[2018] FWC 4436 [Note: An appeal pursuant to s.604 (C2018/4576) was lodged against this decision - refer to Full Bench decisions dated 22 October 2018 [[2018] FWCFB 6370] and 06 March 2019 [[2019] FWCFB 1322] and for results of appeal.]
FAIR WORK COMMISSION

DECISION



Fair Work Act 2009
s.394—Unfair dismissal

Luke Urso
v
QF Cabin Crew Australia Pty Limited T/A QCCA
(U2017/12351)

DEPUTY PRESIDENT DEAN

SYDNEY, 31 JULY 2018

Application for an unfair dismissal remedy.

[1] On 20 November 2017 Mr Luke Urso made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by QF Cabin Crew Australia Pty Limited (QCCA or the Company). QCCA is a subsidiary of Qantas Airways Limited (Qantas).

[2] Mr Urso was employed by QCCA as a flight attendant from 22 February 2016 until he was dismissed on 2 November 2017. His dismissal followed an investigation into allegations of misconduct which concluded that he had breached various Qantas policies. Mr Urso seeks reinstatement to his former position.

[3] The application was the subject of conciliation on 11 December 2017 and remained unresolved. The matter then came before me for arbitration in Sydney on 15 March 2018. Final written submissions were provided by the parties on or about 23 March 2018.

[4] At the hearing, Mr N Read, of counsel, with Ms S Garcia of Flight Attendants’ Association of Australia (FAAA) appeared for Mr Urso, and Mr S Woodbury of Ashurst appeared for QCCA. Both parties were granted permission to be represented under s.596 of the Act.

Issues for determination

[5] The key issue for determination is whether Mr Urso consumed excessive alcohol while on slip in New York, causing him to be unable to perform his flying duties, in breach of the relevant Qantas policies.

[6] Counsel for Mr Urso put the issue for determination in the following way:

[7] For the reasons set out below, I find that Mr Urso’s dismissal was not unfair, and accordingly I dismiss his application.

Background and matters not in dispute

[8] The background and facts giving rise to Mr Urso’s dismissal are largely uncontested, and the matters set out below are established by the evidence.

[9] Mr Urso commenced employment with QCCA on 22 February 2016 on a full-time basis as an international flight attendant.

[10] His terms and conditions of employment were regulated by an enterprise agreement, and by various policies including the Qantas Group Standards of Conduct Policy, the Qantas Cabin Crew Administration Manual, the Qantas Group Safety and Health Policy and the Drug and Alcohol Management Plan (the Policies).

[11] In early July 2017, Mr Urso had heart surgery to correct an irregular heartbeat. On 19 July 2017, Mr Urso was certified by his cardiologist as being fit to return to pre-injury work.

[12] On 20 July 2017, Mr Urso commenced operating on a 7 day flight service (known as a ‘pattern’) for the sectors Brisbane-Los Angeles-New York- Los Angeles-Brisbane.

[13] Mr Urso was advised by a QCCA Service and Performance Manager, Ms Collins, prior to commencing the pattern to “make sure you take it easy on this trip”, given he had just returned from one month’s leave after surgery.

[14] After arriving in New York on 22 July 2017, Mr Urso attended the 230 Fifth Rooftop Bar in New York between 10:00 pm and 10:30 pm and consumed alcohol with another crew member, Mr Brent Littmoden. Mr Urso said that he consumed two peach martinis and three gin and tonics.

[15] At around 11.40 pm Mr Urso was found by Mr Littmoden collapsed on the floor of the toilets in the bar. He was conveyed to Greenwich Hospital via an ambulance around midnight. He was discharged from hospital at about 6 am the next morning, 23 July 2017.

[16] While in the hospital, various tests including a toxicology report were undertaken. The toxicology report records that Mr Urso had a blood alcohol level of 205mg/dL.

[17] Mr Urso was due to operate the flight back to Los Angeles which departed at 5:10 pm on 23 July 2017. He advised his manager that he was still feeling unwell and did not attend. He subsequently flew to Los Angeles as a passenger on 25 July and returned to Brisbane on 27 July.

[18] Mr Urso undertook various medical tests and was cleared to return to work on 14 August 2017. On 15 August 2017, Mr Urso was informed by Ms Collins that he would be stood down with pay pending an investigation of allegations against him. This was followed by a letter2 given to him which states, in part:

[19] A letter dated 5 September 20173 (the Allegation Letter) was later received by Mr Urso in which the allegations were set out as follows:

[20] The Allegation Letter stated that Mr Urso’s conduct may be in breach of the Policies. It set out the relevant provisions as the ‘Potential Breaches’ and ended with the following:

[21] Attached to the Allegation letter were documents listed as follows:

[22] Mr Urso provided written response to Ms Collins in a letter dated 12 September 2017 4. In the letter, Mr Urso responded to each of the allegations as follows:

[23] On 21 September 2017 Mr Urso attended a response meeting with Mr A Small (a Customer Experience Manager) and Ms Collins. Mr Urso was accompanied by Ms Garcia of FAAA.

[24] On 10 October 2017 Mr Urso was provided with a letter from Ms Collins 5 which detailed the findings and outcome of the investigation. It was held that all seven allegations of misconduct against Mr Urso were found to be substantiated. Mr Urso was asked to provide a written response as to why his employment should not be terminated and he did so on 12 October 20176.

[25] In his response, Mr Urso said that he thoroughly enjoyed being a part of the greater Qantas family and was proud of his role. He noted that privileges also come with responsibilities and “it is with genuine regret that I have seen the immense time and support invested in this case by Qantas, the Union, as well as my loving family; and for all this I can only be humbly grateful. Qantas management, from the Service and Performance Managers to Customer Service Mangers have engaged me with utmost professionalism that I have come to appreciate of such a large organisation. Health and safety is a priority for Qantas in the care of their employees, and I understand that this calls for increased vigilance on my part.” Mr Urso said that he had learnt ‘hard lessons’ and had made immediate changes within his own personal life. Mr Urso further indicated that he was willing to be placed on a Drug and Alcohol Management Plan and would refrain from alcohol consumption whilst on duty slips at overseas ports for the next 12 months. Mr Urso asked that consideration be taken for him to remain employed with Qantas.

[26] On 19 October 2017 Mr Urso attended a final meeting with Ms Bowen and Ms K Wallace (a Service and Performance Manager) where discussions were held in relation to his show cause response. Ms Garcia again attended this meeting as Mr Urso’s support person.

[27] On 2 November Mr Urso received a letter of termination 7 (the Termination Letter). The Termination Letter states, in part:

[28] It was also not disputed and I find that:

Alleged breaches of company policies and relevant provisions

[29] The Allegation Letter referred to the following company policies:

[30] QCCA’s Standards of Conduct Policy (the Standards Policy)9 prescribes the process for dealing with allegations of misconduct at clause 16. The clause also sets out the investigation process guidelines and types of disciplinary action which may be taken. The Standards Policy provides that the relevant Manager and People/HR Representative will determine what type of disciplinary action is appropriate in respect of any substantiated allegations, after taking into account the following factors:

[31] The types of disciplinary action may be taken include formal warnings, demotion, dismissal and summary dismissal. Clause 16.22 (c) of the Standards Policy provides the following in respect of ‘Dismissal’ and ‘Summary Dismissal’:

[32] Clause 21 of the Standards Policy provides the following definitions for ‘Misconduct’, ‘Serious misconduct’ and ‘Unacceptable behaviour’:

(a) disobeying or disregarding a lawful direction;

(b) negligence or carelessness in the discharge of duties;

(e) Unacceptable Behaviours;

The case for Mr Urso

[33] In essence, Mr Urso’s case rests on the following:

[34] Submissions made on behalf of Mr Urso argue that this case turned on whether there was indeed a breach of the relevant policies, and if so whether that conduct was sufficiently serious as to warrant dismissal. Counsel for Mr Urso argued that the dismissal was for no valid reason, or in the alternative, harsh because it was disproportionate to the gravity of the conduct.

[35] Evidence was given by:

Mr Urso

[36] Mr Urso filed three statements 10 in support of his application and gave oral evidence in the proceedings. In addition to dealing with the largely uncontested factual background, Mr Urso’s evidence included the following matters.

[37] Mr Urso said that he prided himself on his impeccable work performance and has received positive reviews from peers, supervisors and customers. He said that all of his performance development forms indicated that he met all expectations and in many areas he was given the highest rating of ‘role model’. He has never received a written or verbal warning about his conduct nor placed on any performance improvement plan.

[38] On 18 June 2017, whilst in Los Angeles during a pattern, he was admitted to a hospital for 2 nights due to an episode of superventricular tachycardia. Following this incident, he had a heart surgery on 5 July 2017 and was certified as being fit to return to pre-injury work from 19 July 2017. He has taken one Verapamil each day since the surgery.

[39] The pattern which commenced on 20 July 2017 was his first trip after the heart surgery where he first met Mr Littmoden, a New Zealand based crew member.

[40] Mr Urso said that at the time he and Mr Littmoden arrived the 230 Fifth Rooftop Bar 10pm and 10.30pm local New York time, “… I was aware that I had to be rested and fit to operate the flight back from New York City to Los Angeles the next day.”

[41] He claimed that from experience he was able to consume about five alcoholic drinks “without being greatly affected when overseas or in a slip port” and “I would not consider that me consuming five drinks would be excessive and I was confident that I would be able to recover from the effects of the alcohol and be able to perform my duty the following day.”

[42] Mr Urso’s statement sets out his recollection of the events in the evening of 22 July 2017 and the days following, including:

[43] Attached to Mr Urso’s statement was a statement of Mr Littmoden containing his recollection of the timeline of events in the evening of 22 July 2017. According to Mr Littmoden, he and Mr Urso both had 2 Peach Martinis and 3 Gin and Tonics. At about 11.30 pm Mr Urso told him that he was not feeling 100% and excused himself to the bathroom. Mr Littmoden followed him to the bathroom to check on him and found that Mr Urso vomiting over the basin and then collapsed on the floor. At about 11.50 pm he called 911 and an ambulance arrived in half a minute. At the time Mr Urso was not responsive and “had no idea who or where he was”. On arrival at the hospital about midnight, Mr Urso became far more coherent and was able to tell the paramedics about his medical conditions. Mr Littmoden then contacted Ms Bakker, the CSM for the trip, to inform her what had happened. Ms Bakker arrived the hospital at about 12.30 am. He left the hospital at about 2.30 am and Ms Bakker took over the care of Mr Urso at the hospital.

[44] Mr Littmoden was not called to give evidence.

[45] Following the incident, Mr Urso was directed to undertake various pathology tests. He also contacted his cardiologist, Dr Haqqani, to advise him of the incident in New York, and was told that it was unlikely to have anything to do with his heart or the medication he was taking. On 28 July 2017 he had an appointment with Dr Haqqani and was told that his ‘ECG’ and blood pressure was normal.

[46] Mr Urso said that he made numerous phone calls to Qantas Medical to follow up the tests results and during a conversation with Ms Collins, he was told that “if the results are fine, you can return to work”.

[47] According to Mr Urso, he exhausted his sick leave on or about 28 July 2017 and commenced unpaid sick leave. This placed him under financial strain and he felt a great deal of stress and anxiety during this time. On or around the first or second week of August 2017, he spoke to FAAA to seek advice. “I told them that I was concerned that I was not being paid and had to pay for the tests.”

[48] Towards the end of August, he attended a conference with FAAA at this Commission and was later reimbursed his medical costs and backpay.

[49] Mr Urso said that prior to receiving the Allegation Letter, he told the union that he did not feel comfortable with Ms Collins investigating the matter. He thought that it was unfair that “the same person who put me at a disadvantage by putting me on unpaid leave and not immediately reimbursing my medical expenses would be the person making decisions on the allegations.” Mr Urso’s request for a new investigator was rejected.

[50] Mr Urso said that he was upset by the question put by Ms Collins during the response meeting when he was asked if he was aware that there is a cost involved in calling an ambulance:

[51] Mr Urso said with respect to Ms Collins’ finding and outcome letter:

[52] At the final meeting on 2 November 2017 he was given a termination letter and his employment was terminated with immediate effect. He said:

[53] Mr Urso stated that working as a flight attendant was his dream and he thoroughly enjoyed his employment with the respondent. He wanted to be reinstated and is prepared to pay the costs of all the treatment provided to him in New York by way of deduction from his salary or a payment plan.

[54] In a further statement filed on 5 March 2018, Mr Urso stated that his home loan application was refused subsequent to the dismissal due to his ‘insufficient borrowing power’. Mr Urso said that he had paid a deposit of $54,999 and signed an ‘unconditional contract which was not subject to finance’. If his financial situation does not improve, he would lose the deposit and the first home owners grant.

[55] Mr Urso gave evidence that he obtained new employment on 29 November 2017 and has been working as a passenger services operator on a casual basis.

[56] In cross-examination, Mr Urso:

Mr Jackson

[57] Mr Jackson has been employed by Qantas for 32 years and is currently a CSS based in Brisbane. He is also an ‘info rep’ for FAAA.

[58] He provided a footage he took of the drinks prepared by a bartender at the 230 Fifth Rooftop Bar during his visit of the bar with three other crewmembers on the evening of 11 January 2018.

[59] Mr Jackson’s statement detailed the steps taken to prepare a peach martini. Mr Jackson said that he observed that many other mixed drinks at the bar were either measured as doubles or poured without any measuring.

[60] Mr Woodbury argued that the evidence of Mr Jackson was of no utility in relation to these proceedings.19

[61] In cross-examination, Mr Jackson agreed that he was not at the 230 Fifth Rooftop Bar on 22 July 2017 and had no personal knowledge as to what Mr Urso ordered or drank in that evening. He further agreed that he did not know which bartender prepared Mr Urso’s drinks on 22 July 2017.

Dr Odell

[62] Dr Odell has been a full-time Forensic Physician at the Clinical Division of the Victorian Institute of Forensic Medicine since 1996. He previously held the position of Forensic Physician in the Department of Forensic Medicine of the Victoria Police between 1991 and 1995.

[63] Dr Odell was engaged by FAAA to provide an opinion about the blood alcohol concentration reading of Mr Urso. A report prepared by Dr Odell dated 9 February 2018 was tendered into evidence20.

[64] Dr Odell’s report concluded with the following:

[65] In his oral evidence, Dr Odell said that he disagreed with Dr Hosegood’s opinion that 0.187 could be reached by drinking 180 grams or 18 standard drinks over three hours. He said that if a male person of Mr Urso’s height and weight had consumed 18 standard drinks or 180 grams of alcohol, he would have had a much higher blood alcohol than 0.187.

[66] Dr Odell asserted that a reading of 0.205 per cent is in the high range and the effects of this level of intoxication would be significant.21

[67] In answering a question from me, Dr Odell confirmed that there was no suggestion that Mr Urso was not metabolising alcohol in a normal fashion because of any liver or kidney or related issues22, nor that his alcohol metabolism was affected in any way by the interaction of any pharmaceutical drugs.23

[68] As to the statement made by Dr Hosegood that 0.187 could be reached by drinking 180 grams or 18 standard drinks, Dr Odell said:

[69] Dr Odell confirmed in his oral evidence that in all likelihood, given the blood absorption process and timing, the most likely situation was that Mr Urso consumed around 14 standard drinks.25

Submissions on behalf of Mr Urso

[70] The written submissions filed on behalf of Mr Urso by FAAA state that the fundamental enquiry in this matter is:

[71] It was submitted that notwithstanding the investigation concluded that Mr Urso had breached various policies, the reason for the dismissal was perceived dishonesty over the number of drinks consumed. It was argued that QCCA drew unreasonable inferences from the evidence in coming to the view that Mr Urso had been dishonest. Contrary to procedural fairness, the allegation of dishonesty was never put to Mr Urso during the investigation and he was deprived of an opportunity to respond.

[72] It was further argued that the dismissal was harsh and its consequences on Mr Urso’s personal and economic situation were disproportionate to the gravity of any misconduct. A lesser sanction should be imposed such as a written warning or final written warning.

[73] The submissions go on to set out the background leading to Mr Urso’s dismissal which are set out earlier in this decision.

[74] The FAAA submitted that there are limitations to the extent that an employer may regulate the out of hours conduct of employees. It relied on the decision in Rose v Telstra26 which says:

[75] The FAAA argued that whilst it accepted that QCCA may in some circumstances regulate employees’ out of hours conduct to the extent that it may interfere with its operations, out of hours conduct must be of sufficient seriousness to justify a dismissal.

[76] In respect of breaches of policy generally, the FAAA relied on the decision in Appeal by B, C and D [2013] FWCFB 6191 which held:

[77] The FAAA argued that the seven allegations put to Mr Urso are part of the same course of conduct and the allegations, when viewed independently, are of the type that are not sufficiently connected to the workplace so as to bear the characteristics of out of hours conduct that may be properly regulated by QCCA.

[78] It submitted that:

“had the Applicant been fit to operate on 23 July 2017 it is difficult to see what, if any, conduct may have had the characteristics of Rose v Telstra. It could not be determined that the Applicant’s actions had breached his obligations in the DAMP, which required staff to be free from alcohol before flying. The Applicant was discharged from hospital at 5:58 am on 23 July 2017 as being clinically sober with a steady gait clear speech and no medical complaints. The Applicant was not due to attend work until 5:10 pm on 23 July 2017 (almost 11 hours following discharge from hospital). Had the Applicant been fit to operate, and operated, is difficult to see how his conduct could have been of the type that was capable of being regulated by the Respondent.”

[79] It was also submitted that Mr Urso:

[80] The FAAA argued that “whilst the Applicant had an adverse reaction to the drinks, and it is unfair to characterise his drinking was ‘excessive’ or of the type that would put him at risk of being prevented from operating the following evening. It could not be determined that the Applicant would not have been fit to operate by the time that he was required to sign on the duty, and therefore in breach of the DAMP. If the Applicant’s blood alcohol level had reduced to zero prior to his shift on 5:10pm, which is likely, then it could not be said that his drinking was ‘excessive’ – he would have been able to operate. The Applicant must have ceased drinking prior to midnight on 22 July 2017 when he was conveyed to hospital and was not required to sign onto duty until 5:10pm the following day.”

[81] The submissions on behalf of Mr Urso also included the following:

[82] The FAAA submitted that whilst the outcome letter did not properly explain what parts of the various policies had been breached, it proffered that QCCA relied upon clauses 4.8.1 and 4.8.8 of the CAM which provide:

[83] The FAAA submitted that QCCA should have given greater weight to the following matters in making its decision to dismiss Mr Urso:

[84] The FAAA submitted that the failure to give due consideration to the above matters rendered the dismissal harsh, and a lesser sanction should instead be imposed such as a written warning or final written warning.

[85] It was further argued that Mr Urso was treated differently to other staff who have breached clause 4.8.1 of the CAM. For example, the FAAA said that “a staff member who injured herself skiing whilst in slip and was prevented from performing her next operational duty was issued with a written warning.”

[86] Other matters which it was submitted the Commission should consider include that Mr Urso has offered to give undertakings about his future conduct and reimburse QCCA for the costs incurred by it for his care/treatment in New York.

[87] The final submissions made on behalf of Mr Urso included that “whilst an inference may be drawn from the BAC that the applicant drank excessively, it is not conclusively proved that the conduct of excessive drinking”. In this regard it was argued that excessive drinking involved an element of knowledge or recklessness on behalf of Mr Urso, and whilst the BAC was high, it argued it was open to find on the evidence of the drinking was not ‘excessive’.

The case for QCCA

[88] The case put on behalf of QCCA maintains that Mr Urso’s conduct whilst on ‘slip’ in New York, which resulted in him being unable to fulfil his duties on 23 July 2017, established a valid reason for the dismissal. The decision to terminate Mr Urso’s employment was made after a thorough investigation which concluded that the conduct of Mr Urso was inconsistent with the continuation of his employment.

[89] Evidence for QCCA was given by:

Ms Collins

[90] Ms Collins is a Service and Performance Manager (SPM) of QCCA and has been in this role since November 2016. According to Ms Collins, she is responsible for supporting and managing approximately 200 flight attendants who work out of Brisbane International Airport in order to achieve the QCCA performance, service and safety standards. Prior to the current position Ms Collins was engaged as a Flight Attendant, Customer Service Supervisor (CSS) and Customer Service Manager (CSM).

[91] Ms Collins said that prior to Mr Urso commencing his flight in July 2017, she spoke to him and said words to the effect: “Make sure you take it easy on this trip and manage your rest given it is your first trip back.” This was said to Mr Urso in the context that he had just returned from a month’s leave after heart surgery and received medical clearance to recommence work on 19 July 2017.

[92] Ms Collins said that she also met with the CSS and CSM who were rostered to operate the same flight as Mr Urso from Brisbane to New York in order to address their concerns regarding Mr Urso’s fitness for work and asked them to contact her if they required any support.

[93] On 23 July 2017 she received an email from Ms Bakker advising her that Mr Urso had been transported by ambulance to a hospital. Ms Collins said that from 23 July to 24 July she kept in contact with Mr Urso through text messages and phone calls to see how he was.

[94] On 27 July 2017 she met with Mr Urso in Brisbane on his arrival. During their conversation, she said to him: “If you feel you have been drink spiked, you can book an appointment with your general practitioner for a toxicology test. You should also see your cardiologist, given your ongoing symptoms, to get a report covering medical recommendations around alcohol use and any other medical restrictions. You will not fly until you have complete medical clearance. I am not confident with you operating an aircraft.” She also told Mr Urso to forward any medical reports to Dr Brown and that she would be in contact in relation to future steps.

[95] Ms Collins said that she later contacted the 230 Fifth Rooftop Bar by telephone to request access to their CCTV footage for the night of 22 July 2017 to determine if someone had spiked Mr Urso’s drinks, but she was refused access to the CCTV footage.

[96] During Ms Collins’ telephone conversation with Mr Littmoden on 27 July 2017, Mr Littmoden told her that he and Mr Urso each consumed two peach martinis and ‘half a dozen gin and tonics’.

[97] On 28 July 2017 Mr Urso texted her and advised that his cardiologist confirmed that the New York incident had nothing to do with his heart condition.

[98] On 31 July 2017 she received emails from Ms Bakker and Mr Roderick Callins, an on-call SPM at the time of the New York incident, each setting out their statement of events with respect to the New York incident.

[99] She also received a signed statement of Mr Littmoden dated 31 July 2017. She noted that some details provided by Mr Littmoden during their earlier telephone conversation were not included in the statement and in particular the comment he made that he and Mr Urso each had ‘2 peach martinis and half a dozen gin and tonics’. She then contacted Mr Littmoden and asked if he could include that information in his statement but was told by him that: “I did not say that. You must have misheard me. I would never consume that amount.”

[100] Mr Littmoden provided an amended written statement on 2 August 2017 after being told by her to add details to his first statement that he felt comfortable with.

[101] On 9 August 2017 she was advised by Ms Hughes that Mr Urso should not return to work until Qantas Medical Services collated the blood alcohol information and pending his further CDT blood test results.

[102] On 11 August 2017 Ms Collins received an email from Dr Hosegood regarding blood alcohol calculations.

[103] Ms Collins said that she had discussed all the information she had gathered with Ms Criniti, Manager QF Cabin Crew Australia, but understood that a formal investigation into the matter would be likely conducted after Mr Urso was certified as fit for a return to duty.

[104] On 14 August 2017, she was advised by Ms Hughes that Mr Urso was medically cleared for work. On or about 15 August 2017 she was asked by Ms Criniti to investigate the incident. Ms Criniti decided that Mr Urso would be withheld from service with pay pending the outcome of the investigation.

[105] She advised Mr Urso that he was to be held out of service with pay pending a formal investigation verbally and in writing on 15 August 2017.

[106] On 28 August 2017 she received an email from Ms Hughes regarding the timeline of, and medical reason for, Mr Urso’s hospitalisation.

[107] On 5 September 2017 she contacted Mr Urso to advise him that a Letter of Allegations would be issued and later emailed that letter to him.

[108] On 7 September 2017, she was provided with the hospital pathology result from Dr Brown.

[109] On 12 September 2017, she received a written response from Mr Urso responding to the Letter of Allegations.

[110] On 21 September 2017, she attended a Response Meeting with Mr Andrew Small (Customer Experience Manager), Mr Urso and Ms Garcia. During the meeting, Mr Urso provided her with one pamphlet and one internet print out on drink spiking. She said that “my overall impression of Mr Urso’s response was that he was taking no responsibility for what happened.”

[111] Ms Collins said that after she carefully considered all of the information that she had obtained concerning the incident, she found all allegations against Mr Urso to be substantiated.

[112] On 10 October 2017 she provided Mr Urso with a letter setting out her findings of the investigation. Mr Urso was given an opportunity to show cause as to why his employment ought not to be terminated.

[113] Ms Collins said that following her findings, her role in the process concluded. In her evidence she said that “a decision as to what course ought next be taken was to be made by Ashleigh Bowen, SPM based in Sydney International Airport. This separate process was undertaken to ensure that a fresh review of the investigation and findings could be undertaken and any decision concerning Mr Urso’s employment could be made independent from the conduct of the investigation.”

[114] Ms Collins explained that she was appointed as the investigator because the QCCA case management model requires managers to investigate any incidents. She was considered as an appropriate person to investigate the incident given she was not in New York at the time of the incident and that she was familiar with Mr Urso’s role and how flight attendants operate on-board and on slip.

[115] Ms Collins said that the reason she asked Mr Urso if he was aware that there were costs involved in calling an ambulance was because, under clause 4.8.8 of the Cabin Administration Manual, QCCA was not responsible for the costs of any medical treatment of any illness or injury caused by or attributable to the use of alcohol.

[116] Ms Collins said that she was not aware of any skiing incident involving Ms White and said “that the circumstances of that incident appear different to that involving Mr Urso.”

[117] Ms Collins said that although she did not make the decision to terminate Mr Urso, she agreed with the decision. “Mr Urso had demonstrated that he was not able to be trusted to ensure that he could meet the requirements of a Flight Attendant employed by QCCA.”

[118] Ms Collins said that if Mr Urso was reinstated, it would cause significant concerns and send the wrong message to other QCCA cabin crew.

[119] Ms Collins said: “The requirement to ensure that you are fit and able to attend for duty whilst working on a pattern is one of the critical features of the role, both from a safety and operational perspective. I have no confidence that Mr Urso appreciates this, and fear that his reinstatement would send a very poor message to the other cabin crew as to the Respondent’s safety requirements and how operationally critical it is for cabin crew to take responsibility for their actions whilst working overseas.”

[120] In cross-examination, Ms Collins:

Ms Bowen

[121] Ms Bowen has been employed by Qantas since March 2010. She has been on secondment with QCCA in her current role as a SPM since January 2016.

[122] Prior to working full time as SPM in Sydney from September 2016, she worked in Brisbane on average 2 days a week and was responsible for managing QCCA staff based in Brisbane including Mr Urso. She facilitated Mr Urso’s ‘Our Standards at Qantas’ training on his first day at work and had a few conversations with him regarding his career progression with QCCA but had limited involvement with Mr Urso since.

[123] In October 2017 she was requested by Ms Zamudio (Manager QCCA) to consider Ms Collins’ findings of the investigation against Mr Urso and determine an outcome. “At Qantas, it is common practice for there to be a different investigator and decision maker, in order to ensure fairness and due process.”

[124] She received the following documents from Ms Collins with respect to the investigation:

[125] On 12 October 2017 Ms Bowen received a letter from Mr Urso which set out his reasons as to why he considered that his employment should not be terminated.

[126] On 18 October 2017 she met with Ms Natalie Velickovich (Manager Performance and Culture) and Ms Jessica Farah (Manager Industrial Relations – EEO). Ms Collins joined the meeting by telephone. The purpose of the meeting was for Ms Collins to provide Ms Bowen with an overview of her findings before she considered Mr Urso’s response.

[127] On 19 October 2017 Ms Bowen attended the Show Cause Response Meeting with Ms Kathryn Wallace (SPM) and Mr Urso. Ms Garcia attended by telephone as Mr Urso’s support person. At the meeting Mr Urso was asked a number of questions. Ms Bowen said that based on the responses provided by Mr Urso, she formed the impression that Mr Urso was not willing to take responsibility for his actions.

[128] Ms Bowen said that Mr Urso was asked about his comments in the show cause response that ‘he understood that this calls for increased vigilance on my part’ and that he had made ‘immediate changes within my own personal life’, was inconsistent with his response during the Response Meeting with Ms Collins where he said: ‘I take responsibility for going out, but not for what happened to me. I drank responsibly.’ Mr Urso maintained that he had not ‘done anything wrong’ to put himself in a poor situation.

[129] Ms Bowen’s statement sets out her considerations into the Incident:

[130] Ms Bowen said that after taking into account all the information available to her, she came to the view that termination of Mr Urso’s employment was the appropriate disciplinary outcome. Mr Urso’s conduct was in breach of various policies, including the Qantas Standards of Conduct Policy, the Health and Safety Policy and the Cabin Crew Administration Manual. In particular, the requirement that Mr Urso:

[131] Ms Bowen said that she had considered outcomes other than termination such as demotion or warning, but decided that any such outcomes which ‘would result in Mr Urso continuing to operate as a QCCA staff member would not address the concerns in relation to his ability to be trusted whilst operating away from base and the possible risks to the safety of QCCA staff and customers’.

[132] On 2 November 2017 she provided Mr Urso with a written termination letter.

[133] In cross-examination, Ms Bowen:

[134] In re-examination, Ms Bowen said that she would not change her view if Dr Hosegood’s conclusions were incorrect and the blood alcohol level was 0.205% and not 0.187, and Mr Urso had consumed 14 standard drinks and not 18 standard drinks.71

Dr Hosegood

[135] Dr Hosegood has been employed by Qantas as Director of Medical Services since April 2012.

[136] Dr Hosegood said that in his previous role as Director of the Office of Aviation Medicine with the Civil Aviation Safety Authority (CASA) in 2006, he was responsible for the development and delivery of the CASA regulations for Alcohol and Other Drugs into law. During this process he had extensive consultations with forensic toxicologists, experts in drug and alcohol use and experts in aviation medicine and learnt a tremendous amount about the effects of drugs, and alcohol and drug and alcohol testing.

[137] In his current role with Qantas, he is responsible for the administration of the Qantas Drug and Alcohol Management Plan (DAMP) and for performing the role of Medical Review Officer (MRO) under the DAMP. He is also responsible for passenger health, aviation medicine, occupational health, workers’ compensation, human factors and the Qantas health and wellbeing program.

[138] Dr Hosegood said that he sent an email to Ms Collins on 11 August 2017 in response to her request for information concerning the blood alcohol content reading of a test conducted on Mr Urso whilst working a flying pattern in New York. In preparing the email to Ms Collins, he relied upon information contained in a report on tests conducted on Mr Urso at the Hospital in New York. The Toxicology Report provided to him revealed that the alcohol test was collected at 2.32 am on 23 July 2017. He understood this was approximately two hours after Mr Urso was admitted into hospital.

[139] Dr Hosegood said that the Toxicology Report indicated that at 2.32 am Mr Urso had a blood alcohol reading of 0.187. He said: “Assuming Mr Urso had ceased ingesting alcohol prior to being transported to hospital, it is very likely that Mr Urso had a higher blood alcohol level prior to 2.32 am.”

[140] Dr Hosegood said that he would expect that if Mr Urso raised his drink spiking concerns with the hospital, the medical staff would have conducted a forensic urine drug screen and reported this in the medical notes.

[141] He said that a blood alcohol reading of 0.187 was ‘significant’.

[142] He said the method he used to calculate the blood alcohol content utilised the industry standard for male total weight. “Although actual height and weight when known can be used in further refining blood alcohol concentration estimations, there would be no material change to the figures that I provided in this case.”

[143] Dr Hosegood gave evidence that his figure of 0.187 in his statement was based on a converted figure for a breath alcohol equivalent, and explained that “in the CASA Regulations, the breath alcohol figure is the one that is used, but in this context of calculating blood alcohol, the 0.205 per cent figure is correct.”72

[144] He further said that he did not dispute Dr Odell’s evidence that 14 standard drinks were likely to have been consumed, given Mr Urso’s slim build and small BMI, meaning his total body water was lower and it would take less alcohol to reach the same figure. He also agreed with Dr Odell’s evidence that it was not possible to determine the actual alcohol consumption on the basis of the information available.73

[145] Dr Hosegood was asked whether there would have been any ongoing effects as a result of Mr Urso’s level of intoxication, even if his BAC level had reduced to 0.02%, and said: “[i]n my opinion yes, and in fact that’s backed up by evidence that the post-alcohol impairment is significant and can, at these sort of levels can persist for up to 24, 48 hours after reaching 0.01 which is what we would say is a zero equivalent. So it’s significant and can have obviously impacts on various physiological parameters, concentration, fatigue levels, balance, judgment and various other physiological parameters That’s called post-alcohol impairment commonly known as a ‘hangover’.”74

Submissions on behalf of QCCA

[146] QCCA submitted that it conducted a comprehensive and thorough investigation which involved taking statements from work colleagues including Mr Urso himself and interviewing witnesses. Mr Urso was given clear notice in writing of the allegations against him and was afforded numerous opportunities to respond, both in writing and in person. Mr Urso was also given every opportunity to have a support person with him during any discussions concerning his alleged misconduct and availed himself of that opportunity.

[147] QCCA submitted that the findings were made on reasonable grounds and had regard to all available information. Those findings made against Mr Urso related to breaches of Qantas policies and include that he:

[148] QCCA submitted that Mr Urso’s contraventions of the Policies binding on his employment amounted to a valid reason for his dismissal. Mr Urso’s conduct whilst on ‘slip’ in New York, which resulted in him being unable to fulfil his duties on his scheduled return flight, was not a ‘trivial misdemeanour’, but rather misconduct of a level which clearly establishes a valid reason for termination.

[149] The Policies, QCCA contended, required the following of Mr Urso:

[150] QCCA said that it places a high degree of trust in its employees and its various policies make it clear that employees are responsible for their behaviour and actions at all times. The Cabin Crew Administration Manual also makes it clear that while on slip, cabin crew are responsible for ensuring that they are adequately rested and able to perform their next operational duty.

[151] QCCA contended that although Mr Urso maintained that he had consumed only five drinks and that his drinks may have been spiked, it relied on matters arising from the investigation which include:

Protection from Unfair Dismissal

[152] There is no dispute and I am satisfied and find that Mr Urso is a person protected from unfair dismissal by virtue of s.382 of the Act.

[153] I will now consider if the dismissal of Mr Urso was unfair within the meaning of the Act.

Was the dismissal unfair?

[154] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

[155] There is no dispute, and I find, that Mr Urso was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[156] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

[157] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd75 as follows:

[158] In Blyth Chemicals Ltd v Bushnell76, Dixon and McTiernan JJ said:

[159] I am required to consider each of these criteria in reaching my conclusion78, which I now do.

Valid reason - s.387(a)

[160] The meaning of ‘valid reason’ in s.387(a) is drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 79. This meaning has been applied by this Commission and its predecessors for many years:

[161] In other words, the reasons should be justifiable on an objective analysis of the relevant facts.

[162] The question I must address here is whether there was a valid reason for the dismissal related to Mr Urso’s conduct.

[163] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred81. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it82.

[164] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied itself that the termination of the employee was for a valid reason83.

[165] In the present case, the incident that led to Mr Urso’s dismissal involved conduct when he was off duty (on slip) in New York.

Out of hours conduct

[166] It is well established that in some circumstances an employee may be validly dismissed because of out of hours conduct.84 

[167] The issue of off duty conduct of flight attendants in slip ports has been considered by the Commission in Roach v Qantas Airways Limited85. There SDP Cartwright held that “from the point when a flight attendant signs on for a pattern of duty, including ‘slip time’, he or she is in a safety critical role, for which Qantas is subject to regulation by the Civil Aviation Safety Authority” and “the availability and fitness for duty of flight crew through the full pattern is a legitimate concern for the airline.” 86

[168] Similarly in Farquharson v Qantas Airways Limited87, the Full Bench found that it was “the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.”88

[169] The nature of the employment in question, and the statutory, contractual and other legal obligations applicable to such employment, affect the capacity of an employer to issue lawful directions concerning out-of-hours conduct.89

[170] I find that when flight attendants are on slip in an overseas port, despite being off duty, they nonetheless remain subject to the relevant QCCA policies and requirements regarding their conduct. Mr Urso did not challenge the assertion that he was aware of the policies that he was obliged to comply with.

Excessive drinking

[171] It is uncontested that Mr Urso had a BAC recorded at the hospital at 2:32am of 0.205%, having been admitted to hospital at about midnight. It is not disputed that Mr Urso’s alcohol consumption took place within a short time frame, that being between around 10:15pm to 11:45pm. It is also not disputed that he was not physically well enough to perform scheduled flight duty on 23 July 2017.

[172] I have considered the opinions of Dr Odell and Dr Hosegood. Both doctors agreed that while it was not possible to calculate the exact number of standard drinks consumed, it was likely Mr Urso consumed around 14 standard drinks. The evidence does not allow me to make a finding with any certainty as to the exact quantity of alcohol Mr Urso consumed. What is clear however is that he drank a sufficiently large quantity of alcohol to record a BAC of 0.205% some three hours after his last alcoholic drink (and after having vomited), and in circumstances where he knew the importance of reporting for duty at the requisite time. One would think that Mr Urso, having just undergone a heart surgery, would have been cautious as to his alcohol consumption, particularly where concern was expressed from his manager regarding his wellbeing during his first long haul trip after returning from sick leave.

[173] The final submissions made on behalf of Mr Urso included that “whilst an inference may be drawn from the BAC that the applicant drank excessively, it is not conclusively proved that the conduct of excessive drinking.”

[174] It was Mr Urso’s responsibility to ascertain the content and quantity of the drinks he consumed. Mr Urso conducted himself in a manner which placed himself in a heavily intoxicated state. He consumed the alcohol voluntarily.

[175] Mr Urso’s claim that he could have five alcoholic drinks without compromising his ability to operate the next day, in my view, was unfounded and was proved to be wrong.

[176] The evidence in my view clearly supports a finding that Mr Urso consumed an excessive amount of alcohol. His undisputed BAC was a direct consequence of his voluntary alcohol consumption and it was because of his alcohol consumption that he was unable to attend for his next operational duty.

[177] Further, I reject the submission that Mr Urso’s lack of intent to engage in serious misconduct should somehow excuse him for the consequences of his actions. As found in Gregory v Qantas Airways Limited 90, a lack of conscious intent does not exculpate an employee from being held responsible for the consequences of their actions which otherwise amount to misconduct.

Drink spiking and “free pouring”

[178] Having considered the material before me, I am not convinced, on balance, that Mr Urso was a victim of drink spiking. It is a speculative claim that is not supported by any evidence.

[179] No medical evidence was led on behalf of Mr Urso to support his claim that the high alcohol reading was due to drink spiking or that it was elevated by any prescription drugs taken by Mr Urso for his heart condition. In fact, the evidence which is set out earlier in this decision, was to the contrary.

[180] The undisputed evidence also confirms that Mr Urso and Mr Littmoden drank from two different bars within the 230 Fifth Rooftop Bar. In these circumstances it is even less likely that all of his drinks were spiked.

[181] Mr Littmoden, who accompanied Mr Urso and allegedly consumed the same number of drinks, did not make any suggestion of drink spiking during the investigation, nor does Mr Littmoden suggest that his drinks were spiked, despite the evidence that they consumed the same drinks at the around same time.

[182] The evidence also confirms that Mr Urso was not affected by any prescription drug/ alcohol interaction.

[183] The claim that the bartender free-poured drinks does not assist Mr Urso. If free-pouring occurred, I find it implausible that Mr Urso did not feel intoxicated at an earlier time and adjust his intake accordingly. The claim that Mr Littmoden consumed the same drinks over the same period and was able to perform duty the next day is irrelevant, as no two people react to alcohol in the same way. In the end, it is Mr Urso who is responsible for putting himself in a situation where his consumption of alcohol caused him to fail in his duty to join his scheduled flight as a crew member on 23 July 2017.

[184] Mr Jackson’s evidence in this regard does not assist either. Mr Jackson was not with Mr Urso on the night in question and he had no personal knowledge as to what Mr Urso consumed.

[185] In that context, the failure of Mr Urso to report to work because of his voluntary consumption of alcohol constitutes a valid reason for his dismissal.

Breach of QCCA policies

[186] The evidence supports a finding that Mr Urso’s conduct was in breach of the Policies to the extent that he did not refrain from engaging in excessive consumption of alcohol and did not refrain from engaging in an activity that manifestly increased his risk of illness, and his conduct prevented him from performing his next operational duty.

[187] I accept that it was open to QCCA to reach the conclusion it had in relation to the appropriate disciplinary action to be taken. QCCA, in reaching its decision, had properly considered all material before it and the mitigating factors put forward by Mr Urso which were set out in the Termination Letter. QCCA is entitled to be able to have trust and confidence that their flight attendants can perform their safety critical roles in a safe manner.

[188] Employees have obligations to perform their duties in accordance with their contract of employment including complying with reasonable directions given by their employer. Fundamental to these obligations is to be ready, willing and able to perform their duties at the relevant time. Arguably the obligation to be ready and able to work at the requisite time is greater when an organisation clearly relies on the employee in circumstances where his or her absence cannot be properly remedied by a substitute person or the transfer of duties to others.

[189] The conduct engaged in by Mr Urso amounted to a valid reason for his dismissal. Overall, I am satisfied, on balance, that the reason for the dismissal of Mr Urso’s employment was sound, defensible and well-founded.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[190] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,91 in explicit terms92 and in plain and clear terms93. In Crozier v Palazzo Corporation Pty Ltd94, a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

[191] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.96

[192] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Urso before his dismissal was effected.

[193] Satisfaction of these requirements will usually require a straightforward factual inquiry to be made, namely: what was Mr Urso told about the reason for the dismissal, before the dismissal took place, and was he given the opportunity to respond?

[194] In this case, Mr Urso agreed that he was notified of the reasons given for his dismissal and that he was given an opportunity to respond to the allegations set out in the Allegations Letter. However, Mr Urso asserted that he was not given the opportunity to respond to an allegation that he had been dishonest throughout the investigation or that as a result of his misconduct, significant hospital fees had been incurred by QCCA.

[195] In this regard, contentions were made on behalf of Mr Urso that QCCA relied heavily upon Dr Hosegood’s opinion and formed the view that Mr Urso lied about the number of drinks consumed and that perceived dishonesty was one of the reasons for the dismissal. It was argued that QCCA failed to put these matters to Mr Urso for his response and therefore procedure fairness was not afforded to him. I find this argument unsubstantiated and must be rejected. Dr Hosegood’s email of 11 August 2017 was amongst the material provided to Mr Urso when the Allegation Letter was issued. Mr Urso was aware of Dr Hosegood’s opinion before he responded to the allegations against him. The notes taken by Mr Small97 for the meeting on 21 September 2017 also indicate such discussions had taken place. Further, I accept the evidence of QCCA that this was not a reason for his dismissal and was therefore unnecessary for it to be put to him as a formal allegation for response.

[196] I am satisfied that QCCA conducted its investigation appropriately. The Allegations Letter made clear that the allegations were serious and if found to be substantiated would result in disciplinary action which could include the termination of Mr Urso’s employment.

[197] As to the question whether Ms Collins was an appropriate person to investigate, there is no evidence before me to suggest that Ms Collins could not conduct the investigation appropriately or was in any way biased. On the contrary, the evidence suggests that Ms Collins was supportive of Mr Urso before and after the incident. In any event, Ms Collins was not the decision-maker in relation to Mr Urso’s dismissal.

[198] I am satisfied that Mr Urso was treated fairly and was given a sufficient opportunity to respond to the allegations relied upon in effecting his dismissal. Mr Urso was represented by FAAA throughout the process and was accompanied by union officials at the meetings with QCCA managers and personnel.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[199] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[200] It is not disputed that Mr Urso was provided with the opportunity to have a support person. Mr Urso was assisted by FAAA throughout the process.

Warnings regarding unsatisfactory performance - s.387(e)

[201] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.98

[202] Given this is not a case in which Mr Urso’s performance was unsatisfactory, this consideration is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[203] The FAAA submitted that s.387(g) was a “neutral factor”.

[204] I am satisfied that the size of the QCCA’s enterprise and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[205] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[206] I have had regard to Mr Urso’s personal and economic circumstances and the consequences of his dismissal. Those matters include:

[207] I have also taken into account Mr Urso’s offer to give undertakings about his future conduct whilst in slip ports if reinstated, and his offer to reimburse QCCA for the medical costs incurred in New York.

[208] The final submissions made on behalf of Mr Urso argued that, even if the Commission was satisfied that there was a valid reason for his dismissal, “it may be that the termination may still be unfair”. In support of this submission were references to a number of decisions dealing with dismissals that were found to be harsh, because the dismissal was disproportionate to the gravity of the misconduct and/or because of the consequences for the personal and economic situation for the applicant.

[209] After a careful consideration of all the mitigating factors put forward by Mr Urso and in the circumstances of this matter, and for the reasons set out earlier, I am unable to conclude that his dismissal by QCCA was unfair and I do not consider his dismissal was disproportionate to the gravity of the misconduct in respect of which QCCA acted.

Conclusion

[210] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Urso was for a valid reason, and was not otherwise harsh, unjust or unreasonable.

[211] Accordingly, Mr Urso’s application for an unfair dismissal remedy is dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

N Read of counsel for Luke Urso.

S Woodbury for QF Cabin Crew Australia Pty Limited.

Hearing details:

2018.

Sydney:

March 15.

Final written submissions:

23 March 2018.

Printed by authority of the Commonwealth Government Printer

<PR609490>

1 Transcript PN67.

2 Exhibit A8, Annexure ESC-14.

3 Exhibit A2, Annexure LU-13.

 4   See Exhibit A8, Annexure ESC-18.

 5   See Exhibit A8, Annexure ESC-21.

 6   See Exhibit A12, Annexure AB-2.

 7   See Exhibit A12, Annexure AB-4.

8 Transcript PN56.

9 See Exhibit A8, Annexure ESC-16.

 10   Exhibits A2, A4 and A5.

11 Transcript PN357.

12 Transcript PN431-432.

13 Transcript PN449.

14 Transcript PN454.

15 Transcript PN473-476.

16 Transcript PN526 and PN537.

17 Transcript PN541.

18 Transcript PN619.

19 Transcript PN145.

20 Exhibit A10.

21 Transcript PN1516-1517.

22 Transcript PN1524.

23 Transcript PN1526.

24 Transcript PN1527.

25 Transcript PN1529.

26 [1998] AIRC 1592.

27 Transcript PN913.

28 Transcript PN944.

29 Transcript PN956-959.

30 Transcript PN960-961.

31 Transcript PN1044.

32 Transcript PN1136-1142.

33 Transcript PN1143-1146.

34 Transcript PN1156.

35 Transcript PN1158.

36 Transcript PN1168.

37 Transcript PN1192-1198.

38 Transcript PN1202.

39 Transcript PN1209.

40 Transcript PN1212.

41 Transcript PN1270.

42 Transcript PN1295-1207.

43 Transcript PN1390-1391.

44 Transcript PN1392.

45 Transcript PN1411-1414.

46 Transcript PN1422.

47 Transcript PN1576.

48 Transcript PN1577.

49 Transcript PN1578-1579.

50 Transcript PN1580.

51 Transcript PN1616.

52 Transcript PN1621.

53 Transcript PN1623-1627.

54 Transcript PN1635.

55 Transcript PN1639.

56 Transcript PN1659-1660.

57 Transcript PN1675.

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59 Transcript PN1688.

60 Transcript PN1722.

61 Transcript PN1728.

62 Transcript PN1738.

63 Transcript PN1800.

64 Transcript PN1838.

65 Transcript PN1839.

66 Transcript PN1869.

67 Transcript PN1870-1871.

68 Transcript PN1886.

69 Transcript PN1931.

70 Transcript PN1935-1937.

71 Transcript PN1943-1946.

72 Transcript PN1978.

73 Transcript PN1990.

74 Transcript PN1998.

75 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

76 (1993) 49 CLR 66.

77 Ibid at 81-82.

78 Sayer v Melsteel [2011] FWAFB 7498.

 79   (1995) 62 IR 371.

80 Ibid at 373.

81 Edwards v Giudice (1999) 94 FCR 561.

82 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

83 Miller v University of New South Wales (2003) 132 FCR 147.

84 See Rose v Telstra Corporation Limited (1998) Q9292; Appellant v Respondent (1999) 89 IR 407.

85 [2001] AIRC 1346.

86 Ibid at [15].

87 [2006] AIRC 488.

88 Ibid at [15].

89 See King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194.

 90   [2015] FWCFB 2599.

91 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

92 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

93 Previsic v Australian Quarantine Inspection Services Print Q3730.

94 (2000) 98 IR 137.

95 Ibid at 151.

96 RMIT v Asher (2010) 194 IR 1, 14-15.

97 Exhibit A9.

98 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.