DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Luke Sikalias
v
Qantas Airways Limited
(U2019/3883)

Application for an unfair dismissal remedy - whether reason for dismissal a valid reason notification of reason and opportunity to respond- whether dismissal harsh, unjust or unreasonable – application dismissed.

[1] Mr Luke Sikalias (Applicant) was employed by Qantas Airways Limited (Qantas) as a Licensed Aircraft Maintenance Engineer since 2 February 1982 for a period of approximately 37 years. The Applicant was dismissed from his employment with Qantas on 15 March 2019 with immediate effect for misconduct in breach of Qantas’ Standards of Conduct Policy (SOC Policy). The misconduct was said to be his inappropriate conduct towards another Qantas employee. Qantas paid the Applicant 5 weeks’ pay in lieu of notice. At the time of dismissal, the Applicant denied or could not recall engaging in any of the conduct alleged by Qantas at any time. On 5 April 2019, the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. He continues to deny the conduct.

[2] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. These matters were not in dispute, and I find that:

•  The application was made within the time prescribed in s.394(2) of the Act;

•  The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;

•  Qantas was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and

•  The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] For the reasons which follow, I have concluded that the Applicant’s dismissal was not unfair.

Background

[4] The Applicant is 55 years of age and for 37 years, the entirety of his career, he was employed on a permanent full-time basis by Qantas as a Licensed Aircraft Maintenance Engineer.

[5] On 4 December 2018, Mr Kerry Walker, Operations Manager at Qantas, called the Applicant to a meeting during which he informed the Applicant that a complaint about his conduct had been made. Mr Walker told the Applicant he was being stood down with pay while Qantas conducted an investigation into the allegations. 1 Mr Walker gave evidence that during this meeting the Applicant said words to the effect of ‘I know what this is about’ and ‘I could lose my job over this Kerry’.2 The Applicant denies saying that he said he knew what the allegations were about.3 It is unnecessary for me to determine this dispute.

[6] On 10 December 2018 the Applicant was provided with a letter from Mr Walker outlining the allegations against the Applicant. 4 Relevantly the letter set out several allegations as follows:

“Allegations

August and September 2018

It is alleged:

1. During the period between August and September 2018:

a) You approached Flight Attendant Ms Margaret Curry (sic) on board an aircraft and stroked her hair with your hand; and

b) said 'I like blondes" or words to that effect towards Ms Currey

Following a mechanical issue with the aircraft, you were recalled to address the issue.

2. You approached Ms Currey and said:

a) 'I arranged this, so I could ask you out' or words to that effect; and

b) 'are you single' or words to that effect

Incident on 29 November 2018

On 29 November 2018 you were rostered to work from 1800-0600. As part of your tasks during the course of the day, you were tasked with Crew Oxy Service on the OF 462 Melbourne to Sydney. It is alleged:

3. You approached Ms Margaret Currey, when it is alleged you:

a) said I'm looking for a super model and they tell me there's a supermodel up here' or words to that effect towards Ms Curry (sic);

b) slapped Ms Currey on the left buttock; and

c) grabbed Ms Currey's left hand and asked, 'are you married?', or words to that effect.” 5

[7] I will hereafter refer to that which are described above as the allegations of “August and September 2018” and “Incident on 29 November 2018” as the “First Allegation” and the “Second Allegation” respectively as the case requires.

[8] The letter informed the Applicant that if after the investigation the allegations are found to be substantiated, the conduct may be a breach of the following clauses of the SOC Policy:

“Standards of Conduct Policy

Section 3. Responsibilities of Managers and Employees

3.2 Employees are responsible for:

(a) their own behaviour and actions at all times;

(b) being aware of and complying with this Policy, other Company and applicable Qantas Group policies, procedures and relevant legislation;

(c) ensuring that their behaviour is, at all times, consistent with the Non-Negotiable Business Principles, the Qantas Group Behaviours and the Qantas Values;

(d) treating customers and other Staff fairly and with respect.

Section 4. Standards of Personal Behaviour

4.1 (d) Treating other Qantas Group Staff with respect and working as a team. This means Employees must:

(ii) treat other Staff with trust, dignity, respect, fairness and equity.

Section 15. Unacceptable Behaviour, Misconduct and Serious Misconduct

Staff must not engage in Unacceptable Behaviour, At-Risk Behaviour, Misconduct or

Serious Misconduct including, but not limited to:

15.1 threatening or intimidating behaviour including verbal or written abuse, physical abuse or assault.

15.2 Discrimination, Harassment, Bullying or Victimisation.” 6

[9] The letter attached a copy of Qantas’ SOC Policy and advised the Applicant that the allegations were serious and if substantiated may result in disciplinary action including termination of employment. 7

[10] The Applicant was asked to respond to the allegations in writing by 13 December 2018. 8 He was invited to provide any information that may assist the investigation or that the Applicant would like considered in response to the allegations.9 Mr Walker also said in the letter that he would like to have a meeting with the Applicant to discuss the Applicant’s response and give him another opportunity to provide any further information, and noted that the Applicant was welcome to bring a support person to that meeting.10

[11] The Applicant sought the assistance of his union, the Australian Licensed Aircraft Engineers Association (ALAEA). On or about 11 December 2018 the Applicant spoke to an ALAEA official, Mr Wayne Derndorfer. ALAEA assisted the Applicant to draft a response to the allegations, which was provided to Mr Walker on 17 December 2018. The Applicant responded to the First Allegation as follows:

“Clause 45 of EA10 requires you to inform me of "the charge against the employee and outline of reasons therefore including sufficient particulars for the employee to be able to respond to the charge", given that the period of allegation is overly broad and the allegation does not specify the "charge against'' me, it is difficult for me to be able to respond to this allegation. In any case, I do not recall having any interaction of this nature or characterisation with Ms Currey or any other Flight Attendant.” 11

[12] The Applicant’s response to the Second Allegation was as follows:

“Again, this allegation does not detail a "charge against" me. In response I can only state that I do not recall having any interaction of this nature or characterisation with Ms Currey or any other Flight Attendant.

I categorically deny that I have acted inappropriate (sic) towards any Qantas Airways employees. If I have inadvertently offended anyone it would’ve been unintentional or taken out of context. I pride myself on being professional at work and have never harassed anyone in any manner. I have been employed by Qantas for over 36 years and have always taken pride in being a productive member of the Qantas Engineering team, I ask that you take this into consideration when making your decision.” 12

[13] Mr Derndorfer wrote to Qantas on 20 December 2018, asking that Qantas provide to the Applicant ‘in the interests of natural justice and procedural fairness’ all witness statements and information available to the decision maker. 13

[14] Mr Walker responded on 27 December 2018 that the investigation is being undertaken in accordance with SOC Policy and clause 45 of the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 14 (Agreement), and that the Applicant did not require access to the witness statements in order to respond to the allegations.15 The letter from Mr Walker also provided additional details of the Second Allegation as follows:

“Background to allegations 3(a) – (e)

On 29 November 2018 you were rostered to work from 1800 - 0600. As part of your tasks during the course of the day you were tasked with Crew Oxy Service on the QF 462 Melbourne to Sydney, which was due to leave at 1900.

3. It is alleged:

(a) You approached Ms Currey from behind when she was standing near the flight deck, and said 'I'm looking for a supermodel and they tell me there's a supermodel up here.'

(b) As Ms Currey moved away from the flight deck and towards the Galley, you slapped her on the left buttock.

(c) Your hand was open when you slapped her left buttock.

(d) The slap was forceful.

(e) Your hand stayed on her left buttock for approximately 2 - 3 seconds.

Background to allegation 3(f)

Ms Currey then moved to leave the aircraft to commence passenger boarding. It is alleged you:

(f) Grabbed Ms Currey's left hand and said 'are you married?' or words to that effect.” 16

[15] On or about 8 January 2019, Mr Derndorfer and Mr Walker spoke on the phone. According to Mr Walker, Mr Derndorfer informed him that the Applicant would not be providing any response to the further allegations. 17 According to Mr Derndorfer, during this telephone conversation he said to Mr Walker:

“I’ve spoken to Luke. The further information you provided doesn’t shed any light on the matter. He can’t respond until he’s provided with enough details to enable him to know what he’s responding to. Because there’s not enough additional information in your letter we did not intend on responding”  18

To which Mr Derndorfer alleges Mr Walker replied:

“So you’re not responding? You’re being childish. At the very least you should’ve sent a letter saying you were not going to respond” 19

[16] Mr Walker confirms the substance of the first part of the conversation recorded above 20 and does not in his evidence deny or dispute the second part of the conversation recorded above. Nothing turns on the second part of the conversation.

[17] On 15 February 2019, Qantas sent the Applicant a letter outlining the findings of the investigation and informing him that the allegations were found to be substantiated. 21 The letter included excerpts from witness statements from Customer Service Manager, Ms Joanne Sjoerdsma, and Flight Attendant, Ms Rochelle Wagener, in support of the investigation’s findings.22 The letter also attached an outline of breaches of the SOC Policy.23 The letter stated that Qantas is considering disciplinary action which may be termination of employment.24 The letter asked the Applicant to write a response outlining why his employment should not be terminated, and once the response is received he will be given a further opportunity to demonstrate why he should not be dismissed in a face-to-face meeting with Mr Benjamin Knabe, Engineering Manager.25

[18] On 15 February 2019 Mr Derndorfer replied to Qantas’ letter on behalf of the Applicant. 26 Mr Derndorfer’s letter did not outline why the Applicant’s employment should not be terminated. Instead it sought an undertaking that Qantas would not proceed to terminate the Applicant’s employment until the Applicant has had the opportunity to exercise his rights under the enterprise agreement.27

[19] In a meeting on 15 March 2019, Mr Benjamin Knabe, an Engineering Manager employed by Qantas, advised the Applicant that his employment was terminated with immediate effect and that Qantas would make a payment of five weeks wages in lieu of notice. 28 During the meeting Mr Knabe provided the Applicant with a letter confirming the dismissal and the reasons for it.29

[20] The Applicant appealed the decision through Qantas’ internal appeal process however was unsuccessful. 30 In the letter advising the Applicant that his appeal had been unsuccessful, Qantas disclosed that on review of its records, the latest that Qantas can place Ms Currey, Ms Sjoerdsma and the Applicant on a flight is in May 2018, not in August or September 2018 as previously alleged. However, Qantas did not consider that it materially affected the investigator’s finding.31

[21] I think it is uncontroversial that the Applicant did not receive the appeal outcome. 32 That this is so meant that the Applicant was not alerted to the date discrepancy in the First Allegation. The Applicant should have become aware of the discrepancy when Qantas filed and served its materials33 in response to the case brought by him, although there is no mention of it in his reply statement.34

Legislative background

[22] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must consider the following factors outlined in s.387 of the Act:

(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.

[23] Each of the matters identified must be taken into account. They are mandatory relevant considerations.

[24] Moreover, each matter must be given appropriate weight having regard to the factual findings earlier made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend) 35, that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision-making process.36 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:37

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 38 

[25] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 39

[26] The meaning of the word “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 40 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.” 41

[27] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had is assessing whether a particular dismissal was harsh, unjust or unreasonable. I consider these matters below.

Section 387(a) – valid reason

[28] Where, as here, a valid reason for dismissal is said to relate to conduct the Commission must find that the conduct occurred and that the conduct justified dismissal. The essence of a valid reason is that the reason is a sound, defensible or well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 42 Whether conduct which founds a valid reason occurred is to be determined based on the evidence in the proceedings assessed on the balance of probabilities taking into account the gravity or seriousness of the allegations.43 The test is not whether the employer, after a sufficient investigation, had a reasonably held belief that the conduct occurred.44 

[29] Qantas contends that the following factual findings should be made, which taken together establish a valid reason for the Applicant’s dismissal:

(a) Mr Sikalias was aware of the SOC Policy and its requirements;

(b) on 26 May 2018 onboard flight QF838, Mr Sikalias engaged in the following conduct in contravention of the SOC Policy:

(i) prior to departure, Mr Sikalias stroked Ms Currey’s hair and said “I like blondes”; and

(ii) upon returning to the gate to deal with a mechanical issue, Mr Sikalias re-entered the aircraft and said to Ms Currey “I arranged this so I could ask you out” and “are you single?”;

(c) on 29 November 2018, during boarding of flight QF462, Mr Sikalias engaged in the following conduct in contravention of the SOC Policy:

(i) Mr Sikalias said in the presence of Ms Currey at the entrance to the flight deck “I’m looking for a supermodel and they tell me there’s a supermodel up here”;

(ii) as Ms Currey walked from the flight deck entrance toward the main cabin, Mr Sikalias followed Ms Currey and slapped her on the left buttock; and

(iii) later, as Ms Currey stepped off the aircraft to walk to the gate to commence boarding, Mr Sikalias grasped Ms Currey’s left hand and said to her words to the effect “are you married?”.

(d) Mr Sikalias’ categorical denials that he engaged in the misconduct comprising the First and Second Incidents misled Qantas in its investigation, amounting to a further contravention of the SOC Policy. 45

[30] The Applicant submits that while the standard of proof to establish whether the conduct alleged occurred is the balance of probabilities, where an allegation relates to the commission of a crime, in this case assault, the standard of proof required is higher. 46 This is a misstatement of the principle in Briginshaw v Briginshaw47. Briginshaw does not establish a higher standard of proof. Rather the case stands for the proposition that:

“…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…Reasonable satisfaction is not a state of mind that is attained independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a give description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” 48

However, the civil standard of proof has always been and remains proof of a fact on the balance of probabilities. 49

[31] The Applicant has predominantly focused his submissions on whether the most serious allegation took place, that is, the allegation that the Applicant slapped Ms Currey on her left buttock. That is part of the Second Allegation earlier described.

[32] The Applicant contends that this has been the focus of his submissions as none of the other allegations have sufficient weight to justify dismissal. 50 The Applicant contends that the evidence before the Commission ‘could not pass even a basic level of proof let alone persuade the Commission to rule that it occurred on the balance of probabilities.”51

[33] Qantas submits that the Applicant tacitly urges for a level of cogency that removes all doubt, however the correct standard of proof is the balance of probabilities. Qantas submits that the Commission should not assess the strength of the direct evidence in isolation, but rather it should examine the totality of the evidence, and the corroborative and cumulative effect of the evidence of each witness. 52 This is correct.

[34] Qantas submits that there are six general reasons why the evidence (to which I will shortly turn) weighs heavily in the favour of accepting Qantas’ evidentiary case.

“•  The accumulation of the evidence. Ms Currey’s account of the First Allegation and the Second Allegation, is corroborated by Ms Sjoerdsma, Ms Hughes and Ms Wagener. Ms Sjoerdsma and Ms Wagener gave direct evidence of witnessing certain acts of the Applicant’s conduct.

•  Ms Currey made statements to each of Ms Sjoerdsma, Ms Hughes and Ms Wagener almost immediately after each event and made a written statement about the November incident the following day, and the contemporaneity of the statements supports the veracity of Ms Currey’s account.

•  None of Ms Currey, Ms Sjoerdsma, Ms Hughes or Ms Wagener have any pre-existing relationship with the Applicant which might provide an ulterior motive for their accounts. The Applicant did not provide any explanation as to why these four witnesses would give fabricated accounts of their evidence.

•  There was no evidence that any of Qantas’ witnesses colluded, and Ms Currey gave unchallenged evidence that they were directed not to discuss these matters.

•  None of Ms Currey, Ms Sjoerdsma, Ms Hughes or Ms Wagener have anything to gain from the outcome of proceedings which may provide an explanation for confecting their allegations.

•  The Applicant failed to put to any of Qantas’ witnesses that their accounts were mistaken or untrue. 53

Witnesses

[35] The Applicant gave evidence on his own behalf 54 and the following witnesses also gave evidence in support of the Applicant’s case:

•  Wayne Derndorfer, the Applicant’s representative from ALAEA 55; and

• Stephen Purvinas, Federal Secretary of ALAEA 56.

[36] The following witnesses gave evidence in support of Qantas’s case:

•  Margaret Ann Currey, Flight Attendant 57;

• Rochelle Alonzo Dizon Wagener, Flight Attendant 58;

• Joanne Sjoerdsma, Customer Service Manager 59;

• Kerry Bruce Walker, Engineering Shift Manager 60;

• Linda Hughes, Customer Service Manager 61; and

• Benjamin Jamie Knabe, Engineering Manager 62.

[37] Set out below is a consideration of the evidence and my factual findings.

The Applicant was aware of the SOC Policy and its requirements.

[38] The Applicant agreed that he understood the importance of reading and complying with Qantas’ policies and procedures, and that he had received training as well as regular communications in relation to them. 63 The Applicant was taken to various aspects of the SOC Policy which it is alleged he breached, and he agreed that he understood the prohibitions and that they were a matter of common sense. In his witness statement the Applicant said he ‘knew slapping someone on the buttocks was a serious allegation with serious repercussions’.64 There is no suggestion that the SOC Policy is unreasonable. There is also little doubt that the Applicant was aware of, received training in, and knew that he had to abide by the SOC Policy, and I so find.

The First Allegation

[39] Qantas relies, inter alia, on written statements made by Ms Currey on 5 December 2018 and 27 December 2018 65 as part of the investigation into the Applicant’s alleged conduct, as well as her sworn witness statement and oral testimony. In her 5 December 2018 statement, Ms Currey says that in August or September 2018, while on board a Boeing 737 before take-off, an engineer (she now identifies as the Applicant) stood behind her and stroked her ponytail and said words to the effect of “I like blondes”.66 She states that Ms Sjoerdsma witnessed the interaction. Ms Currey’s statement also discloses that after the door closure, there was a mechanical issue, and as the Applicant re-entered the aircraft to address the issue he said to her “I arranged this, so that I could ask you out”.67 This according to Ms Currey, made her shudder but she did not respond. Ms Currey alleges that the Applicant then asked her “Are you single?” Ms Currey says that she shook her head and said nothing.

[40] Ms Sjoerdsma also made a written statement dated 18 December 2018 as part of the investigation. Under the heading “Incident August or September 2018”, Ms Sjoerdsma states that on board a flight preparing for a flight to Sydney, she saw an engineer stroke Ms Currey’s hair. At the time of making her statement she did not know the name of the engineer 68, however she now knows the engineer to be the Applicant. Ms Sjoerdsma saw Ms Currey pull away from the Applicant and heard her say “don’t touch my pony tail.”69 Ms Sjoerdsma said it also appeared to her that Ms Currey was upset as Ms Currey asked Ms Sjoerdsma “did I do anything to attract that at all?” Ms Sjoerdsma replied “No”. She also states that as the engineer re-entered the aircraft to address a mechanical issue, she saw him whisper something to Ms Currey.

[41] It is now uncontroversial that the First Allegation was inaccurately put to the Applicant initially as having occurred in August or September 2018. A later search of Qantas’ records revealed that the most recent flight on which Ms Currey, Ms Sjoerdsma and the Applicant can all be placed was in May 2018. 70 This search was undertaken well after the dismissal of the Applicant.

[42] The Applicant denies engaging in the conduct alleged at any time in his witness statements and during his oral evidence. 71

[43] The Applicant contends that the Commission cannot find that the First Allegation occurred because:

•  the First Allegation could not have occurred in August or September 2018 as records show that the most recent time that Ms Currey, Ms Sjoerdsma and the Applicant worked on the same flight together was May 2018, which demonstrates that all the relevant material to determine the facts were not available to Qantas before the decision to terminate occurred 72; and

•  the SOC Policy places an obligation on both Ms Currey and Ms Sjoerdsma to report the alleged harassment promptly which did not occur. 73

[44] The Applicant also contends that the allegations cannot be found to be a breach of the SOC Policy, let alone justify dismissal, and that the allegations could not be used to support further allegations. 74

[45] Qantas contends, as the Applicant did not in cross-examination challenge either Ms Currey or Ms Sjoerdsma about the First Allegation nor did he suggest that they were being untruthful, that this supports a factual finding the that incidents took place.

[46] Qantas submits that Ms Currey’s evidence, corroborated by the direct observations of Ms Sjoerdsma, as well as Qantas’ business records, provides ample basis for the Commission to conclude that the First Allegation as now put occurred. 75 Ms Currey gave clear and consistent evidence of various identifying characteristics of the flight and circumstances in which the First Allegation as now put took place, such as, it occurred when she was working with Ms Sjoerdsma on a Boeing 737 aircraft departing from Melbourne, on which a mechanical fault required an engineer to return to the aircraft after the doors had been closed. Ms Sjoerdsma gave evidence of similar identifying characteristics. Qantas’ records identify a flight matching these characteristics on 26 May 2018 where the Applicant was rostered as the engineer.76 Ms Currey has also identified the Applicant as the engineer by his photo.77

[47] Qantas also submits that the conduct about which Ms Currey complained is a clear breach of the SOC Policy. Ms Currey told the Applicant not to touch her ponytail, which demonstrated that the conduct was unwelcome and therefore constitutes harassment. This is significant in the context of the Applicant’s subsequent conduct of repeatedly asking her out when he should have known his advances were unwanted. 78

[48] It is plain the First Allegation as put to the Applicant before the dismissal and as forming part of the reason for dismissal cannot be maintained. The conduct as initially alleged did not occur. The issue is whether the conduct as now alleged, after the dismissal, can be relied upon to found part of the valid reason.

[49] The question posed by s.387(a) of the Act is not whether the reason on which Qantas relied at the time of the Applicant’s dismissal was a valid reason for dismissal relating, relevantly, to conduct. The question is whether there was a valid reason for the Applicant’s dismissal related to his conduct. Thus, if upon the evidence there is conduct in which the Applicant engaged before the dismissal, the Commission is entitled to take that conduct into account in assessing whether there was a valid reason for the Applicant’s dismissal relating to his conduct. In the instant case the essential difference between the First Allegation which formed part of the reason for the Applicant’s dismissal and the allegation as now put is the date on which the incident founding the allegation occurred. The conduct alleged is the same.

[50] The Applicant makes the point, with which I have already agreed, that the First Allegation cannot be maintained as part of the valid reason. However, for the reasons set out above, the conduct on 28 May 2018, in which he is alleged to have engaged, if established may be taken into account in assessing whether there was a valid reason.

[51] As to the First Allegation as now put, the Applicant has denied engaging in the conduct as alleged at any time. It is uncontroversial that the conduct the subject of the First Allegation is now said to have occurred on QF838 on 26 May 2018. It is also uncontroversial that both Ms Currey and Ms Sjoerdsma were rostered to work on and did work on that flight and that the Applicant was the engineer allocated to that flight on that day. 79

[52] The evidence given by Ms Currey and Ms Sjoerdsma is earlier set out. I do not accept the Applicant’s denial and I prefer the evidence of Ms Currey for the following reasons.

[53] First, apart from the Applicant’s denial, Ms Currey’s evidence about the conduct the subject of the First Allegation as now put was largely unchallenged. It was not put to her that she was lying in her evidence or mistaken about the substance of the conduct alleged.

[54] Secondly, Ms Currey only raised the conduct the subject of the First Allegation as now put, after the incident that is the subject of the Second Allegation 80 and to which I will shortly come. That she raised the conduct in these circumstances and explained the context of her recollection is also consistent with honestly retelling her recollection of the conduct.

[55] Ms Currey is criticised by the Applicant for not reporting the conduct the subject of the First Allegation promptly 81 as required by the SOC Policy. The Applicant seems to suggest that the failure to report the conduct somehow diminishes the veracity of the allegation so that the conduct should not be taken into account at all. I disagree. Perhaps Ms Currey should have reported the conduct the subject of the First Allegation before she did, but the failure to do so does not in my view warrant criticism. Much less does that fact vitiate the veracity of the allegation she has made.

[56] There is a myriad of reasons why women in a workplace sometime tolerate, and do not always report, inappropriate conduct and unwanted attention directed to them. These include cultural and social factors, concerns for career and job security, concerns of retribution or victimisation, a fear of not being believed, a lack of confidence in the internal complaints mechanisms, a general resilience and tolerance, a hope that the conduct was “a one off” and will not reoccur or an unwarranted belief that the woman is somehow responsible for or has contributed to the unwelcomed attention. That this is so is a sad indictment on the modern workplaces which as a society we seek to foster.

[57] As modern as we like to think our workplaces have become, we are yet to consistently achieve workplaces where women can just go about their jobs, in which they are judged only by the merit of their performance, dealt with only as a subordinate, a co-worker, a supervisor or a boss and made to feel safe and free from unwelcomed or inappropriate comments or attention based on gender or looks. Regardless of the reason Ms Currey did not immediately report the conduct, she ultimately did do so. Qantas rightly, and to its credit, did not ignore the complaint.

[58] Thirdly, much of Mr Currey’s evidence about the conduct is corroborated. Ms Currey said that after entering the flight deck the Applicant stood behind her and stroked her hair which was tied in a pony tail. 82 During her oral evidence, Ms Currey said that she was standing next to Ms Sjoerdsma, who was in the forward galley of the aircraft, when she felt the Applicant “flicking” her ponytail.83 The distinction between flicking and stoking is one of semantics and is a distinction without a material difference. Ms Sjoerdsma’s evidence was that she saw the Applicant stroke Ms Currey’s hair, which was in a ponytail.84 In her oral evidence Ms Sjoerdsma said she saw the Applicant stoke Ms Currey’s ponytail a couple of times.85 I accept Ms Sjoerdsma’s evidence. During her oral evidence Ms Sjoerdsma said that she saw Ms Currey pull away from the touching and that she heard Ms Currey say “don’t touch my ponytail”.86 Although this comment is not contained in Ms Currey’s evidence nor in the written evidence of Ms Sjoerdsma’s, it was not put to Ms Sjoerdsma that she was lying, or mistaken or that her recalling of the statement was a recent invention. I accept the evidence given as a genuine recollection of aspects of the incident, recalled in response to prodding questions by the Applicant’s representative about what was said and done by Ms Currey when the Applicant touched her ponytail.

[59] Fourthly, Ms Currey also gave evidence that the very first time that she saw the Applicant enter the aircraft was at a time when the cleaners were still on the aircraft and she was sitting in a business class seat. Whilst seated Ms Currey said that the Applicant was holding the clipboard and said to her words to the effect “I like your hair, how do you get it that way?” Ms Currey’s evidence was that she looked at the Applicant and noted that she had not seen him before and she said “I don’t know, it’s so early in the morning, I just whip it up” 87 and later while Ms Currey felt the Applicant flicking her ponytail, she heard him say “I like blondes”.88 Although there is no corroboration for this evidence I accept it nonetheless. I regard Ms Currey as a truthful witness and as I have already indicated, save for the general denial, her evidence about these matters was not seriously challenged nor was it suggested to her that she was lying or mistaken.

[60] Fifthly, Ms Currey gave evidence that on the same day, on the same flight but at a time after the flight had been returned to the gate with a mechanical issue, the Applicant re-entered the aircraft and said to her words to the effect that “I arranged this so I could ask you out” and then he asked Ms Currey “are you single?”. 89 Ms Currey’s evidence was also that a short time later the Applicant walked past her and said words to the effect “so are we going out?” To this Ms Currey replied with words to the effect “I don’t think my husband would like that”.90 Ms Sjoerdsma’s evidence confirms the circumstances of the technical issue experienced by the plane and that an engineer would need to re-board the aircraft. 91 Ms Sjoerdsma’s evidence was that she saw the Applicant re-board the plane through the left front door.92 Her evidence was that she saw the Applicant pause beside Ms Currey and appeared to whisper into Ms Currey’s ear but she did not hear what he said. Ms Sjoerdsma’s evidence was that she saw Ms Currey step backwards slightly from the Applicant.93 Although Ms Sjoerdsma did not hear the comment made by the Applicant, her observations about the whisper and Ms Curry’s reaction, are consistent with Ms Currey’s evidence and lends corroboration to it.

[61] Ms Sjoerdsma’s evidence was that she had a conversation with Ms Currey shortly before the aircraft took off during which Ms Currey conveyed to her whether Ms Currey had done anything to attract the Applicant’s conduct at all and told her about the first comment made by the Applicant as set out in the previous paragraph. 94 This contemporaneous discussion between Ms Currey and Ms Sjoerdsma about what had earlier occurred is consistent with Ms Currey having given a truthful account of what had occurred and I accept it.

[62] In the circumstances I find that on 26 May 2018 on board QF838 prior to its departure, the Applicant engaged in the following conduct directed to Ms Currey:

•  the Applicant stroked or flicked Ms Currey’s hair, which was held in a ponytail, on more than one occasion;

•  the Applicant said to Ms Currey words to the effect that “I like blondes”;

•  Ms Currey said to the Applicant “don’t touch my hair”;

•  after a recall of the flight to deal with a mechanical issue and on re-entering the aircraft, the Applicant said to that Ms Currey words to the effect “I arranged this so I could ask you out” and asked Ms Currey “are you single?”; and

•  a short time later the Applicant asked Ms Currey “so are we going out?”.

[63] In circumstances where this was the first occasion that the Applicant and Ms Currey had met or interacted, the conduct could not have reasonably been viewed by him anything other than unwelcome. The Applicant could not reasonably have thought that his advances on re-entering the aircraft to deal with the mechanical issue would be welcomed. Ms Currey said to Ms Sjoerdsma during their conversation on that day, that “that was creepy”. 95 To this I add was “sleazy”. The conduct in which the Applicant engaged has no place at work and is inconsistent with maintaining a safe working environment for women. The conduct was likely to cause offence or humiliation. It was plainly unwelcome. Nothing that Ms Currey did or did not do would cause any reasonable person to concluded otherwise. Taken together the conduct of the Applicant as found above falls squarely within the harassment definition of the SOC Policy.96 It is harassment of a sexual nature and falls within the examples cited in the SOC Policy, such as “unwanted physical contact” and “unwelcome comments about a person’s physical appearance”.97 The conduct contravened the SOC Policy. But even absent a policy, a modicum of common sense should tell one that the conduct, to use the vernacular, “is not on”.

The Second Allegation

Supermodel comment

[64] In Ms Currey’s 5 December 2018 statement she says that on 30 November 2018, as flight QF462 was preparing to fly to Sydney, she was in the flight deck introducing herself to the Tech Crew, when an engineer whose name she did not know appeared behind her and made a comment to the effect of “I’m looking for a supermodel and they tell me there’s a supermodel up here”. 98 Ms Currey said in her oral evidence that she did not take the comment as an attack or threat, and that she took the comment as having been made in jest and was not offended by it.99

[65] The Applicant submits that as the allegation is not by itself capable of forming a valid reason for dismissal, it is of little significance and does not add weight to any reason for dismissal. The Applicant says that the supermodel comment could not possibly be a breach of the SOC Policy as section 8.1 of the policy states that the conduct must, inter alia, cause offence, intimidation or humiliation. 100

[66] Qantas submits that comments about the physical attractiveness of a colleague, with whom an employee has no prior relationship, are inappropriate. Whether offence was not subjectively intended or that no offence was subjectively taken is not determinative of whether the comment might offend on an objective basis. 101

[67] Qantas does not suggest that the supermodel comment itself could warrant dismissal however, it does provide evidence of a pattern of behaviour by the Applicant towards Ms Currey. Qantas submits it provides an evidentiary backdrop against which other contested facts fall to be assessed. 102

[68] The Applicant does not admit making the supermodel comment, although his evidence was that “[D]epending on the circumstances [he] often joined in or [he] would make light-hearted friendly banter with the other Qantas staff as we carried out our work.” 103 Apart from the Applicant’s denial, Ms Currey was not challenged about her recollection of the comment. The cross-examination of her about the comment was confined to eliciting the fact that she was not offended by it and that she regarded the comment to have been made in jest.104 As Ms Currey explained, she had cited the supermodel comment in the investigation statement because she was asked to “write what happened” and she did as she was asked.105

[69] I prefer Ms Currey’s evidence to that of the Applicant. I am satisfied the comment was made by the Applicant in Ms Currey’s presence. However, as Ms Currey explained in her evidence, the comment is set out in her statement not as a complaint but rather as providing contextual background to what had happened on the aircraft in the lead up to the more egregious conduct later described.

Buttock slap

[70] The essence of this allegation is that shortly after the supermodel comment, in or about the galley of the aircraft, the Applicant, while standing behind Ms Currey slapped her on the left buttock. The Applicant denies that he did so. 106 Ms Currey’s evidence is that as she left the flight deck of QF462, the Applicant followed her, that he slapped her on the left buttock with an open hand and that the slap was forceful107. Ms Currey said that she was in shock initially and so she did not say anything.108 Apart from the Applicant’s denial, Ms Currey was not seriously challenged about her evidence. It was not put to her that she was lying, exaggerating or mistaken. The closest the Applicant came to challenging Ms Currey’s evidence was to ask Ms Currey “are you one hundred percent certain that Mr Sikalias slapped you on the left buttock?”.109 Ms Currey responded, “one hundred percent yes.”110 Ms Currey was cross-examined about the precise location on the aircraft at which the slap was said to have occurred. I will return to issue this shortly.

[71] Ms Currey also said that, after the slap, the Applicant said to her words to the effect that “that was meant for your back”, to which she replied, “yeah right”. 111

[72] There is corroboration for Ms Currey’s evidence. Ms Linda Hughes, a short haul Customer Service Manager was also rostered on QF462 on 29 November 2019. Ms Hughes’ evidence is that while introducing herself to the Tech Crew, she saw the Applicant in the flight deck. After speaking with the Tech Crew she moved to the computer where she was facing away from the entry to the flight deck. As she stood at the computer, Ms Hughes saw Ms Currey pass through to the flight deck. Approximately one minute later she heard male laughter coming from the flight deck, which made her turn to face it, and saw Ms Currey exiting the flight deck, frowning and looking distressed. Ms Hughes and Ms Currey later had the following exchange:

“[Ms Hughes]: Are you ok?

Ms Currey: An engineer slapped me on the bum

[Ms Hughes]: What?

Ms Currey: Yes, on the left bum cheek.

[Ms Hughes]: Are you ok to board?

Ms Currey: I’m fine

[Ms Hughes]: What would you like me to do?

Ms Currey: We’ll talk later” 112

[73] Ms Hughes said that after Ms Currey had completed her boarding duties, she appeared distant and flat. Ms Hughes put her arm around her and asked her whether she was ok and urged her to report the incident, to which Ms Currey replied that she would report it to Perry Sermon and her manager. 113

[74] A great deal of the cross-examination of Ms Hughes (and indeed of Ms Currey) was spent discussing the dimensions and layout of, that which any regular passenger on an A330-200 aircraft would know, is a narrow and confined space between the aircraft’s entrance and passage to the galley, between the galley and passage to toilet and flight deck, and between the galley and passage leading to the first business class seats. 114 Ms Hughes also recounted the substance of her written statement of evidence and in particular her conversation with Ms Currey.115

[75] Ms Currey’s description of the buttock slap by the Applicant to Ms Hughes is a contemporaneous complaint which is consistent with the conduct complained of having occurred. It is also consistent with my assessment of Ms Currey as a truthful witness. It was not put to Ms Hughes that she was lying or mistaken about the conversation, or that she colluded with Ms Currey to fabricate the conversation. I accept Ms Hughes’ evidence and it provides corroboration for Ms Currey’s account. Neither Ms Hughes’ nor Ms Currey’s evidence is diminished because they were uncertain about where precisely, in a small and confined area of the aircraft the buttock slap occurred. That which is important is that Ms Currey said the Applicant slapped her on the left buttock with an open hand and forcefully, and that she told Ms Hughes about it. Ms Hughes confirmed that Ms Currey told her that the Applicant had slapped Ms Currey on the left bum cheek. Distractions about the precise location are much like white noise. When it is filtered out, that which is relevant and important is clear. It either happened or it did not. It is no less serious if it happened in one area of the aircraft or another. Not wishing to diminish the seriousness of the conduct, but rather, to highlight the ridiculous nature of this part of the Applicant’s cross-examination of Ms Hughes and Ms Currey . . . there are no “bums may be slapped here” zones on the aircraft. Where on the aircraft it happened is not material but that it happened is.

[76] A flight attendant, Ms Rochelle Wagener, also made a statement about the Second Allegation in aid of the investigation. That statement is annexed to her witness statement in this proceeding. 116 Ms Wagener also gave oral evidence in this proceeding. Ms Wagener says that while preparing to fly to Sydney on QF462, she was facing Ms Currey at the front of the plane next to seat 1E. 117 Ms Wagener had been chatting with Ms Currey for at least one minute when she saw a man walk down the aisle behind Ms Currey.118 Almost immediately after the man passed Ms Currey, Ms Currey and Ms Wagener had the following exchange:

“Ms Currey: Did you see that?

[Ms Wagener]: I didn’t see anything.

Ms Currey: He brushed past me and said ‘I meant to get your back, not

your bottom’.”  119

[77] Ms Wagener was not challenged by the Applicant about this conversation. It was not suggested that she was lying or mistaken or that she had colluded with Ms Currey to fabricate the conversation. I accept Ms Wagener’s evidence. It also tends to corroborate the substance of the buttock slapping allegation made by Ms Currey.

[78] The Applicant makes much of the fact that there were only a small number of witnesses and that none directly witnessed the ‘buttock slap’. This matters little since I believe Ms Currey and I accept her evidence which I prefer to the Applicant’s denial. Moreover, it ignores the cumulative effect of the corroborating evidence given by Ms Hughes and Ms Wagener.

[79] The Applicant also raises the following contended inconsistences in the evidence of the three witnesses which he maintains demonstrates the evidence is flawed.

[80] First, he says Ms Currey gave evidence that on the day of the Second Allegation she never entered the flight deck, however in her 5 December 2018 statement she says that the slap occurred as she was exiting the flight deck. 120 Ms Hughes also gave evidence that she witnessed Ms Currey exiting the flight deck and watched her the entire time as Ms Currey walked up to talk to her.121

[81] Secondly, he says Ms Currey gave evidence that the Applicant walked up behind her and made the ‘super model comment’ and following this the Applicant followed her and forcefully slapped her, whereas Ms Hughes’ evidence is that the Applicant was already in the flight deck and then Ms Currey entered the flight deck. 122

[82] Thirdly, he says there are competing accounts as to where the slap took place. 123 The Applicant submits that Ms Currey places the slap in the galley124, Ms Hughes said in cross-examination that the slap could not possibly have occurred in the galley and that it in fact occurred as Ms Currey exited the flight deck, and Ms Wagener places the slap next to the passenger seat 1E.125 The Applicant submits that it is significant that Mr Knabe, whose decision it was to terminate the Applicant, conceded that he did not even know where the slap allegedly took place.126 To this last point it must be said there is an obvious answer. For reasons already stated, the precise place on the aircraft the slap took place is of no consequence. Mr Knabe need only have known two locations. The first, on flight QF462. The second, on Ms Currey’s left buttock. There is no suggestion that Mr Knabe did not know both.

[83] Fourthly, he says that Ms Wagener says it was a brush in, that the Applicant brushed pass Ms Currey in the cabin area at seat 1E which is a contradictor to the forceful slap that it is alleged occurred. 127

[84] As Qantas contends and I accept that the Applicant’s attempt to diminish the weight of the evidence because of ‘inconsistencies’ fails for several reasons.

[85] First, the Applicant’s submission that he could not have approached Ms Currey from behind when he made the ‘supermodel’ comment in light of Ms Hughes’ evidence that he was already in the flight deck is without foundation. 128 Ms Hughes gave evidence that she saw the Applicant on the flight deck. She then moved to the aircraft computer which faces away from the flight deck door. She later noticed Ms Currey pass behind her toward the flight deck. Whilst she did not see the Applicant exit the flight deck, she did not give evidence that he did not, nor was it put to her that he did not. Nor did she say anything about hearing the supermodel comment. Given that Ms Hughes was facing toward the main cabin with her back to the flight deck, it is entirely possible that the Applicant left the flight deck during that time without Ms Hughes seeing him do so.

[86] Secondly, the “difficulties” the Applicant raises with whether Ms Currey was in the flight deck was explained by Ms Currey. She said that she was standing at the door of the flight deck and gave a demonstration in the witness box that she leaned into the flight deck without walking into it. 129 Ms Currey’s and Ms Hughes’ accounts are not inconsistent on this point.

[87] Thirdly, it was never put to Ms Currey, Ms Hughes or Ms Wagener that the interaction that Ms Currey had with Ms Hughes about the buttock slap, and her conversation with Ms Wagener about the ‘brush in’ were in fact the ‘buttock slap’. There is no inconsistency between the three accounts as they are at three difference points in time. Ms Currey’s evidence was that she “did not say anything initially” until the Applicant said to her the words “I meant to get your back”, to which she responded “Yeah, right”. Ms Wagener describes seeing Mr Sikalias walk down the aisle of the aircraft behind Ms Currey, and Ms Currey immediately relaying the Applicant’s words to the effect of “I meant to get your back, not your bottom”. Ms Wagener describes there being “a few moments” or “a few minutes” between Ms Currey relaying those words to her, and Ms Hughes subsequently instructing Ms Currey and Ms Wagener to head to the gate to commence boarding. Ms Wagener did not recall continuing to speak with Ms Currey during that period, and they did not exit the aircraft together. 130

[88] Qantas does not contend that Ms Wagener had witnessed the “buttock slap”. Rather it relies on Ms Wagener’s evidence as evidence of a contemporaneous statement about the “buttock slap”. There may be some doubt about the timing of the first conversation with Ms Hughes and Ms Currey as occurring immediately after the “buttock slap” itself. Given the cumulative evidence of Ms Currey and Ms Wagener, it is more likely to have occurred a little time after the “buttock slap” and the “I meant to get your back” comment. Nothing in Ms Currey’s evidence suggests that Ms Hughes’ direction to commence boarding occurred immediately after the buttock slap. Indeed, that assumption runs counter to Ms Wagener’s evidence.

[89] Fourthly, even if Ms Currey’s and Ms Hughes’ evidence is taken to be of the same moment, the differences in those accounts as to the location of the “buttock slap” is nevertheless consistent with two honest witnesses whose recollections about granular details as to timing or location might have been somewhat eroded by the passage of time. 131

[90] Fifthly, the Applicant’s inconsistency submission only carries weight if it is attached to a case theory. That case theory would need to have been that the witnesses are lying, colluding or mistaken. Such a case theory was not advanced and such propositions were not put to the witnesses by the Applicant.

[91] In summary, I prefer the evidence of Ms Currey about the buttock slap incident to the denial of the Applicant. But it is not just her evidence which establishes the allegation. Ms Currey made contemporaneous statements to Ms Wagener and Ms Hughes, which are consistent with her version of events. This reinforces the likelihood that the events as described by Ms Currey occurred.

[92] The Applicant says that the Commission should be concerned that Ms Currey’s statements change over time. He submits that it undermines Ms Currey’s credibility that Ms Currey’s second statement provides more details than the first statement such as that the slap was forceful and that “the hand stayed on my buttock”. 132 Ms Currey has a clear recollection of the key details of the allegation she has made. On board flight QF462 on 29 November 2018, she was slapped on her left buttock by the Applicant and shortly thereafter she heard the Applicant say to her words to the effect “that was meant for your back”. The slapping occurred somewhere in the vicinity of the small area of the aircraft that comprises the passageway to the flight deck, the galley and the passageway leading to the first seats in the business class cabin.

[93] It is unnecessary for Ms Currey to remember the precise location on the aircraft at which the slap occurred or for me to make such a finding in order to be satisfied the conduct occurred. That which is important is for me to be satisfied that the slapping by the Applicant of Ms Currey’s buttock occurred. For the reasons given earlier, the cumulative weight of the evidence leads me comfortably to that conclusion. That Ms Currey added more detail about the incident in a further statement does not undermine her credibility. Ms Currey has not contradicted her first statement in which she sets out essential details of the allegation by providing the additional details of the events as she was asked to do by Qantas.

[94] The Applicant also submits that Ms Currey appears to have changed her evidence between the first statement on 5 December 2018 in which she said that she did not report the First Allegation at the time but gave oral evidence that she did report the First Allegation 133. Ms Currey’s 5 December 2018 statement must be read in full. She says “I did not report this at the time” and then “but I did speak to the CSM, Jo Sjoerdsma about this.”134 In the witness box, her complete evidence was that she did report it, and she “reported it to Ms Sjoerdsma, we discussed it”.135 Ms Currey’s statement and her oral evidence are completely consistent.

[95] As to Ms Currey’s exchange with Ms Wagener, the Applicant submits that it is concerning that under cross-examination Ms Currey says the Applicant only said “I meant to get your back” and not “I meant to get your back, not your bottom” 136 The Applicant submits that Ms Currey’s recollection of events increases over time and adopts the same words Ms Wagener had used in her statement.137

[96] First, Ms Wagener’s evidence was that she recalled Ms Currey telling her that the Applicant “said words to Margi like, ‘I meant to get your back, not your bottom’” and that Ms Wagener “didn’t hear what he said”. 138 Plainly she was only recalling the substance of her conversation with Ms Currey.

[97] Secondly, Ms Currey does not adopt the words used by Ms Wagener. Ms Wagener’s recollection includes “… not your bottom”. Ms Currey’s evidence was that the Applicant said only “I meant to get your back”. She was not giving evidence of what she had told Ms Wagener and she expressly said in her oral evidence that the Applicant did not say “not your bottom”. 139 The Applicant’s adoption theory thus immediately falls away.

[98] Thirdly, and importantly, the proposition that Ms Currey adopted the words used by Ms Wagener after Ms Wagener made her statement was not put to Ms Currey. In those circumstances the submission is of little weight.

[99] Fourthly, if Ms Currey had adopted Ms Wagener’s evidence, it is much more likely that she would have adopted all of it. Instead, she makes plain that the Applicant did not say “not your bottom”. 140 This is consistent with a witness telling the truth and inconsistent with any adoption theory.

[100] The Applicant also says that there were three other potential witnesses in the flight deck at the time of the ‘buttock slap’ that should have been contacted to provide evidence and appears to invite a Jones v Dunkel inference to be drawn. 141 Such an inference may only been drawn in circumstances where there is an unexplained failure of a party to call a witness that the party would be expected to call.142 The crew members in the flight deck are not persons who one would expect Qantas to call. The slap is said to have occurred outside the flight deck. Crew members in the flight deck would not likely have witnessed the ‘buttock slap’. Moreover, the Applicant could have called the flight deck crew to make good his claim that there could have been other individuals who could provide evidence in favour of his case that he did not engage in the conduct alleged.

‘Hand grabbing allegation’

[101] Ms Currey says in her 5 December 2018 statement that shortly after the ‘buttock slap’ incident, Ms Hughes informed her that it was time to start boarding the flight. 143 She said as she was about to step off the aircraft, the engineer grabbed her left hand and said words to the effect of ‘are you married?’144 She said this was witnessed by Ms Wagener.145 In her witness statement prepared for the hearing for this application, Ms Currey says that both of her investigation statements incorrectly state that the incidents occurred on 30 November 2018 when they in fact occurred on 29 November 2018.146

[102] According to Ms Hughes’ evidence, as she remained at her computer after she had discussed the ‘buttock slap’ incident with Ms Currey, she saw Ms Currey walk towards the aerobridge where the Applicant was standing by the aircraft door. 147 As Ms Currey walked past the Applicant, Ms Hughes saw him grab Ms Currey’s left hand and she heard him say to Ms Currey ‘are you married?’.148 Ms Hughes saw Ms Currey pull her hand away from the Applicant. She also heard the Applicant say to Ms Currey words to the effect of ‘I find you very beautiful.’149 Ms Hughes said that approximately five minutes later she and Ms Currey had a conversation during which Ms Hughes enquired about Ms Currey’s welfare and the two discussed reporting the incident.150

[103] Ms Wagener gave evidence that a few moments after her interaction with Ms Currey following the ‘brush in’ with the Applicant, the aircraft was ready to board. 151 When she was walking down the aerobridge she turned around and saw Ms Currey remove her hand from the grasp of the Applicant.152 When Ms Currey walked up the aerobridge, she said to Ms Wagener words to the effect of “did you see that?” Ms Wagener replied with words to the effect of ‘I saw you remove your hand from his grasp, but I didn’t hear what he said”. Ms Currey said, “he was trying to see if I had a wedding ring on.”153

[104] The Applicant denies the alleged conduct. 154 He says: “I haven’t grabbed anyone’s hand at work and pull it towards me.”155

[105] The Applicant contends that while there are three witnesses that provide evidence of the hand grabbing allegation, the credibility of the witnesses is questionable given their competing accounts of the earlier more serious allegation. For reasons earlier stated, the competing accounts submission is rejected.

[106] The Applicant’s denials are difficult to reconcile with the evidence of Ms Currey, Ms Wagener and Ms Hughes. The Applicant has not advanced any case theory explaining why these three witnesses would make up their evidence, may have colluded or are or might be mistaken. The Applicant also did not put to any of the witnesses that the hand grab incident did not occur or that they were making it up, colluding or mistaken. The preponderance of the evidence leads comfortably to the conclusion that the hand grabbing incident as alleged by Ms Currey occurred in the manner and circumstances she has described.

[107] As to the Second Allegation, for the reasons given I find that on 29 November 2018, during the boarding process on flight QF462 the Applicant engaged in the following conduct.

•  First, in the presence of Ms Currey at or near the entrance to the flight deck, the Applicant said words to the effect “I’m looking for a supermodel and they tell me there’s a supermodel up here”. Ms Currey understood the comment to have been made in jest, was not offended or threatened, and by itself it is not a significant matter.

•  Secondly, as or soon after Ms Currey walked away from the flight deck entrance towards the business class cabin, the Applicant slapped Ms Currey on her left buttock with an open hand and forcefully. Shortly thereafter he said to Ms Currey words to the effect that “I meant to get your back”.

•  Thirdly, a little later, as Ms Currey stepped from the aircraft onto the aerobridge to proceed to the gate for boarding, the Applicant grabbed Ms Currey’s left hand and he said words to the effect “are you married?”

[108] In isolation, as I have already observed, the first of these matters would be insignificant. However, the comment viewed against the backdrop of the conduct found as to the First Allegation and the second and third factual findings made above, is a mirror into the propensity of the Applicant to be, putting it kindly, sleazy.

[109] The second and third factual findings disclose conduct that is inappropriate, an assault and is also in breach of the SOC Policy.

Whether Mr Sikalias’ categorical denials that he engaged in the misconduct comprising the First and Second Incidents misled Qantas in its investigation, amounting to a further contravention of the SOC Policy.

[110] As discussed earlier, it is not in dispute that the First Allegation was inaccurately put to the Applicant as having occurred in August or September 2018. It cannot therefore be said the Applicant was dishonest in his denial of that allegation. For reasons that will become clear I consider it unnecessary to determine whether the Applicant was dishonest in his denial of the Second Allegation.

Conclusion as to valid reason.

[111] Taken together the conduct found as to the First and Second Allegations provide a sound, defensible and well-founded reason for dismissal. The conduct in which the Applicant engaged on 26 May 2018 and 29 November 2019 directed to Ms Currey in my view justified his dismissal. It was serious and in breach of Qantas’ SOC Policy. But even absent the breach of the SOC Policy, the conduct would justify dismissal.

[112] It follows that there was a valid reason for the Applicant’s dismissal related to his conduct. That there is a valid reason for the dismissal weighs against a conclusion that the dismissal was unfair.

s.387 (b) – (c) – Notification of the reason for dismissal and opportunity to respond

[113] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 156 in explicit terms,157 and in plain and clear terms.158 This is an element of that which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.159 An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[114] Just as the question to be addressed by s.387(a) of the Act is whether there was a valid reason for the Applicant’s dismissal, assessing whether notification and the opportunity to respond involves consideration of the valid reason as identified under s.387(a). As is evident from my earlier discussion, only part of the conduct (albeit a significant part) founding the valid reason for the Applicant’s dismissal formed the conduct on which Qantas relied to justify the dismissal with effect on 15 March 2019. Notification of the valid reason and an opportunity to respond needs to be assessed in that context.

[115] The Applicant submits that as the First Allegation was not correctly put to him, he was not notified of that reason or given an opportunity to respond. 160 This is strictly speaking correct.

[116] An opportunity to respond to a reason for dismissal as evident from the above, requires the employee be made aware of allegations concerning the employee’s conduct so that the employee can respond to them and is given an opportunity to defend themselves or to put matters by way of mitigation.

[117] The Applicant says that his answers might have been different had he had the correct date been put to him. This is an absurd submission given his denial of the First Allegation as now put.

[118] Qantas accepts the discrepancy but says any procedural unfairness was not material, given that his answers would have been the same. 161 His evidence before me suggests that the answers are the same. He has denied the First Allegation as put.

[119] The Applicant also makes several general complaints about notification and opportunity to respond under the general rubric of procedural fairness. First, he says that the allegations were bundled up and that taking a global approach, as he says Qantas had done, “has perverted the approach to fact finding in respect of the allegations”. 162 This is arrant nonsense. Putting to one side the erroneous date on which the First Allegation is said to have occurred, the substance of the allegations were clearly spelled out to the Applicant by Qantas in its letter of 10 December 2018.163 The details of the allegations is contained in correspondence which I have earlier set out.

[120] By letter dated 27 December 2018, 164 further particulars were provided, the details of which is contained in correspondence which I have earlier set out.

[121] True it is that even greater detail of the allegations could have been provided. Thus, for example, the approximate location on the aircraft at which the slap on Ms Currey’s buttock occurred could have been given. But did such an omission impede the Applicant’s capacity to respond to that allegation? Given his denial the answer is clearly “no”. He either slapped Ms Currey’s buttock or he did not. Would he have answered differently had he known it was in the galley and not the passageway leading from the flight deck? Plainly not. The provision of that information would not have caused an admission, or any other explanation. If he has some other explanation he could have, but did not, articulate it. The Applicant said then and he said before me that he denies the allegation. Much the same may be said of each of the other allegations. He had been given sufficient information to enable him to respond, which he did by denying the allegations.

[122] Secondly, he complains that there were three other potential witnesses in the flight deck at the time of Second Allegation and that Qantas could have, but did not, contact them to provide evidence during its investigation. He says this is a telling oversight in the context of the competing evidence. He says that Qantas did not make reasonable enquiries to satisfy itself on an objective basis of the allegations. On the material before Qantas at the time, and before me now, the three crew members could only have given evidence about the supermodel comment, about which Ms Currey does not in a practical sense complain. Given the circumstances of the slapping incident and the hand grabbing incident, the three crew members could only have said that they did not see either. This would not “clear” the Applicant and it adds nothing to the sum of information that Qantas had gathered through the investigation. The crew members could not from inside the flight deck, have seen either incident. That leaves the slapping, the grabbing and the related utterances allegations made by Ms Currey and the Applicant’s denial. His capacity to understand and to respond to these allegations was unaffected by the absence of any inquiry with the three crew members.

[123] Thirdly, the Applicant complains about the investigator’s conduct of the investigation. The criticism of the investigation undertaken by Mr Walker includes that by delegating the interview process to another employee Mr Walker was unable to assess the credibility of persons who were interviewed; that he did not offer the Applicant a support person for the stand down meeting; that he did not consult the SOC Policy before the stand down meeting with the Applicant; that he did not seek to test the available evidence; that he did not check staffing rosters until after the Applicant was dismissed; and that he had misled the decision maker as to the thoroughness of his investigation.

[124] Save for the enquiry as to staffing rosters in relation to the First Allegation, these complaints are without substance. Mr Walker had conducted workplace investigations previously. 165 He was experienced in workplace investigations. There is nothing unusual in an investigator delegating the conduct of interviews with one or more witnesses to another person. There is no suggestion that the person who conducted interviews and prepared draft statements which were adopted by the witnesses making them, inaccurately recorded what was said by any witness. Mr Walker conducted an interview with Ms Currey, albeit over the telephone, and to the extent that it was necessary for him to do, would likely have been able to assess her credibility having regard to the nature of the allegations that were being made.

[125] There was no obligation on Mr Walker to offer the Applicant a support person and that he did not consult the SOC Policy before or at the time of the stand-down meeting with the Applicant is of little moment. Mr Walker’s assessment of the credibility of any witness and for that matter the testing of available evidence does not impact on the notification of the allegations or of the valid reason to the Applicant. Nor does it affect the quality of the opportunity given to the Applicant to respond to the allegations or the valid reason.

[126] Plainly had Mr Walker made enquiries about staffing rosters the erroneous dates in relation to the First Allegation would have been discovered sooner. I have already made observations about how this affected the notification and the opportunity to respond afforded to the Applicant.

[127] Fourthly, the Applicant complains about the decision maker Mr Benjamin Knabe, who it is said made his decision without reviewing the witness statements or other evidence. This submission relies for its veracity on an exchange during cross-examination 166. It is said by the Applicant that Mr Knabe changed his evidence. The passages from the transcript on which the Applicant relies are taken out of context and are not considered in light of the totality of Mr Knabe’s evidence and the circumstances in which he gave it.

[128] First, Mr Knabe gave evidence that he had read the whole of the investigation file which included the witness statements before making a decision to dismiss the Applicant. 167 Secondly, Mr Knabe gave evidence that he has significant hearing issues and that he is totally deaf on his left side.168 Thirdly, the nature of the cross-examination, which does not appear clearly from the transcript, but which was evident to me presiding during the hearing, was disjointed, confused and interrupted. This is not intended as a criticism of the cross examiner but merely a recognition that at that time the cross-examiner was suffering under a disability which affected the delivery and coherence of his questions. In my view, in light of the earlier evidence given by Mr Knabe, the reference in the transcript to the effect that he had not read the witness statements was a reference, which undoubtedly is correct, that he had not read the witness statements filed in the proceeding.

[129] In the circumstances I agree with the submission made by Qantas that the criticism of Mr Knabe’s credibility is both unfair and unwarranted.

[130] Apart from these matters there is no real issue that the Applicant was both notified of the conduct the subject of the Second Allegation which forms part of the valid reason I have found and given an opportunity to respond. Weighing all these matters, whilst the erroneous dates as to the First Allegation is unfortunate, I consider that in substance the Applicant was notified of the valid reason and his capacity to respond, given his denial and his continued denial in the proceedings before me, was not affected or compromised by the erroneous date of the First Allegation. He was given an opportunity to respond to the valid reason. In the circumstances these two matters (notification and opportunity to respond) weigh against a conclusion that the Applicant’s dismissal was unfair.

Section 387(d) - any unreasonable refusal by the employer to allow the person to have a support person

[131] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. This consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, this section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 169 It may be appropriate, in some cases, to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[132] As I have noted earlier, the Applicant raises under the rubric of procedural fairness that Mr Walker, the investigator, did not offer the Applicant a support person in the initial stand down meeting on 4 December 2018. The Applicant claims that Mr Walker started to form a view in relation to the Applicant’s guilt at the beginning of the process without consideration for “due process”. 170 The Applicant submits this is demonstrable by the fact that Mr Walker took into account the Applicant’s statement “I know what this is about”, which was made in the meeting where the Applicant did not have a support person. There is no basis for the submission that Mr Walker assumed the “Applicant’s guilt”.

[133] The consideration in s.387(d) does not require or confer a right on an employee to have a support person present at every or even any meeting in relation to a possible dismissal. The relevant consideration is whether an employer unreasonably refused an employee’s request to have a support person present to assist in any discussions relating to dismissal. There was no refusal on any occasion. Further, Qantas’ correspondence to the Applicant in relation to the allegations and the investigation process reminded the Applicant of his right to have a support person present. That Mr Walker did not offer the Applicant a support person at the stand down meeting is of little movement. This consideration does not weigh in favour of a conclusion the dismissal was unfair.

Warnings regarding unsatisfactory performance – s.387(e)

[134] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 171  It is not contended that the Applicant’s dismissal related to unsatisfactory performance. In the circumstances this consideration weighs neutrally.

Impact of the size of the Respondent on the procedure followed – s.387(f)

[135] Qantas operates a business which is not insignificant in size. It is a very large employer. Although it does not have boundless resources it does have sufficient resources to enable it to properly understand its rights and obligations in connection with employment and dismissal of staff. The Applicant contends that having regard to its size and resources Qantas should be held to a “high standard in terms of its investigation and dismissal processes”. 172 This submission is misconceived. The consideration in s.387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. There is no suggestion that the size of Qantas’ enterprise impacted negatively on the procedure that it adopted in effecting the dismissal or investigating the allegations. As would be expected, Qantas conducted an investigation and utilised its internal resources to obtain advice about the procedure adopted. In the circumstances this consideration weighs neutrally.

Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[136] Qantas has on staff human resources and industrial relations professionals to provide human resources services and industrial relations advice. This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact. Here there was no such absence and so this consideration weighs neutrally.

Section 387(h) - any other matters that the Commission considers relevant.

[137] The Applicant makes various claims about the procedural defects in the investigation process with which I have earlier dealt. I rely on that analysis without repeating it. For the reasons earlier given, the claims made are largely without merit and do not weigh in favour of a conclusion that the Applicant’s dismissal was unfair.

[138] The Applicant also raises the following circumstances which he says render the dismissal harsh and unjust:

•  his long length of service of 36 years;

•  that he can no longer provide financial support to his school aged children;

•  has been forced to live with his parents to save costs; and

•  if the dismissal is upheld, he will be unfairly stigmatised causing future problems for his relationships with people and any application for work he may make.

[139] The Applicant sought also to advance a case that his dismissal was harsh because it amounted to differential treatment when compared to the way in which Qantas had meted out disciplinary action to others for “similar or worse” conduct. 173 The material on which the Applicant relied was vague, it was not in any form to which Qantas could properly respond or in a form to which any weight should attach. It may fairly be described as “chatter” and “gossip”, not evidence.

[140] Qantas contends that these personal circumstances were considered by Mr Knabe in mitigation, however none were sufficient to outweigh the severity of the conduct. Qantas contends that it cannot send ‘mixed signals’ to employees by excusing the Applicant for this behaviour due to his length of service. Qantas submits if anything this should have given him more time to become familiar with Qantas’ policies and procedures. 174 Furthermore it contends that whatever a person’s view may be about the seriousness of the conduct towards Ms Currey, his misconduct in attempting to deceive Qantas in its investigation is unquestionably serious. Qantas contends that employers are entitled to demand absolute honesty from their employees in relation to disciplinary procedures.175

[141] As I have earlier noted, I have found it unnecessary to deal with the contention of dishonesty during the investigation by Qantas of the allegations. The conduct in which I have found the Applicant to have engaged provides sufficient foundation or justification for his dismissal.

[142] The Applicant’s age, his length of service, the fact that his job as an engineer with Qantas has essentially been his entire career and the financial impact of losing that job are all matters which are to be weighed in the balance in assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, these matters tend to be relevant in assessing whether the dismissal was harsh. These matters are however, to be balanced against the seriousness of the conduct in which I have found the Applicant has engaged. As disclosed from his own evidence the Applicant was fully aware that the conduct of the kind in which Qantas alleges the Applicant engaged was serious. I am satisfied the conduct that I have found the Applicant to have engaged in is serious and justified the dismissal. Though it is doubtless the case that the matters set out above will have some harsh impact on the Applicant they do not weigh so heavily when account is taken of the seriousness of the valid reason and the other matters that either weigh against a conclusion of the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. The Applicant is guilty of the conduct and so the dismissal was not unjust. Nor was dismissal disproportionate or otherwise unreasonable considering the seriousness of the conduct and the other circumstances that I am required to take into account, and which I have earlier discussed. The dismissal was not unreasonable.

[143] Ultimately the conduct in which the Applicant engaged was serious conduct and it justified dismissal. Weighing the personal hardship brought about by the dismissal must also be tempered by the fact that the hardship is a product of the serious conduct in which the Applicant engaged. It was that conduct which led to the dismissal.

Conclusion

[144] For the reasons set out the dismissal of the Applicant was not harsh, unjust or unreasonable. It follows that it was not unfair.

[145] The application for unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

S Morgan and later S Purvinas, for the Applicant
A Pollock, counsel for the Respondent

Hearing details:

2019
Melbourne
18, 19, 20 November and 23 December

Printed by authority of the Commonwealth Government Printer

<PR718099>

 1   Exhibit 2 at [29]; Exhibit 8 at [24]-[25]

 2   Exhibit 8 at [25]

 3   Exhibit 3 at [7]

 4   Exhibit 8 at [29]

 5   Exhibit 8, KW-7; Exhibit 2, LS-1

 6   Ibid

 7   Ibid

 8   Ibid

 9   Ibid

 10   Ibid

 11   Exhibit 2, LS-2

 12   Ibid

 13   Exhibit 7, WD-1

 14   AE412051

 15   Exhibit 2, LS-3

 16   Exhibit 2, LS-3

 17   Exhibit 8 at [48]

 18   Exhibit 7 at [45]

 19   Ibid at [46]

 20   Exhibit 8 at [48]

 21   Exhibit 8, KW-16; Exhibit 2, LS-4

 22   Ibid

 23   Ibid

 24   Ibid

 25   Ibid

 26   Exhibit 7, WD-2

 27   Ibid

 28   Exhibit 2 at [54]; Exhibit 10 at [42.M]

 29   Exhibit 2 at [54] and LS-6; Exhibit 10 at [42.M] and BJK-10

 30   Exhibit 10, BJK-14

 31   Exhibit 10, BJK-14

 32   Transcript at PN340 – PN341

 33   Exhibit 10, BJK-14

 34   Exhibit 3

 35   [1986] HCA 40; (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]

 36   See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 37   (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 38   (1987) 16 FCR 167 at 184

 39   [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41

 40   (1995) 185 CLR 410

 41   Ibid at 465

 42   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

 43   Briginshaw v Briginshaw [1938] 60 CLR 336

 44   King v Freshmore (Vic) Pty Ltd Print S4213 at [23]-[24].

 45   Respondent’s outline of closing submissions at [5]

 46   Applicant’s closing submissions at [5]

 47   [1938] 60 CLR 336

 48   Briginshaw v Briginshaw (1938) 60 CLR 336

 49   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445

 50   Ibid at [6]

 51   Ibid at [7]

 52   Respondent’s outline of closing submissions at [9] – [18]

 53   Respondent’s closing submissions [13] – [18]

 54   Exhibit 2, Exhibit 3, Transcript at PN151-PN766

 55   Exhibit 7

 56   Exhibit 1

 57   Exhibit 11, Transcript at PN1861-PN2434

 58   Exhibit 14, Transcript at PN2640-PN2739

 59   Exhibit 13

 60   Exhibit 8, Transcript at PN833-PN932

 61   Exhibit 15, Transcript at PN2742- PN2905

 62   Exhibit 10, Transcript at PN1170-PN1837

 63   Transcript at PN226-PN228

 64   Exhibit 2 at [56]

 65   Exhibit 11, MAC-1

 66   Ibid at [18]

 67   Ibid at [21]

 68   Exhibit 13 at [7]

 69   Transcript at PN2499-2500

 70   Exhibit 4, Exhibit 5, Exhibit 6 and Exhibit 16

 71   Exhibit 2 at [62] – [64], Transcript at PN486 - PN493

 72   Applicant’s closing submissions at [38]-[40]

 73   Applicant’s closing submissions at [42] –[44]

 74   Applicant’s closing submissions at [44]

 75   Respondent’s closing submissions at [22]

 76   Exhibit 6

 77   Exhibit 11 at [50], MAC-4

 78   Exhibit 10, BJK-2 (SOC Policy at cl 8.2)

 79   Exhibit 4, Exhibit 5, Exhibit 6, and Exhibit 16

 80   Exhibit 11 at [32]-[35], MAC-1 at [16]

 81   Applicant's closing submissions at [43]

 82   Exhibit 11, MAC-1 at [18]

 83   Transcript at PN1981

 84   Exhibit 13, JS-1 at [6]

 85   Transcript at PN2486

 86   Transcript at PN2499 – PN2504

 87   Transcript at PN1978

 88   Transcript at PN1981

 89   Ibid, Exhibit 11 at [16] – [17], MAC-1 at [20] – [23]

 90   Transcript at PN1981, Exhibit 11 at [18]

 91   Exhibit 13 at [16]

 92   Exhibit 13 at [18]

 93   Exhibit 13 at [19]

 94   Exhibit 13 at [22], JS – 1 at [7], [11]

 95   Exhibit 11, MAC-1 at [19]

 96   Exhibit 2, LS-1; Exhibit 10, BJK-2 at pp 5 - 6

 97   Ibid

 98   Exhibit 11, MAC-1 at [7]

 99   Transcript at PN2183 – PN2203

 100   Applicant’s closing submissions at [45] - [48]

 101   Respondent’s closing submissions at [34]

 102   Respondent’s closing submissions at [34] and [35]

 103   Exhibit 2 at [62]

 104   Transcript at PN2183 – PN2204

 105   Transcript at PN2204

 106   Exhibit 2 at [56], [63]

 107   Exhibit 11, MAC-1 at [8], MAC-2 at [10]

 108   Exhibit 11 at [26], MAC-1 at [8]-[9]

 109   Transcript at PN2430

 110   Ibid

 111   Exhibit 11 at [27]

 112   Exhibit 15 at [18]

 113   Exhibit 15 at [23]

 114   Transcript at PN2782 – PN2810

 115   Transcript at PN2863 – PN2869

 116   Exhibit 14, RADW-2

 117   Exhibit 14 at [14] – [15]; Transcript at PN2964

 118   Transcript at PN2680 – PN2681

 119   Exhibit 14 at [14] – [15]

 120   Applicant’s closing submissions at [18] – [19]

 121   Transcript at PN2883 – PN2886

 122   Applicant’s closing submissions at [20]-[21]

 123   Ibid at [20] – [35], Transcript at PN2931 – PN2947

 124   Applicant’s closing submissions [25]

 125   Transcript at PN3018

 126   Transcript at PN1425-PN1429 and Applicant’s closing submissions at [36]

 127   Transcript at PN3014-PN2016

 128   Respondent’s closing submissions at [39]

 129   Ibid at [40]

 130   Respondent’s closing submissions at [41]

 131   Ibid at [45] – [46]

 132   Transcript at PN3016

 133   Transcript at PN2407

 134   Exhibit 11, MAC-1 at [25]

 135   Transcript at PN2406

 136   Transcript at PN3014 - 3015

 137   Transcript at PN3015

 138   Exhibit 14, RADW-2 at [6]

 139   Transcript at PN2289 – PN2291

 140   Transcript at PN2289 – PN2291

 141   Applicant’s closing submissions at [56]

 142   Respondent’s closing submissions at [68] – [71]

 143   Exhibit 11, MAC-1 at [10]

 144   Ibid

 145   Ibid

 146   Exhibit 11 at [23]

 147   Exhibit 15 at [20]

 148   Ibid at [21]

 149   Ibid at [22]

 150   Ibid at [23]

 151   Exhibit 14, RADW-1 at [7], RADW-2 at [7]

 152   Ibid

 153   Exhibit 14, RADW-1 at [8]-[9], RADW-2, at [8] –[9]

 154   Exhibit 2 at [63]

 155   Transcript at PN496

 156   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 157   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 150–151

 158   Previsic v Australian Quarantine Inspection Services Print Q3730

 159   See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s.170CG(3)(b) and (c) of the Workplace Relations Act 1996

 160   Applicant’s closing submissions at [41] – [42]

 161   Transcript at PN3146

 162   Applicant’s closing submissions at [55]

 163   Exhibit 2, LS-1

 164   Exbibit 2, LS-3

 165   Transcript at PN868

 166   Transcript at PN1218 – PN1223

 167   Ibid at PN1217

 168   Ibid at PN1832

 169   See also Fair Work Bill 2008 – Explanatory Memorandum at [1542]

 170   Applicant’s closing submissions at [58] – [59]

 171   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 172   Applicant's closing submissions at [80]

 173   Exhibit 1 [6]-[10], [14]-[17]

 174   Respondent’s closing submissions at [85] – [87]

 175   Ibid at [86] – [87]