Qantas ordered to reinstate safety instructor who was unfairly sacked for allegedly staring at employee's chest

The Fair Work Commission (FWC) has found that allegations made against a Qantas trainer for staring at a female employee's chest were insufficiently substantiated and did not constitute a valid reason for dismissal.

‍Conflicting stories

‍Commissioner Donna McKenna preferred the trainer's recollection of events, finding that much of the evidence presented by Qantas was "cherry-picked" or mischaracterised. The Commissioner found it difficult to reconcile significant inconsistencies and "incompatible recollections" in Qantas' submissions about what occurred at the training session.

The complainant alleged that during a training session on basic aviation first aid, the trainer stared at her breasts for up to half a minute and proceeded to make unwelcome statements that caused her to feel uncomfortable and humiliated. The Commissioner found that the trainer was merely demonstrating how to conduct a visual assessment of a passenger to identify signs of ill-health, having briefly observed the complainant's breath rate for 2-3 seconds. The Commissioner also preferred the trainer's version of events in relation to the comments made by the trainer.

The complainant alleged that the trainer directed personal statements towards her, including that the trainer announcing that he was "deliberately starting at [the participant's] chest" and proceeding to comment on her blushing as a result. The Commissioner found that these statements had been mischaracterised by both the complainant and Qantas in their internal investigation report, and that the trainer was in fact addressing the whole training session, making direct reference to a PowerPoint presentation.

‍Inconsistencies in Qantas' Internal Investigation

The Commissioner identified many inconsistencies within Qantas' internal investigation and show cause procedure, finding that the dismissal letter embellished aspects of the complaint in order to justify the trainer's termination for breaching Qantas' Standards of Conduct Policy. The initial investigation produced a findings letter, identifying 7 allegations, of which many were found to be only partially substantiated or entirely unsubstantiated.

The Commissioner took issue with the subsequent reliance on almost all of these allegations in Qantas' finding that the trainer was in breach of policy and therefore validly sacked. Further, the Commissioner found that the dismissal letter itself attempted to assert additional allegations that the trainers conduct "arguably could constitute sexual harassment", a finding not previously identified within the investigation process.

Ultimately, the Commissioner found that Daniels conduct could not be characterised as ogling or "distinguishably lewd". The Commissioner also found that due to the inconsistencies in the investigation process, the dismissal did not validly identify any breaches of Qantas policies. It was ordered that the trainer be reinstated to his previous position and fully reimbursed for lost pay.

‍Key Takeaways

• Employers should seek legal advice with regard to internal investigation procedures, ensuring that allegations relied upon for the purposes of dismissal are objectively substantiated.
• External workplace investigations may provide the benefit of a more independent and impartial process, leading to more reliable findings of fact.

If you require assistance in relation to any of the information provided above, Pragma's Employment lawyers can provide advice to you and your business to minimise your future risk. Contact us today by clicking here or call us on (08) 6188 3340.