C2005/5845, Transcript of Proceedings [2005] AIRCTrans 2626 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13695-1

COMMISSIONER RAFFAELLI

C2005/5845

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
QANTAS AIRWAYS LIMITED
s.99 - Notification of an industrial dispute
(C2005/5845)

SYDNEY

9.36AM, FRIDAY, 09 DECEMBER 2005

PN1

MR I GALLAWAY: In this matter I appear for the Australian Services Union and appearing with me is MS J YOUETT, may it please the Commission.

PN2

MR P SMITH: I appear for Qantas Airways Limited and with me from the business is MS M KAPP and MS J ROSE.

PN3

THE COMMISSIONER: Yes Mr Gallaway?

PN4

MR GALLAWAY: Yes Commissioner, this is a matter concerning a - - -

PN5

THE COMMISSIONER: Are you going to stand? I do not mind - - -

PN6

MR GALLAWAY: If you would prefer?

PN7

THE COMMISSIONER: Yes I would prefer it.

PN8

MR GALLAWAY: Yes, Commissioner. This is a matter concerning an employee of Qantas, Ms Youett. In relation to this matter this morning I want to give you a chronology of events leading up to penalties that have been exacted against Ms Youett, explain to the Commission our views as to why she has not been accorded procedural fairness in relation to this matter and suggest remedies in relation to this matter.

PN9

Ms Youett has been employed by Qantas for some seven years and is currently employed as ground staff at the Sydney international terminal. On Friday 11 November this year she received a letter from Ms Melinda Kapp, on behalf of Qantas management, containing allegations against her and requiring her to respond in writing and to meet Ms Kapp no later than Monday 14 November. In relation to all these matters actually there is a series of correspondence and documents and I might seek to table those.

PN10

THE COMMISSIONER: Yes, thank you. We will just mark the bundle?

PN11

MR GALLAWAY: Sorry?

PN12

THE COMMISSIONER: We will just mark the whole bundle?

PN13

MR GALLAWAY: Yes.

EXHIBIT #ASU1 BUNDLE OF DOCUMENTS

PN14

MR GALLAWAY: They are tabbed for ease of reference.

PN15

THE COMMISSIONER: Yes.

PN16

MR GALLAWAY: That letter is in fact the first document after the cover page. At the ASUs request Ms Kapp subsequently on 16 November, supplied the documents that Qantas relied on in support of its allegations and those documents start at red tab 1, that is a fax, a cover sheet, a fax from Ms Kapp to myself dated 16 November. There are then some seven pages following. The meeting date that Ms Kapp had asked for was postponed to Friday the 18th. Ms Kapp had sent the letter and materials in support to Ms Youett and the ASU on a Friday and sought a response by the Monday. Ms Kapp on behalf of Qantas agreed to an extension of time to Friday the 18th at which time Ms Youett responded in writing to the allegations put to her by Qantas and those in Ms Kapp's letter. Ms Youett's response is contained in tab yellow 2, there are two pages.

PN17

At that meeting on the 18th, Ms Youett was exhaustedly questioned on the allegations by Ms Kapp and two other representatives of Qantas on the allegations her and those questions related, amongst other things, to the witness statements in support of the allegations and to Ms Youett's response to those witness statements. On November 21 this year Ms Kapp sent further documentation to Ms Youett and asked her to respond to those further documentation by November 23 and Ms Youett responded accordingly. Those further statements and Ms Youett's response are contained in blue tab 3, there are some five pages under blue tab 3.

PN18

On 24 November the Union wrote to Ms Kapp expressing its concern about the disciplinary process that Qantas had undertaken and the lack of opportunity for the ASU, on behalf of Ms Youett, to question those Qantas employees who had provided statements in support of the allegations against Ms Youett, along with the allegations. We asked for an early meeting with Qantas to resolve this matter under the dispute resolution procedures, to date no response has been forthcoming from Qantas. That notification to Ms Kapp is under green tab 4.

PN19

On 25 November and subsequent dates the ASU phoned Ms Kapp seeking a response to our earlier notification, these phone calls went unanswered and are still unanswered. On 29 November the ASU notified the section 95(9) dispute to the Commission in relation to the matter, that is red tab 5. On 1 December Ms Youett received a letter from Ms Kapp informing her that the allegations are proven against her and listing the penalties to apply, that letter is contained at blue tab 6. It is a letter to Ms Youett from Ms Kapp dated 1 December.

PN20

Finally on 7 December the Union wrote again to Ms Kapp expressing its disappointment at the decision in her letter and reminding her of her lack of response to the ASUs earlier requests. That is contained at yellow tab 7, and there has been no response, I might add, to date to that letter either.

PN21

In relation to that, and it relates to the point 8, the phone calls from the ASU to Ms Kapp, if I could just draw your attention to yellow tab 7 to the last paragraph; you stated, that is Ms Kapp, that you would consider and respond to these requests and indeed immediately following matter C2005/5331, which is a matter where we were previously before you on Commissioner on 25 November:

PN22

At my further request you told me to ring you at 4 pm on that day and discuss these matters, although I phoned you at this time and subsequently on November 28 and 29, 2005, you did not return my phone calls and the ASU is still waiting for your response to these requests.

PN23

There are many matters which I will go to in relation to the documentation, Commissioner, the penalties I might add that have been exacted against Ms Youett and are contained in Ms Kapp's letter, which is under blue tab 6, just to give you an idea. I can take you to the - there are five allegations, in Qantas's view all the allegations are proven. In the third last paragraph on page 2 Ms Kapp writes:

PN24

As a result of this breach this letter serves as a first and final warning. As a consequence of your behaviour you will not be rostered to work as an aircraft handling agent while working in customer services at Sydney international terminal. However, will retain your substantive position.

PN25

There is actually more to that sentence than meets the eye. Indeed Ms Youett does retain her substantive position but as a result of the roster change flying from these in Qantas's view, proven allegations, Ms Youett moves from rosters where for the majority of the last five years she has acted in a level 4 position and received level 4 money for acting up, she now reverts and to a substantive position which is level 3 and receives only level 3 money. In addition she now has on her file a first and final warning, which of course puts her employment at Qantas under a question mark, under a cloud to say the least.

PN26

In relation to this matter we say to you Commissioner that we have concerns that, and indeed there is notification, that Ms Youett has not received procedural fairness in relation to this matter. That in essence revolves around the fact that there are some six witness statements against Ms Youett.

PN27

THE COMMISSIONER: Six what?

PN28

MR GALLAWAY: There are some six statements I should say, in relation to Ms Youett and indeed they contain some serious allegations. If I could take you to perhaps it might be a good starting point, if I could take you to the first letter from Ms Kapp to - - -

PN29

MR SMITH: Commissioner, can I just make an observation here, the dispute notification and Mr Gallaway's opening indicated that there were issues around procedural fairness that he wished to go to, he now appears to be going to the substance of witness statements. He has not indicated to us what remedies they are seeking yet. I am not too sure just where he is heading with this, if he is dealing with procedural issues, we will respond to that, that is the subject of the notification, if he wants to go to the merits of the decision well then that is a completely different exercise. We have got a number of things to say about procedural fairness and one of which is that this notification is premature. There is a dispute resolution procedure that provides a process which has not been exhausted yet, I ….. an opportunity but I am just hesitant to see Mr Gallaway go to the merits of the matter at this preliminary stage.

PN30

THE COMMISSIONER: Well I do not know if he was going to the merits. He was going to tell me that there were some witness statements as to whether he was going to deal with the merit of it or the fact that there are witness statements and going on his last letter, no opportunity to examine them or talk to those people. Anyway I will let him talk but I know what you are saying Mr Smith. Yes Mr Gallaway.

PN31

MR SMITH: Thank you Commissioner.

PN32

MR GALLAWAY: Commissioner, I am quite happy to go to the procedural matters in relation to this. I am merely bringing the Commission's attention to the first letter in the documentation, this is the letter from Ms Kapp to Ms Youett, this is the letter dated 11 November. There are some five allegations listed in that letter and subsequently throughout the documentation under red tab 1 and blue tab 3, there are a series of witness statements and reports in relation to that.

PN33

Now I will address the procedural fairness issue; indeed under the yellow tab 5 in our '99 notification one of the bases for this is the failure of Qantas to follow its own human resources policies when investigating and determining this matter. If I could take you back a step to green tab 4, this is the letter that the ASU wrote to Ms Kapp on 24 November, in the second complete paragraph we write to express our concern at the failure of Qantas to afford Ms Youett rights to natural justice and we quote from Qantas's own HR policy which provide that in any formal investigation:

PN34

All persons involved are to be aware of the key principles of natural justice and that procedural fairness is adhered to.

PN35

Now we say of course that has not been the case in relation to the dealings with Ms Youett and we say it has not been the case in relation to Qantas's dealings with Ms Youett because although there are, as I said previously, some six witness statements and various reports that make various claims against Ms Youett and Qantas has had the chance to interview and to question those persons, the ASU and Ms Youett through the ASU has not had the opportunity to question those witnesses and Qantas relies on those statements to support its allegations. Presumably, on the balance of probabilities, Qantas has decided that those statements and reports are of such weight that in all cases of the allegations against Ms Youett those statements support the allegations and to use Ms Kapp's word, prove the allegations.

PN36

THE COMMISSIONER: But Mr Gallaway why do you think it is that the employee has a right to examine the other people that are part of the investigation? I find that an unusual circumstance. I mean the merit of it might be that Qantas is totally wrong, whether there is a process for coming to Commission on that in due course I am not quite sure. Obviously if she had been terminated there would have been appropriate measures where Qantas's merit decision would have been examined. But this idea that an employer conducts an investigation on an allegation or a complaint by a supervisor or some other way, they normal interview a whole range of people, they then weigh it up and maybe they have got it wrong but the actual process, what is wrong with that? Otherwise, you know, how could you have a right to examine another employee, not a member of yours?

PN37

MR GALLAWAY: Well we would say that, (1) it affects Ms Youett, or it had at the time of the enquiry the potential to affect Ms Youett and events have subsequently shown that it has in our view because Qantas's determination of the matter is that all the charges are proven. (2) That we say that it is essential for procedural fairness and procedural fairness and natural justice are terms used in Qantas's own HR manuals, that this questioning occurs even if it is not Ms Youett herself that her representative be allowed to do this. (3) That Qantas has had the opportunity to question those persons, those employees that made statements or provided reports to support the allegations against Ms Youett and to in turn question Ms Youett exhaustively and at length in relation to those witness statements and her responses in relation to it.

PN38

Ms Youett has had the opportunity to respond to the allegations and to the statements that have been provided to support the allegations against her but she has not had the opportunity to question, and there are many questions that we would like to ask, to question those employees about their statements, the statements that Qantas relies on to support its allegations.

PN39

THE COMMISSIONER: But you have been given an opportunity to respond to what they say, you are inviting virtually a cross-examination.

PN40

MR GALLAWAY: Indeed.

PN41

THE COMMISSIONER: Well where in custom practice or the provisions of the agreement or award allow you to do that? This is an internal company disciplinary process.

PN42

MR GALLAWAY: Yes.

PN43

THE COMMISSIONER: I am not aware that it is to be treated as some kind of Tribunal.

PN44

MR GALLAWAY: And I would make a number of submissions in relation to that if I might, Commissioner.

PN45

THE COMMISSIONER: Yes.

PN46

MR GALLAWAY: The first of those is a Full Bench decision of the Commission and I must apologise in relation to these cases. The Union has recently acquired new and improved photocopy technology which does not work as well as the old and obsolete. So first of all I would assure the Commission and I assure Qantas that we will supply full copies to the Commission and to Qantas, and that at today's hearing I will share with your leave, the cases the full cases that I have, with Qantas so that they are not disadvantaged in relation to the submissions.

PN47

So the first one and the cover page is in relation to this is section 45 of the Full Bench and it is a matter Vic v DMV Industries, print S7564. The second case that I will be quoting from is Kioa v West which is a decision of the High Court of Australia [1985]159CLR550. In relation to the first decision, which was a decision of SDP Williams, Acton and Commissioner Whelan. On page 3 of that decision at paragraph 9 the decision states:

PN48

Sections 110 and 111 of the Workplace Relations Act confer upon the Commission a wide discretionary ...(reads)... or requirements may vary according to the nature and circumstances of the proceedings in question.

PN49

That last sentence it is equally well established, is of course an observation or a part of a principle established by Kioa v West. In Kioa v West which is a decision involving members of the Chief Justice of the High Court Gibbs and Mason, Wilson, Brennan and Deane JJJJs. The Chief Justice stated at paragraph 32 on page 22 with approval Mobil Oil Australia Pty Ltd v Federal Commissioner [1963]113CLR475, (Indistinct) stating:

PN50

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include inter alia the nature of the enquiry, the subject matter and the rules under which the decision maker is acting.

PN51

And at paragraph 34:

PN52

The critical question in most cases is not whether the principle of natural justice applies, it is what does the duty to act fairly require in the circumstances of the particular case.

PN53

And at paragraph 15 quoting Jacobs J, the court states the variable content of the principle of natural justice when it was articulated by Tucker LJ in an off sided passage in his judgment in Russell v Duke of Norfolk [1949]111 all reports 109 at page 118:

PN54

The requirements of natural justice must depend on the circumstance of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with and so forth.

PN55

Accordingly I do not derive much assistance from the definition of natural justice which has been from time to time used, but whatever the standard is adopted one essential is that the person concerned should have a reasonable opportunity to present their case. And finally on item 16 at page 43 of the same judgment:

PN56

In this court -

PN57

That is in the High Court:

PN58

The flexibility of the principle of natural justice -

PN59

Which was recognised by ….. in Mobil Oil Australia Pty Ltd v Federal Commission of Taxation at 504:

PN60

What the law requires in the discharge of the quasi-judicial function is judicial fairness. That is not a label for any fixed bodies of rules, what is fair in a given situation depends on the circumstances.

PN61

And it is not a one sided business, what we would say and it goes without saying that an internal Qantas disciplinary enquiry is not a judicial enquiry or an enquiry by a Tribunal, but we say that Qantas is required to - and its own policy indeed uses the terms natural justice and procedural fairness and the company requires its employees to adhere to that principle and those processes during a disciplinary enquiry. We say that that has not occurred because Ms Youett has not had the opportunity for her representative to question these witnesses.

PN62

If we examine ….., if Qantas has no objections, I will take you to some of the witness statements and - - -

PN63

THE COMMISSIONER: Well before you do that the difficulty I have is that, yes without offending Ms Kapp, she is hardly the High Court sir, I do not think you can - - -

PN64

MR GALLAWAY: Indeed.

PN65

THE COMMISSIONER: So I do not know if we can expect the same sort of allaying of cross-examination examining of witnesses which is perhaps implicit in all of this. The second thing is, all those decisions, both the Full Bench and the High Court talk about the circumstances, well surely the circumstances is that there is an employer, they have got to conduct a business, occasionally there will be disciplinary issues and they investigate it. As long as they give the employee an opportunity to be heard and respond, how is that anything other than about as far we would want to take it.

PN66

MR GALLAWAY: All right, well I will perhaps to illustrate I might take you to some of the witness statements.

PN67

THE COMMISSIONER: Well yes but before you do that, I might also say this, that if the unfair dismissal part of the current legislation and well both current and new legislation says:

PN68

In determining for the purpose of whether it was harsh, unjust or unreasonable the Commission must have regard to a number of things including (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee.

PN69

And that is one of the three, particularly one of the two key issues, one is a valid reason and the other one is the employee being given an opportunity. Now even the Act talks about an opportunity to respond, it does not say an opportunity to respond including examining the other side's witnesses.

PN70

And at least my practice has never been to - I have never heard of people saying, "This is terrible because she or he was not able to examine the accusers or the leading hand or the customer", or whatever it might be. Providing that they were able to have representation, a lawyer or union official, et cetera, and all these other things. That stands to be an issue and you seem to be in a disciplinary action which has not caused a dismissal. You have raised the bar higher than what the legislation seems to provide in a dismissal.

PN71

I am not disagreeing with your right to fight the merit issue, it may very well be that Qantas has got it wrong, I do not know about that, but either way, but I do find it extraordinary that you think you have got a right to examine the other side. But anyway you were going to take me to witnesses let us just see how - - -

PN72

MR GALLAWAY: Indeed. I think the reason why we raise this point or we proceed with this argument, Commissioner, is that in relation to this matter there are, when you go through the witness statements that Qantas did provide to Ms Youett and Ms Youett responded to, there are two elements or two features of it, one is the recollections of the witnesses in relation to the events and the words of Ms Youett on the day and the day before, leading up to this event where Ms Youett is alleged to have improperly, unfairly, contrary to the procedures of Qantas upgraded some passengers. And there is documentation mention in the witness statements in relation to this.

PN73

Now the documentation, we raised this issue with Qantas, the documentation is nowhere to be found, so Qantas not unreasonably, has relied on the statements and reports that have been given to it. Just to give you a flavour of those if you go to red tab 1, the first one, and the first couple of paragraphs is sufficient to illustrate the point. This is a report given and the covering page from Ms Kapp states, additional crew feedback form completed by the customer service manager:

PN74

Ground staff upgraded friends at the gate just before boarding -

PN75

And the two passengers concerned are mentioned there, PAX is abbreviation for passenger:

PN76

To business class row 1F and 2C. She wanted to keep it quiet and do it sneaky so their upgrade was not put through on the computer, instead she changed the names and seats with a pen manually.

PN77

Now this is just the first of many where there are conclusions reached that (1) Ms Youett acted improperly in putting it through the computer, that she wanted an opinion is expressed that Ms Youett wanted to do it quiet and do it sneaky. Obviously we wanted to ask the person that wrote this report how they reached, and we say it is reasonable it is fair that we ask the person, (1) how they know, because we have not been - Qantas has not supplied us with any - or Ms Youett with any records or proof or evidence in relation to - and Ms Youett vehemently denies that she improperly altered the computer records in some manner or misused the computer, and she altered the - I believe they are called PNLs which is an abbreviation for Passenger Name Lists.

PN78

Now the PNLs are nowhere to be found, so they were not there. How the customer service manager formed the view that Ms Youett wanted to do it quiet and do it sneaky we do not know and have had no opportunity to discover that. If you go over a number of further pages there is a statutory declaration from Gwen Anne Tanos, it is a statement dated 14 November. In the introductory paragraph at 3 and 4 and 5 of that statutory declaration Ms Tanos states that Ms Youett had said these persons are friends of hers. If we go over a further page, just to highlight, there is an email from Bradley Shields to Melinda Kapp and in the first sentence states:

PN79

Re Jacquy Youett, when I spoke to her on Friday re the upgrades on QF47 the first thing she mentioned was that she did not know these passengers.

PN80

Which obviously that is in variance with what Ms Tanos has said and we wanted to ask him about that. If we go over to blue tab 3 there are two further reports and a memo and the first of those reports which is an email once again to Ms Kapp, this is an email from Robert Hindle. This refers to Debbie Watt:

PN81

She said that our staff member had handwritten boarding passes for these passengers from J class.

PN82

Now the handwritten boarding passes are nowhere to be found that we know of, we presume Qantas has not found them either, the passenger boarding passes. And if we can go approximately 12 sentences from the bottom, the start of the sentence:

PN83

Jacquy asked if she would seat her friends in the bulkhead row.

PN84

It goes on and on and on. Now we did try, through speaking to Ms Kapp, through the disputes settlement procedure provided for in the award and the agreement, to deal directly with Qantas and to raise these questions, because we did have quite a few questions and we needed to gather - this is the purpose of the knowledge and the views that you have expressed, Commissioner, but these are the reasons why we were seeking to question the witnesses that Qantas relied on.

PN85

Qantas, as I said, did not respond to our requests, Ms Kapp did state that she would consider our requests to question the witnesses, she did state that she would consider and get back to us, to our request to request to approach the passengers jointly, because clearly there is a couple of questions in relation to the passengers, (1) either they were friends or acquaintances and knew Ms Kapp or they did not, there are only two possibilities in relation to that.

PN86

THE COMMISSIONER: Ms Youett you mean.

PN87

MR GALLAWAY: Ms Youett, my apologies. There are only two possibilities in relation to that and without approaching those passengers there simply is no way of determining. Ms Youett states and has stated repeatedly that they are not friends she did not know them, no prior acquaintance. Qantas has taken the view from the statements, and a number of the statements are very definite about concluding that not only did Ms Youett know these people but she stated to these persons in effect, "Please upgrade my friends for me". That is clearly a threshold issue in relation to this matter.

PN88

There is one further matter in relation to, and this is the last statement that I will refer to, that a further question that we wish to ask the person who provided the report, and it is under blue tab 3, it is the second statement, it is a report, a report which is headed:

PN89

Linda Evans.

PN90

But in fact is a report by Koby Davis. There are two parts in relation to this, the second sentence which says:

PN91

There were no commotions or incidents.

PN92

Now that is directly contrary to another report which says there were incidents. But if I can take you down to the last sentence, the last sentence is of course written in different ink from the body of the statement and it is initialled. So presumably it was added later, it was requested by Linda Evans, obviously we wanted to ask Ms Davis did Ms Evans ask you for the initial report and the subsequent amendment or did someone else ask you to subsequently amend your statement? I mean it just seems to us unfair that there are a number of things in these reports and Qantas totally relies on them in determining Ms Youett's guilt or otherwise. Not Ms Kapp herself, in fact none of us at the Bar table except for Ms Youett, were present or have firsthand knowledge of the events.

PN93

We are all relying on statements or other persons to discover the truth. We do not have the opportunity to do that and as I said earlier, we did try, I approached
Ms Kapp and she said she would consider our request, she did not respond, I phoned her at her request and she did not return my phone calls. We notified a dispute under the agreement and asked for an early meeting, there has been no response to that. A couple of days ago I wrote to Ms Kapp again setting out the procedure or the events in relation to trying to seek this information, I have heard nothing back from her in relation to it. It is fair enough for us to say, for you to comment, Commissioner, or to express the view that it is an unusual situation in an internal disciplinary enquiry for the person concerned through their union to ask to witness the other side.

PN94

I have given to you the reasons why we wanted to ask those questions and in relation to an approach to it we have tried at a personal, phone, letter, dispute resolution procedure, to get Qantas to respond to us and we have not got any response. In our view the other employee statements and the views or the statements of the passengers in relation to whether or not they know or are friends of Ms Youett, are crucial. Because the allegations that Qantas say are proven are formally for three broad headings, that Ms Youett knew these people, these people are friends of hers, she improperly used her position and did not follow policy in getting them upgraded and that she, and it is in part of one of the statements, says that she is sneaky in relation to it and that she tried to conceal it. Now there can be in each of those headings, we say that there is such that it can either be correct or not. Either these people are friends or not. Ms Youett concealed by handwriting documents, concealed what she was doing, she was sneaky or she was not sneaky.

PN95

There are other alternatives, for those reasons and for the principles in relation to natural justice and procedural fairness, what I would go on to ask with respect, Commissioner, is I would say this in summing up, that the decision of Qantas is based overwhelmingly on the various statements of a number of Qantas employees, (2) that there are a number of unanswered questions arising from the statements provided and contradictions between the employees' statements, (3) that Qantas did not, despite the ASUs repeated requests, approach the passengers concerned in this matter to determine if they were friends of or knew Ms Youett, (4) that the relationship or lack of between Ms Youett and the passengers is a key question in this matter.

PN96

(5) that despite repeated requests by the ASU to Qantas to have the same opportunity as Qantas to question the employees concerned, this opportunity was not forthcoming to the ASU on behalf of Ms Youett, (6) as a result of this refusal by Qantas the investigation was a one sided business and Ms Youett was disadvantaged as a result when providing her responses to the allegations against her, (7) Commissioner, the ASU requests that you recommend to Qantas that, (a) Qantas affords the ASU on behalf of Ms Youett the opportunity to question the employees that provided statements in this matter in relation to the allegations against Ms Youett, (b) that Qantas and the ASU contact the passengers concerned and ask them if they are friends or acquaintances of Ms Youett and if either of these relationships are true the circumstances of how such friendship or acquaintanceship was formed with Ms Youett

PN97

(c) that any material gathered from (a) and (b) above be given to Ms Kapp's superior for review of the former's decision on Ms Youett and that such review and decision be provided subsequently to Ms Youett. Finally, (d) that pending receipt by Ms Youett of such review and decision the penalties contained in and as a result of Ms Kapp's letter dated 1 December 2005 be suspended and a status quo ante for Ms Youett be reinstated. We would also seek to have the matter stood over generally to have leave to seek to have the matter relisted before you following the review.

PN98

THE COMMISSIONER: Yes. Mr Smith?

PN99

MR SMITH: Thank you Commissioner. I propose to very briefly walk through a chronology of events in order to - and why we say the process that has been gone through is procedurally fair, has indeed afforded natural justice to Jacquy and is compliant with the company's policy and the certified agreement. I will then make a number of comments about the competency of the section 99 dispute, respond specifically to some of the points that Mr Gallaway has made and suggest what we would say is an alternative acceptable way forward.

PN100

Commissioner, the short chronology of events is this, we say that on 9 November, Jacquy contacted an aircraft handler and requested a seat assignment for two friends. Those two passengers were named and appear in the materials. On the following day, 10 November, I might explain Commissioner that that seat reassignment involves moving passengers from the rear of the aircraft in economy to the front just behind business class. On the following day there was an unauthorised upgrade of the passengers from economy into business class, it just involves moving them up a few extra rows.

PN101

The departure agent for the flight who provides a crucial role in coordinating the loading of the passengers and the coordination of the ground crew, it is a position known in the industry as the Oscar was Jacquy and it is a key role shuttling between the crew and the passengers, you know, attending to the loading of the aircraft. On 11 November the business provided in detail written allegations and Jacquy was stood down on pay. Those written allegations are set out in the bundle marked ASU1.

PN102

THE COMMISSIONER: Yes.

PN103

MR SMITH: It is the first document in ASU1. The letter sets out the allegations, indicates that the allegations breached the Qantas personal behaviour standards and that the behaviour as alleged was totally unacceptable. It goes on to indicate and provides an opportunity to respond to the allegations, indicates that Jacquy is able to bring a representative of her choosing with her to a meeting, initially there scheduled for Monday 14 November but as Mr Gallaway has indicated upon request that was extended out to the following Friday to allow more time.

PN104

The seriousness of the allegations were indicated in the final paragraph of the letter where the business indicated that if the allegations were found to be established that there was potential for some disciplinary action, that could include up to termination of employment. Now in addition to that correspondence the company provided a series of documentation to the ASU, some of that documentation was through the ordinary course of the investigation process that the business would do, others would be in response to specific requests from the ASU. Cooperate in that regard, providing copies of emails which you have seen there which are from the duty managers concerned with the matter. A statutory declaration from one of the employees concerned, company records, crew reports, you know various other materials that were relied upon and pertinent to the investigation. All that was provided.

PN105

Jacquy had the opportunity to respond at the meeting which was held on Friday 18 November, subsequent to that she provided two and then a third statements, responding to aspects of it. On 28 November the business via Melinda Kapp contacted Jacquy to inform her by telephone of the outcome of the investigation. The reason for that telephone conversation at that time is that we understood that Jacquy was proceeding on leave and had some travel commitments and we were looking to provide her with the outcome which as the Commission has noted was not a termination and to also confirm for her that the outcome would follow in writing as well.

PN106

Following that telephone conversation the ASU notified a dispute and then on 1 December 2005 the company confirmed in writing the outcome of the investigation. Now that outcome letter is document blue 6 in ASU1.

PN107

THE COMMISSIONER: Yes.

PN108

MR SMITH: I do not propose to read any sections of it out, Commissioner, but other than to indicate broadly that the letter sets out the process that has been followed through, in the dot points indicates some of the steps that have been followed procedurally, exchanging of documentation, meeting, opportunity to respond. The second page of the letter sets out the specific allegations and then indicates the company's findings that those allegations were proven and a finding that that behaviour was breach of relevant policies.

PN109

A first and final warning was issued and whilst we are focusing on procedural issues I take the Commission to the last paragraph of the letter which confirms that as discussed on 28 November 2005 and in accordance with Qantas policy the appeal process is open to them. That was the clear indication from the business about what the next step was for Jacquy and her representative to pursue as opposed to requests to effectively cross-examine company employees or other persons.

PN110

Without looking to traverse any potential merit arguments that Mr Gallaway has gone to when looking at the documents, and we make no concession there, we could spend some time going through on merit pointing out the strength and validity of the findings that we have made, I put that to one side to deal with the procedural issues first.

PN111

What we say about the procedure is that the allegations were set out in writing, Jacquy was stood down on pay, she had an opportunity to respond both at a meeting and in writing, Jacquy was provided with the opportunity to attain representation, she was provided with copies of documentation upon which the business was relying in the course of the investigation, she had the opportunity to consider that and take advice about it. She fully knew as a result of all that the case she was being asked to answer, now we would say that was the core of the procedural fairness and natural justice component of this type of activity; that is a company investigation into alleged misconduct.

PN112

Mr Gallaway took us to a number of cases which I understand to be reviews of arbitral decisions of tribunals, not reviews of company internal decisions pursuant to a policy investigation of misconduct. We do not see them as being on point to what is here before the Commission, what we have got is a company fully appraising an employee of the case she is being asked to answer looking to gather in all the available evidence and then making a decision about what the appropriate outcome is and we say it was a measured and moderate response given the seriousness of the allegations and the nature of the evidence and the strength of it that was presented to us.

PN113

The effect of it is that Jacquy was performing some higher duty functions which placed her in a position where there was more scope to potentially breach company policy and effect unauthorised upgrades. So the purpose behind it is to place Jacquy in a substantive position at level 3 where that opportunity is less prevalent and yet maintaining her existing employment contract. So that was we thought an appropriate and measured and moderate response.

PN114

I make this observation broadly, we do not understand the section 99 notification and dispute to necessarily be competent to attract the Commission jurisdiction to seek the sort of relief that Mr Gallaway is seeking today. We make that observation, because I will conclude by indicating that we will be prepared to participate in some conciliation if that would assist to facilitating a way forwarding with this matter. But we reserve our rights in relation to matters of jurisdiction including allowable award matters and matters of that nature in order to effect a recommendation of the type being sought by Mr Gallaway. But in any case we would say there is no merit in it.

PN115

In terms of a way forward, we would say that the company policies and the underpinning award provides that way forward. There has been no breach of company policy, Mr Gallaway has not taken us specifically to any company policies, but what we do have, Commissioner, is a Counselling And Disciplinary Procedures Policy and we would say that that would be the applicable policy that applies in these circumstances and we would say it has been complied with.

PN116

There is another policy, we apprehend that it may be the policy which Mr Gallaway is referring to and it is the Employee Grievance Policy. It has a specific reference in it unlike the Counselling and Disciplinary Procedures Policy, to language that indicates that all persons involved are to be, and I commence a quote:

PN117

Aware of the key principles of natural justice and that procedural fairness is adhered to.

PN118

There is nothing in this Employee Grievance Policy which does not apply to the circumstances of an investigation into alleged misconduct that suggests that there is some capacity to cross-examine witnesses or parties to a grievance. There is certainly nothing in the Qantas policy manual anywhere or specifically the Counselling and Disciplinary Procedures Policy that would assist Mr Gallaway in finding some sort of breach of the failure to allow cross-examination, effectively, of employees or non-employees including passengers. I make the observation that had there been anything in the policies that would have assisted, that Mr Gallaway might have taken us there rather than to the High Court. But there is nothing locally there in the policy that would assist him.

PN119

In terms of a way forward as has been indicated by the business and I think Mr Gallaway would have understood it in the broad, or at least he should have, to the response to his enquiries around procedural matters was that the way forward generally was not to embark upon this cross-examination of individuals who had provided statements or completed reports but rather to, pursuant to the agreement and disputes resolution procedure, to take the matter to the next level which would be to raise the dispute to I think the level which Mr Gallaway has indicated in the third limb of his proposals, which I think he said the airport manager or the person to whom Ms Kapp reports which is the airport manager at Sydney international terminal.

PN120

We would see that to be the logical course of where this should go. I might add that if you read through - - -

PN121

THE COMMISSIONER: Sorry, I did not get that point, say that again.

PN122

MR SMITH: We would say that if Jacquy is not content with the outcome that the next step is for her to take the matter through the disputes settlement procedure to the next level, which we would identify to be discussions between the Union and the relevant airport manager or as assisted by - - -

PN123

THE COMMISSIONER: Now that is different from the appeal process or not?

PN124

MR SMITH: No look we would say that the appeal process would capture that. That it is to move through the award and agreement dispute resolution procedure.

PN125

THE COMMISSIONER: Just hold on a second Mr Smith. Sorry Mr Smith, isn't there an appeal process where you get a manager from another business totally sometimes at Qantas? Isn't that something that - it might be another company. I thought Qantas did that, an appeal process where you get a manager from Melbourne in Qantas Flight Catering will be the appeal body. I could be wrong, maybe it is in a dismissal situation.

PN126

MR SMITH: Look I have certainly - - -

PN127

THE COMMISSIONER: Anyway it does not matter, so you say that it can be appealed to someone higher up and the Union has a more formal role to play in that?

PN128

MR SMITH: Yes, pursuant to the dispute resolution procedure which then has a further tier which I think involves having the national office of the Union involved as well. There is another tier as well when you walk through the award dispute resolution procedure. Now the observation I would make is that none of that has occurred yet. We have had an enquiry, we have had a finding and the ASU has notified a dispute. We would say that it is firstly arguably the notice is incompetent for the purposes it purports to achieve, but we would also say that it is premature.

PN129

THE COMMISSIONER: Yes, thank you Mr Smith. Yes Mr Gallaway? Sorry hadn't you finished?

PN130

MR SMITH: Yes, I have just got one other broad point that I should make.

PN131

THE COMMISSIONER: Sorry.

PN132

MR SMITH: This would go to any appeal or any sort of review pursuant to the dispute resolution procedure of a matter of this nature, that any such review would be attended with some risk for the employee concerned because the person reviewing the decision may replace it with another decision. Now there would be a potential in circumstances of some matters that a decision to issue a final warning could in fact as a result of pursuing the matter through the disputes resolution procedure result in some further or additional disciplinary action as opposed to what the person might have been hoping for. So I alert the ASU and Jacquy to that possibility at the earliest opportunity.

PN133

THE COMMISSIONER: Yes, Mr Smith, could I just ask you this, when you say you have given her a first and final warning and she is being denied the acting up position, I mean she is reverting back to a substantive position.

PN134

MR SMITH: Yes.

PN135

THE COMMISSIONER: Is there a time frame? Is there a time frame for that or is this something that just goes on forever?

PN136

MR SMITH: There is no expressed time limit to that.

PN137

THE COMMISSIONER: Yes thank you. Yes Mr Gallaway?

PN138

MR GALLAWAY: Yes Commissioner, in response to Mr Smith for Qantas, we do not have any problems with the chronology that he gave, that is indeed some of the highlights of what has happened. Qantas did, and we agree, provide Ms Youett with many of the features of procedural fairness, the allegations in writing, the opportunity for representation for advice, documentation, et cetera. We do take issue with, and it is part of our case, we do take issue with Mr Smith's statement that she, Youett, fully knew the case against her. We say on the contrary she did not know all the case against her because she had not had the opportunity through her representative to ask certain questions in relation to Qantas's witness. So we do not accept that, we dispute that.

PN139

Mr Smith went on to say that Qantas's response was measured and moderate. We only somewhat agree with that, we do say that the penalty in relation to Ms Youett is harsh on a couple of grounds, (1) an immediate loss of salary for her as a result of losing her acting up position, but (2) and Mr Smith has just explained the nature of the first and final warning to the Commission, she now has a first and final warning on her file which will continue for the remainder, it is my understanding from what Mr Smith said, will continue on her file for the remainder of her employment at Qantas.

PN140

So for regardless apparently of what Ms Youett does for the next 20 or 30 years or more from 2005 there will be a first and final warning on her in relation to something that might have happened 5, 10, 20, 30 years ago. We find that extraordinary. If that is Qantas's policy in relation to its employees to put on first and final warnings, we question that, Commissioner, and if it is on the basis that it is there forever more and the employee in effect is under a constant review or constant probation in a sense, we wonder why they are employing the employee if they are that suspect, if they are that incompetent, if they are that under suspicion. We have a major problem with that.

PN141

In relation to Mr Smith's comments as to the competency of the section 99 notification to attract the Commission's jurisdiction, we understandably do not accept Mr Smith's arguments. Mr Smith said that the ASU had not taken the company to any company policy, well we dispute that and Mr Smith later went on to refer to the Grievance Policy which has within it the reference to procedural fairness and natural justice and in which the ASU received from Ms Kapp at our request. So we acknowledge that at our request Ms Kapp did supply to us the policy that we sought. That was because, I should add and I should put it on the record, we had approached and asked Mr McKenzie, who is the IR Manager, and we have done this twice now, for a full copy of Qantas's HR policy manual and procedures and Mr McKenzie on behalf of Qantas has refused to supply that to the ASU. So we are reliant, and we appreciate that Ms Kapp has supplied that to us but it does put us at a disadvantage. We do not have, for example, the appeals process for Qantas.

PN142

Finally in relation to the way forward on the matter, Mr Smith made a mention of the dispute resolution procedure contained in the applicable instruments, we would just hope that Qantas's response in relation to dispute resolution is more forthcoming than our last notification to them under the dispute resolution procedure. We did notify them and we did seek a meeting with Qantas under that procedure and to this day there has been no response from Qantas. I trust that if we notify a further one or we seek further meetings there will be a response this time, but we do not know.

PN143

Finally, Mr Smith said that ASUs notification is premature, well I am not sure what Mr Smith expects the ASU to do when we seek meetings with Qantas, we notify Qantas under the dispute resolution procedure, we make phone calls, we send letters and there is no response. What does Mr Smith expect the ASU to do on behalf of Ms Youett? I think we have made all reasonable attempts to meet with Qantas and resolve the concerns that we raised with them.

PN144

Finally, we revisit an issue, we think it is necessary for us to be allowed to question the witnesses and we think it is very necessary and not at all inappropriate for Qantas and ourselves to approach the passengers and ask them if they know Ms Youett, if they are friends of Ms Youett. It is a question that runs all the way through the allegations and Qantas believes, because they have put it in their letter, that this is an allegation that is proven. Yet I have not heard from Qantas of any conversation with the passengers, there are no witness statements from the passengers, there is only hearsay. May it please the Commission.

PN145

THE COMMISSIONER: Yes, thank you. Look, this is just one of those instances where I am afraid the Commission just does not see its role to interfere with company decision or processes. I think the opportunity has been given to put an employee's side of things and the company's weighed that up and preferred perhaps what other employees have said. Now I just do not propose to impose on an employer, unless it is provided for in their internal systems or in a certified agreement or the award, impose on them the requirement to somehow open themselves up to questioning from one employee to another. I mean I do not see where you draw the line.

PN146

Qantas regularly deals with restructuring or filling of positions, people apply for them, people's skills are assessed and weighted sometimes by outside people. They can be appealed by the employees who are disadvantaged or do not succeed. But I do not see any instances where employees are able to examine the examiner or examine the outside person who has given them two out of five for skills and one out of five for presentation or whatever it might be. I mean it may be that the employee has suffered some disadvantage, well that is a decision of the employer. I mean not every decision of the employer is to be questions, it is as simple as that.

PN147

The Act makes provisions for where the Commission can interfere and it does so. It may very well be that going through the appeal process, and if there is a provision in the certified agreement dealing with discipline, if the decision of Qantas is found to be wrong, sorry is challenged ultimately, then that might be a case of the Commission interfering or involving itself to see whether there was merit in the decision. Now that really depends on what the certified agreements say. That is not a section 99 process or a 170LW process. I know nothing, no one has addressed me on that aspect of it.

PN148

But until then the ability of Qantas to conduct its affairs without requiring an examination, I do not think ought be unduly sort of interfered with. There is an appeal process, as has been suggested or working through the disputes procedure where it can then be brought to the attention of somebody else at Qantas. In the end Qantas will have to wear the consequences of this. The very fact that it has been brought to the Commission, Mr Gallaway, and your challenging it probably means that the first and final warning is something that the company would be - question whether it relies on that.

PN149

So that if in a year's time or two year's time or ten year's time Ms Youett is in further disciplinary process or challenge, the fact that the first and final warning, the incident here has been challenged for the reasons that you have said, may very well mean that what happened in these circumstances will not really count for much in the future. Lets say that an unfair dismissal proceeding in the Commission and the focus will be on the event at that time.

PN150

So it is not a case of a first and final warning and the employee accepting it and signing off on it, it is a challenged one and I am not saying it should be disregarded but both the employee and Qantas need to see it in that light. As for the removal of the acting up position, well again that is a matter of pure company discretion or employer discretion to, as I understand it, to maintain people in acting up positions, they are entitled to I think move people to the substantive position at any time.

PN151

In the circumstances I do not propose to make any recommendation along the lines sought, I do not seek to interfere with what Qantas has done. As I have said it may very well be that Qantas has not acted - the decision it has come to might be wrong, that might be reviewable either internally or by the Commission in due course. But I do not propose to embark upon requiring the employer to submit its employees to examination. On that basis these proceedings are adjourned.

<ADJOURNED INDEFINITELY [10.50AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 BUNDLE OF DOCUMENTS. PN13