Gregory, Steven v Qantas Airways Limited - [2016] FWCFB 2108

Fair Work Act 2009
s.604—Appeal of decision

Steven Gregory

Qantas Airways Limited
(C2015/2160)

DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER SAUNDERS

MELBOURNE, 3 MAY 2016

Appeal against decision [2015] FWC 1154 and Order PR561162 of Commissioner
Cambridge at Sydney on 27 February 2015 in matter number U2014/7543 – dismissal for
sexual harassment – defence of drink spiking – evidentiary issues.

[1] This matter has had a somewhat lengthy history. On 27 May 2014 Mr.Steven Gregory
applied under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. The matter
was heard and the following decisions were handed down:

 on 27 February 2015 Commissioner Cambridge of the Fair Work Commission (‘the
Commission’) dismissed the application1;

 on 24 April 2015 a Full Bench (Catanzariti VP, Harrison SDP, and Bull C) refused
an application for permission to appeal and the appeal was dismissed2;

 on 3 February 2016 the Federal Court3 (Buchanan, Bromberg and Rangiah JJ)
quashed the Full Bench decision of 24 April 2015 by a writ of certiorari and
granted a writ of mandamus requiring the Commission to deal again with the notice
of appeal filed on 19 March 2015 according to law4.

[2] The matter was listed for hearing for permission to appeal and for merit on 4 April
2016 and directions issued. Written submissions were filed in accordance with directions. We
have taken account of the written submissions and oral submissions made on 4 April 2016.

The Decision under Appeal

[3] In the decision under appeal Commissioner Cambridge decided:

 that there was a valid reason for termination within s.387(a), namely an incident
after dinner on 8 February 2014 during a stopover in Santiago, in which the
appellant touched the breast of a co-worker during a taxi ride (paragraphs 48-75);

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DECISION

E AUSTRALIA FairWork Commission

[2016] FWCFB 2108

 that the appellant was under the influence of alcohol and cannabis which he had
consumed (paragraph 73);

 that the appellant was not the victim of drink spiking (paragraphs 48-75);
 that the employer notified the appellant in writing of the reason for the dismissal

within s.387(b) (paragraph 76);
 that the employer provided an opportunity to respond within s.387(c) (paragraph

77);
 that there was a support person present during interviews within s.387(d)

(paragraph 78);
 that s.387(e) had no relevance (paragraph 79);
 that ss.387(f) and (g) had no relevance in this instance (paragraphs 80-81);
 that a range of matters were relevant matters within s.387(h), including his ‘long

unblemished work record’, his ‘genuine remorse and contrition’, and ‘the financial
and career impacts suffered as a result’ (paragraphs 82-89);

 that the dismissal for serious misconduct involved the ‘sexual harassment’ of a
female colleague was not disputed (paragraph 90);

 that the actions of the appellant ‘were not consciously intended’, and ‘he was not in
control of his faculties at that time’ (paragraphs 90-94);

 that the standards for commercial pilots are very high (paragraph 92);
 that the dismissal was not harsh, unjust or unreasonable (paragraph 94).

Appeal principles

[4] The principles applicable to an appeal from a decision arising from an application
pursuant to s.394 of the Act have been stated on many occasions. A Full Bench of this
Commission summarised the principles as follows:

“[7] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal
from a decision made by the FWC under this Part unless the FWC considers
that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an
appeal on a question of fact, be made on the ground that the decision
involved a significant error of fact.

[8] In the Federal Court Full Court decision 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”. The task of assessing whether
the public interest test is met is a discretionary one involving a broad value judgment.
In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission
identified some of the considerations that may attract the public interest:

[2016] FWCFB 2108

“... 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.”

[9] 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. 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.”5

(citations omitted)

[5] As the High Court said in House v The King6:

“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.”

The Appeal

[6] On appeal a number of the findings made by Commissioner Cambridge were
challenged, in particular the rejection of the appellant’s claim that he had been the victim of
drink spiking. The drink spiking finding was challenged on the basis that the Commissioner
failed to have regard to the submissions and evidence on whether the appellant’s behaviour
was indicative of and consistent with voluntary self-administration of alcohol and cannabis,
including expert evidence, the prevalence of drink spiking in Santiago, the conclusions of
others that drink spiking had occurred, and various evidentiary indications such as he had
only spent 6,000 pesos which was not enough to purchase sufficient marijuana and alcohol. In
addition the appellant submitted that the Commissioner did not afford procedural fairness by

[2016] FWCFB 2108

failing to put the appellant on notice that he would attach ‘significant weight’ to three issues
in concluding that the appellant went upstairs at a bar to consume cannabis, and other matters.

The Federal Court Decision

[7] In Gregory v. Qantas7, Buchanan J, with whom Bromberg and Rangiah JJ agreed,
said:

‘26 One challenge to Commissioner Cambridge’s decision by way of suggested
jurisdictional error concerned an alleged failure to deal with expert evidence about the
“most likely scenario” for the appellant’s symptoms of apparent intoxication, namely
that his drink had been spiked after he left the others.

27 Any theory on the part of the appellant this his drink had been spiked had to be
accommodated to the factual circumstance that the appellant still had elevated levels
of cannabinoids about 40 hours later. Accordingly, the appellant’s preferred
explanation involved not only drink-spiking but some form of administration of
cannabis as well. Assessment of both those possibilities was therefore required.

28 A conspicuous omission from the consideration of the issue of possible drink-
spiking was any reference to expert evidence on both sides about whether it was
likely, or unlikely, that the appellant’s symptoms and behaviour could be satisfactorily
explained without active consideration of the possibility that his drink had been
spiked. His own evidence did not go so far because he professed no memory of the
events. But the suggestion of drink-spiking had come from one of the persons best
placed to observe his behaviour, the female S/O. She had been the subject of his
uninvited but (she accepted) non-volitional attention.

29 The expert evidence was inconclusive in the sense that it ultimately left open the
possibility that the appellant had acted without proper attention to the amount of
alcohol and cannabis he ingested (assuming both were voluntary). It, therefore, did not
establish that the appellant’s behaviour was involuntary in the sense referred to by
Commissioner Cambridge at [55].

30 Nevertheless, the expert evidence did provide an explanation which was not foreign
to the first respondent’s own knowledge that its aircrew were sometimes targeted in
this way (i.e. by drink-spiking), although normally with a view to robbery.

31 It is possible that the first sentence in [73] is a reference to the expert evidence,
although that would not explain the lack of any further discussion. The better view is
that the first sentence of [73] refers to the evidence discussed to that point.

32 The consequence is that, apart from occasional references to counsel for the first
respondent having referred to “the medical evidence”, there was no reference to the

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competing expert evidence which was not all medical. The appellant’s primary expert
witness was a forensic pharmacologist and toxicologist. There was no discussion of
the expert evidence, the nature and character of which was not identified directly or
indirectly.

33 Where a judicial officer fails to refer to “material evidence” an inference may be
available that the evidence was overlooked or discarded (see e.g. Lu v Heinrich [2014]
NSWCA 349 at [80], citing Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at
[116]). I accept that a similar inference may arise in the case of a non-judicial tribunal.
In the present case, however, I do not think it is likely that the expert evidence was
overlooked: it was a central feature of the appellant’s case. It was the “fulcrum” on
which the case was balanced. What would be the significance if it was discarded?

34 In Appellant WAEE v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 184; (2003) 75 ALD 630, a Full Court said at 641 [47]:

[47] The inference that the tribunal has failed to consider an issue may be
drawn from its failure to expressly deal with that issue in its reasons. But that is
an inference not too readily to be drawn where the reasons are otherwise
comprehensive and the issue has at least been identified at some point. It may
be that it is unnecessary to make a finding on a particular matter because it is
subsumed in findings of greater generality or because there is a factual premise
upon which a contention rests which has been rejected. Where, however, there
is an issue raised by the evidence advanced on behalf of an appellant and
contentions made by the appellant and that issue, if resolved one way, would
be dispositive of the tribunal’s review of the delegate’s decision, a failure to
deal with it in the published reasons may raise a strong inference that it has
been overlooked.

(Emphasis added.)

35 Remarks to a broadly similar effect may be seen in the judgment of a Full Court in
Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR
178 at [47].

36 It seems plain from Commissioner Cambridge’s reasons that he felt able to reject
the appellant’s central thesis without any reference to the expert evidence. He did so
by reference solely to his assessment of the likelihood that any form of drink-spiking
had occurred. He obviously formed the view that the more likely explanation was that
the appellant had voluntarily put himself in harm’s way, contributed to his own
intoxication and should take responsibility for any consequences, including sexual
contact with the female S/O, however prepared she was to excuse his behaviour.

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37 In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431,
a Full Court considered a line of cases which have considered whether a failure to
advert to particular claims or evidence amounts to jurisdictional error. The Full Court
found that there was no “bright line” (at [64]), but generally approved observations by
Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
to the effect that the identified failure must affect “the exercise of a power”.

38 In the final analysis, it is not open to conclude in my view that
Commissioner Cambridge overlooked or simply discarded the expert evidence. The
better view is that he concluded that he did not need to discuss it. That judgment on his
part does not disclose jurisdictional error, although I do not doubt that a contrary view
of the desirability of some form of discussion of that evidence might readily be
reached on any appeal on the merits within the FWC. That, however, is not a matter
for this Court, at this stage.’

[8] The Court then turned to deal with a number of other issues again concluding that
there was no jurisdictional error in the decision at first instance (eg. at 40, 43).

[9] The Court discussed the procedure followed by the Full Bench on appeal (at 47-56)
and concluded that there was jurisdictional error in the Full Bench decision (at 56, 70-81):

‘58 The notice of appeal to the Full Bench was detailed. It contended, with some
justification in my view, that the Commissioner had failed to deal with a central
element of the appellant’s case. That may not, for the reasons I have explained, have
constituted jurisdictional error but it may be thought to have provided a foundation for
a respectable argument about appealable error.

59 Another ground of appeal was expressed as follows:

5. The learned Commissioner erred by failing to consider and/or place due
weight on other relevant evidence that supported the Appellant’s argument that
the Appellant had been the victim of drink-spiking, viz:

(a) drink spiking in the Bellavista area of Santiago was prevalent and
had been recognised as a danger by the Respondent such that it
had published warnings to staff in an internal staff notice;

(b) Second Officer “X” drew the conclusion that drink spiking had
occurred because the Appellant’s conduct changed markedly over
a short period of time and the inappropriate touching was entirely
out of character;

(c) the Appellant had only spent 6000 pesos whilst he was absent
from his colleagues, being an insufficient amount to purchase

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enough marijuana or the additional alcohol necessary to induce the
high level of intoxication demonstrated.

60 Such matters appear also to be ones where a failure by the Commissioner to refer to
them or discuss them may have justified some attention on the appeal.

61 Notwithstanding the direction it had given that only the question of permission to
appeal was to be dealt with in written and oral argument, the Full Bench seemed to
suggest that it had considered the matter before it by reference to the full ambit of the
appeal.

62 The Full Bench said (at [14] and [15]):

[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 appellant 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.

(Emphasis added.)

63 This appears to suggest that the Full Bench had considered the evidence for itself,
and made some evaluation of it. The difficulty with that approach would be that
counsel for the appellant had had no chance to develop submissions about the
evidence, in writing or orally, on the merits of the appeal. On the other hand, if the
evidence as a whole was not considered the Full Bench would not be in a position to
make such a finding either, in the absence of considering full argument.

64 After some discussion of some further findings of Commissioner Cambridge,
which had been emphasised by the first respondent in its submissions, the Full Bench

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referred to how Commissioner Cambridge had dealt with whether termination was too
harsh, saying (at [18]-[19]):

[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 appellant’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 appellant was
appropriate.”

[19] We consider that this conclusion was reasonable and open to the
Commissioner and does not cause manifest injustice to the Appellant.

65 Again, such a conclusion suggests full consideration of the issues bearing on that
question. This is a further area in which counsel for the appellant had no opportunity
to develop, or put, a submission about the merits of the appeal and, in particular,
whether dismissal from employment (for sexual harassment, not intoxication or
inability to perform duties) was disproportionately harsh.

66 The now classic distillation of the concept of a “harsh, unjust or unreasonable”
termination of employment, which identifies the elements of the composite term, may
be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines
Limited (1995) 185 CLR 410 at 465:

… It may be that the termination is harsh but not unjust or unreasonable, unjust
but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many
cases the concepts will overlap. Thus, the one termination of employment
may be unjust because the employee was not guilty of the misconduct on
which the employer acted, may be unreasonable because it was decided upon
inferences which could not reasonably have been drawn from the material
before the employer, and may be harsh in its consequences for the personal
and economic situation of the employee or because it is disproportionate to
the gravity of the misconduct in respect of which the employer acted.

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(Emphasis added.)

67 I earlier referred to the judgment which Commissioner Cambridge made about this
issue, and expressed the view that no jurisdictional error was apparent. However, the
Full Bench was not dealing with a question of jurisdictional error; its only task at this
stage was to evaluate whether there was an arguable case of appealable error and an
apparent public interest in hearing an appeal on the merits.

68 It was a notable circumstance that the appellant’s termination of employment was
not attributed to his state of intoxication, either from alcohol or cannabis. He was
dismissed for inappropriate touching of the female S/O. Commissioner Cambridge
found (at [51] and [54]) that the appellant had no conscious intention to do that, even
though on the Commissioner’s analysis of the facts the appellant was not the innocent
victim of drink-spiking.

69 In his discussion, the Commissioner was also very critical of the first respondent’s
decision not to call Captain Hawkins as a witness, notwithstanding that he was one of
the few people able to give direct evidence of the facts. In particular, the
Commissioner said (at [85]):

[85] I believe that it is open and reasonable to infer that in certain respects, the
witness evidence of Captain Hawkins would not have assisted the employer’s
case. I have inferred that if he had given evidence as a witness,
Captain Hawkins would have confirmed, in particular, that the excessive
level of intoxication of the appellant on the night in question meant that he
was dispossessed of his faculties and not conscious of his behaviour.
Further, I have inferred that Captain Hawkins would have confirmed the
genuine remorse and contrition shown by the appellant on the day and
days following the incident. However, these are issues of fact that I have
found in favour of the applicant and which do not go directly to the more
significant evidence surrounding the activities of the applicant at the Irish pub
in the period of time immediately before he went missing.

(Emphasis added.)

70 Such matters were capable of bearing directly on the question of whether the
decision to terminate the appellant’s employment was disproportionate to the
circumstances of his conduct as found by the FWC on the evidence before it, including
all the expert evidence of the likely cause and effects of the appellant’s state of
intoxication, which the first respondent did not have when it decided to dismiss the
appellant. The grounds of appeal also raised matters of that and a similar kind as
follows:

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15. The learned Commissioner erred in failing to find that the dismissal of the
Appellant was harsh in light of his findings that:

(a) it had been “soundly established” that the Appellant had a[n]
unblemished work record;
(b) the Appellant had been employed by the Respondent for 20 years;
(c) the Appellant had not intended to become as intoxicated as he did;
(d) the actions of the Appellant were not consciously intended and he
had lost a significant amount of self-control and that at the time of the
inappropriate touching he was dispossessed of the ability to act with
conscious intention;
(e) the Appellant had exhibited genuine remorse and contrition;
(f) there were considerable financial and career impacts arising from the
dismissal; and
(g) if personally assessing the disciplinary action, the learned
Commissioner would have avoided dismissal.

16. Further, in failing to find that the dismissal was harsh, unreasonable and/or
unjust, the learned Commissioner failed to take into account and/or place due
weight on the fact that Second Officer “X”:

(a) considered the Appellant’s conduct as completely out of character;
(b) accepted that his conduct was due to drink-spiking;
(c) unconditionally accepted the Appellant’s apology the following day;
(d) felt so comfortable in the Appellant’s company that she went out to
dinner with the Appellant the night after the event;
(e) advised the Respondent that she had no difficulty flying home in the
same crew as the Appellant;
(f) never made any official complaint;
(g) was not called by the Respondent to contradict any of the above
matters.

71 The Full Bench, however, immediately after dismissing the challenge to the
harshness of the decision at [19], concluded by saying (at [20]):

[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.

72 Those statements are not consistent with an examination focussed upon whether the
appellant had an arguable case of appealable error. They do not appear to address the
public interest in any wider dimension. They do not refer to whether there was any
possibility of showing a significant, relevant, error of fact. The statements appear to be

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conclusions about matters which had not been argued in the limited proceedings
undertaken by the Full Bench.

73 I have not done justice to the full scope of the proposed appeal, but even the
selected matters I have mentioned or extracted might appear to be ones which might
merit attention by way of review in a merits appeal. This does not appear to me to be a
case where the facts and questions of principle are so straightforward that it might
confidently be said at the outset that no useful purpose could be served by further
attention to them.

74 Those matters are ultimately matters for judgment by the FWC, rather than by this
Court. However, in the circumstances of the present case they raise for more direct
consideration whether it was really open to the Full Bench to decide in a preliminary
way that permission to appeal should not be given because the appeal could be said to
have no apparent prospects of success.

75 In my view, without hearing the parties on the merits of the appeal, the present was
not a case where all the elements of the appellant’s appeal, including those going to
the exercise of judgments about whether the dismissal was harsh in all the proven
circumstances, could be rejected by the Full Bench with statements that the findings
made by him were “open” to the Commissioner.

76 That is a test which more often applies to the undoubted existence of a discretion,
rather than the establishment of a statutory standard. The present case is not one where
that important distinction requires further consideration because, in my view, the
Full Bench clearly applied the wrong tests to the performance of its own functions and
committed jurisdictional error as a result.

77 The Full Bench was not dealing with the appeal; it had decided not to do that in the
first instance. It could not determine the question of permission to appeal upon a view
of the overall merits of the appeal without hearing the parties, unless it was open to
conclude that the appeal, if argued fully, had no reasonable prospects of success, and it
was therefore not in the public interest to grant permission to bring it, whatever other
features it had. But the Full Bench reasons do not state any such process of analysis. In
my respectful view, the Full Bench based its decision on matters which had not been
adequately argued and were not matters for its attention at that stage unless plainly
beyond respectable argument. That was a jurisdictional error.

78 In my view, the Full Bench misunderstood and failed to perform the task
committed to it by s 400(1) of the FW Act. It also exceeded its jurisdiction by
purporting to deal with the merits of the appeal without a proper hearing.’

[10] We accept that there was no jurisdictional error in the Commissioner’s decision in the
limited discussion of the expert evidence and other matters. We note in particular the

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description of the Commission’s task in paragraph 38. The Commission as presently
constituted must, among other things, consider the issue of House v. King and other
authorities. We accept that the ‘better view’ is that Commissioner Cambridge concluded that
he did not need to discuss the expert evidence. Is that view sustainable when that evidence is
considered?

The expert evidence on drink spiking

[11] The expert evidence was evidence led from:

 Dr.Donna Bull;
 Professor Olaf Drummer;
 Dr.Hosegood

[12] The expert evidence was not fully consistent. The appellant submitted that Professor
Drummer considered that the most likely scenario to explain the appellant’s conduct was the
introduction of a drink spiking substance such as GHB or a benzodiazepine, and maintained
that view during cross examination8. Dr.Bull was not available for cross examination, and her
view was similar to that of Professor Drummer on that issue9. The respondent submitted that
Dr.Hosegood considered that it was unlikely that cannabis had been used to spike the
appellant’s drink, and that the reason for the appellant’s positive cannabinoid test was that the
appellant had inhaled cannabis. He thought that the most likely explanation for the appellant’s
behaviour was a combination of cannabis and alcohol10.

[13] Professor Drummer is a forensic pharmacologist and a toxicologist involved in the
analysis of drugs and poisons and in the interpretation of their biological effects for over 30
years. He provided two formal reports, and gave evidence. In his first report11 he outlined the
relevant background, which was that on 8 February 2014 Mr. Gregory checked into his hotel
in Santiago, Chile, after a 14 hour flight from Sydney. He slept for about three hours until 5
pm, and then other members of his crew met in his room between 5.45 and 6.30 pm. Each had
about 3-4 rum and coke drinks, then they went to a restaurant where Mr. Gregory had a small
beer with Captain Hawkins and Mr. Pratt while waiting for food, and later shared a bottle of
white wine with another crew member. The crew then travelled to an Irish pub elsewhere and
Mr. Gregory had another beer upstairs before joining the rest of the crew about 25 minutes
later. At that time Mr. Gregory was unintelligible and appeared unsteady on his feet. The crew
returned to the hotel about 12 midnight, and at 1.30 am Mr. Gregory was found naked lying
prone in his room with the door open, and at 2 am he left a message for his wife which was
largely unintelligible, and a Skype later showed him again unintelligible.

[14] He woke about 1.30 pm the next day. At 4.24 pm on Monday 10 February 2016, a
urine sample was collected from him for the purpose of drug testing. The test showed the
presence of cannabis above 30 micrograms per litre.

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[15] The amount of alcohol ingested up to midnight was about 10 standard drinks, and the
lapse of time during the evening would have eliminated about 6 standard drinks, leaving
about 4 standard drinks in his body at midnight.

[16] Professor Drummer said12 that ‘There can be considerable uncertainty about this
calculation if the number and volume of drinks were much different’. He said that Mr.
Gregory was the only one adversely affected by alcohol consumption and had not consumed
more alcohol than anyone else. After dealing with the heavy build, and pattern of alcohol
consumption of Mr. Gregory, Professor Drummer described the effects of alcohol, and the
effects of cannabis. Alcohol is a depressant and can lead to slurred speech and unsteadiness
on his feet, while cannabis acts to cause a feeling of relaxation and wellbeing, causing slurring
of the speech, increased heart rate, and can be consumed in various ways. Cannabis does not
cause impairment that persons are unintelligible let alone in a short period of time.

[17] Turning to deal with questions raised by Mr. Gregory’s legal team, he said;

‘13. My opinion as to the likely level of intoxication of F/O Gregory in the evening of 8
February 2014.

 On the basis of the stated consumption of alcohol in the evening of 8
February F/O Gregory likely level of intoxication was expected to be low to
moderate. This is based on the approximate calculations performed earlier
and allowing for somewhat more consumption than estimated.

14. My response to paragraphs 39 to 42 of Dr Hosegoods’ statement and in particular
my opinion as to whether the behaviour and conduct of F/O Gregory as described is
consistent or inconsistent with: a) alcohol consumption as described; b) cannabis use as
reflected in the urine test; c) a combination of alcohol and cannabis use; d) any
substance that may be used in drink spiking; and e) any other explanation (and if so,
what).

 It is my opinion that the behaviour recorded for F/O Gregory was not
consistent with the stated alcohol consumption as outlined earlier;

 The cannabis test in urine only measures presence of past exposure to
cannabis (as THC). This positive result was not quantified in that it is not
known how much higher, if any over 30 ng/mL the result actually was,
although almost 3 days later this result returned a negative, suggesting the
amount in urine was relatively low. The presence of cannabis metabolite in
urine cannot be used to determine when or how much exposure occurred to
cannabis, let alone what effect if any it was likely to have had on the night of
the 9th February. It is possible that cannabis has no appreciable effect at all if
exposure occurred some hours or more before the evening of the 9th

February.

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 As indicated earlier the unintelligible talk, lying prone on the floor semi-
naked is not consistent with cannabis use or even moderate alcohol intake
with cannabis. The circumstances indicate that F/O Gregory went from
slightly alcohol affected state (assumed based on the alcohol intake) to an
extreme state of intoxication in about 30-60 minutes. It is unlikely that even
alcohol could cause this since the amount of alcohol that would need to be
consumed to cause this state would take well over an hour, and possible
hours. Drink spiking during the restaurant meal was unlikely since bottled
wine was consumed.

 The most likely cause of this sudden onset of extreme intoxication is
consumption of a quick acting drug in the Bellavista bar. This could have
occurred by occurred by drink spiking with a drug. While benzodiazepines
can cause this effect it is likely that these would have been detected by the
first urine test unless a benzodiazepines was present that is not measured as
part of the Australian Standard AS4308. Gamma-hydroxy-butyrate (GHB)
has been suggested before by another expert; this would be regarded by me
as a much higher likelihood, and would not be detected by the laboratory.

 It is also relevant that the adverse effects of alcohol and drugs persisted for at
least 2-3 hours. While inhalation of cannabis will cause a quick onset of some
symptoms the rapid distribution of this drug in the body means that any acute
intense effects seen in the first 10-30 minutes dissipate rapidly and are not
expected to be present 2-3 hours later (other than relatively minor deficits in
cognition and psychomotor function).

 Laboratory tests such as those conducted on the urine of F/O Gregory used
techniques that apparently conform to AS4308, an Australian standard for
drugs of abuse testing in urine. This Standard is only applicable for
workplace monitoring for drugs of abuse and applies cut-offs for reporting.
This would mean that low concentrations of drugs could be present bit would
not be reported (or even detected) by the laboratories concerned. The number
of drugs included in these drug screens is also quite limited. Forensic
laboratories apply much more sensitive and appropriate techniques when
drug facilitation is suspected.”13

[18] In a supplementary report14, Professor Drummer said;

‘4. Does this evidence change my opinion over possible exposure to a benzodiazepine
or GHB? (Q3).

[2016] FWCFB 2108

The absence of a benzodiazepine metabolite in testing by the Victorian Institute of
Forensic Medicine does indicate that exposure to a benzodiazepine was most unlikely
(at least those detected by the method which includes those available in Australia).

It does not change my view that GHB could have been used/administered to the
victim. The symptoms displayed by Gregory are still broadly consistent with GHB
exposure, however given its short half-life its presence in urine cannot be detected
beyond about 6 hours post administration.

5. The significance of cannabis metabolite of about 39 µg/L in relation to his
symptoms and behaviours (Q4)

The concentration of the cannabis metabolite of about 39 µg/L is very similar to that
found by RASL. While they reported 30 µg/L, subsequent review of their laboratory
notes indicates an approximate concentration in the mid 30’s. This is a low
concentration and does not of itself suggest use of large amounts of cannabis or
chronic exposure to cannabis.

As to whether it explains his behaviour this is more complex. If cannabis is inhaled as
is most common the psychoactive effects occur within minutes and dissipate within an
hour or three if low amounts have been used, as it would appear from the urine result.
Since his physical and mental state got worse with time it suggests a substance(s) has
been orally ingested. Oral ingestion takes some time for maximum absorption (usually
1 -2 hours). It is possible that cannabis was taken orally through some food product
(biscuit, or other food product laced with cannabis, or cannabis oil/resin). When this
occurs THC is slowly absorbed and together with its hydroxy metabolite imparts
pharmacological changes seen with smoked cannabis, however the maximum effect
may not occur until an hour or more later. Only small amounts of cannabis taken this
way would cause these effects particularly in combination with significant alcohol.

6. The relevance of the additional drugs detected by the Victorian Institute of Forensic
Medicine (QS-9).

The dextromethorphan is an antitussive (cough suppressant) and is found in numerous
over- the-counter products including Robitussin MultiSystem Gold. The consumption
of recommended doses, i.e. 10 mL would not elicit any behavioural or other adverse
symptoms and would not contribute to any additional adverse effects when consumed
with alcohol.

Levorphanol or its isomer was detected by the laboratory as well. This is most likely a
metabolite of dextromethorphan, and merely confirms prior use of this cough syrup.

[2016] FWCFB 2108

The laboratory only reports detected when the concentrations are very low as was the
case for dextromethorphan and levorphanol (or isomer). This result would be
consistent with use of Robitussin MultiSystem Gold.

Guaifenesin is not detected by the laboratory method.

Phenylephedrine is not readily detected and would be rapidly removed by the body;
hence its absence in the urine was not surprising.

The paracetamol concentration was also very low and would be consistent with prior
us e of this over-the-counter analgesic or combination medicines.

The testing conducted by the laboratory uses very sensitive methodology designed to
detect trace amounts of drugs that may have been administered clandestinely in
suspected drug facilitated assaults. Given this sensitivity and the variability of urine
excretion of drugs this method could detect drugs for many days, even weeks after
administration.

7. Most likely reason for the impairment shown by Gregory? (QlO)

As indicated in my previous statement and my oral evidence in the hearing the adverse
behavioural changes in Gregory in the circumstances presented to me indicate that
something additional to the alcohol consumed before 11 pm (before going to bar
upstairs) was the precipitating factor for his sudden declining state. The ingestion of
GHB in the bar upstairs could explain these symptoms. It is also possible that he
consumed (clandestinely) cannabis orally and that this will be absorbed slowly and
with the significant amounts of alcohol consumed cause unintelligible speech and
unsteadiness on his feet, frisky behaviour and ultimately a period of sleep consistent
with extreme drunkenness.’

[19] Professor Drummer was cross examined about his evidence, and agreed that
calculations of number of drinks would be different if the crew had drunk overproof rum
rather than underproof rum, difficulties of calculating the exact number of drinks taken, and
the possibility that Mr. Gregory drank more than Professor Drummer had been instructed and
assumed for the purposes of making his statements15, the possible interactions between
alcohol and cannabis, the variations in strength of cannabis. He agreed that the science was
not settled in relation to alcohol and cannabis being synergistic rather than additive16. He was
asked a number of other matters including the effects on a naïve or one off user of cannabis,
and other issuess. He maintained his evidence that ‘cannabis consumption does not normally
lead to people lying on the floor – even with alcohol’17. In answer to the question ‘It wouldn’t
be immediate?’ Professor Drummer said: ‘---so again one drink in 25 minutes, as I
understand it, so from –I hear you about other people saying how they felt at the time. I don’t
know, they just made their own level of sobriety, but, as I understood it, there was quite a
sudden change in that 25 minutes. Now, was that the addition of a lot of alcohol, plus a bit of

[2016] FWCFB 2108

cannabis? If a lot of alcohol was consumed, for whatever reason, then it does take some time
for the alcohol to be consumed into the large amounts. If he drank, for example, six drinks,
it’s probably possible in 25 minutes if he really tried, but it wouldn’t be absorbed for an hour
or two; so it could explain the delayed effects in the hotel room and maybe- there will be some
absorbed obviously in that first half hour and would perhaps explain some of those
behaviours in the taxi, and in the actual restaurant or bar, but that’s a fairly serious amount
of drinking to occur in 25 minutes. As to whether that’s consistent with this person or- I’m not
in a position to answer that question. That was really the basis of my reservation - simply just
an alcohol/cannabis combination caused his behaviour. That’s my opinion.’18 In re-
examination, Professor Drummer recalculated alcohol intake and said that ‘my final
calculation doesn’t change much’19. He was asked about a number of other matters.

[20] Dr.Bull provided a statement in which she said that;

“It is my opinion that the behaviour and events described by FO Gregory and his
colleagues are most likely attributable to a gamma hydroxybutyrate (GHB) drink-
spiking incident. GHB drink-spiking is reportedly common in the Bellavista district of
Santiago (based on UK Government travel advisory and Qantas advice to staff).

In response to question 3(c) (ii):

On the information provided, I am unable to explain the presence of cannabis
metabolites in FO Gregory’s urine sample collected in Santiago.

In response to question 3(d):

The symptoms typically associated with GHB intoxication include disinhibited
behaviour, euphoria, confusion, unrousable unconsciousness, diminished cognitive
skills, diminished motor skills/muscle relaxation, drowsiness, sedation, and amnesia
(Couper and Logan, 2014). These effects occur rapidly, with a general consensus in
scientific literature that GHB takes effect approximately 15 to 30 minutes post
ingestion and lasting two to five hours (Centre for Public Health, 2005; Couper and
Logan, 2014). Some form of memory loss or amnesia is commonly reported following
GHB ingestion, which is deliberately chosen for its amnestic properties. Academic
literature describing its effect on memory as similar to a series of still photographs
depicting static and unlinked images of events that occurred during the period of
intoxication (Centre for Public Health, 2005). Following ingestion of GHB individuals
may fall into a coma that is typically self-limiting with spontaneous awakening
occurring after a few hours, often accompanied by an agitated state (Centre for Public
Health, 2005). GHB is easily manufactured from a simple recipe, and easily
administered surreptitiously. It is a clear liquid that has a mild, salty taste that is easily
disguised in alcoholic beverages.

[2016] FWCFB 2108

GHB was not a targeted substance in FO Gregory’s initial urine drug test, and
considering the lapse of 40 hours between the likely ingestion of the substance and
provision of the sample it would not have been detectable in the sample. GHB is
rapidly eliminated from the body, with peak urine concentrations observed within four
hours of administration and undetectable in urine after 10-12 hours (Couper and
Logan, 2014)”20

[21] Dr.Hosegood provided a statement in which he said that:

‘35. In my opinion, the most likely explanation for how Mr Gregory came to have
cannabis present in his urine when the drug test was performed on Monday 10
February 2014 is that he smoked or ingested cannabis. The concentration of
cannabinoids present in Mr Gregory’s urine at the time of the test on Monday 10
February 2014 is inconsistent with Mr Gregory having inhaled secondary smoke.

36. Since the other crew members described Mr Gregory’s behaviour as having
changed in the 20 to 30 minutes he was away from the crew, it is more likely that Mr
Gregory smoked cannabis than that he ingested it. Smoking cannabis results in more
rapid onset of action (within minutes), and higher blood levels of cannabinoids,
compared to oral administration. Plasma values of THC appear rapidly and peak at
about 15 min after the start of smoking (Huestis, M.A. (2007). Human cannabinoid
pharmacokinetics. Chem.Biodivers. 4: 1770-1804). Whereas the central nervous
system and physiological effects occur within minutes by the smoking route or by
vapourization, these effects proceed on a time scale of hours in the case of oral
ingestion. Concentrations of both parent drug and metabolite peak between
approximately 2 - 4 hours after oral dosing, and decline over several days. (Huestis, M.
A. (2007). Human cannabinoid pharmacokinetics. Chem.Biodivers. 4: 1770-1804).

37. In my opinion, it is unlikely that Mr Gregory was the victim of drink spiking using
THC in a liquid form for the following reasons:

(a) The use of THC in drink spiking is not something that is reported as
occurring in any of the literature that I have read. The searches I performed
did not reveal any medical literature on the use of THC in drink spiking.
My searches should have revealed any medical literature in the English
language which considered drink spiking generally, including in South
America. Cannabis is often detected in the investigation of alleged or
suspected drug-assisted crime but is thought to be as a result of known use
by the alleged victims or possibly through unknowingly ingesting cannabis
in a food substance. (Toxicological Aspects of Drug-Facilitated Crimes, 1st
Edition, edited by Pascal Kintz, 2014);

(b) Cannabis is not water-soluble, it is oil-soluble and so in liquid form, THC
is an oily resin which is not very miscible with alcohol and would form a

[2016] FWCFB 2108

residue on the top of a person’s drink. THC in a liquid form also has a
strong bitter taste that would be easily detected by the person consuming
the drink (this was confirmed by Dr Appleton); and

(c) Given that Mr Gregory had eaten a large meal, if he had ingested THC in a
liquid form, it is likely that this would have taken more than 30 minutes to
have an effect on him. However, the other crew members suggested that
Mr Gregory’s behaviour changed in the 20 to 30 minute period when he
was away from the rest of the crew.

38. In my opinion, it is also unlikely that Mr Gregory unknowingly ingested cannabis
orally earlier in the day on 8 February 2014. I have read the witness statement of Mr
Gregory filed in these proceedings on 28 July 2014. In his witness statement Mr
Gregory describes what he ate on 8 February 2014 as follows:

(a) Full meal on-board the aircraft 30 minutes before descent;

(b) An egg and salad sandwich which he purchased from a supermarket in
Santiago shortly after arriving at the hotel at 2pm;

It is highly unlikely that any of these foods contained cannabis. To my knowledge, the
main method of ingesting cannabis in food is through baked goods.

Possible explanations for Gregory’s behaviour

39. The behaviour that is described in the extracts of the witness statements set out in
Mr Gregory’s letter of 18 March 2014, including disinhibition and amnesia, could be
caused by alcohol alone, or more likely, a combination of cannabis and alcohol.
Alcohol and cannabis have similar actions. At low doses they tend to produce
euphoria and stimulation and at higher doses, sedation. Many studies have shown that
when both drugs are used in combination, the impairment is additive (i.e. comparable
to the sum of the effects of alcohol and THC when given alone) and some studies are
suggestive of a synergistic relationship (i.e. more than the combination of either drug
separately). (Drug and Alcohol Dependence 73 (2004) 109-119 J.G. Ramaekers a, G.
Berghaus b, M. van Laar c, O.H. Drummer; Bramness JG, Khiabani HZ, Mørland J
(2010) Impairment due to cannabis and ethanol: clinical signs and additive effects.
Addiction105:1080-1087; Lukas, Scott E; Orozco, Sara Drug and Alcohol
Dependence, 2001, Volume 64, Issue2; Toxicological Aspects of Drug-Facilitated
Crimes, 1st Edition, edited by Pascal Kintz,2014).

[2016] FWCFB 2108

40. In my opinion, the most likely cause of Mr Gregory’s behaviour on the night of 8
February 2014 as described by the other crew members is that he smoked cannabis and
consumed alcohol. This is consistent with a change in his behaviour in a 20 to 30
minute period and with the presence of cannabis in his urine approximately 40 hours
later. It is also possible that Mr Gregory consumed more alcohol when he was away
from the crew, which could also explain the behaviours described.

41. Due to the fact that the drug test was conducted approximately 40 hours after the
incident, it is possible that there was another substance in Mr Gregory’s system at the
time which had since been eliminated or was not tested for. This could have included
the benzodiazepine Rohypnol or GHB. However, in my opinion it is unlikely that Mr
Gregory unknowingly ingested GHB or Rohypnol in the 20-30 minutes that he was
absent from the crew. In order for either GHB or Rohypnol to explain Mr Gregory’s
behaviour when he returned to the group, he would need to have taken the drug very
soon after leaving the group. GHB has an onset of action of between 15 and 30
minutes and the duration is 2-4 hours whereas for Rohypnol the onset is around 20-30
mins and peak levels are at around 2 hours (Medical Toxicology of Drug Abuse:
Synthesized Chemicals and Psychoactive Plants by Donald G. Barceloux). In contrast,
smoking THC can have an effect within a few minutes.

42. If either GHB or Rohypnol were present in Mr Gregory’s system, then one would
have to postulate a scenario where one of these substances as well as cannabis was
consumed by Mr Gregory. In circumstances where Mr Gregory tested positive for
cannabinoids and admits to drinking alcohol, it is more likely that his behaviour was
caused by a combination of cannabis and alcohol. This is consistent with the results of
the subsequent drug test and is the simplest (and therefore the most likely) explanation
for Mr Gregory’s behaviour.”21

[22] He also responded to the report of Dr.Bull, stating;

‘47. I note that Dr Bull’s calculations and conclusions, and my calculations in
paragraphs 44 and 45 above, do not consider any additional alcohol that Mr Gregory
may have consumed before going out for dinner, during the period that he was away
from the other crew members, or after returning to his hotel room that evening. I
further note that self-reported alcohol intake is often under estimated.

48. I agree with Dr Bull’s observations concerning the behavioural and psychological
features of acute cannabis intoxication and with her observations that intoxication
usually occurs within minutes of smoking cannabis and can last up to four hours,
although typically effects last two hours. I also agree with Dr Bull’s observation that if
cannabis is consumed orally, onset may take hours and the effects may be longer
lasting. Accordingly, if it is assumed that Mr Gregory’s behaviour changed during his
20-30 minute absence from the crew, this change in behaviour is unlikely to have been
caused by the oral ingestion of cannabis.

[2016] FWCFB 2108

49. I further agree with Dr Bull’s conclusion that the behaviours described by Mr
Gregory’s colleagues could be attributable to cannabis intoxication.

50. I disagree with Dr Bull’s conclusion that the impairment of Mr Gregory’s speech
in the voicemail message that he left for his wife is not consistent with cannabis
intoxication, particularly when combined with alcohol. Additional alcohol intake alone
could also explain Mr Gregory’s impaired speech.

51. I disagree with Dr Bull’s conclusion that the most likely explanation for the
behaviours described by Mr Gregory’s colleagues is that his drink was spiked with
GHB. This conclusion supposes that a third substance (along with alcohol and
cannabis) was somehow consumed by Mr Gregory on the night of Saturday 8
February 2014.

52. Dr Bull states in her report that she is unable to explain the presence of cannabis in
Mr Gregory’s system based on the information she was provided. Dr Bull was asked
to assume that Mr Gregory is not aware of consuming cannabis during the period of
his employment with Qantas. If this assumption is correct, and Dr Bull’s conclusion
that Mr Gregory was given GHB is correct, then the only possible explanation for the
presence of cannabinoids in Mr Gregory’s urine 40 hours after the incident is that
cannabis was introduced at the same time as the GHB or in association with it. I am
unaware of any evidence from the literature that has GHB and cannabis combinations
as a drink spiking substance.22

[23] He was cross examined about his evidence23, and a large number of aspects of his
evidence was discussed during the evidence he gave.

Submissions on expert evidence

[24] The appellant submitted at first instance that Professor Drummer considered that the
most likely scenario to explain the appellant’s conduct was the introduction of a drink spiking
substance such as GHB or a benzodiazepine, and maintained that view during cross
examination24. Dr.Bull was not available for cross examination, and her view was similar to
that of Professor Drummer on that issue who adopted her evidence25. The respondent
submitted that Dr.Hosegood considered that it was unlikely that cannabis had been used to
spike the appellant’s drink, and that the reason for the appellant’s positive cannabinoid test
was that the appellant had inhaled cannabis. He thought that the most likely explanation for
the appellant’s behaviour was a combination of cannabis and alcohol26.

[25] On appeal the appellant submitted that the Commissioner ‘made no reference
whatsoever to the extensive expert scientific evidence that was called’. However, the
Commissioner did say:

[2016] FWCFB 2108

‘[39] Mr Warren made submissions which analysed the evidence of the
activities of the appellant whilst he was at the Irish pub. Mr Warren said that
further medical evidence including the drug test results, when considered
together with the evidence of the appellant’s activities at the Irish pub, did not
support the proposition that the appellant had been a victim of drink spiking.

[40] Mr Warren submitted that the evidence confirmed that at the time of the
sexual harassment incident the appellant had consumed a significant amount of
alcohol, and he also had a significant level of cannabis (THC) in his system.
Further, Mr Warren said it was important that subsequent testing had revealed
no elevated level of benzodiazepines. According to the submissions made by
Mr Warren, there was no medical evidence to support the appellant’s
proposition of drink spiking, but instead, there was a strong foundation for the
proposition that the appellant had deliberately smoked cannabis during the 25
to 30 minute period when he had separated from his colleagues.’27

[26] These paragraphs are a brief summary of submissions on the expert evidence put by
Qantas, but not of those put by Ms.Nomchong. Ms.Nomchong for Mr.Gregory submitted that
Professor Drummer endorsed Dr.Bull’s report, and said that Dr.Hosegood is an employee of
Qantas not independent as Professor Drummer is. She submitted that:

‘9. Both Professor Drummer and Dr Bull opined that the Appellant’s symptoms were
much more consistent with drink spiking utilizing a substance such as GHB or
Rohypnol because of:

(a) the fact that there was a rapid change in the Appellant’s demeanour
following his return from the upstairs bar after a period of 20-25 minutes
which is contrary to what would be seen if a reason for his symptoms was
cannabis (the effects of which would be delayed, coming on slowly, over
time);

(b) the nature of the symptoms that the Appellant displayed including overt
disinhibition, passing out on the floor of his hotel room and leaving the door
open and extended memory loss of the evening’s events;

(c) the fact that the Appellant’s symptoms increased over the 1-2 hour period
after he went upstairs rather than dissipated as would occur with
smoked/inhaled cannabis

(d) the prevalence of drink-spiking in Santiago, particularly in the Bellavista
area in Santiago;

(e) the fact that the Appellant had spent only 6000 pesos in the period, which
was accepted as being only enough to purchase two beers; and

[2016] FWCFB 2108

(f) the unlikelihood of the Appellant voluntarily consuming a large enough
quantity of alcohol in that period to account for his symptoms.

10. Further, both experts eschewed the possibility of voluntary cannabis consumption
being responsible for the Appellant’s marked change in behavior over the 25-30
minutes that he was absent from the other members of the group. This was
predominantly based on the fact that the Appellant’s symptoms were far more
consistent with drink spiking.’28 (References removed).

[27] She quoted the Federal Court decision in Gregory, and concluded that Commissioner
Cambridge erred by not providing any reasons as to the manner in which he considered the
expert evidence, and did not consider that expert evidence in conjunction with all of the other
relevant facts. She gave examples, referring to:

 Mr.Gregory spent only 6,000 pesos, said to be insufficient to buy only two beers;
 before going upstairs he had consumed about the same as his colleagues;
 there is no evidence that Mr.Gregory was anywhere else except the bar and could

not have smoked there without detection;
 these facts taken together with Mr.Gregory’s behaviour, high level disinhibition,

passing out on the floor, unable to be roused, no memory of events were not given
sufficient weight;

 Commissioner Cambridge referred to the fact that the urine sample did not detect
the presence of benzodiazepines [paragraph 21], but did not refer to the accepted
evidence of all experts that drugs such as benzodiazepines, GHB and Rohypnol are
expelled from the bloodstream within 24 hours so would not show up in a urine
sample taken 40 hours later, and test results should be given no weight;

 the expert evidence of Professor Drummer was that Mr.Gregory was a naïve user
of cannabis, and would likely only imbibe a small amount;

 Commissioner Cambridge erred in finding that Mr.Gregory was ‘a novice or
perhaps experimental cannabis or other substance user’ and in stating that
Mr.Gregory may have underestimated the strength of the cannabis [paragraph 74];

 Commissioner Cambridge concluded that Mr.Gregory voluntarily imbibed
cannabis and this was the reason for the changed behaviour and sexual harassment;

 if the Commissioner did take this expert evidence into account he erred in failing to
provide reasons for rejecting Mr.Gregory’s expert evidence29.

The decision on drink spiking

[28] The Commissioner rejected the appellant’s explanation that on arrival of a party of
flight crew at an Irish bar in Santiago on 8 February 2014 he went upstairs to look for a vacant
table, and to also use the toilet. The Commissioner concluded that Mr.Gregory was not the
victim of drink spiking:

[2016] FWCFB 2108

‘[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 appellant 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.’

Consideration of the expert evidence

[29] Is this decision consistent with the expert evidence? A number of issues arise from
submissions put in relation to the expert evidence including:

 whether the most likely scenario to explain the appellant’s conduct was the
introduction of a drink spiking substance such as GHB or a benzodiazepine, which
is the appellant’s contention based on Professor Drummer and Dr.Bull’s evidence;

 whether we should accept the appellant’s submission that Professor Drummer and
Dr.Bull were of the view, and whether we should accept that view, that the
appellant’s symptoms were much more consistent with drink spiking utilizing a
substance such as GHB or Rohypnol because of the rapid change in the appellant’s
demeanour after 20-25 minutes which is not consistent with cannabis, the
symptoms including overt disinhibition, passing out on the floor of his hotel, and
memory loss, and the fact that symptoms increased rather than dissipated as would
occur with smoked/inhaled cannabis, and other factors such as the 6,000 pesos and
the unlikelihood of the appellant voluntarily consuming a large enough quantity of
alcohol to account for his symptoms;

 whether we should accept the appellant’s submission that Professor Drummer and
Dr.Bull ‘eschewed’ the possibility of voluntary cannabis consumption, and whether
we should accept that evidence;

 whether the most likely explanation for the appellant’s behaviour was a
combination of cannabis and alcohol, which is the respondent’s submission on the
expert evidence given by Dr.Hosegood;

 whether the observed condition of Mr.Gregory after he came back from his absence
at the bar, and later lying prone on the floor of his hotel, is consistent with the
consumption of alcohol and cannabis or only with the addition of some other drug;

 whether the expert evidence in some way compels the conclusion, or assists in
conjunction with other evidence to compel the conclusion, that on the balance of
probabilities, having regard to Briginshaw, Mr.Gregory was the victim of drink
spiking.

[2016] FWCFB 2108

[30] Dealing with each of those issues in turn, firstly, Professor Drummer does support the
explanation of ‘consumption of a quick acting drug in the Bellivista bar’, and gives examples
of GHB as being ‘a much higher likelihood’ than other drugs. However, Dr.Hosegood does
not support this as an explanation. He is of the view that it is unlikely that Mr.Gregory
unknowingly ingested GHB or Rohypnol in the 20-30 minutes that he was absent from the
crew, and considers that it is more likely that his behaviour was caused by a combination of
cannabis and alcohol. The appellant makes little reference to the contrary evidence of
Dr.Hosegood. There is little attempt to persuade us that Professor Drummer’s evidence is to
be preferred except by alleging that one is independent while Dr.Hosegood is not. We see no
reason to believe that Dr.Hosegood gave evidence contrary to his sworn oath. We are left with
the conclusion that the evidence is contradictory and that there is little or no reason to prefer
that of Dr.Bull and Professor Drummer.

[31] Secondly, the appellant submits that Professor Drummer and Dr.Bull considered that
drink spiking of GHB or Rohypnol was the best explanation for the rapid change in
Mr.Gregory’s demeanour after 20-30 minutes, which is not consistent with cannabis, and
related submissions including references to other non-expert evidence.

[32] Again the evidence of Dr.Hosegood and Professor Drummer and Dr.Bull is
inconsistent. Dr.Hosegood considered that:

‘39. The behaviour that is described in the extracts of the witness statements set out in
Mr Gregory’s letter of 18 March 2014, including disinhibition and amnesia, could be
caused by alcohol alone, or more likely, a combination of cannabis and alcohol.
Alcohol and cannabis have similar actions. At low doses they tend to produce euphoria
and stimulation and at higher doses, sedation. Many studies have shown that when
both drugs are used in combination, the impairment is additive (i.e. comparable to the
sum of the effects of alcohol and THC when given alone) and some studies are
suggestive of a synergistic relationship (i.e. more than the combination of either drug
separately). …

[2016] FWCFB 2108

absent from the crew. In order for either GHB or Rohypnol to explain Mr Gregory’s
behaviour when he returned to the group, he would need to have taken the drug very
soon after leaving the group. GHB has an onset of action of between 15 and 30
minutes and the duration is 2-4 hours whereas for Rohypnol the onset is around 20-30
mins and peak levels are at around 2 hours (Medical Toxicology of Drug Abuse:
Synthesized Chemicals and Psychoactive Plants by Donald G. Barceloux). In contrast,
smoking THC can have an effect within a few minutes.

[33] Professor Drummer came to conclusions which were at variance with this in various
respects, as did Dr.Bull. Professor Drummer concluded, for example in his first report that:

 ‘As indicated earlier the unintelligible talk, lying prone on the floor semi-
naked is not consistent with cannabis use or even moderate alcohol intake
with cannabis. The circumstances indicate that F/O Gregory went from
slightly alcohol affected state (assumed based on the alcohol intake) to an
extreme state of intoxication in about 30-60 minutes. It is unlikely that even
alcohol could cause this since the amount of alcohol that would need to be
consumed to cause this state would take well over an hour, and possible
hours. Drink spiking during the restaurant meal was unlikely since bottled
wine was consumed.

 The most likely cause of this sudden onset of extreme intoxication is
consumption of a quick acting drug in the Bellavista bar. This could have
occurred by drink spiking with a drug. While benzodiazepines can cause this
effect it is likely that these would have been detected by the first urine test
unless a benzodiazepines was present that is not measured as part of the
Australian Standard AS4308. Gamma-hydroxy-butyrate (GHB) has been
suggested before by another expert; this would be regarded by me as a much
higher likelihood, and would not be detected by the laboratory.’ [emphasis
added]

[34] In addition, Dr.Bull provided a statement in which she said that;

[2016] FWCFB 2108

Santiago (based on UK Government travel advisory and Qantas advice to staff).
[emphasis added]

[35] We note that the observations of Professor Drummer were quite properly somewhat
qualified on occasion. For example he stated in his first report that the most likely cause of
Mr.Gregory’s extreme intoxication is consumption of a quick acting drug in the Irish bar, and
that ‘This could have occurred by drink spiking with a drug’.

[36] Again there is little reason given in the appellant’s submissions to prefer the evidence
of Professor Drummer and Dr.Bull, and we are unable to prefer it on the evidence before us.
We deal with the issue of the non-expert evidence, and its interaction with the expert
evidence, below.

[37] Thirdly, the evidence of Professor Drummer did not completely ‘eschew’ the
possibility of voluntary cannabis consumption, although his overall conclusions were to the
effect that drink spiking was the most likely explanation for the appellant’s conduct. In fact
Professor Drummer said in his first report (paragraph 7) that:

‘It is also possible that he consumed (clandestinely) cannabis orally and that this will
be absorbed slowly and with the significant amounts of alcohol consumed cause
unintelligible speech and unsteadiness on his feet, frisky behaviour and ultimately a
period of sleep consistent with extreme drunkenness.’

[38] While he made other statements to the effect that other explanations are more likely,
the qualifications made by Professor Drummer need to also be considered.

[39] Fourth, Dr.Hosegood, as we have seen, considered that the most likely explanation for
Mr.Gregory’s conduct was a combination of cannabis and alcohol. We are unable to reject
that view on an examination of the expert evidence and the submissions put to us. As
previously noted, the appellant did not effectively persuade us that the evidence of Professor
Drummer and Dr.Bull should be preferred.

[40] Fifth, we come to the same conclusions in relation to the expert evidence concerning
the condition of Mr.Gregory after he returned to the group at the Irish bar and later in the
hotel.

[41] Finally, we do not consider that the expert evidence compels the conclusion or assists
to any material degree in the conclusion that Mr.Gregory was the victim of drink spiking. The
expert evidence is, in our view, inconclusive. Again we consider the issue of the expert
evidence in conjunction with other evidence below.

[42] With respect we agree with the conclusion reached by the Federal Court that the
Commissioner did not overlook or simply discard the expert evidence; he concluded that he
did not need to discuss it. In our view, it would have been desirable for the Commissioner to

[2016] FWCFB 2108

include some discussion or reasons in his decision to support his conclusion that the expert
evidence was not determinative and did not have any material bearing on his finding that the
appellant engaged in the conduct which Qantas relied upon to terminate his employment.
However, having regard to the findings made by the Commissioner in relation to the
appellant’s credibility and the other non-expert evidence (discussed below), together with our
conclusion that the expert evidence is inconclusive, we are of the view that the Commissioner
did not err by failing to include in his decision further discussion or reasons in relation to the
expert evidence.

Other evidence on drink spiking and the Irish pub

[43] It is necessary to look at the expert evidence in conjunction with other evidence, as the
appellant correctly submitted. Mr.Gregory claimed that his drink had been spiked. There were
at least three possible sources of support for this explanation, the expert evidence, evidence
that Santiago was known for drink spiking, and the suggestion of drink spiking made by SOx
and others31. Other than that it is a somewhat speculative claim. We have already discussed
the expert evidence. Further there was for example no drink spiking drug found in
Mr.Gregory’s urine, beyond perhaps cannabis, but this neither supports nor weighs against
Mr.Gregory’s claim of drink spiking. It appears to limit the drugs that could have been used
for drink spiking to those that would remain detectable, or cannabis. We have dealt with each
of these issues above.

[44] However, the suggestion of possible drink spiking made by SOx or others is somewhat
speculative and of limited weight. Mr.Gregory gave evidence that he did not tell Captain
Hawkins when he woke up that his drink had been spiked because ‘it didn’t even occur to me
at that time… It didn’t occur to me until [SOx] suggested this to me.’ He also complained that
flight crew had not been warned about the potential for drink spiking in Santiago32. If weight
is given to SOx’s suggestion, perhaps it might also be the case that weight should be given to
Mr.Gregory’s view that it did not occur to him and was not apparently the immediately
obvious conclusion to be drawn by an experienced flight crew officer, although we note that
Mr.Gregory changed his evidence on this point. The evidence about drink spiking in Santiago
suggests a possible general issue about drink spiking in Santiago, but does not necessarily
make it likely that it occurred in this case. These suggestions again are somewhat speculative.
Neither of these issues is determinative.

[45] The direct evidence as to what happened during the visit to the Irish bar was from:

 Mr.Gregory;
 Ryan Pratt, a flight officer;
 SOx. She did not give evidence but provided a statement to the employer;
 Captain Hawkins. He did not give evidence but provided a statement to the

employer.

[2016] FWCFB 2108

[46] The appellant gave evidence that his memory from the moment they arrived at the
Irish pub until he woke up the next morning is ‘very hazy. I have thought a great deal about
what occurred, but recall only fragments and moments’. He recalled deciding to go upstairs to
look for any free tables, to use the toilet, speaking to a barman, and needing to urinate33. In an
earlier outline of events he provided to his employer he said: “We could not find a spare table
so I offered to go upstairs to the open air bar to look for a table. I left the other three to go
upstairs, use the toilet and see if there were any tables.”34 There is no reference in the
statements of the others that Mr.Gregory offered to go upstairs to look for a table. The
appellant was cross examined about his version of events.

[47] Mr.Pratt gave evidence that soon after they arrived he saw the appellant talking to
somebody, and ‘He seemed to know him, but he did not introduce the man to us’. He said that
Captain Hawkins, SOx and he went to look for a table, sat down at a table, ordered drinks. He
said that about 25 minutes later the appellant came to the table and ‘was clearly and obviously
affected by drugs or alcohol. He was in a very different state to how he had been when we
arrived. His speech was slurred and unintelligible.’ He then tried to pinch the bottom of a
woman who tried to find a way to ask him to leave.35 Mr.Pratt provided an earlier statement36.
In his second statement he said that Mr.Gregory did not smell of marijuana after they left the
Irish pub, and did not have bloodshot eyes or streaky saliva37.

[48] SOx said that the appellant was not with them, she looked for him and could not find
him, and he rejoined the group about 20-30 minutes later38.

[49] Captain Hawkins said that the appellant ‘left us and was not seen for approximately 30
minutes. He was seen to go and speak to some people at an adjoining bar before we lost sight
of him.’39

[50] It is accepted that Mr.Gregory tested positive for cannabis in a urine test40. An
International Crew Security Advice for Santiago issued by the Australian Government
indicates that a ‘main risk’ includes drink spiking. There is a photograph of Mr.Gregory lying
prone on the hotel floor with this room door open taken by Captain Hawkins. 41 Captain
Hawkins describes finding Mr.Gregory lying in this state in his statement42.

Other evidence and other challenges

[51] Having regard to this and other evidence the appellant makes a number of challenges
to the Commissioner’s findings including:

 the Commissioner’s findings on Mr.Gregory’s conversation with an unknown
person at the Irish bar43;

 the ambiguity in Captain Hawkins’ statement as to whether he actually saw the
conversation44;

 whether it was put to Mr.Gregory that he met this person to purchase cannabis45;

[2016] FWCFB 2108

 that 6,000 pesos was missing from from his wallet and ‘there was no evidence that
one could purchase … cannabis’ in Santiago for this;

 that the scenario did not make any sense;
 that the appellant was not a cannabis user;
 that the appellant would not then return to Captain Hawkins, and that it was not

reasonable to do this in the company of his superior;
 that there was no basis for finding that the appellant smoked marijuana;
 that Mr.Pratt did not smell it on his breath;
 that there was no evidence from Captain Hawkins or SOx on this point;
 that the finding that two drinks would mask the smell of marijuana was not based

on evidence;
 that issues were not put to Mr.Pratt;
 that Captain Hawkins was not called and inferences should have been drawn, that it

was not put to the expert witnesses;
other matters including that there was no evidence that some methods of smoking
reduce marijuana odour46;

 the alleged failure to consider a central argument of the appellant’s case, expert
scientific material and the failure to take into account other relevant evidence in
that context47;

 there was not sufficient basis to draw the conclusion that the appellant smoked
cannabis upstairs at the Irish bar48.

[52] To some extent the appellant is seeking to reargue the case, and place emphasis on
certain factors which he sees as assisting his case, rather than identifying error in the process
of reasoning adopted by the Commissioner. It is necessary to examine that process of
reasoning. The Commissioner summarised the submissions, and then later came to
conclusions, based on some but not all of the submissions. It appears that he assessed the
submissions and gave weight to some factors, and not to others such as Professor Drummer’s
evidence. We have already discussed the medical and expert evidence.

[53] The Commissioner firstly came to conclusions about the reasons for Mr.Gregory
separating from the group at the Irish pub. He rejected (paragraphs 60-65) Mr.Gregory’s
explanation that he was looking for a vacant table, having regard to the evidence of Mr.Pratt,
Captain Hawkins, and a statement made by Mr.Gregory. In our view that conclusion was
open on the evidence.

[54] The Commissioner then appeared to reject (paragraph 66) the explanation that he
separated to go to the toilet, for reasons including that he did not give any reason for
separating but simply did not follow them to the table, and because he bought a drink from the
bar and would presumably not buy a drink, leave it at the bar unattended, and then go to the
toilet. In our view that conclusion was open on the evidence. He later describes such a
suggestion as ‘plainly implausible’ (paragraph 69). He also considered that it was even more
implausible that he did this, and then that the drink was spiked with cannabis or GHB and

[2016] FWCFB 2108

then the appellant ate food which contained THC. These were conclusions that were open to
him.

[55] The Commissioner did not accept Mr.Gregory’s evidence on his conversation with
‘the unknown person’ (paragraphs 67-69), and preferred the evidence of Mr.Pratt and Captain
Hawkins. Overall he did not accept Mr.Gregory’s evidence but instead concluded that
Mr.Gregory separated from the group for another reason, namely ‘a deliberate act in the
pursuit of imbibing cannabis, or a cannabis derivative, or another substance’, and in all
likelihood the significant conversation he had with the ‘unknown person’ was relevant
(paragraphs 67-74).

[56] In our view it was open to the Commissioner to reject the evidence of Mr.Gregory. He
had the advantage of observing him giving evidence, including his cross examination. It was
also open to him to accept the evidence of Mr.Pratt and others. Having rejected that evidence
and accepted other evidence he had to explain the events, and the presence of cannabis in
Mr.Gregory’s urine. He adopted an explanation which was consistent with this evidence and
which also accounted for the later cannabis found in Mr.Gregory’s urine. This cannabis
reading was not otherwise explained except through the explanation of drink spiking, which
we have already dealt with. He considered that this also explained in part Mr.Gregory’s
conduct. In our view these were inferences that were open to him.

[57] In our view the issue of the purchasing power of pesos was not determinative, nor was
the submission that Mr.Gregory was not a cannabis user and would be unlikely to do this in
the company of his superior. The Commissioner in any event specifically noted these
submissions at paragraphs 31-32, and was apparently not persuaded by them. This was a
decision open to him on the evidence. It was open to the Commissioner to make inferences to
explain the apparent lack of cannabis smell, given for example that Dr.Hosegood gave
evidence that marijuana smokers do not all smell, and that if cannabis was taken orally or
smoked through water there would be no smell49. We deal with the issue of inferences to be
drawn from the absence of Captain Hawkins below. Again not all issues have to be put to
witnesses.

[58] The appellant submits that the Commissioner’s conclusions in relation to an unknown
person and cannabis are not supported by the evidence, and in any event, natural justice was
not accorded. The appellant submits50 that Qantas did not ask Mr.Pratt about his statement
about Mr.Gregory talking to somebody who he seemed to know. With respect there was no
need for Qantas to ask questions about this. The appellant also submits that there was no
challenge to Mr.Gregory’s statement that he had a penchant for talking to people, and raised a
number of other issues. These were issues of evidence to be weighed in the balance and were
not determinative.

[59] The appellant submits51 that Captain Hawkins’ statement is ambiguous as to whether
he saw Mr.Gregory talking to someone or it was reported to him. That is correct. However
Mr.Pratt’s evidence was not ambiguous in that respect.

[2016] FWCFB 2108

[60] The appellant submits that it was never put to Mr.Gregory that he met this person to
buy or obtain cannabis52. However, Mr.Gregory was cross examined about his separation
from the group and conversation with the unknown person, and this was properly assessed by
the Commissioner at paragraph 67-69 of his decision. In addition it was squarely put to
Mr.Gregory in cross-examination that he voluntarily consumed cannabis and his consumption
of cannabis was connected to his meeting with the person he seemed to know in the Irish
bar53.

[61] The appellant submits that the Commissioner should have put the appellant on notice
that he was going to place significant reliance on a significant conversation as a crucial
element in his decision making. The Commissioner was faced with the task of assessing the
evidence before him, including limited evidence from the appellant. He was not required to
during proceedings or after they had concluded raise with the parties this issue in particular,
or the issue of cannabis, as opposed to other issues. The appellant had the opportunity to put
his case, and did so at some length. Natural justice was provided.

Failure to give reasons on credibility (ground 5)

[62] The appellant submits that because he had not engaged in any dishonest conduct, he
was in a senior position entrusted with responsibilities, had a long unblemished career, there
were no issues of poor performance nor any disciplinary matters, there was no suggestion he
had done the wrong thing with other female colleagues, and others matters that Mr.Gregory
was ‘entitled to be believed’54. In putting this submission the appellant ignores other matters
including the evidence of Mr.Pratt, the cross examination, the fact that the Commissioner
observed the appellant giving evidence, and the plausibility or otherwise of the appellant’s
evidence. The appellant also submits that other factors are relevant including his honesty in
relation to the event, his apology, the conduct of others, the nature of the appellant’s evidence
and other matters. With respect, for the reasons already given, the Commissioner assessed the
evidence and submissions and the conclusions he came to were open to him. Many of these
issues were specifically noted by him, and they are not determinative in any given case. For
example, it is not the case that all longstanding employees with good records and substantial
responsibility and similar circumstances to the above are to be believed.

Failure to call Captain Hawkins

[63] The appellant submits that the failure of Qantas to call Captain Hawkins raises the
issue of Jones v. Dunkel55, and that ‘this ought to have invoked the principles set out above so
as to undermine the respondent’s contention that the cause of the appellant’s intoxication was
voluntary cannabis use.’56 The Commissioner said in relation to this issue that:

‘[84] I have been troubled by the absence of Captain Hawkins as a witness. Ms
Nomchong invited the Commission to draw adverse inferences as established by the
principle recognised in the case of Jones v Dunkel, from the absence of witness

[2016] FWCFB 2108

evidence from Captain Hawkins and S/O x and others. There was evidence which
provided adequate explanation for the absence of S/Ox as a witness. There was no
acceptable explanation for the absence of Captain Hawkins as a witness. It is also
relevant to consider that despite being legally represented the appellant did not seek to
summons Captain Hawkins to give evidence.

[85] I believe that it is open and reasonable to infer that in certain respects, the witness
evidence of Captain Hawkins would not have assisted the employer’s case. I have
inferred that if he had given evidence as a witness, Captain Hawkins would have
confirmed, in particular, that the excessive level of intoxication of the appellant on the
night in question meant that he was dispossessed of his faculties and not conscious of
his behaviour. Further, I have inferred that Captain Hawkins would have confirmed
the genuine remorse and contrition shown by the appellant on the day and days
following the incident. However, these are issues of fact that I have found in favour of
the appellant and which do not go directly to the more significant evidence
surrounding the activities of the appellant at the Irish pub in the period of time
immediately before he went missing.

[86] There would have been significant benefit obtained from evidence provided by
Captain Hawkins about his consideration on the following day, 9 February, as to the
drink spiking suggestion and why there was apparently no contemplation given to at
least initiate some inquiry with management of the Irish pub, and/or the police, and/or
some other local authority. I am unable to make firm inferences as to what the
evidence of Captain Hawkins may have been about these issues. However, it has
become clear that Captain Hawkins made the correct decision to stand the appellant
down, for if he had not done so the appellant would have been operating the B747
under the influence of THC (cannabis) at a level of more than twice the Australian cut-
off reporting figure.

[87] Consequently, although adverse inferences have been drawn about the absence of
witness evidence from Captain Hawkins, those inferences have not disturbed the
critical factual findings which underpin the serious misconduct of the appellant. Other
aspects of the potential evidence of Captain Hawkins cannot be deduced and I remain
particularly perplexed by his absence as a witness.’57

[64] It is also well established that the rule does not permit an inference that the untendered
evidence would in fact have been damaging to the party not tendering it, and cannot be
employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference58.

[65] In this case there was in fact a statement from Captain Hawkins59. It is not clear what
evidence in addition to this could have been given beyond that accepted by the Commissioner
which would undermine the respondent’s contentions. We are unable to find an error in the
Commissioner’s approach to this issue.

[2016] FWCFB 2108

Undisclosed reason for decision

[66] The appellant submits that the real reason for the dismissal was the use of cannabis,
and refers to the evidence of Mr.Oswald Miller60. Mr.Miller was cross examined on this point
and denied that the termination was based on cannabis use. He also said for example that he
would ‘like to know what the explanation for the positive cannabis test was’, and ‘you have a
cannabis test that is unexplained so there’s a matter of trust that ….But the termination was
based on the findings as spelt out in the findings letter’61. This seems a reasonable approach
for Qantas to take. Given the dangers of the job it was incumbent on Qantas to seek an
explanation for the cannabis found in Mr.Gregory’s urine, and to be concerned at the lack of
an explanation. Mr.Miller denied that the termination of employment was based on cannabis
use, and we see no grounds for rejecting that evidence. We can find no error in the decision
under appeal in relation to this issue.

Failure to properly assess harshness

[67] The appellant submits that the finding of a valid reason and other findings were not
weighed in the balance as required by s.387 of the Act. He submits that simply rejecting the
theory of drink spiking does not ‘automatically lead to a conclusion that he was dishonest’.
He submits that termination was too harsh a penalty.

[68] In our view the Commissioner made the findings required in relation to each of the
factors set out in s.387 and gave weight to those factors as he was required to do: Re Hunt; Ex
parte Sean Investments Pty Ltd62. He expressly had regard to various factors which favoured
the appellant’s case at paragraphs 83, 91, 93, 48, 82 and in other parts of his decision. We can
find no error in the decision.

Serious misconduct

[69] The appellant submits that the Commissioner did not apply case law on serious
misconduct, or the Briginshaw burden. However, the Commissioner was required to apply
s.387, and make findings in relation to whether or not there was a valid reason. He did this.
Whether any conduct constituted serious misconduct is irrelevant to whether or not there was
a valid reason63. The Commissioner also made findings about the other factors in s.387. He
then considered and gave weight to all those factors and decided that the dismissal was not
harsh, unjust or unreasonable. He acted consistently with the requirements of s.387. We can
find no error.

[70] The Commissioner also referred to, and applied, the ‘elevated level of satisfaction
required because of the serious nature of the conduct under examination’ (paragraph 73). This
was clearly a reference to the Briginshaw standard. Accordingly, we reject the appellant’s
contention that the Commissioner erred in failing to apply the Briginshaw standard.

[2016] FWCFB 2108

Conclusion on the challenges to the Commissioner’s findings on valid reason (s.387(a)) and
overall assessment of all the factors regarding harsh, unjust or unreasonable

[71] The known facts were that Mr.Gregory appeared intoxicated, that he was absent for a
period of time at the Irish bar, that he had drunk a considerable amount of alcohol and that
later cannabis was found in his urine, that to a substantial degree his self control was affected,
and that he sexually harassed a female colleague while in an intoxicated state. Mr.Gregory
was of good character, had a good work record, his behaviour was out of character, and
Mr.Pratt could not smell marijuana in the taxi.

[72] Mr.Gregory claimed that his drink had been spiked. It was open to the Commissioner
to reject this claim given the limited evidence to support it, which is what he did. The expert
evidence is not persuasive, even when considered in conjunction with other evidence. Given
that decision the explanation left was that Mr.Gregory was responsible for his actions in
becoming intoxicated or under the influence of cannabis. This was a reasonable conclusion
for the Commissioner to come to. That being the case, Mr.Gregory was responsible for his
actions while in that state. It is well accepted that in a workplace such as this high standards of
behaviour are required. Despite those high standards Mr.Gregory was unable to provide a
satisfactory explanation as to how he came to have cannabis in his urine, or about much of the
events on the night in question. He was unable to satisfactorily explain his conduct in sexually
harassing a colleague. The explanation given by Qantas for the appellant’s conduct was
accepted by the Commissioner after assessing and making findings on the evidence before the
Commission. We can see no error in the Commissioner’s conclusions, which were open to
him. We can find no error overall in the conclusions reached by the Commissioner.

Disposition of the appeal

[73] We refuse permission to appeal. The appellant has not identified an error in the
decision within House v. King, or other grounds for granting permission to appeal. The
Commissioner did not act on a wrong principle, allow extraneous or irrelevant matters to
guide him, and did not mistake the facts let alone make a significant error of fact within s.400.
In the view of the Court the better view is that he did not overlook or discard the expert
evidence, but rather considered that he did not need to discuss it. We have examined the
expert evidence in some detail and have come to the conclusion that it was inconclusive. We
do not consider that the omission of a discussion of the expert evidence led to an error in the
conclusions that the Commissioner reached. We accept that there was no jurisdictional error
in the Commissioner’s limited discussion of the expert evidence. We dismiss the appeal. An
order is contained in PR579738.

DEPUTY PRESIDENT

WORK MISSION THE SEAL OF THE

[2016] FWCFB 2108

Appearances:
Ms K Nomchong of Senior Counsel for the appellant.
Mr R Warren of Counsel for the respondent.

Hearing details:
2016
Sydney
4 April

Printed by authority of the Commonwealth Government Printer

Price code G, PR578695

1 [2015] FWC 1154 decision, PR561162 order
2 [2015] FWCFB 2599
3 [2016] FCAFC 7
4 Ibid at para [80]
5

[2016] FWCFB 371; [2010] FWAFB 5343 at [26]-[27]

6 House v King (1936) 55 CLR 499 at [504] – [505] per Dixon, Evatt and McTiernan JJ
7 [2016] FCAFC 7
8 Appellant written submissions of 19 January 2015, paragraph 24; Exhibit 3 Report of Prof Drummer at 14; Transcript of

4 April 2016 at PN 238 and 267
9 Appellant written submissions of 19 January 2015, paragraph 29, Exhibit 2 Report of Dr Bull
10 Respondent outline of submissions, paragraph 18
11 Expert Report, appeal book, page 311
12 Expert Report, appeal book pages 311 - 312
13 Expert report, appeal book pages 312 - 313 paragraphs 13-14
14 Supplementary statement of Professor Drummer, paragraphs 4-7, appeal book p.758-9
15 Transcript of proceedings, 4 December 2014 at PN145-166
16 Ibid PN186
17 Ibid PN203
18 Ibid PN207
19 Ibid PN225
20 Expert report, appeal book pages 303-304
21 Statement of Ian Michael Hosegood, paragraphs 35-42, appeal book page 674 - 675
22 Ibid, paragraphs 47 - 52
23 Transcript of proceedings, 5 December 2014 at PN1947-2290
24 Appellant written submissions of 19 January 2015, paragraph 24; Exhibit 3 Report of Prof Drummer at 14; Transcript of

4 April 2016 at PN 238 and 267

http://www.fwc.gov.au/decisionssigned/html/2016fwcfb371.htm

[2016] FWCFB 2108

25 Appellant written submissions of 19 January 2015, paragraph 29; Exhibit 2 Report of Dr Bull
26 Respondent outline of submissions of 18 August 2014, paragraph 18
27 [2015] FWC1154
28 Exhibit G1, paragraphs 9 and 10, Appellant’s written submissions of 7 March 2016
29 Exhibit G1, paragraphs 11-24
30 Statement of Ian Michael Hosegood, paragraphs 35-42, appeal book 674-675
31 Statement of Ryan Pratt, paragraph 25, appeal book p.432
32 Transcript of proceedings, 4 December 2014 at PN483-485
33 Appellant’s statement of 28 July 2014, paragraph 19, appeal book p.329
34 Appellant statement paragraph 7, appeal book p.574
35 Statement of Ryan Pratt, paragraph 12-16, appeal book p.430
36 Statement of Ryan Pratt, RP1, appeal book p.434
37 Further Statement of Ryan Pratt, appeal book p.435
38 Statement of SOx, appeal book p.547. By agreement she is referred to only as SOx.
39 Statement of Captain Hawkins, p.550
40 Statement of Sarah McMillan, Attachment SM3 Lab Report, appeal book p.451
41 Exhibit 12, appeal book p.500-501
42 Statement of James Oswald Miller, Appeal book p.551
43 Exhibit G1, paragraphs 29-32
44 Exhibit G1, paragraphs 36-39
45 Exhibit G1, paragraphs 41-42
46 Exhibit G1, paragraphs 46-65
47 Exhibit G1, paragraphs 7-24
48 Exhibit G1, paragraphs 46-65
49 Transcript of proceedings, 5 December 2014 at PN1939
50 Exhibit G1, paragraphs 29-32
51 Exhibit G1, paragraphs 36-39
52 Exhibit G1, paragraphs 41-42
53 PN567-8; PN601-2
54 Exhibit G1 paragraphs 79-87
55 (1959) 101 CLR 298
56 Exhibit G1, paragraphs 88-95
57 [2015] FWC 1154
58 Cross on Evidence, Sixth Australian Edition, Butterworths 2000, J.D.Heydon, p.35
59 Appeal book p.550
60 Exhibit G1, paragraphs 96-98
61 Transcript of proceedings, 5 December 2014 at PN1719-1733
62 High Court of Australia, (1979) 53 ALJR 552 at 556
63 Adam O’Connell v. Wesfarmers Kleenheat Gas [2015] FWCFB 8205 at 22

Gregory, Steven v Qantas Airways Limited - [2016] FWCFB 2108

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