PR971685
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.45 - Appeal to Full Bench

Anthony Farquharson

and

Qantas Airways Limited
(C2005/6041)

Before Senior Deputy President Drake:

Anthony Farquharson
and
Qantas Airways Limited
(U2005/1006)

Airline operations

   

VICE PRESIDENT LAWLER

 

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

 

COMMISSIONER RAFFAELLI

SYDNEY, 10 AUGUST 2006

Appeal - termination of employment - dismissal for off duty or “out of hours” conduct - likelihood of damage to employer - the giving of insufficient weight to relevant matters as a ground of appeal - significance of defects in internal disciplinary process in misconduct cases where the misconduct is proved on the balance of probabilities before the Commission.

DECISION

[1] This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Senior Deputy President Drake given on 15 November 2005 1 dismissing an application for relief against termination of employment brought by the appellant.

The Facts

[2] The Appellant’s employment was terminated because of an assault on another employee. The appellant was employed as an international flight steward by Qantas. On 31 December 2004 the appellant was in Singapore on a period of “slip time”, having recently arrived on a flight from London. Slip time is a period between flights designed to given flight crew an opportunity to rest and recuperate before they resume duties. As in other foreign ports, Qantas quarters its flight crew in Singapore in a particular hotel with which it has negotiated bulk rates. In Singapore this was the Swisshotel. Qantas had arranged with the hotel to make a function room, the Clark Room, available for the private use of Qantas employees who may wish to celebrate the New Year together. Qantas made a modest contribution of $15 per head towards the cost of drinks.

[3] The appellant attended drinks in the room of another Qantas employee and consumed a quantity of alcohol. It appears that at least two of the drinks consumed by the appellant contained more alcohol than the appellant reasonably appreciated. The appellant later attended the function in the Clark room and consumed more alcohol. Mr Tracey, the victim of the subsequent assault, was also present at the function. Sometime during the evening Mr Tracey made a remark to Ms Thomas, referring to the appellant and another flight steward as “2 peacocks with their chests puffed out”.

[4] It does not appear that the appellant heard this remark. By about 2.30am the appellant was quite drunk, having consumed between 11 and 14 drinks. Shortly after this time the appellant was at a table with Mr Tracey and other Qantas employees. Mr Tracey’s version of events in a portion of his statement set out by her Honour was as follows:

[5] The appellant approached Mr Tracey who was seated and struck him heavily in the face with a closed fist. Mr Tracey said words to the effect “What was that for? That wasn’t called for.” The appellant said nothing but again hit Mr Tracey in the face with a heavy blow. This blow knocked out a number of Mr Tracey’s teeth and left him with facial injuries from which he bled profusely. He was escorted from the Clark Room by other employees and taken to the service desk where police and ambulance were called.

[6] The appellant acknowledged hitting Mr Tracey once and accepted that he may have struck him a second time but claimed that this was in response to Mr Tracey saying to him “Your father molested you as a child”. The appellant denied making the remark attributed to him in paragraph 22 of Mr Tracey’s statement. The Senior Deputy President found that that remark was made. 2 Counsel for the appellant, quite properly, did not press a challenge to this finding of fact, based as it was, on her assessment of the evidence of the witnesses. It was not a finding that was amenable to challenge within the established principles.3

[7] There was an issue before the Senior Deputy President as to whether the appellant had followed Mr Tracey from the room in a manner that suggested the possibility of further aggression. The Senior Deputy President rejected the contention that the appellant had followed Mr Tracey with an apparent intention to continue the assault.

[8] The police and an ambulance attended. Mr Tracey was taken to hospital. In the mean time the appellant had returned to his room. The police and hotel staff spent a considerable period knocking loudly on the appellant's door but he did not answer (he had apparently passed into a deep sleep). Other guests in the hotel were apparently awakened by the protracted loud knocking. Eventually, the police and hotel staff broke into the appellant’s room. The appellant was not arrested or charged. The incident did not receive any attention in the media. The appellant tendered a letter from the hotel indicating that it regarded the matter as closed.

[9] There was an issue as to the time lag between when Mr Tracey made the remark about the appellant's father and when the appellant struck the first blow. Mr Tracey claimed that there was a delay of about 2 minutes (indicating a degree of the measured calculation about the assault) whereas the appellant claimed that his response was immediate. The Senior Deputy President did not express a clear finding on that factual contest. For present purposes we are prepared to assume that the appellant's version is correct.

[10] Mr Tracey required hospitalisation for a short period and did not return to work for a period of some weeks.

[11] Where an appeal is against a decision involving the exercise of a discretion, or the application of a broad discretionary standard such as that found in s.170CE, it is well established that the appellant must demonstrate an error within the principles laid down by the High Court in House v The King4

[12] The appellant pointed to a number of exculpatory matters which, it was submitted, had rendered the decision to terminate his employment harsh, unjust or unreasonable (“the exculpatory matters”):

[13] In summary the Appellant submits that the Senior Deputy President erred:

Whether correct approach in relation to “out of hours” conduct was applied

[14] The appellant submits that a flight crew member on "slip time" is off duty and the principles governing when an employer may take disciplinary action in relation to off duty or “out of hours” conduct by one of its employees are applicable accordingly. The Senior Deputy President dealt with a slip time in the following way:

[15] We do not think that her Honour's description of slip time as a “grey area” was intended to indicate that the appellant was on duty at the time of the incident. 5 Rather it would seem that her Honour was intending to indicate that the appellant was not off duty as that term is ordinarily understood. Her Honour’s description of slip time as a “grey area” simply highlighted the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.

[16] In any event, her Honour ultimately approached the case on the basis that the appellant was off duty in the conventional sense:

[17] The appellant challenged this aspect of the decision in two ways. First, relying on the decision of Ross VP in Rose v Telstra 7, the appellant submitted that her Honour erred in approaching the case on the basis that a likelihood of damage to the employer, as distinct from actual damage, was sufficient. Secondly, the appellant submitted that the evidence did not establish even a likelihood of damage to Qantas. We will deal with these arguments in turn.

[18] In Rose v Telstra 8 Ross VP undertook a detailed analysis of the law relating to termination of employment for “out of hours” conduct. Referring to the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines, his Honour noted that the emergence of the modern law of employment can be seen as a movement away the status of servants in a master/servant relationship to a focus on contract with the result that:

[19] The issue, then, is whether the “out of hours” conduct involves a breach of an express or implied term of the contract of employment. Ross VP then considered the relevant implied terms:

[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:

[21] The appellant submitted that her Honour erred because she found a likelihood of damage rather than actual damage as required by the second bullet point of the summary. There are two answers to this submission.

[22] First, while summaries of this sort are useful they are no substitute for the statutory test, namely whether was a “valid reason” in the sense of a reason that is “sound, defensible or well-founded”. 10 Conduct which gives rise to a material risk of damage to an employer’s interests, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a “valid reason” for termination of employment. Whether such a termination is nevertheless harsh, unjust or unreasonable, notwithstanding the existence of such a “valid reason”, will remain to be determined in all the circumstances.

[23] In the context of the “out of hours” conduct by Qantas flight crew the Full Bench in Applicant v Respondent 11 observed:

[24] The Full Bench placed emphasis on the “connection” between the out of hours conduct and the interests of the employer. Her Honour’s approach was consistent with this.

[25] Secondly, in the present case, cabin crew are required to observe the requirements of Cabin Crew Operations Manual and, indeed, before each flight sign an acknowledgment that they will observe those requirements. Those requirements include a proscription of the sort of conduct that occurred in this case. A failure to comply with such requirements can involve, and in this case did involve, a breach of a reasonable policy with which the employee has been directed to comply amounting to a breach of the contract of employment. 12 In other words, the present case falls within the third bullet point in the summary of principle in Rose v Telstra.

Likelihood of damage to Qantas’ interests

[26] We turn now to the appellant’s challenge to the finding that the conduct in question was likely to damage Qantas’ interests. Her Honour gave reasons for that finding:

[27] The appellant placed particular emphasis on the absence of any media reports of the incident, the fact that no charges were laid and the failure by Qantas to call any evidence from a representative of the hotel indicating that the incident had damaged Qantas' reputation with the hotel together with admission by a Qantas manager, Ms Waters, that the incident had not harmed Qantas’ reputation.

[28] In our view, the adverse impact on Qantas of incidents such as that which occurred in the present case is obvious. In this case such adverse impact may be inferred from the facts established by the evidence. Mr Tracey was hospitalised as a consequence of the assault and was unable to return to work for a number of weeks. It may be inferred that he was therefore unavailable to work as a flight crew member in accordance with his roster for that period and that alternative arrangements had to be made by Qantas.

[29] While it may be that the hotel regards the matter as closed, it seems obvious to us that if such incidents recurred the reputation of Qantas would be diminished with the hotel and could expose Qantas to liability for medical and legal expenses. As such, Qantas has a legitimate interest in ensuring that no such incidents occur and therefore has a legitimate interest in taking action in relation to any such incident. Moreover, the fact that the hotel regards the matter as closed does not mean that the hotel did not take an adverse view of the incident. On the evidence before her Honour, it is more likely than not that that it did: other patrons were disturbed from their sleep and damage was caused to the door of the appellant's room. A recurrence of such incidents at the hotel may cause it to take a different view in the future.

[30] The fact that no charges were pursued by the Singapore police does not inevitably lead to the inference that the police regarded the matter as trivial. Other explanations are equally plausible. For example, the decision not to charge may have been as a result of representations made to the police by other Qantas staff or by the hotel management in the interests of an important customer. Moreover, it is not fanciful to suppose that an assault leading to significant physical injuries may be the subject of police charges.

[31] In summary, Qantas was entitled to consider potential future damage, and not merely actual damage, to its reputation or interests. Qantas has a legitimate interest in taking action aimed at deterring such behaviour by other employees in the future because such behaviour has the potential to adversely affect Qantas’ reputation and its rostering arrangements and exposes Qantas to expense arising out of its obligation to meet the legal and medical expenses of its employees when they are in a foreign port. In any event, on the evidence before her Honour, it is proper to conclude that there was a measure of actual damage to Qantas’ interests.

[32] The appellant placed reliance on the passage from the judgement by Wilcox CJ in Yew v ACI Glass Packaging Pty Limited (1996) 71 IR at 205:

[33] We do not think that his Honour was intending to convey that if there was anything in the work environment or the conduct of the other employees that might “incite an employee to resort to violence” then dismissal for fighting could not be justified. Rather, his Honour was focused on rejecting the contrary absolute proposition that “any employee involved in a fight is guilty of serious misconduct” and emphasising that the existence of factors that might incite an employee to resort to violence may detract from the existence of a valid reason for termination of employment or otherwise render a dismissal harsh, unjust or unreasonable. In the present case her Honour considered the issue of incitement and was not persuaded that it justified or excused an attack of the sort perpetrated by the appellant.

Whether insufficient weight was given to the exculpatory matters

[34] The Senior Deputy President in fact addressed each of the exculpatory matters in her decision and explicitly weighed them in the balance. 13 The true complaint of the appellant is that her Honour did not give sufficient weight to these matters, either individually or cumulatively.

[35] A failure to give sufficient weight to a relevant consideration may constitute an error that can be corrected on appeal. 14 The relevant principle was stated by Gibbs CJ in Mallet v Mallet.15 In that case the High Court (Gibbs CJ, Wilson and Dawson JJ; Mason and Deanne JJ dissenting) allowed an appeal against the Full Court of the Family Court of Australia who had overturned a decision at first instance on the basis that the trial judge had not given sufficient weight to certain matters. The judgment of the trial judge was restored. Gibbs CJ noted:16

[36] As noted by Gibbs CJ, in Gronow v Gronow 17 the principle was similarly expressed by Stephen J who said:18

[37] One of us, at least, might, if he had been hearing the matter at first instance, have found that the exculpatory matters rendered the termination of the applicant’s employment harsh. However, as House v The King makes clear,

[38] Moreover, in Rhodes v Violet Town Bush Nursing Centre 19 the Full Bench noted:20

[39] This is not one of those rare cases. The exculpatory matters relied upon by the appellant had to be weighed against the seriousness of the assault which left Mr Tracey with significant injuries and unable to perform his duties for a number of weeks in circumstances where Qantas has a legitimate interest in ensuring that such behaviour does not occur during “slip time”. That is precisely what her Honour did. 21 Moreover, on the facts as found by her Honour, the remark by Mr Tracey that provoked the appellant's attack was in response to a remark by the appellant which was itself deeply offensive. On one view, Mr Tracey's remark was a rejoinder in kind so that the incident may properly be seen as having been initiated by the appellant. While other members may have taken a different view about the weight to be attached to particular exculpatory factors relied upon by the appellant and may, indeed, have come to a different conclusion on whether the termination of the appellant’s employment was harsh, unjust or unreasonable, we are unable to conclude that the decision of the Senior Deputy President was, to adopt the words of Stephen J, plainly wrong, her decision being no proper exercise of her discretion. Her Honour’s reasons must be given a beneficial reading and, taking that approach, we think her Honour’s treatment of the various exculpatory matters does not reflect a failure to give those matters sufficient weight in the relevant sense but rather an attempt by her Honour to explain why they did not move her to conclude that, on balance, the termination of the appellant’s employment was harsh, unjust or unreasonable.

Internal disciplinary process

[40] The appellant complains about the manner in which Qantas conducted the disciplinary process that led to the termination of his employment. A provision in the relevant certified agreement 22 provides that the parties shall abide by the “rules of natural justice” in relation to disciplinary proceedings. The appellant was not permitted legal representation on his internal appeal and a manager involved in the initial disciplinary decision was also involved in the internal appeal decision. The appellant contends that her Honour erred in finding that the appellant was not prejudiced by these matters and in failing to find a breach of the rules of natural justice and thus a breach of the certified agreement. Even if it is assumed that these matters involved a breach of the rules of natural justice and, consequently, that there was a breach of the certified agreement, we are not persuaded that her Honour erred in failing to find that these matters rendered the termination harsh, unjust or unreasonable.

[41] The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.

Inconsistent Treatment

[42] The appellant submitted that her Honour erred in failing to deal with an argument to the effect that the inconsistent treatment between the appellant, on the one hand, and Mr Tracey on the other rendered the dismissal harsh, unjust or unreasonable. However, there is no substance in that argument. The appellant hit Mr Tracey. Mr Tracey did not hit the appellant. No question of inconsistent treatment for the same or substantially the same misconduct arises.

Conclusion

[43] We are not satisfied that the appeal raises matters of such importance that in the public interest leave to appeal ought be granted. Accordingly, s.45(2) has no application and the question of leave falls to be determined on a discretionary basis pursuant to s.45(1). For the reasons we have given we are not satisfied that the appellant has demonstrated error on the part of the Senior Deputy President warranting a grant leave to appeal. Leave to appeal is refused.

BY THE COMMISSION:

VICE PRESIDENT

Appearances:

Mr M Moir of counsel for the appellant

Mr S Bensen of counsel for the respondent

Hearing details:

Sydney

2006
February 17

 1   PR965161

 2   at para [65]

 3   See Jones v Hyde (1989) 63 ALJR 349 at 351-352; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9 (per McHugh J); Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118 at paras [23]-[31] (per Gleeson CJ, Gummow and Kirby JJ)

 4   (1936) 55 CLR 499 at 504 per Dixon, Evatt and McTiernan JJ

 5   see especially para [98]

 6   see also para [98]

 7   Print Q9292

 8   Print Q9292, 4 December 1998

 9   at p ***

 10   the oft cited formulation in Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 11   (1999) 89 IR 407 at ***

 12   compare Brown v Woolworths Ltd (2005) 145 IR 285.

 13   see especially paras [84] to [95] and [103] to [109]

 14   See for example Lovell v Lovell (1950) 81 CLR 513

 15   (1984) 156 CLR 605

 16   at p 614

 17   (1979) 144 CLR 513

 18   at pp 519-520

 19   PR909974, Giudice J, Kaufman SDP and Simmonds C, 5 October 2001

 20   at para [7]

 21   see especially paras [101] to [109]

 22   Clause 11.2 of Annexure F to the Flight Attendants' Association of Australia - Long Haul Division (Qantas Airways Limited) Enterprise Agreement IV (1998-2001)

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