informal meetings; Ms Jeffs made that abundantly clear when she emailed Mr Hardy about that very matter. Thereafter, her subsequent conduct and refusal to discuss issues in the meeting was unprofessional, unnecessary and resulted in her failing to follow a lawful and reasonable instruction.

[145] The evidence shows that on 30 October 2018, Ms Jeffs presented for work and undertook a process where she determined the plan for her day. I have found that her conduct in this respect did not comply with the Guidelines, and the directions that had been issued in the fourth scheduled meeting with Mr Yeo (the meeting held to discuss the four additional performance issues). In the fourth scheduled meeting, Mr Yeo’s evidence was that he instructed Ms Jeffs to get her tasks on a day to day basis from the shift GSC or shift manager when she attended for work.

[146] Later in the day on 30 October 2019, there was a discussion between Mr Davies, Mr Visser and Ms Jeffs, where Ms Jeffs walked away from a conversation with her supervisor, Mr Visser, stating words to the effect ‘we need to sort it out as this isn’t working’. Ms Jeffs’ comment arose after she had been tasked, and not placed on the static line of the planner. Returning 5 minutes later, the evidence shows that Ms Jeffs questioned Mr Visser on whether he had even read her RTWP. A brief dialogue ensued whereby Mr Visser stated that Ms Jeffs said to the effect ‘you’re changing my return to work plan and it is stressing me out, I’m going home’. Ms Jeffs stated that she simply said to everyone in the office ‘Let me know when you have read and sorted out my RTW plan, and I will return then. I then, in full view of all the office staff, clocked out, and left the workplace’. 234

[147] Ms Jeffs did not appear to comprehend that departing the workplace in the manner she did, was not only inappropriate, and disrespectful to Mr Visser, but her departure appeared to be based on an unacceptable reason. While Mr Visser noted that Ms Jeffs referred to being ‘stressed out’, Ms Jeffs in addition stated that she said she would return when Mr Visser had read and sorted out her RTWP. The circumstances of the case indicate that on 30 October there was an issue regarding Ms Jeffs being tasked contrary to RTWP No.5, but Mr Visser had addressed this with the GSC. A departure from work by an employee, in circumstances where her return is conditional on a supervisor having undertaken some specified action, does not appear to constitute personal leave at that time, but rather an unauthorised absence.

[148] If it was the case that Ms Jeffs was unwell from stress, and this was the reason for her departure, then the Personal/Carer’s Leave Policy (Personal Leave Policy), outlines the steps to take. Relevantly, cl 5.2 and cl 7.5 respectively provide:

5.2 Employees are responsible for:

(a) their own attendance;

(b) notifying their supervisor or Manager directly of unplanned absences and expected duration;

(c) providing adequate notice of planned leave absences and seeking and obtaining approval from their Manager or supervisor if required; and

(d) providing all certificates and documentation required to support their leave application.

…

7.5 Advising of absences

Employees are required to inform their Manager (or the Manager’s nominated delegate) of their inability to attend work as soon as practical, which should generally be prior to when the Employee is due to commence duties on the day of absence, or otherwise in accordance with the relevant Award/Agreement. 235

[149] While the Personal Leave Policy does not describe the manner in which an employee is to notify their supervisor of their unplanned absence or otherwise inform their manager, the SOC Policy clearly sets out that employees must treat other staff with trust, dignity, respect, fairness and equity. Ms Jeffs demonstrated no respect in this instance.

[150] Ms Jeffs did not attend work for her rostered shifts between the period of 5 December 2018 and 21 December 2018. I have concluded that this was an unauthorised absence and that Ms Jeffs was aware that the absence was unauthorised. On 4 December 2018, Ms Jeffs attended a medical case conference and RTWP No.6 was signed. While Ms Jeffs admits that RTWP No.6 included her signature, Ms Jeffs states that she did not sign it on 4 December 2018, and she would never have agreed to it – she considered it a step backward. The argument lacks reasoning, after all RTWP No.6 saw Ms Jeffs now working in accordance with her rostered shift start times rather than uniformly at the same time each day (not a step backward). I prefer the evidence of Mr Visser over that of Ms Jeffs, for reasons already stated, and I observe that Mr Visser’s account was consistent.

[151] RTWP No. 6 stated that during the dates 5 December 2018 to 15 December 2018, Ms Jeffs was to work four days a week, four hours a day (being the first four hours of rostered shifts). For the period 16 December 2018 to 22 December 2018, the hours increased to five a day and the following week six hours a day. Start times of course depended on the time the shift was rostered to commence. Ms Jeffs appears to have been asserting that she was unaware of the rosters set out in RTWP No.6.

[152] Apart from the RTWP, Mr Visser’s evidence was that webroster was the only means by which QGS disseminates rosters for Fleet Presentation employees, and that all employees know they are required to check it. The direct evidence showed that Ms Jeffs had logged onto webroster on 7 December 2018 at 2:18pm and thereafter logged out at 2:40pm. Having logged into webroster it is open to infer that Ms Jeffs was aware of her rosters. However, as it is, I am persuaded by Mr Visser’s evidence regarding RTWP No.6, and Ms Jeffs’ acceptance of it.

[153] Based on the evidence, and on the balance of probabilities, I have found that Ms Jeffs was aware that she was required to work during the period of 5 December 2018 until 22 December 2018 on the rosters set out in the RTWP No.6, and that she chose not to do so.

[154] I am satisfied that on 20 December 2019, Mr Yeo issued a direction for Ms Jeffs to contact him. He did so by acceptable and appropriate means. Ms Jeffs did not contact Mr Yeo, and therefore failed to comply with a lawful and reasonable direction.

[155] On 14 January 2019 at around 2:22pm, Ms Jeffs submitted an annual leave application for an extra weeks’ leave. Ms Jeffs conceded at hearing that she assumed that the leave application had been approved but did not check that was the case. Although unaware of whether the leave request had been approved, Ms Jeffs preceded to take the extra weeks’ leave. The direct evidence shows that Ms Jeffs’ account that she was in Canada when making the leave request was inaccurate. The staff travel record showed Ms Jeffs’ travel arrangements, including her arrival back into Sydney on 14 January 2019. Ms Jeffs presented no evidence to rebut the direct evidence led by QGS in this respect. I have concluded that Ms Jeffs’ absence from work on 16, 17, 20, 21 and 22 January 2019 was an unauthorised absence.

[156] Further, Ms Jeffs’ conduct on the telephone to Mr Visser on 18 January 2019 was unacceptable and contrary to the SOC Policy in respect to demonstrating respect. I have considered the evidence provided by both Mr Visser and Ms Jeffs regarding the telephone call, and have also considered Ms Jeffs’ subsequent email to Mr Visser later that day. Mr Visser’s account rings true.

[157] I am satisfied that Mr Visser has provided an accurate account of how Ms Jeffs addressed him regarding the dispute over the start-time that day, the 23 January 2019.

[158] I have found that Ms Jeffs’ misconduct was manifestly serious and in clear breach of: directions given on 6 December 2017 and 12 June 2018; the Guidelines; the SOC Policy and RTWP No.6. In arriving at this conclusion, I have in addition considered her misconduct that warranted the issuance of a formal written warning on 16 April 2018. However, it is important to state that, irrespective of the conduct that gave rise to that formal written warning, I am firmly of the view that Ms Jeffs’ misconduct nevertheless was so serious, it unquestionably gave rise to a valid reason for the termination of her employment.

Any other matters considered relevant - s 387(h) of the Act

Differential treatment

[159] In her evidence, Ms Jeffs referred to having received treatment that was inconsistent to that accorded to two other employees. The matter was not agitated to any extent at hearing. However, what is evident is that Ms Jeffs considered that the acts of the two other employees were more egregious than any conduct she had engaged in, or had been alleged to have engaged in, and yet they were provided with alternative avenues by which to end their employment (instead of termination).

[160] In Darvell v Australian Postal Corporation, 236 the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):

[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Subsection 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to ss.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.

[161] Although differential treatment of employees can render a termination of employment harsh, unjust or unreasonable, that is not the case here. From the scant amount of detail Ms Jeffs provided about the circumstances of the other two employees, it does not appear that the cases are in any respect comparable. However, I acknowledge that there is simply insufficient evidence to make any finding in this regard. Further, it is apparent from Ms Jeffs’ evidence that the two employees did ultimately have their employment concluded, although the route differed with respect to how that end was reached. One ended by way of resignation (asserted to have been offered), and the other redundancy. In short, the argument pressed by Ms Jeffs is absent foundation. There is insufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.

Other matters

[162] Amongst other considerations, it is necessary to consider the impact the dismissal had on Ms Jeffs, given the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 237 I do not consider that Ms Jeffs’ dismissal was disproportionate when one considers her repeated non-compliance with written and verbal directions, the disrespect shown to supervisory and managerial staff, and the taking of unauthorised leave.

[163] Further, a dismissal may, depending upon the overall circumstances be considered to be harsh on the person due to the economic and personal consequences resulting from being dismissed. 238 I have taken into account that Ms Jeffs was an employee with lengthy service. I appreciate that at the time of Ms Jeffs’ dismissal that she had been on RTWP No.6 for a work-related knee injury. I observe that it was uncontentious that QGS had complied with its obligations regarding the relevant workers’ compensation legislation. However, I very much appreciate that it may be difficult for Ms Jeffs to find work. The financial and emotional impact of QGS’s decision to dismiss her has been significant. It has also came at a time where Ms Jeffs has lost her mother after a period of illness.

[164] The Commission’s role is not to consider what it would have done, had it been in the position of the employer. Rather, it must consider whether the dismissal was harsh, unjust or unreasonable, taking into account all of the circumstances. I have sympathy for Ms Jeffs both because of the loss of her mother and her job, and because she lacks insight into how her behaviours are perceived by those around her. There is no demonstration of contrition, and her communication with leaders shows a lack of respect, and, at times, contempt.

[165] The decision to dismiss Ms Jeffs was a serious sanction that would inevitably impact upon her life, but it was not unjust or unfair, and it was not harsh. Ms Jeffs had been well directed as to what was required of her regarding her conduct. Ms Jeffs chose to conduct herself in a manner that was repeatedly incongruent with that which was required of her.

CONCLUSION

[166] I have taken into account all of the matters that I am required to in accordance with s 387. After weighing all the evidence and for reasons set out above, I have concluded that Ms Jeffs’ dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed. An Order to that effect is published concurrently with this decision. 239

DEPUTY PRESIDENT

Appearances:

A Jeffs, Applicant

R Warren of Counsel for the Respondent

Hearing details:

2019.

Perth:

November 27 and 28.

Printed by authority of the Commonwealth Government Printer

<PR714511>

 1   Statement of Mr Jacob Visser (Visser Statement) Attachment JV-5; Witness Statement of Bernard Dragicevic (Dragicevic Statement) Annexure BD-18 p 9.

 2   Dragicevic Statement Annexure BD-18; Witness Statement of Brett Robert Hardy (Hardy Statement) Annexure BH-29.

 3   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend) (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 4   PR715411.

 5   Hardy Statement Annexure 2.

 6   Ibid.

 7   Ibid [4].

 8   Hardy Statement [5].

 9   Ibid [5].

 10   Ibid [10].

 11   Ibid [10].

 12   Ibid [11].

 13   Ibid [11].

 14   Ibid [13].

 15   Visser Statement [10].

 16   Ibid [10].

 17   Ibid [10].

 18   Ibid [10].

 19   Ibid [14].

 20   Ibid [11].

 21   Ibid [12].

 22   Ibid [12].

 23   Ibid [12].

 24   Ibid [15].

 25   Ibid [15].

 26   Ibid [15].

 27   Ibid [16].

 28   Hardy Statement [13].

 29   Ibid [14].

 30   Ibid [15].

 31   Ibid [16].

 32   Ibid [17].

 33   Ibid [17].

 34   Ibid [17].

 35   Ibid [17].

 36   Ibid [18].

 37   Ibid [18].

 38   Witness Statement of Richard Yeo (Yeo Statement) [7].

 39   Ibid [7].

 40   Ibid [9].

 41   Ibid [9].

 42   Hardy Statement [20].

 43   Ibid [20].

 44   Ibid Annexure 2.

 45   Yeo Statement [10].

 46   Hardy Statement [22].

 47   Ibid [23].

 48   Ibid [24].

 49   Ibid [24].

 50   Yeo Statement [15].

 51   Ibid [16].

 52   Ibid [17].

 53   Ibid [17].

 54   Ibid [18] – [19].

 55   Ibid [19].

 56   Ibid [22].

 57   Ibid [25].

 58   Ibid [26].

 59   Ibid [27].

 60   Ibid [26].

 61   Ibid [28].

 62   Hardy Statement [27].

 63   Ibid [27].

 64   Ibid [28].

 65   Witness Statement of Amanda Jeffs (Jeffs Statement) Attachment O.

 66   Hardy Statement [29].

 67   Ibid [30].

 68   Ibid [30].

 69   Jeffs Statement p 19.

 70   Hardy Statement [31].

 71   Ibid [31].

 72   Ibid [32].

 73   Ibid Annexure BH-19.

 74   Ibid Annexure BH-19.

 75   Ibid Annexure BH-19.

 76   Jeffs Statement p 15.

 77   Ibid p 15.

 78   Hardy Statement [49].

 79   Ibid [49] – [50].

 80   Ibid [51].

 81   Ibid [52].

 82   Visser Statement Annexure JV-2.

 83   Hardy Statement [34].

 84   Ibid [34].

 85   Ibid [35].

 86   Ibid [36].

 87   Jeffs Statement p 18.

 88   Ibid p.18.

 89   Hardy Statement [38] – [39].

 90   Ibid [40].

 91   Ibid p 18.

 92   Ibid p 18.

 93   Ibid p 19.

 94   Ibid p 19.

 95   Hardy Statement [41].

 96   Ibid [45] and [53].

 97   Jeffs Statement p 19.

 98   Hardy Statement [48].

 99   Ibid [48].

 100   Ibid [54].

 101   Visser Statement [18].

 102   Ibid [19].

 103   Ibid [20].

 104   Ibid [20].

 105   Ibid [23].

 106   Ibid [24].

 107   Ibid [24].

 108   Ibid [24].

 109   Ibid [25].

 110   Ibid [25].

 111   Ibid [26].

 112   Ibid [27].

 113   Ibid [28].

 114   Ibid [28].

 115   Ibid [29].

 116   Ibid [29].

 117   Ibid [30].

 118   Ibid [30].

 119   Ibid [32].

 120   Ibid [32].

 121   Ibid [33].

 122   Ibid [33].

 123   Ibid [37].

 124   Ibid [37].

 125   Ibid [37].

 126   Ibid [38].

 127   Ibid [38].

 128   Ibid [39].

 129   Ibid [40].

 130   Ibid [40].

 131   Ibid [40].

 132   Ibid [40].

 133   Ibid [43].

 134   Ibid [44].

 135   Ibid [44].

 136   Ibid [46].

 137   Jeffs Statement.

 138   Visser Statement [47].

 139   Ibid [49].

 140   Ibid [49].

 141   Ibid [49].

 142   Ibid [51].

 143   Yeo Statement Attachment RY 20.

 144   Dragicevic Statement Annexure BD-12.

 145   Visser Statement [55].

 146   Ibid [56].

 147   Ibid [57].

 148   Ibid [58].

 149   Yeo Statement [81].

 150   Ibid [82] Attachment RY 22.

 151   Ibid [82] Attachment RY 22.

 152   Ibid [85].

 153   Visser Statement [59].

 154   Ibid [59].

 155   Ibid [60].

 156   Ibid [61].

 157   Ibid [61].

 158   Ibid [61].

 159   Ibid [62].

 160   Jeffs Statement.

 161   Jeffs Statement.

 162   Visser Statement [63].

 163   Ibid [63].

 164   Ibid [64].

 165   Ibid [65].

 166   Ibid [65].

 167   Ibid [66].

 168   Ibid [67].

 169   Visser Statement [69]; Hardy Statement [63].

 170   Visser Statement [70].

 171   Hardy Statement [65].

 172   Ibid [66].

 173   Ibid [67].

 174   Dragicevic Statement [7].

 175   Ibid [8].

 176   Ibid [9].

 177   Ibid [9].

 178   Ibid [10].

 179   Ibid [10].

 180   Ibid [11] – [12].

 181   Ibid [14].

 182   Ibid [15].

 183   Ibid [15].

 184   Jeffs Statement Attachment I.

 185   Jeffs Statement p 9.

 186   Dragicevic Statement [17].

 187   Ibid [20]-[22].

 188   Ibid [19]-[22].

 189   Ibid [23].

 190   Ibid [24].

 191   Ibid [26].

 192   Ibid [27(a)].

 193   Ibid [30].

 194   Ibid [34].

 195   Hardy Statement [71].

 196   Ibid [72].

 197   Ibid [72].

 198   Ibid [76].

 199   Ibid [77].

 200   Ibid [79].

 201   Ibid [81].

 202   Jeffs Statement.

 203   Hardy Statement [82].

 204   Ibid [82].

 205   Ibid [82].

 206   Jeffs Statement Attachment E.

 207   Jeffs Statement Attachment A.

 208   Jeffs Statement p 14.

 209   (1995) 185 CLR 411, 463.

 210   Ss 387(a) of the Act.

 211   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 212   Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [25].

 213   [2013] FWCFB 6191 [34].

 214   Ibid [34] – [36].

 215   King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24]; B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [34].

 216   Australian Postal Corporation as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36].

 217   [2018] FWC 1824 [144].

 218   [2009] FMCA 1 [127].

 219   Nash Wong v Taitung Australia Pty Ltd [2017] FWCFB 990.

 220   Hardy Statement [34].

 221   Ibid [23].

 222   Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales [1984] 295 CAR 188.

 223   Hardy Statement Annexure BH-29 p2, Annexure BH-24 (Jeffs’ Response 24 May 2019), Annexure BH-28 (Jeffs’ Response 10 June 2019).

 224   Dragicevic Statement [13] Annexure BD-4.

 225   Ibid [14].

 226   Hardy Statement Annexure BH -24.

 227   Ibid Annexure BH-29.

 228   Edwards v Guidice (1999) 94 FCR 561 [6] –[7].

 229   (2011) 207 IR 243.

 230   Ibid [24].

 231   Yeo Statement Annexure RY-10.

 232   Ibid Annexure RY-8.

 233   Ibid Annexure RY-8; Annexure RY-9.

 234   Jeffs Statement.

 235   Dragicevic Statement Annexure BD-20.

 236   [2010] FWAFB 4082.

 237   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 14, citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 238   Ibid.

 239   PR715411.