DECISION

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

Mr Gary Mellios
v
Qantas Airways Limited
(U2019/3179)

Application for an unfair dismissal remedy – Use of Company issued device to view and store pornographic and offensive material – Distinction between private use and viewing pornographic and offensive material at work – Valid reason for dismissal – Mitigating factors not sufficient to outweigh valid reason – Dismissal not unfair – Application dismissed.

BACKGROUND

[1] Mr Gary Christopher Mellios (the Applicant) applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment by Qantas Airways Limited (the Respondent/Qantas). The Applicant was employed by the Respondent as a Licensed Aircraft Engineer (LAME) from 4 January 1978 until his dismissal on 26 February 2019. The background to the matter can be summarised as follows.

[2] In 2016 Qantas issued LAMEs with iPads for use at work. LAMEs were permitted reasonable personal use of their Qantas issued iPads. Qantas operates a Mobile Device Management (MDM) system which allows employees to remotely access work information systems from mobile devices which includes Qantas issued devices and those that are privately owned or leased by employees. Upon being issued with the iPad on 26 May 2016, the Applicant, in accordance with instructions from Qantas, enrolled it into the then MDM system. Qantas subsequently changed the MDM system and on 26 June 2017, the Applicant enrolled his iPad into the new system which operated through an application (app) known as “Comp Portal”.

[3] The Comp Portal app has two settings: “corporate” and “personal”. Regardless of which setting is selected there is a privacy statement located within the app which deals with what the Company can and cannot see on a device on which the app is installed. When the Applicant enrolled his iPad by installing the Comp Portal app, the privacy statement in the app (which was also set out in a step by step guide to enrolling the iPad), informed him that Qantas could not see a range of personal material stored on the iPad including his web history and photographs.

[4] The Applicant used the iPad to browse a range of URLs and websites containing pornographic material and downloaded and viewed that material on the iPad. Qantas became aware of the Applicant’s use of the iPad to view pornographic material following reports made in or around July and September 2018 by a female refueller (Ms Remfrey) employed by Caltex who alleged that on two occasions during working hours, she had seen the Applicant viewing a video selection page containing pornographic images on his iPad. The Applicant’s iPad was seized by Qantas and forensically examined. Following the forensic examination, an investigation commenced in relation to allegations that the Applicant used his iPad at work and privately, to store, access and view material, variously described as obscene, pornographic and/or offensive. The allegations included that such material had been seen by Ms Remfrey at work, in circumstances where the Applicant knew, or ought to have known, that it was visible and would cause offence.

[5] After the investigation commenced Ms Remfrey reported that another female refueller (Ms Downes) had informed her that she had also seen the Applicant viewing pornographic material on his iPad at work. Ms Downes was approached by Qantas and agreed to make a statement. In that statement Ms Downes alleged that on three occasions in 2016, she witnessed the Applicant viewing pornographic images in the workplace during working time. The investigation was expanded to include an allegation in relation to Ms Downes. Ultimately all allegations were substantiated and following a show cause process the Applicant was dismissed.

[6] The Applicant maintains that he did not use the iPad to view pornographic material while at work and that such viewing was undertaken at home, in his own time and using his personal Wi-Fi connection. The Applicant contends that he reasonably believed that he was permitted to use the iPad in this way, given the privacy statement and other information provided to him when he was issued with the iPad. The Applicant also contends that there was no valid reason for his dismissal and the dismissal was harsh and unjust due to its disproportionality to the Applicant’s actual conduct, the poor process followed by Qantas and his personal circumstances including that he is 59 years old, has worked for Qantas for 41 years and has minimal prospects of gaining other employment in the only profession that he knows. The Applicant seeks reinstatement to his former position together with orders that he be paid the remuneration lost because of his dismissal and that his continuity of employment be maintained.

[7] Qantas maintains that its investigation substantiated that the Applicant used a company issued iPad to browse pornographic websites and view explicit content, both at work and outside work hours, in contravention of the Company’s Standards of Conduct (SOC) Policy and Information Technology (IT) Policy. Qantas contends that the privacy statement in the Comp Portal app relates only to what Qantas can see through the Comp Portal app and does not over-ride the SOC Policy and the IT Policy which apply to personal use of the iPad. Qantas also maintains that the Applicant’s misconduct was compounded by his failure to recognise the seriousness of his actions and misleading responses to questions during the investigation which sought to mitigate the seriousness of his misconduct by misstating its nature. Qantas further maintains that: the totality of the Applicant’s misconduct constitutes a valid reason for dismissal; there was no procedural defect in Qantas’ disciplinary process; and the Applicant has failed to advance any other relevant matters sufficient to sustain a finding that the dismissal was otherwise unfair.

[8] The matter was listed for a conciliation conference before a Fair Work Conciliator, was not resolved and was then allocated to me for determination. A hearing was conducted and both parties sought to be represented by Counsel. Permission was granted on the basis that the matter involved complexity given that it concerned serious misconduct and I was satisfied that representation would enable the matter to be dealt with more efficiently.

[9] The Applicant was represented by Ms Saunders of Counsel instructed by the Australian Licenced Aircraft Engineers Association (ALAEA). The Respondent was represented by Mr Pollock of Counsel instructed by Ashurst. The Applicant gave evidence on his own behalf. 1 Evidence on behalf of the Applicant was also given by Mr Stephen Purvinas, Federal Secretary of the ALAEA.2 Evidence on behalf of the Respondent was given by:

•  Ms Jennifer Louise Remfrey, Aircraft Refueller, Caltex; 3

•  Ms Jennifer Maree Downes, Aircraft Refueller, Caltex; 4

•  Mr Martin Leslie Grimshaw, Engineering Shift Manager, Line Maintenance Operations (LMO) Qantas; 5

•  Ms Christina Leonardi, Cyber Security Incident Response Manager, Qantas; 6

•  Mr Gerald-Jan Henry Pinto, Engineering Applications Delivery Manager, Qantas; 7

•  Mr Paul Michael Barry, Senior Security Manager, IBM Australia; 8

•  Ms Tracey-Anne Marion Hobl, LMO Engineering Manager, Brisbane, Qantas; 9 and

•  Mr Glen Andrew Stapleton, Leading Hand, Caltex. 10

[10] The statements of witnesses for Qantas comprised a statement made for these proceedings appending (among other documents) earlier statements made in the investigation conducted by Qantas before the Applicant was dismissed. It has been necessary to examine those statements and the range of documentation tendered by both parties in some detail.

[11] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about any of those matters. I find that:

(a) the application was made within the period required by s.394(2);

(b) the Applicant was a person protected from unfair dismissal;

(c) Qantas was not a “small business employer” as defined in s.23 of the FW Act; and

(d) the dismissal was not a case of genuine redundancy.

LEGISLATION

[12] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

“(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.”

[13] The employer bears the onus of establishing that there was a valid reason for a dismissal.¹¹ A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”¹² The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,¹³ and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.¹⁴

[14] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response. 15 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.16

[15] The Applicant was dismissed as a result of Qantas finding that he had engaged in serious misconduct. The essence of the most serious allegation found to have been substantiated was that the Applicant’s conduct amounted to harassment of two female employees by viewing pornographic material in the workplace in circumstances where he knew or ought to have known that it would be seen by the employees concerned and would cause offence, intimidation or humiliation. In determining whether the Applicant did engage in the conduct alleged and whether there was a valid reason for his dismissal, the standard of proof is the balance of probabilities.

[16] Given the seriousness of the allegations, the principle in Briginshaw v Briginshaw 17 is relevant to the effect that while the standard of proof remains the balance of probabilities, the seriousness of the allegation affects the process of reaching a level of satisfaction that the conduct. In Neat Holdings v Karajan18 the High Court held in relation to earlier consideration of the principle in Briginshaw, that statements to the effect that clear or cogent or strict proof is necessary where a question of whether a person in civil proceedings has engaged in criminal conduct or fraud is to be determined, should not be understood as directed to the standard of proof. Rather such statements should be understood as: “…merely reflecting a conventional perception that members of our society do not ordinarily engage in criminal or fraudulent conduct.”19 The Court went on to observe that:

“When an issue falls for determination on the balance of probabilities and the determination depends on the choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but on an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately however it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” 20

[17] In considering whether there is a valid reason for the Applicant’s dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct. Where the case is inferential the cumulative effect of the evidence must be considered. Proof of any fact on the balance of probabilities can be established by circumstantial evidence – that is by proof of primary or intermediate facts from which a further fact can be inferred. 21 In United Group Resources Pty Ltd and Others v Calabro and Others (No 5)22 McKerracher J set out the principles in civil cases in relation to finding facts by inference, as follows:

“A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible and is not required. All that is necessary is that circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought. For the purpose of considering whether this test is met, the Court must consider the accumulation of the evidence. It is appropriate not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence, by considering the weight which is to be given to the united force of all of the circumstances together. The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference.” 23 (citations omitted).

[18] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable.  A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 24

EVIDENCE

Qantas policies and procedures

[19] The Qantas SOC Policy relevantly provides that employees must not:

•  Engage in threatening or intimidatory behaviour (Clause 15.1);

•  Engage in discrimination, harassment, bullying or victimisation (clause 15.2);

•  Engage in unauthorised use of Company time, resources, facilities or the IT Environment for personal benefit or private purposes (clause 15.5);

•  Use the Company’s electronic communication facilities, equipment or the IT environment (eg internet, email, phone, fax, iPad, electronic organiser) for conducting unlawful or unethical activities or transmitting, accessing, storing, copying or otherwise being in possession of illegal, unethical, defamatory or offensive material (clause 15.6(a)); and

•  Accessing, storing, processing or transmitting any information, material and/or images of a threatening, obscene, pornographic, discriminatory or harassing nature (clause 15.7).

[20] In relation to harassment, the SOC Policy at clause 8, provides examples of such conduct, which include: the display or circulation (by email, text message or on social media) of sexual material, including magazines, posters, or pictures and messages and of pornographic or other offensive material. The SOC Policy also provides at clause 13.2 that:

“13.2 Monitoring of communication and the IT Environment

(a) Qantas will notify its Employees that it will carry out ongoing, intermittent monitoring, recording and surveillance of the use of the Qantas Group’s IT environment by the Employee - including emails, internet and files (including files stored on the Employee’s work computer).

(b) The surveillance may be carried out by all means available to the Qantas Group which may include:

(i) accessing the Employee’s email account or emails;

(ii) accessing files of the Employee;

(iii) accessing the Employee’s work computer; and

(iv) accessing records of internet usage by the Employee (including sites and pages visited, files downloaded, video and audio files accessed and data input);

(c) Employees must comply with all applicable laws and Qantas policies relating to the use of all communications, information technology and electronic resources, as amended from time to time.

Refer: Qantas Group Information Technology Policy.”

[21] The term “IT Environment” is defined in the SOC Policy as: “any facility, equipment, network, system (infrastructure or application) or device component that is used by the Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means.” The SOC Policy was in effect at the time the alleged conduct engaged in by the Applicant occurred although the version tendered by Ms Hobl is dated 5 December 2018. Ms Hobl was unable to confirm in cross-examination when the reference to an iPad was included in clause 15.6(a) of the SOC Policy at the time the Applicant was issued with the iPad or whether it was related to the rollout of iPads for LAMEs. 25 It was submitted for the Applicant that given the fact that other documents provided to the Applicant at the time he was issued with the iPad do not define the IT environment to include devices such as iPads, the Commission could not be satisfied that the SOC Policy contained this provision at the relevant time.26 The definition of the IT environment in Qantas policies is a matter to which I will return.

[22] Qantas also has a Cyber Security Policy which was summarised by Ms Hobl in paragraph 12 of her witness statement as follows:

“12. The Cyber Security Policy relevantly provides that employees must not use the Qantas IT environment (defined by the Cyber Security Policy to include any facility, equipment, network, system or device component that is used by the Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means) for unacceptable reasons, including:

a) transmitting, accessing, storing, copying or otherwise being in possession of illegal, unethical, defamatory or offensive material (clause 2.13(a));

b) transmitting, accessing, storing or copying pornography or other material which may be generally regarded as objectionable, discriminatory or harassment (clause 2.13(b));

c) excessive access, transmission, copying or storing of data unrelated to the Group's business (clause 2.13(c));

d) excessive personal or unauthorised use of the IT Environment (clause 2.13(d));

e) accessing information not directly related to the employee's immediate Qantas Group work requirements (clause 2.13(f)); and

f) any activity which does or may bring the Group into disrepute, cause the Group or any of its customers to bear unreasonable risks or costs, cause disruption to any Qantas Group business or service, or breach any laws or regulations (clause 2.13(p)).” 27

[23] The Cyber Security Policy was formerly known as the IT Policy. At the time the Applicant was issued with the iPad, the IT Policy relevantly provided (with reference to a Surveillance and Usage Notice set out in the Policy) that:

“Your use of Qantas Information Technology systems may be monitored and investigated to ensure compliance with the law, applicable regulations and Qantas Policies.”

[24] Other relevant provisions of the IT Policy were set out in clauses 2.7, 2.8, 2.9 and 3.1 as follows.

“Acceptable Usage

2.7 Users must only use the IT Environment:

a) to perform authorised and lawful business activities for Qantas; and

b) with prior approval from their Manager, to conduct or undertake professional development activities.

2.8 Users are permitted to use the IT Environment for limited personal use which is lawful, not excessive, does not result in excessive cost and does not interfere with, impact upon or interrupt the efficient, lawful, ethical operation of Qantas’ business.

Unacceptable Usage

2.9 Users must not use the IT Environment for unacceptable reasons, including:

a) conducting unlawful or unethical activities or transmitting, accessing, storing, copying or otherwise being in possession of illegal, unethical, defamatory or offensive material, or material in breach of copyright or licensing conditions;

b) transmitting, accessing, storing or copying pornography or other material which may be generally regarded as objectionable, discriminatory or harassment;

c) excessive access, transmission, copying or storing of data unrelated to Qantas business;

d) excessive personal or unauthorised use of the IT Environment; …

…

p) any activity which does or may bring Qantas into disrepute, cause Qantas or any of its customers to bear unreasonable risks or costs, cause disruption to any Qantas business or service, breach any laws or regulations.

…

Employees

3.1 Employees are responsible for:

a) understanding and complying with the requirements of this Policy; …”. 28

[25] The terms “IT Device” and “IT Environment” were defined separately in clause 6 of the IT Policy as follows:

“IT Device” means any personal computer, mobile phone, tablet or portable storage device.

“IT Environment” means any facility, equipment, network, system (infrastructure or application) or device component that is used by the Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means.

[26] Ms Hobl stated that the substantive content of the Cyber Security Policy clauses referred to in paragraph 12 of her statement were also contained in the IT Policy. The Cyber Security Policy also defines the terms “IT Device” and “IT Environment’ in the same terms as the previous IT Policy.

[27] Ms Hobl tendered the Applicant’s training records to establish that he attended SOC Policy Refresher training in July 2016 which included a segment on harassment. The refresher training was in the form of an interactive on-line module in which various scenarios were portrayed by actors and participants were asked to respond to questions about those scenarios by clicking on one of a number of possible responses posed in a multiple-choice format. The training was self-paced and when a wrong answer was given an explanation was provided so that the participant could understand why the answer was incorrect and move on. Under cross-examination, Ms Hobl was asked to view a scenario and answer a question related to the point at which conduct that is apparently accepted by another party, becomes harassment. Ms Hobl took a more conservative view about the point at which conduct became harassment so that her response would have been incorrect had she been undertaking the training.

[28] Mr Grimshaw, Ms Hobl and Ms Leonardi agreed under cross-examination that the IT Policy has a range of purposes and that not all aspects of the Policy apply to employees on the tarmac. They also agreed that there is a need to train employees in their obligations under the Policy and ensure that they understand those obligations. Mr Grimshaw agreed with the proposition put to him by Counsel for the Applicant that whether conduct is intentional is relevant to whether it is misconduct and that if someone has not been trained that is also relevant to whether conduct is misconduct. Mr Grimshaw also agreed that if someone has been acting on an incorrect understanding of a policy but had reasonably held a view about the policy it would not be misconduct. 29

[29] In cross-examination, the Applicant agreed that he is familiar with Qantas policies and procedures and has been trained in various policies and procedures during his employment. The Applicant also agreed that as a LAME he understands the importance of policies and procedures in performing all aspects of his work. The Applicant agreed that he had received training in the SOC Policy and that it is accessible on the Company’s intranet site. Further the Applicant agreed that the SOC Policy requires that he be familiar with other Company and applicable Qantas Group policies and procedures and relevant legislation. The Applicant said that he understood that harassment as defined in the SOC Policy included display or circulation, for example by email, text message or on social media, of sexual material, including magazines, posters or pictures and messages and that the SOC Policy prohibited harassment taking that particular form.

[30] The Qantas information technology environment is variously referred to as the IT environment or the ICT environment. Ms Leonardi’s evidence in relation to the Qantas IT environment is that the Company operates a technical policy so that when a device is connected to the Qantas Wi-Fi network, access to websites that Qantas does not want employees to visit, can be blocked. Ms Leonardi accepted that Qantas cannot mandate what an employee does on the 4G network or their own home Wi-Fi.

The provision of the iPad to the Applicant

[31] Ms Leonardi also gave evidence about the Mobile Device Management (MDM) system Qantas uses to allow employees to remotely access work information such as emails, calendar information and documents, from mobile devices. That system allows employees to access such information on their privately owned or leased devices or on Qantas issued devices by enrolling those devices into the MDM system.

[32] It is not in dispute that in around 2016 Qantas issued LAMEs (including the Applicant) with iPads. The iPads were provided for use at work including for the purpose of LAMEs downloading and looking at maintenance manuals and other material necessary for their role. Ms Leonardi states that she has reviewed Qantas business records which indicate that the Applicant received his iPad on 26 May 2016.

[33] Mr Grimshaw tendered a Declaration form signed by the Applicant on 26 May 2016. The Declaration form is headed “Qantas Engineering iPad Declaration (to be completed by each Engineering member collecting an iPad”. On completing the form, the Applicant declared a number of matters by ticking a box beside them including:

“I have read and understood the Qantas IT Policy and the Qantas Mobile Computing and Remote Access Policies.”  30

[34] Ms Leonardi’s evidence is that when the Applicant received his iPad, Qantas was using software called Citrix XenMobile to operate its MDM system. Ms Leonardi tendered a copy of the step by step guide published by Qantas at the time the Applicant was provided with an iPad, for employees to enrol their device in the Citrix XenMobile system.³¹ The document entitled “Qantas Mobility Service Enrolment Guide – iPad” includes a screen which states:

“installing this profile will allow the administrator … to remotely manage your iPad. The administrator may collect personal data, add/remove accounts and restrictions, list install and manage apps. and remotely erase data on your iPad.”

[35] Ms Leonardi also tendered a copy of a policy entitled “Staff Privately Owned Mobile Device Terms and Conditions” which applied when the Applicant was provided with the iPad.³² Those terms and conditions define “Device” as any mobile equipment owned or leased by a staff member that is used to access the Qantas ICT environment, which is separately defined as follows:

“ICT Environment” includes any infrastructure, equipment, system or database that is used by a Qantas Group entity in connection with the access, storage, transmission or processing of any information via electronic means.”

[36] The Terms and Conditions document provided at clause 11.1 that the employee acknowledges and agrees that use of the Qantas ICT environment is subject to compliance with the IT Policy which is available at a hyperlinked address in the document. In about November 2016 Qantas transitioned to new software for its MDM system known as Microsoft InTune. This required employees to migrate devices – including private devices and Qantas issued devices – to the new InTune MDM system and involved removing Citrix XenMobile from those devices and installing an app known as Comp Portal. A Step by Step Guide was provided to employees explaining how to remove Citrix XenMobile from an iPad and install the Comp Portal app. This Guide replaced the previous Enrolment Guide dated 07/02/2014.

[37] Ms Leonardi stated that business records indicate that the Applicant migrated his iPad onto the Microsoft InTune system on 26 June 2017. Ms Leonardi said that in order to do this, employees were required to download the Comp Portal app on their device and to register or “enrol” their device. The Qantas iPad Enrolment Guide tendered by Ms Leonardi detailed steps to be taken by employees enrolling iPads in the Qantas Mobility Service.  33 The Enrolment Guide depicts copies of screens that employees see as they take each step to enrol their iPads. In relation to the subject of “Privacy” there is a screen containing the following statement in relation to privacy:

“We care about your privacy

IT Admin cannot see this on your device:

•  Call and web history

•  Location

•  Email and text messages

•  Contacts

•  Passwords

•  Calendar

•  Camera roll

IT Admin can see this on your device:

•  Model

•  Serial number

•  Operating system

•  App names

•  Owner

•  Device name” 34

[38] The same or a substantially similar statement is installed on the iPad as part of the Comp Portal app (“What your organisation can never see”), and can be viewed at any time by the user of the iPad. Ms Leonardi said that once the device has been registered in the Comp Portal app, employees can (among other things) access their work emails and calendars. When an employee installs the Comp Portal app on a device (whether it is a personal or a Qantas device) the employee must agree to certain terms and conditions, which describe how the Comp Portal app works, including the privacy and security features of the app. The terms and conditions are described in the Qantas Mobility Service Terms and Conditions (Mobility Terms and Conditions) which was also tendered by Ms Leonardi.³⁵ Unlike the previous Staff Privately Owned Mobile Device Terms and Conditions which it replaced, the Mobility Terms and Conditions define a “Device” as follows:

“(b) Device means any Qantas Approved Mobile Device which includes:

Qantas issued Mobile Devices; and

Staff Privately Owned Mobile Devices.”

[39] Clause 5 of the Mobility Terms and Conditions provides as follows:

“5. MONITORING OR INSPECTING YOUR DEVICE

5.1 When you register your Device you acknowledge and understand that Qantas will periodically remotely monitor the Device to check that security configuration has not changed and the Device continues to conform to Qantas security requirements.

5.2 Qantas will not prevent you from installing software or applications to your Device. However Qantas may block your Device from connecting to the Qantas ICT Environment if your Device contains data, software or applications that may compromise the security of Qantas’ ICT Environment or are not otherwise approved for operational or policy reasons.

5.3 Qantas will not actively monitor your phone call history. Qantas may restrict access to certain sites while your Device is connected to the Qantas network to maintain security of Qantas’ ICT environment or for operational or policy reasons.”

[40] The Mobility Terms and Conditions define “Data” as follows:

“(a) Data means any information including software, facts, documents, emails, music, data files, photos or application stored on your device.”

[41] The term “Qantas ICT Environment” is defined as follows:

“Qantas ICT Environment includes any infrastructure, equipment, system or database that is used by a Qantas Group entity in connection with the access, storage, transmission or processing of any information via electronic means.”

[42] The definition of the ICT environment does not include a reference to devices. The Mobility Terms and Conditions state at clause 11 that employees acknowledge and agree that their use of the Qantas ICT Environment is subject to their compliance with the IT Policy. The Mobility Terms and Conditions also contain a link to the IT Policy. As previously noted, the IT Policy also does not define the IT Environment to include devices such as iPads. Ms Leonardi said that clause 5 of the Mobility Terms and Conditions dealing with Privacy, explains the extent to which Qantas is able to see details about a device (whether a personal device or a Qantas device) through the Comp Portal app. That is, information about the device that Qantas is able to access remotely as distinct from information that Qantas would be able to see or access if it physically seized and forensically analysed a device.

[43] Under cross-examination, Ms Leonardi agreed that the point of the Mobility Terms and Conditions is to deal with a device that is sometimes on the Qantas network and to allow devices – either Qantas issued or privately owned – to connect to the Qantas IT environment.

[44] In relation to the step by step enrolment guide for the InTune system in Annexure CL-3 to her witness statement, Ms Leonardi agreed that an employee enrolling an iPad would have seen a screen setting out the privacy statement. In response to the proposition that employees enrolling iPads using the step by step guide were told nothing more about what paper policies applied, Ms Leonardi said that if employees clicked on a previous screen they would have been linked to the mobility terms and conditions. Ms Leonardi agreed however that this was “it” in terms of the enrolment process.

[45] In relation to the privacy statement on the Comp Portal app, Ms Leonardi said that this screen comes up when an iPad is being enrolled by an employee and remains on the iPad as and can be accessed by the user of the iPad at any time. Ms Leonardi agreed that it is not stated on any screen in the Enrolment Guide or the Comp Portal app, that the privacy statement applies only to what can or cannot be seen by Qantas through the Comp Portal app. Ms Leonardi maintained that notwithstanding this, an employee would be using the Comp Portal app to access the ICT environment and it would be assumed that the privacy statement deals with what can and cannot be seen through this app. Ms Leonardi had the following exchange with Counsel for Mr Mellios:

“You accept that an employee could read that and think this is what Qantas can see on my device? --- Remotely, yes.

There's no other information on the device about what Qantas can or can't see? --- Via the remote MDM system.

At all? --- At all? No, we cannot see what's on the device unless we have physical possession. …

I don't mean what Qantas can access remotely. This is the only piece of information actually accessible on the iPad directly that talks about Qantas viewing things in general terms? --- Correct.

It says it can't view your browsing history on this device? --- That's right.” 36

[46] In relation to the Mobility Terms and Conditions (Annexure CL-6 to her witness statement) Ms Leonardi agreed that this is the document referred to in the Enrolment Guide relating to the change from Citrix to Microsoft Intune and that unlike the previous Mobility Terms and Conditions, the version in use at the time the Comp Portal app was installed, refers to both Qantas issued and privately owned devices. Ms Leonardi also agreed that the definition of the ICT environment in both versions of the Mobility Terms and Conditions is the same and that there is a difference between the device and the ICT environment. 37

[47] The proposition was put to Ms Leonardi that the reason for the changed Terms and Conditions is that there are now Qantas owned iPads enrolled in the mobility program as well as privately owned devices. Ms Leonardi initially agreed with that proposition, 38 but later said that she did not know the history of the changes or whether they were to catch Qantas issued devices. Ms Leonardi agreed that Qantas can block devices from connecting to the Qantas ICT environment but also said that Qantas cannot see what is on a device and cannot block it from browsing to a specific website, unless the browsing occurs on the Qantas Wi-Fi.39 Ms Leonardi also agreed that there is nothing in the Mobility Terms and Conditions that would stop people from using their personal devices to access pornography on their own Wi-Fi but said that the Cyber Security Policy is relevant in this regard.40

[48] Mr Pinto was the Lead Subject Matter Expert for the trial and rollout of iPads to all Qantas LAMEs in 2016 and as part of that role was responsible for the development of materials for training to be delivered to LAMEs in relation to the iPads. Mr Pinto delivered “train the trainer” sessions to subject matter experts across Qantas who were responsible for delivering training about the iPads on the job. Mr Mya Gray, Senior LAME, was one of the subject matter experts in Brisbane instructed by Mr Pinto. Mr Pinto attended a session delivered by Mr Gray and was satisfied in relation to his performance and that the information he delivered was accurate and in accordance with the training materials prepared by Mr Pinto. Mr Gray delivered the iPad training session attended by the Applicant on 26 May 2016.

[49] The training materials developed by Mr Pinto included a PowerPoint presentation. Mr Pinto said that while slightly different versions were used across the rollout the substantive content remained the same. That content included an entire slide dedicated to the IT Policy. Mr Pinto also said that the trainers’ notes for the PowerPoint presentation contained specific parts of the IT Policy for trainers to highlight, being clauses 2.7, 2.8, 2.9 and 3.1. In addition, Mr Pinto instructed trainers to hand out copies of the IT Policy at the training sessions. To receive their iPad, each LAME was required to sign a declaration confirming, among other things, that the LAME had read and understood the IT Policy. The PowerPoint Presentation tendered by Mr Pinto does not refer to the SOC Policy.

[50] The trainers’ notes for the PowerPoint presentation were also tendered by Mr Pinto and state that the ICT environment must only be used to perform lawful business activities for Qantas; users are permitted to use the ICT environment for limited personal use which is lawful, not excessive, does not result in excessive cost and does not interfere with, impact upon or interrupt the efficient, lawful or ethical operation of Qantas’ business. The notes also emphasise that users must not use the ICT environment for unacceptable reasons.⁴¹

[51] In relation to the Applicant’s evidence that he was told to use the iPad outside of work as if it was his own personal device, Mr Pinto said that the consistent message delivered across the training sessions, as set out in the PowerPoint presentation, was that limited personal use was acceptable as long as it was in accordance with Qantas policies, including the IT Policy. Mr Pinto also said that the sessions made it clear that the iPad was a Qantas device. In relation to the Applicant’s evidence that the 1.5GB of data was not a hard limit and that individual use would not be monitored, Mr Pinto accepted that the training included information about a data pool but maintained that LAMEs were also told that 1.5GB was an adequate amount of data for daily work use, outside a Wi-Fi network. Mr Pinto also said that LAMEs were told that individual data use would be reviewed from time to time to ensure that 1.5GB was not consistently exceeded because that would result in a substantial cost increase for the business.

[52] Under cross-examination, Mr Pinto agreed that it would be Qantas’ preference if engineers took their iPads home overnight and that the iPads were personal issued devices. Mr Pinto also agreed that there were different versions of the PowerPoint presentation and that it evolved over time including changes to the text in the slides and the addition of information to the speaking notes underneath the slides. The most recent version of the presentation was tendered to the Commission by Mr Pinto and he said in cross-examination that this is the only version that he currently has.

[53] Mr Pinto agreed that the notes to the presentation indicate that employees were asked to complete the declaration form early in the session as it requires the serial number of the iPad to be recorded, which is easier to access at the beginning of the session when the iPad is unboxed and before it is put into a case. Mr Pinto also agreed that he stated to the engineers in the sessions he ran that they could use the iPad for “limited personal use” and they should “treat it as if it was your iPad.”

[54] The Applicant said that when Mr Gray issued the iPad Mr Gray said words to the effect of:

“This is your iPad. You can use it outside of work as if it was your own personal device. There is 1.5GB of data per month. This is not a hard limit, the data is part of a shared pool. Individual data use will not be monitored.” 42

[55] The Applicant tendered the second version of the Mobility Terms and Conditions document⁴³ and the Qantas iPad Enrolment Guide for the InTune MDM system (the same documents tendered by Ms Leonardi) referring to the documents as the “Mobility Policy” and said that he understood that these documents applied to his use of the iPad both at work and at home. The Applicant also said that these were the documents he read when he enrolled his iPad and that some of the information was also included on the iPad, in particular the privacy statement about what Qantas could and could not see on the iPad. The Applicant stated that the Mobility Terms and Conditions do not prohibit accessing adult websites or storing explicit images. The Applicant also referred to the Terms and Conditions which state that: “Qantas may restrict access to certain sites while your device is connected to the Qantas network to maintain the security of the Qantas ICT environment or for operational policy reasons”, and said he understood that:

•  Qantas would not monitor sites he looked at outside of work hours, or be able to see photographs he stored on the iPad;

•  His viewing history would be private; and

•  There was no restriction to him using the iPad to view adult websites outside of work hours or storing explicit images on the iPad.

[56] In cross-examination, the Applicant was shown the declaration he signed on 26 May 2019 when he was issued with the iPad. The Applicant agreed that by ticking a box on the form he declared that he had read and understood the Qantas IT Policy. In relation to a question about whether he had actually read the IT Policy, the Applicant said: “No, not entirely” and went on to confirm that he had read some of the IT Policy. The Applicant was taken to provisions of the Policy dealing with acceptable use, including storage and accessing pornography, and said that he did not recall reading them at the time and may have done so.

[57] The Applicant also agreed that he had undertaken some training at the time the iPad was provided to him and was shown the training material tendered by Mr Pinto including a version of the Acceptance Form. During cross-examination on this point, issue was taken by Counsel for the Applicant on the basis that the material tendered by Mr Pinto was said to be the most recent version of the PowerPoint presentation rather than the version used at the training course attended by the Applicant when he was issued with his iPad. It was pointed out that the Acceptance form signed by the Applicant was different than the Acceptance Form in the PowerPoint presentation tendered by Mr Pinto, albeit the first box, which refers to the person making the declaration having read and understood the Qantas IT Policy, was the same.

[58] The Applicant confirmed that he signed the Form tendered by Mr Grimshaw as Annexure MG-1 to his witness statement but could not recall whether the slide pack in the presentation he attended included a slide dealing with the IT Policy. The Applicant also said that he signed the declaration form at the conclusion of the training.

[59] The Applicant did not agree that the IT Policy was handed out during the training or that he had an opportunity to read it before he signed the declaration. In response to the proposition that he accessed the Policy on-line during the training the Applicant said that he had not done so and that LAMEs had been using IT for years before the iPad and he signed the declaration on the basis that he was familiar with the IT Policy because of his earlier experience using IT. The Applicant maintained that notwithstanding that he had read the IT Policy and the SOC Policy at an earlier time, he thought at the time he was given the iPad that the Mobility Policy was the only policy that applied and that he had not breached the Mobility Policy. 44

[60] In relation to the Mobility Terms and Conditions, the Applicant said that he did not read these at the time he was provided with the iPad but read the Terms and Conditions “about the time there was a change in one of the systems”. This indicates that the Applicant read the Terms and Conditions at or around 26 June 2017 when he migrated his iPad to the InTune MDM system. There is no evidence that he read the earlier version of the Mobility Terms and Conditions which applied when he was issued with the iPad. The Applicant also said that he did not read the Mobility Terms and Conditions carefully, 45 and while he accepted clause 1.11 of the Mobility Terms and Conditions makes reference to the IT Policy, he could not recall whether he read that clause at the relevant time.

The complaints

[61] On 12 July 2018, Mr Grimshaw was contacted by a colleague regarding an incident involving a Caltex refueller and a Qantas LAME which had been reported by the Manager of Caltex Aviation Operations who had forwarded an email exchange in relation to the matter. The email exchange indicated that a Caltex refueller (Ms Remfrey) had stated that on 11 July 2018 she had witnessed a Qantas Engineer viewing pornographic images on his iPad during working hours.

[62] Mr Grimshaw states that he regarded the incident as very serious and attempted to escalate it internally. On 23 July 2018, Mr Grimshaw contacted the Caltex Operations Manager and enquired whether Ms Remfrey would make a statement about the incident. The Response from the Caltex Operations Manager on 31 July 2018, was that Ms Remfrey did not wish to make a statement as she was not “overly phased” and did not want the other party to lose their job. Notwithstanding this response Mr Grimshaw conducted further enquiries and ascertained that information about the Applicant’s browsing history could not be obtained from Qantas’ cellular data provider. Mr Grimshaw then considered whether further action could be taken without an eyewitness who was prepared to make a statement. Mr Grimshaw took a period of leave from 21 September to 5 October 2018 and returned to work on 7 October 2018.

[63] Upon his return to work Mr Grimshaw noted a further email from the Caltex Operations Manager, which had been sent to him on 25 September 2018, regarding a second incident involving the same Caltex employee, Ms Remfrey, which had occurred on 24 September 2018. Upon receiving the second email after his return to work, Mr Grimshaw considered it to be of great concern and escalated matters internally to his manager, Ms Hobl.

[64] After discussing the matter with the Regional Manager to whom she reports and with Ms Coakley, Ms Hobl decided that the matter should be investigated and that the Qantas-owned iPad the Applicant had been using should be seized and forensically analysed. Ms Hobl appointed Mr Grimshaw as the investigator of the allegations against the Applicant. Ms Hobl instructed Mr Grimshaw to meet with the Applicant and advise that the incidents had been reported and that he was stood down with pay. Ms Hobl told Mr Grimshaw to sieze the iPad that the Applicant had been using so that it could be analysed. Thereafter Ms Hobl had no substantial involvement in the investigation other than to receive updates and to confirm that the Applicant was receiving regular welfare checks.

[65] On 9 October 2018, Mr Grimshaw met with the Applicant, confiscated his iPad and informed him that there was a complaint involving his conduct at work and that information could not be shared with him at this stage, but the matter would be investigated. Mr Grimshaw provided the Applicant’s iPad to Ms Coakley and was informed that she arranged for it to be sent to the Qantas IT Team in Sydney for analysis. Mr Grimshaw also arranged for Ms Sonja Saddi, Case Management Support, to meet with Ms Remfrey in relation to her complaint.

The analysis of the Applicant’s iPad

[66] On 9 October 2018 Ms Leonarndi was requested to arrange a forensic analysis of the browsing history on the Applicant’s iPad and gave the iPad to Mr Barry of IBM to conduct the analysis. Ms Leonardi received the report from Mr Barry on 17 October 2018 and a further email which included the full web browsing history from the iPad as well as extracted pornographic URLs identified by Mr Barry. The report also identified potentially explicit or pornographic images on the iPad and Ms Leonardi passed on a request from Ms Saddi to Mr Barry for further details about these images.

[67] Mr Barry tendered an email sent to him by Ms Leonardi on 10 October 2018 requesting that a forensic investigation be performed on the Applicant’s iPad. The email states that Qantas is specifically looking for web browsing history of the device (pornographic in nature) and the time frame is 11 July 2018 until “now”. 46 Mr Barry’s Report dated 17 October 2018 (the Report) contains the following executive summary:

•  Evidence of the Apple iPad being used to visit 150 pornographic URLs between the 11^th of July 2018 and the 12^th of October 2018 was observed.

•  Activity identified on the Apple iPad indicated that pornography was specifically searched on Google between the 11^th of July 2018 and the 12^th of October 2018.

•  Evidence of the Apple iPad being used to view pornography as early as the 29^th September 2016 was observed.

•  Pornographic images saved on the Apple iPad were also identified.

•  No malicious, suspicious or pornographic applications were observed on the Apple iPad during analysis.

[68] The Report states that there were multiple searches for a website “ElephantTube”, which is described by Google as being for “Free Porn Movies”. These searches were conducted between 28 July 2017 and 25 September 2018. Within the requested timeframe there were five Searches for “Elephant Tube” which occurred between 9 September 2018 and 25 September 2018. In relation to Safari Web Browser history, the Report states that during the investigation, more than 450 pornographic URLs were observed within the Safari Web Browser activity history. The Report also included details of the URLs visited and the title of what was viewed. It is not necessary to list the titles of the pornographic videos viewed by the Applicant and it suffices to say that there are numerous titles containing references to “teens”, “step-moms”, “step-sisters”, “Asian Porn” and “Philippine teens”.

[69] The Report also included thumbnail images of photographs on the iPad. By email dated 18 October 2018, Ms Leonardi requested further details about the images found on the iPad including: source; date stored; and larger thumbnails or photos to enable the image to be viewed. Mr Barry provided a further Report in relation to the images. The larger versions of the images in that Report depict a woman who is at times clothed or partially clothed and in a number of the images the woman is exposing her breasts either fully or partially and in others the woman is exposing her abdomen. In one image the woman’s legs are open and the image is a closeup of her genitalia. 47 The further Report indicates that the images were created on 31 May 2016 at 1:06:02 pm. The further Report also indicates that the images were viewed on a range of dates and times in 2016 and 2018.

[70] On or around 18 October 2018, Ms Leonardi reviewed the full web browsing history from the iPad and identified a period, from 17 May to 16 August 2018, during which there was no web browsing recorded on the Applicant’s iPad at all. Ms Leonardi also considered a report from Qantas’ cellular data provider Vodafone, detailing data usage on the Applicant’s iPad for the period 1 August 2016 to 30 September 2018. The Vodafone data usage report shows, among other things, that there was data used on the iPad every day during the period 17 May 2018 to 16 August 2018, inclusive. Ms Leonardi said that on many days during this period, there was a significant amount of data used, often in excess of 50MB.

[71] Following a telephone discussion with Ms Saddi, Ms Leonardi signed a statement on 27 November 2018, prepared for her by Ms Saddi, in relation to her involvement in the investigation and the forensic analysis of the iPad. In that statement, Ms Leonardi confirmed that based on the findings of the Report there was no browsing history recorded on the Applicant’s iPad during the period between 17 May and 16 August 2018. In that statement, Ms Leonardi posited four potential explanations for this:

•  The device was not used during this period;

•  The internet browsing history for that specified period was deleted manually;

•  The internet browsing history was wiped (that is, the user cleared the browser history) although Ms Leonardi considers this unlikely given that there is still a browsing history visible prior to 17 May 2018; or

•  Private incognito browsing was used during this period.

[72] Ms Leonardi explained that when private browsing is enabled, the browsing history of a device is not saved on the device. In her witness statement to the Commission Ms Leonardi said that she no longer considers that the device not being used for the period from 17 May and 16 August 2018 to be a feasible explanation for lack of browsing history on the basis that there was data used on the iPad each day. Ms Leonardi also said that manual deletion of browsing history is a relatively time-consuming process and requires that the user individually select each web browsing record to be deleted, rather than clearing all web browsing history at once. Ms Leonardi said that she considers that the most likely explanation for lack of browsing history between 17 May and 18 August 2018, is that the Applicant engaged in private or incognito browsing.

[73] In her statement of 27 November 2018, Ms Leonardi said that there are currently no restrictions on Company mobile devices that prevent them from downloading apps on mobile data, but that by default, Apple disables the ability to download automatic app updates over mobile data. Ms Leonardi also said in that statement that even if this option is enabled, there is a 150MB cellular download limit imposed by Apple so that any download greater than 150MB requires a Wi-Fi connection. In her later statement of evidence to the Commission, Ms Leonardi said that the views in her 27 November 2018 statement are incorrect to the extent that it suggests that there is a 150MB cellular download limit on all applications when in fact, some applications not managed by Apple may allow for cellular downloads greater than 150MB including Qantas apps.

[74] Under cross-examination, Ms Leonardi agreed that in her 27 November 2018 statement, she had not made an assessment as to which of the four options to explain the gap in the Applicant’s browsing was more likely. Ms Leonardi accepted that her statement to the Commission does identify private or incognito browsing as the most likely reason for the gap although she had the same information including the Vodafone data report when preparing her statement to the Commission, as she had when she provided her 27 November 2018 statement to the internal investigation. Ms Leonardi said that she was not informed that the Applicant had stated that he did not know how to use private browsing and she had no understanding of his skill levels with respect to IT. Ms Leonardi accepted that it is plausible that an employee might not know how to use private browsing but also said that it is easy to enable.

[75] Ms Leonardi agreed that at the time she made her 27 November 2018 statement she understood one of the questions she would be asked was whether the data usage at the time of the gap in the Applicant’s browsing history could be explained by apps being updated using data. Ms Leonardi also agreed that this remains an explanation for why data would be used at a time when there was no browsing history on the iPad and that she had not included it in her statement as a possibility. Ms Leonardi further agreed that there are apps on the Applicant’s iPad – including Qantas apps which contain engineering and other information that are not managed by Apple. Ms Leonardi agreed that she had not looked at updates to apps in the period where there had been a gap in browsing history and that Qantas could have looked at this in relation to non-public apps if it wished to do so. Ms Leonardi had the following exchange with Counsel for the Applicant in relation to the browsing gaps:

“It's entirely possible that this iPad has been in full use, been used for work, been updating work apps, been happily shopping, checking fish, checking Facebook, watching videos without opening Safari once? --- Potentially, yes.

It's possible? --- It's possible.

You can't rule it out? ---- I can't rule it out.

It's not something you considered when you reached your conclusion in your statement? --- No.” …

You did not, in fact, consider app use as an explanation for data consumption without browsing history, did you? --- No.”  48

[76] Ms Leonardi maintained that the most likely explanation in her view was that the iPad was used in private browsing for the period where there was a gap in browsing data. Ms Leonardi based this view on the Applicant’s browsing history viewed in the Report, showing browsing on almost every single day in the months before and after August 2018. 49

[77] Ms Leonardi said in response to a question from me that if an employee used a Qantas issued iPad on their personal Wi-Fi to view a video selection page, and left the tab open in Safari, it would be cached on the iPad so that it could be viewed on the next occasion that the person opened Safari. If the person refreshed the content using the Qantas Wi-Fi and the content was inappropriate, it would be blocked by the Qantas technical system. If the page was not refreshed it could remain open on the iPad until it was closed by the user. As long as the page was not refreshed, it would not appear on the browsing history as being viewed. 50

[78] Ms Leonardi agreed that there are areas on the tarmac at Brisbane Airport where Qantas Wi-Fi is difficult to access and employees may use the 4G network when working in those areas. Ms Leonardi also said that if a cached page was refreshed using the 4G network rather than the Qantas Wi-Fi Network, it would show on the iPad as use of a package of cellular data without showing what the data was used for. 51 Ms Leonardi agreed under cross-examination that while Qantas could mandate what sites employees could browse while on Qantas Wi-Fi, it could not do so when they are using 4G cellular data.52 Ms Leonardi also said that the only way that Qantas could stop a device from accessing the ICT environment is if it was detected that the device had browsed to a specific web-site on the Qantas Wi-Fi.

[79] In his evidence to the Commission the Applicant agreed that he used the iPad most days including to check his emails, browse the internet and to use various Qantas apps. The Applicant said that he browsed the internet occasionally and when asked to clarify, said every other day. The Applicant also said that he used Qantas apps every day. The Applicant agreed that he mostly used the iPad on Wi-Fi and when he was at home used his own personal Wi-Fi. At work the Applicant used the Qantas Wi-Fi and if that was not available, cellular data. The Applicant said that when he was working airside, Qantas Wi-Fi was available but not always usable because its bandwidth was inadequate. Accordingly, it was sometimes necessary to use cellular data at work. The Applicant maintained that he did not know how to turn on private browsing or that there was such a function on an iPad.

The allegations

[80] Following the interview with Ms Remfrey and the analysis of the iPad the Applicant was sent a letter dated 30 October 2018 setting out six allegations (the first allegation letter). The allegations as set out in that letter can be summarised as follows:

•  Allegation 1 was that on 3 August 2017 at 1035 hours the Applicant used the Company iPad to access a website containing images that were obscene, pornographic and/or offensive in nature – www.fantasylingerie.com.au.

•  Allegations 2 and 3 were that on 11 July 2018 at approximately 0913 hours and 24 September 2018 at approximately 1937 hours a female Caltex refueller (Ms Remfrey) entered the Engineers hut and observed the Applicant using the iPad to access what appeared to be a video selection page containing thumbnails of images that were pornographic in nature and the Applicant accessed the page in circumstances where the content could be observed by other persons entering the hut and when he knew or ought to have known that the page would have been visible and accessing it at work would cause offence.

•  Allegation 4 concerned seven images stored on the iPad said to be pornographic which included photographs of exposed female genitalia and breasts.

•  Allegation 5 was that on dates between 29 September 2016 and 25 September 2018 the Applicant used the iPad to access websites containing images that were obscene, pornographic and/or offensive in nature and that the Applicant knew or ought to have known that using the Company iPad to access the websites was inappropriate and in excess of reasonable personal use.

•  Allegation 6 was that the Applicant exceeded Qantas’ monthly data limit in a single day on various dates between 11 July 2018 and 8 October 2018.

[81] The Applicant responded to those allegations in writing on or around 11 November 2018 (the first written response). 53 On 15 November the Applicant was provided with a list of websites and URL links pertaining to Allegation 554 on the basis that he advised in his first written response that it was not possible for him to respond to Allegation 5 without details of the websites. The Applicant was invited to provide a further written response after he had examined the list of websites and URL links. The Applicant provided a further written response on 21 November 2018.55

[82] After the Applicant responded to the allegations set out in the letter of 30 October 2018, further allegations were raised against him by another female refueller employed by Caltex (Ms Downes) in relation to alleged incidents in 2016. On 5 December 2018 a letter (the second allegations letter) was sent to the Applicant setting out allegations that between January and September 2016 while working in the Engineers hut the Applicant used the iPad to access graphic pornographic images at a time when Ms Downes entered the hut and that the Applicant was aware or should have been aware that Ms Downes could see the images. The Applicant was requested to respond to these allegations. 56 The Applicant provided a response on 11 December 2018 (the further written response).57

General points about the use of the iPad

[83] In his written responses to the allegations, the Applicant made some general points about the use of Company iPads and Qantas policies and statements about such use. In his first written response, the Applicant asserted his understanding that his personal use of the iPad would not be seen by anyone other than himself and that the basis of this understanding was that the iPad was set to “personal” in accordance with the Qantas Mobility Terms and Conditions which could be accessed on the iPad. The Applicant also referred to the privacy statement in the Comp Portal App and the Enrolment Guide. Further, the Applicant stated his view that the Mobility Terms and Conditions do not state any prohibitions on accessing lawful adult websites or storing images. The Applicant also stated his belief that the Mobility Terms and Conditions are more recent than the Cyber Security Policy that he was alleged to have breached and that neither the Mobility Terms and Conditions or the iPad declaration form issued when he received the iPad made any reference to the Cyber Security Policy.

[84] The Applicant went on in his first written response to state that he had been informed when the iPad was issued that it could be used outside work hours as if it was his own personal device and that if he had understood that Qantas could or would be looking at photos and web browsing history, despite what is clearly stated in the Mobility Terms and Conditions, then he would have been more conscious of whether any of the content was contrary to other Qantas policies or Code of Conduct. The Applicant also stated:

“If I have breached any Qantas policies or procedures then I apologise sincerely for this.

However, I think it extremely unfair to have a Qantas Policy on the device itself which states that photos and web browsing history will ‘never be seen’ by Qantas Airways Limited but subsequently be presented with stored photos and web addresses I have allegedly visited which Qantas have apparently accessed in contravention of the company’s own policy. If I have breached other Qantas policies which apply then I emphasise that it appears Qantas is also in breach of its own policies and that what is stated by Qantas in the Mobility Service Terms and Conditions is simply false.”  58

[85] The Applicant reiterated these points in subsequent written responses. A meeting was held with the Applicant on 17 December 2018 to discuss the allegations and the Applicant’s responses. Notes of that meeting were tendered by Mr Grimshaw who conducted it on behalf of Qantas. 59 At the meeting on 17 December, the Applicant’s support person Mr Murray is recorded in the meeting notes as having showed Mr Grimshaw the screens on his iPad that had been referred to by the Applicant in his written responses including the privacy statement in the Comp Portal app. Screenshots of this information are set out in the notes of the meeting. The notes record that the Applicant was asked whether he accepted that the Qantas Mobility Terms and Conditions he had referred to also stated that he acknowledged that use of the Qantas ICT environment was subject to compliance with the Qantas IT Policy, which is the old version of the Cybersecurity Policy. The meeting notes also record that the Applicant was asked about the agreement he signed in relation to use of the iPad and that he stated that it was a “tick and flick” whereby he was given the iPad and asked to sign the agreement without being given an explanation about the agreement.

[86] The meeting notes also record a discussion about the Applicant’s claim that the iPad was set to “personal” in accordance with the Mobility Terms and Conditions and what the Applicant meant by this. Mr Grimshaw is recorded as stating that the iPad was not considered by Qantas to be part of the personal use program and that the Applicant stated that it came that way and had always been set to personal. Further, the meeting notes record that the Applicant’s support person showed Mr Grimshaw the setting on his own iPad and stated that this was the basis upon which the iPad was supplied. In response to a proposition from Mr Grimshaw that the Applicant changed the setting on his iPad to personal, the meeting notes record that the Applicant stated that he did not do this and the iPad was set to personal when it was given to him.

[87] I turn now to consider each of the allegations and the Applicant’s responses to them both in writing and in meetings before his dismissal and his evidence to the Commission.

Allegation 1

[88] Allegation 1 concerned the Applicant using his Qantas-issued iPad to access a website published at www.fantasylingerie.com.au during work hours on 3 August 2017. In the letter of allegations sent to the Applicant on 30 October 2018, it was stated that the Applicant was rostered to work between 0600 and 1800 hours on 3 August 2017 and that the website was accessed at 1035 hours. The website was described in the allegations letter as “containing images that were obscene, pornographic, and/or offensive in nature”. During a meeting with the Applicant he was shown a printout of content from the website which included photographs of women wearing a range of lingerie items and advertisements for sex toys and “sex-help books”. 60

[89] In his first written response to the allegation provided to Mr Grimshaw on 11 November 2018, 61 the Applicant said that the website in question is a retail website that he visited briefly during a break in his work duties to purchase a gift for his partner. The Applicant also stated that the website is “an underwear retailing website” and does not depict naked genitalia or any sexual acts and that he did not consider it to be obscene, pornographic or offensive.62 Further, the Applicant said that if was seen by other employees and they took offence, he is remorseful and sincerely apologises.

[90] The notes of the 17 December 2018 meeting indicate that the Applicant said that the website contained retail images, that he could see nothing wrong with them and that the images are no different to what you would see on television or a beach or anywhere else. The meeting notes also record that the Applicant stated, in response to a question, that he did not believe that if someone came into the Engineers hut and saw him looking at these images that they would see them as offensive. 63 In his witness statement to the Commission, the Applicant reiterated these points and added that he does not understand what Qantas means by alleging that the images on the website are offensive, pornographic or obscene and added that he does not understand what Qantas means by this.64

[91] Under cross-examination, the Applicant said that he was on a mailing list for that web site and had previously accessed it during a work break to buy his partner a gift. The Applicant said that he used his private email address rather than his Qantas address for the mailing list for the site. In response to the proposition that he holds the view that the web site is not offensive, pornographic or obscene, the Applicant said that this is his personal view and he now understands that Qantas has a different “interpretation”. While acknowledging that he had previously told Mr Grimshaw that he did not think there was anything wrong with the images on the site, the Applicant said that his current understanding is that this website is inappropriate to be viewed at work and accepted that it is fair that some people may find the contents of the site to be objectionable or offensive. 65

Allegations 2 and 3

[92] Allegations 2 and 3 were framed in identical terms and were that on two occasions – at approximately 0913 hours on 11 July 2018 and 1937 hours on 24 September 2018 – Ms Remfrey entered the Engineers hut after refuelling a flight and that the Applicant:

a) Utilised the Company iPad to access what appeared to be a video selection page containing thumbnails of images that were pornographic in nature while on duty;

b) Accessed the page in circumstances where the content of the page could be observed by other persons entering the hut; and

c) Knew or ought to have known that the page would have been visible, and that accessing the page at work was likely to cause offence, intimidation or humiliation.

[93] In relation to Allegation 2, the email exchange tendered by Mr Grimshaw in which he was informed of the report made by Ms Remfrey, indicates that on 11 July at 2.08 pm, Mr Aaron Dighton, Operations Manager Brisbane Airport for Caltex, emailed Mr Paul Sharp, Manager of Caltex Aviation Operations, stating that:

“I am unsure how to handle this one.

I overheard a conversation this morning between our Refueller Jennifer Remfrey, and other BAFS Refuellers when she came back into the office. After she refuelled Qantas domestic flight QF515 (Rego: VHVCX) on Bay 17 (refuel was finished at 09:13) she went to deliver the fuel docket to the engineer’s hut. She knocked on the door (which was shut) opened the door and entered the room as per normal practice.

When she entered she noticed that the engineer in there closed down an iPad page that was a pornographic material selection page. The engineer appeared startled that she walked in. Jennifer gave him the docket and then left. No words were spoken between the two.

I have spoken with Jennifer regarding this, and she says that it is nothing that she can’t handle and is not concerned about it. I feel however that I have a responsibility to act on this as the material is inappropriate for a workplace.

Could you please engage with Qantas on how best to handle this matter.” 66

[94] Mr Sharp then emailed Mr de Guingand, Fuel Quality and Supply Specialist for Qantas, who after ascertaining that the allegation related to a Qantas Engineer, forwarded it to Mr Grimshaw. Allegation 3 was brought to Mr Grimshaw’s attention by a further email from Mr Dighton sent at 4.21 pm on 25 September 2018 in the following terms:

“Unfortunately I need to bring to your attention another incident that has occurred with the same Refueller and the same Engineer yesterday, 24th September 2018.

Our Refueller serviced QF563 to Sydney on Bay 18 and delivered the fuel docket to the Engineers hut. The Engineer in the Hut was the same Engineer that had been observed looking at pornography in July (what the below email thread was about). The docket was delivered in this case without any incident. The next aircraft for the refueller was QF639 to Melbourne on Bay 21, and the same Engineer was in the Engineers hut for this aircraft.

When the docket was delivered in the Hut the Engineer had an iPad which had a page up showing pornographic material (it was described as a video selection page). When the refueller entered the hut the Engineer quickly put the iPad down and took the docket.

What is of concern is that our refueller is feeling uncomfortable when they see this Engineer on the tarmac, and has been delaying going into the hut to deliver the docket, hoping they will come out to get it.

I have asked the refueller whether if they wish to make a complaint or statement about this behaviour – they will think about it, but is concerned the Engineer will lose his job. The Engineer has been identified as “Moose”, however I am sure that through your own investigations that you will be able to identify who was assigned to these aircraft.” 67

[95] The investigation into Ms Remfrey’s allegations was conducted by Mr Grimshaw with the assistance of Ms Saddi, who interviewed Ms Remfrey by telephone on 22 October 2018. A file note of a teleconference with Ms Remfrey conducted by Ms Saddi 22 October was called for and produced by Qantas and was tendered into evidence on behalf of the Applicant. 68 Ms Saddi had a further telephone discussion with Ms Remfrey on 23 November to finalise her statement. Mr Grimshaw tendered a file note contained in an email sent to him on that date by Ms Saddi indicating that during the 23 November telephone discussion Ms Remfrey had “shared” with Ms Saddi that Ms Remfrey had spoken to another female refueller (Ms Downes) who had informed Ms Remfrey that she had also seen the Applicant “on multiple occasions” watching pornography on his iPad in the Engineers hut. Ms Saddi also informed Mr Grimshaw that Ms Remfrey had contacted Ms Downes and that Ms Downes was prepared to make a statement to support Ms Remfrey.69

[96] On 3 December 2018, Ms Saddi prepared and sent to Ms Remfrey a statement recording the matters they had spoken about in the telephone discussions in October and November and Ms Remfrey reviewed the statement and signed and returned it to Ms Saddi on 14 December (the 14 December statement). Ms Remfrey tendered that statement as an annexure to her witness statement in these proceedings and said it remains an accurate account of the incidents she witnessed.

[97] The 14 December statement can be summarised as follows. On 11 July 2018 Ms Remfrey entered the Engineers hut after knocking twice. The Applicant was sitting down “semi-facing the door” holding an iPad up on the table. Ms Remfrey said that the iPad was facing up and was positioned so that whoever came into the hut would be able to see what was on the screen. Ms Remfrey stated:

“I saw on the iPad a video selection page. The background of the page was black with splashes of white and contained squares, known as thumbnails, of all different video clips. Inside each thumbnail was images of semi-clothed girls and the thumbnail in the middle of the page had an image of a lady with a red outfit. I knew this was a video selection page of a pornographic nature as anybody at a certain age has watched porn, so you know what a selection page looks like.

After I entered the engineering hut, [the Applicant] proceeded to have a startled look on his face and put the iPad face down on the table. However, it was too late as I had already seen the contents of the iPad scree. I rolled my eyes and said ‘It’s alright mate, its too late.’ ” 70

[98] Ms Remfrey went on in the 14 December statement to say that on 24 September 2018 a similar incident occurred. On that occasion, Ms Remfrey states that she had refuelled flight QF639 and was reluctant to enter the Engineers hut and hoped the Applicant would come out to collect the fuel docket. Eventually Ms Remfrey entered the Engineers hut without knocking and observed the Applicant sitting in a similar position as when she saw him on 11 July, facing the same way and holding the iPad up in the same way. Ms Remfrey also states that she saw the same video selection page that she saw on the previous occasion with the same page background and the same squares/thumbnails. Ms Remfrey further states that when the Applicant saw her, he put the iPad facing down on the table and said : “oh oh”. Ms Remfrey is also recorded as asserting that the Applicant’s reaction was fake as he would have known that she was walking towards him because he knows what time the refuellers finish and that it would be time to collect the docket. In contrast to the email from Mr Sharpe on 25 September reporting the incident, Ms Remfrey’s statement does not include that she delivered the fuel docket from QF563 without incident and that the alleged conduct occurred on the second occasion that she entered the Engineers hut.

[99] In the 14 December statement Ms Remfrey also said that she had engaged in discussions with other people about the Applicant’s conduct. In this regard, Ms Remfrey referred to a refueller who worked for another company “Tash” who had informed Ms Remfrey that she had also experienced issues with the Applicant when she “walked into [the Applicant] watching pornography in the Engineers hut. Ms Remfrey said she had this discussion with Tash in the bathroom and Tash stated that she “got to see some porn for the day” and they had a laugh and went on their way.

[100] In relation to the involvement of Ms Downes, the 14 December statement indicates that three weeks after her 22 October 2018 discussion with Ms Saddi, Ms Remfrey had a discussion with Ms Downes during which Ms Downes shared with Ms Remfrey that she had entered the Engineers hut on multiple occasions and observed the Applicant watching pornography on his iPad. Ms Remfrey stated that Ms Downes said that she saw more than a video selection page and “it went beyond this, to girls with their legs spread wide open.” Ms Downes told Ms Remfrey that if Qantas looked at the CCTV footage on those dates, she would be seen throwing her arms up in the air in disbelief as she left the Engineers hut. Further, Ms Remfrey stated that Ms Downes told her that she felt threatened and uncomfortable as a result of the Applicant’s behaviour.

[101] Ms Remfrey also said in her 14 December statement that the usual practice at Qantas was that once she had finished refuelling an aircraft the engineers would come out of the hut, have a chat and take the docket. Sometimes if engineers were preoccupied doing something in the hut Ms Remfrey would take the docket to them. Since mid-July 2018 Ms Remfrey observed that the Qantas engineers were not coming out of the Engineers hut to say hello and that she had noticed this change after reporting her first interaction with the Applicant. Ms Remfrey is also recorded as having stated that there may possibly have been a discussion among the engineers about the interaction and they may have heard that there was a female at Caltex who had reported it. Ms Remfrey is also recorded as stating that no-one had said anything to her directly about the incident and that she is not sure.

[102] In her witness statement to the Commission, Ms Remfrey said that she did not want to make a complaint at the time of the first incident because while bothered by the Applicant’s conduct she did not wish to be seen to be making a fuss. Ms Remfrey also said that in her experience it is difficult to be a female in a male dominated industry and she did not want to risk retaliation from men she worked with for making a complaint against one of them, particularly given she had only been in her role for six months. Further, Ms Remfrey said that she was shocked at the first incident but chose not to draw attention to it in the moment it happened because she got the sense that the Applicant was looking for a reaction from her and she did not want to play what she perceived as his “game”.

[103] Ms Remfrey clarified her description of the video selection page that she saw on 24 September and said her comment that it was the same was a reference to the same kind of format that she had seen during the first incident rather than the thumbnail pictures being identical. 71 Ms Remfrey also responded to the evidence of the Applicant and denied that what she saw on the iPad was a lingerie website. Ms Remfrey maintained that she had clearly seen the Applicant looking at a pornographic video selection page and that she considered the thumbnails to be pornographic because they were thumbnails of semi-naked women. Ms Remfrey also maintained that even if the Applicant was looking at a lingerie web site it was inappropriate, and that no woman should be confronted with those kinds of images in the workplace. Ms Remfrey said that the images were intimidating and demeaning and while Ms Remfrey felt that she could navigate the situation, she worried that a younger woman in that environment would not know what to do in response.

[104] Ms Remfrey said that she had reviewed the Fantasy Lingerie website link referred to in paragraph 19 of the Applicant’s witness statement, which is the site the Applicant suggests he may have been looking at when seen by Ms Remfrey, and maintained that it did not resemble what she saw. Ms Remfrey said that the website referred to in the Applicant’s witness statement has a white background with large static images and the website Ms Remfrey saw on each occasion on the Applicant’s iPad screen had a black background with splashes of white and red, and thumbnail pictures of video clips.

[105] In her statement to the Commission, Ms Remfrey also said that while Caltex no longer has a refuelling contract with Qantas, Caltex may have such a contract in the future. Ms Remfrey is concerned that in the future she may have to work with the Applicant if he is reinstated. Ms Remfrey is also concerned for other women who may have to work with the Applicant, particularly younger or more vulnerable women. Ms Remfrey said that she made a complaint after the second incident with the Applicant because she did not want to put other women, especially younger women, in the same situation by doing nothing about it.

[106] The Applicant’s conduct and Ms Remfrey’s involvement in these proceedings has also had an impact on her recent career decisions. In particular Ms Remfrey stated that she has withdrawn an application for an engineering apprenticeship with Qantas because despite her view that she is a highly competitive candidate, her experience with the Applicant has made her wary of the treatment she may receive in that type of role. Ms Remfrey also states that the experience has shown her the difficulties that women continue to face in such a highly male-dominated environment and she worries that she would be seen as a trouble maker and given a hard time by other Qantas engineers who have worked with and know the Applicant.

[107] In further oral evidence Ms Remfrey confirmed that her discussion with Ms Downes was after Ms Remfrey’s first discussion with Ms Saddi on 22 October and before her second discussion with Ms Saddi on 23 November 2018. The discussion occurred when Ms Downes came to Brisbane Airport to do her Airside Driving Accreditation (ADA) and Ms Remfrey drove her to the test venue. In cross-examination, Ms Remfrey agreed that when a refueller is going to a plane the refueller does not know who the engineer is until the refueller enters the engineering hut and that the engineers do not necessarily know who the refueller is and may or may not see the refueller in advance of the refueller entering the hut. Ms Remfrey also agreed that she had not previously met the Applicant and did not know his name. Ms Remfrey further agreed that she sees a lot of engineers and that her interactions with them are usually brief. Ms Remfrey accepted that it is perfectly normal for engineers to stay in the hut so that the refueller is required to go in to deliver the fuel receipt and that this occurred more often than not.

[108] In relation to the 11 July 2018 incident Ms Remfrey agreed that the Applicant looked startled when she entered the Engineers hut and put the iPad screen down and did not keep showing it to her. The whole interaction took 5 – 10 seconds and Ms Remfrey agreed that she was 1 meter away from the Applicant. Ms Remfrey further agreed that she went back to the staff room and joked about what she had seen with co-workers and was overheard by her supervisor. Ms Remfrey agreed that she told her supervisor what had happened but did not want to make a complaint and that she was not overly concerned.

[109] Ms Remfrey was taken cross-examined about the differences between the file note and the 14 December 2018 Statement prepared by Ms Saddi. Ms Remfrey agreed, as the file note records, that she told Ms Saddi during their discussion that her views about the attitude of other engineers may have been “paranoia” on her part. Ms Remfrey also said that she now accepts that her view that in mid-July about the engineers not coming out of the hut was not correct and that it is normal for engineers not to come out of the hut. 72

[110] The file note also records that Ms Remfrey stated that she refuelled a few times with the Applicant between July and September (including on an occasion close to 24 September 2018) and there were no issues. Ms Remfrey agreed that this information is not contained in the 14 December 2018 statement Ms Saddi prepared for her to sign. Ms Remfrey also agreed that based on the file note, her evidence that she was feeling worried about going into the Engineers hut on 24 September may not be correct. 73 Further the file note records that Ms Remfrey was asked by Ms Saddi whether she could remember details of what she saw on the iPad such as content, colour or background and Ms Remfrey answered: “No.”

[111] Ms Remfrey agreed in cross-examination that she could not remember every detail of the screen and that she only got a brief glimpse for a couple of seconds. Ms Remfrey also agreed that she would not have stared at the screen if she was shocked by the images and would have glanced away. Further Ms Remfrey agreed that what she remembers seeing is: semi-clothed girls; black background with splashes of white; and squares with different video clips. Ms Remfrey confirmed that the video clips were not playing and there was no sound and that in the middle of the screen was a lady with a red outfit. Ms Remfrey also confirmed that based on her experience, she assumed that the site was a pornographic website. Ms Remfrey agreed that she did not see the name of the website. 74 Further, Ms Remfrey agreed that although it may have taken the Applicant five seconds to put the screen of the iPad down she would have been looking at it for a much shorter period of time.

[112] Ms Remfrey agreed that where she stated at paragraph 16 of her statement of 4 December that she saw the same video selection page as she had seen on 11 July, she should have stated that the page was similar. Ms Remfrey also agreed that she could not be 100% sure whether it was the same page. Ms Remfrey agreed that it was after her discussion with Ms Downes that she formed the view that the Applicant was “testing the waters” with her but later agreed that this suspicion was the same kind of thing as her perception that she was being ostracised by the engineers.

[113] Ms Remfrey maintained her belief that the second incident involving the Applicant was deliberate. In response to the proposition that the Applicant would not have necessarily known that she would be working that day, Ms Remfrey said that the Applicant did know that she was the refueller because he saw her during the course of the shift and looked at her. Ms Remfrey also maintained that the Applicant was going to exactly the same aircraft as she was going to. Ms Remfrey accepted that she did not tell Ms Saddi during their conversation on 22 October that the Applicant had seen her on the day in question but contended that she could now remember this clearly.

[114] In his first written response to the allegations the Applicant said that Allegations 2 and 3 involving Ms Remfrey did not coincide with any dates when the Company claims that the Applicant accessed objectionable images at work or visited websites which allegedly contain pornographic, obscene or offensive content. The Applicant also questioned why, if Qantas could check what images he was viewing or what sites he was accessing at a specific time, on a specific date, they had not done so in relation to the allegations made by Ms Remfrey and put those allegations to him.

[115] In relation to the allegations themselves, the Applicant stated in his first written response that he honestly did not believe that he had accessed any pornographic internet sites at the workplace. The Applicant also acknowledged the possibility that he had accessed the retail site referred to in Allegation 1 as he accesses it from time to time to buy lingerie for his partner and that this may have been what Ms Remfrey viewed. The Applicant concluded his response to this allegation by stating that if Ms Remfrey had been offended or distressed then he regretted that and apologised.

[116] At the meeting on 17 December 2018, the Applicant stated in relation to Ms Remfrey’s allegations that he could not recall anyone entering the hut on 11 July 2018. The Applicant is recorded as stating that other than occasionally receiving a receipt he had not interacted with Ms Remfrey. The Applicant is also recorded as stating that it is possible that he was using his iPad on 11 July 2018 to view the lingerie retail site referred to in his first written response. The Applicant denied that he uses private browsing and stated that he does not know how to enable it. The Applicant was also asked to explain gaps in his browsing history and simply stated again that he has no reason to use private browsing as he thought the iPad was set to “personal” and he does not view inappropriate websites at work.

[117] The meeting notes also record that the Applicant was asked to comment on the statement by Ms Remfrey that she had observed a video selection page with video thumbnails containing clips of semi-clothed women and it was put to him by Mr Grimshaw that Ms Remfrey’s description did not match the description of the retail website that the Applicant had referred to. The meeting notes record that the Applicant was asked whether the description given by Ms Remfrey matched any site he would view and that he answered “No”. In relation to Ms Remfrey’s allegations about 24 September 2018, the meeting notes record that the Applicant cannot recall a female Caltex employee entering the hut on that date. It is also recorded that the Applicant denied that he had private browsing enabled on that date and was not aware of how to use it and that this was demonstrated by Mr Grimshaw using the iPad of the Applicant’s support person to turn on private browsing.

[118] The Applicant said in his witness statement to the Commission that he first became aware of the allegations in October 2018, although Qantas has not identified a web site that the allegations relate to. The Applicant said that it is possible that he was looking at the Fantasy Lingerie website as he does this from time to time to buy lingerie for his partner. The Applicant also said that Ms Remfrey might have seen this although he does not remember ever looking at that website while on duty or while others were in the room. If that happened, the Applicant expressed regret at any offence or distress he had caused Ms Remfrey.

[119] Under cross-examination the Applicant agreed that he has been on the fantasy lingerie website at work on a number of occasions. The Applicant also agreed that the description given by Ms Remfrey in relation to what she saw on the iPad – a video selection page with a black background, splashes of white and thumbnail sketches of semi-clad women – is nothing like the images in the screenshots of the Fantasy Lingerie website but said he is not aware of what Ms Remfrey saw. The Applicant said in response to a question from Counsel for Qantas that he had not deleted any browsing history of his visits to the Fantasy Lingerie website and had not used private browsing. The Applicant had no explanation as to why those visits did not appear on his browsing history.

[120] The Applicant was cross-examined about his use of data on his iPad on every day during the period 17 May to 16 August 2018 and it was put to him that on many days in this period there was a significant amount of data used, often in excess of 50MB. The Applicant was also shown his browsing history for this period which shows browsing on 12, 18, 25, 26, 28 April, 4 May and 17 May with the next date on the browsing record being 16 August. The Applicant was asked to explain why there was a gap in his browsing history between 17 May and 16 August, when there was also regular use of his iPad and substantial data usage in this period. The Applicant said he could not provide an explanation but maintained that he did not use private browsing during this period.

Allegation 4

[121] Allegation 4 was that the Applicant had pornographic images stored on his iPad and that he accessed those images at work in August/September 2018. There were seven such images subject of the allegations. Details of the images were set out in the first allegations letter along with specific dates and times upon which the Applicant was alleged to have accessed those images while at work as follows:

•  0952 hours on 15 August 2016;

•  0816 hours on 13 August 2018;

•  1854 hours on 31 August 2018;

•  1855 hours on 31 August 2018;

•  0643 hours on 7 September 2018;

•  0645 hours on 7 September 2018;

•  0813 hours on 7 September 2018; and

•  0814 hours on 7 December 2018.

[122] The images are described in the first allegations letter as being obscene and/or pornographic and explicit in nature. The images were tendered to the Commission. They are images of a woman who is at times clothed or partially clothed and in a number of the images the woman is exposing her breasts either fully or partially and in others the woman is exposing her abdomen. In one image the woman’s legs are open and the image is a closeup of her genitalia. 75

[123] In the first written response, the Applicant said that the photographs are personal and private images of an individual known to him who sent them to him and were not images he downloaded or accessed via on-line pornography sites. The Applicant conceded that some of the images contain nudity. The Applicant also said that he stored them on the iPad because he understood that Qantas could not view them and no-one else would ever see them. The Applicant apologised if the photos had been viewed by others and again emphasised that Qantas should not have been able to view them as per the Mobility Service Terms and Conditions and that he stored them on the iPad reasonably thinking they would not be seen by anyone else.

[124] The record of the meeting with Mr Grimshaw on 17 December 2018, indicates that the Applicant was asked a number of questions about circumstances in which the images were sent to him and why, given that he had previously received images from the same woman, he had not turned his mind to the possibility that they might contain inappropriate content. The Applicant is recorded as stating that the photos were sent by Facebook messenger and that he did not realise that they had been saved onto the iPad. The Applicant is also recorded as stating that all of the photos, with the exception of one, are appropriate and one may possibly be offensive. The Applicant is further recorded as stating that: “you don’t generally flash them around.”

[125] In his witness statement to the Commission the Applicant stated that he only stored the images on the iPad because he understood that: he was allowed to do this; Qantas could not see them; and they could not be seen by anyone else. In his witness statement in reply 76 the Applicant stated that the photos were sent to him by Facebook messenger and tendered an exchange of messages with the woman who sent the photos which appears to be dated 31 August 2018 – before the images were created on the iPad. During that exchange the Applicant sent a message stating that he had not received “a sexy mistress pic in the inbox for a while”.77 The Applicant said that he did not deliberately save the photographs to his iPad and that Facebook messenger may have done this automatically. The Applicant agreed that he described the photographs as “a little bit naughty” in a response to the Letter of Findings and Outcomes sent to Ms Hobl,78 but said that he does not consider them to be pornographic.

[126] The Applicant’s understanding of the term “pornography” is that it refers to the commercial presentation of explicit sexual material for entertainment. Although the photos contain nudity and there is a photo that is explicit, to the Applicant they were not pornographic because there was no commercialisation – just a friend sending a private photo to another friend. From Ms Hobl’s statement the Applicant now understands that she considers the photos to be pornographic because they involve nudity and one photo has explicit content. The Applicant said that by stating that the photos are not pornographic, he had never intended to suggest that they were suitable for the workplace and does not think that he ever deliberately looked at them while at work. The Applicant also said that it is possible that he opened the Facebook message while he was at work without realising what it contained.

[127] The Applicant said in his witness statement in reply that he now understands that he should have deleted the photos and that before his dismissal he was operating on the understanding that Qantas could never see his photographs on the iPad because of how the policies had been explained to him. Now he understands that this is incorrect, and had this been his understanding at the time, the Applicant would have deleted the photos. Further the Applicant said that he is embarrassed for himself and the friend who sent him the photos as he had no intention of ever showing them to anyone, let alone anyone in the workplace. The Applicant said that this will never happen again as he will remove Facebook messenger from his iPad to avoid personal messages containing such images from being sent to it.

[128] Under cross-examination the Applicant agreed that he had not responded to the allegation that he accessed those images whilst at work on dates in August and September. In relation to his evidence that he might have opened an email sending one of the images “largely accidentally” the Applicant said that he only deliberately opened the images at home and did not do so while he was at work. The Applicant had the following exchange with Counsel for Qantas in cross-examination:

“Just so I understand this, Mr Mellios, you are saying, are you, that the way in which you would accidentally open these is - what - you would be sent these via an email or a message and you would open it up and you hadn't been warned that this would have this content and it would just show up; is that how it would play out? --- That's correct.” 79

[129] The Applicant agreed that each of the times and dates set out in the letter of allegations in relation to Allegation 4, correlated to a time and date upon which he was at work. The Applicant was also shown an image report prepared by IBM on 17 October 2018 during the examination of his iPad, evidencing that the image file was created on his iPad at 1.06 pm on 31 May 2016 and was last accessed on 7 September 2018 at 8:14:45 am. 80 The Applicant maintained that he accidently accessed the images at work notwithstanding that they were accessed two years after they were created and denied that he had accessed the images deliberately while at work and also said that he had “no recollection” and “no clear recollection” of deliberately accessing the photos at work, not even when he thought that no-one else was around.81

Allegation 5

[130] Allegation 5 is that Company IT records indicate that the Applicant accessed “a number of URLs” on the Company iPad containing images and/or videos that were “obsence [sic], pornographic and/or offensive in nature”. Details of the times, dates and numbers of URLs accessed were set out in the first allegations letter. The details listed encompass over 450 URLs. It was also alleged that the Applicant knew, or ought to have known, that using the Company iPad to access the websites on the dates and times described was inappropriate and in excess of reasonable personal use.

[131] In his first written response to the allegation the Applicant said that simply listing dates and times that he accessed different websites did not give him sufficient information to respond to the allegation. The Applicant also stated that it was impossible to respond to whether the sites were obscene or pornographic when the allegation does not identify even one of the sites. The Applicant also said that he had cross-checked the dates and times referenced in the allegation and every single one of the ranges provided related to periods when the Applicant was off duty. The Applicant said that during these times he would have been using the iPad on his own personal Wi-Fi as was his practice when using the iPad at home. The Applicant requested clarification of whether the allegation was that he was using Qantas Wi-Fi and data. The Applicant went on in his first written response to state:

“I note that again, contrary to the Mobility Service Terms and Conditions, Qantas has here set out significant details of my web history to the extent that the date and times I have allegedly been using the iPad at home have been recorded and put to me as an allegation. This wasn’t use at the workplace, this was me using a device at home, on what I thought was my own internet connection, in circumstances where the Mobility Service Terms and Conditions stated that his web history would ‘never be seen’ by Qantas. I therefore regarded this as very different to using the device at work and did not consider that the Qantas IT Policy or other policies applied in those circumstances.

As I said before, if I understood that Qantas would be looking at web browsing history despite what is clearly stated by the Mobility Service Terms and Conditions I would have been a lot more conscious of whether any of the content was contrary to other Qantas policies or the Code of Conduct.”

[132] After a list of sites was sent to the Applicant, he provided a supplementary written response stating that he agreed some of the websites contain lawful adult content including pornography, while others are not in any way inappropriate eg. a credit website. The Applicant also reiterated points from his first written response and emphasised that despite what was stated in the Mobility Service Terms and Conditions, Qantas has recorded details of his web browsing and used them in allegations against him. Further, the Applicant reiterated his belief that other policies or the Code of Conduct did not apply in the circumstances although expressing his remorse for any breaches on his part. 82

[133] Under cross-examination, the Applicant did not dispute that he had accessed the web pages set out in the IBM Report and that those web pages contain “hard-core pornography”. 83 The Applicant maintained that he thought that he was allowed to look at those websites “outside the Qantas environment” – that is not using Qantas internet and on his own Wi-Fi at home, in privacy and using a Qantas device”.84 The Applicant agreed that he held this view notwithstanding that he had an understanding of the IT Policy having used it for a couple of years before being provided with the iPad. The Applicant also agreed that the IT policy and the Standards of Conduct Policy make it clear that accessing pornography on a Qantas provided iPad is a breach of those policies but maintained that this was not his understanding at the time. The Applicant further agreed that one of the aims of the IT Policy is to avoid risks to Qantas’ hardware and software from malware and viruses and that he did not take any steps to guard against such risks while accessing the sites.

[134] The Applicant was also referred to his browsing history evidencing 14 pornographic URLs being visited on 30 November 2018 and 18 sites on 1 December and said that he could not recollect whether he was on sick leave on those dates. Documents tendered by Ms Hobl evidence that the Applicant was absent on personal leave on those dates. 85

Allegation 6

[135] Allegation 6 was that the Applicant exceeded the monthly data usage, which is 1.5GB for a Company iPad in a single day on 7 dates between 8 July and 8 October 2018. It was also alleged that the Applicant should have been aware that the amount of data used on those dates was in excess of reasonable personal use. In his first written response to this allegation the Applicant said that he was at work on all of the days on which data was used and believed that it was all updates to software, hardware, maintenance manuals or other resources which are necessary for the use of the iPad to carry out the Applicant’s duties. The Applicant also said that without further details it was difficult to answer this allegation and it demonstrated his concerns about data limits not being adequate even for necessary Qantas use, and what was said to engineers about data limits not being firm.

[136] Initially it was concluded that Allegation 6 was substantiated and that the Applicant’s explanation that the data usage was entirely work related was not plausible. Following an internal appeal after the Applicant’s dismissal this allegation was found not to have been substantiated on the basis that the investigation outcome was based on an erroneous understanding that Apple software operated to limit downloads on iPads using cellular data when this limit applies only to apps operated by Apple. As a result, it was determined that the Applicant’s data usage on the dates in question may have been for the purpose of updating Qantas apps on his iPad. This error was also determined by Qantas not to have been so significant that it changed the outcome of termination of the Applicant’s employment, given the seriousness of the other allegations which were found to have been substantiated.

Allegation 7 – the further allegation

[137] Allegation 7 was the further allegation concerning Ms Downes. The allegation was that the Applicant viewed graphic pornographic images on three occasions between January and September 2016, when he knew, or should have known he would be observed by Ms Downes. Ms Downes’ evidence was that on 27 November 2018 she was informed by her supervisor Mr Dighton, that Qantas was conducting an investigation into the conduct of one of its engineers at the Brisbane airport and was asked whether she was willing to speak to someone from Qantas. Ms Downes agreed to participate in the investigation. Later, on that date, Ms Downes received a telephone call from Ms Tuffin (and Industrial Relations Manager on secondment to Qantas) who asked if Ms Downes had experienced or observed any incidents while working at the Brisbane airport, involving a Qantas engineer looking at inappropriate or pornographic material at work. Ms Downes said that she had experienced such incidents and described her recollection of these incidents to Ms Tuffin. Ms Tuffin prepared a statement which she sent to Ms Downes who reviewed the statement and on 4 December, signed and returned it to Ms Tuffin.

[138] That statement can be summarised as follows. Ms Downes knew the Applicant but did not interact with him much until 2016. In that year, there were at least three occasions when Ms Downes witnessed the Applicant looking at pornographic images on the iPad while he was in the engineering hut. The first incident was in the later part of 2016 and occurred at night. Ms Downes walked into the engineering hut to give the Applicant a fuel docket. Ms Downes said:

“I saw on the screen of the iPad a number of what I would describe as hard-core pornographic images, including close-up images of male and female genitals, men and women having sex and many naked women of different ethnicities, including Asian women who appeared to be very young. They were all still images, not videos. I couldn’t tell if it was a website or not. It seemed to me like a collage of images.” 86

[139] Ms Downes said that she made a noise of some kind and the Applicant shut the iPad but did not do it particularly quickly. Ms Downes said that she put the docket on the table and said: “pretty sure I wasn’t supposed to see that” before leaving the hut. Ms Downes did not say anything to anyone about the incident because she did not wish to appear to be a “whinger” and thought that it might be a “one-off”. Ms Downes said that it happened on at least two and possibly three other occasions. The last occasion was in September 2016 when Ms Downes walked into the engineering hut at bay 22 in the evening, sometime after dinner. Ms Downes states that she saw on the iPad a collage of pornographic images and the largest image was a photo of female genitalia being pulled open. Ms Downes said that when she walked into the hut the Applicant closed the iPad but did not do it particularly quickly and Ms Downes got the impression that he wanted her to see the images.

[140] Ms Downes said that she was disgusted that the Applicant was looking at the images at work and said something to him like: “that’s fucking disgusting mate”. Ms Downes also said that she told the Applicant that she intended to contact the Australian Federal Police. The Applicant did not respond and Ms Downes left the hut. Ms Downes said that she was shaking and upset and went to her direct supervisor, Mr Glen Stapleton to report the incident. Ms Downes said that she asked Mr Stapleton not to say anything to anyone at the time because she was afraid she would pay for it as there was already hostility on the tarmac towards her as a female refueller. Ms Downes thinks that Mr Stapleton made a diary note of her complaint but is not sure. Ms Downes said that she felt extremely violated by the Applicant’s actions because he not only was looking at images at work, but it seemed that he was also deliberately looking at the images and waiting for her to enter the hut so that she could see them. Ms Downes thought that this was the case because:

•  The Applicant would have been able to tell when she was approaching the hut, because he would have seen her finish refuelling and walk across the tarmac;

•  The Applicant made no attempt to cover the iPad screen with his body when he was looking at the images but held the iPad to the side of him; and

•  When she walked in the Applicant seemed to take his time closing the iPad and did not try to shut it immediately.

[141] Ms Downes said that the Applicant’s conduct scared her and made her feel unsafe because he engaged in the conduct usually at night without many people around and his actions seemed deliberate which made her worry about his agenda or intention. Ms Downes also said that she felt sick when assigned to work on Qantas aircraft, especially at night time when there were not many people around, because she would worry that the Applicant would be working in the engineering hut and she might have to deal with him or enter the hut. Ms Downes said that after the last incident, she stopped entering the hut and left the docket on the flap or panel of the aircraft. Further, Ms Downes said that she was afraid if she said anything about the Applicant’s behaviour at the time, that his mates working on the ramp or in engineering, would have made her life difficult. Ms Downes feels able to make this statement now because she is working at Coolangatta Airport.

[142] In relation to her move to Coolangatta Airport, Ms Downes said that she commenced working there on 30 October 2016. Ms Downes decided to leave Brisbane Airport for a number of reasons including time and cost associated with commuting from the Gold Coast where she lives. Ms Downes also said:

“But the deciding factor in my decision to move to the Coolangatta Airport was that I didn’t want to put up with shit that I didn’t want to put up with anymore. What I mean by that is people on the ramp thinking that girls shouldn’t be employed on the ramp or as refuellers, so they would do things like block them from the aircraft. There was hostility from some people towards refuellers, including I think because the refuellers make more money than the ramp staff.” 87

[143] Ms Downes confirmed that in October 2018 she spoke to Ms Remfrey when she went to Brisbane to get her ADA renewed. While Ms Remfrey drove her to the ADA office, Ms Downes asked whether Ms Remfrey had experienced any issues with any of the Qantas engineers. Ms Remfrey said something about the Applicant which caused Ms Downes to believe that Ms Remfrey had experienced similar incidents with the Applicant. Ms Downes is not aware of whether other female employees experienced issues with the Applicant’s conduct.

[144] In relation to the Applicant’s witness statement, Ms Downes rejected his suggestion that he was looking at a single image or photograph and maintained that she saw a collage of different photographic images and not just one image. Ms Downes also disagreed with the Applicant’s evidence that he did not generally know when refuellers were going to enter the Engineers hut and said that as part of his role, the Applicant needed to be aware of when different Qantas aircraft were being refuelled because he was required to obtain the fuel docket from the refueller and provide it to the pilot before the aircraft could be cleared to push back. Ms Downes maintained that notwithstanding the Applicant’s evidence to the contrary, he knew that she was entering the Engineers hut and wanted her to see the images he was looking at on his iPad.

[145] In relation to the final incident with the Applicant, Ms Downes disagreed that the Applicant apologised to her and maintained that she specifically recalls threatening to call the Australian Federal Police. Ms Downes also maintained that she did not accept an apology from the Applicant because no apology was given. Ms Downes said that if the Applicant is reinstated she would be concerned for the wellbeing of any woman required to work with him and said that based on the number of times she observed the Applicant looking at pornography it would be likely that he would continue to engage in this conduct.

[146] Under cross-examination, Ms Downes said that refuellers can arrive late to a plane but that more often than not they are on time because of issues with accessing the plane that could arise if they are late. Ms Downes also said that she made a complaint to her supervisor on the night that one of the incidents happened but agreed that she told the supervisor she did not want to take the matter further because she was worried about the consequences. Ms Downes agreed that she left Brisbane airport for a number of reasons but maintained that the deciding factor was the Applicant’s behaviour, despite the fact that she had not said this in the statement signed on 4 December 2018. In response to the proposition that she had said this because she had time to think about matters for the purpose of making her new statement to the Commission and that her evidence was now stronger, Ms Downes said that it was the same evidence and she had not articulated it well at the time. 88

[147] Ms Downes could not recall whether there were three or four incidents with the Applicant but said it was not more than four and that the fourth one she was not sure about because she opened the door and thought: “you’re not catching me out again, you bastard” and went back outside and did something else. Ms Downes agreed that she had not told Ms Tuffin about this. Ms Downes could recall that one incident was in the afternoon and another at night but could not remember the time at which the other incidents occurred. Ms Downes also could not recall what the weather was like on the relevant occasions.

[148] In relation to the first incident with the Applicant, Ms Downes agreed that she saw images that disgusted her and said that she pulled her head away to stop looking. Ms Downes also agreed that the Applicant put the iPad down so that she could not see the screen but maintained that he did so in a very slow manner. Ms Downes did not agree that the Applicant did this like he was looking at something he did not think was wrong. Ms Downes said that she would expect that if someone was looking at those kinds of images at work, they would move quickly to try to hide it and that she stood by her belief that the Applicant wanted her to see the images. Ms Downes also said that she could not understand why the Applicant had the iPad to the side and that if he was looking at the screen the iPad would have been in front of him. Ms Downes did not entirely agree that the Applicant’s reaction was not consistent with someone who had been caught doing something they knew was wrong and said that if the Applicant was so innocent he would not have turned the iPad down. Later in cross-examination Ms Downes accepted that there may be an alternative explanation for the Applicant’s reaction to her entering the room. 89

[149] Ms Downes was asked whether this happened every time she worked with the Applicant and said that she did not work with him that often. Ms Downes also said that it did not happen at the international terminal because the Applicant was working with another engineer. Ms Downes could not recall whether there were interactions between her and the Applicant other than the times she alleged he was viewing pornography on his iPad.

[150] In relation to the last incident which she reported to her supervisor, Ms Downes said her belief is that it occurred in September 2016. Ms Downes said that on this occasion she opened the door and entered the hut and the Applicant was sitting with his back to her. The Applicant stood up as if to leave the room and his body was between Ms Downes and the screen of the iPad. The Applicant put the iPad screen down on the table. Ms Downes agreed that she saw something on the screen that disgusted her but said that she did not know whether she looked away and could not be precise in relation to how many seconds she spent looking at the image.

[151] Ms Downes maintained that she said: “that’s fucking disgusting mate” and threatened to contact the Federal Police. In response to a question about what crime she had seen to prompt her to refer to the Federal Police, Ms Downes said that on the first occasion the images she saw looked to be of children and in particular young Asian girls. Ms Downes agreed that she did not make a complaint at the time or call the police notwithstanding the seriousness of the allegation. Ms Downes said that on the second occasion she viewed the iPad screen she realised that the images were not of children.

[152] In response to the proposition that she could have complained to her manager, Ms Downes said that her manager had no authority to look at the Applicant’s iPad and that if she made a complaint she would have paid for it like she was paying now. Ms Downes said that she did complain to Mr Stapleton on the last occasion but could not recall whether she told Mr Stapleton that she was going to call the Australian Federal Police. In relation to her discussion with Ms Remfrey, Ms Downes said that Ms Remfrey seemed miserable and she felt that she had thrown Ms Remfrey “under the bus” by not reporting the conduct that she had experienced and that she needed to give her a “heads up”. Ms Downes also said that during the discussion she asked Ms Remfrey whether she had any issues at work and she responded by stating that she did have issues and they “agreed on the same person”. 90

[153] Ms Downes agreed that when she spoke to Ms Tuffin about these events it was two years after they had occurred. Ms Downes also agreed that accusing someone of looking at underage pornography is a serious matter. Ms Downes further agreed that if she really suspected that the Applicant was engaged in this, she would not have waited two years to do something about it. Ms Downes denied that she was exaggerating what she saw and maintained that the girls looked really young. Ms Downes also rejected the proposition that she was reconstructing her memory and maintained that she had seen women from range of ethnic backgrounds and identified “Asian” girls with “brown skin” on the right hand side of the screen. Ms Downes and I had the following exchange in relation to her evidence about what she had seen on the iPad:

“THE DEPUTY PRESIDENT:  Ms Downes, I'm sorry to do this to you and I know it's really difficult, but when you were describing some of the image before, you made a couple of gestures and, believe me, we've all heard it all before, so perhaps could you describe what you remember seeing in those photographs, which you remember you made a gesture where you opened your mouth quite wide and put your hand up to it.  Can you just tell us what - - -?---Well, the Asian girls were on the right-hand side of the screen and they were all posing like, kind of like this kind of thing, and I thought it looked like they were children, and there was a whole bunch of other naked people on the left-hand side.  That's the first one.

In the one where I confronted him, the left-hand side top picture was just a great big vagina being pulled over the flaps of the person with brown skin, basically looking straight through the hole, and below that, there was a woman holding a penis to her mouth and then there was a whole bunch of other pictures there of naked body, skin type situations.  I didn't commit them to memory, but those two made quite an impact on me, especially the one that was the biggest picture was basically just doing this, but I was quite surprised that they were like the League of Nations, basically, the skin colours all like---” 91

[154] I also asked Ms Downes about how she got into a discussion with Ms Remfrey about the Applicant and the allegations and Ms Downes said that while driving Ms Downes to the ADA test Ms Remfrey seemed miserable, prompting Ms Downes to ask how the job was going and what was happening on the tarmac and whether there were any issues out there. Ms Remfrey responded by rolling her eyes and may have said “Moose” [the Applicant’s nickname] and then told Ms Downes about her interactions with the Applicant. Ms Downes said that discovering that “this shit” was still happening caused her to feel distressed and guilty that she had not done anything about it earlier. 92

[155] Mr Stapleton made a statement dated 10 January 2019 93, which was tendered without objection and Mr Stapleton was not required for cross-examination. Mr Stapleton stated that “some time in 2016” Ms Downes told him that in the course of her duties she had seen a Qantas engineer looking at pornography, which was explicit. Mr Stapleton also states that Ms Downes said that this conduct had occurred on possibly three occasions. Further, Mr Stapleton states that Ms Downes was very upset at the time and told him that she was thinking of contacting the Federal Police. Mr Stapleton offered Ms Downes his support, but she decided not to pursue it further at the time. Mr Stapleton diarised the matter at Ms Downes’ request but did not retain his notes after Ms Downes moved to the Gold Coast.

[156] In relation to the allegations concerning Ms Downes, the Applicant said in his witness statement in these proceedings that he was first advised of the allegation that he had viewed graphic pornographic material in the engineering hut in 2016, in the second allegation letter sent on 5 December 2018. The Applicant said that he does not believe that he has ever used the iPad at work to access online pornography or to download images. The Applicant also said that he would never deliberately look at an explicit image in circumstances where they could be seen by others at work or likewise expose colleagues to content that might cause them offence.

[157] The Applicant said that at most, it is possible that he opened an email sending the personal photos referred to in Allegation 4 or checked a private image while alone. This would happen only on very rare occasions, largely accidentally. The Applicant also said that he had no intention of anyone ever seeing those images and if he had ever become aware that someone could see them he would immediately have closed the iPad. Further, the Applicant said that he does not generally know when refuellers are going to enter the Engineers hut and it is entirely possible for someone to enter without him being initially aware of it. The Applicant recalled one exchange with Ms Downes in around 2016. To the best of his knowledge, the Applicant had an exchange with Ms Downes to the following effect:

Ms Downes: “That’s disgusting what I’ve seen”.

The Applicant: “I apologise if I have done anything to offend you.”

[158] The Applicant said that he was not sure at the time what Ms Downes was referring to but she did seem upset with him. The Applicant also said that Ms Downes did not make any reference to the police and seemed to accept his apology. As far as the Applicant was concerned, this was the end of the matter. Further, the Applicant said that if he had caused Ms Downes distress or embarrassment, he would like to sincerely apologise to her and that he would never want to make anyone feel uncomfortable at work.

[159] The Applicant also tendered a written response to these allegations, which was given to Qantas on or about 11 December 2018. In that response the Applicant began by expressing his remorse if he caused offence or humiliation to a colleague and reiterated his belief that based on the Mobility Policy, any content stored on the iPad could not be seen by Qantas or anyone else. The Applicant also questioned why the new allegations were not made in the first allegations letter and that the dates upon which the conduct allegedly occurred were not specified and were over two years earlier, in 2016. Further the Applicant questioned why the allegation was not supported by IT records or analysis of the use of the iPad.

[160] The Applicant’s 11 December response also points out that neither of the alleged instances of him viewing pornography in 2016 in the first allegations letter coincides with the allegations in the second letter and that the date listed in the first allegations letter (29 September 2016) which coincided with the iPad being used to view pornographic images was time when the Applicant was off duty at home and could not therefore be an occasion when Ms Downes saw him viewing pornography. The Applicant states that he does recall Ms Downes making a comment about something she had seen being disgusting but was not aware what she was referring to and that he apologised if he had done something to offend her. The Applicant does not remember Ms Downes stating that she would contact the authorities and does not believe that she has done this. The Applicant also made the following points in his 11 December response:

•  The second allegations letter refers to use of the iPad to view pornography three times between January and September 2016 and the Applicant did not receive the iPad until May 2016 as evidenced by the acknowledgement form he signed at that time;

•  If Ms Downes was so angry and concerned at what she saw on the iPad that she said she was going to call the Australian Federal Police, the Applicant questioned why no complaint was made against him (or acted on if made) for a period of two years.

•  There are allegations that the Applicant viewed pornography when he knew or should have known that Ms Downes would see the images and an allegation that the Applicant slowly closed the iPad when he became aware that Ms Downes “made her presence known” which indicates that the Applicant was not aware of Ms Downes’ presence.

•  The allegation that the Applicant knew or ought to have known that Ms Downes had entered the engineering hut is unfair and unclear in relation to whether it is insinuated that the Applicant intentionally exposed Ms Downes to pornographic images.

[161] In the 11 December response, the Applicant denied that he knew or could have known that Ms Downes was approaching the Engineers hut and maintained that he and other Qantas engineers generally do not know which refuellers are working which shift and whether they will come to the Engineers hut. The Applicant also disputed that he closed the iPad slowly and stated that he considered the images on the iPad personal and that if someone had seen them he would have quickly closed the iPad so as not to cause embarrassment or offence.

[162] Under cross-examination, the Applicant said that he has “a vague recollection” of one incident involving Ms Downes being the incident in September 2016. 94 The Applicant said that he recalls Ms Downes being offended and that he apologised to her. In response to a question about whether he had received emails attaching pictures of the kind described by Ms Downes – men and women having sex and many naked women of different ethnicities including Asian women who appeared to be very young – the Applicant said that with the exception of women who appear to be very young, he receives images of that nature on occasions, to his personal email.95 In response to the proposition that he had not produced any emails attaching such images which he said Ms Downes may have seen, the Applicant said that he does not save those emails.

[163] The Applicant was also taken to the notes of the meeting he attended with Ms Hobl on 6 February 2019 96 in which he is reported as stating that he recalls an incident when Ms Downes said: “that’s fucking disgusting mate” and he closed the iPad and said: “I’m sorry darling you weren’t meant to see that.” The Applicant is also reported as stating that he did not know what Ms Downes saw. In response to a question about why he apologised, the report states that the Applicant said that he did so because Ms Downes was offended and that it was not right that she should be offended. The meeting report also records that the Applicant said that he does not recall Ms Downes stating that she was going to call the Federal Police. Further the Applicant is recorded as stating that he does not access anything inappropriate at work and that: “Occasionally something may come up and I close it straight away.” The Applicant also had the following exchange with Counsel for Qantas in cross-examination:

“What I'm suggesting to you is not just that you assumed that she saw something offensive but you knew that you had an offensive image on your screen and that that's the reason why you apologised when she said, "That's fucking disgusting, mate." Isn't that right? --- Yes.

You didn't, of course say, "I've got no idea what you're talking about. What is it that is disgusting about this"? --- No.

The reason for that is that you did, at that time, have an explicit image on your screen, didn't you? --- I may have, yes.” 97

[164] In re-examination the Applicant was asked to clarify what he meant when he said in cross-examination that Ms Downes must have seen an explicit image on his iPad and said that he had no recollection of the image that Ms Downes saw but given that she had gone to the effort of making a complaint and describing the image in that manner, it must have been an explicit image. 98

The findings and outcomes of the investigation

[165] The findings and outcomes of the investigation were made and determined by Mr Grimshaw. In making his findings Mr Grimshaw reviewed and considered the information gathered during the investigation and the Applicant’s responses. Mr Grimshaw determined that each of the allegations in the first letter of allegations and the further letter of allegations had been substantiated. Mr Grimshaw appended his findings to a letter to the Applicant dated 23 January 2019 headed “Allegations about your conduct – findings and outcomes of the investigation (the findings letter) 99. The findings letter stated:

“…these findings are very serious and the Company is considering disciplinary action against you which might be the termination of your employment.

I am particularly concerned you carried out the conduct described in allegations two and three [the allegations concerning Ms Remfrey] in the Further Allegations [the allegations concerning Ms Downes] on a repeated basis over an extended period of time. I am also concerned that the two Caltex employees witnessed you engaging in this conduct on multiple occasions.

Furthermore, I am seriously concerned that in response to a number of allegations, you have maintained the view that the material you were accessing whilst at work is not inappropriate, offensive or in breach of the Standards of Conduct Policy. You have also not shown any contrition or remorse for viewing such material in the workplace. Consequently I am seriously concerned as to whether the Company can maintain trust and confidence in your ongoing ability to abide by the Company’s policies.”

[166] In relation to the Applicant’s responses referring to the Mobility Terms and Conditions and his belief about how these operated, the letter states:

•  The iPad issued to you is a Company owned device. The iPad was confiscated from you so that it could be analysed by IT experts following two complaints being made about the material you were viewing on the Company iPad whilst at work.

•  I provided you with a copy of the Mobility Terms and Conditions in our meeting on 17 December 2018. The Mobility Terms and conditions do not prohibit the Company from confiscating and accessing any information stored on a Company owned iPad. Rather, the mobility Conditions relate specifically to the operation of the ‘Comp Portal’ application on a device. Users are required to download this application to their device and enrol that device, in order to be able to access the Qantas IT Environment on that device. This is a requirement regardless of whether the device is a personally owned device or a device owned or leased by the Company.

•  The Mobility Terms and Conditions relate to what the ‘Comp Portal’ application is able to access when the application is downloaded to a device. The Mobility Conditions provide that the Company cannot remotely monitor text messages and photos through the Comp Portal. I can confirm that the Company has not obtained any images, web history or data usage or any other information referred to in the letters of allegation, through remotely accessing or monitoring the Company iPad that was issued to you.

•  The Mobility Conditions are subject to, and in fact, explicitly refer to the Cyber Security Policy (referred to as the IT Policy in the Mobility Conditions being the previous name of the Cyber Security Policy). The Cyber Security Policy allows only for ‘reasonable personal use’ of the Company’s IT environment. Your use of the Company iPad is subject to compliance with all relevant Company policies, procedures and conditions.

[167] The details of the findings attached to the letter can be summarised as follows. In relation to Allegation 1 concerning the Applicant accessing the Fantasy Lingerie website on 3 August 2017, it was found that notwithstanding that it is retail website it is an adult retail website with images displayed including topless women and sex toys. It was also concluded that the images may reasonably be considered obscene, pornographic and/or offensive in nature and not appropriate to be accessed at work. Allegation 1 was therefore found to be substantiated.

[168] In relation to Allegations 2 and 3 concerning Ms Remfrey, it is noted that the Applicant suggested in his written response that the dates nominated by Ms Remfrey did not correspond with the dates in the allegations concerning the images on the iPad or the accessing of pornographic websites. The findings record that while this may be the case, the evidence of Ms Remfrey was not undermined because there were several plausible explanations for the lack of browsing history on the relevant dates, including private browsing or the manual deletion of internet browsing history. While noting that the Applicant had denied private browsing during the investigation, it was also determined by Mr Grimshaw that he had been unable to explain why there was no browsing history recorded on the iPad for three months during the period 17 May to 16 August 2018. Allegations 2 and 3 were also found to be substantiated.

[169] In relation to Allegation 4 concerning the images on the iPad, it was noted that in his written response dated 9 November 2018 the Applicant had stated that he stored them on the iPad because he understood that Qantas could not see them and that later in the response meeting on 17 December 2017 the Applicant stated that he did not realise that the images had been saved on the iPad. It was further noted that the Applicant had stated during the 17 November response meeting that he did not think that the images were offensive. The finding was that the images are obscene and pornographic and include an extreme close-up of a woman’s genitals; a close-up of exposed female breasts and women in various stages of undress (some in sexually suggestive poses). Reference is also made to the interaction between the Mobility Conditions and the Company’s policies including the Cyber Security Policy and the SOC Policy as set out in the covering letter. Allegation 4 was found to be substantiated.

[170] Allegation 5 concerned accessing websites on the iPad containing images and/or videos that were obscene, pornographic and/or offensive in nature, on a range of dates between 29 September 2016 and 25 September 2018. It was also alleged that the Applicant knew, or ought to have known, that using the Company iPad to access the websites was inappropriate and in excess of reasonable personal use. The finding was that notwithstanding the Applicant’s response regarding the legality of the websites (about which no finding was made) the websites were obscene, pornographic and/or offensive in nature. It was also found that while the websites were not accessed during work time, they were inappropriate on the basis of the explicit content on them and the number of websites accessed and the time over which this occurred, was in excess of reasonable personal use, including one day when 23 websites were accessed over a 5 hour 14 minute period. The finding also noted that the Cyber Security Policy applies to the IT environment, which includes the Company owned iPad issued to the Applicant, at all times, regardless of whether the user is at work or not and that both aspects of Allegation 5 were substantiated.

[171] Allegation 6 concerned the Applicant exceeding the monthly data usage of 1.5GB in a single day on 7 occasions and that he was aware or should have been aware, by virtue of signing the iPad declaration form, that the amount of data involved was in excess of reasonable personal use. The Applicant’s response that he was downloading updates for work related apps was found not to align with Apple’s 150MB cellular data download restriction. It was also found that the Applicant’s position that there was no communication or notification given to employees that their data use may exceed the monthly limit was relevant to the weight to be given to the allegation, but the allegation was nonetheless substantiated. This finding was later set aside following an internal appeal on the basis that the cellular download data restriction applied only to Apple apps and not to Qantas apps.

[172] The further allegation involving Ms Downes (which I have numbered as Allegation 7) had a number of parts. In relation to the first part of the further allegation, it was noted that the Applicant had conceded that he had a small number of personal photos on his iPad and that Ms Downes may have seen one of the images. In relation to the second part of the allegation it was noted that the Applicant denied that he was aware of the presence of Ms Downes at the relevant time. It was concluded that Ms Downes’ description of the images she saw does not match the images the Applicant admitted to storing on his iPad. It was also concluded that the Applicant had not given Mr Grimshaw any reason to doubt Ms Downes’ evidence and that the Applicant had admitted to viewing inappropriate images at work and in the presence of Ms Downes (although denying that he was aware of her presence). It was found that the Applicant ought to have been aware that Ms Downes could see the images and that given their explicit nature, that the images would be likely to cause offence, intimidation or humiliation to Ms Downes. Based on the information including the Applicant’s admissions, it was found that this part of the allegation was substantiated.

[173] It was also found that the Applicant slowly closed the iPad and that the Applicant knew or should have known that his conduct would be likely to cause offence, intimidation or humiliation to Ms Downes. Further, it was found that in relation to the last incident reported by Ms Downes that her version of events should be accepted on the basis that the Applicant accepted that Ms Downes must have been offended by something based on her comment that it was “disgusting”. The allegation that the Applicant should have been aware that Ms Downes was approaching the engineering hut was also substantiated. This conclusion was based on a finding that it was foreseeable that Ms Downes may be approaching the Engineers hut in the course of her duties and that there was also potential for a number of employees to enter the hut including ramp employees, flight crew and engineers.

[174] Mr Grimshaw said that following the meeting on 23 January 2019, he handed over the investigation documents including the findings letter to Ms Hobl and was not involved in the decision to dismiss the Applicant. In response to the Applicant’s statement, Mr Grimshaw said that he is troubled by the Applicant continuing to take issue with the proper application of Qantas Group policies and procedures and that if the Applicant is reinstated, it will send a message to other LAMEs and staff that it is okay to view pornographic, offensive or otherwise inappropriate content at work where it clearly is not. According to Mr Grimshaw, this is a matter which should be understood by LAMEs even without training and the Applicant should have been aware of it given his training and acknowledgement of the applicable terms and conditions.

[175] Mr Grimshaw also referred to the Applicant’s evidence about the lingerie website and said that he finds it difficult to comprehend the Applicant’s statement to the effect that he does not find the website to be offensive, pornographic or obscene. Mr Grimshaw stated that even if the website is not pornographic, it is not appropriate to access at work. Moreover, Mr Grimshaw is satisfied that the Applicant accessed the website while he was in the Engineers hut which is an area which can be accessed by a range of Qantas employees and third parties. The substantiated conduct is said by Mr Grimshaw to be repeated conduct over an extensive period, rather than an isolated incident.

[176] Mr Grimshaw agreed that he became aware of Ms Remfrey’s complaint on 12 July 2018 and that at that point he could have found out the identity of the engineer involved and had everything he needed to start an investigation process, notwithstanding that Ms Remfrey did not want to make a statement. Mr Grimshaw also agreed that the allegation was serious and that he had an obligation to investigate and that it did not matter whether Ms Remfrey made a statement. Further, Mr Grimshaw agreed that he could have asked the Applicant about Ms Remfrey’s allegation and seized his iPad on 12 July 2018 when he first became aware of that allegation. Mr Grimshaw accepted that he did not take either of these actions and that nothing further happened for a two-month period.

[177] Under cross-examination, Mr Grimshaw made some concessions about the findings generally and in respect of each allegation. Mr Grimshaw agreed that the first time the Applicant was informed of the allegations, he offered to apologise. In relation to Allegation 1, Mr Grimshaw agreed that the terms “obscene, pornographic and/or offensive” have different meanings. Mr Grimshaw initially stated that the images on the Fantasy Lingerie website could be seen as pornographic but later said that “offensive” is as high as he could put the matter. 100 In relation to Allegations 2 and 3, Mr Grimshaw agreed that the wording of the allegations is from the SOC Policy and that the effect of the allegations is that the Applicant has harassed someone.101 In relation to Allegation 4, Mr Grimshaw said that the images go beyond offensive, and are obscene and/or pornographic. Mr Grimshaw also agreed that Qantas should set a standard for what is obscene and/or pornographic and explain this to employees, because different people have different standards and a mistake could reasonably be made.102

[178] In relation to Allegation 5, Mr Grimshaw accepted that all of the URLs were accessed by the Applicant outside work, using his own Wi-Fi, and said that the breach was because use of the iPad to access the websites was inappropriate and the viewing was in excess of reasonable personal use. In relation to the use of the term “inappropriate use” Mr Grimshaw agreed that a particular policy breach was not being identified. 103 Mr Grimshaw also agreed that the Applicant’s response that he believed that his personal use of the iPad would not be monitored because of the privacy statement in the Comp Portal app that Qantas could not see his photos or web history, was a reasonable belief on the part of the Applicant. Further, Mr Grimshaw agreed that the Applicant apologised for a second time and that his apology was unconditional.104

[179] Mr Grimshaw was also taken to the responses provided by the Applicant to each allegation and agreed with the following propositions. In relation to Allegation 1 Mr Grimshaw agreed that the Applicant stated that he did not think that the lingerie website was obscene, but sincerely apologised and was remorseful if someone saw it and was offended. The Applicant also agreed that he was open to Qantas explaining to him what the standard is. 105

[180] In relation to Allegations 2 and 3, Mr Grimshaw accepted that he had no objective evidence to contradict the Applicant’s statement that he honestly believed he had not looked at pornographic websites in the workplace. Mr Grimshaw accepted that the Applicant did not dig in his heels or state that Ms Remfrey was wrong or was being ridiculous. Further, the Applicant did not concede that he was looking at the lingerie website at the relevant times but rather suggested this as an explanation for what was seen by Ms Remfrey and the Applicant offered to apologise to Ms Remfrey. 106

[181] In relation to Allegation 4, Mr Grimshaw agreed only two of the seven photos contain nudity and that he had no evidence that the Applicant ever intended the photos to be seen by anyone. Further the Applicant had stated that he believed that Qantas could not view the photos because that was what was on the iPad. Mr Grimshaw accepted that this was a fair understanding on the part of the Applicant and also that it was fair enough that the Applicant had a misunderstanding. 107

[182] With respect to the Applicant’s response to Allegation 5, Mr Grimshaw accepted that:

•  His stated inability to respond until details of the websites were provided was fair;

•  The Applicant spoke about the Mobility Policy and said that his understanding is that when he is on his home Wi-Fi he can look at these kinds of websites;

•  The Applicant effectively stated that he did not think he was doing anything wrong at the time and if he had a different understanding that he would have acted differently;

•  There is no reason to believe that the Applicant would not abide by the policies in the future;

•  The first and last thing that the Applicant did was apologise;

•  The Applicant took the allegations seriously and said if he had done the wrong thing it was mistake; and

•  The Applicant’s response was a totally appropriate response in a misconduct investigation and meant that the conduct was less likely to be misconduct. 108

[183] Mr Grimshaw accepted that some of the websites referred to in Allegation 5 were not pornographic, such as a website which showed bikini competitions, notwithstanding that such sites may not be appropriate to be viewed at work. Mr Grimshaw also accepted that there was nothing wrong with the Applicant looking at this website at home on his Qantas iPad. In relation to the websites that did contain pornography, Mr Grimshaw agreed that they did not contain “hard core” pornography. Mr Grimshaw also accepted that there is no suggestion that viewing of such websites was conducted using Qantas data and that he had no reason to believe that the Applicant was not genuine in his remorse for any breach of Qantas policies or the code of conduct. Further Mr Grimshaw accepted that the Applicant did not dispute that he had breached Qantas policy but rather that he had a misunderstanding of a different policy. 109

[184] Mr Grimshaw agreed that the nature of the allegation concerning Ms Downes was that the Applicant had sexually harassed her and that the essence was that the Applicant was looking at pornographic images in the engineering hut, when he knew or should have known that Ms Downes was going to be in the hut.” 110 Mr Grimshaw accepted that he had no reason to doubt the genuineness of the Applicant’s remorse and preparedness to apologise if he caused Ms Downes offence or humiliation, and that he believed the Applicant in this regard. Mr Grimshaw also accepted that the Applicant was taking issue with the allegations on the basis that the alleged conduct occurred two years before it was raised and at the same time as the other allegations had been raised.

[185] Mr Grimshaw agreed that the Applicant’s admission that Ms Downes stated that something he was looking at was disgusting, was not in his interests and that it was used against him. Mr Grimshaw also agreed that the admission was to the Applicant’s credit and that his honesty in this regard is something that should be weighed in considering what disciplinary action is appropriate and was a matter strongly in favour of keeping the Applicant in the workplace. 111 Mr Grimshaw further agreed that the Applicant sincerely apologised and was remorseful and there was no real risk that he would do anything like this again. Finally, in relation to this allegation, Mr Grimshaw said that while the times refuellers approach the engineering hut is “pretty stock standard” there is no precise time that this happens, and it is not by the clock.112

[186] In relation to the Applicant’s responses about the circumstances in which the iPad was provided, Mr Grimshaw agreed that he asked the Applicant why he believed that Qantas could not see his photos and the response from the Applicant and his support person was that this was because the iPad said so. Mr Grimshaw also agreed that he took a screen shot of the iPad of the Applicant’s support person which was also a Qantas owned iPad that was set to “personal”. Mr Grimshaw accepted that at the time, this surprised him because he thought the iPads supplied to LAMEs were set to “corporate” and he did not know that any iPads used by LAMEs were set up in this way. Mr Grimshaw agreed that the Applicant’s iPad and that of his support person had been set to “personal” and said that he made no further inquiries about this matter. 113 Mr Grimshaw agreed that it would be significant if the Applicant’s iPad was treated the same way as a personal use device from a policy point of view.114

[187] In relation to the acceptance form completed by the Applicant, Mr Grimshaw accepted that the Applicant told him that the acceptance form was a “tick and flick” and that he understood the meaning of this term. Mr Grimshaw also accepted that the Applicant’s support person corroborated his statement on this point and that he had no reason to disbelieve the statements in this regard. 115 In response to the proposition that the iPad says nothing about appropriate use and does not contain a link to the IT Policy, Mr Grimshaw said that one of the screens in the enrolment guide refers to the IT Policy.116

[188] In relation to the gap in browsing history on the Applicant’s iPad, Mr Grimshaw agreed that when he interviewed the Applicant on 17 December 2018, it had been suggested to him that the gap must mean that the Applicant had been using private browsing. Mr Grimshaw accepted that it could also mean that the Applicant had simply not been on safari and that the iPad could have been used for personal and work related purposes without safari being opened and that this was equally as possible as private browsing. Mr Grimshaw agreed that he had shown the Applicant how to open private browsing and that it is plausible that he did not know how to do this. 117 In relation to the seven images stored on the iPad, Mr Grimshaw agreed that only one is obscene – the image of a woman’s genitalia. 118

[189] In relation to Ms Downes’ allegations, Mr Grimshaw did not disagree with the proposition that it was put to the Applicant that he deliberately showed Ms Downes the images and that he was adamant that this was not the case. Mr Grimshaw also agreed that Ms Downes’ allegation was that she walked into the hut and saw something on the screen of the iPad, the screen was in a position that she could see it and that the Applicant put the screen down when she made a noise. Mr Grimshaw agreed that the this was a tenuous basis to say that someone was deliberately showing the images, particularly in light of the Applicant’s adamant denial. Mr Grimshaw conceded that he could not seriously substantiate this allegation. 119

[190] In relation to the letter setting out the findings and outcomes of the investigation, Mr Grimshaw said that the letter was drafted by the case management team at Qantas but that he agreed with its contents. Mr Grimshaw also agreed that the lingerie website (subject of Allegation 1) is not pornographic nor objectively offensive but is inappropriate at work and viewing it does not justify dismissal. There is no objective evidence in support of Allegation 2 and Mr Grimshaw now knows that there is at least one other plausible explanation for the lack of browsing history notwithstanding that data was used on the dates in question. In relation to Allegation 3 it was a matter of one employee’s evidence against that of another employee and there was no objective evidence to support the allegation. Mr Grimshaw further agreed that he had no proper basis to disbelieve the Applicant and that Allegation 3 should not have been substantiated.

[191] In relation to Allegation 4, Mr Grimshaw accepted that the finding that the images were obscene was not a fair description in relation to six of the seven images concerned and accessing it in the workplace would not justify dismissal. In relation to Allegation 5, there was no finding that the websites were illegal and that the Applicant accessing them in his home on his own Wi-Fi caused any cost to Qantas. The concern in relation to this allegation was that too much pornography had been accessed. Allegation 6 was substantiated but later found not to be substantiated following an internal appeal. Mr Grimshaw accepted that he could not personally substantiate Ms Downes’ allegations and did not have a proper basis to assess her credibility. Further, Mr Grimshaw accepted that the allegation as substantiated was that the Applicant sexually harassed Ms Downes. 120

The decision to dismiss the Applicant

[192] The decision to dismiss the applicant was made by Ms Hobl. On or about 23 January 2019, Ms Hobl attended a meeting with Mr Grimshaw. During the meeting, Mr Grimshaw said words to the effect that he had completed his investigation, that the allegations against the Applicant had been substantiated, and that the Applicant had been directed to provide a response to Ms Hobl as to why his employment should not be terminated. On 23 January 2019, Ms Hobl was emailed a copy of the Show Cause letter setting out findings and outcomes of the investigation which had been given to the Applicant and which invited the Applicant to write to Ms Hobl by 29 January 2019 to provide reasons as to why his employment should not be terminated.

[193] Ms Hobl said that she read the Show Cause Letter and noted that the allegations against the Applicant had been substantiated, including the allegations made by two separate witnesses that the Applicant had, on a number of occasions, looked at pornographic material while in the workplace. Ms Hobl said that she was very concerned that two women had been exposed to conduct of that kind while working with Qantas. On 30 January 2019, Ms Hobl received an email from the Applicant attaching his response to the Show Cause Letter. Ms Hobl states that she read the response and noted the following:

•  The Applicant referred to his belief that viewing “lawful adult websites” on the company iPad in his own time was not a breach of Qantas policy, despite the clear words of the SOC Policy and the Cyber Security Policy;

•  The Applicant maintained that he had “always complied” with the Qantas Mobility Service Terms and Conditions (Mobility Terms and Conditions), despite it being explained in the Show Cause Letter (among other things) that the Mobility Terms and Conditions only relate to the operation of the “Comp Portal” application on the iPad and also explicitly refer to the Cyber Security Policy;

•  The Applicant stated that he did not consider that the images on his device, which included a photo of a woman's exposed breasts and a photo of a woman's exposed genitals, were pornographic. He described the images as merely “a bit naughty”; and

•  While the Applicant apologised for “offending” Ms Downes, and seemed to admit that Ms Downes may have viewed a pornographic image on the iPad that he was using, at the same time the Applicant continued to deny that he had engaged in any inappropriate conduct.

[194] Ms Hobl said that she considered that these matters demonstrated a clear lack of understanding and a lack of judgment by the Applicant of both appropriate workplace behaviour and the seriousness of his conduct. Ms Hobl also reviewed the materials that had been found on the iPad used by the Applicant. Ms Hobl states that she was taken aback and very concerned by the graphic nature of some of those materials, including the images stored on the iPad and the list of websites accessed. Ms Hobl considered those materials to be explicit and plainly inappropriate to be accessed and/or stored on a company-issued iPad.

[195] Based on her review of the materials in the case file, Ms Hobl formed the view that the Applicant’s conduct was in breach of his obligations as an employee, including, most plainly, his obligations under the SOC Policy. Ms Hobl considered the Applicant to be in breach of the SOC Policy because his conduct involved the access and storage, on a company device, of offensive and inappropriate material, including pornographic material. Ms Hobl also considered that the Applicant’s conduct constituted harassment within the meaning of the SOC Policy. Ms Hobl’s view in this regard was that the Applicant’s conduct towards the two female refuellers was unwelcome and unwanted by them, had caused each of them offence, intimidation and/or humiliation, and had occurred on a number of occasions. Ms Hobl considered that the conduct fell within the definition of sexual harassment set out in the SOC Policy, including because the conduct was captured by one of the examples of sexual harassment in the SOC Policy, being "display or circulation…of sexual material, including magazines, posters or pictures and messages".

[196] On 6 February 2019, Ms Hobl attended a meeting with the Applicant at the Brisbane Domestic Terminal referred to by Ms Hobl as the Show Cause Meeting. Mr Luke Murray, Qantas LAME, attended the meeting as a support person for the Applicant. Ms Saddi attended the meeting as a representative of Qantas. Ms Hobl said that during the Show Cause Meeting, she showed the Applicant printed copies of the photographs on the iPad and asked him questions to the effect of whether he considered the images to merely be “naughty”. The Applicant said words to the effect that they were private photos that were not meant to be seen by anyone, and that in that context they were “a bit naughty”.

[197] Ms Hobl states that she also asked the Applicant some questions about his understanding of Qantas policies, given the reference in his Show Cause Response to his having “complied” with the Mobility Terms and Conditions. According to Ms Hobl, the Applicant, on a number of occasions, said words to the effect that he was not aware, at the time the conduct occurred, that his conduct was in breach of Qantas’ policy. Ms Hobl appended to her statement a copy of notes taken by Ms Saddi during the Show Cause Meeting and said that she has reviewed those notes and they accord with her recollection of the meeting. 121

[198] Ms Hobl tendered the notes of the Show Cause Meeting conducted on 6 February 2019. 122 The meeting notes indicate that Ms Hobl informed the Applicant that the Mobility Terms and Conditions do not supersede or replace the SOC Policy or the Cyber Security Policy. The notes record that the Applicant maintained that these matters were not made clear to him and that he had not breached the Company policy in the Company IT environment. The Applicant is also recorded as stating:

“If you want to claim that I looked at inappropriate sites within my own time within my own house, I can’t contest that, but I can’t see how it affects work. It’s a piece of hardware and we were told we could do what we wanted to do with it outside of the company environment. It’s clear that I had a misunderstanding and I am sure a lot of guys had the same misunderstanding.”

[199] It is also apparent from the notes of the show cause meeting that Ms Hobl took issue with the Applicant continuing to assert that the Mobility Terms and Conditions justified what she believed to be his inappropriate use of the iPad despite being given an explanation of those Conditions including that they “do not prohibit the Company from confiscating and accessing any information on a Company owned iPad.” The record of meeting also indicates that Ms Hobl asked the Applicant whether, following that explanation, he remained of the view that he did not breach Company policies and later, whether he breached the policy. The Applicant is recorded as stating:

“In my current understanding as a result of this investigation, it appears that I breached the policy. But it wasn’t deliberate. I understood it to be a certain way because of the information I was given and I was mistaken.”

[200] In response to a question about whether he now thinks it appropriate the Applicant is recorded as stating that he cannot answer that question without “shooting myself in the foot” and that he had answered this question in writing. In relation to the images stored on the iPad, the Applicant was asked whether, given he did not find them inappropriate or offensive, he would have no concerns about accessing them in the workplace. The Applicant’s response is recorded as being that he does not think the photos are appropriate for public display and has never thought so and that he has never intentionally accessed inappropriate material in the workplace. Ms Hobl is also recorded as putting to the Applicant that he recalls Ms Downes stating that something he was viewing on his iPad was disgusting and yet appeared to have continued to engage in the same conduct. The Applicant is recorded as denying this assertion.

[201] It is also repeatedly stated by Ms Hobl that the Applicant has not shown contrition and remorse or made sincere and unqualified apologies and that essentially the Applicant is stating that he is not bound by the policies but if Qantas finds that he is, he will apologise. The Applicant is recorded as responding that:

“What I’m saying there is I am sorry, but at the time I didn’t believe that I was bound by the policies. What I’m saying is that I didn’t believe I was breaching any policies at the time, but if I am, I’m very sorry for it. But you understand I have to defend myself as well. Not when I’m at risk of losing my job. I’m drawing the line of defending myself and showing contrition. But I’m unconditionally sorry for anything that occurred that’s against regulations or that’s offended anyone. I had to somehow try to defend myself for a bit. But that’s also under advice from the Union from a legal standpoint as well. That’s not a conditional apology. That’s an unconditional apology with the reservation at the time that I didn’t believe that I was doing anything wrong. I think it all comes down to intent. I don’t have any intent to offend people. I’m just really really sorry that this all happened.”

[202] The Applicant is recorded as stating that Ms Downes may have been offended because he said: “I’m sorry darl” and that Ms Downes was disgusted but she was not meant to see “it”. The Applicant also states that the problem will never recur and that: “I will never open an email on the damn thing again”. Ms Hobl is also recorded as stating: “would I feel comfortable if my daughter was viewing that if she was in a place of work?” to which the Applicant responded that he accidentally accessed the images just before he got a CPAP machine and had been having “microsleep” at the time.

[203] In relation to personal circumstances the meeting record indicates that the Applicant said:

“I don’t know anything but working for Qantas. This is my life. My father did 25 years at Qantas before me. At 41 years service I can’t imagine that anyone would believe that I would deliberately jeopardise that. I’m just asking that you see it as an unintentional misunderstanding and I can see that you’ve substantiated the breaches and there were breaches. But I’m saddened that there has been no acceptance that I didn’t deliberately engage in this and I’m saddened that my apologies aren’t being taken with a little bit more genuity. This is destroying me. Problem has been in the past and it will never recur. I just can’t change the past. I can’t.”

[204] Ms Hobl said that the Applicant’s responses during the Show Cause Meeting, in particular his refusal to acknowledge that the images on the iPad were explicit and his repeated reliance on the Mobility Terms and Conditions without any acknowledgement of the SOC Policy and the Cyber Security Policy, reinforced her view that the Applicant did not understand what constituted appropriate workplace behaviour and did not appreciate the seriousness of his conduct. Ms Hobl also said that following the meeting with the Applicant on 6 February 2019, she considered the findings of the investigation, as well as the matters that the Applicant had raised in his Show Cause Response and during the Show Cause Meeting. Ms Hobl formed the view that the Applicant’s conduct was serious, particularly given the following matters:

•  The conduct, as substantiated by the investigation, involved unwelcome, offensive and/or humiliating conduct towards two different women which was repeated over a significant period of time;

•  Ms Hobl was satisfied that the material those women saw, as substantiated by the investigation, was not a lingerie website as the Applicant claimed, but rather explicit pornographic material;

•  In any case, the viewing of an adult lingerie website on a company device in the workplace would have also been inappropriate;

•  The images stored on the iPad included similarly explicit material;

•  The Applicant knew, or ought to have known, that his conduct was highly inappropriate and unacceptable; and

•  The Applicant knew, or ought to have known, that his conduct was in breach of the SOC Policy and the Cyber Security Policy, particularly have regard to the training that the Applicant received on the SOC Policy as part of the refresher he undertook on 6 July 2016 in relation to the SOC Policy.

[205] Ms Hobl considered the Applicant’s statements in the Show Cause Response and the Show Cause Meeting to the effect that any explicit material he may have “inadvertently” viewed in the workplace was not intended to be seen by anyone else. Ms Hobl did not accept that the Applicant’s viewing of explicit material was inadvertent and, in any case, did not accept that his explanation would excuse the Applicant’s conduct. Ms Hobl noted that conduct does not need to be intentional to fall within the definition of harassment under the SOC Policy. Further, even if the Applicant’s version of events was accepted (which was not the finding of the investigation), Ms Hobl considered it to be completely unacceptable in any case for the Applicant to allow potentially explicit material to be sent to his company device, and for him to open that material in the workplace.

[206] Ms Hobl also considered the Applicant’s statements in the Show Cause Response and the Show Cause Meeting that he was confused or unclear about the application of Qantas policies and concluded that it was not reasonable for the Applicant to suggest that he was confused or unclear about those policies. In this regard, Ms Hobl noted that the Applicant received regular training on the SOC Policy. Ms Hobl was also aware, from her review of the investigation materials, that the Applicant had signed a declaration when he received his iPad in which he agreed to comply with the IT Policy (now known as the Cyber Security Policy). Further, Ms Hobl considered that storing and accessing explicit or pornographic material on a company device, and viewing explicit or pornographic material in the workplace on a company device, is conduct that is so inappropriate that it goes without saying that it is not acceptable workplace behaviour. Finally, Ms Hobl also considered the relevant mitigating circumstances, including the Applicant’s length of service and performance record, and the effect of the termination of his employment on his personal and financial circumstances.

[207] Ms Hobl said that ultimately, having considered and weighed up of all these matters, and after considering whether there were any reasonable alternatives to dismissal, she formed the view that the termination of the Applicant’s employment was appropriate. Ms Hobl also said that mitigating factors did not outweigh the seriousness of the Applicant’s conduct. Before making the final decision to terminate the Applicant’s employment, Ms Hobl made inquiries to confirm that there were no previous employee disciplinary matters involving similar circumstances to the Applicant’s in which the disciplinary outcome had been different. Having made those inquiries, Ms Hobl was satisfied that the termination of the Applicant’s employment would not be inconsistent with Qantas' treatment of other employees. Ms Hobl also said that in any case, she was satisfied that the seriousness of the Applicant’s conduct warranted the termination of his employment.

[208] On 26 February 2019, Ms Hobl met with the Applicant and his support person Mr Murray. The meeting was also attended by an officer of the ALAEA. Ms Saddi was unable to attend the meeting as a company representative, so Mr Grimshaw instead attended the meeting in that capacity. During the meeting, Ms Hobl provided the Applicant with a letter terminating his employment and confirming he would receive a payment in lieu of notice.

[209] Ms Hobl said that it is her understanding as part of these proceedings, that the Applicant is seeking reinstatement. Ms Hobl does not consider that reinstatement would be appropriate. Ms Hobl states that she made the decision to terminate the Applicant’s employment after considering all relevant circumstances, including the seriousness of his misconduct and failure to acknowledge and appreciate that seriousness during the investigation and disciplinary process. Ms Hobl stated that if the Applicant was to return to the workplace, she would have strong doubts about his ability and/or willingness to comply with Qantas policies, particularly with regard to his conduct towards others in the workplace.

[210] According to Ms Hobl, the Applicant’s responses during the disciplinary process indicated that he did not consider that storing explicit material on a company device, and accessing that material in the workplace in front of other people, was inappropriate or should be the subject of disciplinary proceedings. In those circumstances, Ms Hobl would be very concerned with returning the Applicant to a role that involves significant periods of unsupervised work and unsupervised interactions with other employees and contractors. In this regard, Ms Hobl said that the Applicant’s conduct, as substantiated during Qantas' investigation, was completely unacceptable, had an adverse impact on the women who witnessed it, and cannot be tolerated in any workplace.

[211] In response to the Applicant’s evidence, Ms Hobl said that she is concerned that he continued to suggest that he was not aware of Qantas policies governing his use of the iPad. Ms Hobl also said that whether or not the lingerie website is pornographic, the fact that the Applicant does not appear to accept that he should not have accessed such a website on Company device, while he was at work, reinforces her view that the Applicant lacks the judgment and understanding as to appropriate workplace behaviour. In relation to the Applicant’s evidence that he may have opened an email or checked a “private image” while “alone” at work, Ms Hobl said that the Applicant appears to continue to consider that having explicit photos or images sent to or stored on his company-issued iPad and that opening them while in the workplace, is acceptable workplace behaviour.

[212] Under cross-examination, Ms Hobl agreed that she has previously managed cabin crew and that the cohort of employees she is managing in her present role are blue collar workers with a totally different educational background than cabin crew and that they work in a more male dominated environment. Ms Hobl agreed that she was alarmed by the use of the word “again” when Mr Grimshaw reported the complaint about the Applicant to her.

[213] In relation to the lingerie website subject of Allegation 1, Ms Hobl accepted that it is not appropriate to view at work. Ms Hobl agreed that the Applicant said in the investigation that he did not understand Qantas’ view about the website when he looked at it at work in 2017. Further Ms Hobl agreed that the Applicant viewed the website at work on one occasion and that she had no evidence that would suggest anyone else had seen it. Ms Hobl accepted that the website is not pornographic but maintained that it is offensive. Ms Hobl’s definition of the term “offensive” is that it contains material of a sexual nature that could cause offence. Ms Hobl also made a number of comments during cross-examination including that: she would not be happy if she saw the lingerie website; that she personally finds the site objectionable; and that it is not an environment that she would want her children in. 123 In response to a question about the basis upon which she considered the material on the lingerie website to be obscene, Ms Hobl said that there can be varying understandings and viewpoints that come down to personal biases and life experiences.

[214] Ms Hobl agreed that the Applicant raised a number of issues including that: he had learned from the experience; he thought that he could view pornographic websites on his home Wi-Fi outside of working hours; the basis for his understanding was material on the iPad and that he found the policies confusing. Ms Hobl also agreed that the Applicant accepted that his understanding of the policies was wrong and that he had taken his new understanding on board and could guarantee compliance and that the Applicant was not failing to acknowledge the Cyber Security Policy.

[215] Ms Hobl was cross-examined about the interaction between the IT Policy and the finding about the allegation regarding using the Company-issued iPad to access websites containing images and/or videos that were obscene, pornographic and/or offensive in nature and that the Applicant knew or ought to have known that the use of the iPad in this manner was inappropriate and in excess of reasonable personal use. Ms Hobl was referred to the IT Policy insofar as it provides that: “Users are permitted to use the IT environment for limited personal use which is lawful, not excessive, does not result in excessive cost and does not impact upon or interrupt the efficient, lawful and ethical operation of Qantas’ business.” Ms Hobl agreed that this was the aspect of the IT Policy which Qantas alleged that the Applicant had breached in relation to this Allegation 5.

[216] The proposition was put to Ms Hobl that the Applicant’s use of the iPad to view the websites in his own home, on his own time and using his private Wi-Fi was lawful. Ms Hobl disagreed with this proposition and in response to a question as to what she considers “lawful” said that the term means content that does not cause offence or damage. Ms Hobl confirmed that this is the standard that she applied in considering the allegations against the Applicant. 124

[217] After first asserting that she did not know whether the conduct that was the subject of this allegation cost Qantas anything, Ms Hobl conceded that there was no cost to Qantas and the viewing of the material by the Applicant had no impact on the Company’s business or operations. Ms Hobl also maintained that the reference to “excessive” referred to the use of 4G data and then conceded that the Applicant had not used 4G data to undertake the viewing dealt with in Allegation 5 and that this could not sensibly be described as excessive. 125 Ms Hobl agreed that none of the terms of clause 2.9 of the IT Policy were in the part of the allegations letter that dealt with the viewing of the videos. Ms Hobl also agreed that the specific breach of the IT Policy relied on by Qantas in relation to this allegation was clause 2.8 in relation to data usage in that the allegation was “tied up with data usage” and not clause 2.9, notwithstanding that there is a reference to clause 2.9 of the IT Policy in the findings and outcomes letter.126

[218] In relation to the images stored on the iPad, Ms Hobl contended that images identified as IMG_003.JPG and IMG_0171.JPG were “explicit”. In those images the female subject is wearing underwear. Ms Hobl was asked whether that was the standard she used in assessing the Applicant’s conduct and said in response: “Would I be happy if that was my daughter in the photo? No.” When asked again whether this was the standard by which she assessed the Applicant’s conduct, Ms Hobl said that it was her personal view and reiterated that she would not be happy if that was a photo of herself or her daughter. 127

[219] Ms Hobl accepted that there are degrees of breaches and that it would be more serious if explicit material was put up on a wall rather than the Applicant having such images on his Qantas iPad and agreed that the photographs on the Applicant’s iPad did not match the description of the material said to have been seen by Ms Remfrey or Ms Downes. Ms Hobl accepted that she could not say that anyone saw the photographs. Ms Hobl also agreed that the Applicant:

•  Thought he was permitted to have the photos on his iPad;

•  Accepted it was an error of judgment not to delete them;

•  Stated that he had learned from what had occurred;

•  Stated that he would immediately delete any such images that found their way onto the iPad in future;

•  Did not challenge the Standards of Conduct and acknowledged those standards; and

•  Accepted that he had breached the Standards of Conduct Policy and the IT Policy.

[220] In relation to the allegations concerning Ms Remfrey, Ms Hobl agreed that they were in three parts: first that the Applicant looked at a video selection page for a pornographic website while he was at work; second that Ms Remfrey saw this happen twice; and third that the Applicant knew or should have known that Ms Remfrey would see it. Ms Hobl said that it had not been found that the Applicant knew that Ms Remfrey saw the material on the iPad screen but rather that he ought to have known that such material would be seen because of the day to day activities that he was engaged in which included refuellers walking in to the Engineers hut. 128

[221] Later Ms Hobl agreed that the Applicant knowing someone could walk into the engineering hut is different to him definitely knowing that this would occur and that the finding was that: “…he knew that woman would be coming back into the hut.” 129 Ms Hobl subsequently disagreed with the proposition that she concluded that the Applicant deliberately engineered a situation whereby Ms Remfrey viewed an inappropriate website but accepted that the allegation in relation to Ms Downes was that the Applicant had sexually harassed her.130 Ms Hobl went on to accept that the Applicant deliberately setting up such a situation was more serious than if the content of his iPad had been viewed accidentally.131

[222] Ms Hobl agreed that the Applicant has never attacked Ms Remfrey or criticised her in any way and has always accepted that she was upset notwithstanding that he denied looking at pornographic websites at work. Ms Hobl could not recall if the Applicant offered to apologise to Ms Remfrey. 132 Ms Hobl also agreed that there was no objective evidence that the Applicant was watching pornography at work and that Ms Remfrey’s recollection of what she saw was subjective. Further, Ms Hobl agreed that she could not say with certainty that the Applicant knew that Ms Remfrey was the refueller on either of the days on which the alleged conduct occurred or that he would know the precise time that she would enter the hut.133 Ms Hobl conceded that there was not enough material for her to conclude that the Applicant had deliberately shown images on the screen of his iPad to Ms Remfrey.134

[223] In relation to the allegations concerning Ms Downes, Ms Hobl agreed that the fact that Ms Downes was offended and that the Applicant apologised to her during one of the alleged incidents did not mean the image she saw was objectively offensive. Ms Hobl also agreed that the specific description of what Ms Downes claimed to have seen did not match any of the images stored on the Applicant’s iPad. 135 Ms Hobl further agreed that the Applicant expressed remorse for having offended Ms Downes. Ms Hobl was also cross-examined about the Applicant’s responses to the allegations in relation to Ms Downes and agreed that the Applicant had stated his belief that he had not breached the IT Policy in the Company IT environment and that he drew a distinction between the Company IT environment and his home environment. Ms Hobl agreed that the Applicant accepted that his understanding about the Mobility Policy and the IT Policy in this regard, was wrong.

[224] Ms Hobl was asked in cross-examination about her conclusion that the Applicant’s apologies were conditional and not genuine. Ms Hobl said she based this view on the Applicant’s comments that the images on his iPad were “a little bit naughty” and that she took this comment into account in relation to his level of understanding of what is right and wrong and what is appropriate to be viewing in the workplace. Ms Hobl did not disagree with the proposition that the Applicant did not concede that Ms Remfrey or Ms Downes saw the images on his iPad or with the proposition that the Applicant had accepted that the images were not appropriate to be shown to people in the workplace. 136

[225] In response to the proposition that the main allegation was that the Applicant sexually harassed two refuellers, Ms Hobl said that looking at the evidence holistically including what was on the Applicant’s iPad, “then that probability comes to hand”. 137 Ms Hobl also said that she was concerned that there was a risk that the Applicant would do the same thing again.138

Other matters

[226] Mr Purvinas gave evidence about a number of other misconduct cases involving Qantas employees allegedly engaging in sexual harassment in support of the proposition that the Applicant was treated differently than those employees. Mr Purvinas also gave evidence about redundancies made by Qantas in its LAME workforce and the difficulties those former employees are encountering finding other employment. Mr Purvinas pointed to the likelihood of further redundancies as a result of Qantas retiring its 747 aircraft by 2020. Further, Mr Purvinas said that the Applicant licenses are aircraft specific and those aircraft are operated by a limited number of airlines in Australia. Positions are highly contested by numerous applicants.

[227] According to Mr Purvinas the Applicant is unlikely to find other employment because of his age and the reason for his dismissal. Further, if the Applicant does not work on an aircraft within two years he will face restrictions on his licence which will require him to be supervised for a six month period if he gains alternative employment. This will further restrict the Applicant’s ability to gain such alternative employment. The Applicant said that he is scared about what the future holds and that his search for employment has not been successful. The Applicant also said that he is 59 years old and works in a specialised area. He has no experience in job hunting and has worked for Qantas since he was 18 years old.

CONSIDERATION

The approach to considering Pornographic or offensive material in the workplace

[228] As Counsel for the Respondent pointed out in its submissions, the following comments made by a Full Bench of the Commission in Queensland Rail v Wake 139, are as true today as they were in 2006:

“It cannot be doubted that electronic traffic in sexually-related, pornographic and violent images is of legitimate and growing concern to employers. Such images, apart from being offensive to many, can undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination…it is reasonable and, arguably necessary, that employers take what steps they can to eradicate traffic in such images.” 140

[229] It is also the case, as Counsel for the Respondent submitted, that while the task is now vastly more difficult due to the plethora of mobile devices and information sharing, the passage of time has seen a shift in what the employer can reasonably expect from employees in relation to the use of devices and platforms and that employees should be expected to understand what is, and what is not, appropriate.

[230] However, as Counsel for the Applicant put it, the present case is not a “morality play”. Rather, it turns on how workplace standards in relation to on-line pornography are set, explained and maintained. It is also submitted that the present case concerns a “grey area” in terms of whether material is suitable for the workplace. Further it is submitted that the present case requires a careful analysis of the facts and determination of how the Applicant’s conduct should be characterised and whether, having regard to the seriousness of the conduct, the Respondent has come up to the required standard of proof in relation to all allegations of fact. 141

[231] I accept those observations. The present case also highlights issues which can arise where employees are using devices for personal purposes which can also connect with their employer’s IT environment. Such devices may be the personal property of employees or issued by the employer on the basis that reasonable personal use is permitted. The practice of employees connecting with their employer’s IT environment on a personal device has developed as modern workplaces demand increasing responsiveness and flexibility on the part of employees. The capacity for interaction between personal devices owned by, or issued to employees, and the employer’s IT environment, doubtless assists both parties. Such interaction means that work can be undertaken remotely by employees at times when the employer requires it to be done or at times that suit the personal needs of employees. However, the interaction between personal devices and an employer’s IT environment raises complex issues concerning the use of such devices to store, access and disseminate material which is work related and material which is not work related.

[232] Notwithstanding the complexity of those issues, it remains the case, as the Full Bench in Wake observed, that:

“…in general it is in the public interest that, subject always to considerations of fairness, the Commission’s decisions should support employers who are striving to stop inappropriate email traffic.” 142

[233] I respectfully agree with those observations and I would add that the Commission’s decisions should also support employers who are striving to establish standards in workplaces where all are treated with respect and are not exposed, in any form, or by any means, to material which is inappropriate or offensive in a workplace or can impact inappropriately on the wellbeing of persons at work. I also share the view of Deputy President Sams who observed in Batterham and Ors v Dairy Farmers Limited 143 (a case decided in 2011) that:

“Obviously, general community standards have changed over time and personal views as to what constitutes ‘hardcore’ and ‘softcore’ pornography will vary widely. On one view, this is hardly the point. What people do in the privacy of their own home is entirely a matter for them, save for unlawful conduct, such as storing or distributing child pornography or soliciting young persons for sex. However, on any objective analysis, the distinctions drawn by the respondent in this case are entirely sensible, fair and rational. Displaying email images in the workplace of male or female genitalia and obvious sexual acts, would obviously be offensive to many people in the community, maybe the large majority. This is really the point.” 144

[234] In the 21^st century the proposition that there is no room in the workplace for pornographic, obscene or sexually related images of any kind or in any form, goes without saying. Further, I do not accept the proposition that the viewing or dissemination of such material in any workplace can be explained or excused on the basis that the workforce in a particular workplace is “male-dominated” or “blue collar”. Nor do I accept that disseminating or viewing such material in the workplace is acceptable, whether this occurs on a privately owned device or a device issued by an employer.

[235] It is also the case, as the Full Bench in Wake observed, that the Commission’s decisions in relation to whether the dissemination of such material is a valid reason for dismissal, are subject to fairness. Considerations relevant to fairness identified by the Full Bench in Wake were that the employer in that case had a firm and well publicised policy prohibiting the use of its electronic communication system to store or transmit sexually related, pornographic or violent material, that policy was supported by appropriate training and education and the employer had taken steps to warn employees that breach of policy could result in termination of their employment. Further, whether a particular breach by an employee is intentional, or the level of seriousness of the breach, may also be relevant to general considerations of fairness. Other relevant matters may be the personal circumstances of the employee – for example length of service, age, financial impact of a disciplinary outcome or the effect of a personal event or health issue on the employee at the relevant time.

[236] The matters that were considered in Wake are not unique to cases involving pornographic, obscene or sexually related material and are consistent with the well-established principle that notwithstanding that a dismissal is for a valid reason it can be found to be unfair on the basis of mitigating or extenuating circumstances. There is no general rule to the effect that an employee who is found to have disseminated pornographic, obscene or sexually related material in the workplace has engaged in serious misconduct that will invariably be found to constitute a valid reason for dismissal. However, where the Commission finds that an employee has engaged in such conduct, and the employer has firm, clear and well publicised policies warning that it may be grounds for dismissal, it will be difficult to find that the dismissal is unfair because of the personal circumstances of the employee. As a Full Bench of the Commission observed in DP World Sydney Limited v Lambley:

“…In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.” 145 

[237] I turn now to consider each of the criteria in s. 387 of the Act in relation to the present case.

Was there a valid reason for the Applicant’s dismissal – s. 387(a)?

The approach to considering whether there was a valid reason for dismissal

[238] As I have previously noted, in determining whether there is a valid reason for dismissal it is necessary for the Commission to consider whether the conduct occurred and whether dismissal was a justifiable response to the conduct. While the Commission does not stand in the shoes of the employer, any such consideration must be objective and not based on personal views.

[239] In the present case, I have approached the task of determining whether there was a valid reason for the Applicant’s dismissal by first considering the context in which the conduct occurred by reference to the policies and procedures in the workplace. I have taken this approach because Qantas relied significantly on breach of the SOC and IT Policies as a basis for its assertion that there was a valid reason for the Applicant’s dismissal. The Applicant maintains that he misunderstood the Policies and that he had a reasonable basis for his misunderstanding. Accordingly, the context in which those Policies operates is relevant to the consideration in s. 387(a).

[240] Second, I have considered the actual conduct engaged in by the Applicant and made findings, on the balance of probabilities, about what occurred. Third I have considered whether the conduct meets the description of the conduct set out in the allegations and the findings letters and breaches relevant Policies having regard to the context in which they operated. Fourth, I have considered whether dismissal of the Applicant was a justifiable response to the conduct, in all of the circumstances. The relevant Policies contain terms such as “pornographic”, “obscene” or “offensive”. The Policies do not define these terms. There was an absence of coherent evidence from witnesses for Qantas about the meaning they assigned to those terms when they made decisions concerning the Applicant’s employment. It is also the case that Mr Grimshaw and Ms Hobl made a number of concessions about the various allegations and whether they should have been substantiated.

[241] While confusion about policies and terms contained in them is relevant to whether there is a valid reason for dismissal it is not determinative. Mr Grimshaw and Ms Hobl were subjected to very skilful and forensic cross-examination by Counsel for the Applicant, about which no criticism can be made, given what was at stake in this hearing. Mr Grimshaw made some significant concessions while Ms Hobl maintained her position even when it was untenable. While concessions about the characterisation of the Applicant’s conduct (or unreasonable refusal to make concessions) are also relevant, to whether there was a valid reason for dismissal, they are not determinative. The question of whether there was a valid reason for dismissal must be determined on an objective basis. When considering the material that is the subject of the allegations in the present case, I have adopted standard definitions as follows:

“Pornographic” – Explicit depiction, in pictures, writing or other material, of sexual subjects or activity in a manner intended to arouse. It does not include material intended for other educational, artistic or aesthetic purposes.

“Obscene” – (of the portrayal or description of sexual matters) offensive or disgusting by accepted standards or morality and decency.

“Offensive” causing someone to feel resentful, upset or annoyed.

“inappropriate” not suitable or proper in the circumstances.

Context

[242] Qantas’ SOC Policy underpins its other policies, and prohibits Qantas employees – among other things – from:

•  engaging in threatening or intimidating behaviour;

•  accessing or storing material of an obscene or pornographic nature, or using Qantas equipment or its IT environment (eg. internet, email, phone, fax, iPad, electronic organiser) for accessing or storing offensive material, or engaging in unauthorised use of Qantas’ time, resources or facilities or its IT environment for private purposes;

•  engaging in any activity which could cause Qantas public embarrassment or other damage or which is likely to bring Qantas into disrepute; or

•  failing to comply with any applicable policy, procedure or rule.

[243] The version of the SOC Policy relied on by Mr Grimshaw and Ms Hobl in their decisions in relation to the Applicant’s employment, was tendered by Ms Hobl. It is dated 12 February 2018. No earlier version of the SOC Policy was tendered. The 12 February 2018 version of the SOC Policy includes reference in clause 15.6 to “equipment or the IT environment” and a reference to an iPad being encompassed in the IT environment. However, the definition of IT Environment in the definitions section of the SOC Policy does not include reference to an iPad and refers only to “device component that is used by the Qantas Group” in connection with a range of its activities. The definition of IT Environment in the SOC Policy is the same definition as found in the IT Policy and later the Cyber Security Policy. Unlike the IT Policy and the Cyber Security Policy, the SOC Policy does not include a definition of IT Device.

[244] Counsel for the Applicant made an important point that there is a distinction in the relevant Polices between the Qantas IT Environment and the devices that connect to it. This distinction is in my view significant, because Qantas essentially dismissed the Applicant for conduct which breached its SOC Policy and IT Policy despite his assertions that he was confused as to the interaction between these Policies and the Terms and Conditions which he was told applied when he was issued with the iPad. It is also not clear when the reference to an iPad was inserted into clause 15.6 of the SOC Policy and whether it was included in that Policy when the Applicant did the SOC refresher training on 6 July 2016, after he was provided with the iPad and before 26 June 2017 when he installed Microsoft InTune and the Comp Portal app as part of migrating his iPad to the new MDM system. Furthermore, the training the Applicant was given when he

[245] The iPad issued to the Applicant was issued to him on the basis that he could use it at work in the Qantas IT Environment or use it personally outside that environment. I accept that an employee could breach the SOC Policy by using an unreasonable or excessive amount of 4G data paid for by Qantas while using the iPad for personal reasons. However, there is room for doubt as to whether any lawful personal use of a Qantas issued iPad by virtue of the iPad being connected to an employee’s home Wi-Fi service (including viewing pornographic material), could breach the SOC Policy.

[246] Notwithstanding the problematic issue of whether the SOC Policy included the iPad in the definition of IT Environment, the training module completed by the Applicant was comprehensive. The Training Module included a slide defining harassment which stated inter alia that it is unwelcome and unwanted conduct that causes offence in circumstances where a reasonable person would have anticipated the possibility of offence being caused.

[247] At the time the Applicant was provided with a Qantas issued iPad, Qantas also had an IT Policy which provided that employees must not use the IT Environment for unacceptable reasons including transmitting, accessing, storing, or copying pornography or other material which may generally be regarded as objectionable, discriminatory or harassment. As previously noted, the IT Policy defined “IT Environment” to include any “device” used by Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means. The IT Policy had a separate definition for “IT Device” which included a tablet or portable storage device. The IT Policy was later replaced with the Cyber Security Policy which was relevantly in the same terms.

[248] In my view the Qantas IT Policy and later the Cyber Security Policy are also unclear in relation to their application to the personal use of a Qantas issued device such as an iPad, outside the Qantas IT environment. While the definition of IT Environment includes reference to devices, such reference is to devices used by the Qantas Group. If that definition was intended to encompass Qantas issued devices such as iPads, there would be no need for a separate definition of IT devices in the Policy.

[249] It is not in dispute that the Applicant signed a declaration when he received the iPad to the effect that he had read and understood the IT Policy and the “Qantas Mobile Computing and Remote Access Policy”. There were two documents in evidence that could be the document described in the declaration as a “Qantas Mobile Computing and Remote Access Policy”. These documents were tendered by Ms Leonardi and are entitled “Staff Privately Owned Mobile Device Terms and Conditions” 146 and “Qantas Mobility Service Terms and Conditions”. The latter document replaced the former. If a document existed at any time known as the “Qantas Mobile Computing and Remote Access Policy” then it was not in evidence in these proceedings.

[250] I find that in May 2016 when the Applicant was issued with the iPad, the relevant terms and conditions were found in the “Staff Privately Owned Mobile Device Terms and Conditions” document. That document is the only one in evidence that could be described as the “Qantas Mobile Computing and Remote Access Policy” as at May 2016. It is more probable than not that when the Applicant was requested to declare that he had had read and understood such a Policy on 26 May 2016 then it is this document that is the relevant “Policy”.

[251] The Staff Privately Owned Mobile Device Terms and Conditions state that a “Device” is any mobile equipment owned or leased by a Qantas staff member and used to access the Qantas ICT environment. The Definition specifically includes iPads. Patently the iPad issued to the Applicant was not a privately owned device. The Privately Owned Mobile Device Terms and Conditions defines the ICT environment (which I infer is essentially the same as the IT environment) to include: “any infrastructure, equipment, system or database used by a Qantas Group entity in connection with the access, storage, transmission or processing of any information via electronic means.”

[252] While technically that definition could include an iPad that was issued by Qantas, it is far from clear that this is the case. It is equally arguable that the Terms and Conditions establish that the mobile items connecting to the ICT environment are “Devices” which are distinct from the ICT environment which encompasses “equipment” other than “Devices”. This construction is supported by the fact that the Terms and Conditions at the time the iPad was issued, only applied to devices personally owned or leased by employees and that the term was defined in this way in the document. Further the Staff Privately Owned Mobile Device Terms and Conditions applied in relation to the connection of mobile devices to the Qantas ICT environment and not to the private use of the device by employees, consistent with the fact that the devices to which it applied were personally owned by employees. Ms Leonardi accepted under cross-examination, that there is a distinction between the device and the ICT environment.

[253] It is also apparent from the earlier version of the Mobile Device Terms and Conditions that any monitoring and inspection of the device would relate only to security configurations and that Qantas stated that it will not prevent employees from installing software or applications to their devices but may prevent devices with certain software or applications from connecting to the ICT environment for reasons including security. The later version entitled Qantas Mobility Service Terms and Conditions applies to privately owned and Qantas issued devices and states that Qantas will not monitor employees’ phone call history but may restrict access to certain sites while a device is connected to the Qantas network for operational or policy reasons (my emphasis).

[254] The earlier Mobile Device Terms and Conditions contain a warning that personal data should be kept separate from Qantas data stored on the device. While the Mobile Device Terms and Conditions state that use of the Qantas ICT environment is subject to compliance with the IT Policy and contains a link to that Policy, as stated earlier, it is far from clear that the iPad itself is part of the Qantas ICT environment as defined in the Mobility Terms and Conditions or the IT environment as defined in the IT Policy. It is also the case that the Guide for enrolling the iPad on the then Citrix MDM system which applied when the Applicant was issued with his iPad contains no reference to the IT Policy or to the Mobility Terms and Conditions in the form they were in at the time.

[255] It is true that the guide for installing the Citrix MDM system does not include a privacy statement of the kind later found in the Microsoft InTune MDM installation Guide and in the Comp Portal app. However, the original Terms and Conditions stated that Qantas would monitor the device only in relation to security configuration, would not prevent the installation of software or applications and that personal data should be separated on the device. All of these statements indicate that personal use outside the Qantas IT environment would not be monitored.

[256] By 26 June 2017 when the Applicant installed Microsoft In Tune as part of migrating his iPad to the new MDM system, later Qantas Mobility Service Terms and Conditions was in effect”. Unlike the earlier version the Qantas Mobility Service Terms and Conditions defined a “Device” as a “Qantas Approved Mobile Device” which included a Qantas issued or a privately owned device. The Qantas Mobility Service Terms and Conditions defined the Qantas ICT environment in the same way as it was defined in the earlier version of the Terms and Conditions including with the same lack of clarity about whether the ICT environment included the devices connected to it. While there was no evidence as to the reason for the new Terms and Conditions including personal and Qantas issued devices, it is apparent that the substantive difference between the documents is the expansion of the definition of “Device” to include both privately owned/leased devices and Qantas issued devices.

[257] Notwithstanding the definition of “Device” indicating that both personal and Qantas issued devices were caught by the Terms and Conditions, there is no other distinction in those Terms and Conditions in relation to personal and Qantas issued devices. Provisions relating to monitoring apply to both types of devices and state that monitoring is limited to security configurations and that Qantas will not prevent the installation of applications or software but may block the device from accessing its ICT environment if it contains data, software or applications that may compromise security or are contrary to policy. The same statement to the effect that Qantas will not actively monitor phone call history and may restrict access to certain sites while the device is connected to its network also appears. The same statement in relation to separating personal data also appears, which given the application of the Terms and Conditions to Qantas issued and private devices, means that the Terms and Conditions indicate acceptance that Qantas issued devices may contain personal data.

[258] The new Qantas Mobility Service Terms and Conditions also include a link to the IT Policy and state that employees acknowledge and agree that their use of the Qantas ICT environment is subject to the IT Policy. For the reason set out above, the IT Policy does not make clear that it applies to private use of an IT device such as an iPad outside the Qantas IT environment.

[259] The Enrolment Guide for the InTune MDM system that the Applicant used to enrol his iPad on 26 June 2017 included a screen headed: “We care about your privacy” which as previously noted informed employees that Qantas could never see their web history, email and text messages and camera roll. It was also possible to set the iPad to either a “personal” or a “corporate setting”. The Applicant asserted that his iPad was set to “personal” and the records of meetings during the disciplinary process also indicate that the iPad used by the Applicant’s support person was set to “personal”. There is no evidence that the Applicant set his own iPad to “personal” or changed it to that setting after it was issued to him and I accept that the iPads provided to engineers were set in this way by Qantas when they were issued.

[260] The privacy statements in the enrolment guide and in the Comp Portal app on the iPad, while slightly different, are not qualified and are expressed in absolute terms. The statement in the enrolment guide is: “IT Admin cannot see this on your device” – before listing the items that cannot be seen while the statement on the iPad lists the same things and states: “What Qantas can never see”. It is also the case that there is no reference either in the Mobility Terms and Conditions or the Step by Step enrolment guide, to the possibility of a Qantas device issued to an employee on a personal basis, being subject to seizure and forensic analysis.

[261] Ms Leonardi’s evidence, suggesting that the privacy statement in the enrolment guide is limited to what Qantas is able to access remotely through the MDM system, as distinct from what Qantas could see if it seized and forensically analysed the device, was in my view, an exercise in splitting hairs. Unless this was specifically pointed out to a person enrolling a device it would not be reasonably apparent.

[262] While I doubt if Qantas would have the right to seize a privately owned device, I accept that it can take this action in relation to a Qantas issued device. However, seizure and forensic analysis of the Applicant’s iPad to obtain his personal browsing history and to examine photographs and other private data stored on the iPad is inconsistent with what the Applicant was told about the iPad when he enrolled it into the InTune MDM system and in particular the privacy statement in the enrolment guide and in the Comp Portal on the iPad. Finally, as Ms Leonardi accepted, the Mobility Terms and Conditions say nothing about what employees can and cannot view on the iPad in their private time, using their own Wi-Fi and in fact state that Qantas cannot monitor that viewing. I also note that Mr Grimshaw conceded under cross-examination the Applicant’s misunderstanding about these matters was “fair enough” and in my view that concession was correctly made.

[263] The lack of clarity about the private use of Qantas issued devices in the SOC Policy, the IT Policy and the Mobility Terms and Conditions, is compounded by the unsatisfactory training provided to the Applicant when he was issued with the iPad. Firstly, Qantas could not establish the actual content of the training. The version of the training related to the issuing of the iPad attached to Mr Pinto’s statement was not the version actually delivered to the Applicant. The person who provided the training to the Applicant did not give evidence and instead Mr Pinto’s evidence addressed this matter. Taken at its highest, Mr Pinto’s evidence establishes that there was a training program developed and made into a PowerPoint presentation to be delivered to engineering employees who were provided with an iPad. The exact content of the training is as it was actually delivered to the Applicant is not clear.

[264] Even if Mr Pinto’s evidence is accepted, and the matters in the presentation appended to his witness statement were imparted to the Applicant, issues with the training were evident. The single slide dealing with the IT Policy referred to “usage” being monitored and not to what was being accessed on the iPad. Further the slide on the IT Policy referred to use of the “IT Environment” rather than the iPad. If Qantas wanted to emphasise the IT Policy and that it applied to use of the iPad at all times including at work when it was in the Qantas IT environment or using Qantas provided 4G data, and at the employees’ homes where they may be using their home Wi-Fi, then it would have been relatively simple to have included a screen on the iPad which required employees to click on and read the IT Policy before they enrolled their iPad. The Applicant maintained that the IT Policy was not handed out at the training session. The Applicant’s evidence on this point was not contested and I accept it.

[265] Even if the training had included the provision of a copy of the IT Policy or a link requiring it to be read before the declaration was signed, this would not have assisted given the lack of clarity with respect to the operation of the IT Policy where an iPad was being used personally and outside the Qantas IT environment.

[266] It is also the case that sequence of slides in the training program provided for employees to sign the declaration at the point the fifth slide was being viewed, before the IT Policy slide which was the tenth slide in the presentation had been viewed. Notwithstanding the Applicant’s evidence that he signed the declaration later in the program, the positioning of the declaration early in the program evidences the lack of emphasis on the connection between the private use of the iPad and the IT Policy that Qantas now seeks to rely on.

[267] In relation to the training when the iPad was provided, there is force to the submission of Counsel for the Applicant to the effect that it would have taken one slide to inform the Applicant and employees to whom the iPads were issued that:

•  The iPads remained Qantas devices;

•  They should not use the iPads in breach of the SOC or IT Policies;

•  They should not use the iPads to access material of the kind described in the SOC Policy in relation to harassment – eg. unlawful, sexual, pornographic, racial, homophobic, transphobic, biphobic or other offensive material;

•  That Qantas retained the right to seize a Qantas issued iPad at any time if it believed that a user had breached any of its policies; and

•  The privacy statement in the enrolment guide and in the Comp Portal guaranteed only that Qantas could not access the listed matters through the Comp Portal.

[268] It would be expected from an employer of the size and with the resources of Qantas, that if there were a number of versions of a training program the versions and the date they were created would be identified. It would also be expected that there was a training record to indicate when the training was undertaken by particular employees so that the timing of the training could be matched with the version of the training materials that was actually delivered.

[269] In all of the circumstances, I make the following findings in relation to the context in which the conduct subject of the allegations occurred:

•  It was reasonable for the Applicant to believe that the SOC Policy and the IT Policy did not apply to his personal and lawful use of the iPad when he was at home using his personal Wi-Fi;

•  The Applicant genuinely did not understand the interaction between SOC Policy and the IT Policy on the one hand and the Mobility Terms and Conditions and the privacy statement in the enrolment guide and the Comp Portal App on the other;

•  It was reasonable for the Applicant to believe that Qantas could never view his browsing history or his camera roll or other personal information stored on the iPad.

[270] In making these findings I note that the Citrix MDM enrolment guide at the time the iPad was provided to the Applicant on 26 May 2016 or the app which was installed on the iPad at that time, did not contain a specific privacy statement of the kind later provided in the InTune enrolment guide and the Comp Portal app. It is improbable that the Applicant was even aware of the privacy statement until 26 June 2017, when he installed the Comp Portal app on his iPad. I also note that notwithstanding this, the browsing history on the iPad indicates that the Applicant was watching pornography on the iPad from 26 September 2016 – a considerable time before he would have been made aware of the privacy statement on which he now relies.

[271] With some reservations, I have given the Applicant the benefit of the doubt in relation to this matter on the basis that he was not cross-examined about it and because of the lack of clarity in the SOC and IT Policies in relation to personal use and on the basis that the original Mobility Terms and Conditions suggest that private material can be stored on the iPad.

[272] The allegations which were substantiated against the Applicant were framed on the basis that he knew or should reasonably have known that all of the alleged conduct breached the SOC Policy and/or the IT Policy. I do not accept that this conclusion was reasonably open to Qantas. For the reasons set out above, I do not accept that it was reasonably open to Qantas to substantiate allegations involving the use of the iPad by the Applicant to browse and view pornographic material on his own Wi-Fi when he was not at work and to store pornographic or offensive material on the iPad. I have also considered how the Applicant’s reasonably held views about the private use of the iPad impacted on the conduct that is said to provide a valid reason for his dismissal.

[273] In relation to the allegations about viewing pornography, sexually related or otherwise inappropriate material in the workplace, I respectfully adopt the approach of Deputy President Sams in Batterham and Ors v Dairy Farmers Limited 147 where his Honour stated:

“For any employee to argue that they require training not to send or access email pornography at the workplace is disingenuous nonsense. It is akin to arguing that having no knowledge of drink driving laws is a defence for doing so. It is patently obvious that one should not engage in such behaviour as distributing pornography at the workplace. It is not only inappropriate and a theft of the employer’s time, but raises the real risk of employer liability for ensuring its employees occupational health and safety, due to the potential harassment by other employees. The fact that no one seemingly complained is not the point and was probably more a case of fortuitous good luck. It would only have been a matter of time before someone would have complained of being offended or harassed. In any event, in my opinion, it is not necessary to prove anyone was offended or harassed by the inappropriate emails; it is only sufficient that the respondent considered, on a reasonable basis, that the material was inappropriate. There can be no room to doubt that it was.” 148

[274] This is also a case where regardless of lack of clarity in relation to private use of the iPad on the Applicant’s own Wi-Fi when the Applicant was at home, the Applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace. The Applicant also knew that to do so would, at very least, breach the Qantas SOC Policy and could constitute harassment of anyone who saw such material, regardless of whether he intended to harass. In this respect, there was no lack of clarity with regard to the SOC Policy and that harassment included display of sexual, offensive and pornographic material. I do not accept that any definition of what constitutes such material is required beyond the ordinary meanings given to such terms.

Whether the Applicant engaged in the alleged conduct

[275] It is convenient to first deal with the conduct encapsulated in Allegations 1, 4 and 5. Allegation 1 was that the Applicant used his Qantas-issued iPad to access a lingerie website during work hours on 3 August 2017. I am satisfied and find that the Applicant did engage in such conduct. I am also satisfied that the website contained material that could be described as offensive. The images from the website tendered in these proceedings depict woman in lingerie that is clearly sexually related. The images are captioned: “even sexier”. The lingerie exposes rather than covers the bodies of the women in the images and in some cases, the women are wearing stylised versions of handcuffs and blindfolds. The website also sells sex toys.

[276] I do not accept that the images are pornographic. There is no explicit sexual activity displayed. I am also of the view that it is a stretch to describe the images as obscene. However, I am satisfied and find that it would be a reasonable response for a person being exposed to such images in the workplace – for example by observing a colleague viewing them – to be offended. Further, on any reasonable and objective view, the images were inappropriate to be viewed in the workplace because of the likelihood that they would cause offence. The description by the Applicant of the Fantasy Lingerie images in the meeting of 17 December, as retail images or what you would see on television or at the beach, is not to the point. The simple answer is that going to a beach, watching television or looking at retail advertising, are activities about which choice can be exercised. Exposure to offensive material in the workplace is not a matter about which choice can be exercised by persons who inadvertently see such material. One of the purposes of the Standards of Conduct Policy and the IT Policy is to prevent employees from being exposed to images in the workplace, which are likely to cause offence.

[277] The fact that the email with the link to the lingerie website was stored on the Applicant’s Qantas issued iPad, does not mean it was a breach of Qantas’ IT Policy simply on the basis of the storage. This is because the IT Policy (and later the Cyber Security Policy) prohibit use of the Qantas IT Environment for unacceptable reasons. As previously noted, the IT Environment is not defined to specifically include devices other than a “device component used by Qantas”. For reasons of the inconsistencies in the SOC Policy between the definition of the IT Environment in the definitions clause and the reference to the use of an iPad in clause 15.6, and the lack of clarity about whether that reference was in the SOC Policy at the relevant time, I am also of the view that the storage of the email containing the link did not breach the SOC Policy.

[278] However, the fact that the Applicant viewed the website while he was at work on 3 August 2017, was a breach of both the IT and the SOC Policies. The Applicant accepted that he viewed the website at work for the purposes of purchasing items for his partner. Regardless of whether the iPad was referred to in the SOC Policy and included in the definition of the “IT Environment” in that Policy or the IT Policy, it is more probable than not that the Applicant viewed the website at work using 4G data provided by Qantas (given that Qantas Wi-Fi would have blocked access to the site). Data provided by Qantas is part of the Qantas IT Environment and accordingly the Applicant breached the SOC Policy and the IT Policy in using his iPad at work for this purpose.

[279] I am also of the view that the Applicant viewing the lingerie website in the workplace by any means was a breach of the SOC Policy. Whether the purpose of the Applicant accessing the website on 3 August 2017 to purchase items or whether he was simply viewing the website, images from the website must have been displayed on the Applicant’s iPad. This created a real risk that the images could have been seen by someone else. Even if the Applicant opened and closed the images quickly, there was such a risk. For the purposes of the Standards of Conduct Policy, this conduct could have caused offence constituting harassment or brought Qantas into disrepute if it was viewed by another employee or by a contractor employee who may have reported the conduct to an entity other than Qantas. It is one thing to shop on-line or to view on-line shopping sites on a work device while at work and on a break. It is another thing entirely to view an erotic lingerie retail website or to shop for erotic lingerie, in such circumstances.

[280] While reasonable confusion on the part of the Applicant about private use of the iPad mitigates the storage of a link to the website on the iPad, it does not explain or mitigate the Applicant opening and viewing the website and the images on it, in the workplace. I am satisfied and find that the Applicant knew or should reasonably have known that to use his Qantas issued iPad to open and view the images of the lingerie website in the workplace was a breach of the SOC Policy and the IT Policy.

[281] Even if the Applicant was using a privately owned device and his own 4G data to open and view an exotic lingerie site at work, the Applicant would have breached the SOC Policy notwithstanding that the device was not enrolled in the InTune system. If the website had been seen by another employee, it could have constituted harassment by way of display of offensive material regardless of the device on which it was viewed.

[282] For these reasons I find that the Applicant viewed an erotic lingerie site containing material that could objectively be described as offensive, using his Qantas issued iPad and Qantas IT resources – namely 4G data provided by Qantas. Such conduct was a breach of the SOC and the IT Policies. The conduct is not explained or mitigated by any misunderstanding on the part of the Applicant about the manner in which he was permitted to use the iPad. Regardless of any misunderstanding, the Applicant knew or should reasonably have known that to view the lingerie website in the workplace was contrary to the SOC Policy and to do so on a Qantas issued iPad using Qantas resources, was contrary to the IT Policy. I am also of the view that it goes without saying that the Applicant should not have been viewing a website selling erotic lingerie while at work regardless of the manner in which he was viewing the website. My view would be the same if the applicant was looking at a paper catalogue for such a retailer.

[283] Finally, Allegation 1 as framed by Qantas, was that the Applicant used his iPad while rostered to work, to access a website containing images that were obscene, pornographic and/or offensive in nature. In relation to the finding made by Qantas about this allegation, I do not accept that it was open to Qantas to substantiate the allegation insofar as it found that the images on the lingerie website were obscene or pornographic. The images were offensive – no more and no less.

[284] In relation to Allegation 4, the Applicant had seven images stored on his iPad which included images of a partially clothed woman, an image of a woman’s exposed breasts and a close-up image of a woman’s genitalia. I accept that six of the seven images are offensive rather than obscene, with some being more offensive than others, depending on the state of undress of their subject. The woman in the images is posing in a provocative manner, regardless of the fact she is dressed in tracksuit pants in a number of the images. The images show the tracksuit pants (where they are worn) being worn in a way that exposes the woman’s body in a sexually suggestive way. The photograph showing the woman’s breasts is the most offensive of the six images which can reasonably be described in this way. The close-up image of the woman’s genitalia crosses the line between offensive and obscene and in my view can objectively be described as obscene. I do not accept that any of the images can objectively be described as pornographic on the basis that they do not depict sexual activity.

[285] I do not accept the Applicant’s evidence as to how the images came to be stored on the iPad or that he opened them accidentally. Firstly, the forensic analysis conducted by Mr Barry, which was not disputed, establishes that the images were created on the iPad on 31 May 2016. The analysis also shows that the images were opened on a number of occasions in August and September 2018. Secondly the Applicant tendered an exchange of messages with the woman who sent him the photos in which he states: “haven’t got a sexy mistress pic in the inbox for a while”. That message is inconsistent with the Applicant’s statement that he was sent a message attaching the images without a warning about their nature and that he opened them accidentally.

[286] It is improbable that the Applicant did not know the identity of “sexy mistress” or that he did not know the kind of images that would be attached to the message. It is also improbable that he opened those images accidentally, some two years after they were sent to him. Thirdly, the fact that the images were opened twice in 2018 after being stored in 2016 evidences that the Applicant knew that they were on the iPad and renders his evidence that they were stored there without his knowledge, and opened accidentally, improbable. The Applicant’s evidence under cross-examination that he only ever deliberately opened the images at home, is also improbable and I do not accept it.

[287] For the same reasons as my findings in relation to Allegation 1, the fact that the images were stored on the Applicant’s Qantas issued iPad, was not a breach of Qantas’ IT Policy or SOC Policy simply on the basis of the storage. However, the fact that the Applicant viewed images while he was at work on two occasions in September 2018, was a breach of the SOC Policy. There is insufficient evidence that the Applicant used the Qantas IT Environment to download the images at work (rather than simply opening images stored on the iPad) and I make no finding in this regard.

[288] I am satisfied and find that the Applicant viewed the images in the workplace and did so deliberately in full knowledge of the nature of the images before opening them. This was a further breach of the SOC Policy. While I accept that no other person saw the images, there was a risk that they would be seen by colleagues in the workplace. For the purposes of the SOC Policy, this conduct could have resulted in an employee who viewed the images being harassed or brought Qantas into disrepute if it was viewed by another employee or by a contractor employee who may have reported the conduct to an entity other than Qantas.

[289] No amount of confusion on the part of the Applicant about the interaction between the Mobility Terms and Conditions on the one hand and the SOC and IT Policies on the other hand, mitigates the Applicant opening and viewing the images in the workplace. I am satisfied and find that the Applicant opened and viewed the images in the workplace in full knowledge of the nature and content of the images. I am also satisfied and find that the Applicant knew or should reasonably have known that to use his Qantas issued iPad to open and view the images in the workplace was a breach of the SOC Policy. Further, I am of the view that it goes without saying that the Applicant should not have been looking at such images in the workplace.

[290] It was not open to Qantas to make an adverse finding that any of the images were pornographic or that all the images were obscene. One image was obscene and six were offensive. It was also not open to Qantas to make the finding that the Applicant stored the images on his iPad in breach of its IT or SOC Policies.

[291] Allegation 5 was that the Applicant accessed websites containing images and/or videos that were obscene, pornographic and/or offensive in nature and that the Applicant knew, or should reasonably have known, that using the Company iPad on the relevant dates and times was inappropriate and in excess of reasonable personal use. The allegation does not specifically refer to any policy and the term “inappropriate” does not appear to relate to any Policy. Ms Hobl’s evidence under cross-examination that the Applicant breached Policy because his viewing was “unlawful” cannot be sustained. There is no evidence that any of the material viewed by the Applicant was unlawful and nor was it unlawful for the Applicant to view pornographic videos at home on his private Wi-Fi.

[292] The gravamen of this allegation was that accessing the sites on the Qantas issued iPad was inappropriate and in excess of reasonable personal use. In relation to this allegation I find that it did not breach either the SOC Policy or the IT Policy. For the reasons set out above, it was not clear that the IT Policy prohibited the use by the Applicant of his Qantas issued iPad to view pornography, the content of which was lawful, in the privacy of his own home using his own Wi-Fi Connection. The viewing was undertaken at no cost to Qantas either in terms of its resources or the Applicant’s working time. The use of the term “inappropriate” in the allegation is not referable to any Qantas Policy and the use was not unreasonable where it did not use Qantas resources. The basis upon which the Applicant knew or should have known that his conduct in this regard was either inappropriate or unreasonable is not apparent and I find that the Applicant did not engage in misconduct by virtue of this use of the iPad. I also find that there was no reasonable basis for this allegation to have been substantiated by Qantas. Qantas conceded, in my view correctly, that allegation six in relation to exceeding monthly data usage was not substantiated.

[293] The allegations concerning Ms Remfrey and Ms Downes are, as Counsel for the Applicant accepted, the most serious of the allegations. I turn now to consider them. I found Ms Remfrey to be an entirely credible witness. In short, I accept Ms Remfrey’s evidence that she saw a video selection page for a pornographic website on the screen of the Applicant’s iPad on two separate occasions. I accept Ms Remfrey saw what she described, notwithstanding that she was deeply distressed while giving her evidence. That distress is entirely understandable given that Ms Remfrey had to go through the ordeal of providing a report to Qantas and coming to the Commission to give evidence and be subjected to cross-examination.

[294] While there was nothing inappropriate about the manner in which Ms Remfrey was cross-examined by Counsel for the Applicant, she was placed in that position through no fault of her own, because she walked in on the Applicant when he was viewing pornographic material at work. Ms Remfrey’s distress illustrates the impact of such conduct on those who are subjected to it and it is not a basis upon which her evidence should be doubted.

[295] Ms Remfrey’s reluctance to report the incidents out of concern at the reaction she may be subjected to by the Applicant and/or his colleagues was also understandable and does not affect her credit. Ms Remfrey said that she did not want to get the Applicant into trouble or cause him to lose his job. These concerns are entirely reasonable given that Ms Remfrey is a woman working in an environment where the majority of her colleagues are men, who would probably hear about any complaint she may have made about the Applicant’s conduct. I also accept that Ms Remfrey would understand the implications for the Applicant of losing his job given that she also works in the aviation industry, and that this would have added to her reluctance to report the incidents and her distress when she did so.

[296] Ms Remfrey’s credit is further confirmed by the fact that she made a contemporaneous report to her Supervisor about what she saw on the screen of the Applicant’s iPad on 11 July 2018, and maintained that position in her later statements, both to Qantas and in her evidence to the Commission. The essential part of the allegation did not change. Ms Remfrey was adamant that what she saw on the screen of the Applicant’s iPad was a selection page for pornographic videos, containing thumbnails of different videos. Ms Remfrey was also adamant that the images she saw did not in any way resemble the images on the lingerie website, which the Applicant stated that she may have accidentally viewed. Under intense cross-examination (in relation to which no criticism can be made of Counsel for the Applicant) Ms Remfrey did not depart from her view about the nature of what she saw on the screen of the Applicant’s iPad. Ms Remfrey’s explanation about how she was certain about what she saw was also entirely credible in that Ms Remfrey made reference to her own life experience and having seen such material before. The fact that Ms Remfrey has seen such material before is immaterial. She should not be subjected to seeing it on the screen of a colleague’s iPad, while at work.

[297] Ms Remfrey also made a contemporaneous report about what the incident on 24 September. The email of 25 September from her Supervisor at Caltex setting out her report of this incident, is illuminating. It indicates that Ms Remfrey refuelled one aircraft – QF563 – and delivered the fuel docket to the Applicant, without incident. It was only on the second occasion when Ms Remfrey delivered the fuel docket for QF639 that she reported the images being seen on the Applicant’s iPad. I accept that this was not elucidated in Ms Remfrey’s evidence and was not put to the Applicant in cross-examination. While it supports Ms Remfrey’s assertion that the Applicant knew that she was the refueller on that date and had seen her earlier in the shift, this is not a matter upon which I have placed weight given that it was not canvassed with the Applicant or Ms Remfrey. More significantly, the email confirms that notwithstanding it was the second such incident, Ms Remfrey maintained her reluctance to report the Applicant’s conduct as she was concerned about possible repercussions for both her and the Applicant. The email is also significant because it indicates that Caltex has concerns about the impact of such conduct on Ms Remfrey and the fact that one of its employees feels uncomfortable in Qantas’ work environment.

[298] The fact that Ms Remfrey said that she saw the same video selection page on both occasions is also not a matter which could properly be found to negatively impact on Ms Remfrey’s credit as a witness. A video selection page for a website featuring pornographic videos may be similar to that of another such selection page notwithstanding that the images in the thumbnail sketches are different, and this was conceded by Ms Remfrey in cross-examination.

[299] I have also considered that Ms Remfrey was unable to remember incidental details, about the incidents with the Applicant and that notwithstanding this, Ms Remfrey did not depart from her evidence about what she saw. I do not accept that the fact that Ms Remfrey could not remember incidental details indicates any lack of recollection about the essence of her allegations. Nor do I accept the fact that Ms Remfrey’s recollection became more detailed in subsequent statements and in her evidence to the Commission, is a basis to place less reliance on that evidence. I accept the submission of Counsel for Qantas that subsequent to making her first statement, Ms Remfrey was asked for more detail including being subjected to cross-examination and questioning at the hearing of this application and that this explains any additional details she recalled. It is also the case that the additional details were not significantly at odds with Ms Remfrey’s original statements so that any assertion of recent invention could be sustained.

[300] Issue could be taken with Ms Saddi’s record of Ms Remfrey’s allegation – in particular that Ms Saddi removed statements made by Ms Remfrey to the effect that her views that she was being treated differently by engineers after she reported the Applicant’s conduct may be paranoia. While I accept that Ms Saddi may have placed a gloss on the record of interview, I do not accept that this goes to the credit of Ms Remfrey or her recollection about the incidents that she alleged. Ms Remfrey appropriately conceded during cross-examination, that her perceptions about how she was being treated by other engineers, after reporting the Applicant’s conduct were not correct. Ms Remfrey made a similar concession that the contents of her statement indicating concern about going into the Engineers hut on 24 September 2018, may also have been incorrect, based on the fact that she had refuelled with the Applicant on a number of occasions, between the first and second incidents. As I have previously noted, it is possible that on 24 September Ms Remfrey went into the hut once without incident before seeing the material she complained of on the screen of the Applicant’s iPad, and that her evidence that she was anxious before she entered the Engineers hut may not have been accurate or may have been embellished. However, I do not accept that either of these matters provide a basis to disbelieve Ms Remfrey’s evidence about what she saw on the screen of the Applicant’s iPad.

[301] Quite simply there is no evidence that Ms Remfrey had any reason to invent such a serious allegation about the Applicant and any antipathy that she displayed towards him in giving her evidence, including embellishing her feelings about entering the Engineers hut at the relevant time, can be explained by the fact that she was distressed and angry at what she had seen and that she had to be placed in the difficult situation of reporting it, and being a witness in these proceedings.

[302] I also found Ms Downes to be an entirely credible witness. While Ms Downes was also angry and distressed when she gave her evidence, this is explained by the fact that Ms Downes strongly believed that she should not have been put in a position whereby she was exposed to pornography in the workplace and required to report it and give evidence about her experience. In this context her emotional state during the hearing is understandable. Ms Downes’ distress and anger are further explained by her feelings of guilt about not reporting her experiences in 2016, and her belief that had she done so, Ms Remfrey would not have experienced the same conduct. I accept that there was a delay between the occurrence of the incidents that Ms Downes complained of and her reporting those incidents. However, that delay was explained by Ms Downes, and her explanation was reasonable. It remains the case that Ms Downes had a clear recollection of what she saw on the screen of the Applicant’s iPad, and I see no basis to doubt her evidence. It is also the case that Ms Downes contemporaneously reported her experience to a supervisor who confirmed this in a statement to the Commission.

[303] Further, I consider that the discussion between Ms Remfrey and Ms Downes about their experiences with the Applicant did not affect their credit in any way. Ms Downes and Ms Remfrey did not seek each other out for the purposes of collaborating in relation to statements about the Applicant’s conduct. They were together in a vehicle by coincidence. It is entirely understandable that in circumstances where Ms Downes and Ms Remfrey were together at the Brisbane airport by coincidence, and where Ms Remfrey was in the process of providing a report to Qantas about her experiences, that they would have a discussion. This is made even more likely by the fact that Ms Downes and Ms Remfrey were in a minority, being female aircraft refuellers, working almost exclusively with males.

[304] It is also significant that both Ms Remfrey and Ms Downes reported what they had seen to their supervisors, and notwithstanding that their reports were made almost two years apart, and without any collaboration, both described that they had seen a selection page for pornographic videos on the screen of the Applicant’s iPad on multiple occasions.

[305] I do not accept the Applicant’s denial that he viewed pornographic material in the workplace. My reasons for not accepting the Applicant’s evidence and preferring the evidence of Ms Remfrey and Ms Downes, are as follows. The Applicant was a prolific viewer of pornographic material, to the extent that he viewed some 32 pornographic videos while he was absent for two days on personal leave. The Applicant was also a frequent visitor to websites where free pornographic movies may be viewed. The titles of the URLs viewed by the Applicant contain references which are consistent with some of the images which Ms Downes claimed to have seen on the screen of the Applicant’s iPad. While the Applicant specifically denied that he viewed pornography involving young women, this denial is at odds with the listed titles which contain multiple references to teenagers engaging in a range of sexual acts including with “step-moms” and step-sisters, although it is not the case that any of the titles indicate unlawful content.

[306] I do not accept that the lack of browsing history on the Applicant’s iPad for the period 17 May to 16 August 2018, including to sites where pornographic material is found, establishes a basis for finding that the allegations about viewing pornography at work, made by Ms Remfrey, should not have been substantiated. I note that the gap in browsing history includes the date of 11 July 2018 when Ms Remfrey claims that she saw the pornographic video selection page on the screen of the Applicant’s iPad. I also note that in the period leading up to 24 September 2018 (the second date alleged by Ms Remfrey) there was no record of browsing in the days immediately before the incident.

[307] There are a number of possible explanations for the lack of browsing history in these periods:

•  The Applicant did not browse the internet at all during that period and only used 4G data to update work related apps on the iPad;

•  The Applicant engaged in private or incognito browsing; or

•  The Applicant manually deleted his browsing history for that period.

[308] All possible explanations need to be assessed in light of the fact that there was data used on every day during the period of the gap in browsing history between 17 May and 16 August 2018 and on some days large amounts of data exceeding 50MB was used. The explanations also need to be considered in light of the Applicant’s browsing history and his evidence that he used the iPad to browse the internet at least every second day.

[309] In relation to the first possibility that he did not browse during the gap period, the Applicant provides no explanation as to why he would have significantly altered his habits in the gap period. The lack of personal browsing both on pornographic and other sites, is uncharacteristic when the Applicant’s browsing history from 2016 onwards is considered. In relation to the second possible explanation, the Applicant’s denial of knowing how to engage private browsing may be untruthful or he may have turned on private browsing inadvertently. On Ms Leonardi’s evidence, this is not difficult. In relation to the third possibility, while it is unlikely that the Applicant would have selectively deleted browsing in this period and left all his other browsing history on the iPad – particularly to pornographic sites – it cannot be ruled out.

[310] Even if the Applicant did not browse the internet at all during this period, it does not remove the possibility that he was viewing pornographic material on the iPad while at work. This is because sites browsed by the Applicant could have simply been cached on the iPad and been available to be viewed when the Applicant opened safari. In this regard, Ms Leonardi’s evidence was that if the page was not refreshed it still could have been viewed. It is also possible that a pornographic video selection page cached on the iPad could have been refreshed using 4G data. Ms Leonardi also said this would not have been recorded on the browsing history of the iPad.

[311] I accept that the possibility of pages being cached on the Applicant’s iPad was not put to him and that he may have denied this possibility by stating that he always took care to close pages to avoid such a situation. However, in circumstances where I prefer the evidence of Ms Remfrey and Ms Downes to that of the Applicant, it is an explanation to which I am able to have regard in weighing the evidence and concluding that on the balance of probabilities, the Applicant was viewing pornographic material on his iPad at work.

[312] In relation to Ms Downes’ allegations there was evidence of the Applicant viewing pornographic material on the iPad in 2016. While I accept that the Applicant’s concession that Ms Downes stated to him on one occasion that what he was viewing on his iPad was “fucking disgusting” is to his credit, that evidence supports a finding that the Applicant was viewing a video selection page for a pornographic video site, in the context of the other evidence in relation to his viewing of such sites privately, and in light of Ms Downes’ rejection of the proposition that what she saw on the iPad was the erotic lingerie site. As I have noted, there are numerous titles in the videos searched by the Applicant on the iPad that meet the description Ms Downes gave of what she saw on the screen of the iPad.

[313] In my view the existence of these possibilities and the intermediate facts which underpin them, in combination with the evidence of Ms Remfrey and Ms Downes – both of whom were credible witnesses – supports a finding that the Applicant was viewing pornography in the workplace on his Qantas issued iPad. Accordingly, I am satisfied and find that on at least five occasions the Applicant was viewing a video selection page containing thumbnail images of pornographic videos on his Qantas issued iPad.

[314] It is irrelevant whether the page had been refreshed and it is sufficient to make out the allegations of Ms Remfrey and Ms Downes that such material was on the screen of the Applicant’s iPad and seen by them. It follows that I do not accept the Applicant’s denial that he viewed such material in the workplace. In light of the Applicant’s denial of these allegations, there is no room for a finding that any viewing of such material in the workplace was accidental or that his viewing of such material at work is mitigated by a lack of understanding about the interaction between various policies and terms and conditions relating to the use of the iPad.

[315] The Applicant can have been in no doubt that viewing pornographic material in the workplace was a serious breach of the SOC Policy and the IT Policy and that Qantas would respond strongly to such conduct. The Applicant should also have known that other work colleagues, including female colleagues, could enter the engineering hut at any time with little warning, and that there was a possibility that they could see the screen of his iPad. The Applicant should also have known that female colleagues are not the only group of persons who might find such material offensive or be intimidated or harassed by it.

[316] It is also the case that at the point the incidents with Ms Remfrey occurred, the Applicant had been forewarned by Ms Downes informing him in no uncertain terms that what he was viewing on the screen of his iPad was “fucking disgusting”. If the Applicant did not realise the danger of viewing such material at work where it could be seen by colleagues before Ms Downes made that comment, he can have been in no doubt after she said this. Regrettably, the Applicant ignored the comment and chose to tempt fate by continuing to view pornographic material in the Engineers hut, where it was also seen by Ms Remfrey. In a further twist of fate, both women found themselves sharing a vehicle and their mutual experiences, with the result that their allegations were corroborated.

[317] I do not accept that the Applicant deliberately timed his viewing of pornographic material for the purpose of harassing Ms Remfrey or Ms Downes. The evidence does not establish this aspect of the allegation. Nonetheless, two women on five separate occasions were subjected to pornography in the workplace. The serious repercussions of this conduct cannot be understated. In circumstances where both women walked into a hut and were alone with the Applicant, in circumstances where he was looking at pornography, their perceptions that his conduct was intentional were reasonable. I am satisfied that the Applicant ought to have known that the iPad screen was visible and that it was probable or even possible that a female refueller would enter the hut. The Applicant should also have known that this could cause offence, intimidation or humiliation to female colleagues or other colleagues.

[318] There is no excuse for the Applicant viewing pornography at work. There is no basis upon which he can reasonably assert that he did not know that to do so would breach the SOC Policy. Given my finding that the Applicant did engage in this conduct, despite his denials, the Applicant’s preparedness to apologise for any offence he may have caused to Ms Remfrey or Ms Downes, or to undertake that the conduct will not be repeated because he now understands Qantas policies, is not a matter to which I attach significant weight. The Applicant should not have viewed such material at work and by doing so he has caused significant distress to both Ms Remfrey and Ms Downes, the effect of which continues. It is also the case that despite the Applicant’s apologies and expressions of regret, and notwithstanding that he accepted that Ms Downes and Ms Remfrey may have seen something on the iPad screen which upset them, the Applicant’s denial that he was viewing pornography, implicitly impugns the credit of Ms Downes and Ms Remfrey.

[319] I find that the applicant’s conduct in relation to Ms Remfrey and Ms Downes was a valid reason for his dismissal. This conduct, viewed in isolation or in combination with viewing an erotic lingerie website and offensive and obscene images at work, is such that dismissal is a sound, defensible and well-founded response. This conclusion is further supported by the Applicant’s continued denial of his conduct with respect to Ms Remfrey and Ms Downes and the ongoing impact of that conduct on them.

[320] Accordingly, I am satisfied and find that there was a valid reason for the Applicant’s dismissal.

Whether the Applicant was notified of the reason for his dismissal

[321] I am satisfied and find that the Applicant was notified of the reason for his dismissal in a number of pieces of correspondence including a letter advising of his dismissal and orally at a meeting prior to the dismissal.

Opportunity to respond to any reason for dismissal related to capacity or conduct

[322] There is substance to the submission for the Applicant that he was not given an opportunity to respond to reasons for his dismissal related to his conduct by virtue of the manner in which he was dealt with by Mr Grimshaw and Ms Hobl. In particular, there was a complete lack of engagement with the Applicant’s responses to the allegations in relation to the Mobility Terms and Conditions and the Comp Portal app and the Applicant’s belief that his private use of the iPad had not breached any Qantas policies.

[323] For the reasons set out above, the Applicant’s views about private use of the iPad were reasonable. Despite the Applicant and his support person demonstrating to Mr Grimshaw that the iPads were set to personal and the privacy statement in the Comp Portal, Mr Grimshaw did not make any inquiries about these matters or have regard to the Applicant’s response. Ms Hobl’s view about these matters was even more fixed than the view of Mr Grimshaw. As a result, Allegation 5 was substantiated in circumstances where it should not have been and Allegations 1 and 4 were given more weight than was justified.

[324] It is also of significant concern that Ms Hobl was unable to provide a cogent explanation about the meanings of terms set out in the policies she purported to apply – for example “pornographic”, “offensive” and “obscene”. Ms Hobl was the decision maker and regrettably she was incapable of bringing an objective view to her task. Of particular concern, was Ms Hobl’s propensity to assess the Applicant’s conduct by reference to irrelevant and subjective matters such as whether she would be happy if her daughter was portrayed in some of the images on his iPad. Ms Hobl also maintained untenable positions such as her definition of “unlawful” conduct as being conduct in breach of Qantas policies.

[325] With respect to Ms Hobl, her approach to deciding whether the Applicant had engaged in misconduct justifying dismissal was inappropriate, particularly in circumstances where she was dealing with serious allegations against a long-term employee, with an otherwise unblemished work history. Ms Hobl was pressed in cross-examination and made a number of significant concessions about her findings. In other instances Ms Hobl refused to make concessions and maintained an untenable position. Mr Grimshaw also made significant concessions – in my view correctly – to the effect that a number of the allegations should not have been substantiated. The overwhelming impression from Mr Grimshaw’s evidence was that he readily accepted under cross-examination that a number of allegations against the Applicant should not have been substantiated. Quite simply, Mr Grimshaw should have come to that conclusion as part of the findings and outcomes he forwarded to Ms Hobl.

[326] Notwithstanding my concerns about these matters, they are not of such significance that they render the dismissal unfair in circumstances where I am satisfied that the Applicant did engage in conduct to which dismissal was a sound, defensible and well-founded response. I am also of the view that responses to the allegations relating to Ms Downes and Ms Remfrey, and the other allegations which I have found to have been made out, have now been ventilated by and on behalf of the Applicant in these proceedings. I do not accept the responses and I do not accept that had they been provided to Qantas before the Applicant was dismissed, that these matters are of such significance that they would properly have resulted in an outcome other than dismissal.

Any unreasonable refusal to allow the Applicant to have a support person

[327] The Applicant had a support person present to assist him in discussions relating to dismissal and this consideration is not relevant in the present case.

Whether the Applicant was warned about any unsatisfactory performance

[328] The Applicant was not dismissed for unsatisfactory work performance and this consideration is not relevant in the present case.

Impact of size of employer’s enterprise and any absence of dedicated human resource management representatives on procedures followed in effecting the dismissal

[329] Qantas is a major employer with dedicated internal human resource management representatives and access to experienced external advisors. It is appropriate to hold Qantas to a high standard in terms of its dismissal processes. Issues with those processes have been considered elsewhere in this decision and there are no additional matters for consideration under these provisions.

Other relevant factors

[330] The Applicant raises a number of factors said to be relevant to whether his dismissal was unfair. First, the Applicant points to his extraordinarily long period of excellent service with Qantas and submits that this renders his dismissal harsh. It is further submitted that there is an absence of future risk of similar conduct and that this supports a conclusion that the dismissal was unfair.

[331] I accept that the length and unblemished nature of the Applicant’s employment weighs in favour of a finding that his dismissal was harsh as does the impact of the dismissal, because it is unlikely that the Applicant will find a similar role with another employer. However, this must be balanced against my finding that the Applicant engaged in misconduct involving the viewing of pornography in the workplace in blatant disregard for Qantas Policies. It is also the case that the Applicant has steadfastly denied this conduct in circumstances where I have found that on the balance of probabilities it did occur. Further, the pornographic material viewed by the Applicant was seen by two female employees on five occasions and had a significant impact on them. These factors weigh against a finding of harshness.

[332] I do not accept the Applicant’s second point to the effect that the conduct he engaged in is at the lower end of the scale of misconduct. To the contrary. It goes without saying that employees should not view pornography in the workplace and that an employee who engages in this pastime will generally be found to have engaged in serious misconduct. By viewing pornography in the workplace, the Applicant placed Qantas at risk in its duty of care to its own employees and those of its contractors. One needs to look no further than the distress of Ms Remfrey and Ms Downes, and the ongoing impact that the Applicant’s conduct had on them, to appreciate its serious implications.

[333] I also do not accept that the misconduct cases cited by Mr Purvinas involve a proper comparison for the purposes of establishing differential treatment. The cases do not involve comparing apples with apples and I am not persuaded that they are relevant to the present case.

[334] In all of the circumstances and after weighing the criteria in s 387 of the Act, I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable. In reaching this conclusion I have considered the harshness of the Applicant losing his employment close to the end of a long career with Qantas. I have also considered whether the manner in which Mr Grimshaw and Ms Hobl dealt with the allegations has resulted in the dismissal being unjust. For the reasons set out above, I have concluded that any injustice to the Applicant does not outweigh the validity of the reason for the dismissal.

CONCLUSION

[335] Accordingly, the Applicant’s dismissal was not unfair. The Application in U2019/3179 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms L Saunders of Counsel instructed by the ALAEA for the Applicant.

Mr A Pollock of Counsel instructed by Ashurst for the Respondent.

Hearing details:

23 - 25 October and 8 November.

2019.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR720009>

 1   Witness Statement of Gary Mellios Exhibit A1; Witness Statement in Reply of Gary Mellios Exhibit A2.

 2   Witness Statement of Stephen Purvinas Exhibit A3; Witness Statement in Reply of Stephen Purvinas Exhibit A4.

 3   Statement of Jennifer Louise Remfrey Exhibit R2.

 4   Statement of Jennifer Maree Downes Exhibit R3.

 5   Statement of Martin Leslie Grimshaw Exhibit R4.

 6   Statement of Christina Leonardi Exhibit R5.

 7   Statement of Gerald-Jan Henry Pinto Exhibit R6.

 8   Statement of Paul Michael Barry Exhibit R7.

 9   Statement of Tracey-Anne Marion Hobl Exhibit R9.

 10   Statement of Glen Andrew Stapleton, Exhibit R10.

11 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

12 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

13 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

14 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 15   Bista v Glad Group Pty Ltd [2016] FWC 3009.

 16   Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

 17   (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

 18   (1992) 110 ALR 449.

 19   Ibid at 450.

 20   Ibid at 451.

 21   Shepherd v The Queen (1990) 170 CLR 573 at 579.

 22   (2011) 198 FCR 514.

 23   Ibid at 541.

 24   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 25   Transcript PN4796.

 26   Transcript PN29.

 27   Exhibit R9 at paragraph 12.

 28   Exhibit R4 Annexure MG-2.

 29   Transcript PN2038 – 2072, 2085 – 2092.

 30   Exhibit R4 Annexure MG-1.

31 Exhibit R5 Annexure CL-1.

32 Exhibit R5 Annexure CL-2

 33   Exhibit R5 Annexure CL-3.

 34   Exhibit R5 Annexure CL-3

35 Exhibit R5 Annexure CL-6.

 36   Transcript PN3100 – 3105.

 37   Transcript PN3112 – 3117.

 38   Transcript PN3118.

 39   Transcript PN3152-3156.

 40   Transcript PN3164-3178.

41 Exhibit R6 Annexure GP-1.

42 Exhibit A1 Statement of Gary Christopher Mellios paragraph 9.

43 Exhibit A1 Annexure GM-2.

 44   Transcript PN278 – 283.

 45   Transcript PN273 – 276.

 46   Exhibit R7 Annexure PB-1.

 47   Exhibit R4 Annexure MG-18.

 48   Transcript PN3359 – 3362; Transcript PN3372 – 3381.

 49   Transcript PN3378.

 50   Transcript PN3404 – 3414.

 51   Transcript PN3429 – 3439.

 52   Transcript PN3014.

 53   Exhibit A1 Annexure MG-5; Exhibit R4 Annexure MG-10.

 54   Exhibit R4 Annexure MG-11.

 55   Exhibit A1 Annexure GM-6.

 56   Exhibit A1 Annexure GM-7; Exhibit R4 Annexure MG-14.

 57   Exhibit A1 Annexure GM-8.

 58   Exhibit R4 Annexure MG-10.

 59   Exhibit R4 Annexure MG-19.

 60   Exhibit R4 Annexure MG-17.

 61   Exhibit A1 Annexure GM-5.

 62   Exhibit R4 Annexure MG-10.

 63   Exhibit R4 – Annexure MG-17.

 64   Exhibit A1 paragraphs 18 – 22.

 65   Transcript PN334 – 345.

 66   Exhibit R4 – Annexure MG-3.

 67   Exhibit R4 – Annexure MG-4.

 68   Exhibit A5.

 69   Exhibit R4 Annexure MG-13.

 70   Exhibit R2 Annexure JR-1.

 71   Exhibit R3 paragraph 12.

 72   Exhibit A5.

 73   Transcript PN980 – 1008.

 74   Transcript PN1057 – 1064.

 75   Exhibit R4 Annexure MG-18.

 76   Exhibit A2.

 77   Exhibit A2 Annexure GM-15.

 78   Exhibit R90 Annexure TH-7.

 79   Transcript PN460.

 80   Exhibit R9 Annexure TH-9.

 81   Transcript PN479 – 486.

 82   Exhibit A1 Annexure GM-6.

 83   Transcript PN490 – 491.

 84   Transcript PN492 – 493.

 85   Exhibits R10 and R11.

 86   Exhibit R3, Witness Statement of Jennifer Maree Downes Annexure JD-1.

 87   Ibid at paragraph 34.

 88   Transcript PN1547 – 1549.

 89   Transcript PN17 29 – PN1741.

 90   Transcript PN1840 – 1846.

 91   Transcript PN1920 – 1930.

 92   Transcript PN1935.

 93   Exhibit R8, Witness Statement of Glen Stapleton.

 94   Transcript PN528.

 95   Transcript PN537.

 96   Exhibit R9 Annexure TH-10.

 97   Transcript PN572 – 574.

 98   Transcript PN724.

 99   Exhibit R4 Annexure MG-26.

 100   Transcript PN2189 – 2196.

 101   Transcript PN2022 – 2206.

 102   Transcript PN2216 – 2227.

 103   Transcript PN2232 – 2246.

 104   Transcript PN2249 – 2261.

 105   Transcript PN2281 – 2287.

 106   Transcript PN2291 – 2300.

 107   Transcript PN2302 – 2310.

 108   Transcript PN2311 – 2323.

 109   Transcript PN2332 – P2358.

 110   Transcript PN2398 – 2415,

 111   Transcript PN2430 – 2437; PN2445 – 2453.

 112   Transcript PN2454 – 2464.

 113   Transcript PN2468 – 2477.

 114   Transcript PN2513 – 2521.

 115   Transcript PN2490 – 2497, 2504, 2507 – 2512.

 116   Transcript PN2480.

 117   Transcript PN2525 – 2536, 2547 – 2549, 2574.

 118   Transcript PN2607.

 119   Transcript PN2610 – 2619.

 120   Transcript PN2460 – 2854.

 121   Exhibit R9 Annexure TH-4.

 122   Exhibit R9 Annexure TH-10.

 123   Transcript PN3848, PN3860, 3871.

 124   Transcript PN3999 – 4007.

 125   Transcript PN4008 – 4025.

 126   Transcript PN4045 – 4064.

 127   Transcript PN4185.

 128   Transcript PN4317 – 4326.

 129   Transcript PN4327.

 130   Transcript PN4328 – 4330.

 131   Transcript PN4338 – 4339.

 132   Transcript PN4344 – 4349.

 133   Transcript PN4376 – 4377.

 134   Transcript PN4386 – 4387.

 135   Transcript PN4410 – 4419.

 136   Transcript PN4555 – 4569.

 137   Transcript PN4625 – 4626.

 138   Transcript PN4634.

 139   (2006) 156 IR 393.

 140   Queensland Rail v Wake (2006) 156 IR 393 at [3].

 141   Transcript PN8 – 10; 16 – 19.

 142   Ibid at 395.

 143   [2011] FWA 1230.

 144   Ibid at [282].

 145   [2012] FWAFB 4810 at [26].

 146   Exhibit R5 Annexure CL-2.

 147   [2011] FWA 1230.

 148   Ibid at [280].