[2014] FWC 518

The attached document replaces the document previously issued with the above code.

The endnote 113 has been changed to [2011] FWAFB 1166.

Rachel Wong

Associate to Commissioner Roberts

Dated: 12 February 2014

[2014] FWC 518

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Keiko Adachi
v
Qantas Airways Limited
(U2013/8022)

COMMISSIONER ROBERTS

SYDNEY, 10 FEBRUARY 2014

Application for relief from unfair dismissal - alleged serious misconduct - reinstatement and part compensation ordered..

[1] This decision concerns an application lodged on 28 March 2013 by Ms Adachi pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of her employment by Qantas Airways Limited (Qantas or the Company).

[2] The application was dealt with by a Fair Work Australia Conciliator on 30 April 2013 but the conciliation was unsuccessful. The matter was then set down for arbitration hearing before me in Sydney on 15, 16 and 24 October 2013.

[3] At the hearing Ms Adachi was represented by Mr G Pinchen of A Whole New Approach Pty Ltd and Qantas by Mr R Warren of Counsel. Both appeared by permission. Ms Adachi gave sworn evidence on her own behalf. Ms S Jarrett, Mr J El Khoury, Mr A Bond, Mr P Loughnan and Mr J Byrne gave sworn evidence for Qantas.

Background

[4] Ms Adachi worked for Qantas as a Cabin Crew member for just under 25 years. Since 1998 she had been a Customer Service Supervisor. Her employment was terminated by Qantas on 15 March 2013 following an incident between her and Mr El Khoury on 17 February 2013. What occurred on 17 February and the nature of the interaction on that date between the Applicant and Mr El Khoury is the subject of strong dispute. Ms Adachi denies any misconduct and seeks reinstatement to her former position at Qantas together with compensation.

Evidence

Ms Adachi

[5] Ms Adachi gave sworn evidence and submitted a witness statement 1. Ms Adachi said that she commenced employment with Qantas in April 1988 as an International Flight Attendant based in Sydney. In 1990 she became a First Class Air Chef and was promoted to Customer Service Supervisor in 1998. She has also worked in the training department as a Language trainer/coordinator (being tri-lingual in Japanese, English and French) as well as a cabin crew recruitment interviewer. Ms Adachi went on to say that she also worked in the Emergency Procedure Department as a Crew Resource Management Trainer dealing with Technical Crew Captains. She holds a Bachelor of Psychology degree.

[6] Ms Adachi continued by saying that she never received any warnings during her service with Qantas and had “never before been accused of misconduct, violent or inappropriate behaviour. My performance has been overwhelmingly good, and until September 2012 I had never been accused of not meeting KPI standards.”

[7] Ms Adachi alleged that she was subjected to workplace bullying and had made accusations against two other Qantas employees. In January 2013 she was treated by her General Practitioner (the GP) who “diagnosed me as suffering from anxiety/adjustment reaction to the treatment I received at Qantas.” The GP gave her a medical certificate for one week from 29 January 2013. She returned to the GP on 30 January and was issued with a WorkCover medical certificate from 29 January 2013 to 15 February 2013. That certificate 2 contained the following diagnosis: “adjustment reaction. In my opinion, the worker’s employment is a substantial contributing factor to this injury.” The certificate went on to certify Ms Adachi as fit for pre-injury duties from 15 February 2013. She returned to her GP on 16 February and: “He was of the opinion that I should not attend an entire training session over the period of late January - mid February 2013, unjustly ordered and conducted by managers who previously bullied me, knowing that it would worsen my physical health and anxiety symptoms.” The GP issued her with a further WorkCover certificate3 certifying her as “fit for suitable duties from 16 February 2013 until 16 March 2013”. The certificate contained a notation “not fit for ground duties with certain staff members”. On 20 February 2013, Ms Adachi was issued with a further WorkCover certificate4 certifying her as “fit for pre-injury duties from 20/2/13”. The certificate contained the following notation: “for flying duties, not fit for ground duties with certain staff members”.

[8] During her absence on medical leave, she received several calls from Mr El Khoury “checking up on me and asking how I was. Qantas didn’t leave me alone, even on my sick days, and I felt threatened by his persistence.” On 15 February 2013, Mr El Khoury again telephoned her and she confirmed that she would be able to commence flying duty on 17 February.

[9] Ms Adachi went on to say that when her GP ticked the box on the WorkCover certificate certifying her as ‘fit for suitable duties from 16 February 2013 until 16 March 2013’, “He told me clearly my suitable duties were flying duties. ... I believed in good faith this certificate qualified me for flying.” She then telephoned the Qantas scheduling department to indicate that she was fit to return to flying duties, was offered a flight on the same day due to it being short of crew but declined due to the short notice. Qantas accepted this.

[10] Ms Adachi went on to deal with the events of 17 February 2013. When she attended for duty on that date, Mr El Khoury informed her that Ms Reddan would allow her to fly ‘for the moment’ although she had not attended required training. “This answer confirmed me what I have been feeling that this was what exactly Ms Reddan planned to do about me if I attended the training, and came to realise that bullying would continue.” Mr El Khoury told her “... that he would put me on training, as well as a ‘coaching trip’ on A380. I felt intimidated with his approach, and sensed that harassment has already started right after my return from stress leave, even before my first flight. I wanted to escape to the ladies room, but he was kept talking and I did not want to be rude, so I stayed listening trying to be agreeable.”

[11] However, Ms Adachi believed that her medical advice to avoid ground duties associated with ‘certain managers’ would affect the proposed training. She then gave her latest WorkCover certificate to Mr El Khoury and he pointed out to her that the box marked ‘fit for suitable duties’ had been ticked. He then told her that she could not fly without a ‘fit for pre-injury duties’ certificate. “I looked at him and said ‘this is totally absurd, the Dr and I perfectly understand what this means, and as you know - you called me on 15th Feb, and we confirmed I am perfectly fit and happy to go on the flight tonight.’” She argued the point with Mr El Khoury, insisting that his view was wrong.

[12] During her conversation with Mr El Khoury, Ms Adachi said that he spoke with a manager on the speaker phone about her situation whilst at the same time looking at his computer screen and typing. Mr El Khoury kept saying ‘this paper is no good’. She then requested the certificate be returned to her and reached over Mr El Khoury’s desk to retrieve it. “After I was holding the paper, Mr El Khoury grabbed the paper and tried to take it from my hand. I was a bit shocked, and while we were both holding the paper I said ‘I will give you the copy, but I need this original paper to show this to Dr’. Mr El Khoury grabbed the certificate with both his hands and both of us were pulling on the paper. He said: ‘let go, Keiko’. I asked him to let go, and told him it belonged to me. Mr El Khoury’s body and face came frighteningly so close to me, he let the paper go from his right hand, still holding on to the paper with his left hand, and he grabbed my left hand wrist (which was holding the desk) with his right hand and pushed my body away, and he ripped the paper when he pulled it towards him. I was shocked and let go of the paper.”

[13] Ms Adachi went on to say that Mr El Khoury then asked her to speak to Mr Bond and inform him that she was not joining her scheduled flight. Ms Adachi said that she “was shocked and scared by Mr El Khoury’s forceful behaviour”. She then observed Mr Bond speaking on his mobile phone in the briefing room area which is divided by a wall from where she had been speaking with Mr El Khoury. He was not in a position to see anything which occurred between her and Mr El Khoury.

[14] “Later on before leaving the office, I asked for a copy of my medical certificate. I saw Mr El Khoury had the paper crunched up in his hand. ... Mr El Khoury gave me a photocopy of my certificate before I left the office.”

[15] Ms Adachi went on to say that Mr El Khoury told her that if she returned with a WorkCover certificate with the ‘fit for pre-injury duties’ box ticked, then she could return to flying duties. Mr El Khoury asked her to call him once she had made an appointment with her GP and he would then try to obtain a Japan trip for her. “I had the impression that Mr El Khoury was trying to help me in my situation and would try to get me back to work as soon as the certificate was fixed. By the time I left the office I was fairly positive, focussed on moving forwards and planning to see my Doctor as soon as possible to fix my certificate.” Mr El Khoury then escorted her through security out into the public area of the airport. Ms Adachi said that during this journey, Mr El Khoury was eating fruit and a sandwich.

[16] On 18 February, Ms Adachi left a telephone message for Mr El Khoury, telling him that she was arranging an appointment with her GP. On the afternoon of the same day, Mr Byrne called her to ask whether she would attend a celebration of her twenty five years of service to Qantas. She agreed. She did not receive a return call from Mr El Khoury.

[17] On 20 February, she saw her GP and told him that had not been allowed to fly due to the latest WorkCover certificate. The GP then produced a further certificate 5 indicating that she was ‘fit for pre-injury duties’. “Dr Malev was concerned that a return to ‘pre-injury duties’, would mean managers could subject me to bullying and harassment.” She then called the Cabin Crew Manager’s desk and explained that she now had the requisite ‘fit for pre-injury duties’ certificate. Shortly after, she received a call confirming receipt of the certificate and was placed on a flying roster for 24 February.

[18] On 21 February, Mr Byrne called her and told her that she would not be flying on 24 February because of a ‘performance issue’ and that she had been stood down. Mr Byrne declined to elaborate and told her she would receive a letter. She then made further enquiries of Qantas and was again telephoned by Mr Byrne who told her that the allegations against her were ‘fairly simple and straightforward’ and she was to treat the matter as confidential. On 22 February she received two letters from Mr Byrne concerning an allegation made against her by Mr El Khoury. She telephoned Mr Byrne on 22 February and disputed the allegation against her and “asked why I was stood down immediately without Qantas first hearing my counter statement. I indicated that the allegation letter was totally unexpected since when Mr El Khoury said goodbye to each other on 17 February 2013 we were on friendly terms, we gave each other a hug, and Mr El Khoury said ‘call me’ in reference to the medical certificate, and I replied ‘I will call you’.”

[19] Mr Adachi’s statement went on in some detail to deal with her discussions with Mr Byrne concerning her suspension from duties. “It became obvious to me that no matter what I said, CCM Byrne would favour Mr El Khoury’s version of events over mine. I indicated to CCM Byrne that I felt the investigation was some kind of set up and unjust. I felt increasing anxiety, and felt that CCM Byrne’s action of quickly standing me down without an interview meant he was focussed on a dismissal outcome.”

[20] Ms Adachi’s partner advised her to lodge a police report about Mr El Khoury and she did so on 22 February. 6 From that date, her “mental health severely deteriorated and I started to suffer from depression. I felt that the entire Qantas Company was teaming up to harm me.” On 23 February she again attended her GP who referred her to a psychologist. She told the GP that she had been seeing a psychologist since August 2012. The GP then gave her a further WorkCover certificate7 indicating that she was unfit for work from 23 February to 16 March 2013. Her health continued to deteriorate.

[21] On 25 February she was scheduled to meet with her union representative and asked that person to tell Mr Byrne that she would not be able to meet with him on 26 February. “I was awfully ill and it was psychologically extremely difficult for me to participate in the disciplinary process I indicated that I was unable to go to a meeting at the time.” On 26 February, she received an email from Qantas announcing that the Company was seeking expressions of interest in voluntary redundancy from international cabin crew employees. She submitted an expression of interest. She subsequently spoke to several Qantas managers complaining of alleged bias by Mr Byrne. Further email correspondence between her and Mr Byrne ensued in which she “explained that my mental state was impairing my ability to participate in his investigation. CCM Byrne did not appear to care about my psychosocial state, and insistently asked me to write a response and attend a meeting while I was medically unfit. I felt so stressed I was contemplating suicide.” She was also unable to attend a meeting with Mr Byrne on 5 March because she was staying with her partner in Canberra, was depressed and felt that the time frame given by Mr Byrne was unjust because of her psychological unfitness. She again wrote to Mr Byrne on 6 March seeking that Mr El Khoury be stood down as part of the investigation and that the investigation not be conducted while she was medically unfit to take part. On 11 March, she was scheduled to consult an independent medical examiner to assess her psychological health but became ill at Canberra airport and returned to her partner’s home. On 15 March her employment was terminated.

[22] In reply to the evidence of Mr El Khoury, Ms Adachi denied pulling Mr El Khoury’s fingers apart while he was looking at an email. The WorkCover certificate was lying on his desk at the time. “What in fact occurred was that Mr El Khoury physically pushed me and held his face and body threateningly close to me. He was holding the paper with both hands, what could I have possibly achieved by pulling his finger apart on one of his hands when he was holding on to the paper with both hands?” She did not shout words to the effect of ‘I want that back’ and never raised her voice during her conversation with Mr El Khoury.

[23] Ms Adachi went on to dispute the evidence of Mr Bond. She queried why other flight attendants who were nearby were not contacted about an incident which occurred “directly in front of where Mr El Khoury and I were.”

[24] Ms Adachi said that her life and reputation had been permanently damaged by false allegations against her, and that her dismissal had removed her from eligibility for voluntary redundancy at a cost of some $146,000. “Who will now employ a 52 year-old air hostess dismissed for alleged misconduct?” She has lost her staff travel benefits which she accessed to visit her parents in Tokyo.

[25] “In my 25 years of service, I looked after tens of thousands of Qantas passengers as a flight attendant and Customer Service Supervisor. I am in disbelief that a manager could end my life-time memory of faithfully working for Qantas in the manner they did. I strongly believe I did nothing to deserve this treatment from Qantas, and should not have being stood down at the first place. I should be happily still flying. I hope to be reinstated to right this injustice.”

[26] In cross-examination, Ms Adachi:

Denied that she knew on 17 February that her WorkCover certificate would not allow her to fly. 9

Agreed that in May 2012 she faced a similar situation with a medical certificate. 10

Said that her belief was that she was not required to attend the Refresher course from 29 January 2013 as she had met her KPIs. 11

Agreed that her certificate for the period 29 January to 15 February 2013 exactly coincided with the dates of the Refresher course. 12

Denied that Mr El Khoury was holding the WorkCover certificate folded over and held in two hands. 14

Denied that she attempted to drag the certificate from his hands. 15

Denied that she tried to lever his fingers from the certificate. 16

Said: “Paper got torn when we had a tug of war.” 17

Said that the certificate was on Mr El Khoury’s desk: “I tried to reach over it and as I demonstrated it, I tried to take it and then he stopped it with other hand and I was keep trying to put the paper towards me. He grabbed it with both hands. When he did that, he did that - he forced me tugging the paper like this. And when I didn't let go, he grabbed my left wrist with right hand, pushed me coming his face so close to me. ‘Keiko, let go.’.” 18

Denied that Mr El Khoury said words to her to the effect ‘You are trying to rip up a legal document’. 22

Said that she owned the certificate and therefore could take it back to her GP. 23

Agreed that she told Mr El Khoury that she would contact her GP to obtain the appropriate WorkCover certificate. 24

Agreed that Mr El Khoury helped her to obtain a taxi on 17 February 2013. 25

Agreed that she did not pursue her police complaint and the complaint was not pursued further by the police. 26

[27] In re-examination, Ms Adachi said that apart from the warning concerning the drycleaning issue, she had never received a warning relating to performance or attitude. 27

Ms Jarrett

[28] Ms Jarrett gave sworn evidence and submitted a witness statement 28. It was her statement that she is employed by Qantas as a Customer Service Manger Long Haul and has been in this role since May 2007. Prior to taking up her current position, Ms Jarrett worked as a First Class Flight Attendant and a Customer Service Supervisor. She has been employed by Qantas since May 1996. In her current role, she is “responsible for leading, supporting and managing the performance of Cabin Crew to achieve outstanding service and safety standards on every flight. The Customer Service Manager is the Onboard manager for all cabin crew and reports directly to the Captain. The Customer Service Manager is also responsible for following up on all crew related safety issues whilst on the ground.”

[29] Ms Jarrett went on to say that from 10 August 2011 until 5 May 2013 she was seconded into the role of a Cabin Crew Manager Sydney International, in which role she directly managed the performance and productivity of 33 Customer Service Managers and 44 Customer Service Supervisors. Those persons are collectively known as Onboard Managers, one of whom was Ms Adachi. Cabin Crew Managers are required to conduct six monthly interim Key Performance Indicator Reviews and an annual Key Performance Indicator Review. The statement went on to set out in some detail the process used by Qantas in assessing an Onboard Manager’s performance.

[30] The statement went on to deal with performance and behaviour issues relating to Ms Adachi. On 11 December 2007, Ms Adachi received a formal written warning relating to the inclusion of personal garments with her Qantas drycleaning. It went on to set out a number of incidents where Ms Adachi’s performance was allegedly deficient. I have paid regard to that material. The statement goes on at length in relation to the Applicant’s Key Performance Indicator Reviews for 2010/2011 and 2011/2012. Again I have paid regard to that material. Ms Jarrett went on to set out alleged incidents between Ms Adachi and other Qantas employees and again I have paid regard to that material.

[31] In cross-examination, Ms Jarrett said that she had concerns about Ms Adachi’s ability as a Supervisor on board a new aircraft and did not think that her work performance demonstrated a commitment to Qantas. 29 Ms Jarrett agreed that Ms Adachi only received one formal warning in 25 years and no warnings concerning performance.30

[32] In further cross-examination, Ms Jarrett said that Ms Adachi had not received any informal warnings either concerning her performance or her conduct. 31 In answer to a question from me, Ms Jarrett said that there had not been any formal customer complaints against Ms Adachi.32

Mr El Khoury

[33] Mr El Khoury gave sworn evidence and submitted a witness statement 33. In his statement, Mr El Khoury said that he has been employed by Qantas since August 1993 and as a Customer Service Manager Long Haul since 2006. Prior to taking up that role he worked as a Customer Service Supervisor from 2002. From December 2012 until early May 2013 he was seconded as a Flight Attendant Manager Long Haul. That role is ground-based and he was responsible for the support and management of flight attendants. He had flown with the Applicant “on a few occasions … I considered that we had a friendly working relationship.” From 29 January to 15 February 2013 he conducted an On Board Managers Refresher Training course which Ms Adachi was required to attend as she had failed to meet her Key Performance Indicators for 2011/2012. Ms Adachi did not attend the course and he was told by Ms Reddan that the Applicant had reported as unfit for duty. Later that week Ms Reddan told him that Ms Adachi was absent on stress leave for the duration of the course.

[34] On 17 February 2013, he spoke with Ms Adachi while he was seated at the Flight Attendant Manager Desk in the sign-on area at Sydney International Terminal. He tried to speak to the Applicant about the need to attend a Refresher Program. Ms Adachi wanted to go to the kitchen area, he followed her there as it was “more private as there was no-one else in there at that time.” He and Ms Adachi discussed the Refresher Course and the Applicant agreed to do the course. Ms Adachi then handed him a WorkCover certificate dated 16 February certifying her as ‘fit for suitable duties’. This would not allow her to go back to flying duties. Ms Adachi became angry and they returned to the desk. On the way back he told Mr Bond that he might have to remove the Applicant from her scheduled flight. When at his desk, he phoned the Operations Department to inform them of the situation. After speaking to the Operations Department, the following exchange occurred between hIM and the applicant:

[35] He then spoke to Ms Thorne, the On Call Cabin Crew Manager. Ms Thorne confirmed that Ms Adachi could not fly under the terms of her WorkCover certificate. Mr El Khoury went on to say that he attempted to explain the status of the WorkCover certificate and that he had referred it to a higher manager for a final decision as to whether she could fly that night.

[36] “I was holding the certificate which was folded in half in both hands whilst checking an email. Keiko then lunged at me and attempted to try and snatch the Certificate from my hand. Using her right hand, she physically pulled the fingers on my left hand apart and bent my fingers back. She said ‘I want that back’. When she could not release my fingers, she crunched and ripped the paper whilst it was in my hand.”

[37] “I was shocked by what was occurring and I felt my personal space had been breached. The whole experience felt surreal. I said to Keiko words to the effect of: ‘Keiko, stop what you are doing. This behaviour is completely unacceptable and in breach of the Standards of Conduct Policy. Keiko, please let go immediately. Your behaviour is out of line and can potentially put your employment in jeopardy. This is a legal document. You are trying to rip up a legal document. Keiko, you need to sit down. Keiko, you need to take a deep breath and calm down. I will get a copy of this from for you and keep the original.”

[38] Ms Adachi then sat down and “started hitting her knees and saying words to the effect of: ‘This is my fault. I should have never shown you this form.’”

[39] Ms Thorne then called him back and told him that Mr Loughnan had confirmed that Ms Adachi must be removed from duty. He informed the Applicant and told her that “the pre injury duties box must be ticked in order for you to go back to flying.” He then telephoned the Operations department to organise a replacement for Ms Adachi and also arranged for the Applicant’s bags to be removed from the flight.

[40] Following this, he got a glass of water for Ms Adachi and she “appeared to have calmed down”. The following conversation ensued:

[41] He then took the damaged certificate to a photocopier and told Mr Bond that there was a discrepancy in Ms Adachi’s paperwork and she would need to be removed from the flight. He then made a photocopy of the WorkCover certificate and gave it to the Applicant.

[42] “I then escorted Keiko through Customs and Border Protection. I assisted Keiko to retrieve her luggage from Carousel 8. I took Keiko outside to the cab rank and we had a conversation with words to the effect of:

[43] He has not spoken with Ms Adachi since that day.

[44] He then telephoned Ms Thorne, told her what had happened and was told to put a report in writing. On 18 February, he sent an email to members of Cabin Crew Management outlining the incident with Ms Adachi and on 19 February he spoke with Mr Byrne in person about it. Mr Byrne asked him to provide a written statement. “As I gave my statement, [Mr Byrne] took notes of what I was saying.” After that meeting with Mr Byrne, he had no further involvement in the investigation.

[45] Mr El Khoury’s witness statement went on to offer a rebuttal of Ms Adachi’s evidence. Specifically he denied raising his voice in his conversation with the Applicant on 17 February. He said that he “spoke in a soft, modulated tone so that none of the other crew in the room could hear.” He did not initiate any physical contact with the Applicant and did not “grab her arm of push her body away.” I have also had regard to the other aspects of Mr El Khoury’s statement as it concerns Ms Adachi’s evidence.

[46] In cross-examination, Mr El Khoury was asked about the need for Ms Adachi’s WorkCover certificate to specify that she was ‘fit for pre-injury duties’. He replied: “We're an airline. It was for the safety of the customers, the safety of the crew that I could not allow her to fly that night without double-checking to ensure that fit for pre-injury duties had to be ticked prior to that because my training told me so.” 34 Mr El Khoury denied that he was eating while he escorted Ms Adachi from the airport.35 Mr El Khoury was then asked why he did not allow Ms Adachi to retrieve the certificate by letting go of it. He replied: “Well, I could have but the thing is, you don't expect to be assaulted by a fellow crew member, especially when you're holding a document that's a legal document, and to have someone start to rip your fingers apart and try to take something out of your hands - which I had a grip of - I probably should have let go but at the same time I've got the grip on the actual sheet. It's a legal document. She's given it to me. To have someone rip your fingers trying to remove that document is completely unacceptable and it basically breaches our standards of conduct policy.”36 He went on to say that he remained calm at all times during the incident with Ms Adachi.

[47] In further cross-examination, Mr El Khoury:

Maintained that it was Ms Adachi who tore the certificate. 38

Said: “She successfully managed to rip the form and crunch it before I got it back from her? No, what happened was, it was in my hand. She managed to rip it and crunch it and then I, with me firmly gripping onto it, I managed to get it back off her then at that point in time.” 39

Said that he did not call for security staff as his priority was the welfare of Ms Adachi because she had been on stress leave and he did not want to add any more stress. 40

Said that he was the only manager available to escort Ms Adachi from the building. 42

Described Ms Adachi’s tone during the incident as ‘adamant’ and although she was sometimes loud both of them “kept our tone professional at all times ...”. 43

Described Ms Adachi as adopting ‘an angry stance’ during their conversation. 44

Said that Mr Bond saw “the screwed up copy” but that he did not show it to Mr Bond. 45

Denied touching Ms Adachi during the incident. 46

Said that he was questioned by police about the incident with Ms Adachi. 47

Said that police told him that the incident was a case of one person’s word against that of another and as there were no witnesses, the police declined to take the matter any further. 48

Agreed that Ms Adachi released her hold on the document when told by him that her behaviour was putting her job in jeopardy. 50

Said that he held on to the WorkCover certificate because it was a legal document. 51

Said that Ms Adachi “was trying to destroy the document and take it with her.” 52

Mr Bond

[48] Mr Bond gave sworn evidence and submitted a witness statement 54. In his statement, Mr Bond said that he has been a Customer Service Manager Long Haul since 2001. Prior to that, he worked as a Customer Service Supervisor from July 1999. He has worked for Qantas since October 1992.

[49] “In my role as Customer Service Manager Long Haul, I am responsible for leading, supporting and managing the performance of Cabin Crew to achieve outstanding service and safety standards on every flight, and to establish the reputation and image of Cabin Crew as a distinct competitive advantage for the Qantas Group.”

[50] On 17 February, he entered the crew lounge area at the Sydney International Terminal, being rostered to fly that evening. He saw Ms Adachi saying ‘hello’ to other cabin crew members. He then observed Ms Adachi and Mr El Khoury talking in the kitchen area some 4 metres from him. Mr El Khoury had his back to him and Ms Adachi was facing him: “I observed the discussion between [Mr El Khoury] and Keiko. Whilst there was no shouting, and I was unable to hear the words exchanged, Keiko was in a very close proximity to [Mr El Khoury]. Keiko’s face was bright red and her facial expression appeared to me to be highly agitated and wound up. I saw [Mr El Khoury] moving his arms in what appeared to be an explanatory manner. I got the impression that something was wrong and that [Mr El Khoury] was trying to claim Keiko down. After a few minutes, [Mr El Khoury] and Keiko left the kitchen area and moved towards the cabin crew lounge area. At this point, I left the Briefing Room to use the photocopier.”

[51] He was later approached by Mr El Khoury and saw that Mr El Khoury “was holding a piece of paper that had been screwed up and then re-flattened out.” He spoke with Mr El Khoury who informed him that Ms Adachi would not be joining the flight that evening. Mr El Khoury said words to the effect: “Keiko tried to grab the paper from me. She gave me the medical certificate and then ripped it out of my hands.” He could see Ms Adachi and formed the impression that she was “highly agitated”.

[52] Mr Bond went on to say that the flight had to leave short-crewed and that it “was stressful and challenging” because they were one crew member short.

[53] On 19 February, he had a telephone discussion with Mr Byrne during which he gave Mr Byrne his account of the events of 17 February. He then sent an email to Mr Byrne outlining his recollection of events. “I understood that this information would form part of an investigation being conducted by [Mr Byrne] under Clause 11 of [the Agreement] into the alleged conduct of Keiko Adachi on 17 February 2013.”

[54] On 14 March 2013, he received a telephone call from Mr Byrne seeking to clarify certain aspects of his 19 February email: “In particular, whether I specifically saw Keiko trying to snatch paper out of [Mr El Khoury]’s hands.” He then prepared a further statement dated 15 March 2013. 55 That new statement said:

[55] Mr Bond went on to say that he did not intend to mislead the Investigation by Mr Byrne and that he had not been asked by anyone to give the version of events that he set out in his email of 19 February.

[56] In cross-examination, Mr Bond said that he did not realise that the information he provided to Mr Byrne in his email on 19 February was incorrect until he was contacted by Mr Byrne again on 14 March. 56 He went on to maintain his evidence that Mr El Khoury told him that Ms Adachi had “grabbed a piece of paper”.57 He went on to say that Mr El Khoury told him that Ms Adachi had screwed the paper up.58 Mr Bond agreed that his knowledge of the incident concerning the WorkCover certificate was based on what he was told by Mr El Khoury.59

[57] Mr Bond went on to say that the flight which left without Ms Adachi on 17 February 2013 suffered from poorer in-flight service than usual because of Ms Adachi’s absence. 60 Mr Bond was then asked: “So you are stating some of the difficulties of that trip and the lack of complete service down to Ms Adachi?” and said: “Yes, because she was not prepared to come to work properly. When you come to work, you have to acknowledge that you've clicked ‘comply’ on the computer that you understand all the rules and conditions of our work, and having a workers compensation claim is not compliant to that. You can't come to work. It had a very significant effect on my flight because we were one person short. We only had 13 cabin crew in total, and 364 people on board.”61 Mr Bond said that he had not discussed the 17 February incident with Mr El Khoury after that date.62

Mr Loughnan

[58] Mr Loughnan gave sworn evidence and submitted a witness statement 63. Mr Loughnan is currently Head of Safety, Crewing and International Airports, International Customer Experience and has held this position for some two years. Prior to taking on his current role, Mr Loughnan was Head of International Cabin Crew for about a year and prior to that was Head of Domestic Cabin Crew for some six years.

[59] “I am responsible for the safety of International Cabin Crew, Airport Staff and Lounge Staff. This entails setting policies and procedures in these areas; investigating all safety occurrences and driving improved performance across these workgroups.”

[60] “In the role of Head of Safety, Crewing and International Airports, International Customer Experience; Head of International Cabin Crew and Head of Domestic Cabin Crew, I had responsibility for a 24/7 ‘escalation phone’, which is shared amongst senior managers within Customer Experience so that manager support is available to the operational team if necessary 24 hours a day.”

[61] On the evening of 17 February 2013 he had responsibility for the escalation phone and received a telephone call from Ms Thorne reporting that Ms Adachi had reported for duty with a WorkCover certificate indicating that she was fit for ‘suitable duties only’. Ms Thorne had said words to the effect: “We don’t think she should be operating and we told her that; however she is very upset, she’s tried to take the certificate back.” Mr Loughnan confirmed Ms Thorne’s view that Ms Adachi could not perform cabin crew duties unless she possessed a certificate certifying her as ‘fit for pre-injury duties’.

[62] “I have never met Keiko and I was not aware of the reason for her WorkCover certificate or what the certificate said in relation to her suitable duties. I am now aware that the certificate stated that she was not fit for ground duties with certain staff members. This does not change my decision regarding whether Keiko should have been allowed to operate.”

[63] Mr Loughnan continued by saying that “suitable duties is a tier below being fully fit for duty”. He was not aware of any crew member who was permitted to work on a flight “with a suitable duties certificate”. Ms Adachi had been treated in the same manner as any other cabin crew member who may have presented a similar medical certificate. Cabin crew are required to be fully fit for pre-injury duties for safety reasons and to handle any possible emergency on board an aircraft. This may involve the evacuation of customers in a stressful and challenging environment. It may also be necessary on occasion for cabin crew to deal with incidents involving alcohol or other drugs and it is therefore essential that crew are fully capable for all duties, both physically and mentally, when they sign on to fly.

[64] In cross-examination, Mr Loughnan confirmed his evidence that a cabin crew member can only fly if fit for pre-injury duties. 64

Mr Byrne

[65] Mr Byrne gave sworn evidence and submitted a witness statement 65. It was his statement that since April 2013 he has been a Service and Performance Manager, International. Prior to taking up his current position, he worked as a Cabin Crew Manager from August 2012 and prior to that as a Flight Attendant Manager from July 2011. He has been a Qantas employee since September 1995. In his current role, Mr Byrne is “responsible for managing the performance, development and recognition of a team of cabin crew.”

[66] On or about 18 February 2013, he received an email from the then Manager Cabin Crew Performance, Ms R Reddan, forwarding an email from Mr El Khoury detailing the incident on 17 February involving Ms Adachi and he was directed by Ms Reddan to commence an investigation (the Investigation) under clause 11 of the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (the Agreement). On or about 19 February 2013, he met with Mr El Khoury who said words to the effect concerning the incident:

[67] Mr Byrne then proceeded to take a statement from Mr El Khoury in person as part of the Investigation. The content of Mr El Khoury’s statement 66 was in very similar terms to those set out in his witness statement.

[68] Mr Byrne subsequently had a telephone discussion with Mr Bond and asked him to send him an email setting out his recollection of the incident on 17 February. Mr Byrne received the email as requested. Mr Bond’s email dated 19 February 67 said:

[69] On or about 21 February, Mr Byrne was advised by Ms Reddan that Ms Adachi should be “held out of service on full pay.” He then spoke to Ms Adachi about the alleged incident and told her that she was to be ‘held out of service’ on full pay. Mr Byrne then sent (by email and post) a Letter of Allegations 68 to Ms Adachi which included copies of statements by Mr El Khoury and Mr Bond, together with information regarding the investigation process and directing Ms Adachi to provide a written response by 25 February.

[70] The Letter of Allegations dated 21 February 2013 said:

[71] He then had two telephone conversations with Ms Adachi on 22 February during which he formed the impression that Ms Adachi was not listening to what he was saying in relation to her preparation of a response to the Letter of Allegations. No response was received from Ms Adachi by close of business on 25 February and Ms Adachi failed to attend the scheduled meeting.

[72] On 27 February, he sent an email to Ms Adachi noting that he had not received a written response to the Letter of Allegations and that she had not attended the scheduled meeting. He was concerned for her wellbeing and asked her to advise him of her current status and when she would be able to provide a written response and attend a meeting with him. On the same day he received a reply from Ms Adachi asking him to contact Ms Reddan or the Flight Attendants’ Association of Australia. He then sent a further email to Ms Adachi advising her that he was running the Investigation and asking her to adhere to the requirements of the Investigation pursuant to clause 11 of the Agreement. He again asked Ms Adachi to respond to his earlier email on the same day. The next day he again emailed to Ms Adachi, directing her to provide a written response by 1 March 2013 and telling her that if she did not do so, he would proceed with the Investigation “based on the information that I had available to me.”

[73] On 1 March 2013, Mr Byrne received a further email from Ms Adachi which stated that she was ill and “should be left to rest’. Ms Adachi also alleged that Mr Byrne’s conduct during the Investigation amounted to “continuous harassment and discrimination”. On the same day he sent a further email to Ms Adachi stating that it was reasonable for her to respond to the Letter of Allegations in writing and denying he was subjecting her to either harassment or discrimination. He directed Ms Adachi to provide a written response by 4 pm on 1 March. At around 5:07 pm on 1 March, he received a further email from Ms Adachi alleging that his correspondence had worsened her psychological state and health.

[74] Further email correspondence between Mr Byrne and Ms Adachi ensued, and on 5 March he sent her a letter by email and post advising that the Investigation had found the allegations to be substantiated. That letter, in part, said:

[75] Mr Byrne’s letter of 5 March went on to say that the “substantiated allegations” were in breach of the Qantas Group Standards of Conduct Policy in relation to the behaviour of managers and employees, standard of personal behaviour and unacceptable behaviour, misconduct and serious misconduct and the guidelines for clearance to resume work after illness. The letter then went on to say:

[76] Further email correspondence ensued. Ms Adachi did not attend the scheduled meeting on 7 March and he then wrote to her giving her a final opportunity to provide written reasons as to why her employment should not be terminated. Ms Adachi was directed to provide those reasons by 11 March and further directed to meet with him on 13 March to discuss the outcome of the Investigation. Ms Adachi did not provide any response by 11 March. Mr Byrne then “proceeded to consider the appropriate outcome of the Investigation.”

[77] “In doing so I considered principally the physical aggression that she had shown towards Flight Attendant Manager [Mr El Khoury] on 17/02/13 and the concerns that I had with this in the context of her responsible role on board an international Qantas flight. This behaviour was and is totally unacceptable behaviour for a Qantas flight attendants, let alone one in a supervisory role, and, if repeated in flight, could have serious consequences for the safety of the aircraft and its occupants. In addition, I was concerned by her fractured relationship with Qantas (indicated by many disparaging emails she had written to senior management during the investigation process, ...) and her lack of awareness of her roles and responsibilities as a Manager within Qantas by signing on for duty and accepting the Sign On Acknowledgment, which is required to be accepted by all cabin crew when signing on, ... without the correct documentation. Keiko should have been aware that she was required to be fit for pre-injury duties before signing on as she had previously been unable to fly after she presented a WorkCover medical certificate on 8 May 2012 that stated she was fit for suitable duties only.”

[78] “I came to the conclusion that, given the seriousness of what had occurred, termination of employment was the appropriate outcome and that this outcome would be communicated to Keiko at our meeting on 13 March 2013.”

[79] Further correspondence between Mr Byrne and Ms Adachi followed. Mr Byrne then decided to obtain statements from all other Cabin Crew on the flight to confirm whether another member of the Cabin Crew observed the alleged incident between Ms Adachi and Mr El Khoury. Those unsigned statements are in eleven cases dated 13 March and the twelfth is dated 14 March.

[80] Attached to the witness statement were statements from twelve Qantas Cabin Crew employees 69. I will not name the twelve employees in this decision but have set out a summary of each of their statements below:

Employee 2 did not witness any interaction between Ms Adachi and Mr El Khoury.

[81] On or about 14 March 2013, Mr Byrne telephoned Mr Bond. Mr Bond told him that he did not see Ms Adachi ‘snatch the paper’ from Mr El Khoury’s hands but did observe a conversation between the two and was clear that Ms Adachi was ‘highly agitated’. He later saw Mr El Khoury “holding a piece of paper that had been screwed up and folded out again. I formed the view that Keiko had tried to snatch the paper out of [Mr El Khoury’s] hands whilst they were having a heated discussion in the kitchen, because of the condition of the piece of paper.” Mr Bond went on to deny that his original statement was intentionally misleading or that Mr El Khoury had asked him to fabricate a story to support him.

[82] Mr Byrne then “reconsidered whether the allegations could be substantiated and whether termination of employment was the appropriate outcome.” He formed the view that although Mr Bond had “revised his statement”, his observations were still consistent with the version of events presented by Mr El Khoury. “On this basis I concluded that the allegation of physical aggression towards [Mr El Khoury] could be substantiated.” He went on to decide that the termination of Ms Adachi’s employment “was warranted in the circumstances”. On 15 March 2013 he sent a letter of termination 70 to Ms Adachi. That letter said:

[83] “During the course of the Investigation I became aware that Keiko had been involved in another incident with a Brisbane-based CSM, in which she was the complainant, and that she had expressed an interest in a voluntary redundancy. These matters, however, were not considered by me in determining the outcome of the investigation.”

[84] “I have serious concerns about aspects of Ms Adachi’s behaviour which are threatening and volatile which could result in damage to Qantas customers, employees and its brand. It is clear that Keiko has a very fractured relationship with Qantas Management, certain colleagues, and the company as a whole and I am of the belief that this is beyond repair. Furthermore, she is unwilling to accept any feedback relating to her performance as a manager. This is evident during her employment with Qantas, in particular in the most recent years pertaining to her KPI performance reviews.”

[85] Mr Byrne’s statement went on to reply to aspects of Ms Adachi’s evidence. Mr Byrne denied that he refused to tell Ms Adachi why she was being held out of service and further denied that he said words to her to the effect that the allegation was a simple and straightforward one and should move quickly. He further denied that Ms Adachi had told him that she and Mr El Khoury left each other’s company on 17 February on good terms and also denied that Ms Adachi had ever told him that Mr El Khoury had physically pushed her. Rather, Ms Adachi had told him that Mr El Khoury had raised his voice and had been forceful in his manner.

[86] Mr Byrne went on to note that although Ms Adachi stated that she was medically unfit and therefore unable to participate in the Investigation, she had provided a WorkCover certificate on 23 February 2013 indicating that she was fit for suitable duties. Ms Adachi was offered several opportunities to respond to the allegations against her and/or to meet with Mr Byrne during the course of the Investigation.

[87] Mr Byrne closed his witness statement with an explanation as to the difference between a crew member being ‘stood down’ from a flight and a crew member being ‘held out of service’. The first case relates to an employee being not fit for travel and the second “is as a result of misconduct, or serious misconduct.”

[88] In cross-examination, Mr Byrne:

Also said that he was aware that she had expressed an interest in taking voluntary redundancy. 72

Agreed that Ms Adachi was dismissed for serious misconduct. 73

Said that he did not meet with Ms Adachi in person during the Investigation. 74

Said that there were consistent statements from Mr El Khoury and Mr Bond that “there had been an altercation of some kind around a piece of paper. So that was consistent for me.” 75

Said that he believed that Mr Bond’s amended evidence was still “consistent with the interaction that took place.” 78

Said that he had total faith in Mr El Khoury as to his reliability. 79

Said further that he knew Mr El Khoury extremely well, “So I had total faith that what John was telling me was quite accurate.” 80

Said that the decision to terminate Ms Adachi’s employment was ultimately taken by another senior manager, Mr I Jackson. 81

Said that the decision to terminate Ms Adachi’s employment was taken on 13 March 2013. 82

Repeated that he did not meet with Ms Adachi during the Investigation and although Ms Adachi possessed a WorkCover certificate, that certificate indicated that she was fit for suitable duties. “The fact is though that actually Ms Adachi was responding through emails to other areas. She was liaising with people services. She emailed senior management. She emailed [Ms Redden]. The only thing that she didn't actually do really was provide me a response to the allegations which I asked her to do. So I couldn't really come to the conclusion that Ms Adachi was to psychologically affected that she was unable to provide me a response considering that there was considerable correspondence coming from her that indeed, you know, reading her emails, they were well structured, they were elegant - eloquent, my apologies. They were not written by somebody who I would call totally unfit.” 84

Was questioned about the statements supplied by twelve other Qantas cabin crew who were in the vicinity on 17 February 2013.

Said that he was not shocked when Mr Bond amended his recollection of the events of 17 February 2013. “I was curious I guess and inquisitive and I wanted to find out more.” 86

Maintained that the amended statement from Mr Bond remained consistent with the type of interaction described by Mr El Khoury. 88

Said that Mr Jackson “signed off the termination” on 12 March. 89

Was asked by me: “The original question was that if the tug of war had not occurred, would Ms Adachi have been sacked?” and said: “No, I don't think so, because to me that is the absolutely deciding factor in this. It was all for me making this decision where physical aggression had come into the workplace.” 90

Was asked by me: “Physical aggression being the prising of the fingers?” and said: “Correct. Yes, in particular.” 91

[89] In re-examination, Mr Byrne said that prior to the decision to terminate Ms Adachi, he was aware of Ms Adachi’s allegation that Mr El Khoury had pushed her. 92

Outline of Applicant’s argument

[90] The Applicant filed an outline of her argument, per Mr Pinchen, prior to the arbitration. 93

[91] In the written outline, Mr Pinchen dealt with the history of this matter. That history is clear from the material earlier in this decision and most of it will not be repeated here.

[92] The outline went on to rely on Ms Adachi’s witness statement to refute Mr El Khoury’s evidence that she prised his fingers apart when seeking to retrieve the WorkCover certificate. The outline relied on the evidence of Ms Adachi and the statements from twelve Qantas employees, which were part of Mr Byrne’s evidence, to refute Mr El Khoury’s evidence that Ms Adachi shouted at him.

[93] The outline went on to say that the allegations against Ms Adachi are extremely serious and include misconduct involving assault and a deliberate breach of company procedures regarding WorkCover certificates. In this regard, Mr Pinchen argued that the standard of proof set out in Briginshaw v Briginshaw 94 should be applied. In that decision, the High Court said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”95

[94] “We submit that the Respondent has not proved to the satisfaction of FWC on the balance of probabilities that the Applicant was guilty of misconduct or breaching the company policy in circumstances which would warrant dismissal.”

[95] It was further submitted that Ms Adachi believed in good faith that the WorkCover certificate she presented to Mr El Khoury on 17 February 2013 would allow her to fly on that day. There was no ground for Qantas to contend that the presentation of that certificate constituted part of a valid reason for dismissal. Allegations of poor performance and conduct against Ms Adachi were vague and therefore unable to form part of a valid reason for dismissal.

[96] The outline went on to deal with the question of ‘proportionality’. Mr Pinchen argued that the onus of proof falls upon Qantas to establish both that the alleged conduct occurred and that it was of sufficient seriousness to form part of a valid reason for termination of employment.

[97] “To categorise a single incident as misconduct of such as extent as to justify dismissal, the Respondent must prove its gravity. Macken’s Law of Employment indicates that ‘a single act of misconduct would justify dismissal only if it was of such a nature as shows that the employee is repudiating the contract or one of its essential conditions. The gravity of the alleged conduct will determine whether a single act constitutes the requisite misconduct for dismissal’. We submit in these circumstances the Applicant’s conduct lacked the gravity required in this test, and that the Applicant did not repudiate her contract of employment. To the contrary, the Applicant was unaware that her return to work on a ‘suitable duties’ certificate would cause consternation at Qantas, and expended every effort to remain in employment. The Applicant’s actions had minimal actual impact upon the Respondent’s business.” [citation omitted]

[98] “Given the Applicant’s lack of prior warnings pertaining to either conduct or performance, and that the Applicant’s actions in returning to work on a “suitable duties” certificate occurred from mistaken belief rather than malice, termination was out of all proportion in response to the Applicant’s conduct.” Ms Adachi did not try to deceive or mislead Qantas but was “deeply distressed and disabled by depression and anxiety...”

[99] “Accusations of misconduct have entirely altered the Applicant’s future employment opportunities, and especially given that after 25 years as a flight attendant and supervisor this is the only employment area in which she has significant experience, the repercussions for the Applicant’s future employment are severe. We submit that termination was disproportionate to the gravity of the Applicant’s actions, and is not a valid reason for dismissal.”

[100] “The Applicant’s employment was terminated before she was medically capable to give a thorough response to the reasons for dismissal. The decision to terminate was made without any meeting being held with the Applicant. We submit that this constitutes an unjustifiable denial of the Applicant’s right of response. This conduct is unreasonable and potentially discriminatory on the basis of disability.”

[101] “We would submit that there are a number of flaws in the process adopted in the termination of the Applicant’s employment, which combine to make the dismissal unfair. These include:

[102] Mr Pinchen went on to say that Ms Adachi was denied natural justice and a fair go by Qantas. Qantas did not consider any other reasonable options in lieu of dismissal and this was “particularly unjust considering the Applicant’s long tenure and excellent employment history.”

[103] The outline closed by arguing that the most appropriate remedy was the reinstatement of Ms Adachi together with an order to maintain her continuity of employment and to compensate her for lost pay. In the alternative, Mr Pinchen argued that, should reinstatement not be considered an appropriate remedy, an order for compensation should be made.

Outline of Respondent’s argument

[104] Qantas filed an outline of argument, per Mr Warren, prior to the arbitration. 96

[105] In the written outline, Mr Warren also dealt with the history of this matter and again I note that most of that material is contained earlier in this decision and will not be repeated here.

[106] The outline went on to say that Ms Adachi’s employment “was terminated following her serious misconduct whilst at work on the 17 February, 2013.” That serious misconduct arose from signing on to fly whilst knowing that she possessed a WorkCover certificate only allowing her to perform suitable duties. Also, the serious misconduct arose from the altercation/incident with Mr El Khoury which resulted in the certificate being damaged.

[107] “The Applicant’s actions towards Mr El Khoury were totally inappropriate and unacceptable for an employee in her position and contrary to the Respondent’s Standards of Conduct Policy.”

[108] “Following the events of 17 February, 2013, the Respondent embarked on a thorough investigation of the events of the 17 February, 2013. The investigation was commenced on 19 February, 2013 and largely conducted by John Byrne, who was at the relevant time, a Cabin Crew Manager, with the Respondent.” Ms Adachi failed to respond to allegations put to her and refused to attend meetings with Mr Byrne, despite several attempts by Mr Byrne to obtain her cooperation.”

[109] The outline went on to rely on the evidence of the Company’s witnesses as to the events of 17 February and after.

[110] “The Applicant was terminated for two principal reasons. Firstly, that she asserted that she was fit to fly, when she was not, and further and most importantly, as a result of her physical altercation with Mr El Khoury including forcibly touching him in an angry and violent manner. Such actions of the Applicant created a circumstance where, bearing in mind the discreet nature of her employment, clearly created a valid reason for termination. It was a reason sound, well founded and defensible.”

[111] “Furthermore, and contrary to the case put on behalf of the Applicant, the Applicant was not an employee with an unblemished performance record. Rather, she was at the time of the incident, on notice of having failed to satisfy Key Performance Indicators for her position and was under notice of needing refresher training at least in an attempt to encourage her to improve her performance and manner of carrying out her duties. These matters were taken into account when assessing penalty.”

[112] “The Applicant was given every opportunity, including a second and third chance to respond to the allegations against her, yet failed to adequately address the issues raised.”

[113] In relation to unsatisfactory performance, Mr Warren argued that the dismissal of Ms Adachi, although primarily as a result of her actions towards Mr El Khoury on 17 February 2013, her history of unsatisfactory performance and warnings issued to her during counselling in 2010 and 2011 plus her conduct over the drycleaning issue in 2007 may also have led to the termination of her employment.

[114] Mr Warren went on to argue that Ms Adachi “was afforded procedural fairness of the highest order prior to the Respondent arriving at its decision to terminate her employment.”

[115] Mr Warren said that based on the evidence of Mr El Khoury, Mr Byrne and Ms Jarrett, Qantas has no confidence in Ms Adachi’s ability to alter her behaviour patterns and correct the clear deficiencies which have been identified in her work ability.” “Even if it is put by the Applicant that her actions should be excused because she was in a stressful situation, which is denied by the Respondent, her actions have demonstrated that she is unsuitable for continued employment with the Respondent. In her position with the Respondent she had responsibility for the safety of passengers in a very confined environment in potentially dangerous and challenging situations. ... The Respondent had every reason to be concerned sufficiently to terminate her employment on the basis of a loss of trust and confidence in her ability to perform her role.”

[116] Mr Warren closed his outline by arguing that Ms Adachi’s application for relief should be dismissed and, in the alternative, reinstatement should be refused.

Applicant’s supplementary submissions

[117] At the hearing on 24 October 2013, Mr Pinchen presented further written submissions 97.

[118] Those submissions largely expanded on the outline summarised above but also added some new arguments.

[119] Mr Pinchen said that the evidence of Mr El Khoury was “incorrect and exaggerated” in relation to the condition of the WorkCover certificate.

[120] “Whilst the Respondent may encourage FWC to disregard part of Mr Byrne’s evidence on the basis that Mr Byrne lacks the legal training to make the distinction between misconduct and serious misconduct, Qantas clearly saw Mr Byrne as fit to make the decision to dismiss the Applicant. Mr Byrne conducted the investigation into the Applicant’s conduct and signed the 3 principal letters presented to the Applicant regarding the investigation...”

[121] Mr Pinchen went on to argue that Qantas senior managers were content to allow Mr Byrne to in effect be the principal decision maker in the dismissal of Ms Adachi, although “there does not appear to be the case that Mr Byrne sought legal or industrial relations advice regarding the distinction between misconduct and serious misconduct, or indeed what constitutes a ‘valid reason’ for dismissal.”

[122] “We submit that even if Mr El Khoury’s evidence were entirely accepted, the Applicant’s alleged actions did not have the potential to cause serious injury to individuals or damage Qantas Group Premises, Qantas Group property or other assets. The Applicant’s alleged actions did not constitute serious misconduct according to Qantas’ policy. We furthermore submit that the Applicant’s alleged actions do not constitute threatening or intimidating behaviour including verbal or written abuse, physical abuse or assault.”

[123] “The Applicant has no history of physical touching or aggressiveness in her 25 years of employment with Qantas, there is no evidence to lead to the assumption that the Applicant will be aggressive or engage in touching behaviour in the future, and indeed little to no credible evidence to lead to the assumption that the allegations occurred in the first place.”

[124] Mr Pinchen cited the decision in North v Television Corporation Ltd 98 (North). The decision in North said:

[125] The submissions went on to argue that the investigation process was ‘rushed’ during a period when Ms Adachi was unwell and unable to fully take part in it. The Investigation itself was flawed due to the weight given to the evidence of Mr El Khoury and a failure to seek witness statements from other persons who were in the vicinity on 17 February 2013. “Indeed the alleged incident did not appear to rouse concern in other employees present, despite their thorough training to raise safety concerns.”

[126] “Mr Byrne indicated that, despite the recanted evidence from Mr Bond and lack of corroborating evidence, he believed Mr El Khoury’s allegations because he previously knew Mr El Khoury and admired his work, whereas he did not know the applicant. This attitude indicates that Mr Byrne’s investigation was influenced by unfair bias and the conflict of interest unjustly determined Mr Byrne’s examination of evidence.”

[127] “In deciding whether to reinstate the Applicant, FWC should consider the Applicant’s personal circumstances, the Applicant’s length of service, the Applicant’s service history, the ability for the Applicant and Respondent to maintain a good relations.”

[128] “The Applicant has a good employment record for an employee with 25 years of service. The Applicant concedes she received one warning. This warning was issued some 5 years ago, regarding a $7.55 claim for dry cleaning for which there was no repeat issue, and is totally unrelated to the matters regarding the termination.”

[129] Mr Pinchen went on to say that Ms Adachi does not have a fractured relationship with Qantas and if reinstated, she would be unlikely to have much interaction with Mr El Khoury. “Of course the Applicant will participate in programs designed to maintain and further the employment relationship.” Qantas presented no real challenge to Ms Adachi’s evidence that she was “a good and productive employee”. “In the absence of warnings, specific counselling, training other than up-skilling, and in light of evidence of good overall performance, and exceptional customer relations, the Applicant would remain a valuable asset and productive employee.”

Oral arguments

[130] Mr Pinchen supported his written argument with further oral submissions. Those submissions dealt with some details of the written ones and I have paid regard to that material.

[131] Mr Warren did not file any written argument except for the outline which I have summarised earlier in this decision.

[132] In his oral submissions, Mr Warren drew my attention to the decision of O’Sullivan J in Schultz v Scanlan & Theodore Pty Ltd 99 (Schultz). In that decision, O’Sullivan J said:

[133] Mr Warren emphasised the three tests adopted by O’Sullivan J from the decision in Fox v Percy 100 that a decision should test: “contemporary materials, objectively established facts, and the apparent logic of events.”

[134] In the case of Ms Adachi, Mr Warren argued that the Applicant simply re-writes history, blames others or simply ignores objective facts as it suits her. In his view, this leads to “Ms Adachi either not being prepared to accept what was put to her by way of counselling or not being prepared to accept that she should attend any counselling sessions or any re-training sessions.” 101 He went on to say: “She was being required to go to training so as she could meet her current KPIs. It wasn't a question of training up or being - or being required to train up.”102

[135] Mr Warren said that Ms Jarrett’s evidence was not challenged in any material regard and should be accepted in its totality. Mr Warren continued by saying that Ms Adachi turned up to work on 17 February 2013 “knowing that she was not fit to fly”. 103 That however, on its own, would not have probably led to a termination of employment.

[136] Mr Warren went on to deal with the evidence of Mr El Khoury especially in relation to the incident between him and Ms Adachi over the WorkCover certificate. He said that the physical condition of the certificate is “entirely consistent with Mr El Khoury’s recollection of events and his evidence, entirely consistent. And it is inconsistent with the applicant's testimony.” 104

[137] Mr Warren went on to say that the evidence of Mr Byrne was reliable and he was entitled to reach the view he did based on Mr El Khoury’s evidence and the evidence of the condition of the WorkCover certificate. The decision made by Mr Byrne met the three tests set out in Schultz. “It doesn't matter whether Mr El Khoury was physically damaged for a period of time, or physically damaged for a long period of time. The fact is that he was physically assaulted... Just because there was a short occurrence, just because there wasn't any long lasting, at least, physical effect, there's certainly evidence that Mr El Khoury is still being troubled mentally by it. But heading along with this aspect does not lessen the occurrence of the event or the consequences of that event.” 105

[138] Mr Warren continued by arguing that Ms Adachi’s alleged action in trying to prise Mr El Khoury’s fingers from the certificate certainly constituted serious misconduct. The allegation is credible because Mr El Khoury reported it very soon after it occurred and Ms Adachi did not make any counter allegation of assault until much later.

Conclusions and findings

[139] Section 385 of the Act provides:

[140] As Ms Adachi’s conduct towards Mr El Khoury on 17 February 2013 was the dominant or principal reason for the termination of her employment, I must determine for myself whether the impugned conduct occurred and, if so, its nature and then, depending on the outcome of my determination of the earlier matters, whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 106:

[141] In Container Terminals Australia Limited v Toby 107, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”108

[142] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 109 said:

[143] In Qantas Airways Ltd v Cornwall 110, the Full Court of the Federal Court said:

[144] In Edwards v Justice Giudice 111, Moore J said:

[145] Ms Adachi’s employment was terminated on 15 March 2013 at the initiative of Qantas. The dismissal was effected by Mr Byrne, who gave evidence that it was based on serious misconduct. The two allegations against Ms Adachi were:

[146] The decision by Mr Byrne to terminate Ms Adachi’s employment was confirmed by senior management on or about 13 March 2013. The decision followed a finding by him that the Investigation had substantiated the two allegations put to Ms Adachi in his letter of 21 February 2013. His ‘show cause’ letter of 5 March added other matters but only requested that Ms Adachi ‘reflect’ on those matters.

[147] I am satisfied that the evidence of Ms Jarrett as to her knowledge and belief was truthful. I hold a similar view of Mr Loughnan. I also am satisfied that the evidence of Mr Byrne was truthful as to his recitation of events and his dealings with the persons involved in the Investigation. I do not believe he was motivated by any malice towards Ms Adachi. He conducted the Investigation in good faith but it was flawed and ultimately reached conclusions that were not available to him on the evidence.

[148] The role of Mr Bond in this affair is worthy of special mention and attention. His email to Mr Byrne of 19 February 2013 was almost entirely fictitious in his characterisation of what he saw on 17 February. At very best, all Mr Bond saw was Mr El Khoury speaking with Ms Adachi and later sighting the damaged certificate in Mr El Khoury’s hand. The rest of the allegations contained in his email were apparently created out of thin air. His email must have contributed to the decision of Ms Reddan on 21 February to hold Ms Adachi out of service. They must have been a significant factor in Mr Byrne sending his Letter of Allegations to Ms Adachi. Mr Bond then waited until 14 March to admit that he in effect saw nothing of significance on 17 February. By that time Mr Byrne had relied on his ‘evidence’ to bolster acceptance of Mr El Khoury’s version of events. When Mr Jackson signed off on Ms Adachi’s dismissal, Mr Bond’s ‘evidence’ was still considered reliable.

[149] He only changed his story when contacted again by Mr Byrne on 14 March who must have developed his own doubts about Mr Bond’s veracity. When questioned further by Mr Byrne, Mr Bond admitted, in effect, lying about what he had observed. Unless Mr Bond has an unusually vivid fantasy life then I can only conclude that he intended to mislead Mr Byrne and consequently to harm Ms Adachi. It is clear from his email of 19 February and his witness statement that he was angry with Ms Adachi for not being able to join the flight and I believe he then set out to do her any harm he could. I further believe that his actions were malicious and vindictive and played a significant role in leading Mr Byrne and other Qantas managers into error.

[150] Here, I wish to make it clear that I have no suspicion that Mr Bond was induced by Mr El Khoury or anyone else to provide false information. For whatever reason, he decided to do so on his own. He may have wished to assist Mr El Khoury but that will never be known. I strongly recommend to Qantas that the actions of Mr Bond be the subject of investigation and appropriate action.

[151] From the totality of the evidence and materials before me, and on the balance of probabilities, I will now deal with the two allegations against Ms Adachi which were the subject of findings by Mr Byrne and grounded his decision to terminate Ms Adachi’s employment.

[152] I now turn to Allegation One. I do not believe that Ms Adachi presented for duty on 17 February 2013 with a certificate which she knew would not entitle her to fly. I believe that Ms Adachi was keen to return to duty on that day but wanted to do so on her own terms. She therefore arranged with her GP to be issued with a certificate which she believed would allow her to fly but would also enable her to avoid Refresher Training by way of the GP’s notation on the certificate that she was “not fit for ground duties with certain staff members.” For some unknown reason, her GP ticked the ‘fit for suitable duties’ box and not the ‘fit for pre-injury duties’. Whatever conversation Ms Adachi and her GP had about the certificate and what it entitled her to do is completely irrelevant to my consideration. Qantas was totally correct in not allowing Ms Adachi to fly on 17 February. To use a common saying, Ms Adachi was ‘too clever by half’ in relation to the certificate and it rebounded on her. However, this does not mean that Ms Adachi intended to attend for duty on 17 February 2013 in the knowledge that the WorkCover certificate would not allow her to resume cabin crew duties. Accordingly, I find that Qantas took the correct view on 17 February 2013 but also find that Ms Adachi had no intention to deceive Qantas on that date. In that regard, I note that it was Ms Adachi who proferred the WorkCover certificate to Mr El Khoury. I therefore also further find that the first allegation against Ms Adachi was unable to found part of a valid reason for her dismissal.

[153] I now turn to the second allegation which all the evidence in this case shows me was the principal reason relied upon by Qantas to justify the termination of Ms Adachi’s employment. Here the waters are somewhat murky.

[154] Firstly, I note that the only real evidence about what happened between Ms Adachi and Mr El Khoury on 17 February 2013 consisted of their sworn evidence and the condition of the WorkCover certificate, the original of which is in evidence. The unsigned statements from 12 Qantas cabin crew employees which I have dealt with earlier in this decision, is of some assistance in that they appear to establish that when any one of those persons observed the interaction between Ms Adachi and Mr El Khoury, that person noticed nothing unusual, with the exception of Employee 4 who noticed the parties ‘moving around a lot and there seemed to be a lot of activity’ and he thought this to be unusual. That is the sum total of independent eyewitness reports and Mr Byrne was in possession of those statements prior to dismissing Ms Adachi. As is apparent from earlier in this decision, I have rejected the evidence of Mr Bond as being totally unreliable and largely fictitious.

[155] The condition of the WorkCover certificate is of great importance to my deliberations. There is common ground between Ms Adachi and Mr El Khoury that there was some type of ‘tug of war’ between them for possession of the certificate. Mr El Khoury’s evidence was that this involved Ms Adachi lunging at him over his desk, pulling at the certificate and trying to prise his fingers from it. The physical condition of the certificate does not accord with the evidence of Mr El Khoury. It is quite a flimsy piece of paper which has tears at its centre and appears to have been screwed up and then flattened out again.

[156] Mr El Khoury’s evidence was that the ‘tug of war’ lasted somewhere between 10 and 30 seconds. This is just not possible based on a close examination of the primary document. If Mr El Khoury’s account was accurate, the document would have been torn to pieces and it was not. The physical evidence of the document much more closely accords with the evidence of Ms Adachi and I so find. This does not mean that Ms Adachi’s actions were not highly inappropriate.

[157] On the balance of probabilities, I am satisfied that the following events occurred on 17 February 2013. It is not crucial that every aspect of my analysis be correct in every detail but I believe that this is what broadly happened: Ms Adachi gave Mr El Khoury the certificate, he read it and informed her that the correct box had not been ticked. He then gave her his preliminary view as to her ability to fly that night and also sought advice from higher management. He apparently also busied himself on his computer at the same time. Ms Adachi was alarmed and upset about the terms of the certificate and the effect on her ability to join the flight as cabin crew. She wanted the document back, primarily to take it to her GP, and leaned across the desk to either take the document from Mr El Khoury’s hand or to pick it up from the desk. Mr El Khoury resisted Ms Adachi’s attempt and there ensued a very short tussle for possession. Importantly, Mr El Khoury gave evidence that he warned Ms Adachi during that time that her actions were unacceptable and might put her employment in jeopardy if she continued. More importantly, it was Mr El Khoury’s further evidence that when admonished by him, Ms Adachi released her hold on the document in accordance with Mr El Khoury’s instructions. Subsequently the document was screwed up and then flattened out. There is nothing to indicate that Ms Adachi did this as the document fell into the sole possession of Mr El Khoury. Here I note my view that Mr El Khoury was fully entitled to retain possession of the document and he always intended to give Ms Adachi a copy. On the part of Ms Adachi, I accept that she suffered a momentary lapse of judgment brought on by her shock that she would not be able to resume her cabin crew duties. I do not accept, on the evidence available to me, that either party was shouting at the other during the incident. If that had occurred, someone would have noticed.

[158] The aftermath of the incident is also important to my consideration. What appears to have happened is that after regaining possession of the certificate, Mr El Khoury and Ms Adachi had a perfectly civilised discussion as to how Ms Adachi could remedy the defect in her WorkCover certificate. That discussion appears to have been followed by Mr El Khoury escorting Ms Adachi, at her request, out of the airport and assisting her to obtain a taxi. None of this is consistent with Mr El Khoury’s later claims that he was shocked and traumatised by the incident at the time. I have no real doubt as to Mr El Khoury’s subjective truthfulness but consider that the incident grew in his mind in terms of its alleged seriousness in the hours that followed. That subjective belief, while most probably sincerely held, does not support the objective evidence.

[159] Therefore, having considered all the evidence, submissions and documentary material before me, I have concluded and find, on the balance of probabilities, that Ms Adachi acted in an inappropriate way for a very brief period in her dealings with Mr El Khoury on 17 February 2013. I further find that her actions were not grave enough to be considered serious misconduct and were a minor species of misconduct. Ms Adachi’s action in attempting to take the certificate back from Mr El Khoury would appear to be inconsistent with her character and work history at Qantas. Ms Adachi would not be the easiest person to deal with but she has no history of initiating any sort of physical altercation. On balance, I therefore find that the second allegation is not substantiated to the point where it could form part of a valid reason for termination of employment.

[160] I now turn to consideration of Mr Byrne’s investigation into the events of 17 February 2013.

[161] When he received Mr El Khoury’s email in the early morning of 18 February 2013 and especially when he received Mr Bond’s email of 19 February, Mr Byrne was bound to investigate the allegations against Ms Adachi. That process started off fairly and I believe that Ms Adachi was given every reasonable opportunity to participate and indeed, did participate in some form by way of her extensive correspondence with Mr Byrne and other managers. It was Ms Adachi’s decision to not meet with Mr Byrne. She was quite well enough to engage in extensive correspondence and therefore I do not accept that she was too unwell to meet with him. This being said, there does seem to have been a significant element of haste in Mr Byrne’s deliberations which caused him to overlook important information before proceeding to dismiss Ms Adachi.

[162] On 12 or 13 March 2013 Mr Byrne obtained approval from Mr Jackson to dismiss Ms Adachi. Then came the significant event of Mr Bond admitting on 14 March that he saw nothing of importance on 17 February. Mr Byrne then gathered up statements from all of the remaining crew members of the flight which Ms Adachi was supposed to join and those statements yielded up no information which could evenly vaguely support the account given by Mr El Khoury. In fact, all those statements do is indicate that 17 February 2013 was just ‘a normal day at the office’. All of the cabin crew members’ statements are dated prior to the termination of Ms Adachi’s employment. The mystery here is why the withdrawal of Mr Bond’s evidence, the physical state of the certificate and the statements from 12 cabin crew employees did not spur Mr Byrne to further investigation or at least to take advice from Qantas Human Resources. Why he did not inform Mr Jackson is also strange. Mr Byrne appears to have just pushed along with Ms Adachi’s dismissal as if nothing new had occurred after 13 March.

[163] I think that the key to Mr Byrne’s actions after 13 March 2013 lies in his evidence as to the high personal and professional regard in which he holds Mr El Khoury. I believe that Mr Byrne was ultimately unable to believe that Mr El Khoury’s narrative was anything but totally credible. Even when supporting evidence either vanished, as in the case of Mr Bond, or was not forthcoming as in the twelve cabin crew statements or was not apparent, as in the physical state of the Certificate, Mr Bond pressed on, armoured in his total belief in Mr El Khoury. This was a most regrettable error. In cases such as this, the investigator should never be on such close terms with one of the parties. In addition, I believe that Mr Byrne was frustrated by his dealings with Ms Adachi who did nothing to advance her own cause by her behaviour during the investigation.

[164] All in all, having considered all of the evidence, submissions and documentary materials before me, I have concluded and find, on the balance of probabilities, that Ms Adachi behaved in an inappropriate manner towards Mr El Khoury on 17 February 2013 by engaging in a brief ‘tug of war’ over possession of the Certificate. I am unable to conclude that Ms Adachi’s actions involved any form of physical assault on Mr El Khoury. Their fingers may have touched during their brief tussle but that is all. The lapse on Ms Adachi’s part was momentary and followed her return to work after a period of stress leave. At the time, Mr El Khoury appears to have been understanding towards Ms Adachi and I believe no harm came from the tussle. I further accept that Ms Adachi did not attend for work on 17 February with any intention to deceive Qantas.

[165] Ms Adachi had some 25 years’ service with Qantas and a record which, while not totally unblemished, was a good one and certainly contained no evidence of any propensity towards violence or even incivility.

[166] Ms Adachi’s evidence was a curious beast, she is quite obviously unable to accept criticism or any failings on her part such as the failure to meet her KPI’s in 2011/2012. Her own view as to the chain of events from 17 February onwards is more than tinged with a belief that she was being persecuted. Nothing in the evidence in these proceedings convinces me that she was correct.

[167] I therefore find that there was not a valid reason for the termination of Ms Adachi’s employment based on Mr Byrne’s findings in relation to the two allegations made against her.

[168] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

[169] In Byrne v Australian Airlines  112, McHugh and Gummow JJ of the High Court said:

[170] In Parmalat Food Products Pty Ltd v Wililo  113, the Full Bench held:

[171] The question of valid reason is dealt with above.

[172] It is clear that Ms Adachi was notified of the reasons for the termination of her employment by way of Mr Byrne’s letter of 15 March 2013 and I so find. That letter was set out earlier in this decision. It is further clear and I find that Ms Adachi was given an opportunity to respond to the allegations against her before a decision was made to terminate her employment. There is nothing before me to indicate that Qantas was unwilling to allow Ms Adachi to have a support person/advocate to assist her during the investigation. Questions of unsatisfactory performance were raised during the proceedings but were not of such significance to be relevant to this part of my Decision. Instead, I will consider them later when dealing with possible reinstatement.

[173] Qantas is a large employer with internal access to professional advice in industrial relations matters and this is likely to have impacted on the procedures followed in effecting the Applicant’s dismissal.

[174] I have also taken into consideration a number of other factors. These include Ms Adachi’s age, her long employment history with Qantas, her future employment prospects and the economic and personal effects of the termination of employment on her. I have also paid regard to the relevant provisions of the Agreement and Qantas’ code of conduct.

[175] All in all, I find that the termination of Ms Adachi’s employment was harsh, unjust and unreasonable. The imposed sanction of dismissal was out of all proportion to the conduct of Ms Adachi on 17 February 2013 and did not pay sufficient regard to her work history, her service to Qantas and that she had been on leave with a stress-related illness.

[176] Section 390 of the Act provides:

“390 When the FWC may order remedy for unfair dismissal

[177] In all the circumstances of this case, reinstatement is in my view both practicable and desirable. Ms Adachi seeks reinstatement and I am satisfied and find that reinstatement is an appropriate remedy. I have reached this conclusion after considerable thought given the obvious bad feelings which Ms Adachi holds towards certain Qantas Managers. Also Ms Adachi’s apparent use of WorkCover Certificates to avoid her obligation to be re-trained and/or to pick and choose which Qantas Managers she is willing to deal with has given me further pause for thought. Those factors together with my assessment that Ms Adachi has great problems accepting any form of criticism or failures such as the KPI issue, initially made me hesitant to order reinstatement. However, those factors do not outweigh the need to provide a just outcome for Ms Adachi. On balance, I believe that the employee/employer relationship can be re-established provided that there is good will on both sides and Ms Adachi undertakes required training.

[178] Section 391 of the Act provides:

“391 Remedy—reinstatement etc.

Reinstatement

Order to maintain continuity

Order to restore lost pay

[179] In summary, I find that there was no valid reason for the termination of Ms Adachi’s employment and I further find that her dismissal was harsh, unjust and unreasonable. I find that she should be reinstated to her former position at Qantas with full continuity of employment for all purposes excepting wages from the date of her termination of employment until the date of her reinstatement. I do not believe that Ms Adachi should be compensated for the entire period following her dismissal on 15 March 2013 given her action in initiating the ‘tug of war’ with Mr El Khoury over possession of the WorkCover Certificate. Ms Adachi may have acted on impulse but she still behaved improperly and accordingly I further find that Ms Adachi should be compensated for lost wages at her ordinary rate, as applicable at the time she was dismissed, on and from 15 May 2013 until the date of her reinstatement. The amount paid to Ms Adachi in lieu of notice must also be deducted from the compensation ordered. The amount comprising compensation for lost wages shall also have deducted from it the amount of any remuneration earned by Ms Adachi from employment or other work during the period between the dismissal and the making of my Order for reinstatement and any amount of other remuneration earned by her during the period between the making of my Order for reinstatement and the actual reinstatement.

[180] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded ‘fair go all round’ in these proceedings.

[181] An Order reflecting this Decision will be issued concurrently.

COMMISSIONER

Appearances:

G Pinchen, for the Applicant.

R Warren of Counsel for Qantas Airways Limited.

Hearing details:

2013.

Sydney:

October 15, 16 and 24.

2013.

 1   Exhibit Adachi 1.

 2   Attachment B to Exhibit Adachi 1.

 3   Attachment C to Exhibit Adachi 1.

 4   Attachment E to Exhibit Adachi 1.

 5   Ibid.

 6   Attachment G to Exhibit Adachi 1.

 7   Attachment H to Exhibit Adachi 1.

 8   Transcript PN838 and following.

 9   Transcript PNs943-947.

 10   Transcript PN959.

 11   Transcript PN976.

 12   Transcript PNs993-994.

 13   Transcript PN1025.

 14   Transcript PN1046.

 15   Transcript PN1047.

 16   Transcript PN1049.

 17   Transcript PN1050.

 18   Transcript PN1052.

 19   Transcript PN1068.

 20   Transcript PN1092.

 21   Transcript PNs1095-1096.

 22   Transcript PN1097.

 23   Transcript PN1120.

 24   Transcript PN1133.

 25   Transcript PN1141.

 26   Transcript PNs1176-1180.

 27   Transcript PNs1217-1218.

 28   Exhibit Qantas 2.

 29   Transcript PN1298.

 30   Transcript PN1309.

 31   Transcript PN1311-1313.

 32   Transcript PN1315.

 33   Exhibit Qantas 3.

 34   Transcript PN1426.

 35   Transcript PN1448-1450.

 36   Transcript PN1467.

 37   Transcript PN1478.

 38   Transcript PN1502.

 39   Transcript PN1508.

 40   Transcript PN1514.

 41   Transcript PN1518.

 42   Transcript PN1520.

 43   Transcript PNs1521-1522.

 44   Transcript PN1523.

 45   Transcript PNs1571-1572.

 46   Transcript PN1585.

 47   Transcript PN1631.

 48   Transcript PN1639.

 49   Transcript PN1670.

 50   Transcript PN1693-1695.

 51   Transcript PN1729.

 52   Transcript PN1730.

 53   Transcript PN1738.

 54   Exhibit Qantas 4.

 55   Attachment AB2 to Exhibit Qantas 4.

 56   Transcript PN1804.

 57   Transcript PN1815.

 58   Transcript PN1819.

 59   Transcript PNs1823-1824.

 60   Transcript PN1867.

 61   Transcript PN1868.

 62   Transcript PN1875.

 63   Exhibit Qantas 5.

 64   Transcript PN1949 and following.

 65   Exhibit Qantas 6.

 66   Attachment JB3 to Exhibit Qantas 6.

 67   Attachment JB4 to Exhibit Qantas 6.

 68   Attachment JB6 to Exhibit Qantas 6.

 69   Attachments JB31 to JB42 to Exhibit Qantas 6.

 70   Attachment JB44 to Exhibit Qantas 6.

 71   Transcript PNs2062-2064.

 72   Transcript PN2065.

 73   Transcript PN2075.

 74   Transcript PN2096.

 75   Transcript PN2128.

 76   Transcript PNs2131-2133.

 77   Transcript PN2148.

 78   Transcript PN2210.

 79   Transcript PN2220.

 80   Transcript PN2221.

 81   Transcript PN2231.

 82   Transcript PNs2233-2237.

 83   Transcript PN2268.

 84   Transcript PN2275.

 85   Transcript PN2314.

 86   Transcript PN2501.

 87   Transcript PN2522.

 88   Transcript PN2531.

 89   Transcript PN2536.

 90   Transcript PN2558.

 91   Transcript PN2559.

 92   Transcript PN2604.

 93   Exhibit Adachi 6.

 94   (1938) 60 CLR 336.

 95   Ibid at 361-362.

 96   Exhibit Qantas 7.

 97   Exhibit Adachi 7.

 98   11 ALR 599.

 99   [2013] FCCA 1096.

 100   (2003) 214 CLR 118.

 101   Transcript PN2865.

 102   Transcript PN2866.

 103   Transcript PN2912.

 104   Transcript PN2960.

 105   Transcript PN3155.

 106   Print S4213, 17 March 2000.

 107   Print S8434, 24 July 2000.

 108   Ibid at para 15.

 109   (1995) 62 IR 371 at 373.

 110   [1998] FCA 865.

 111   [1999] FCA 1836.

 112   [1995] 185 CLR 410.

 113   [2011] FWAFB 1166.

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