[2022] FWCFB 232

The attached document replaces the document previously issued with the above code on 12 December 2022.

Correction to the MNC and matter number in paragraph [102].

Amendment to the appearances.

Associate to Vice President Catanzariti

Dated 21 December 2022

Fair Work Act 2009
s.604—Appeal of decision

Virgin Australia Airlines Pty Ltd
v
DeVania Blackburn
(C2022/5395)

Appeal against decision [2022] FWC 1846of Commissioner Spencer at Brisbane on 14 July 2022 in matter number U2021/7086 – appeal granted – decided by Full Bench.

Background

[1] Virgin Australia Airlines T/A Virgin Australia (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the FW Act), for which permission to appeal is required, against a decision and order issued on 14 July 2022 by Commissioner Spencer (decision). 1 The decision concerned an application for an unfair dismissal remedy made by Ms DeVania Blackburn (the Respondent) in respect of her dismissal by the Appellant, which took effect on 21 July 2021. The Respondent was dismissed following an investigation into concerns as to the Respondent’s compliance with the Appellant’s standard operating procedures on 31 January 2021, when the Respondent was undertaking a supernumerary shift, preparatory to her return to work, following a period of absence.

[2] In the decision, the Commissioner found that there was a failure by the Respondent on that date to meet the basic requirements of her role, which constituted a valid reason for dismissal, there were other mitigating circumstances which rendered the dismissal unfair on the basis that it was harsh, unjust and unreasonable. The Commissioner made an order for reinstatement and continuity of service. The Commissioner did not order lost remuneration, based on a finding in relation to the contribution made by the Respondent to her dismissal.

[3] It was not in dispute that the Respondent had been the subject of two prior warnings in 2019 and 2020, albeit the Respondent disputed that she had engaged in at least some of the conduct subject of those warnings. A significant consideration in the Commissioner’s finding of unfairness, was a conclusion that because the prior warnings were not referred to in the ‘show cause’ and termination notices given to the Respondent, the Appellant’s reliance on those matters was ‘improper’. The Commissioner also found that for the Appellant to rely on prior warnings at the hearing of the Respondent’s unfair dismissal application, was procedurally unfair and that the warnings should not be considered in the determination of whether the Respondent’s dismissal was unfair. Further findings made by the Commissioner in relation to relevant mitigating factors, were that: statements were inappropriately obtained by the Appellant from other crew members during the investigation; the Respondent had been absent from the workplace for a lengthy period; the impact of a medical condition suffered by the Respondent; and the length of her service.

[4] The decision was stayed on terms agreed by the parties. 2 Directions were set for the filing of submissions by both parties addressing permission to appeal, the merits of the appeal and any application for permission to be represented at the hearing by a lawyer or paid agent. The Appellant sought, and was granted, permission to be legally represented, on the basis that the Full Bench was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. The Appellant was represented by Mr M Felman KC with Mr P Zielinski of Counsel, instructed by McCullough Robertson Lawyers. The appeal was heard by Microsoft Teams video on 12 October 2022.

The Decision

[5] The background to the matter is summarised in the decision and is briefly restated below. The Respondent was employed for a period of 14 years, commencing on 16 June 2007. The Respondent was employed as a Cabin Crew Supervisor and was dismissed following an investigation into allegations of misconduct found to have occurred on 31 January 2021 when the Respondent was a supernumerary on a flight following an absence from work of approximately two month’s duration.

[6] On 17 June 2021, the Appellant issued the Respondent with a letter titled ‘Investigation Findings – Notice to Show Cause’ (Show Cause Letter) in relation to an investigation it had conducted, with respect to alleged conduct of the Respondent between 31 January and 9 March 2021. The Respondent was suspended from duty on full pay and was informed that she was required to provide a response in writing and attend a meeting for the purpose of showing cause why her employment should not be terminated. The Respondent was also invited to bring a support person to the meeting. The Allegations and findings made against the Respondent extracted from the Show Cause Letter were as follows:

“Allegation 1

On 31 January 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct. Specifically, while performing the role of a supernumerary crew member on VA780 (i.e. as an observer of the flight but not able to operate a door), it is alleged that you removed and misappropriated Virgin Australia food products into your crew bag and departed the Aircraft with them. This allegation is substantiated.

(a) In substantiating this allegation, the investigation found that you placed food products in your bag and removed food products from the aircraft. This finding was based on the fact that two (2) cabin crew witnessed you place your crew bag on the last row of seats and place approximately four (4) handfuls of Virgin Australia food products into your bag; and

(b) your assertion that you consumed Virgin Australia food products onboard the flight but [sic] and that that you did not place Virgin Australia food products in your bag or remove these products from the aircraft. However, the amount of food products that were placed in your bag was more than what you could have consumed on the flight.

(c) You are able to consume food products whilst on board the flight and the investigation can find no reason why you would place food products in your bag in order to consume them on board the flight.

Allegation 2

On 31 January 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct, the Virgin Australia Short-Haul Cabin Crew Agreement 2015 section 2.9.2, the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 1.2.1 and the Return to Work Training Program namely that whilst you were performing the role of a supernumerary you should have been observing the flight and if at any time you were required to sit you would sit in the jump seat. Instead, you sat in a passenger seat, watched a movie and fell asleep. These allegations are substantiated.

(d) witnesses’ evidence that whilst onboard VA775 you were:

a. observed sitting in 30F and watching a movie on your iPad as the crew conducted the inflight service. Whilst you claimed as a part of the investigation that you were not watching a movie on your iPad but were deleting photos and looking at the Virgin Australia Inflight Entertainment App. On the balance of probabilities, the investigation does not accept this assertion and instead accepts the witness statement that you were watching a movie;

b. following the completion of the service the On Board Leader (OBL) spoke to you regarding changes to the forward galley catering set up and invited you to come up to the forward galley at any time on either of your two (2) sectors;

c. you were observed to be asleep in 30F during the flight; and

d. following the Public Announcement from the Flight Deck, ‘Cabin crew prepare for landing’, and after the seat belt sign for landing was illuminated, you were observed by the crew member responsible for securing the area in preparation for landing to be asleep. The crew member woke you to return to the 2LA jump seat for landing. You responded, ‘I’ll stay here’. You did not occupy the 2LA jump seat for landing; and

(e) witnesses’ evidence that whilst on board VA780 you were observed asleep in 30D during the flight;

(f) your admission in both your written and verbal response that once crew were released from their jump seats following the seat belt sign being extinguished you moved into the last row of seats and took up a passenger seat in 30F;

(g) your assertion that while you have been with Virgin Australia for 14 years and you are confident that you have a robust knowledge of policies and procedures it was your understanding that you were not to assist with the inflight service. This does not align with the expectation set out in the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 1.2.1 which states the Crew will be allocated appropriate service duties inflight.

(h) your admission in both your written and verbal response that despite admitting to knowing that you were required to occupy the 2LA jump seat for take-off and landing you did not return to the 2LA jump seat for landing on VA775 and instead remained seated in passenger seat 30F.

Allegation 3

On 31 January 2021, 28 February 2021 and 9 March 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct, the Virgin Australia Cabin Crew Wellness and Leave and Attendance Policy and the Virgin Australia Short-Haul Cabin Crew Agreement 2015, section 2.13 Sign On, Sign Off and Notification of Assigned Duties, namely that did not sign on for duty within the required time, nor notify your LCC, and the airport carpark entrance records indicated that you arrived at the airport carpark after sign on time.

This allegation is substantiated.

In substantiating the allegation, the investigation found:

a) on 31 January 2021, you were rostered to sign on for duty at 7:55am. You did not sign on for duty and you were not present for the pre-flight briefing. The BAC carpark records indicate that you arrived at the carpark entrance at 7:52am, which was 3 minutes before you should have signed on for duty;

b) on 28 February 2021, you were rostered to sign on for duty at 7:00am. The BAC carpark records indicate that you arrived at the carpark entrance at 7:30am, half an hour after you were required to sign on for duty. You phoned Cabin Crew Operational Support (CCOS) and advised Ms Anson, the CCOS Advisor, during your phone call at 7:58am that you were rostered an Airport Reserve shift at 7:00am and ‘had been in the carpark since then”. This was inconsistent with the airport carpark record that you arrived at 7.30 and as a consequence the investigation found that you were also dishonest;

c) on 9 March 2021, you were rostered to sign on for duty at 6:00am. The BAC carpark records indicate that you arrived at the carpark entrance at 7:26am, nearly an hour and a half after you should have signed on for duty;

d) on all three (3) occasions above that you were late for your rostered duty you did not contact your LCC Vanessa Scott within 48 hours to advise that you were late for work and unable to meet your obligation to sign-on for duty as is required under the Virgin Australia Short-Haul Cabin Crew Agreement 2015, section 2.13 Sign On, Sign Off and Notification of Assigned Duties and the Cabin Crew Wellness and Leave and Attendance Policy.

Allegation 4

On 31 January 2021 and 28 February 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct and the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 4.2, specifically 4.2.2 Sign on responsibility and section 4.2.4 sign off responsibilities, namely the requirement to sign on and sign off for duties.

These allegations are substantiated for all dates.

In substantiating these allegations, the investigation found:

a) on 31 January 2021, while undertaking mandatory training flights as a supernumerary crew member on VA775 and VA780, you did not sign on or sign off for your duty, either physically at a Virgin Australia computer or remotely via a company issued device;

b) on 28 February 2021, you did not sign on or sign off for your duty, either physically at a computer or remotely via a company issued device.

Allegation 5

On 31 January 2021 and 9 March 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct and the Virgin Australia Look Book in that you were not dressed and presented in accordance with the Look Book.

This allegation is substantiated.

In substantiating these allegations, the investigation found:

a) on 31 January 2021, you were not wearing makeup, your hair was messy with visible flyways, and your nail polish was visibly chipped;

b) on 9 March 2021, you were not wearing stockings. These findings were dispute your assertion [sic] that you believe you were groomed according to the Virgin Australia Look Book. The investigation notes that your lack of grooming standards wer [sic] the subject of recent discussions with your Leader Crew Culture Ms Vanessa Scott, on 6 October 2020 and 11 January 201 where Ms Scott reset her expectations with you and advised you of the required grooming standards. …’

[7] In her written responses the Respondent denied the allegations against her and referred to the duration of her career and her commitment to the Appellant. The Respondent stated that she was ‘heartbroken’ by the allegations and regarded them as defamatory, and that she had previously been recognised for her high performance. Further, the Respondent questioned the validity of the investigation and asserted that the allegations had been fabricated and that a group of people were seeking to degrade and humiliate her, possibly in retaliation for the Respondent raising issues such as failure by crew to properly clean toilets or because of her absence from the workplace.

[8] The Respondent was invited to attend a rescheduled meeting to respond verbally to the allegations and was informed that the meeting would be an outcome meeting and that she would be able to have a support person present. On 21 July 2021, the Respondent met with Ms Ali Rutherford, Crew Culture Manager. The Respondent advised that she had nothing further to add to her response. At the meeting, the Respondent was advised that her employment was terminated effective immediately. This was confirmed in writing by the Appellant on 11 August 2021 (Termination Letter). The Respondent was paid four weeks’ pay in lieu of notice, although the Appellant maintained that it could have summarily dismissed the Respondent.

[9] The Commissioner set out evidence from witnesses for the Appellant about an investigation in 2019, which resulted in the Respondent being given a final warning, issued on 28 October 2019. The warning was in relation to a substantiated finding that the Respondent had misappropriated cash from a passenger. The Respondent had stated during the investigation of that matter that she had intended to take the cash and to pay for the passengers purchase with her own card but had forgotten to do so. There was also evidence of a further final warning being given to the Respondent in December 2019, in relation to failure to follow an attendance policy with respect to notification of an absence from work.

[10] The Commissioner then turned to consider the matters in s.387 of the Act. In relation to s.387(a) the Commissioner canvassed a range of matters in her consideration. After setting out the reasons for the termination of the Respondent’s employment detailed in the termination letter, the Commissioner considered each of those reasons given by the Appellant for dismissing the Respondent. With respect to the allegation that the Respondent had failed to properly undertake duties required of a supernumerary, the Commissioner found that the Respondent’s evidence in the hearing was ‘overly complicated and provided evasive answers to the questions’ and that the Respondent was ‘cantankerous in providing evidence regarding compliance with the necessary obligations for the supernumerary role’. 3 The Commissioner also found that in giving her evidence the Respondent ‘engaged in arguments over her interpretation of semantics in the understanding of particular terms and procedures, aimed at complicating clear obligations,’4 that her response to a simple question was ‘circumspect’5 and that the Respondent showed a willingness to divert from her clear knowledge of a policy requirement in relation to notifying of her inability to sign on at the required time.6 The Commissioner further noted inconsistencies in the Respondent’s evidence about her failure to return to the jump seat on the flight and concluded that the Respondent had not adhered to the requirements of the procedures in relation to safety and crewing and that her refusal to do so was ‘unnecessary and belligerent’ and a unilateral decision on the part of the Respondent.7 At [166] the Commissioner said in relation to the Respondent’s evidence about her conduct on the Return to Work Training flight on 31 July 2021:

“[166] Contrary to the Applicant’s evidence, the instruction in the training was clear that supernumerary crew are to occupy a non-operational jump seat and, plainly, they will be allocated appropriate service duties. The Applicant did not consult on or communicate her differing position.”

[11] Other matters noted by the Commissioner in relation to her consideration of whether there was a valid reason for the Respondent’s dismissal were the Respondent’s evidence of her view that it was prejudicial for the Appellant to have asked other employees their views about her conduct on that flight and that those employees may have been motivated to make false reports about the Respondent. In relation to the prior warnings given to the Respondent in 2020 and 2021, the Commissioner found:

“[170] Similarly, in assessing the valid reason, reliance on the prior warning, in terms of the reasons put to her, was improper given that these matters were not notified to her as part of the reason in the Show Cause Letter. The Applicant clearly harboured some resentment to matters that occurred before these allegations, including reference to the prior warning of alleged theft (which she denied) and the associated lengthy period of the investigation and the overall time away from duties. The prior warning of alleged theft was also not raised with the Applicant as part of the show cause procedure and was unrelated to the reasons for the termination. The Respondent had not clearly set out that they intended to agitate any reliance on past matters in the reasons for the dismissal. These matters do not relate to the current non-compliance with the operating procedures on the flight. The conduct required of the Applicant by the Respondent in the circumstances was straightforward. However, the cross-examination of the Applicant revealed her separate reasoning was often based on her consideration of past experience, and alleged changes in the training material, to evade the particular responsibilities of her role on board in that position.”

[12] The Commissioner also found that the Appellant’s policies and procedures for timekeeping were clear and that as the Appellant operates in the time-sensitive aviation industry, so that timeliness obligations are mandatory. The Commissioner concluded that the Respondent, as an experienced cabin crew employee was aware of attendance and reporting requirements. In relation to the impact of the Respondent’s medical condition, and her assertion that it impeded her ability to present for duty, the Commissioner considered that notwithstanding that the Appellant had an obligation to explore reasons for this issue with the Respondent, it was also the case that the Respondent was negligent in not having discussions about this matter with her direct supervisors or crewing contacts. 8 While noting the Respondent was embarrassed about her medical condition and its impacts, the Commissioner observed that ‘the aviation industry is heavily regulated, with good reason, given the need to operate in a timely and safe manner in a potentially dangerous workplace.’9

[13] Other issues referred to by the Commissioner in her consideration of whether there was a valid reason for the Respondent’s dismissal were:

•  The length of the Respondent’s service and her reliance on knowledge gained during her service;

•  The Respondent’s evidence that other employees had been critical of her in their responses to the Appellant about the allegations and their reasons for this were related to the Respondent’s lengthy paid period away from the workplace and her supervisory role;

•  While the Appellant, on the reports of the crew, considered that the Respondent had placed more snacks into her bag than she could have consumed on the flight, there was an absence of evidence that the Respondent actually removed the product from the flight and the matter was not raised with the Respondent as she got off the flight;

•  By removing a quantity of snacks, even to eat, the Respondent left herself open to criticism as her role on the flight was not to observe, assist with service and refamiliarise herself, rather than consume snacks;

•  The allegations arose mainly from one flight over the course of one day;

•  There was no conclusive evidence that alternatives to terminating the Respondent’s employment had been realistically considered;

•  The Appellant ‘resiled without explanation’ from pursuing allegations relating to deficient grooming on the part of the Respondent, despite them being substantiated, which raised questions as to whether other allegations could also have been abandoned in pursuit of a different course of conduct – for example a clear statement being made to the Respondent about the Appellant’s standards of conduct or a discussion to allow the Respondent to resume duties on the understanding of the Appellant’s attitude to future breaches of operating conduct and standards.

[14] In relation to whether there was a valid reason for dismissal, the Commissioner said in conclusion:

“[184] Having regard to all the matters referred to in relation to the required discharge of the company procedures, there was a valid reason for the dismissal related to the Applicant’s conduct. However, this then must be weighed against the other relevant mitigating factors in the context of the matter.”

[15] The Commissioner then turned to consider whether the Respondent was notified of the reasons for dismissal finding that notification was provided of the reasons under consideration in the show cause letter and that the reasons were also set out in the termination letter. However, the Commissioner went on to find that:

“…no reference was made to the past warning in the show cause reasons, and it did not form part of the written basis for the dismissal. Accordingly, this prior warning has not been taken into account in the current proceeding, given the Applicant was not put on notice that she was required to respond to this or that it formed part of the reasons for termination. The parties disagreed on the basis for that prior warning. To rely on it at the Hearing was procedurally unfair.” 10

[16] Similarly, while finding that the Respondent was given an opportunity to respond to the allegations set out in the show cause letter, the Commissioner observed that the prior warning was not reflected in that letter nor the letter advising the Respondent that her employment had been terminated. After noting that the Respondent had at all times refuted that the alleged behaviour the subject of the prior warning breached the code of conduct, the Commissioner found:

“It was improper to make any reliance on this warning, in circumstances where it was not clearly referred to in the matters set out in the show cause process or the Termination Letter. That is, the Respondent did not clearly notify the employee that the warning was being relied on in this proceeding and did not give her the opportunity to respond to such. It was procedurally unfair to rely on the prior warning where not referred to in the document. Neither party led direct evidence on this warning, and it was not a matter properly under consideration in relation to the dismissal. The Applicant was given an opportunity to respond to only those matters in the Show Cause Letter, prior to the termination decision being made.” 11

[17] In relation to s.387(e), the Commissioner noted the Appellant’s statement that the Respondent had not been previously warned on matters of lateness, the procedure for the consumption of Virgin food products on flights or the supernumerary procedure, but also observed that the Respondent was a supervisor who had declared her experience and knowledge of the policies and that the procedures were well within the Respondent’s operating experience. The Commissioner also reiterated observations about the Respondent’s medical condition and that this may have explained her situation on at least one of the days she was late for work but not her failure to call promptly to advise of this. The Commissioner also considered several issues in respect of s.387(h) of the Act set out in paragraphs [193] – [198] of her decision which can be summarised as:

•  The Respondent’s ethics complaint against Ms Scott which resulted in the investigation being undertaken instead by Ms Anson;

•  The Respondent had extended periods away from her employment and considered that the Appellant raising compliance issues was a challenge to her significant experience;

•  The Respondent had at all times denied the breaches put to her, put contrary evidence forward and alleged that crew members were concerned about their own security of employment therefore their responses were tainted;

•  Whilst acknowledging there was no evidence that the Appellant would discipline crew for failing to provide information in the investigation, procedural fairness was compromised by broadly seeking an account of events from the relevant crew;

•  The Respondent was a long standing employee;

•  The breaches occurred over a short period of time and might have instead been dealt with by a clear warning;

•  Breaches in timeliness of attendance were the primary area of concern and the Respondent’s contention that the Appellant had not made sufficient enquiries in respect of this conduct and whether it was a result of her medical condition;

•  The Appellant had not undertaken an appropriate level of enquiry when weighing up the Respondent’s reasons for lateness; and

•  The Respondent’s concession that she had not raised the medical issues in her own defense when she had the opportunity to do so. 12

[18] The Commissioner concluded that the dismissal was harsh, unjust and unreasonable. On this basis, the Commissioner made an Order 13  reinstating the Respondent with continuity of service but without backpay, for the period between the dismissal taking effect and the date of reinstatement. In reaching her decision, the Commissioner adopted the approach of the Full Bench in Carter v Qantas Airways Limited 14 (Carter). Specifically, the Commissioner noted that in Carter, the Full Bench found:

“…that whilst the conduct presented a valid reason for the dismissal, taking into account a range of matters such as the Applicant’s length of service, performance, lack of specific training and personal circumstances, the dismissal was considered to be harsh, unjust, and unreasonable.” 15

[19] The Commissioner drew the following comparison also at paragraph [199]:

“In the current case, the Applicant had a significant length of service: 14 years. The issues addressed at termination had occurred in the span of just over a month, though a number of allegations arose from one day and one flight. There had been mitigating reasons raised by the Applicant, in terms of a medical condition (for some of the non-compliance with attendance) and sustained contrary interpretations of training directions, based on her service knowledge against the backdrop of this discipline.”

[20] The Commissioner went on at paragraph [202] to conclude that:

“[202] Taking into account all of the particular circumstances of this matter, and in particular the Applicant's length of service (in performing more elevated duties than currently considered), her medical condition (which played a role in the deficiency in complying with a sign on procedure), that the events primarily in question occurred over a short period when re- entering the workforce after a lengthy absence. The Applicant was absent from work for 80 days in 2019, 226 days during 2020, and 14 days from 1 January 2021 to 5 March 2021. In addition, for the procedural fairness issues as set out, the dismissal is considered to be harsh, unjust, and unreasonable.”

[21] At paragraphs [203] – [206] the Commissioner reiterated earlier findings said to be relevant to the overall conclusion that the Respondent’s dismissal was harsh, unjust and unreasonable, including: the Respondent refuted the range of alleged breaches of conduct such as the removal of food product from the flight; there was no direct evidence that this had occurred; the Appellant sought evidence from other crew members about the Respondent’s conduct on the supernumerary flight; the Respondent complained that this procedure was biased; uncertainty about the prolonged length of dealing with prior allegations and the manner in which the crew statements were obtained about the Respondent’s conduct as a supernumerary; the allegations arose after a lengthy absence of the Respondent from the workplace; the Appellant having made limited inquiries about the reasons for the lateness of the Respondent; the length of the Respondent’s service; and the majority of allegations arose on one flight or within a short period. The Commissioner went on to observe that the evidence relating to these matters ‘whilst providing a valid reason…did not justify that termination was the appropriate disciplinary outcome.’ The Commissioner went on to state at [206]:

“For all of the above reasons, whilst a valid reason existed simply based on the breaches of the operating procedures and Code of Conduct, the dismissal was harsh, unjust and unreasonable, in all of the particular circumstances of the breaches of duty, and the procedural fairness matters.”

[22] After making comments about the Respondent’s contribution to her dismissal, including describing the Respondent as ‘somewhat belligerently relying on her experience and contrary view of …required duties and procedures’ the Commissioner went on to conclude:

“[209] For the aforementioned reasons, I have found that the dismissal of the Applicant was harsh, unjust, and unreasonable. Taking into account all of the facts and circumstances of the matter, on balance, reinstatement is appropriate and an order for continuity of service is issued. On the basis of the Applicant's contribution to the circumstances, an order for the continuity of wages is not issued.”

Principles on Appeal

[23] The appeal is made under s.604 of the FW Act. There is no right of appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 16

[24] The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact.” 17 Section 400(2) of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[25] As a Full Bench of the Commission observed in Dafallah v Melbourne Health 18:

“Section 400(2) modifies the House v The King principles by limiting any review based on mistake of fact to a significant error of fact. Section 400 clearly evinces an intention of the legislature that appeals in unfair dismissal matters are more limited than appeals with respect to other matters under the Act.” 19

[26] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as “a stringent one”. 20 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.21 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. These considerations were that:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…” 22

[27] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 23 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[28] The decision under appeal is of a discretionary nature. As the majority of the High Court held in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 24:

“Discretion’ is a notion that ‘signifies a number of different legal concepts. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result.’ Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision maker is required to make a particular decision if he or she forms a particular opinion or value judgement.” 25 (citations omitted).

[29] The majority in that decision also held that a decision maker charged with making a discretionary decision has some latitude as to the decision to be made, and given this, the correctness of the decision can only be challenged by showing error in the decision-making process. 26 Such error has also been described as the discretion not being exercised correctly. 27 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Member at first instance in the absence of appealable error. The classic statement as to the approach to be taken in relation to whether there is error in a discretionary decision, and which is applied in appeals against such decisions under s. 604 of the FW Act, was stated by the High Court in House v The King as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 28

[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 29 However, as the cases in relation to appeals against discretionary decisions establish, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[31] We turn now to consider the grounds of appeal and submissions in the present case.

Appeal Grounds

[32] The Notice of Appeal as initially filed, sets out five grounds with particulars relating to those grounds. In its submissions, the Appellant addressed additional grounds of appeal and foreshadowed that it would seek to amend its Notice of Appeal at the hearing by adding grounds 2A, 6(a) and 6(b). The Respondent did not object to the proposed amendments to the Notice of Appeal and we granted permission for the amendments. The Appellant also indicated at the hearing of the appeal that it did not press grounds 5(b) and (c). The grounds as set out in the amended Notice of Appeal and excluding those not pressed, are as follows:

1. The Commissioner erred in finding that the Commission could not, or should not, take any account of prior warnings issued to Ms Blackburn because they were not identified in the show cause letter (decision at [170], [185], [186] and [196]);

2. In finding the views of other employees as to Ms Blackburn’s conduct were ‘solicited’ (decision at [152], [190] and [195]), the Commissioner erred on the grounds that:

a) the Commissioner made a significant error of fact because Virgin Australia did not ask for the employees’ ‘views’ of Ms Blackburn’s conduct in a general sense, but for their ‘accounts of [Ms Blackburn’s] conduct on their flights’ after being notified of concerns about Ms Blackburn, which is an orthodox approach and is not procedurally unfair;

b) the Commissioner failed to provide adequate reasons for her finding (decision at [190] and [195]) that Virgin Australia’s conduct in questioning other employees about the events of 31 January 2021 was procedurally unfair to Ms Blackburn;

c)
the fact that such a finding would be made, or was under the contemplation of the Commissioner, was not put to Virgin Australia and it was therefore denied an opportunity to make submissions or point to contrary evidence, which resulted in a denial of procedural fairness; and

d) the fact that Virgin Australia sought the accounts of its employees about Ms Blackburn’s conduct was not procedurally unfair.

2A. In concluding that the termination process was procedurally unfair, the Commissioner erred by concluding that:

a) there were delays in addressing the allegations against Ms Blackburn and in effecting the termination, in circumstances where there was no delay which gave rise to any procedural unfairness, nor was there any suggestion by Ms Blackburn that she had been prejudiced by the length of the process that led to her dismissal; and

b) the events occurred over a narrow period of time on what was to be Ms Blackburn’s re- entry after a long absence from the workplace, when this fact had no bearing on the fairness of the process that led to the termination of Ms Blackburn’s employment.

3. The Commissioner erred in exercising the discretion to reinstate Ms Blackburn, in that: the order to reinstate was unreasonable and/or plainly unjust having regard to the Commissioner’s numerous, strongly termed, adverse findings against Ms Blackburn;

b) the order to reinstate was unreasonable and/or plainly unjust having regard to Ms Blackburn’s unsupported evidence and submissions that:

i. ‘No procedures were breached or missed’;

ii. there was ‘professional misconduct by managers’;

iii. that Virgin Australia’s case had ‘no evidence or solid proof… except for hearsay and fabricated and altered facts by [Virgin Australia] to [the Applicant’s] disadvantage’;

iv. ‘all allegations were substantiated only based on the hearsay of unknown witnesses who made false statements and acted fraudulently by fabricating facts and falsifying information and misrepresenting the information provided to [Ms Blackburn’s] disadvantage’; and

v. the allegations, against her which included non-compliance with safety procedures, were ‘petty’.

4. The Commissioner did not provide adequate reasons to explain how she took account of the matters referred to in ground 3 in finding that ‘taking into account all of the facts and circumstances of the matter, on balance, reinstatement [was] appropriate’ (decision at [209]).

5. The Commissioner made the following significant errors of fact when she:

a) erred in finding there was no conclusive evidence alternatives to termination had been realistically considered (decision at [182]), in the face of evidence from Virgin Australia that alternatives had been considered;

6. In concluding that the termination was unfair (despite there being a valid reason), the Commissioner erred by taking into account:

a) that Ms Blackburn was the subject of a disciplinary procedure that ‘she considered was invalid’ (decision at [201]); and

b) that the matters the subject of the disciplinary procedure were dealt with on an aggregate basis (decision at [201]).

[33] In its written submissions, the Appellant distilled the grounds of appeal into four issues as follows:

a) whether the Commissioner below erred in failing to have regard to prior warnings issued to the Respondent (Ground 1);

b) whether the Commissioner erred in concluding that the termination of Ms Blackburn’s employment by the Appellant was unfair because:

i. the Appellant “solicited” the views of its employees who witnessed Ms Blackburn’s misconduct on 31 January 2021 or “broadly [sought] additional evidence” from those employees (Ground 2);

ii. there were delays in addressing the allegations of misconduct and effecting the termination, and that the events the subject of the investigation occurred over a narrow period of time (Ground 2A);

iii. The Respondent considered the disciplinary procedure invalid (Ground 6(a)); and

iv. the disciplinary procedure dealt with the allegations against the Respondent on an aggregate basis (Ground 6(b));

c) whether the discretion exercised by the Commissioner to reinstate the Respondent miscarried (Grounds 3 and 4); and

d) whether the Commissioner made additional and significant errors of fact that infected her consideration of the relevant issues (Ground 5).

Submissions

Appellant

[34] The Appellant’s submissions can be summarised as follows. Ground 1 concerns the Commissioner’s finding that the Commission could not, or should not, take any account of prior warnings issued to the Respondent because they were not identified in the Show Cause and termination notices (decision at [11], [170], [185] and [186]). The Appellant submitted that the Commissioner’s reasoning in this regard is contrary to the decision of a Full Bench of the Commission in Steve Newton v Toll Transport Pty Ltd 30 which set out principles summarised as follows:

a) the Commission must assess whether, on all the available evidence, there was a valid reason for dismissal;

b) that calls for an objective analysis, which is not confined to the evidence that the employer expressly relied upon to effect the dismissal;

c) if the Commission believes that a valid reason exists that was not advanced by the employer, then it must act judicially and accord the parties procedural fairness before acting on that reason;

d) this applies equally in respect of prior misconduct that might have formed a valid reason for dismissal, but which was earlier ‘condoned’ by the employer (including by being the subject of an outcome short of dismissal); and

e) an employer’s condonation of prior misconduct might be relevant to assessing whether a valid reason exists, but it is not determinative.

[35] The Appellant contended that the Respondent was clearly on notice that prior warnings were relied on during the hearing evidenced by the fact that her Form F2 Application sought to deal pre-emptively with those warnings by discounting their relevance. The Respondent was also put on notice when the Appellant filed its initial outline of submissions in the hearing before the Commissioner, that the Appellant sought to rely on the prior warnings to justify the dismissal. The Respondent was cross-examined about the warnings and Ms Rutherford gave evidence for the Appellant at the hearing before the Commissioner, that she relied on the prior warnings as part of her decision to terminate the Respondent’s employment. The Commissioner also provided the Respondent with an opportunity to respond in general terms, to anything that had been put to her.

[36] The Appellant submitted that having regard to these matters, the Commissioner’s approach in effectively setting aside the Respondent’s prior conduct history, was inconsistent with Newton and premised on a mistaken conclusion that that the Respondent was not on notice about this issue. The Appellant also submitted that the way in which the Commissioner dealt with this issue, by not putting the Appellant on notice during the hearing of the intention to treat the warnings in this way, deprived the Appellant of the ability to submit that the Respondent’s continued challenge of the prior warnings was in a context where she was able to, but did not, contest those warnings at the relevant time. In this regard, the Appellant referred to provisions in the Virgin Short Haul Cabin Crew Agreement 2015, which were not in evidence before the Commissioner, but would have been referred to, had the Appellant been on notice as to the Commissioner’s concern. Further, the Appellant submitted that by putting aside entirely the Respondent’s prior conduct history, the Commissioner failed to have regard to an important fact that was plainly relevant to weighing the criteria in s.387 of the Act.

[37] In relation to grounds 2 and 2A, the Appellant submitted that the Commissioner implicitly found that it had requested that crew members provide their views regarding the Respondent’s conduct on 31 January 2022 which amounted to sanctioning a process designed to gather supporting evidence and which provided knowledge among the crew about alleged non-performance on the part of the Respondent. The Commissioner also found that the Appellant’s conduct in this regard was procedurally unfair. According to the Respondent’s submissions, the Commissioner’s errors in respect of these matters were:

•  Misunderstanding how the events of 31 January 2021 came to the Appellant’s attention by assuming that information had been solicited when the evidence showed that the Respondent’s colleagues had raised the issues with the Cabin Crew Leader on that shift, who passed the matters on stating that she had asked the crew to submit safety reports and send through their accounts of the Respondent’s conduct on the flight that day. The Appellant’s conduct had been unremarkable and orthodox.

•  The procedural error identifying how witness evidence was sought was clearly a significant factor that contributed to her finding that the dismissal was unfair and given its centrality it was important for the Commissioner to set out her reasons for drawing that conclusion, which the Commissioner failed to do.

•  The Appellant had no notice that the Commissioner was considering making this finding, it was not part of the Respondent’s case that the witness accounts had been unfairly procured and it remains unclear how the Appellant’s collection of materials necessarily resulted in procedural unfairness. The Appellant was deprived of its opportunity to put submissions responsive to the Commissioner’s concern.

•  The duration of the Appellant’s investigation process was not material delayed nor did it lead to unfairness in the process of termination and no suggestion in this regard was made by the Respondent.

•  The Commissioner erred by having regard to the fact that the events occurred over a narrow period when the occurred in the period from 31 January to 9 March 2021 and while the January incident occurred after the Respondent’s absence from work this could not be said of the incidents on 28 February and 9 March 2021.

[38] Grounds 3 and 4 concern the Commissioner’s finding that reinstatement was an appropriate remedy. The Respondent submitted that The Commissioner made significantly adverse findings as to Ms Blackburn’s appreciation of and capacity to follow Virgin Australia’s standard procedures.42 They were particularly important having regard to the critical safety role that Ms Blackburn played as a member of Virgin Australia cabin crew (and given her leadership role). The forcefulness of those findings cannot sensibly be reconciled with the subsequent finding that reinstatement was an appropriate remedy. The Commissioner failed to properly take these matters into account (or at all) (Ground 3(a)). According to the Respondent, this discretionary error was compounded by a failure on the part of the Commissioner to disclose her path of reasoning as to how those adverse findings did not preclude reinstatement. The Respondent also pointed to broader considerations relating to the Respondent’s behaviour during the investigation and the hearing, including making broad-based and speculative attacks on the credibility of witnesses, and in the hearing, alleging professional misconduct and bias on the part of the Appellant’s managers and that they had contrived her dismissal for some unspecified collateral reason.

[39] It was submitted that, as was the case in Lee v Superior Wood 31 the Respondent did not merely present her case in a robust way; her behaviour crossed a line that caused Virgin Australia to submit that the prospect of her return to work was “untenable”. That was a substantial consideration that the Commissioner failed to have any regard to (Ground 3(b)). Further, the Commissioner failed to provide adequate reasons disclosing how she considered this issue in the exercise of her discretion (Ground 4). It was also submitted that the Commissioner’s approach to prior misconduct caused an error in respect of her discretion to order reinstatement, because whether or not an applicant has a good employment record is a factor relevant to whether reinstatement is an appropriate remedy.

[40] In Ground 5(a) the Appellant asserted that the Commissioner made a significant error of fact by holding that that there was “no conclusive evidence that …alternatives to termination had been realistically considered” 32 The ultimate decision maker, Ms Rutherford, gave evidence that, prior to dismissal, she sought advice from her manager and a human resources specialist as to whether an alternative course to termination was appropriate. Ms Rutherford also gave evidence that she rejected alternatives because of the seriousness of the Respondent’s conduct and her prior disciplinary history. Ms Rutherford’s evidence in this respect was not challenged in cross-examination.

[41] In relation to Ground 6 which concerns whether the dismissal was unfair, the Appellant submits that in listing the factors that the Commissioner regarded as contributing to the unfairness of the termination of Ms Blackburn, the Commissioner included the fact that Ms Blackburn was the subject of a disciplinary procedure that ‘she considered’ was invalid. 33 Whether Ms Blackburn herself considered the disciplinary procedure as ‘invalid’ was an irrelevant consideration in assessing whether the termination was harsh, unjust or unreasonable. The requirement for the Commission to form its own view about the procedural fairness accorded to an employee is a substantially different consideration to an employee’s own personal view of the validity of the disciplinary procedure. There was no evidence before the Commission, nor was it ever put, that the Appellant did not comply with its own disciplinary processes – such as to create invalidity in that process. The Commissioner erred in taking this into account (Ground 6(a)).

[42] It was also submitted that the Commissioner erred by concluding that part of the unfairness to the Appellant was that matters the subject of the disciplinary procedure were dealt with on an aggregate basis. 34 It is unclear how dealing with the Appellant’s issues on an aggregate basis was unfair and the Commissioner did not expand on this in her reasons. Further, there was no suggestion during the course of the investigation by the Appellant that dealing with the issues in the aggregate caused the Respondent any prejudice or imposed a level of unfairness on her. It was also the case that no such point was pressed at hearing by the Respondent and the Commissioner did not raise with the Appellant the possibility that this factor would be weighed against it in determining that the termination was harsh, unjust or unreasonable. The Commissioner erred by taking this into account (Ground 6(b)).

[43] The Appellant submits that permission to appeal should be granted based on a clear disharmony between Newton and the way in which the Commissioner dealt with the Respondent’s prior conduct history. The Commissioner’s findings on reinstatement are also counterintuitive and manifest an injustice. It is in the public interest for those matters to be corrected on appeal. In addition, the decision raises questions of general importance as to whether it is appropriate to reinstate a worker against whom the Commission has made serious and numerous adverse findings as to their safety compliance. The Appellant also submits that the Full Bench ought to determine for itself that the Respondent’s dismissal was not harsh, unjust or unreasonable, or if necessary, that reinstatement is not appropriate in the circumstances.

[44] In oral submissions at the hearing, the Appellant traversed the Commissioner’s findings in relation to the s.387 considerations and said in relation to the criteria in s.387(a) that the Commissioner found that allegations 2, 3 and 4 had been substantiated. The Commissioner was not satisfied that the Respondent removed food products (allegation 1) and allegation 5 in relation to grooming standards was not pressed by the Respondent. The Commissioner found on that basis that there was a valid reason for dismissal. The Commissioner also concluded that s.387(b) had been satisfied and that the Respondent was notified of the reasons for her dismissal in the Show Cause Letter and then in the termination letter. While there was a reference to prior warnings in the Commissioner’s consideration of s.387(b), this was an error.

[45] In relation to s.387(c) the Commissioner found that the Appellant gave the Respondent an opportunity to respond to allegations prior to termination of her employment. In relation to s.387(d), the Commissioner found that the Respondent was allowed to have a support person present. While the dismissal was based on conduct rather than performance, the Commissioner found that the procedures about which her employment was ultimately terminated were well within her operating experience, notwithstanding that she had not previously been warned about supernumerary duties and signing off and on and not notifying of lateness. While the Commissioner’s conclusions in relation to ss.387(f) and (g) noted that the Appellant is a large employer with a dedicated human resource function, the Commissioner also made observations in relation to the impact of COVID-19 on the Appellant, when that was not a matter relied on at the hearing. The consideration at [190] – [191] in relation to these grounds also raises a number of issues relevant to the appeal including findings by the Commissioner that there was a delay in addressing the allegations with the Respondent, the views of the crew on the flight on 31 January 2021 were ‘solicited’, there was a denial of procedural fairness to the Respondent in relation to how the views of other crew members were obtained and the investigation took some time, which impacted the Respondent adversely.

[46] In relation to s.387(h) it was submitted that the Commissioner’s consideration was attended by error as a result of earlier findings. The Appellant also submitted that in drawing her conclusion that the dismissal was unfair, the Commissioner did not weigh up the s.387 factors against each other but made general comments and made criticisms of the Appellant and the Respondent before stating – without identification – that all facts and circumstances had been taken into account in concluding that the dismissal was harsh, unjust and unreasonable.

[47] Specifically in relation to Ground 1, the Appellant traversed the evidence that was before the Commission in relation to the prior warnings. Evidence about the warnings and the conduct to which they related, were dealt with in the witness statement of Ms Scott. The warnings were said to be important for two reasons. Firstly, they were considered by the decision-maker Ms Rutherford, as to whether there were reasonable alternatives to dismissal. One of the considerations was that the Respondent had been warned before, with a final warning which lapsed and was then reinstated. Secondly, the prior warnings were relevant to whether the Respondent should have been reinstated. The first of those warnings was for an incident that occurred on 15 and 16 June 2019, when the Respondent was found to have misappropriated cash which she had accepted from a guest to purchase items during a flight, in circumstances where the Appellant did not accept cash, and had then failed to put the transaction through on her own card. The second warning was for non-compliance with the Appellant’s attendance policy, in circumstances where there was evidence from Ms Scott that the Respondent had been counselled about the need to comply with that policy on some ten occasions in the previous eight years.

[48] The Appellant accepted that it did not rely on the prior warnings to establish that it had a valid reason for dismissing the Respondent, and that the warnings were not referred to in the Show Cause letter. However, the Appellant contended that the Commissioner was wrong to disregard the warning in the proceedings ‘holus – bolus’ and to find that this resulted in procedural unfairness to the Respondent. The error was compounded by the Commissioner’s finding at [186] of the decision that it was improper for the Appellant to rely on the warning, when it was not mentioned in the show cause process and that the Appellant had not put the Respondent on notice that it intended to rely on the warning at the hearing. The Appellant also referred to the Commissioner’s comment at [186] that neither party led direct evidence on the prior warnings and contended that this finding was not correct and that the warnings were the subject of extensive evidence and submissions in the proceedings at first instance. The subject of the prior warnings was also referred to in oral submissions to appeal Ground 5(a) which asserts error on the part of the Commissioner in finding that the Appellant had not considered alternatives to dismissal when Ms Rutherford had given uncontested evidence to the contrary including that she had regard to the warnings the Respondent had previously been given, and the second chance the Respondent was given despite a finding of dishonesty on her part.

[49] In relation to Grounds 2 and 2A, it was contended that it was perfectly sensible and appropriate for Ms Rooney, who was the crew leader on the flight on 31 January 2021, and had concerns about the Respondent’s conduct, to ask other crew members to send an email recounting what they saw. While the emails sent by crew members may not have been provided to the Respondent, their substance was. It was also contended that the process adopted by the Appellant in gathering information could not be procedurally unfair and was in fact very fair to the Respondent. Further, while the Respondent had complained in her submissions and evidence about inconsistencies in the accounts of events relied on by the Appellant to establish her misconduct on that date, the Respondent had not complained of the fact that the views of those crew members were sought. If the Appellant had gone straight to a show cause process without asking other crew members on the same flight what happened, the Appellant would be rightly criticised. In those circumstances, the Appellant needed to be put on notice that this was a problem so that it could be addressed.

[50] It was also said to be a public interest point, that the decision could be relied upon as a basis for asserting that seeking the views of people who witness an event, is problematic. Findings of the Commissioner that the events occurred over a very narrow period were also said to be erroneous given that there was a six-week span between the flight on 31 January and the conduct on 9 March 2021. Further, any delay in the investigation of the allegations was contributed to by the Respondent. Finally, it was submitted that the fact that the matters were dealt with on an aggregate basis was not the subject of a complaint by the Respondent and the basis of any unfairness because of this was not explained by the Commissioner. Arguably, it would have been unfair to the Respondent if the matters were disaggregated.

[51] With respect to the appeal grounds relating to reinstatement of the Respondent, it was contended that the adverse findings about the Respondent were not just in relation to her attitude at the hearing but also her attitude to her employment and to what she had done. In this regard, it was submitted that the Respondent simply did not understand what she had done and the implications of her conduct, evidenced by the Respondent’s submissions that the prior warnings resulted from investigations that were closed with no outcome as allegations were unable to be substantiated. The Appellant submitted that this was the opposite of what actually happened. Reference was also made to the Commissioner’s conclusion that the case was analogous with Carter v Qantas Airways Limited. The Appellant contended that there were in fact significant differences between the cases including that there was a culture of non-compliance similar to that engaged in by the employee in that case, the employee had been refused a support person, there was no evidence that alternatives to dismissal were considered, the employee in that case had never received any counselling or warnings and had received a nomination for an award for excellent service a year prior to his dismissal.

[52] The Appellant also submitted that the Full Bench had all the necessary material before it to determine the matter for itself if the appeal succeeded, partially or in full. It was also pointed out that the finding of valid reason had been made by the Commissioner at first instance, and it was not quibbled with by the Respondent. There was also material in relation to what the Respondent had earned since the dismissal which would only be relevant if the Appeal did not succeed. If this was the case and the Full Bench found that the dismissal was unfair but did not order reinstatement, the Appellant would be happy if this material was admitted and would not require to cross-examine the Respondent in relation to it. Further, it was submitted that if the appeal grounds were upheld, almost all the reasons why the dismissal was found to be unfair would fall away, and all that would be left would be the s.387 considerations that were met and with which the Respondent had not taken issue. Finally, the Appellant noted that it would be less costly and more efficient for the Full Bench to determine the matter for itself rather than sending it back for a further hearing.

[53] As noted below, the Full Bench permitted the Respondent to file additional written submissions in response to the Appellant’s oral submissions at the hearing of the appeal. The Appellant was also provided leave to file written submissions in reply. In reply submissions, the Appellant said that four staff members provided reports as to the Respondent’s conduct on 31 January 2021. While the Respondent was critical of the fact that, of those staff members, only Ms Pixley gave evidence during the hearing, the Commissioner was entitled to have regard to the three other employees’ accounts and to give them appropriate weight (as is the Full Bench). Quite apart from s.591 of the Act, the accounts were contained in business records and would have been admissible pursuant to the formal rules of evidence in any event. Notwithstanding the Commissioner’s procedural fairness criticism that the employee accounts were ‘solicited’ (which is the subject of Ground 2), the accounts provided by the three other employees were part of the factual matrix which the Commissioner relied upon to find that there was a valid reason for the Respondent’s dismissal and there has not been any challenge by the Respondent to that finding.

[54] The Appellant observed that it remains unclear whether the Respondent formally challenges the Commissioner’s decision to decline an order to restore lost pay. No cross-appeal was filed by her and no application for an extension of time has been sought. The Respondent pointed to paragraph [208] of the Commissioner’s decision, where the findings as to the extent to which the Respondent’s conduct contributed to her dismissal was summarised as follows:

“[208] The Applicant’s case was built around the fact that she considered she had a better knowledge of the Respondent’s procedures than its representatives and those in LCC roles. For these reasons I consider that instead of just complying with procedures, in the circumstances of employment she contributed to the situation in somewhat belligerently relying on her experience and contrary view of those required duties and procedures. The assessment of her overall conduct was serious and contributed to the circumstances and justifies that she not be awarded renumeration for the interim period.”

[55] The Appellant submitted that the Commissioner’s discretion not to make an order to restore the Respondent’s lost wages, was a broad one and the Respondent’s submission falls short of establishing error to the standard required. This was said to be necessarily fatal to a cross-appeal (if sought by the Respondent). It was also submitted that the Commissioner’s reasoning was supported by her findings at paragraph [208] and was a reasonable and sensible conclusion. On the question of remedy, the Appellant submitted that if the Full Bench was to overturn the reinstatement in place of a compensation order, in an email to the Commission dated 31 March 2022, the Respondent foreshadowed providing evidence to the Commission as to the amount of remuneration she has earned since her dismissal. However, no such evidence was subsequently provided, either at first instance, or on appeal.

Respondent

[56] The Respondent submitted that the prior warnings were from an investigation in 2019 and 2020. Each of the investigations was closed with no outcome, as the allegations were not able to be substantiated. According, to the Respondent, the Commissioner could not understand the purpose of the final warning, given that the investigation was closed with no outcome, the Respondent remained in her role and the allegations were not substantiated. The Respondent disputed that the Commissioner ignored the prior warnings or had no regard to them. Instead, the Commission determined that he prior warnings simply did not have any relevance given that the investigations were closed with no outcome.
[57] The Respondent contended that the Commission erred in failing to highlight that the third set of allegations were not substantiated by witness statements but were determined as being proven by Ms Anson. The Respondent submitted that the lack of evidence to support the third set of allegations was made apparent by the fact that during cross-examination, Ms Anson was unable to provide information about the source of the allegations. Further, Ms Anson accepted that none of the witnesses had stated that the Respondent removed food items from the plane on 31 January 2021, indicating that the allegation was fabricated and falsely substantiated.
[58] The Respondent also submitted that the witnesses who stated their views were unable to be tested in cross examination. The only key witness who was cross examined was not a strong, honest witness and created a new story and had selective memory loss, on certain details but was able to provide detailed information on other events that occurred on the same day as those she claimed not to remember.

[59] The Respondent contended that the Appellant’s disciplinary policy was not followed correctly. In this regard, the Appellant refused to advise the Respondent of any details to ensure fairness in her response, and documents requested to be provided to the Respondent by the Appellant were not provided. According to the Respondent, the investigation was neither honest nor transparent and allegations against her were substantiated without witness statements being provided by those who made the allegations. The Respondent said that the disciplinary procedure dealt with fabricated allegations against her. The Respondent also said that because the Appellant dealt with the allegations on an aggregated basis, previous investigations which were closed without an outcome, were included in the allegations which led to the Respondent being dismissed. On the basis that the prior allegations were not substantiated, the Respondent contended that the most recent allegations should also not have been substantiated. The Respondent further submitted that during hearing the Commissioner requested that certain documents be produced by the Appellant including records of conversation with CCOS and Crewing, that Ms Anson agreed to provide. These were not provided by the Appellant and this was not mentioned in the Commissioner’s decision.

[60] The Respondent maintained that she did not breach procedures and on closer inspection, it became clear that there were no procedures in place for certain situations. For example, there is no procedure should a crew member fall ill while the crew member is rostered on a flight as a supernumerary. The Respondent also maintained that decisions she made on that day, were not a breach of procedure but made with the priority of safety and safety only. In this regard, the Respondent said that to remove herself from being seated in a position where she might impede the egress of Crew performing duties was the best and safest decision to make. The procedure for Supernumerary Crew does not mention anything regarding what should and should not have been done if one was to fall ill while undertaking this role.

[61] The Respondent questioned what requirements there are for a supernumerary crew member on flights longer than 1.5 hours once all standard operating procedures have been observed. The Respondent said that she is a supervisor and while rostered as a supernumerary crew member on the flight on 31 January 2021, chose to ‘study her iPad apps which included all Supervisor tools and also an entertainment app’. The Respondent also said that she looked at removing unnecessary data storage such as photos, from her iPad. This was not considered by the Appellant, and it was assumed that all the Respondent did on that flight was to watch a movie and sleep.

[62] The Respondent maintained that crew are to contact crewing if running late and it is normal practice for crewing to advise crew member their decision in relation to what actions are to be taken. Examples of instructions that may be given to crew by crewing is for the crew member to keep crewing up to date, make their way to the aircraft and that crewing will sign on the crew member as they are aware of where the crew member is. The Respondent said that this practice has been in place for the entire time she has worked for the Appellant yet both the Respondent’s witnesses said under cross-examination, that they are unaware of what procedure is in place if a crew member is late, as for more than 10 years they both have never been in the position of being late to work at all.

[63] The Respondent took issue with the Commissioner’s conclusion that she contributed to her dismissal and to deny the remedy of compensation. The Respondent contended that the Appellant engaged in professional misconduct and unlawful behaviour and due to these matters, she believes that she is entitled to the remedy of compensation, which we assume is in addition to reinstatement. In relation to public interest, the Appellant said that it is important that professional misconduct and unlawful behaviour within workplace investigations be mentioned and highlighted as no one should be able to use such ill practices against an employee. For the public to be aware of these matters would enable them to be prepared and able to handle those wrongs by employers appropriately and to also know that if they have or are experiencing such behaviour by others in the workplace, then they are not alone. The Respondent concluded her submissions with the following statement:

“I agree that the decision made by the Commissioner is fair in regards to the reinstatement of employment, which is the reason for September 2022 the Appellant to appeal the decision. There is no grounding or erred facts in regards to those mentioned. I do not agree on the mention of my contributions to not allow remedy of compensation. The purpose of the appeal though has no grounding due to the above reason.”

[64] To assist the Respondent to present her case, she was permitted to provide further written submissions in response to the Appellant’s oral submissions at the hearing of the appeal. In her further written submissions, the Respondent asserted that, ‘as per the Queensland Industrial Relations Commission’ an appeal can only be made on the grounds of error of law or excess or want of jurisdiction. As the Commissioner was acting within power when she made the decision, it is necessary for the Appellant to establish that there was an error of law so that the conclusion reached by the Commissioner was not correct. The Appellant also canvassed principles said to be applicable to the present appeal, which can be summarised as follows. If the conclusion was reasonably open on the facts, then the Full Bench is not permitted to intervene, and it is not enough that the Full Bench would have come to a different conclusion to that of the original decision maker. The Respondent also submitted that the public interest is not satisfied simply by the identification of error or a preference for a different result. An unsuccessful party should not be permitted to re-argue its case, in the absence of error. Errors of fact must be material to the outcome of the case and not all errors of fact warrant correction on appeal.

[65] The Commissioner had latitude about the decision under appeal and it is a decision that tolerates a range of outcomes, on which reasonable minds may differ. Such a decision can only be challenged by showing error in the decision-making process. The Full Bench can intervene on the grounds that the decision under appeal was unreasonable or plainly unjust or contrary to the overwhelming weight of evidence. Appealable error is not demonstrated simply because a decision maker failed to give a particular matter sufficient weight or proper regard, unless the failure was, in substance, a failure by the decision maker to exercise discretion properly.

[66] The Respondent submitted that the Appellant had not demonstrated such errors on any of the grounds of appeal. In relation to the allegations that led to her dismissal, the Respondent maintained that the allegation that she misappropriated food items was falsely substantiated by the Appellant, involved ‘professional misconduct’ and the Commissioner found that this did not occur. This was also said by the Respondent to amount to a ‘sacrilegious definition of procedural unfairness’. The Respondent also maintained that as there is no procedure dealing with circumstances where a supernumerary crew member falls ill during a flight, there could not have been a breach on her part. Further, the Respondent maintained that the decision to remove herself in order to not impede the egress of crew was made on safety grounds and she was not asleep or watching a movie during the flight but instead remained in her seat and communicated to the best of her ability, with the crew. According to the Respondent:

“The Commissioner was satisfied this happened due to the transparency of the facts and details by myself in regards to agreeing that I did not sit in the jump seat during the landing process and that’s as far as the facts extend. The discretion is with the hands of the Commission and not for me to question.”

[67] With respect to other allegations about alleged breaches of the sign in and sign off procedures the Respondent said that she had mentioned numerous times and throughout the investigation and hearing, that she was advised by crewing that they would sign her on for duty and that she should make her way to the aircraft. According to the Respondent, the Commissioner requested documents be provided by the Appellant which Ms Anson said she was able to do, and to date, no documents have been provided. The Respondent said that she signed on 31 January by Company approved iPad as all other crew had gathered and left the aircraft together before the Respondent. The incident on 28 February was said by the Respondent to be an anomaly as she had signed off mid duty and that is considered to complete sign on provided the appropriate procedures are followed within 24 hours, which the Respondent maintains that she did. This communication was also to be provided by Ms Anson and was not provided.

[68] In relation to the allegation 5 about her failure to adhere to grooming standards, the Respondent said that the fact this allegation was withdrawn at a later stage, without reason, raised questions about the authenticity of the other allegations. The Appellant also said that allegations 2, 3 and 4 were the subject of procedural errors made by the Appellant and were not based or substantiated on facts or evidence. According to the Respondent, this suggests the dismissal was unjust, unreasonable and harsh. The Respondent accepted that she had an opportunity to respond to the allegations but maintained that her response was not taken into consideration or measured against the statements of others and was instead ignored and only the statements of other persons were considered in the decision-making process. The Respondent also said that she had a grievance with the Commissioner’s decision because she was not awarded a financial remedy in the form of lost income between the date of her dismissal and reinstatement. The Respondent disputed that she had contributed to her dismissal. The Respondent also took issue with the Commissioner’s perception that she felt superior and believed that she knew more about the Appellant’s procedures than the LCCs. The Respondent denied that she had ever stated she felt superior and said that if anything, she was ‘frustrated at the chosen absent mindedness of the LCCs when asked about the procedures.’ In conclusion, the Respondent said:

“As a leader, supervisor, a sense of authority and responsibility is what would be expected of a leader. One could describe that as a feeling of superior, I beg to differ but that's where reasonable minds differ. These are essential characteristics of a leader. I cannot expect to be a leader by remaining behind the crowd and quiet, not knowing my procedures. As a Crew member, Supervisor and LCC it is our job to know the procedures of the job. To make such a personal judgement and reason to suggest I contributed leaves me mind boggled. Yet I am not here to question the decision made by the Commissioner if believed that she was reasonable to be open to the facts.”

Consideration

Permission to Appeal

[69] The Full Bench is satisfied that the grant of permission to appeal in this matter is in the public interest. We are of the view that the appeal concerns issues of general application concerning the proper approach to the consideration of whether there is a valid reason for dismissal, required by s.387(a) of the FW Act. In this regard, we consider that the decision is disharmonious with other decisions of the Commission in relation to this issue, notably the decision of a Full Bench of the Commission in Newton v Toll Transport Pty Ltd. 35

[70] We also consider that the subject matter of the appeal raises issues of importance and general application, in connection with the exercise of discretion to reinstate a person against whom the Commission has made adverse findings in relation to their safety compliance. Further, we consider that the appeal raises important issues relating to processes followed by employers in investigating alleged misconduct and gathering of evidence. Permission to appeal is therefore granted in accordance with s.604(2) of the FW Act. We turn now to consider the grounds of appeal.

Ground 1

[71] Ground 1 alleges that the Commissioner erred by finding that the Commission could not, or should not, take any account of prior warnings issued to the Respondent because they were not identified in the Show Cause letter. In its submissions, the Appellant formulated this ground more generally, as the Commissioner failing to have regard to the warnings issued to the Respondent. The paragraphs of the Commissioner’s decision referred to in the appeal ground indicate that the Commissioner made two findings in relation to the prior warnings, related to procedural fairness.

[72] Firstly, the Commissioner concluded that because the prior warnings were not referred to in the Show Cause Letter setting out the allegations against the Respondent and the letter advising the Respondent of the termination of her employment, it was ‘improper’ for the Appellant to rely on the prior warnings as reasons for dismissal (at [185], [186] and [196]). Secondly, at [186] the Commissioner concluded that for the Appellant to rely on the prior warnings at the hearing of the Respondent’s unfair dismissal application, was procedurally unfair, because the Respondent was not notified of this. Accordingly, the Commissioner determined that she would have no regard to the prior warnings in her consideration of the matters in s.387 of the Act including as to whether there was a valid reason for the Respondent’s dismissal. We also note that in addition to deciding to exclude evidence about the prior warnings, the Commissioner relied on the conclusions about procedural fairness, which led her to exclude evidence of the prior warnings, as a basis for finding that the Respondent’s dismissal was unfair.

[73] In our view, in deciding to exclude evidence of the prior warnings, the Commissioner acted upon a wrong principle. We are also of the view that the conclusions upon which the Commissioner based her decision to exclude evidence of the prior warnings, and which were relied on as grounds for finding that the Respondent’s dismissal was unfair, involved significant errors of fact and were extraneous and irrelevant to the required exercise of weighing the matters set out in ss.387(a) – (h). These errors are inter-related.

[74] In relation to the error of principle, the way the Commissioner dealt with the prior warnings is inconsistent with the Full Bench decision in Newton v Toll Transport Pty Ltd. In that case, the Full Bench distilled principles relating to the extent to which prior misconduct may be relevant in assessing whether a dismissal is unfair and the way that consideration of prior misconduct may arise during the course of a hearing into an unfair dismissal application. The Appellant in that case contended that:

“…it is not appropriate for the Commission to itself formulate or identify valid reasons for dismissal not expressly relied on and advanced by the employer during the course of a hearing. Whilst an employer can, un-controversially, rely on ‘after acquired’ knowledge of misconduct to establish a valid reason, it cannot rely on conduct which was known to it and not relied on in effecting a dismissal as the employer will have waived the capacity to rely on such conduct.”

[75] The Full Bench in Newton v Toll Transport Pty Ltd described this submission as the Appellant conceding that an employer can rely on what is actually ‘after acquired’ knowledge of conduct that did not come to light by the time of dismissal, but also submitting that this must be done by the employer, specifically and directly at the hearing, given that it is the employer who bears the onus of establishing a valid reason for dismissal. Rejecting that proposition, the Full Bench in Newton v Toll Transport Pty Ltd said (citations omitted):

“[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.”

[76] Authorities in support of the propositions cited in this paragraph by the Full Bench include the decision of the High Court in Byrne v Australian Airlines Ltd. 36 That case, while decided under a different statutory regime, concerned an award provision to the effect that termination of employment shall not be harsh, unjust or unreasonable. The judgments variously referred to the distinction between substance and procedure, when considering the fairness of a dismissal. Brennan CJ and Dawson and Toohey JJ, held that both the procedure used to dismiss an employee for misconduct and the question of whether the employee engaged in the misconduct, must be considered in deciding whether the dismissal was harsh, unjust or unreasonable.37 Their Honours also held that ‘…facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable.’38 Similarly, after observing that the distinction between procedure and substance may be elusive,39 McHugh and Gummow JJ held that while the adoption of an unfair procedure may render a dismissal harsh, unjust or unreasonable, whether it does so or not must depend upon the whole of the circumstances.40 Their Honours went on to hold that:

“Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appeared to concede this. But the burden of the respondent's submissions is that there was error in determining the issue without regard to the very material circumstance of the finding of the primary judge as to the complicity of the appellants in pilfering. Those submissions should be accepted. This means that the primary judge was bound to consider whether, on the evidence given at the trial, the respondent could resist the allegation of breach of cI II (a), provided that the evidence concerned circumstances in existence when the decision to terminate employment was made. A further consequence is that it remains for the Full Court to determine whether Hill J erred in his findings of fact as to complicity in pilfering. If those findings were upheld it would be very difficult to see how the dismissal of the appellants could be regarded as harsh, unjust or unreasonable.” 41

[77] The Full Bench in Newton v Toll Transport Pty Ltd went on to state:

“[66] We accept that if the Commission determines that there is a valid reason for dismissal which is not expressly advanced by the employer then it must act judicially and accord the parties procedural fairness – an issue to which we will return shortly; but we reject the Appellant’s waiver submission; namely the proposition that in the context of establishing a valid reason for dismissal an employer cannot rely on conduct of which the employer was aware but waived/condoned by not relying on such conduct to dismiss the employee.”

[78] Three points may be made about the implications of the Commissioner excluding the prior warnings from her consideration. Firstly, the warnings were part of the factual matrix that existed at the time the Appellant decided to dismiss the Respondent. The Appellant was entitled to rely on the prior warnings at the hearing before the Commissioner to support its contention that there was a valid reason to dismiss the Respondent. The Appellant was also entitled to rely on the warnings as a matter relevant to the overall exercise of weighing the matters in s.387, which the Commissioner was required to undertake. This was so, regardless of whether the Appellant referred to the prior warnings in the Show Cause letter or the termination letter or otherwise relied on them as reasons for dismissal of the Respondent at the relevant time.

[79] The Commissioner’s decision to exclude consideration of the prior warnings from her assessment of the s.387 matters, resulted in an important aspect of the factual matrix, being disregarded. That approach was inconsistent with established authority, set out in Newton v Toll Transport Pty Ltd and earlier cases, notably the High Court decision in Byrne v Australian Airlines Ltd. We agree with the Appellant’s submission that by putting aside the Appellant’s prior conduct history, the Commissioner failed to have regard to an important fact, that was plainly relevant to weighing the criteria in s.387 of the Act. This was both a failure to take a material consideration into account and an error of principle.
[80] Secondly, the basis upon which the Commissioner decided to exclude the prior warnings involved an error of fact. Contrary to the Commissioner’s finding, direct evidence in relation to the prior warnings was led in the hearing at first instance. We accept the Appellant’s submission that the Respondent knew that the prior warnings were relevant to the decision to dismiss her and that she was on notice that the prior warnings would be relied on at the hearing. The Respondent pre-emptively referred to the warnings and the events that preceded them in her Form F2 Application for an unfair dismissal remedy and her witness statement in support of her application. The Appellant referred to the prior warnings in its Form F3 Response to the application. Details of the warnings, the events that preceded them and the investigations undertaken by the Appellant, were also set out in the witness statements filed by the Appellant in the proceedings at first instance. The decision maker gave evidence that she relied on the warnings in the process of deciding to dismiss the Respondent. That evidence was not contested. Further, the Respondent was cross-examined about the prior warnings and provided her views in relation to them.

[81] Given the impact on the Commissioner’s decision of excluding consideration of the prior warnings, this was a significant error of fact which was directly relevant to the outcome at first instance. The Commissioner was bound to have regard to that evidence in considering whether there were facts that existed at the time of the dismissal, which justified the dismissal. This would have been the case even if the prior warnings were not expressly advanced as a reason for the dismissal by the Appellant at the first instance hearing.

[82] Thirdly, as noted by the Full Bench in Newton v Toll Transport Pty Ltd, before deciding on the relevance of the prior warnings to the question of whether there was a valid reason for the Respondent’s dismissal, the Commissioner was required to accord the parties procedural fairness. There is no indication in the transcript of proceedings that the Appellant had been put on notice that the Commissioner would take the approach of excluding evidence about the about the prior warnings, which was advanced by the Appellant at the first instance hearing, either in relation to the validity of the reason for dismissal or the other matters in s.387 of the FW Act.

[83] In the present case, the prior warnings were relevant to the question of whether there was a valid reason for dismissal because they evidenced previous conduct on the part of the Respondent involving breaches of the Appellant’s policies and procedures. The evidence does not support the Respondent’s assertions that the prior warnings were invalid or that the conduct which was the subject of the prior warnings was not substantiated. To the contrary, the prior warnings were issued to the Respondent on the basis that the conduct was substantiated and, other than that the Respondent disputed the warnings in her submissions at the hearing before the Commissioner, there is no basis to find otherwise. By considering for the purposes of s.387(b) that the Respondent had not referred to the prior warnings in the show cause letter, and excluding the prior warnings on this ground, the Commissioner erred by failing to have regard to a relevant matter. The Commissioner’s view about the prior warnings also affected her consideration of the matter in s.387(c).

[84] We conclude that the exclusion by the Commissioner of the prior warnings from her consideration of the matters in s.387 resulted in a failure to properly balance those matters. Finally, we note that although it was not advanced as an appeal ground, we are also of the view that paragraph [186] of the decision makes clear that the Commissioner considered that the Respondent was not aware that the warnings would be relied on in “this proceeding” was procedurally unfair. For the sake of completeness we note that the matters in ss.387 (a) – (h) are directed at facts and circumstances as they existed at the time of a dismissal, with the possible exception that s.387(h) allows a broader range of considerations. However, the question of fairness in a hearing in relation to an unfair dismissal application can have no relevance to the considerations in those sections. By taking into account procedural fairness related to the conduct of the hearing into the Respondent’s unfair dismissal the Commissioner was guided by an irrelevant matter, resulting in failure to take into account a material consideration – the prior warnings.

[85] For the reasons set out above, the Commissioner was bound to consider the prior warnings based on the evidence before her. If the Commissioner was of the view that the manner in which the prior warnings arose during the proceedings could result in procedural unfairness to either party, adjustments to the hearing schedule and process could, and should have been made to address this. For these reasons, appeal Ground 1 is upheld.

Ground 2

[86] In respect of Ground 2, we agree with the Appellant’s submission that the Commissioner mischaracterised the investigation process into the events of 31 January 2021. The evidence establishes that the Respondent’s colleagues raised concerns about her conduct on that date and in response, were asked to submit reports and accounts of the events. This is an orthodox process in circumstances where an employer receives reports of concerns in relation to the conduct of an employee and decides that an investigation is required. The conduct in the present case was of sufficient gravity to warrant an investigation. When serious allegations are made against an employee, it is entirely appropriate that a proper investigation of those allegations be conducted. To make findings without interviewing relevant witnesses would be procedurally unfair. There was no evidence before the Commission upon which a conclusion could have been based that the Appellant asked leading questions or in some way sought a particular outcome to justify a finding that the evidence was solicited. This finding was central to the Commissioner’s overall conclusions about the Respondent’s dismissal, and we agree that it constituted a significant error of fact. It follows that Ground 2 is upheld.

Ground 2A

[87] In respect of Ground 2A, the Commissioner concluded that there were delays in the process of dealing with the allegations against the Respondent and in finalising the termination. 42 The evidence before the Commission demonstrates that some of those delays were attributed to both parties,43 however there was no evidence that such delay caused prejudice to the Respondent. We therefore find that the Commissioner erred in finding that the delay in dealing with the allegations created any procedural unfairness.

[88] The Commissioner also concluded that a number of the relevant events occurred over a narrow period of time and following the Respondent’s lengthy absence from the workplace. The Appellant submitted that it is not correct that the events occurred over a narrow space of time as the events took place between 31 January to 9 March 2021 and that while the January incident occurred after the Respondent’s absence from work this could not be said of the incidents on 28 February and 9 March 2021. We agree that the Commissioner erred by concluding that the events took place over a narrow period of time as this finding plainly does not reflect the timeline of events. Accordingly, Ground 2A is upheld. 44

Grounds 3 and 4

[89] In respect of Grounds 3 and 4, the Commissioner concluded that the Respondent should be reinstated. In addition to the prior warnings that gave the Appellant little confidence the Respondent would not reoffend, the Commissioner made numerous findings relevant to whether reinstatement was an appropriate remedy including that:

“[159] The Applicant was cantankerous in providing her evidence regarding compliance with the necessary on-board obligations for the supernumery role. Her evidence on the required basic procedures was convoluted, and she engaged in arguments over her interpretation of semantics in the understanding of particular terms and procedures, aimed at complicating clear obligations

…

[163] The Applicant’s responses did not align with an employee being compliant with the procedures as set out in the training. Discharging the procedures was required in the safe operation of the plane and to effect her return to duty. The Applicant’s non-adherence to the requirements was unnecessary and belligerent.

…

[172] It is recognised that as a result of her medical condition, the Applicant stated the effect of such impeded her ability to present for duty. However, the Applicant did not, in these circumstances, provide the necessary, earliest reporting of her condition and situation to allow for alternative crewing plans. Whilst the Applicant raised that the supervisor and other employer representatives had not followed up on their duty of care to her, the Applicant had not followed procedure for the reporting of her condition or associated lateness. She had also only provided limited information of her medical condition. The Respondent had an obligation to explore the reasons with the Applicant, and to do so may have given them an understanding of her difficulties. However, equally taking into account the symptoms of the condition the Applicant raised, as frustrating the compliance with her obligations, it was open to her (and necessary as an experienced cabin crew supervisor) to have the relevant discussion with her employer. Telling the company doctor and not her direct supervisors or crewing contacts, was negligent. …

[178] The aviation industry is heavily regulated, with good reason, given the need to operate in a timely and safe manner in a potentially dangerous workplace.

…

[208] The Applicant’s case was built around the fact that she considered she had a better knowledge of the Respondent’s procedures than its representatives and those in LCC roles. For these reasons I consider that instead of just complying with procedures, in the circumstances of employment she contributed to the situation in somewhat belligerently relying on her experience and contrary view of those required duties and procedures. The assessment of her overall conduct was serious and contributed to the circumstances…” (emphasis added)

[90] These adverse findings and the previous warnings are inconsistent with the trust and confidence the Appellant ought to have in an employee who is in charge of a Cabin in such a safety critical industry and therefore are inconsistent with a decision to grant reinstatement. However, we note that it is not necessary to decide Grounds 3 and 4, given our following findings in respect of Ground 5.

Grounds 5 and 6

[91] Accordingly, taking into account the submissions in Ground 5 we find that the Commissioner erred in finding:

a) that the Appellant had not considered alternatives to termination. 45 Such evidence was before the commission;46 and

b) that the Respondent had not been previously warned about her lateness. 47 Such evidence was also before the commission.48

[92] On that basis we have decided to uphold Ground 5. In concluding that the dismissal was harsh, unjust and unreasonable, the Commissioner relied upon a number of reasons, two of which the Appellant raises as Grounds 6(a) and 6(b) of their appeal. Those reasons are:

a) that the Respondent herself considered the disciplinary procedure the subject of the proceedings, was invalid; 49 and

b) that the Appellant dealt with the disciplinary matters on an aggregate basis. 50

[93] In respect of Ground 6(a), this conclusion is at odds with all of the adverse findings of the Commissioner in respect of the Respondents conduct. Therefore, appeal Ground 6(a) is upheld.

[94] In respect of Ground 6(b), the Commissioner concludes that there were a number of matters that occurred in close proximity. On the basis of that conclusion, it would be unreasonable to deal with each of them separately. Such a proposition would require a significant amount of time to deal with each matter in turn, which is likely to cause a prolonged process of uncertainty for all parties including the Respondent and which would result in multiple disciplinary outcomes which is arguably inefficient and unnecessary. We are of the view that the Appellant took a reasonable path by dealing with the matters in aggregate and therefore find that Ground 6(b) is upheld.

Re-determination of the Respondent’s Unfair Dismissal Application

[95] In relation to the matters set out in s.396 of the FW Act requiring initial determination,

we find as follows:

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

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

(c) the Appellant was not a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and

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

Whether the dismissal was unfair

[96] It is next necessary for us to determine whether the Respondent’s dismissal was harsh, unjust or unreasonable having regard to the matters specified in s.387 of the FW Act. In relation to s.387(a), we find that there was a valid reason for the Respondent’s dismissal related to her character or conduct. We note that the reasons for the termination were set out in the termination letter 51 and that these reasons now exclude Allegation 5 as the Appellant withdraw this allegation during the course of these proceedings. Considering the factual matrix as a whole, we are satisfied that the allegations against the Respondent are sustained. We are satisfied the Respondent placed snacks in her bag and more likely than not removed them from the aircraft and subsequently misled the Respondent as to her response. Further, we are satisfied that the Respondent failed to follow the Appellant’s policies and code of conduct in regard to her performance in the supernumerary role and in regard to her obligations for timely attendance at work. Therefore, we find the Appellant had a valid reason to dismiss the Respondent from her employment.

[97] In relation to ss.387(b), (c), (d), (f) and (g), we agree with and adopt the conclusions reached by the Commissioner in relation to these matters.

[98] In relation to s.387(e), whether the Respondent was warned about unsatisfactory performance before the dismissal, we draw a different conclusion to the Commissioner on this matter. Considering the evidence before the Commission in relation to numerous previous warnings on matters of lateness over a number of years, 52 the role of a supernumerary on flights including the procedures required to be followed53 and the procedure for consuming food products on the flight,54 we are satisfied that the Respondent was fully aware of her obligations and that the decision-maker took into account that the Respondent had been warned about conduct of this type on previous occasions.55

[99] In relation to s.387(h), we note the following other relevant matters:

•  The Appellant had an obligation to investigate the allegations that had been raised about the Respondent and we find it did so in a proper, open manner. The Appellant sought observations and did not lead witnesses to a particular path. A failure to properly investigate those allegations would have amounted to a lack of procedural fairness.

•  In respect of the Respondent’s conduct as a supernumerary, we find that she was aware of her role and chose not to comply with the correct procedures. Further, during the initial hearing, she obfuscated, was vague and evasive in answering the relevant questions on this point. 56

•  The Respondent has been a long serving employee of the Appellant for 14 years including in supervisory roles. However, we are not satisfied that those circumstances outweigh the unsatisfactory conduct the Respondent engaged in when employed by the Appellant.

[100] Taking the above matters into account, we find that the Respondent’s dismissal was not harsh, unjust or unreasonable pursuant to s.387 of the FW Act. We do not find that any of the factors raised by the Respondent outweigh her prohibited conduct. Having found that the Respondent’s dismissal was not harsh, unjust or unreasonable, we are also satisfied that the Respondent was not unfairly dismissed.

Conclusion and Disposition of the Appeal

[101] For the reasons given, we grant permission to appeal, uphold the appeal and quash the decision. On reconsideration of the decision, we find that a proper balancing of relevant matters for the purposes of s.387 of the Act results in a conclusion that the dismissal of the Respondent was not unfair.

[102] The Orders of the Commission are:

1. Permission to appeal is granted.

2. The Appeal is upheld.

3. The Decision in [2022] FWC 1846 is quashed.

4. On a redetermination of the Respondent’s application in U2021/7086 pursuant to s.394 of the Act, the application is dismissed.

VICE PRESIDENT

Appearances:

Mr M Felman KC and Mr P Zielinski the Appellant.
Ms D Blackburn on her own behalf.

Hearing details:

2022.
Microsoft Teams (Video).
12 October.

Printed by authority of the Commonwealth Government Printer

<PR748791>

 1   [2022] FWC 1846.

 2   PR744510.

 3   At [154].

 4   At [159].

 5   At [166].

 6   At [174].

 7   At [163] – 164].

 8   At [172].

 9   At [178].

 10   At [185].

 11   At 186].

 12   Ibid [193]-[198].

 13   PR743794.

 14   [2012] FWAFB 5776.

 15   Ibid.

 16   Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at

[17] per Gleeson CJ, Gaudron and Hayne JJ

 17   Fair Work Act 2009 (Cth) s.400(2).

 18   [2012] FWAFB 3540.

 19   Ibid at [25].

 20   Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [43]

 21   O’Sullivan v Farrer and Another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ;

applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; Coal

& Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [44]-[46]

 22   (2010) 197 IR 266 at [27]

 23   Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30]

 24   (2000) 203 CLR 194.

 25   Ibid at [19] per Gleeson CJ, Gaudron J and Hayne J.

 26   Ibid at [21].

 27   House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ

 28   Ibid

 29   Wan v AIRC (2001) 116 FCR 481 at [30].

 30   [2021] FWCFB 3457 at [65]-[66] and [75]-[82].

 31   (2020) 295 IR 242 at [55].

 32   Decision at [182].

 33   Decision at [201].

 34   Decision at [201].

 35   [2021] FWCFB 3457.

 36   (1995) 185 CLR 410.

 37   Ibid at 430.

 38   Ibid.

 39   Ibid at 465.

 40   Ibid at 460 (McHugh and Gummow JJ).

 41  

 42   [2022] FWC 1846 [196]-[195].

 43   Transcript of Appeal Hearing 12 October 2022, [115].

 44   Ibid [127]-[128], [134]-[1350; See also Ms Anson’s Statement [32]; Appeal book [515]; see also Ms Rutherford’s statement [22]-[24], Appeal Book [483].

 45   [2022] FWC 1846 [196] [182].

 46   Statement of Ms Ali Rutherford at [26] - [27], [34].

 47   [2022] FWC 1846 [196] [188].

 48   Statement of Ms Vanessa Scott at [36] – [50] and extensively in annexures VS11 to VS16.

 49   [2022] FWC 1846 [196] [201].

 50   Ibid.

 51   [2022] FWC 1846 [150].

 52   Transcript from hearing 7 December 2021; PN 844 -863.

 53   [2022] FWC 1846 [161].

 54   Statement of Ms Ali Rutherford Paragraph 26.

 55   [2022] FWC 1846 [68].

 56   [2022] FWC 1846 [159], [163] and [208].