| [2016] FWC 7077 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Applicant
v
Respondent
(U2016/769)
COMMISSIONER CLOGHAN |
PERTH, 17 OCTOBER 2016 |
Application for relief from unfair dismissal.
[1] The Fair Work Commission has received an application by an Applicant (Applicant) seeking a remedy for alleged unfair dismissal by a Respondent (Respondent or Employer).
[2] On 4 February 2016, the Respondent forwarded to the Applicant notice of termination of his employment. The relevant parts of the correspondence are as follows:
“As you are aware, [the Respondent] has conducted an investigation into allegations that you engaged in sexual harassment toward a number of cabin crew members.
The investigation has found that the following allegations were substantiated:
1. You showed sexually explicit images of a crew member in intimate positions to other fellow crew members while in flight and on an overnight. Some of these images…[deleted].
2. On multiple occasions you made inappropriate comments of a sexual nature to or within hearing of fellow cabin crew members.
3. You made unwanted sexual advances to fellow cabin crew members.
The full list of substantiated allegations against you, were outlined in our correspondence to you dated 21 January 2016.
I note your concern regarding the credibility of the witness statements and reiterate that when considering the totality of the evidence obtained in investigating this allegation; the investigation found that on the balance of probabilities, your conduct shows a pattern of behaviour that was deliberate and of a sexual nature. The allegations put to you have been from multiple witnesses on multiple occasions who found your behaviour to be unwelcome and uninvited.
Your responses has (sic) been to wholly and categorically deny the allegations, with no attempt to fulsomely engage with the company through the investigation or apologise for any misunderstanding of your behaviour, even if you deny it.
I consider your failure in this regard to amount to dishonest conduct and to be particularly serious given the opportunities you have been provided to be open, honest and fulsome in your responses, that you were aware the investigation was initiated as a result of an employee complaint, and your leadership role in the Company.
…
We have given serious consideration to the nature and details of the concerns put to you and your written responses dated 30 December 2015, 4 January 2016, 11 January 2016 and 25 January 2016. We confirm you have continued to decline to attend the meetings we have invited you to attend, and therefore we have based our findings and decision on the information available to us.
In light of all the circumstances, a decision has been made to terminate your employment effective immediately without notice for serious misconduct.”
[3] The application has resulted in three previous decisions [2016] FWC 5006, [2016] FWC 6047 and [2016] FWC 6565. The application is also the subject of confidentiality orders (PR583571 and PR586101).
[4] The merits of the Applicant’s application were heard on 4, 5 and 6 October 2016. At the hearing, the Applicant was represented by Mr S Heathcote of Counsel. The Applicant gave evidence on his own behalf.
[5] The Respondent was represented by Mr P Moorhouse of Counsel and the following gave evidence on behalf of the Respondent:
[6] This is my decision and reasons for decision on the merits of the Applicant’s application.
[1] There is no dispute between the parties that the Applicant has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.
[2] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[3] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[4] The Applicant commenced employment with the Respondent as a member of cabin crew on 24 January 2011.
[5] As part of his employment, the Applicant was aware of and had been informed about the Respondent’s policies relating to sexual harassment and the obligation to treat co-workers with respect.
[6] In or around June 2014, the Applicant was promoted to Cabin Crew Supervisor.
[7] With some exceptions over the course of his employment, the Applicant received positive feedback concerning his performance from the Respondent, and periodically, from travelling customers.
[8] In May 2014, the Applicant and Witness A entered in a sexual relationship. The sexual relationship began on an overnight stopover in Bali following their first flight together. Witness A was a member of the cabin crew which the Applicant supervised.
[9] The relationship between the Applicant and Witness A ended, according to the Applicant, approximately 12 months later after the Applicant became aware that Witness A “had boasted about sleeping with a supervisor from Perth”. According to the Applicant, “I thought we had an understanding that the relationship was to be discrete and it became apparent that [Witness A] wasn’t treating it that way” 1.
[10] In May 2015, Witness A sent the Applicant three (3) photographs of herself. Witness A was naked in each of the photographs.
[11] In July 2015, Witness A sent the Applicant four (4) photographs and two (2) short video clips. Witness A was naked in each of the photographs. The video clips showed explicit images of Witness A having sex with an unidentified male.
[12] The Applicant was also in possession of two (2) photographs of another member of cabinet crew. One photograph showed Person A with only her underwear on. The second photograph was of Person A’s breasts.
[13] On or around 8 October 2015, Witness A, when overseas, contacted the Applicant and accused him of showing naked photographs of her to other cabin crew.
[14] On 29 October 2015, Witness A made a complaint to her employer regarding the Applicant.
[15] On 18 December 2015, the Applicant was advised that the Respondent was conducting an investigation into various allegations against him. The Applicant was suspended on full pay.
[16] In the course of the investigation, the Respondent wrote to the Applicant eight (8) times and he responded, through his lawyer, on nine (9) occasions.
[17] On 4 February 2016, the Applicant was summarily dismissed.
[18] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[19] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[20] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[21] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 2. Further,
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 3
[22] Summary dismissal for misconduct may be warranted in certain circumstances. The Fair Work Regulations relevantly defines at 1.07 the meaning of serious misconduct as:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) …
(3) …
(4) …
(5) ...”
[23] Notwithstanding, the misconduct may have resulted in summary dismissal, the test remains the same, that is, the decision to terminate the employee’s employment must be “sound, defensible and well founded”.
[24] At paragraph three of the Applicant’s witness statement, he states:
“I have never sexually harassed a colleague, nor have I taken any action aimed at, or likely to have the effect of showing disrespect to any of my co-workers.” 4
[25] In his oral evidence, the Applicant stated that he was a “gentleman” and treated his female co-workers with “courtesy”, “dignity” and “respect”. 5
[26] Having never sexually harassed a work colleague, I now turn, firstly to the definition of sexual harassment known to the Applicant. Subsequently, I will turn to the series of events which led to the Applicant’s dismissal.
[27] The Respondent’s Equal Employment Opportunity policy (EEO Policy) defines sexual harassment as follows:
“Sexual harassment is any verbal, written, visual or physical behaviour of a sexual nature that is unwelcome and uninvited in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Sexual harassment may be a single incident or a serous (sic) of incidents. It covers sexual harassment by or of team members (including management/leaders) guests, customers, suppliers, contractors and clients.” 6
[28] I now turn to the 13 incidents which allegedly occurred and eventually led the Respondent to dismiss the Applicant.
“I hope you are clean”
[29] The Applicant states that the first time he met Witness A was in Bali and she was “on my crew”. 7
[30] At the time, the Applicant was an Acting Cabin Supervisor and had been employed for over three (3) years. Witness A had been employed as a Cabin Crew member for approximately six (6) months.
[31] The Applicant and Witness A had consensual sexual intercourse in Bali for the first time.
[32] The day after having sex for the first time, Witness A gave evidence that on the aerobridge, and in the company of approximately six (6) other crew members, the Applicant said to her “I hope you are clean”.
[33] Witness A’s evidence is that the Applicant made:
“no attempt to moderate the tone or volume of his voice, but instead spoke loudly enough for other crew members to hear.
I felt that he was referring to my sexual health and was embarrassed and humiliated that he said this in front of other crew members.” 8
[34] The Applicant does not refer to the incident in his witness statement but during the course of the Respondent’s investigation, denied making the comment. Further, the Applicant contends even if he had made the comment (which is denied), only Witness A could have connected it to their “sexual activity on the previous night” 9, and further, “such a comment would not amount to a breach of the [EEO] Policy or the Code [of Conduct]”.
[35] In oral evidence, the Applicant could not remember waiting on the aerobridge, denied making the comment and again stated that, even if it had been said, it would not have been inappropriate. 10 Further, the Applicant gave evidence, “how would they [cabin crew] know it was [about] sexual…health. They wouldn’t know that”.11
[36] For reasons which will become clearer in this Decision, I find, on the balance of probabilities, that the Applicant did make the comment “I hope you are clean” to Witness A in front of other cabin crew. Whether the cabin crew heard the comment or not, or connected the comment with the Applicant and Witness A having sex, is beside the point. In accordance with the EEO Policy, it is whether a “reasonable person”, having regard to all the circumstances, would have anticipated the possibility that Witness A would be offended or humiliated by the comment. In all the circumstances, I am satisfied that the Applicant would have reasonably assumed that such a comment would be offensive and humiliating to Witness A.
[37] I pause at this point to set out broadly the nature of the relationship which developed over the next 17 months between the Applicant and Witness A.
Nature of relationship between Applicant and Witness A
[38] The Applicant entered what he describes in his witness statement as a “discrete, casual but physically intimate relationship…it wasn’t much more than us having sex about 8 times during that period of time. I terminated the relationship, such as it was, sometime in May 2015 after [Witness A] had boasted about sleeping with a supervisor from Perth. I thought we had an understanding that the relationship was to be discrete and it became apparent that [Witness A] wasn’t treating it that way.” 12
[39] As part of this relationship, the Applicant and Witness A sent each other sexually explicit text messages. The Applicant and Witness A also exchanged photographs. Witness A’s photographs were of her naked; the sort of photographs my wife Lynn would respond to with the exclamation ““Gordon Bennett”, she is leaving nothing to the imagination”. The Applicant’s photographs to Witness A were of unidentified females in underwear. Witness A also sent to the Applicant two short videos which I have already referred to.
[40] While the Applicant states that he had sex with Witness A eight (8) times, Witness A states that it was closer to 80. 13
[41] Witness A’s evidence is that the sexual relationship ended in or around December 2014. The Applicant states that the physical relationship ended in the first half of 2015.
[42] Witness A’s evidence is that between April 2014 and July 2015 she sent the Applicant approximately 30 photographs of herself. 14 In these photographs, she was naked and in various poses. The photographs were taken in hotel rooms or at home.
[43] For reasons which will be set out later, the only photographs provided, as part of the hearing, were seven (7) photographs of Witness A naked and sent to the Applicant in May and July 2015. The Commission was also provided with two (2) short videos of Witness A which were sent to the Applicant in July 2015. The Commission also received, into evidence, two photographs of Person A and photographs of unidentified females in underwear which were sent by the Applicant to Witness A.
[44] Sexually explicit text messages between the Applicant and Witness A continued up until later September 2015. 15
[45] On 8 October 2015, Witness A was contacted overseas by another member of the Respondent’s cabin crew, and a friend [Person B]. Person B informed Witness A that the Applicant had been “showing photographs of [her] to members of the [Respondent’s] cabin crew including [Witnesses C and D], who I knew from my employment”. 16
[46] Immediately after speaking to Person B, Witness A attempted to contact the Applicant. After initially failing to make contact, Witness A spoke to the Applicant.
[47] The Applicant states that Witness A “accused [him] of showing pictures of her to other cabin crew members [and] I should resign and that, if I didn’t, she intended to get me sacked”. 17 Witness A states that she said to the Applicant, “you won’t have a job on Monday, I am going to speak to my LCD [Leader Crew Development]”.18 The LCD is the Respondent’s manager of cabin crew.
[48] Witness A and the Applicant have had no contact since the telephone discussion on 9 October 2015.
[49] On 27 October 2015, Witness A met with her LCD.
[50] On 29 October 2015, Witness A completed an EEO complaint form.
[51] It is not necessary to set out all the details contained in the EEO complaint form. For reasons of relevancy and immediacy, Witness A states:
“I feel completely humiliated, violated, ashamed and upset. [The Applicant] has betrayed my trust and I am disgusted and distraught at what he has done…
I was informed…that they overheard a conversation between crew members of various bases discussing [the Applicant] showing the photos and videos to people and he was telling people I found it funny when he showed them. This is entirely untrue, these photos and videos were incredibly personal and not intended for others to see. I know as a fact I’m not the only crew member he has harassed before”. 19
Events following Witness A’s EEO complaint
[52] Following Witness A’s complaint, the respondent carried out an investigation.
[53] On 18 December 2015, the Applicant was advised that the Respondent was conducting an investigation into “allegations that you [the Applicant] have engaged in sexual harassment toward a number of cabin crew members in breach of the [Respondent’s] EEO Policy and Code of Conduct”. 20
[54] The correspondence to the Applicant sets out a number of allegations which the Respondent had sourced from its investigation following the lodging of the EEO complaint.
[55] In its correspondence of 18 December 2015, the Respondent advised the Applicant that no determination would be made until he had the opportunity to respond. In view of the seriousness of the allegations, the Respondent stated the Applicant would be suspended on full pay pending the outcome of the investigation. The Applicant was invited to attend a meeting with the Respondent’s representatives, and if he needed to access information from the workplace to prepare his response, he was able to contact Witness B to discuss any requests.
[56] The Applicant, through legal counsel, provided responses to the Respondent’s correspondence.
[57] On 21 January 2016, the Applicant was advised of the Respondent’s findings into its investigation arising from Witness A’s complaint and his responses. The Applicant was asked to “show cause” why his employment should not be terminated. The Applicant responded to the Respondent’s “show cause” letter.
[58] On 4 February 2016, the Applicant was informed in writing of the Respondent’s decision to terminate his employment, effective immediately and without notice for serious misconduct.
[59] I now return to the remaining incidents which led to the Applicant being dismissed for serious misconduct.
Queensland incidents
[60] Witness C completed her training and was certified to work on the Respondent’s flights in December 2013.
[61] On 22 and 23 December 2014, Witness C was a member of cabin crew on which the Applicant was the Cabin Crew Supervisor. The flights comprised of multiple legs in Queensland and a concluding flight from Brisbane to Perth.
[62] On a particular “leg” in Queensland, Witness C had completed pre-flight checks and had free time before passengers boarded the aeroplane. Witness C gave evidence that the Applicant made a comment “completely out of the blue” that “he had slept with a lot of girls at [Respondent]”. Witness C stated that the Applicant said, “there was a Sydney crew member I had in my hotel room. I made her squirt so much that the sheets were soaking wet”. 21
[63] After making this comment, Witness C gave evidence of a conversation as follows:
“Witness C: I thought you had a girlfriend?
Applicant: I do.
Witness C: Don’t you think it’s inappropriate to be behaving like this if you have a girlfriend?
Applicant: Oh, she will make a good wife one day.” 22
[64] Before passengers boarded the aeroplane, another incident occurred where Witness C was trying to get water from the crew cart and the Applicant wanted to get to the food and beverage cart. Witness C’s evidence is that the Applicant stated, “move your vagina”. Witness C gave evidence that she was deeply offended by the comment and said, “that is inappropriate”. 23
[65] On another leg of the Queensland trip, Witness C gave evidence that, pre-flight, the Applicant asked whether she knew Witness A; Witness C informed the Applicant that she did, but not very well. Witness C’s evidence is:
“After that [the Applicant] produced his iPhone and held it towards me so I could clearly see the screen. He said “this is her”. Then, using the other hand to scroll through the images on the screen, he showed me three photographs. He stopped on each photograph long enough for me to see and register what I was looking at”. 24
[66] Witness C gave evidence that the photographs were of Witness A completely naked in various poses. Witness C’s evidence was that the photographs were similar to those tendered in evidence at the hearing.
[67] Witness C’s evidence is that she was “horrified when shown the photographs and told the Applicant that it was inappropriate for him to be showing her the photographs. Witness C enquired whether Witness A knew the Applicant was showing other people the photographs, and he responded, “[Witness A] knows and she loves it”. 25
[68] On the same flight, as the passengers were boarding, Witness C was welcoming them on board with the Applicant standing behind her. As the passengers boarded, Witness C’s evidence is that the Applicant whispered the following comments:
“She’s got great tits”;
“I would fuck her”;
“She’ll be great in bed; and
“Great tits”. 26
[69] Witness C’s evidence is that she felt awkward and uncomfortable trying to welcome passengers on board while the Applicant was whispering these comments to her. Further, Witness C did not know how to deal with the situation as the Applicant was her Supervisor.
[70] Witness C concedes that she did not report the incident regarding the photographs to the Respondent because she did not want to get involved in the relationship between the Applicant and Witness A.
[71] In May or June 2015, Witness C was working with Person B. Witness C’s evidence is that she told Person B of the Applicant showing her the photographs. Witness C told Person B because she knew Person B was a friend of Witness A. Witness C’s evidence was that she requested Person B to inform Witness A that the Applicant was showing people at work, naked photographs of her.
[72] The Applicant’s written evidence is that he does not know Witness C well, they have worked together on some occasions and do not have a social relationship. 27
[73] As part of the investigation, the Applicant, through his counsel, denied that any of the events occurred. Further, he is uncertain whether Witness A had sent him any naked photographs of herself by 23 December 2014. The Applicant states that, as at 30 December 2014, he had made a “diligent search for relevant images [that Witness A may have sent him] before 23 December 2014 but had not been able to find any”. 28
[74] In oral evidence, the Applicant:
[75] Notwithstanding that the Applicant denied making the alleged comments and showing the photographs to Witness C, he agreed that such actions, if they occurred, would be completely inappropriate and not treating co-workers with dignity, courtesy or respect. 32 Further, it would be in breach of the Respondent’s policies.33
[76] Witness C was vigorously cross-examined regarding the photographs and her relationship with Witness A.
[77] Witness C conceded that she is now a friend of Witness A, however, up until the time of the incidents in Queensland occurred, she was just a work colleague. 34
[78] Witness C only became aware of Witness A’s complaint when contacted by the Respondent’s Investigator in connection with the EEO complaint. 35
[79] Witness C did not discuss the photographs with Witness A. 36 Witness C recognised the photographs due to the background being the crew hotel in Melbourne.37
[80] It was not put to Witness C that she was “making up” her evidence nor do I find that she made up her evidence. Witness C was direct, confident and did not need to refer to her witness statement for answers; she answered questions confidently and without hesitation.
[81] Finally, Witness C’s evidence is materially consistent with the notes of her interview with the Respondent’s Investigator on 4 December 2015.
[82] On the Queensland trip, Witness E was also present for some of the incidents which occurred.
[83] Witness E commenced flying as a member of the cabin crew on 22 October 2014. Prior to commencing with the Respondent, Witness E was a flight attendant in the Royal Australian Air Force for approximately 16 years.
[84] Witness E was contacted by the Respondent’s Investigator on 9 December 2015. The Investigator’s notes reveal that Witness E was a work colleague of the Applicant; he could not recall any incidents on the Queensland flights and had not heard the Applicant say anything inappropriate. 38
[85] To put Witness E’s responses to the Investigator on 9 December 2014 in context, he gave evidence at the hearing that he had just sat down in a shopping centre with his mother to have lunch when he received the telephone call from the Investigator. The Investigator’s notes imply a very brief telephone conversation.
[86] Witness E’s written witness statement corroborates some of the incidents on the Queensland trip and supports the evidence given by Witness C. It is appropriate to ask why Witness E’s evidence, in the hearing, is now different to that which he gave on 9 December 2014.
[87] Witness E does not attempt to portray his recollection of events as some sort of spontaneous recovery of memory.
[88] Witness E states that, some months after being contacted by the Respondent’s Investigator, he was again working with Witness C. Witness C enquired of Witness E whether he had been contacted by the Respondent’s Investigator regarding complaints involving the Applicant. Witness C referred to their discussion regarding the Applicant’s behaviour during the Queensland trip.
[89] Witness E does not hide from the fact that as at 9 December 2014, he truthfully had no recollection of any incidents occurring during the Queensland trip; this was, in part, due to the context of the Investigator’s telephone enquiries. However, following his discussion with Witness C, he now truthfully recalls some of the incidents.
[90] The incidents which Witness E recalls are set out in his evidence and concern the Applicant’s comment about Witness C having to “move your vagina”. Further, his evidence sets out that following the flight, Witness C raised the incident of the Applicant showing her naked photographs of another female crew member. 39
[91] Notwithstanding Witness E’s obvious discomfort regarding the inconsistency between his statement of 9 December 2014 and evidence in October 2015, I found his evidence open, truthful and endeavouring to set out what happened in a clear way.
[92] Witness E conceded that it was appropriate that the Applicant’s comments should have been reported to the Respondent but he explained in evidence:
“…I was very new to the company. I also knew that the crew were from Perth, so I was assuming it was some banter, because I didn’t know the crew that well”. 40
[93] Denial is a high risk approach to allegations. However, that was the Applicant’s response to the allegations. In cross-examination, he stated “…how many ways can I say I didn’t do it? It’s very hard to prove something that didn’t happen”. 41
[94] The Applicant’s denial, in my view, can be interpreted as evading or attempting to ignore, all the evidence which points in a different direction. I have no reason to believe that Witness C was making up her evidence – or Witness E. Further, for reasons set out later, I have no reason to believe that Witness C, or for that matter Witness E, are colluding. I find, on the balance of probabilities, that the events set out by Witness C occurred.
[95] At this point, I also find that the overwhelming evidence demonstrates that it was not the practice of cabin crew, including supervisors, to keep a personal mobile telephone in their bags or locker. It was common practice for cabin crew to keep the telephone on their person and that the Applicant was in a position, and did, show Witness C the photographs.
Christmas Party 2015
[96] While this incident is not in time sequence, I want to dispose of it briefly as follows.
[97] The Respondent put to the Applicant on 18 December 2015 that he said to Witness F at the Respondent’s Christmas Party:
“I really want to have a threesome with you [Witness F] and [Witness D]. Oh, sorry, I mean a foursome with Person A”.
[98] Both Person A and Witnesses F and D are cabin crew members. 42
[99] In his response on 30 December 2015, the Applicant agreed that he attended the Christmas Party but denies he invited cabin crew members to be part of a “foursome”. The Applicant makes no mention, in his response, of making a comment regarding having a “threesome”. 43
[100] The Applicant conceded that he was aware that Witness F shares a house with Witness D and that Witness D is “almost joined at the hip” with a fellow cabin crew member, Person A.
[101] Witness D gave evidence that, although she did not attend the Respondent’s Christmas party on 27 November 2016, she did receive a text message from Witness F. Witness D’s recollection is that it said, “[Applicant] told me that he would like to have a threesome with me [Witness F] and you [Witness D] and then his fianc� turned up”. 44
[102] What is telling about whether this incident occurred or not, is Witness F’s documentary evidence of a text message to Witness D at 2:34 am on the morning after the Christmas party which reads:
“…[Applicant] told me he wants a foursome with me u and [Person A] can u believe and the (sic) his fianc� came.”
[103] The Applicant’s response to the allegation is, “no, I didn’t say that” [having “threesome” or “foursome”]. 45
[104] Witness F had considerable difficulty or reluctance to take part in the proceedings and appeared to get confused. However, Witness F’s evidence that the Applicant said the above words to her were not disturbed in cross-examination, nor obviously, was her text message.
[105] It is notable that as part of the evidence in the hearing, the Applicant enquired of Witness A on 7 May 2015, whether another member of cabin crew would be interested in a threesome with both of them. 46
[106] One of the more interesting aspects of the Applicant’s evidence was under the heading of “Workplace Culture” where he states:
“During my time at [Respondent], I observed it was common for there to be discussions of a sexual nature while at work, including while flying, and for co-workers to share personal information about their private lives with their co-workers. Much of that discussion would, if [Respondent’s] policies were rigidly applied to them, would have breached the sexual harassment policy”.
[107] When asked whether this evidence was an attempt to justify his behaviour, the Applicant’s evidence is:
“…No, because I'm saying I didn't do that behaviour. I'm saying that the culture of [Respondent] is not as crystal – is not as shiny as what management may think… What I mean by that is that out on line nothing is really off limits, it's pretty out there…
…The stories that you would hear would be quite out there. So they're not all - sort of - they're not offending each other [employees] because they're all potentially doing it and engaging in. And if they're not engaging [in] it they just walk off but they don't care about it…” 47 (my emphasis)
[108] The Applicant’s evidence is firstly to say that, “I didn’t do it”. Secondly, the conduct of which I have been accused of carrying out should be seen in the context of a workplace culture where nothing is “off limits” and the behaviour of employees is “out there”. And finally, much of what may be considered “offending” or “out there”, is engaged by “potentially” all employees; those that do not carry out such behaviour, could not care less.
[109] In my view, the Applicant’s evidence moves from denial of his own conduct to condemnation of the workplace culture. Further, he denounces his workplace colleagues as either conducting themselves as he has alleged to have done, or if not, they could not care less. All this evidence, in my view, is grounded in self-defence of his behaviour.
[110] On the evidence, I am satisfied, and find, that the Applicant did make the comment to Witness F as to wanting a “threesome” or “foursome” with other female cabin crew members.
“Washing uniform”
[111] Witness A gave evidence that, in or around early June 2014, the Applicant and her “paxed” from Brisbane to Perth. After landing, Witness A assisted operational crew to clean the aeroplane after the passengers disembarked.
[112] When cleaning the aeroplane, Witness A asserts that the Applicant asked “where did you run off to last night?” Witness A responded, “I went home to wash my uniform and do my hair”. The Applicant responded in a loud voice, “is that what females call masturbating these days?” Crew members laughed. Witness A gave evidence that the Applicant’s comments made her “feel embarrassed and humiliated I was so upset that I sat in my car in the airport car park afterwards crying”. 48
[113] In the course of the investigation, the Applicant denied making the comment to Witness A or at all. 49 In oral evidence, the Applicant denied making the comment to Witness A and emphasised that the Respondent had no witnesses to say that they heard the comment.50
[114] Notwithstanding his denial, the Applicant conceded that such a comment would have been inappropriate, disrespectful, offensive and not treating a fellow colleague with dignity, courtesy or respect. 51
[115] Witness A was not cross-examined on this evidence.
[116] While I should be cautious with respect to a finding that this event occurred in view of one person’s evidence against another, when the totality of the evidence is considered and the fact that Witness A was not tested on her evidence, I am persuaded to accept her evidence in contrast to the Applicant’s denial. I find that, on the balance of probabilities, the Applicant made this comment.
[117] I now turn to the evidence and events involving Witness G.
Witness G
[118] Witness G commenced working for the Respondent in September 2014 when she was 19 years old.
[119] Witness G’s evidence can be summarised as follows:
[120] Witness G’s evidence is different to the other witness evidence, as it was disclosed to the Respondent after the Applicant’s dismissal. For this reason, it is necessary, in my view, to consider first matters not related directly to the incidents set out above by Witness G.
[121] In view of the fact that Witness G disclosed incidents involving the Applicant after he had been dismissed, Witness G could not have colluded with others to effect the Applicant’s dismissal. Consequently, the Applicant claimed Witness G had “jumped on potentially the bandwagon” with her friends. 53
[122] Witness G did not shy away from giving evidence that Witnesses A, D and F were her friends 54. Notwithstanding that she was friends with these witnesses and wanted to help them55, Witness G gave evidence that when she reported the Applicant to the Respondent, it was because she felt “safer” knowing that others had done so,56 “[I] did it for myself”, “[I] wasn’t comfortable at that stage” [time of incidents], it was her word “against someone who is higher than me”57 and “I knew I was telling the truth”.58
[123] In cross-examination, Witness G did not resile from the fact that she did not report the Applicant and had the opportunity to do so. 59
[124] The Applicant does not deny that he obtained Witness G’s mobile telephone number from another member of crew to help her out with any issues involved in “finding her feet”. 60 It is notable that the Applicant did not ask Witness G herself but through another staff member; one has to ask why he did not ask Witness G directly.
[125] The Applicant concedes that he had texted Witness G in or about November 2014. However, the Applicant’s evidence regarding the content of the text messages is more innocuous than the evidence given by Witness G.
[126] The Applicant denied that, on a flight with Witness G in or about February 2015, he said, in the galley with curtains drawn, “this is my office. Stay in my office”. These comments made Witness G uncomfortable. 61 The Applicant’s evidence is that the curtains are not closed on those particular flights. However, the Applicant agreed that, if those words had been said to a younger subordinate crew member, it would have been intimidating.62
[127] The Applicant does recall texting Witness G in a Brisbane hotel. When Witness G said no to joining the Applicant and others in the bar of the hotel, the Applicant conceded that he may have “potentially” said, “let me know your room number, we might be having a room party” 63. Witness G’s evidence, which was not disturbed, was that the text message stated, “let me know our room number, we can have a room party”.64
[128] In May 2015, the Applicant and Witness G were involved in airbus training. Witness G’s evidence is that she received a text message from the Applicant in which was tagged a photograph of her with her friends at a house party. The photograph showed the people with their shirts uplifted and redacted black boxes to censor part of the photograph. The text message, according to Witness G commenced with the words, “what the hell?” 65
[129] Text messages continued between Witness G and the Applicant. Witness G asserts that one of them stated, “L1X for you”. 66 I have been advised that this seat is in close proximity to the Cabin Crew Supervisor in the aircraft. This resulted in the Applicant, according to Witness G, responding with the word, “creep” to which the Applicant responded, “door 3 for you then”.67 Door 3, I have been informed, is a “beginners” location on an aircraft.
[130] The Applicant’s evidence in chief is that, when he saw the redacted photograph of Witness G with her friends, “[I] said something along the lines of, “mate, like I’d take that down. At [Respondent] we can’t have that sort of stuff because that’s not the image we’re about”. 68
[131] I am not persuaded that the Applicant’s evidence that he sent such a text message.
[132] The Applicant agrees that a text message exchange occurred, however, although he does not often receive messages from women calling him a “creep”, he cannot recall whether she sent that message and what he said in reply, if anything. 69 The Applicant’s response in evidence regarding Witness G’s text message with the word “creep”70, went from “no” or denial, to “I don’t know”.71
[133] The Applicant denies showing Witness G three photographs of a naked woman at a terminal at Perth airport. Having been present and listened to the evidence of Witness G, I am comfortably satisfied, and find, that the Applicant did show Witness G naked photographs of another cabin crew member [Witness A].
[134] Approximately four (4) months after the “creep” incident, the Applicant and Witness G were on a flight from Melbourne to Perth. During the flight, Witness G alleges that the Applicant said to her, “take off your shirt”. To “brush” him off, Witness G responded, “I am wearing a dress”. To which the Applicant responded, “take off our dress”. Witness G said “no” and walked away. 72
[135] The Applicant denied making such a comment, but agreed that if it was said, it would be completely inappropriate for a supervisor to make such a comment to a subordinate. Further, it would be disrespectful and offensive. 73
[136] Having been cross-examined on the layout of an A330, examination of Witness G moved to the likelihood of such an event occurring during a flight. Despite being asked a number of ways that such an event did not happen, Witness G always answered, “it did”. 74
[137] I am not convinced by the applicant’s submission that Witness G is “jumping on the bandwagon” or that she was influenced by a relationship with the other members of cabin crew. The easiest course of action for Witness G would be to do nothing, instead she put her honesty to the test. I find that she told the truth and, on the balance of probabilities, prefer her evidence to that of the Applicant’s denials.
“I am doing you on the weekend”
[138] Witness D has been employed by the Respondent as a member of cabin crew since August 2014.
[139] Witness D gave evidence that the Applicant was her aircraft supervisor approximately four (4) times prior to his dismissal. 75
[140] Witness D states in her evidence that on a flight from Perth to Sydney on 31 July 2015, she asked the Applicant in the galley what he was doing on the weekend. The Applicant’s response was, “I am doing you on the weekend” and that she took “doing” to be a reference to the Applicant having sex with her on the weekend. 76
[141] Witness D states that the Applicant’s comment was unwelcome, inappropriate, offensive, disrespectful and that she was shocked that he would make such a comment in the presence of other cabin crew. Notwithstanding Witness D’s feelings, she laughed it off and left the galley. 77
[142] The Applicant denies making the comment to Witness D or at all in a response to the Respondent’s investigation on 30 December 2015. 78
[143] The Applicant’s denial at making the comment, in my view, needs to be considered in the context of his written evidence in which he states, “almost every flight, the talk would turn into a discussion about sex”. 79
[144] The Applicant denied making the comment also in oral evidence, but agreed that if a cabin supervisor made a comment like that to a female subordinate, it would be inappropriate, disrespectful, lacking courtesy and offensive. 80
[145] Both the applicant and Witness D stayed in Sydney over the weekend and I now turn to another incident involving the Applicant.
Facebook message exchange between Applicant and Witness D
[146] Witness D provided screen shots of the Facebook message exchange between her and the Applicant on 31 July 2015. The following are relevant extracts in a conversation:
Applicant: Hey tits!
…
Witness D: I’m still in bed.
Applicant: …Oh I’ll come up and join you.
…
Applicant: Getting banged by your fire man?
…
Witness D: What are you doing for dinner.
…
Applicant: What you keen on [for dinner]?
Witness D: Not sure.
Applicant: dick?
[147] In cross-examination when it was put to the Applicant that his comments were disrespectful and inappropriate, he replied, “not with [Witness D]”. 81 Despite the literal meaning of “I’ll come up and join you [in bed]”, the Applicant stated that that would not be the way Witness D would have interpreted his comments.
[148] I detect nothing in the messages which would indicate that this was normal “banter” between the Applicant and Witness D. It appears that Witness D dealt with some of the more coarse comments and suggestions by responding, “ha ha”. Witness D’s messages are unremarkable and has “batted away” the Applicant’s more sexual comments and suggestions. 82
[149] The Applicant and Witness D had a meal and returned to the hotel and another incident occurred which I now turn to.
Allegation that Applicant showed Witness D photographs of a naked Witness A
[150] Witness D’s evidence is that the Applicant received a call on his mobile telephone from his girlfriend. After the telephone call, Witness D made a comment to the effect that it must be hard on his girlfriend with the Applicant being away so much. Further, Witness D could not believe his girlfriend doesn’t know he cheats on her. 83
[151] Witness D alleges that the Applicant responded and referred to a secret folder on his mobile telephone. The Applicant is alleged to have accessed his mobile telephone, “and then held the iPhone towards my face with an outstretched arm, with the screen facing me…as he did so, he said, “this is [Witness A]. She sent me these”. 84
[152] Witness D recognised Witness A’s name as a member of the Perth cabin crew. Witness D was shown a photograph of Witness A on “all fours facing away from the camera. I could clearly see her anus and vagina”. 85 The Applicant is alleged to have then proceeded to show Witness D two more photographs of a naked Witness A.
[153] Witness D described the episode as being “shocked”, being unprepared, “being confronted with something so graphic”, “disgusted”, “creepy” and “it made my skin crawl”. 86 Witness D made an excuse and left the Applicant quickly thereafter.
[154] The Applicant denied, as part of the investigation, that he showed Witness D any images of Witness A. However, he does not deny that, at the time he was alleged to have shown Witness D the photographs, he had received from Witness A “revealing images of herself”. 87 In oral evidence, the Applicant denied that the conversation took place or that he showed photographs of Witness A to Witness D.
[155] Witness D gave evidence that initially she considered reporting the matter to the Respondent but thought it would be humiliating to Witness A. Further, it should be for Witness A, whether or not, to report the matter to the Respondent. Witness D made the decision to raise the matter with a fellow cabin crew member [Person B] who is a friend of Witness A.
[156] While Mr Moorhouse raised the issue of “propensity of evidence”, I am satisfied that given the preciseness of Witness D’s evidence, the incident did occur. Witness D had emphatic answers. Witness D, despite vigorous cross-examination, did not depart from her evidence and, without hesitation, described how the Applicant showed her the photographs.
[157] However, I am inclined to agree with Mr Moorhouse when all the events are considered in their totality, they are connected. What are connected, are the Applicant and his attitude to, and conduct towards, subordinate female cabin crew members.
[158] I do not accept the Applicant’s denial that none of the events occurred. I find that the incidents, as alleged, occurred. Further, the Applicant’s responses to the text messages in paragraph [152] above were unconvincing and grasping at straws.
Comment by Applicant on 23 October 2015
[159] Witness F gave evidence of an incident on 23 October 2015 in which the Applicant is alleged to have said to her, in reference to another cabin crew member, “…I want to fuck her so bad’. This comment was made in the context of a conversation, in flight, with other cabin crew.
[160] It was put to Witness F that her memory of certain statements was convenient, selective and fabricated because she could remember some statements and not others. Witness F denied the accusation 88 and her riposte was simple; statements like, “I really want to fuck her” as well as “I have slept with lots of girls at [Respondent]” are not words that you are likely to forget.89
[161] The Applicant denied the allegations 90. The Applicant’s evidence is that he has worked with the cabin crew member referred to on a number of occasions, had seen her socially and said, “that she is a good looking girl for 35”91 but denies that he said that he wanted to “fuck her so bad”.
[162] It is not in dispute that Witness F had a discussion with the cabin crew member referred to by the Applicant, in the car park after the flight. The Investigator’s notes recall that the cabin crew member’s response to whether there was a discussion about the incident between her and Witness F records, “possibly as a joke as he’d only just got engaged”. 92 This indicates to the Commission that the matter was discussed and supports the truthfulness of Witness F’s evidence.
[163] The Applicant adopts the approach to deny that he said the alleged comments, and subsequently, state what he has said in the past regarding this person. The Applicant does not give evidence of what he said at that time of the incident, but to infer that what he said in the past, is what he said at the time of the discussion.
[164] Having considered the Applicant’s denial and the direct evidence of Witness F, I find that the Applicant made the comments set out above on 23 October 2015.
s.387(b) - notification of the reasons for termination of employment
[165] The Applicant concedes he was notified by the Respondent of the reasons for his dismissal from employment.
s.387(c) - opportunity to respond
[166] The Applicant concedes that he was given the opportunity to respond to those allegations that were adequately particularised.
[167] With respect to some matters, the Applicant contends that the allegations were expressed in generality and/or without sufficient content. Further, the Applicant asserts that the Respondent deprived him of access to records which may have assisted him in responding to the alleged conduct that was said to have occurred.
[168] I am satisfied, on the evidence, that even if the allegations were more particularised, the Applicant’s denial of the events would not have changed. Predominately, the Applicant’s responses during the Respondent’s investigation and at hearing were to deny that the events occurred. I am also satisfied that, in responding to the allegations during the investigation, access to records would not have changed the Applicant’s responses to those allegations.
s.387(d) - support person
[169] The Respondent informed the Applicant of his entitlement to bring a support person or representative of his choice to various meetings. No face-to-face meetings took place. The Applicant responded to the Respondent’s investigation through his legal representative.
[170] I am satisfied that the Respondent did not unreasonably refuse the Applicant to have a support person present during discussions which eventually led to the Applicant’s dismissal.
s.387(e) - unsatisfactory performance
[171] Both parties consider that this criterion is not relevant to the circumstances of the Applicant’s dismissal. I disagree.
[172] The precise reasons for the Applicant’s dismissal relate to his conduct. However, the parties, like many other parties, seem to think that a person’s conduct is separate and distinct to their performance; it is not.
[173] The performance of employees includes their conduct, especially how he or she interacts with their work colleagues and customers/clients they come into contact with.
[174] I am satisfied that the Applicant’s performance prior to April 2014 was good, with the exception of those matters discussed below under the heading, “Prior disciplinary matters”. On occasions, the Applicant was commended on his performance.
s.387(f) - size of enterprise
[175] Both parties agree that the Respondent is a large corporation with well-developed procedures relating to disciplinary matters. While the Applicant submits that the Respondent’s size “does not explain or excuse its conduct”, I am satisfied that the size of the Respondent’s organisation did not impact negatively on the procedures followed in effecting the Applicant’s dismissal.
s.387(g) - Human Resources
[176] The Respondent had access to dedicated human resource specialists in effecting the Applicant’s dismissal.
s.387(h) - other matters
Applicant’s knowledge of and need to comply with the Respondent’s policies concerning sexual harassment
[177] The Applicant, under a previous family name, read, acknowledged and accepted a contract of employment on 21 January 2011 which required him to comply with the Respondent’s policies during his employment. Further, the Applicant read, acknowledged and accepted in his contract of employment, that he was required to conduct himself in accordance with the Respondent’s values, standards of behaviour and in a professional and responsible manner. 93
[178] The Respondent’s EEO Policy and its previous iteration required the Applicant to:
[179] The previous EEO Policy gave an example of unacceptable behaviour of engaging in:
“any unwelcome or uninvited behaviour that is sexual in nature”. 96
[180] The Respondent’s Code of Conduct required the Applicant to conduct himself with the “highest integrity” and of a standard which meets “community expectation”. The Code informs the reader that the Respondent would not tolerate behaviour where, even if unintended, would create an “offensive, hostile or intimidating work environment”. Finally, the Code sets out examples of “serious misconduct” which include “persistent and repeated acts of misconduct” and “sexual harassment”. 97
[181] The Applicant agrees that he was aware of the EEO Policy and its previous iterations 98. The Applicant was aware of the Code of Conduct.99
[182] The Applicant was aware, when promoted to Cabin Supervisor, that he not only had to comply with the policies, but to lead by example in relation to their content. 100
[183] The Applicant was trained and had to pass an exam in relation to the EEO Policy as it then was in February 2011. 101
[184] The Applicant knew, at all times during his employment, that he should not engage in any form of physical or verbal conduct which a reasonable person would deem unwelcome, offensive, humiliating or intimidating. 102
Conduct of the Applicant discovered after his dismissal
[185] There is no dispute between the parties that the evidence given by Witness G only came to the attention of the Respondent after the Applicant was dismissed.
[186] Mr Heathcote acknowledged that an employer is entitled to rely on matters discovered after the dismissal. Both parties agreed that, in accordance with the Full Bench in Australian Meat Holdings Pty Ltd v McLauchlan (1984) 84 IR 1 at p.14 (AMH), the Commission is able to consider evidence in existence when the decision to terminate the employment was made.
[187] I have adopted the above approach of the Full Bench in AMH and consider the evidence of Witness G relevant, as it concerns matters in existence when the Respondent determined to dismiss the Applicant.
Material received from witnesses by the Applicant
[188] The Applicant gave audacious and self-serving evidence when he stated that the two (2) photographs sent to him by Witness D on 30 December 2015 of another female cabin crew member were uninvited, unwelcome and potentially offensive 103. The Applicant’s reason for such evidence was that he was not in a relationship with either the sender or the person photographed.104 I now want to turn to the legitimacy of the Applicant’s claims.
[189] When asked in cross-examination whether he still agreed with those claims, he responded, “yes, I think so”. 105
[190] In my view, the Applicant’s evidence was just nonsense. Firstly, his other evidence is that it was not uncommon for co-workers to “share photographs of various kinds”. 106 Secondly, his response to photographs and videos of Witness A are anything but him being offended. Finally, even if he was offended by receiving these uninvited two (2) photographs from Witness D, he fails to reflect on the far more explicit photographs he had shown to Witnesses C and D and G.
[191] The Applicant’s evidence was feigned indignation and an attempt to make a wrong comparison with another cabin crew’s behaviour.
[192] I now turn to the material received by the Applicant from Witness A and whether it was uninvited, unwelcomed or offensive.
[193] The text exchange in May 2015 between the Applicant and Witness A, I am satisfied, contained naked photographs of Witness A. The text messages reveal the following comments from the Applicant, “hot babe!!!!!”, “why are you naked now?”, “you are hottt”, “we need to catch up”, “banging!!!!!!” and “well when I’m back we have to catch up”.
[194] The evidence with respect to whether the photographs and videos sent on 7 July 2015 were uninvited, unwelcome and potentially offensive can be considered in the following text messages of the Applicant, “when was that video? lol”, “come over tomorrow”, “…I am keen to fuck you”, “hot”, “lick your ass”, “your **”, “you’re so hot!!”, “sexy as fuck” and “what else you have”, do not demonstrate that the four (4) photographs or videos were offensive or something the Applicant did not want to receive.
[195] Having been confronted with his text comments, the Applicant agreed that he was not offended by the photographs 107 but stated that the videos of Witness A having sex with an unidentified male, “is probably not something that I’d want to receive” or the photographs from Witness D.
[196] It is also notable that rather than confront the evidence in the text messages, the Applicant chose to give deflecting evidence such as, the video “could be video of anything. It could be a possum” 108; his evidence was just foolish.
[197] I am comfortably satisfied, from the Applicant’s comments, that the photographs sent by Witness D, and the naked photographs and videos of Witness A, were neither unwelcomed nor offensive.
Prior disciplinary matters
[198] On 15 September 2011, the Applicant was advised of “Alleged Breaches of the Keeping Our Workplace Fair [KOWF] Policy”. 109
[199] The correspondence refers to four incidents. Regarding the first two (2) incidents in April 2011, the Respondent refers to its earlier correspondence where the Respondent made it clear to the Applicant that, he had to conduct himself “with professionalism at all times, both when interacting with colleagues and guests”.
[200] In August 2011, the Respondent received two further complaints regarding the Applicant’s conduct. At a meeting to discuss the reports on 8 September 2011, the Leader Cabin Crew notes, in writing:
“…you confirmed that you did make a comment about a colleague’s sexual preference whilst on this trip. You also let me know that you could not recall speaking with any colleagues about the CCOS phone calls and our meeting about your adherence to the KOWF Policy”. 110
[201] In his response to the Leader Cabin Crew, the Applicant had this to say when he disclosed confidential information:
“…and I trusted [name] to keep everything both work related and personal to herself and not to discuss it with anyone besides myself”. 111
[202] In relation to a colleague’s sexual preference, the Applicant stated:
“I have acknowledged that I have inadvertently offended crew whilst I was understand (sic) the impression I could talk in trust and within context”. 112
[203] It would appear from these disciplinary instances that the Applicant has previously disclosed confidential or personal information, made comments of a sexual nature regarding his work colleagues and claimed certain events attributed to him having been taken out of context.
[204] The Applicant was issued with a written warning and informed that in moving forward, he was expected to conduct himself with professionalism in his interactions with work colleagues and passengers.
[205] In considering the above disciplinary matters, I have also taken into account that the events are not recent, and on 30 June 2014, the Applicant was promoted to Cabin Supervisor.
Dishonesty
[206] The Respondent’s correspondence notifying the Applicant of his termination of employment refers to his responses as being, “to wholly and categorically deny the allegations, with no attempt to fulsomely engage with the Company through the investigation or apologise for any misunderstanding of our behaviour even if you deny it”. 113
[207] As a consequence, the Respondent came to the view that, “I consider your failure in this regard to amount to dishonest conduct”. 114
[208] The Respondent submits that an employee’s failure to cooperate and truthfully answer questions in an investigation process, leads to a loss of trust and confidence which may, of itself, constitute a valid reason for dismissal. Further, that if I find that if the Applicant engaged in the conduct set out above, he has been consistently untruthful and failed to cooperate with the Respondent throughout the investigation. 115
[209] On both the written and oral evidence, I am not able to agree with the Respondent that the Applicant failed to cooperate with the employer’s investigation.
[210] However, in view of my findings above in relation to the Applicant’s conduct, the only conclusion which can be drawn from his responses to the allegations in the investigation is that he was untruthful. Put simply, the Applicant was dishonest as alleged by the Respondent.
Supervisor status
[211] The Applicant was promoted to Cabin Supervisor on 30 June 2014.
[212] For every position in the Respondent’s organisation, the occupant has a role. The role relates to work carried out and behaviour expected by the employer of the occupant of the position.
[213] The Applicant cannot carry out his role of Supervisor unless his subordinates carry out their expected roles. Subordinates cannot carry out their roles, unless a supervisor carries out his or her expected role. This interlocking of roles is one way in which an organisation functions effectively. Each employee plays their particular role.
[214] Obviously, there are variations in the role played by a supervisor. Differences of personality, cultural background, experience and skills will determine the circumstances on how a supervisor carries out their role.
[215] The Applicant conceded, in his evidence that, as a supervisor, his role was to lead by example when it came to the Respondent’s EEO Policy and Code of Conduct.
[216] In determining whether the Applicant’s dismissal was “harsh, unjust or unreasonable”, I have taken into account the Applicant’s supervisory status vis-�-vis his conduct towards his subordinates. I find that his conduct was in conflict with his role as a leader and the expectations of those he led, in particular, Witnesses A, C, D, F and G. The Applicant did not treat these employees with dignity, courtesy and respect and engaged in conduct which was unwelcomed and uninvited.
Inconsistent treatment
[217] The Applicant submits that Witness D engaged in conduct that was “substantially the same conduct for which the Applicant was dismissed i.e. sexually harassing the Applicant and, in doing so, breaching the Policy and the Code”. Further, that Witness D had not been suspended or dismissed.
[218] In my view, the conduct of the Applicant was significantly different to that of Witness D. Secondly, Witness D was not a Supervisor. Thirdly, the two (2) photographs sent by Witness D were materially less sexually explicit than the photographs shown by the Applicant to the witnesses above. Finally, if the Applicant considered the two (2) photographs as uninvited, unwelcome and offensive, he did not raise or report the matter to the Respondent until 30 December 2015, as part of the investigation into his conduct.
[219] I note that Witness D was disciplined regarding her conduct and received a written warning on 24 March 2016. 116
[220] With respect to Witness A sending sexually explicit photographs and two short videos to the Applicant, the circumstances are significantly different. First, the Applicant and Witness A were in a sexual relationship. Witness A sent photographs of herself to the Applicant. Third, as I have set out above, the photographs were certainly not received by the Applicant in a way which can be described as unpleasant, unwanted or an affront to his sensitivities. Finally, there was an obvious understanding on Witness A’s part that, in sending the photographs to the Applicant, it was part of their private relationship. A relationship which the Applicant described as intending to be “discrete”. 117
[221] The Applicant, in my view, fails to appreciate that he breached the Respondent’s EEO Policy and Code of Conduct when he showed these personal and private photographs of Witness A to work colleagues; it was this display that was unwelcome, uninvited and offensive to his work colleagues.
Alleged collusion
[222] The Applicant alleged, but it could not be said forcefully, collusion between the witnesses. I wish to simply dispose of the allegation as follows.
[223] Firstly, there is nothing remarkable about a situation in which multiple witnesses give evidence with discrepancies about events which occurred approximately 12 to 18 months ago. In my view, the inconsistencies were few and did not materially challenge the specific allegations discussed above.
[224] Secondly, it is worth observing that each of the witnesses has had to make statements to their employer, make statements to the employer’s legal representatives, give evidence and be cross-examined on their evidence. Clearly, for Witness A this would have been, to say the least, embarrassing and uncomfortable. For Witness D, it resulted in a written warning. For Witness E, as a corroborating witness, it would have been difficult given his initial response to his employer.
[225] Any discrepancies did not detract from the overall evidence which established my findings that the alleged events occurred. I find no evidence of collusion.
Workplace culture
[226] While not expressed in these words, the Applicant appeared to suggest that he was a “victim” of the Respondent’s workplace culture. Simply put, he was not the “guilty party” but a “patsy” for the Respondent’s workplace culture.
[227] In his witness statement, the Applicant infers that if the Respondent’s policies “were rigidly applied”, all his co-workers, including the witnesses, would have breached the policies.
[228] The Applicant’s evidence is that it is not uncommon, for cabin crew to “have sex during overnight stopovers”. “Everything was out in the open…nothing was off limits”. Incredulously, the Applicant then states that he did not take part in highly sexual discussions; he admitted he listened to them but did not take action, as Cabin Crew Supervisor, to enforce the Respondent’s policies or to report his co-workers’ behaviour. 118
[229] The Applicant did not identify what steps the Respondent could have taken to prevent or mitigate the action which he undertook. In fact, the Applicant pointed to the policies which the Respondent had in place to prevent, or mitigate, the sort of conduct which he undertook (and admitted he did nothing, as a Supervisor, to enforce). Shortly put, the Applicant did nothing to prevent the behaviour which, he infers, led to the allegations being made against him and which resulted in his dismissal.
[230] When I consider the totality of the evidence, I am not prepared to conclude, as the Applicant infers, that a “third party” – the Respondent’s workplace culture - is liable for the Applicant’s conduct. The Applicant is liable for his own conduct and I find accordingly.
When did the relationship between the Applicant and Witness A end and in what circumstances?
[231] In his evidence, the Applicant states that:
“I terminated the relationship with [Witness A], such as it was, sometime in May 2015 after hearing that [Witness A] had boasted about sleeping with a supervisor from Perth. I thought we had an understanding that the relationship was to be discrete and it became apparent that [Witness A] wasn’t treating it that way”. 119
[232] The evidence regarding when the Applicant and Witness A last had sex is disputed. The evidence is either December 2014 or as the Applicant states the first half of 2015. 120
[233] Notwithstanding when the Applicant and Witness A ceased having sex, the evidence is clearly demonstrative that they texted each other up until 29 September 2015 121.
[234] On 10 October 2015, the Applicant and Witness A had what appears to be their last text message exchange. In the exchange, Witness A states to the Applicant, “answer your phone right now”. 122 It is not necessary to go into all the details following this message but to say that Witness A states that “you’ve…drawn the line” and that to answer his mobile telephone, or he would be hearing from the police, the Respondent and lawyers.123
[235] In my view, the text messages up to and including September 2015 demonstrate two people in a continuing relationship and, wanting and agreeing, to catch up with each other 124. The text messages are certainly not of a person aggrieved because of Witness A boasting that she was sleeping with her supervisor.
[236] Clearly, when two people are discussing in detail in July 2015 their preferred sexual activities by text, it is just not on “all fours” with a statement, that the relationship ended in May 2015.
[237] In cross-examination, when asked about the end of their relationship, the Applicant responded as follows:
“It's simply not the case that you terminated the relationship by telling her it's something like, "It's over. Or we're not seeing each other anymore." Did you? That didn't happen?---It was a mutual - I think this is - it kind of needs to come to a stop.” 125
[238] Having considered the relevant evidence, I find that the Applicant’s version of when the relationship ended, and in what circumstances, is an invention of the truth. Like many other of the Applicant’s statements of fact, their veracity unravelled under cross-examination.
[239] On numerous occasions in evidence, the Applicant conceded that if I find that the conduct alleged occurred, it would have been unwelcome, disrespectful, offensive and contrary to the Respondent’s EEO Policy and Code of Conduct. I find, when considering the totality of the evidence, the alleged conduct did occur and it was serious misconduct. The Respondent had a valid reason to dismiss the Applicant pursuant to s.387(a) of the FW Act.
[240] Having also taken into account the matters in s.387(b) to (h) of the FW Act, I am satisfied that the Applicant’s dismissal was not “harsh, unjust or unreasonable”. Accordingly, the application must be dismissed and an Order to this effect is issued with this Decision.
COMMISSIONER
Appearances:
S Heathcote of Counsel on behalf of the Applicant.
P Moorhouse of Counsel on behalf of the Respondent.
Hearing details:
2016:
Perth,
4, 5 and 6 October.
<Price code G, PR586029>
1 Exhibit A7 (16)
2 Brink v TWU PR922612 at paragraph [7]
3 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
4 Exhibit A7 (3)
5 Transcript PN743 to PN750
6 Exhibit R9 (2)
7 Exhibit A7 (14)
8 Exhibit R19 (36) and (37)
9 Exhibit A7 (12)
10 Transcript PN764 to PN771
11 Transcript PN777
12 Exhibit A7 (15) and (16)
13 Transcript PN3357
14 Transcript PN3366
15 Exhibit R6 (9)
16 Exhibit R19 (21)
17 Exhibit A7 (18)
18 Exhibit R19 (24)
19 Exhibit R19 (5)
20 Exhibit A7 (10)
21 Exhibit R21 (18)
22 Exhibit R21 (19)
23 Exhibit R21 (23) and (24)
24 Exhibit R21 (29)
25 Exhibit R21 (36)
26 Exhibit R21 (41) and (42)
27 Exhibit A7 (12)
28 Exhibit A7
29 Transcript PN874
30 Transcript PN889
31 Transcript PN950
32 Transcript PN885 and PN932
33 Transcript PN937
34 Transcript PN3832
35 Transcript PN3836
36 Transcript PN3853 to PN3856
37 Transcript PN3864
38 Exhibit A8
39 Exhibit R20
40 Transcript PN3780
41 Transcript PN1316
42 Exhibit A7 (10)
43 Exhibit A7 (10)
44 Exhibit R18 (61)
45 Transcript PN436
46 Exhibit R15 (6)
47 Transcript PN1229 and PN1231
48 Exhibit R19 (46)
49 Exhibit A7 (12)
50 Transcript PN809 and PN811
51 Transcript PN813 to PN817
52 Exhibit R16
53 Transcript PN1305
54 Transcript PN1967, PN1968 and PN1970
55 Transcript PN1971
56 Transcript PN1974
57 Transcript PN1996
58 Transcript PN2004
59 Transcript PN1991
60 Transcript PN998 and PN1000
61 Exhibit R16 (22)
62 Transcript PN1026
63 Transcript PN1050
64 Exhibit R16 (30)
65 Exhibit R16 (45)
66 Exhibit R16 (47)
67 Exhibit R16 (49)
68 Transcript PN485
69 Transcript PN1095
70 Transcript PN489
71 Transcript PN1095, PN1098 and PN1168
72 Exhibit R16 (52) to (54)
73 Transcript PN1178 to PN1180
74 Transcript PN2089
75 Exhibit R18 (9)
76 Exhibit R18 (26 to 28)
77 Exhibit R18 (31 and 32)
78 Exhibit A7 (12)
79 Exhibit A7 (13)
80 Transcript PN 1108 and PN1109
81 Transcript PN1146
82 Exhibit R18 (32)
83 Exhibit R18 (42)
84 Exhibit R18 (45)
85 Exhibit R18 (47)
86 Exhibit R18 (47) and (52)
87 Exhibit A7 (12)
88 Transcript PN2431
89 Transcript PN2369 and PN2408
90 Transcript PN1191 and PN1194
91 Transcript PN425
92 Transcript PN2353
93 Exhibit R11
94 Exhibit R11 (2)
95 Exhibit R11 (2)
96 Exhibit R11 (2)
97 Exhibit R11 (4)
98 Transcript PN527
99 Transcript PN529
100 Transcript PN536
101 Exhibit R11 (1)
102 Transcript PN575
103 Exhibit A7 (12)
104 Transcript PN1584
105 Transcript PN1374
106 Exhibit A7 (11)
107 Transcript PN1435
108 Transcript PN1507
109 Exhibit R9 (5)
110 Exhibit R9 (5)
111 Exhibit R9 (6)
112 Exhibit R9 (6)
113 Exhibit R9 (25)
114 Exhibit R9 (25)
115 Exhibit R5 (32) and (33)
116 Exhibit R18 (16)
117 Exhibit A7 (16)
118 Exhibit A7 (12)
119 Exhibit A7 (16)
120 Transcript PN1582
121 Exhibit R15 (23)
122 Exhibit R15 (24)
123 Exhibit R15 (25)
124 Exhibit R15 (22) to (24)
125 Transcript PN1445
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