[2015] FWCFB 2599
The attached document replaces the document previously issued with the above code on 24
April 2015.
A typographical error has been corrected in paragraph 13. The word ‘expensive’ has been
changed to ‘extensive’.
Shomaice Zowghi
Associate to Vice President Catanzariti.
Dated 28 April 2015.
1
Fair Work Act 2009
s.604 - Appeal of decisions
Gregory
v
Qantas Airways Limited
(C2015/2160)
VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER BULL SYDNEY, 24 APRIL 2015
Appeal against decision [2015] FWC 1154 and order PR561162 of Commissioner Cambridge
at Sydney on 27 February 2015 in matter number U2014/7543 - public interest not enlivened
- permission to appeal refused.
[1] This is an appeal against a decision and order of Commissioner Cambridge dismissing
an application by Mr Steven Gregory (the Appellant) for an unfair dismissal remedy pursuant
to s.394 of the Fair Work Act 2009 (Cth) (the Act).1 The Commissioner found that the
Appellant’s dismissal from his employment with Qantas Airways Limited (the Respondent)
was not harsh, unjust or unreasonable. The Appellant has appealed the Commissioner’s
decision and the matter before us is solely on the question of whether permission to appeal
should be granted.
[2] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the
Act. Section 400(1) provides that permission to appeal must not be granted from such a
decision unless the Commission considers that it is in the public interest to do so. Further, in
such matters appeals on a question of fact may only be made on the ground that the decision
involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s.400 as ‘a stringent one’.2
[3] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“... 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 the result is counter intuitive, or that the legal principles applied appear
disharmonious when compared with other recent decisions dealing with similar matters.”4
[2015] FWCFB 2599 [Note: refer to the Federal Court decision dated 3
February 2016 [2016] FCAFC 7 for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2016/2016fcafc0007
[2015] FWCFB 2599
2
[4] 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 an appealable error.5 However, the fact that the Member at first instance made an error is
not necessarily a sufficient basis for the grant of permission to appeal.6 As we have
mentioned, s.400(1) provides that permission to appeal must not be granted unless the
Commission considers that it is in the public interest to do so.
Background
[5] The factual background of this case has been set out in some detail at paragraphs [5]-
[23] of the decision at first instance. The Appellant worked as a Qantas pilot for almost 20
years. Without reiterating the minutiae, the facts relevant to the grounds of appeal involve a
stopover in Santiago by 4 crew members - Captain Hawkins, the Appellant, Second Officer
(S/O) Pratt and S/O x. During the stopover, the 4 crew members were drinking at an Irish pub.
At one point, the Appellant separated from the others, was seen talking to someone and
returned to the group 25-30 minutes later, displaying signs associated with being highly
intoxicated. The crew took a taxi ride back to the hotel together. During the taxi journey, the
Appellant reached his hand under the arm of S/O x and held and massaged her left breast. He
was later seen passed out on the floor of his hotel room.
[6] The next morning, the Appellant was stood down by Captain Hawkins and told what
happened. He was remorseful and indicated he could not remember the events of the previous
night. It was suggested that the Appellant may have had his drink spiked at the Irish pub as
his behaviour was out of character.
[7] The Appellant was directed by the Respondent to undertake a drug test in Santiago.
The Appellant complied with this direction and the tests indentified the presence of cannabis
(specifically, tetrahydrocannabinol (THC)) in his system. The Respondent conducted an
investigation, the outcome of which was a finding that the Appellant had committed serious
misconduct involving the sexual harassment of S/O x. The Appellant was invited to show
cause as to why disciplinary action should not be taken. He provided written and verbal
responses. The Respondent, after considering them, terminated the Appellant’s employment
on the basis of serious misconduct.
Decision at first instance
[8] At the first-instance hearing, there was no contest as to whether the incident in the taxi
took place. Rather, the contest that emerged was directed at whether the Appellant’s actions
could properly be held to represent serious misconduct as was found by the Respondent. The
fulcrum of the matter then became an examination of whether the Appellant could be held to
have been reasonably responsible for the highly-elevated level of intoxication that gave rise to
his dissociative state.
[9] Counsel for the Appellant advanced the proposition that his level of intoxication was
substantially caused by drink spiking that occurred at the Irish pub during the 25-30 minute
period in which the Appellant was separated from the group. On this set of facts, he could not
be held responsible for the sexual harassment of S/O x and the basis for dismissal, serious
misconduct, was not valid. Expert witnesses, Dr Bull and Professor Drummer, gave evidence
to assist the Commission on whether the Appellant’s symptoms were consistent with drink
[2015] FWCFB 2599
3
spiking.7 The Appellant also advanced the alternative submission that even if the Commission
found that the Appellant was responsible for the elevated level of intoxication which led to his
behaviour, the penalty of dismissal was too harsh because of the personal circumstances of the
Appellant including, in particular, his long-standing, unblemished employment record.
[10] Counsel for the Respondent submitted that there was no dispute that when the
Appellant returned to his colleagues at the Irish pub, he had become highly intoxicated within
a fairly short period of time. The Respondent contended that objective analysis and
consideration of all the evidence supported the voluntary consumption of cannabis and not
drink spiking as the reason for the Appellant’s quick and dramatic intoxication at the Irish
pub. Therefore, it was submitted, the Appellant had clearly conducted himself in a manner
which meant that he was responsible for the level of intoxication. This conduct, and any
subsequent conduct such as the sexual harassment, undermined the employment contract and
operated to provide a sound, defensible and valid reason for dismissal.
[11] In his decision, the Commissioner made the following findings:
“[73] I have made a careful and thorough assessment of all of the evidence which both
supports and detracts from the competing propositions as to whether the applicant was
or was not an innocent victim of drink spiking. The conclusion that I am compelled to
make is that, on the balance of probabilities, having regard for the elevated level of
satisfaction required because of the serious nature of the conduct under examination,
the applicant was not an innocent victim of drink spiking. The significantly more
plausible proposition which is most strongly supported by the totality of the evidence
is that the applicant separated from his colleagues as a deliberate act in the pursuit of
imbibing cannabis, or a cannabis derivative, or some other substance. In all likelihood,
this action of the applicant occurred because of an invitation or suggestion made by the
person or persons with whom he had engaged in conversation shortly after arriving at
the Irish pub.
[74] It must be recognised that the applicant would not have intended to have become
as intoxicated as he did. There was considerable logic and reason inherent in the
commonsense argument as was advanced by Ms Nomchong. However, the applicant,
as a novice or perhaps experimental cannabis or other substance user, may not have
even known what he was given to inhale or he may have dramatically underestimated
the strength of the substance. Whatever may have been the precise reason for his
elevated level of intoxication, the applicant took a decision which had clear risk
attached to it. Unfortunately for the applicant that risk was realised and therefore
personal culpability for his subsequent sexual harassment misconduct must follow.
[12] After carefully considering all elements of s.387 of the Act, the Commissioner
concluded:
“[90] In this instance the applicant was dismissed for serious misconduct which
involved the sexual harassment of a female colleague. The particular actions of the
applicant involving the molestation of S/O x were not disputed. However, it was
asserted that these actions did not constitute serious misconduct because the applicant
was an innocent victim of drink spiking and therefore he could not be held responsible
for his actions.
[2015] FWCFB 2599
4
[91] Upon hearing and careful examination of the evidence I have concluded that the
actions of the applicant were not consciously intended. The applicant did not know
what he was doing when he molested S/O x, he was not in control of his faculties at
that time. However, from my analysis of the entire evidence which was presented I
have concluded that the applicant made a significant error of judgement earlier in the
evening which has established his personal culpability for the sexual harassment.
[92] The level of personal culpability for the consequences which have regrettably
followed from the applicant’s defective decision making are properly assessable in an
occupational context. The standards for personal responsibility are very high in the
case of an occupation such as a commercial pilot. Consequently, the substantive
reason for the applicant's dismissal has been held to be valid.
[93] Other matters relating to the personal circumstances of the applicant and the loss
of long-standing, unblemished employment are tragic. However, any personal
sympathy does not negate or diminish the seriousness with which the employer was
entitled to treat the misconduct of the applicant. In such circumstances it would be
wrong for the Commission to disturb the decision made by the employer to dismiss the
applicant.
[94] The dismissal of the applicant was not harsh, unjust or unreasonable.
Consequently, the application for unfair dismissal remedy is dismissed.”
The Appeal
[13] The eleven grounds of appeal contained in the Notice of Appeal are distilled into the
five grounds advanced in the Appellant’s written submissions. In summary, the Appellant
submitted that the public interest test is satisfied and it is therefore appropriate to grant
permission to appeal because:
a. it is a matter of general importance that justice is done and seen to be done.
Applicants ought to have their cases considered fairly. As such, the failure to
consider the extensive expert evidence and to deal with the critical argument that
the Appellant’s symptoms were wholly consistent with drink-spiking represented
a departure from the proper principles to be applied in decision-making;
b. there has been a denial of procedural fairness in circumstances where the
Commissioner placed critical weight on certain evidence in his decision-making
without putting the parties on notice as to the prospect of adverse findings in
relation to that evidence;8
c. critical legal errors of the kind identified in House v R (op cit) undermine the
decision-making process and these multiple errors warrant correction on appeal;
d. there was a failure to properly consider harshness including in light of authorities
of single instance misconduct in an otherwise long and unblemished career.9 This
outcome was also manifestly counter-intuitive given the lack of any formal
complaint and the unconditional acceptance by S/O x of the Appellant’s
explanation and apology; and
[2015] FWCFB 2599
5
e. the outcome is manifestly unjust given the circumstances of the case.
Consideration
[14] We have considered all grounds of appeal put forward by the Appellant. We note that
the reasoning process of the Commissioner is clearly set out at paragraphs [73]-[74], in
particular the following comments at [73]:
“I have made a careful and thorough assessment of all of the evidence which both
supports and detracts from the competing propositions as to whether the applicant was
or was not an innocent victim of drink spiking.”
[15] This is a clear reference to all evidence regarding the issue of drink spiking being
considered by the Commissioner in his decision. The Commissioner has explicitly noted that
he considered all evidence and formed the view that, on balance, the inference that the
Appellant’s drink was spiked was not plausible and did not weigh up against the evidence that
he knowingly consumed large amounts of alcohol and cannabis. This was a finding
reasonably open to him on the evidence. We are not persuaded that there is an error in the
Commissioner’s reasoning or that he was required to give further reasons.
[16] With respect to the contention that there has been a denial of procedural fairness, the
starting point in the Commissioner’s reasoning is that he found S/O Pratt to be a credible
witness at paragraph [58] and again at [70], and accepted his evidence that the Appellant
separated from the others at the Irish pub and appeared to be speaking to someone. Having
accepted these facts, the Commissioner then carefully considered further evidence to resolve
the particular issues relating to the apparent activities of the Appellant shortly after the flight
crew arrived at the Irish pub. We note that counsel for the Respondent took the Full Bench to
a number of points in the transcript where it is clear that the Commissioner found the facts
surrounding the Appellant’s conversation with the local man and his reasons for going
upstairs to be of significance.10 After putting a number of questions to the Appellant during
cross-examination, the Commissioner concluded at paragraphs [68]-[69] as follows:
“[68] The applicant’s evidence clearly sought to downplay the conversation that he had
with the unknown person or persons and it contrasted significantly with the evidence
provided by S/O Pratt and Captain Hawkins. A careful consideration of all of the
evidence regarding the applicant’s conversation with the unknown person or persons
has established that there was more than a fleeting, casual exchange with a passerby or
two. On any objective assessment the applicant engaged in a significant conversation
with this unknown person (or persons) and this occurred at a point in time that the
applicant says was before his memory loss. However the applicant did not offer any
evidence about the substance of the conversation or conversations that he had with any
unidentified person or persons.
[69] Regrettably for the applicant I have concluded that I am unable to accept as an
inference from his evidence that his conversation or conversations with unidentified
persons shortly after arrival at the Irish pub were matters of insignificance. Almost
directly after this conversation the applicant separated from the other flight crew and
he went upstairs. I have earlier rejected that the applicant went upstairs to look for a
vacant table as he suggested. Further, it is plainly implausible that on the way to the
toilet, having left his colleagues downstairs with whom he had been drinking all night,
[2015] FWCFB 2599
6
the applicant decided to purchase a drink from (sic) himself and leave that drink on the
bar while he then went into the toilet. There is also an amplified implausibility
attached to the proposition that the drink was spiked with cannabis or that the drink
was spiked with GHB and then the applicant ate food which contained THC.”
[17] It is clear that the Commissioner gave significant attention to the fact that the
Appellant met with someone he apparently knew. It is implicit in the attention the
Commissioner gave the issue during cross-examination that it was a matter of significance.
The Commissioner carefully considered all the evidence before him and he drew reasonable
inferences and developed them to form the view that the Appellant’s version of events was
implausible. The facts that the Commissioner accepted were that the Appellant’s drink was
not spiked, that he knowingly consumed alcohol and cannabis and that he put himself into a
state that resulted in him sexually harassing S/O x. Having formed this view, the
Commissioner logically concluded that in those circumstances, the dismissal was valid. We
accept that the findings he made were reasonably open to him on the evidence and contained
no appealable error. We do not find that there was any procedural unfairness.
[18] With respect to the Appellant’s submission that there was a failure to properly
consider harshness in light of authorities of single instance misconduct in an otherwise long
and unblemished career, we are not persuaded that there was any such failure. The
Commissioner explicitly considers this fact and makes the following findings and
conclusions:
“[83] In particular, I have great sympathy for a person in circumstances where their
unblemished long-standing career has been decimated as a result of one bad decision.
If I was personally assessing the disciplinary action in this instance I would have
probably avoided dismissal. However, it is not the role of the Commission to stand in
the shoes of the employer. Further, I understand and accept that because of the nature
of the applicant’s occupation and in particular, the requirement for the employer to
have confidence in the decision-making capabilities of its pilots that it determined that
dismissal of the applicant was appropriate.”
[19] We consider that this conclusion was reasonable and open to the Commissioner and
does not cause manifest injustice to the Appellant.
[20] The appeal process is not intended to provide an avenue for an unsuccessful party to
rerun their case, absent error on the part of the primary decision-maker. We are not persuaded
that there is any evidence before us of an appealable error that would warrant the grant of
permission to appeal.
Conclusion
[21] Having considered all submissions made by the parties, we are not satisfied that an
appealable error has been demonstrated by the Appellant, and no basis upon which the public
interest is attracted has been identified. We are not satisfied that it would be in the public
interest to grant permission to appeal. Accordingly, as required by s.400(1), permission to
appeal is refused and the appeal dismissed.
[2015] FWCFB 2599
7
VICE PRESIDENT
Appearances:
Ms K Nomchong SC instructed by Mr D Taylor of Turner Freeman Lawyers for the Appellant.
Mr R S Warren of counsel instructed by Ms M Ma of Ashurst for the Respondent.
Hearing details:
Sydney
2015.
8 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR563116
1 [2015] FWC 1154 and PR561162.
2 [2011] FCAFC 54 at [43].
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others [2011] FCAFC 54 at [44]-[46].
4 [2010] FWAFB 5343 at [27].
5 Wan v AIRC [2001] FCA 1803 at [30].
6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association
v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at
[28].
7 See 3(b), 3(c) and 3(r) of Appeal Book.
8 Rabel v Selmar Holdings Pty Ltd [2014] FWCFB 8037; John Holland Pty Limited v Salazar [2014] FWCFB 7813;
McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873 at [26]; Re ABEU; ex parte Citicorp Australia Ltd
(1989) 167 CLR 513 at 519; Suvaal v Cessnock City Council (2003) 200 ALR 1; Williams v Smith (1960) 103 CLR 539
at 545.
9 Barwon Health - Geelong Hospital v Colson (2013) 233 IR 364 at [157].
10 See transcript at PN377, 382, 385, 393, 2485, 2675 and 2681.
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
