FEDERAL COURT OF AUSTRALIA
Cicciarelli v Qantas Airways Ltd [2012] FCA 56
IN THE FEDERAL COURT OF AUSTRALIA | |
| First Applicant MICHAEL INGUANTI Second Applicant | |
AND: | QANTAS AIRWAYS LTD (ACN 009 661 901) Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The amended application dated 21 July 2009 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 398 of 2009 |
BETWEEN: | LUIGI CICCIARELLI First Applicant MICHAEL INGUANTI Second Applicant
|
AND: | QANTAS AIRWAYS LTD (ACN 009 661 901) Respondent
|
JUDGE: | KENNY J |
DATE: | 7 FEBRUARY 2012 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
INTRODUCTION
1 This is an application under ss 807 and 841 of the Workplace Relations Act 1996 (Cth) (as in force at the relevant time) (‘the Act’) regarding alleged breaches by the respondent, Qantas Airways Ltd (‘Qantas’), of s 792 of the Act. Qantas is a large employer operating an airline throughout Australia and internationally. The applicants were its employees. They allege that, in contravention of s 792 of the Act, they were unlawfully dismissed because they were officers and delegates of the Transport Workers Union (‘TWU’). The applicants also seek damages for breaches of their employment contracts constituted, so they allege, by their summary dismissals.
2 For the reasons set out below, I would dismiss the application.
3 The first applicant, Luigi Cicciarelli, worked for Qantas from 25 November 1993 until 5 March 2009, when Qantas terminated his employment. He had received a Long Service Badge on 3 February 2009. From 1997 until his dismissal, Mr Cicciarelli worked as a Qantas airline services operator in the ramp area. His responsibilities included loading and unloading baggage, freight, mail and livestock from aircraft, and operating motor vehicles and other ground-handling equipment.
4 The second applicant, Michael Inguanti, also worked for Qantas for many years – from 22 March 2000 until 2 March 2009 when his employment was also terminated. From the end of 2002 until his dismissal, Mr Inguanti worked as airline services operator in the Qantas baggage department, where his duties included loading baggage on designated flights. On occasions, he had worked as a relieving leading hand. Relevantly for this proceeding, Mr Inguanti became an occupational health and safety representative (‘OH&S representative’) in around March 2008 and remained so at the time of the events in question.
5 Until their dismissals in March 2009, both Mr Cicciarelli and Mr Inguanti had intended to continue working at Qantas until retirement.
6 The TWU represented members on the ramp and in the baggage department. Both applicants were union members, Mr Cicciarelli having joined the union in about February 1994 and Mr Inguanti, in about March 2000. They remained members at all times material to this proceeding. On 5 January 2007, Mr Cicciarelli was appointed a delegate of the TWU on the ramp services (apron area). On 12 October 2007, Mr Inguanti was appointed a delegate of the TWU in the domestic and international baggage rooms.
background to the proceeding
7 There are a number of industrial instruments binding on Qantas, the TWU and other unions representing the Qantas workforce. At the relevant time, employees in the ramp and baggage areas, which included the applicants, were covered by the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011) (‘Enterprise Agreement 7’).
8 This proceeding is particularly concerned with events in the ramp and baggage areas on 14 February 2009. On that day, employees working in the ramp area at Melbourne Airport (‘the Ramp’) stopped work at around 10 am following a vote conducted in the presence of Mr Cicciarelli. The employees resumed work shortly after 4 pm after proceedings in the Australian Industrial Relations Commission (‘the Commission’). The stoppage caused significant disruption to the operations of Qantas and its customers.
9 Also on 14 February 2009, employees working in the baggage area (‘the Baggage Room’) conducted a vote on whether to stop work in support of the employees on the Ramp. Mr Inguanti took the vote at around 11.15 am. The vote was close, with the result that the Baggage Room employees remained working.
10 Over the subsequent weeks, Qantas conducted an investigation into the events of 14 February. The investigation was led by Peter Smith, Industrial Relations Manager at Qantas, who gave evidence at trial. Other Qantas managers were also involved at various times in the investigation. Mr Smith and the other managers gathered material and made allegations against numerous employees, including Mr Cicciarelli and Mr Inguanti.
11 Because the allegations against the applicants are relevant to the case they make, it is convenient to set them out in full here. Thus, in a letter dated 18 February 2009, addressed to Mr Cicciarelli, Qantas alleged, “[b]y way of summary … in relation to [Mr Cicciarelli’s] conduct on Saturday 14 February”:
● that you organised meetings with Melbourne ramp employees on the morning of Saturday 14 February 2009 without authority from Qantas management;
● that you participated in meetings with Melbourne ramp employees on the morning of Saturday 14 February 2009 without authority from Qantas management;
● that you ceased, refused to perform duties and/or withdrew your labour from Qantas on 14 February 2009;
● that you incited and/or organised Melbourne ramp employees to cease, refuse to perform duties or withdraw their labour from Qantas on 14 February 2009;
● that you caused, incited and/or induced Melbourne ramp employees to engage in conduct which constituted a breach of their individual contracts of employment with Qantas to the detriment of Qantas;
● that you refused, disobeyed or disregarded a lawful direction from Qantas management to return to work within a stipulated period on at least two separate occasions;
● that you engaged in unprotected industrial action in breach of the Workplace Relations Act 1996 (Cth);
● that you incited and/or organised for Melbourne ramp employees to engage in unprotected industrial action in breach of the Workplace Relations Act 1996 (Cth);
● that you failed to refer matters which were the subject of a potential dispute between Qantas and yourself to be conducted in accordance with the dispute resolution process pursuant to clause 11 of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011);
● that you failed to seek advice and/or authorisation prior to undertaking an action or activity that was contrary to Qantas policy pursuant to clause 2 of the Standards of Conduct Policy;
● that you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy;
● that you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth));
● that you engaged in conduct which has brought/is likely to bring Qantas into disrepute and has damaged/is likely to damage the reputation, viability or profitability of Qantas;
● that as a result of the conduct engaged in on 14 February 2009, Qantas sustained losses in excess of $1.5 million.
If found to be substantiated, the alleged conduct would constitute serious misconduct/gross misconduct and would constitute a breach of the following:
● the terms and conditions of your employment with Qantas as a Airline Services Operator, including your obligations pursuant to your letter of appointment, the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011) and Qantas’ Policies and Procedures including Qantas’ Standards of Conduct;
● your obligation to comply with the dispute resolution process pursuant to clause 11 of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011);
● wrongfully causing, inciting and/or inducing Melbourne ramp employees to engage in conduct which constituted a breach of their individual contracts of employment with Qantas to the detriment of Qantas;
● your obligation to conduct yourself in a manner of trust and confidence as an employee of Qantas and a senior member of the ramp services team.
12 Qantas made further allegations of misconduct against Mr Cicciarelli in a letter dated 3 March 2009. These allegations were as follows:
1. After your attendance at the meeting between the TWU and Qantas at 11.30 am on Friday 13 February 2009, you organised a further meeting in the lunchroom with Qantas employees:
In particular, it is alleged that:
(i) you met with approximately 12 other employees in the lunchroom at some stage between 4.30 pm – 7.20 pm;
(ii) at this meeting you determined to conduct a meeting the following morning, Saturday 14 February 2009, at which you would conduct a report back to employees;
(iii) you intended at that meeting to report back on the part-time issue, which was not the subject of the meeting on 13 February 2009 between the TWU and Qantas; you knew that this was a significant issue and that it was likely that it would incite unlawful industrial action;
(iv) you did not seek authorisation from Qantas management to conduct this report back on Saturday 14 February 2009;
(v) you contacted Mr Peter Mancuso (TWU) in order to solicit union support for a stop work meeting; and
(vi) you left the workplace at 7.24 pm.
2. You state that you attended for duty on Saturday 14 February 2009 and worked ‘as directed and in accordance with’ your leading hand’s direction. You state that ‘after constant pestering by co-workers’ you indicated the outcome of a meeting between the TWU and Qantas on Friday 13 February 2009. You have failed to identify the individual/s who requested you to address them or the time/method by which the alleged request was made.
3. You state that you were requested to notify Qantas of the employees’ decision and to advise Qantas that staff would ‘wait for the TWU to come to the airport to discuss and resolved the matter’.
Qantas disputes this and alleges that you organised a meeting to take place in the lunchroom at approximately 10 am in order to advise employees on the results of the meeting and encourage or incite industrial action:
In particular, it is alleged that:
(i) you swiped in to work at 7.16 am and immediately commenced organising employees to attend a meeting in the lunchroom at 10 am;
(ii) you were observed on CCTV footage doing so;
(iii) sometime between 8.00 am and 9.30 am you so[ught] support from employees from Melbourne Freight Terminal for a proposed Ramp stoppage of work.
(iv) you led an unauthorised meeting at 10 am in the lunchroom;
(v) you reported back to employees on matters which were not the subject of the meeting [o]n Friday 13 February 2009 between Qantas and the TWU and which you knew would be likely to incite a stoppage of work;
(vi) you conducted a vote with a group of employees in the lunchroom at this meeting. This vote was concerned with a proposed unlawful stoppage of work;
(vii) shortly after 10 am you and Chris Briggs informed Mr Shane Murphy that “the boys had walked” meaning that the ramp employees had unlawfully stopped work;
(viii) you were observed to have informed at least one employee who was not present at the 10 am meeting that there was a meeting in block 5 and they were required to attend;
(ix) you ceased work and incited or encouraged others to do so.
Qantas alleges that:
(i) Connie Corrente and [Doug Brooke] spoke with you in the lunchroom at approximately 10.40 am. [Doug Brooke] addressed you and the other employees and directed that all employees return to work within the next 5 minutes otherwise the action would be considered an unlawful stoppage and your pay would be docked. You refused to return to work;
(ii) You were directed again to return to work at 12.30 pm. You refused to do so.
4. Qantas alleges that you organised a meeting and conducted a vote to cause/incite ramp employees to engage in an unlawful stoppage of work.
13 Also in a letter dated 18 February 2009, Qantas made the following allegations against Mr Inguanti:
1. that whilst you were not rostered to work on Saturday 14 February 2009, you attended at Melbourne airport in order to organise meeting/s and/or conduct discussions with Melbourne baggage room employees and Melbourne ramp employees without authority from Qantas management;
2. that during the course of those meetings and/or discussions you sought to incite, induce and/or organise Melbourne baggage room employees to cease, refuse to perform duties or withdraw their labour from Qantas on 14 February 2009 in breach of the Workplace Relations Act 1996 (Cth);
3. that during the course of those meetings and/or discussions you sought to cause, incite and/or induce Melbourne baggage room employees to engage in conduct which constituted a breach of their individual contracts of employment with Qantas to the detriment of Qantas;
4. that such action was engaged in by you in support of and/or in conjunction with unprotected industrial action which was being organised and/or engaged in by Melbourne ramp employees in breach of the Workplace Relations Act 1996 (Cth);
5. that you refused, disobeyed or disregarded a lawful direction from Qantas management on several occasions to leave the workplace on the basis that you were engaging in conduct which constituted a breach of your contract of employment, Qantas’ Policies and Procedures and the Workplace Relations Act 1996 (Cth);
6. that following several lawful directions from Qantas management to leave the workplace, you refused to do so;
7. that after being directed to leave the workplace, you made false misrepresentations to Qantas management and employees in relation to alleged safety concerns in order to continue to engage in discussions and/or meetings with baggage room and ramp employees in order to cause, incite and/or induce baggage room employees to refuse to perform duties or withdraw their labour from Qantas in support of ramp employees;
8. that after being directed to leave the workplace, you made false misrepresentations to Qantas management and employees in relation to alleged safety concerns with respect to the manner in which Qantas’ contingency workforce performed ramp services duties;
9. that your conduct constituted an abuse of your position as a health and safety representative for Qantas, Qantas’ Policies and Procedures (including its Occupational Health and Safety Responsibilities, Authorities and Accountabilities Policy) and the powers with respect to right of entry to a workplace pursuant to the Workplace Relations Act 1996 (Cth) and Occupational Health and Safety Act 2004 (Vic);
10. that you failed to refer matters which were the subject of a potential dispute between Qantas and its employees to be conducted in accordance with the dispute resolution process pursuant to clause 11 of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011);
11. that you failed to see[k] advice and/or authorisation prior to undertaking an action or activity that was contrary to Qantas policy pursuant to clause 2 of the Standards of Conduct Policy;
12. that you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy;
13. that you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth));
14. that you engaged in conduct which has brought/is likely to bring Qantas into disrepute and has damaged/is likely to damage the reputation, viability or profitability of Qantas;
15. that as a result of the conduct engaged in on 14 February 2009, Qantas sustained losses in excess of $1.5 million.
14 Qantas made further allegations of misconduct against Mr Inguanti in a letter dated 25 February 2009. These allegations were as follows:
1. You stated that you attended the workplace on Saturday 14 February 2009 in your capacity as health and safety representative in response to an ‘express request’ of your work group. You have failed to identify the individual/s who made the alleged request, the time/method by which the alleged request was made and the nature of any such request (ie what was the safety issue).
Qantas disputes this and alleges that you attended the workplace on your day off for the specific purpose of causing or organising domestic baggage room employees to engage in unlawful industrial action in support of an unlawful stop work engaged in by ramp employees.
In particular, it is alleged that:
(i) you attended the workplace at 11.07 am and proceeded to the baggage room;
(ii) you were not rostered on for work;
(iii) that contrary to your assertion that you were responding to an ‘express request’ from your work group to attend at work due to a safety issue, you attended at the request of and/or following discussions with Luigi Cicciarelli (such discussions occurring on either Friday 13 February 2009 and/or Saturday 14 February 2009) in order to organise an unlawful stoppage by baggage room employees in support of a proposed unlawful stoppage by ramp employees;
(iv) accordingly, you were aware that the ramp employees had ceased work by way of an unlawful stoppage at approximately 10.15 am;
(v) shortly after you swiped on you were observed by an Airline Services Operator in the baggage room to conduct a vote with the 18 baggage employees on shift. It is alleged that the purpose of the vote was to see whether baggage staff would cease work in support of the unlawful industrial action being engaged in by ramp employees.
(vi) at no stage prior to, during or following the conduct of the vote did you refer to any safety issues in the workplace (whether in the baggage room or at the ramp) or state that any proposed stopwork was related to any such stoppage. The vote was purely concerned with a proposed unlawful stoppage of work in support of the ramp action.
(vii) the outcome of the vote was 9 employees in favour of an unlawful stoppage and 9 against. When the Airline Services Operator entered the baggage room he immediately voted against the stoppage, making the vote 10-9 to remain on the job.
(viii) you indicated that you would return in half an hour to conduct another vote regarding a stoppage.
2. You stated that ‘soon after your arrival’ you informed Connie Corrente and [Doug Brooke] that you were in attendance in your capacity as health and safety representative and that this was acknowledged by [them].
Qantas disputes your version of the conversation and alleges that:
(i) Connie and [Doug Brooke] saw you in the bagroom shortly after you had conducted the vote and you indicated to Connie and myself that you had taken a vote from the baggage room employees in relation to whether they would cease work in support of action taken by the ramp employees and that the baggage room had determined to continue working ‘for now’;
(ii) that you would return to the bagroom to conduct another vote ‘in half an hour’;
(iii) at no stage did you indicate that you were in attendance at the workplace in your capacity as a ‘health and safety representative’;
(iv) at no stage did you indicate that you had been ‘expressly requested’ by your work group to attend the workplace in relation to a safety issue;
(v) at no stage did you refer to any safety issues being raised by the baggage room employees, ramp or any other employee;
(vi) at no stage did we indicate to you that your presence in the workplace was authorised.
3. In relation to the conversation which you state occurred at 1.45 pm, Qantas alleges the following:
(i) At approximately 11.50 am [Doug Brooke] saw you near the arrivals hall and [Doug Brooke] indicated to you that you were to leave the workplace (ie landside) as you were not rostered on for work;
(ii) you refused to leave the workplace and stated that ‘it was a public place’ and that ‘you can’t tell me to leave as I need to support my employees’;
(iii) at no stage during that conversation did you indicate to [Doug Brooke] that you were present at the workplace in your role as health and safety representative or that any safety concerns had been raised by any employees.
4. Qantas security was directed not to allow you to re-enter the workplace.
5. Qantas contingency was deployed at approximately 12.15 pm.
6. At approximately 12.45 pm you called [Doug Brooke] and demanded that you be ‘let through security’. [Doug Brooke] indicated that you had been directed to leave the workplace. You then indicated to [Doug Brooke] that you were ‘acting as an health and safety representative’ and you needed to ‘inspect the workplace as there were new people working there’ (ie Qantas contingency). When [Doug Brooke] indicated that you were not required to attend for work, you indicated that you would be ‘instructing your members to stop work’. This was the first time that you raised any safety issue with [Doug Brooke].
7. At approximately 12.55 pm you called Connie Corrente and left a voice message on her phone in which you stated ‘Connie, it’s Michael Inguanti, the guys called me in because they’ve got an OHS concern of drivers bringing stuff in…just to inform you that under OHS I am walking onto the premises so could you please contact Chubb security immediately and inform them to allow me through under OHS thank you’.
8. When Connie returned your call, you indicated that the safety issue related to the ‘individuals in the bagroom’ (ie Qantas contingency).
9. It is alleged that it was not until you telephoned [Doug Brooke] at approximately 12.45 pm that you raised any alleged safety concerns. It is alleged that these concerns related to Qantas contingency performing certain duties in the bagroom. At no stage prior to this time did you raise any safety concerns with Qantas management, including Connie or [Doug Brooke].
10. It is alleged that you misrepresented to both Connie and [Doug Brooke] that you had safety concerns regarding the contingency employees for the express purpose of entering the workplace after you had been excluded by security, in order to conduct a further vote in the bagroom and/or to cause or organise the baggage room employees to engage in an unlawful stoppage in support of the ramp employees.
11. Accordingly, Qantas disputes that you attended at the workplace on Saturday 14 February 2009 in response to any legitimate safety concerns and alleges that instead you attended for the express purpose of organising or attempting to organise an unlawful stoppage of baggage employees in support of the ramp action.
12. It is further alleged that in both your written response and your responses to Qantas management to date regarding this matter, that you have been dishonest. For example, you have alleged that you told both Connie and [Doug Brooke] from the outset that you were attending in the workplace in your capacity as ‘health and safety representative’.
15 Mr Cicciarelli and Mr Inguanti gave written responses to these allegations, in the circumstances discussed hereafter. Both were interviewed. Numerous other employees who stopped work on 14 February 2009 were also interviewed. Some other employees gave written responses to the allegations against them.
16 Ultimately, Mr Smith advised John Hall – Qantas Airport Manager (Victoria and Tasmania) – of the outcome of the investigation. The investigation resulted in findings that led to warnings for some employees, final warnings for others, and dismissal for Mr Cicciarelli and Mr Inguanti. Mr Hall decided that Mr Cicciarelli and Mr Inguanti were guilty of serious misconduct that warranted dismissal and dismissed them.
THE RELEVANT LEGISLATION
17 Section 792(1)(a) of the Act provides that an employer must not, for a prohibited reason, or for reasons that include a prohibited reason, dismiss an employee or threaten to dismiss an employee. Section 793(1)(a) relevantly provides that an employee is dismissed for a prohibited reason “if [dismissal] is carried out because the employee … is … an officer, delegate or member of an industrial association”.
18 It was not in issue that the applicants were, at the relevant time, delegates and officers of the TWU – an industrial association within the meaning of the Act. The effect of s 809(1) of the Act is that Qantas bears the onus, on the balance of probabilities, of excluding a conclusion that the applicants were dismissed for the reason that, or for reasons including that, they were officers or delegates of the TWU. Section 809(1) provides that:
If:
(a) in an application under section 807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being carried out for that reason or with that intent, unless the person proves otherwise.
THE PARTIES’ SUBMISSIONS
The applicant’s case – breach of s 792
19 The applicants contended that, in dismissing them, Qantas acted in breach of s 792 of the Act, for reasons that included a prohibited reason, namely, that they were officers or delegates of the TWU. Throughout his submissions, counsel for the applicants emphasised that the applicants, especially Mr Cicciarelli, did not have a great deal of education and that they both saw themselves as long-term Qantas employees.
20 The applicants’ case commenced with the proposition that they had been assiduous in the discharge of their responsibilities as delegates and that, as a result, Qantas came to view both of them as troublemakers. According to the applicants, Qantas management had not only told them as much but, as a result, in the case of Mr Cicciarelli, had tried to diminish his credibility with his fellow workers and the TWU. In this context, the applicants noted that, during 2008-2009, there were numerous unresolved industrial issues affecting Ramp and Baggage Room employees, such as the payment of a disability allowance, meal breaks, and part-time to full-time rostering issues.
21 The parties agreed that a meeting on 13 February 2009 was relevant to the events of 14 February 2009. The applicants argued that this meeting was significant because it had been called to resolve a number of outstanding industrial issues. Wayne Mader, TWU State Secretary, and Peter Mancuso, a TWU organiser, attended the meeting with Qantas management staff (relevantly, Mr Smith and Ms Corrente) and TWU delegates (relevantly, Mr Cicciarelli and Mr Inguanti). According to the applicants, the meeting failed to achieve its purpose. Further, when Mr Cicciarelli went to see Douglas Brooke, the Ramp manager, after the meeting, Mr Brooke told Mr Cicciarelli that he had changed his mind with regard to previously agreed rostering outcomes for part-time staff.
22 The applicants’ case was that Mr Cicciarelli attended work as usual on Saturday, 14 February 2009; and that, when Mr Cicciarelli entered the Ramp lunchroom around 10 am that day, the TWU members requested him to give a report back, as was his usual practice after a meeting with management. According to the applicants, when Ramp employees in the lunchroom learnt of the outcome of Friday’s meeting and Mr Brooke’s change of mind, they became very angry and proposals were put that there should be a work stoppage. In this context, so the applicants said, Mr Cicciarelli found himself in a very difficult position and asked those in the lunchroom what they wanted. According to the applicants, Mr Cicciarelli “didn’t seek a vote, put a proposition or a motion that work should cease, or in any other way utter any words, … which could be taken in any way as an encouragement that industrial action be taken”. Mr Cicciarelli subsequently informed management of the employees’ decision to stop work.
23 The applicants’ case with respect to Mr Inguanti was that, although not rostered to attend work on 14 February 2009, Mr Inguanti came to work that day at 11.07 am, after he received a telephone call from a Mr Fox indicating that strangers might be on the tarmac to perform work at the airport. Mr Inguanti, so the applicants said, was concerned that the use of untrained people might well raise OH&S issues. According to the applicants, when Mr Inguanti arrived at work, he sought approval from his supervisor to have a meeting of all baggage staff, union and non-union. Mr Inguanti advised them that he had come as a result of being told that there were potentially untrained people working on the tarmac. As the employees in the Baggage Room knew by then that the Ramp employees had voted to stop work, the meeting in the Baggage Room was a noisy and heated one, in the course of which someone asked Mr Inguanti for a vote to be held. The applicants maintained that Mr Inguanti acceded to that request and falsified the result so that the employees went back to work. Mr Inguanti left the Baggage Room immediately thereafter.
24 The applicants submitted that the evidence gathered in the course of the Qantas investigation showed that the no-one had planned the events of 14 February 2009. The Ramp employees’ vote to stop work was, so they said, the spontaneous outcome of a heated and tense atmosphere. At most Mr Cicciarelli “had fed issues to the room and in the heat of debate invited the floor to vote”.
25 In opening, the applicants claimed that: (1) Mr Hall did not consider the evidence of the employees who had been interviewed about the events of 14 February 2009; (2) there was nothing to show that Mr Smith had made any analysis of this evidence; and (3) there was nothing to explain how Mr Smith came to conclude that Mr Cicciarelli and Mr Inguanti were guilty of the serious misconduct as alleged. Viewed in these ways, Qantas had failed to discharge its onus under s 809 of the Act.
26 Also in opening, the applicants argued that, even if Mr Hall had a genuine belief that the applicants had engaged in conduct justifying summary termination, the Court should not, without more, accept that the reasons for their termination were unconnected with their status as delegates. The applicants argued that the relevant inquiry was whether the reasons for their dismissals included that they were delegates; and this inquiry was broader than just the subjective reasons of Mr Hall. In this connection, so they said, the Court was also bound to consider their workplace history, including their activities as delegates, and the whole of the investigation process. The Court should, so the applicants said, “be reluctant merely [] to act on the avowed subjective view of the final decision-maker, particularly in circumstances where the decision itself encompasses an antecedent procedure”.
27 Also in opening, the applicants argued that the letters formally terminating their employment showed that Qantas had acted in part for a prohibited reason. This was because (amongst other things) the letters relied on their failures to observe the dispute resolution procedure in Enterprise Agreement 7 and to conduct themselves in accordance with the Qantas Standards of Conduct Policy; and only the applicants were dismissed for reasons that included these reasons, although most other employees who stopped work on 14 February 2009 were in no relevantly different position. Further, the applicants argued that numerous other reasons advanced in these letters showed that the applicants were dismissed because they were delegates.
28 In closing address, the applicants specifically focussed on the reasons advanced by Qantas for dismissing them. The applicants took issue with the respondent’s case that there was “a compendious reason for dismissal” – organising and inciting, or attempting to organise and incite, industrial action. The applicants’ argument began with the letters of allegation sent to each of them after 14 February 2009. The applicants’ counsel referred to the letter of 18 February 2009 sent to Mr Cicciarelli, which, so he said, made 14 distinct allegations: see [11] above. Counsel continued:
That they were separate allegations can be seen by the nature of the allegations. For example, failure to refer matters under the dispute resolution procedure is a separate and identifiable breach of either the employment conditions or the EBA alleged against Mr Cicciarelli. That breach … is quite separate from, for example, another allegation that you ceased, refused to perform duties and withdrew your labour on 14 February.
The letter is not to be taken as a compendious allegation of misconduct with isolated particulars but rather … they are specific allegations each in their own right.
29 Counsel for the applicants submitted that the same was equally true of the allegations made in the other letters of allegation sent to Mr Cicciarelli and Mr Inguanti: see [12]-[14] above.
30 According to the applicants, Mr Hall gave effectively two sets of reasons in respect of Mr Cicciarelli. The first set was contained in his notes of 5 March 2009: see [164] below. The second set was contained in the letter of dismissal that Mr Hall read to Mr Cicciarelli, and that Qantas later sent to him. According to the applicants, the letter contained some 19 findings and were relied on “separately and together to reach a decision to dismiss” Mr Cicciarelli.
31 The applicants’ position with respect to Mr Inguanti was that Mr Hall relied on the six findings arising out of the investigation conveyed to him by Mr Smith. These findings became part of the letter of dismissal from which Mr Smith read when he informed Mr Inguanti that he was dismissed. This was the letter dated 2 March 2009, which Qantas subsequently sent to Mr Inguanti.
32 The applicants argued that many of Mr Hall’s views were “informed by his view as to the role of the applicants within the workplace”. The applicants’ written submissions read as follows:
[Mr Hall] has the view that delegates hold leadership positions [in the workplace] and they are to behave as if they are holding leadership positions. Further … he has an expectation that delegates would influence positively members of the union to comply with the EBA by reason of their leadership position. He had these expectations of both the applicants.
[A]s persons holding leadership positions Mr Hall has different expectations of delegates compared with other employees.
The applicants referred to certain of Mr Hall’s emails as indicative of his belief in the importance of the delegate’s role in the workplace. In closing submissions the applicants introduced the concept of a “Grand Plan” which was a reference to Mr Cicciarelli’s purported premeditation of the work stoppage on 13 February. The applicants argued that the evidence did not support a case that Mr Cicciarelli had a Grand Plan because there was no evidence to show that, on 13 February, Mr Cicciarelli had told others about a planned work stoppage on 14 February and because Mr Cicciarelli could not have known precisely which individuals, including how many part-time employees, would be rostered on to work on 14 February.
The applicant’s case – no basis for summary dismissal
33 In the second part of their case, the applicants argued that their conduct did not justify summary dismissal under their employment contracts. The applicants argued that there had to be conduct in fact warranting summary dismissal. The applicants sought to refute the respondent’s argument that there need not be shown actual conduct justifying summary termination, in order for summary termination to be permissible under the applicants’ contracts.
34 The applicants argued that Qantas was wrong in forming the view that: (1) Mr Cicciarelli attended work with the intention of organising a stoppage of work; and (2) Mr Inguanti attended work for the purpose of attempting to organise a stoppage of work. The applicants’ closing written submissions read as follows:
Whe[ther] the conduct amounts to conduct sufficiently serious to warrant the summary termination of employment is a question of fact. It is not to be determined in a merely theoretical fashion. In this case the Court knows that in the context of the dispute on 13 and 14 February 2009 the respondent did not consider it serious enough that participation in meetings, incitement to and indeed stopping, warranted dismissal. It is against that background that the conduct of Mr Cicciarelli and Mr Inguanti should be determined. That is, the Court in determining whether or not each of the applicants was in breach of their contract of employment sufficiently serious enough to warrant summary termination should proceed from the basis that any conduct which other employees engaged in which did not lead to dismissal is not, for the purposes of this case, sufficiently serious to amount to serious and wilful misconduct justifying summary termination of their employment. The distinguishing feature is an overt organisation of industrial action or the attempts to do so. The Court should find that neither of the applicants engaged in this conduct.
35 The applicants argued that the investigation preceding their dismissal was conducted by persons who had an antipathy to them. They also maintained that the investigation was unfair because it was conducted by persons who were immediately concerned in the events alleged to have constituted the serious misconduct. Additionally, the applicants asserted that they were not given the material on which Qantas relied in terminating their employment, and that there was a lack of particularity in the allegations against them.
36 In written submissions, the applicants stated:
While each of them contend that the respondent was also in breach in respect of the procedure leading up to the termination of their employment and the breach of their implied terms the substantive case put by each of the applicants is that, in the absence of proper grounds for the summary termination of their employment the respondent was in breach of their respective contracts. The applicants accept that in the event that the Court was to find that they had engaged in conduct which would justify the summary termination of their employment then a breach of the other provisions of the contract identified above would have little effect on the remedies available to them.
(Errors original)
37 In respect of the statutory claim, the applicants sought reinstatement, back pay and a full return to the previous status quo in terms of their employment. They also sought payment of penalty. If unsuccessful in their statutory claim and successful in their contract claim, the applicants sought damages not limited to the amount of notice otherwise required by the employment contract or enterprise agreement. In this regard, the applicants submitted:
Whilst people are entitled to discharge their contract in a way that would be most beneficial to [them], [this] does not alter the proposition that damages should be awarded. …
In the event that the Court was to find that the applicants had not relevantly engaged in conduct which, in the circumstances of this case, warranted summary termination of employment it should not find that the contract would in any event have been terminated on the provision of the requisite notice.
The evidence in relation to this is that each applicant wished to have a long term career at Qantas, that long term careers at Qantas were available and that absent serious and wilful misconduct different from the types engaged in by other employees the applicants’ contracts would not have been terminated.
Qantas’ case – no breach of s 792
38 Qantas argued that, in the case of each applicant, the decision-maker was John Hall and, in order for Qantas to rebut the presumption in s 809(1), Qantas needed to prove that Mr Hall terminated the applicants’ employment for a reason other than, or for reasons not including, that they were officers or delegates of the TWU. Building on the proposition that a delegate can lawfully be dismissed for misconduct, Qantas further contended that relevant misconduct included: (1) conduct that was not authorised by the employer; (2) conduct that was carried out in an employee’s capacity as a delegate though not carried out for the purpose of furthering or protecting the industrial interests of the relevant industrial association; (3) unlawful conduct notwithstanding it was carried out in the employee’s capacity as a delegate; and (4) conduct carried out as a delegate though not authorised by the delegate’s industrial association. Mr Hall’s belief as to what had occurred was, so Qantas submitted, crucial; and, accordingly, if Mr Hall believed that there had been any misconduct of the kind to which Qantas referred, and he had terminated the applicants’ employment on the basis of such misconduct, then there was no contravention of s 792, as read with s 793.
39 Qantas submitted that, on 2 March 2009, Mr Hall formed the view that, on 14 February 2009, Mr Inguanti had attended Qantas premises, with the intention of organising industrial action and had attempted to organise such action. Mr Hall’s view was, so Qantas said, based primarily on a report provided to him by Mr Smith. Qantas’ case was that Mr Hall believed that Mr Inguanti’s action was unlawful misconduct and in breach of Mr Inguanti’s employment contract, the Qantas Group Standards of Conduct Policy and Enterprise Agreement 7. According to the respondent, Mr Hall believed that the attempted organisation of industrial action was not authorised by the TWU and that, with all these considerations in mind, Mr Hall had decided to terminate Mr Inguanti’s employment. Qantas submitted that Mr Hall’s reasons for terminating Mr Inguanti’s employment were accurately set out in a document referred to by Mr Hall in his meeting with Mr Inguanti on 2 March 2009.
40 Qantas further submitted that, on 5 March 2009, Mr Hall formed the view that, on 14 February 2009, Mr Cicciarelli had attended work with the intention of organising industrial action and in fact had organised industrial action. This view was, so Qantas said, based primarily on a report provided to Mr Hall by Mr Smith. According to Qantas, Mr Hall believed that, as in the case of Mr Inguanti, Mr Cicciarelli’s action was, relevantly, unlawful misconduct and in breach of Mr Cicciarelli’s employment contract, the Qantas Standards of Conduct Policy and Enterprise Agreement 7. The respondent argued that Mr Hall believed that the organisation of industrial action was not authorised by the TWU; and that, with all these considerations in mind, Mr Hall decided to terminate Mr Cicciarelli’s employment. Qantas submitted that Mr Hall’s reasons were as stated in the letter of termination sent to Mr Cicciarelli.
41 With respect to the applicants’ dismissals, Mr Hall was not, so Qantas argued, actuated by the prohibited reason in s 793(1)(a) of the Act.
Qantas’ case – basis for summary dismissal
42 Qantas argued that:
(a) When properly construed, the applicants’ contracts of employment contain processes for dealing with alleged misconduct. Where those processes have been followed, and Qantas has determined that allegations have been substantiated, Qantas may determine to terminate employment on notice or summarily. The content of the termination clause has to be read consistently with the incorporation of Qantas policies. Accordingly, there does not need to be proven misconduct before employment can be terminated.
(b) In any event, on all the material before the Court, the Court can be satisfied that there was conduct that would justify summary termination.
(c) There is no contractual right to protection from harsh, unjust or unreasonable termination. That is a statutory right.
(d) Even if there was no conduct that would justify summary dismissal, Qantas could terminate the applicants’ employment on the notice provided in their contracts.
THE EVIDENCE AT TRIAL
43 The evidence led at trial was extensive and included voluminous documentary evidence.
44 Mr Cicciarelli and Mr Inguanti gave evidence at trial and were cross-examined. They called numerous other witnesses – Brett Storen, Mark Fischer, Craig Thomson, Rocco Cicciarelli, Gary Runnalls, Sam Loporto, Chris Briggs, Mario Bordignon, Pasquale (‘Pat’) Ardino and Michael Fong – all of whom were subject to cross-examination. As well, the applicants relied on the statements of Tony Cassar and Ashneel Kumar, which, by agreement, were admitted into evidence without cross-examination. Mr Inguanti relied on the statement of Gary Agresta, which was also, by agreement, admitted into evidence without cross-examination.
45 Qantas also relied on the evidence of the following witnesses – Peter Smith, Connie Corrente, John Hall, Douglas Brooke, Lindsay Parsons and Dragan Koscak – all of whom were cross-examined. Qantas also relied on a statement of Craig Thomas, which was, by agreement, admitted into evidence without cross-examination.
46 The following is an abbreviated account of the evidence of the principal witnesses.
Mr L Cicciarelli
47 In an outline of evidence adopted at trial, Mr Cicciarelli detailed his role as a TWU delegate, stating, amongst other things, that he had “dealt with a number of industrial issues on a regular basis”; and, in so doing, had extensive dealings with particular Qantas management and human relations staff, including Mr Brooke and Ms Corrente. Mr Cicciarelli’s evidence was that he had been an active union delegate and a vigorous participant in contentious industrial issues, particularly in the year or so prior to his termination, and had on this account been criticised by management staff.
48 Mr Cicciarelli detailed the meeting on 13 February 2009, which he had attended. He said that various items were discussed, including the issues of a disability allowance (which, so he said, had been an ongoing and unresolved issue for Ramp employees) and meal breaks. Mr Cicciarelli’s evidence was that the TWU Branch Secretary, Mr Mader, had failed to support him on these issues.
49 In cross-examination, whilst maintaining that “Qantas still could have paid that”, Mr Cicciarelli agreed that the TWU had previously told him there was no way employees would receive the $810 claimed by him as a disability allowance. Further, Mr Cicciarelli agreed that, at the meeting on 13 February, Mr Mader had wanted Mr Cicciarelli “to sort of quieten down” on this issue. Mr Cicciarelli conceded that, after the meeting, he was “upset with the TWU” about its failure to support him on the disability allowance issue and not “happy with this so-called meeting”. It was, moreover, plain from Mr Cicciarelli’s evidence that he was also upset about Mr Mader’s and Qantas’ approach to the issue of meal breaks. The TWU and Qantas agreed on this issue, and disagreed with Mr Cicciarelli.
50 Mr Cicciarelli stated that:
On exiting the meeting, I told Mr Mancuso that the Qantas Ramp staff wanted to talk directly with the TWU organisers regarding the lack of progress by the TWU in resolving the outstanding issues. Mr Mader replied “you can explain this to the troops, Lou”, as they had another meeting to go to. I also told Mr Mancuso that Mr Brooke had told me that he had changed his mind on the part time roster, contrary to his commitment in the part time monitoring committee meeting. Mr Mancuso told me to speak to Mr Brooke about it again.
51 Mr Cicciarelli’s evidence was that, later that day, he spoke to Mr Brooke about the roster issue. Mr Brooke told Mr Cicciarelli that he had changed his mind with respect to the part-time/full-time rostering issue. Subsequent intervention that day by the union organiser, Mr Mancuso, did not alter Mr Brooke’s approach. In cross-examination, Mr Cicciarelli said he was “upset [with Mr Brooke] because he went back on his word”. Mr Cicciarelli’s evidence was that, as a result, he asked Mr Mancuso to meet with the Ramp employees. Mr Cicciarelli stated in cross-examination that after his conversation with Mr Brooke he felt that management was making a joke out of him.
52 Mr Cicciarelli’s evidence, again in cross-examination, was that he spoke to some Ramp staff after the 13 February meeting and also had a heated conversation with Mr Mancuso at about 6 pm that day. The conversation with Mr Mancuso was heated. Mr Cicciarelli’s evidence was that he told Mr Mancuso that the Ramp members were upset and that he would be reporting back to them the next morning. Mr Cicciarelli acknowledged that he realised on the evening of 13 February that there was a real possibility of a strike, but denied organising one.
53 In his outline, Mr Cicciarelli described his role in the events of 14 February 2009 as follows. He was, so he said, rostered to commence work at 7.45 am on that Saturday; and that “[b]etween my tasks I was constantly being approached by Ramp staff wanting to know about the outcome of the meeting held on Friday 13 February 2009 with Management and TWU organisers”. Mr Cicciarelli continued:
I had a break (down time) between 8:00 am and 9:30 am. In order to avoid [] being hassled by Ramp staff, I had breakfast upstairs with Sam Loporto.
On my return whilst waiting for my next task in the lunchroom, ramp staff continuously hassled, pressured and demanded from me answers to their questions in relation to the meeting. After continuous pressure by numerous Ramp staff, I felt I had to respond to their questions and informed them of the content of the meeting on 13 February 2009. I spoke about the site works claim, red circle, higher duties, crib breaks and meal breaks. I told them what we discussed, in relation to the outstanding Disability Allowance claims and other outstanding issues and that they were going to arrange another meeting but no details of the time or date of the next meeting were given at the meeting. Qantas part-time staff were asking me about the roster, so I also mentioned the conversation I had with Doug Brooks [sic] on the afternoon of Friday 13 February 2009 about him changing his mind in relation to the full time relief positions on the 25 February 2009 roster. The Ramp staff could not believe that Doug Brooke had again reneged on his word. … The Ramp staff appeared to be outraged by lack of progress by the TWU on all of the outstanding issues and by Mr Brooke’s change of mind. The Ramp staff were asking me for my opinion and I replied that it was up to them, they make the call. The Ramp Staff … then began randomly putting through motions to cease work. The majority of Ramp staff were present in the lunchroom at this time. I tried to calm them down but was unsuccessful and before I knew it, there were a number of motions put forward to cease work, a show of hands and the motion to cease work was endorsed unanimously by the TWU members. I did not participate in this motion. At no stage did I incite, instigate, order or persuade any Qantas employees to engage in any industrial action or [to act] in a manner which constitutes a breach of their individual contract of employment with Qantas. After the motion had been passed, all of the Ramp staff ceased work and waited in the lunchroom. The Ramp staff then insisted on me, as their Union Delegate notifying Qantas Management of their decision to cease work and that they would be waiting for their TWU organisers to come to the airport to discuss and resolve this matter. By this time, it was almost 10:00 am.
At approximately 10.00 am Chris Briggs (TWU Co-delegate) and I spoke to BSM Shane Murphy … and notified him that the Qantas staff/TWU members had put through a motion to cease work and were waiting on their TWU organisers so they could resolve the matter. …
At approximately 10:17 am I rang Peter Mancuso on his mobile phone and left a message on his voicemail informing him of the current situation at the Melbourne ramp and asked him to call me back.
At approximately 10:50 am Doug Brooke, Connie Corrente and Scott Spears entered the lunchroom and Mr Brooke told the ramp staff they had 5 minutes to get back to work.
At approximately 11.10 am Doug Brooke and Connie Corrente entered the lunchroom again and this time, approached me. Mr Brooke told me that Sydney had been informed about this situation. He told me and Chris Briggs that this was not Union endorsed. I replied that this is what the TWU members have decided and the Ramp staff were waiting for their TWU organisers so they could resolve the matter.
At approximately 11.25 am I rang Peter Mancuso again and left a message notifying him of the situation at Melbourne Airport.
54 Mr Cicciarelli went on to say that he made numerous unsuccessful attempts to contact other TWU personnel and also that Mr Inguanti had rang him about 12:17 pm, with the news that Mr Inguanti had been told by management to leave the premises.
55 In his outline, Mr Cicciarelli continued:
At approximately 12.30 pm Doug Brooke and Connie Corrente approached me in the lunchroom in the presence of Chris Briggs and Brett Storen. Mr Brooke said to me that “this is coming from Sydney, there is a change in management, you will be going to the Commission, you are the instigator of this”. I replied to Mr Brooke that the Ramp staff were waiting on their TWU organisers to discuss and resolve the matter. I also mentioned to Mr Brooke and Ms Corrente that I had been trying to get in contact with the TWU and had left message[s] on their mobile phones. I asked Mr Brooke and Ms Corrente if they had contacted the TWU but they did not respond.
Some time afterwards, a TWU official informed Mr Cicciarelli that there was to be a Commission hearing at 2:30 pm later that day. At about 4:15 pm, the Commission ordered the Ramp employees to return to work. Mr Cicciarelli said that he phoned the Ramp lunchroom to inform the employees of the order.
56 In examination in chief, Mr Cicciarelli emphasised that, when he told staff in the lunchroom on 14 February about the meeting the previous day and about his conversation with Mr Brooke, the lunchroom became “very loud” and “like a riot” (although Mr Cicciarelli conceded in cross-examination that he had not said this to Qantas management during the subsequent investigation). According to Mr Cicciarelli, “the guys … had enough”, and “[t]he people in the lunchroom started to put forward that they wanted to cease work. That they wanted the union organisers to come in and explain themselves.” Mr Cicciarelli added, “[a]mongst themselves there was a show of hands. They also said that they wanted to make a stand.”
57 In cross-examination, Mr Cicciarelli agreed that he had said to the employees that it was up to them. That is, to quote Mr Cicciarelli:
They decide if they wanted to continue work. They decide if they wanted to cease work. It was up to them to decide for me to say to management, “Hey, what the heck is going on here”.
Senior Counsel for Qantas put to Mr Cicciarelli that, in addressing the employees on 14 February 2009, he said nothing that would have discouraged industrial action. Mr Cicciarelli replied, “[l]ike I said, under the circumstances of the constant pestering, that’s how the atmosphere was.”
58 In his testimony at trial, Mr Cicciarelli said that, on 14 February 2009, he first saw and spoke with Mr Inguanti about 11:15 am when Mr Inguanti came into the Ramp lunchroom. Mr Cicciarelli said that, at that time, he had last spoken with Mr Inguanti via mobile phone, when Mr Cicciarelli called Mr Inguanti about 2.30 pm on 13 February and asked him for his thoughts about the meeting that day. Mr Cicciarelli denied that he had raised with Mr Inguanti the possibility of a strike on 14 February.
59 In his outline, Mr Cicciarelli described events after 14 February 2009, commencing with a meeting that he, Mr Inguanti and Mr Storen had with Mr Smith, Mr Brooke and Ms Corrente on Wednesday, 18 February 2009 when he was given a letter of the same date. Mr Cicciarelli said:
After we sat down, Mr Smith handed all three of us letters signed by Doug Brooke, which contained allegations of serious misconduct regarding the events of 14 February 2009.
Mr Cicciarelli’s employment was suspended pending Qantas’ investigation. The letter to Mr Cicciarelli was in evidence: see [11] above.
60 On 20 February 2009, Mr Cicciarelli, with his lawyer, met with Mr Smith, Mr Brooke and Ms Corrente; and a letter written for Mr Cicciarelli by his lawyer was read out. In his outline, Mr Cicciarelli specifically said “I did not provide responses to the allegations”. In cross-examination, Mr Cicciarelli added that Qantas was also told that the allegations against him were untrue. Upon his lawyer’s request, Mr Smith gave Mr Cicciarelli until Monday, 23 February 2009 to respond; and Mr Cicciarelli replied by letter on or about that date, denying the allegations against him.
61 Mr Cicciarelli recounted that he subsequently received another letter from Qantas dated 3 March 2009, making further allegations against him and asking him to attend a meeting the next day. On 4 March 2009, Mr Cicciarelli (with support people) met with Mr Smith, Ms Corrente, and Mr Brooke, who asked him again about his involvement in the events of 14 February 2009. Mr Cicciarelli noted that he gave another letter to Mr Brooke, denying the further allegations against him.
62 At trial, Mr Cicciarelli accepted that, save for some relatively minor matters, Ms Corrente’s notes of the 4 March meeting were “pretty much” accurate. In cross-examination about the 4 March meeting, Mr Cicciarelli said that he felt “that I was being more interrogated than anything else. The atmosphere with three managers looking over me was intimidating … and it was a very hostile environment”.
63 Mr Cicciarelli (with a support person) attended a further meeting on 5 March, this time with Mr Smith, Mr Hall and Mr Brooke. In his outline, Mr Cicciarelli said:
I explained to Qantas Management my personal situation and that I had to see a psychologist. I was very upset and started to weep. I told Management [that] I thought what they were doing to me was wrong. After giving me a break, Management came back in. Mr Hall then read out a letter which contained the outcome of their investigation and informed me that I had been terminated from my employment due to serious misconduct.
Mr Cicciarelli received a letter formally terminating his employment on 6 March 2009. As appears below, I have not accepted much of Mr Cicciarelli’s evidence. Whilst Mr Cicciarelli was not perhaps dishonest per se, he was less than frank in some of his answers and given to self-justification after the event.
Mr Inguanti
64 In his outline of evidence adopted at trial, Mr Inguanti described his role as a TWU delegate, stating that he had “dealt with a number of industrial issues on a regular basis” and, in this connection, had also had extensive dealings with certain management and human relations staff, including Mr Brooke and Ms Corrente. Mr Inguanti’s evidence was that he too had been an active union delegate and participant in industrial issues, particularly in the year or so prior to his termination and, on this account, had attracted criticism from management staff.
65 Mr Inguanti’s outline described the 13 February meeting in much the same terms as that of Mr Cicciarelli. Mr Inguanti’s evidence in cross-examination was that TWU officers – Mr Mader and Mr Mancuso – had led him to believe that this would be the meeting to resolve all outstanding issues. Mr Inguanti agreed that, at the meeting, there was a “slightly” heated disagreement between Mr Cicciarelli and Mr Mader over the disability allowance issue. In Mr Inguanti’s view, Mr Mader was “very rude” to Mr Cicciarelli. Mr Inguanti said:
I was disappointed with the attitude and the professionalism presented by Wayne Mader, considering the fact that he is supposed to represent the union, the delegates and the union members.
Further, Mr Inguanti said that he was disappointed with Qantas.
66 Mr Inguanti’s evidence was that numerous requests had been made by the delegates to the TWU to have the matters listed in the Commission but “[o]nce again, deaf ears”. Mr Inguanti said that the two issues that concerned the Baggage Room employees – disability allowance and meal breaks – had not been “resolved at all” at the 13 February meeting; and that, by the end of that meeting, he was angry with the TWU:
… because Peter Mancuso said to me at the end of the meeting that the company can make you work a whole eight hours as long as they pay you double dollars at the end of – after the five hours. I thought that was really disappointing and showing no support for the members.
67 In oral testimony, Mr Inguanti said that he spoke to Mr Cicciarelli by telephone twice later that day about the meeting and their disappointment with the union. Although Mr Inguanti could not recall the details of the conversations, he denied that Mr Cicciarelli had mentioned a report back the next day, or anything about a work stoppage.
68 Mr Inguanti’s evidence was that, on the morning of 14 February 2009, an airline services operator in the Baggage Room had telephoned him twice – first (about 8:30 am) to say there was “a rumour that Ramp Staff were going to cease work possibly over outstanding issues with management and the union” and, secondly (about 10 am), to say that the Ramp staff had in fact stopped work. In cross-examination, Mr Inguanti admitted to telephoning the switchboard for Channel 7 (a Melbourne television channel) sometime after this, adding “I must have just been angry”. He denied making the call to say there was a stoppage on the Ramp at Melbourne Airport.
69 Mr Inguanti said in evidence that he swiped on at work at 11:07 am because he was “there as an OH&S representative and wanted to be paid for [his] time at work, should any safety issues occur”. Mr Inguanti’s evidence was that he went first to the Baggage Room and then to speak with Mr Cicciarelli, “to find out more about the Ramp cease work and whether he knew of ‘outside ports staff coming in’”. According to Mr Inguanti, Mr Cicciarelli told him “he didn’t know but the guys in his section had decided to cease work over all the outstanding issues with Management and they were waiting for their Union Organiser to come in”. In his outline, Mr Inguanti continued:
I approached separately the Leading Hands on the floor at the time, Lindsay Parsons and Lui Luwang and asked them if I could address the Baggage staff as to why I was there and what was going on. I also told both Leading Hands to make sure to leave enough skeleton staff on the floor to keep the operation going. When I was asked who I wanted in the meeting, I said anyone (meaning Union or non-union staff). Both Mr Parsons and Mr Luwang agreed and organised the staff. I walked to the lunchroom and waited for the Baggage staff so I could speak to them.
70 According to Mr Inguanti, the Baggage Room staff assembled at approximately 11.20 am, when he addressed them:
Saying something to the effect of “hi guys. I am here because I got a call that the Ramp had ceased work and I had a concern that ‘outside staff’ were going to work on Ramp because they had ceased work and they will be bringing bags in here. So I am here for a bit on my day off to oversee that there is no risk and then I’m going back home”.
In cross-examination, Mr Inguanti thought he had said, “If you stop work, I’ll support you”.
71 This was said by Mr Inguanti to have had a heated response, because, according to Mr Inguanti, “the Baggage staff immediately began bombarding me with questions about what was going on outside. The questions started to become louder with everyone trying to talk over everyone else and it was getting out of control and I felt overwhelmed …”. Mr Inguanti said that he “could see the Baggage staff beginning to get agitated and some wanted to support the Ramp”. According to Mr Inguanti:
The staff were asking if a vote should be taken. … I said at top of my voice “what do you want to do guys?” They told me to count a vote so I said “I’ll do a quick count”. I conducted a quick count and falsified it to show “NO” majority with nine votes “YES” and ten votes “NO”.
Mr Inguanti did not inform Qantas management during the investigation that he had falsified the vote.
72 In cross-examination, Mr Inguanti said:
The members wanted to take a vote and it was very heated in the lunchroom. I have never been in a position such as that … My main goal … at that very point in time was to just – to get out of there … I knew that the issues concerning the baggage room needed to be discussed a bit further with Doug [Brooke] and Peter Mancuso. So I knew – if they decided to go off, it would be wrong within myself – myself, as the delegate – and being responsible for these people, I felt it was wrong.
According to Mr Inguanti, the meeting was out of control and “it was bedlam”.
73 When the meeting ended, Mr Inguanti said he spoke with Mr Parsons in the Baggage Room and, subsequently at about 11:30 am, Mr Brooke and Ms Corrente (who were also in the vicinity) as he “noticed they were not wearing high visibility vests”. According to Mr Inguanti, Mr Brooke asked him what he was doing at work and Mr Inguanti replied “I am here as OH&S as I got a call”. Mr Inguanti told them, so he said, that there were “no problems, everything’s okay here, everyone is working as per normal and there is no talk of cease work in support”. Also, according to Mr Inguanti, he undertook to let Ms Corrente know if any problems emerged and asked Mr Brooke and Ms Corrente to put on “some hi-vis vests”, which they said they would. In cross-examination about this conversation, Mr Inguanti denied telling Mr Brooke and Ms Corrente that there was to be a second vote in the Baggage Room and conceded that he did not identify the specific OH&S concern that led him to come to work.
74 Mr Inguanti said that he subsequently walked out to the front of the airport terminal “for a smoke”, but began to return inside when Baggage Room staff told him that “outside staff” were beginning to drive in the Baggage Room. On his way back, Mr Inguanti met Mr Brooke and Ms Corrente again. Mr Inguanti said that, this time and later in the canteen, Mr Brooke told him to go home. Mr Inguanti denied saying that he was present to support the workers. In cross-examination, Mr Inguanti reiterated that he did not organise any industrial action at any time.
75 According to Mr Inguanti, at about 12.54 pm that Saturday, he tried to contact Ms Corrente, and left a message on her voicemail asking her to let him in to check on OH&S concerns about the outside staff. He said that he also called Mr Brooke, who again told him to go home. According to Mr Inguanti, when Ms Corrente returned his call at about 1.20 pm, she told him that he could return to the Baggage room only if he was escorted by a manager. At about 1.25 pm, Mr Inguanti said that he spoke to a manager (Scott Speers), who seemed to be unaware of this direction, saying he would come back when he had time. Mr Inguanti said that, at about 2.20 pm, Mr Brooke and Ms Corrente served him with the Commission papers requiring him to appear at 3.00 pm at the Commission that afternoon. Mr Speers eventually contacted Mr Inguanti as he was on his way to the Commission.
76 In his outline, Mr Inguanti also described events after 14 February 2009, commencing with the meeting that he, Mr Cicciarelli and Mr Storen had with management on 18 February 2009, in the course of which he was suspended (along with Mr Cicciarelli and Mr Storen) and a letter of 18 February 2009 alleging serious misconduct given to him: see [13] above.
77 On 20 February 2009, Mr Inguanti, with his lawyer, met with Mr Smith, Mr Brooke and Ms Corrente and a letter written for Mr Inguanti by his lawyer was read out. In his outline, Mr Inguanti stated:
I said that I was at work on 14 February 2009 as an OH&S Representative and that I had told Mr Brooke and Ms Corrente this on the day and that there was no cease work in my area.
Mr Inguanti also said that, at this meeting, he denied the allegation of serious misconduct. Mr Smith gave Mr Inguanti until 23 February to respond further.
78 Mr Inguanti subsequently received a further letter dated 20 February 2009 signed by Ms Corrente, also seeking a response by 23 February 2009. Mr Inguanti replied by letter of that date, denying the allegations made against him. On 25 February 2009, Mr Inguanti received another letter containing additional allegations of serious misconduct, to which he responded by letter dated 26 February 2009; and, on 27 February 2009, he received a further email requiring him to attend a meeting on 2 March 2009.
79 On 2 March 2009, at 11:00 am, Mr Inguanti (with a support person) met with Mr Brooke, Ms Corrente, and Mr Hall; gave another letter to Mr Brooke; and was asked about his involvement in the events of 14 February 2009. Mr Inguanti said in his outline that:
Mr Brooke asked me about the events of 14 February 2009 and asked if I was happy to answer five questions. … I said that at no stage did I come into work on the 14 February 2009 for the reasons they assumed. Mr Brooke asked who called me on the 14 February 2009. I had not spoken to David Fox about disclosing his name and so I replied that I had not spoken to him or my solicitor about this. Mr Brooke then asked me if I spoke to Mr Cicciarelli before 11:07 am on 14 February 2009. I replied “no”. Mr Brooke asked me if Mr Cicciarelli said he was going to report back to staff on 13 February 2009. I replied “not to my recollection, I went home at the end of my shift”. Mr Brooke then asked me whether I had anything to say or add to this. I said that “despite the allegations and assumptions in my presence, at no time have or would I ever or even consider jeopardising the Qantas name or reputation as I take great pride in working for the Kangaroo”.
At this point, 11:35 am, there was a break in the meeting. The meeting resumed at 1:03 pm. Mr Hall informed Mr Inguanti that his employment contract was terminated. Mr Inguanti received a letter dated 2 March 2009 later that day also stating that his contract was at an end. As stated below, I did not find Mr Inguanti an entirely truthful witness and also given to self-justification after the event.
Other workplace witnesses
Rocco Cicciarelli
80 As at 14 February 2009, the first applicant’s brother, Rocco Cicciarelli, was a TWU member and a co-delegate for Ramp services. Mr Rocco Cicciarelli confirmed his brother’s evidence about his practice of reporting back to members, adding that his brother “would just tell the facts as they were”. Although Mr Rocco Cicciarelli was at work on 13 February, he said that he did not speak with his brother until the evening and then only about domestic matters.
81 Mr Rocco Cicciarelli gave evidence that, from October 2008, he observed that his brother was given what he considered to be a heavier work load than normal. This evidence was challenged in cross-examination and, ultimately, I would not accord it any weight. Mr Rocco Cicciarelli was not at work on 14 February 2009.
Pat Ardino
82 Mr Ardino was part of the Ramp staff on 14 February 2009 and at work that day. He was also a TWU member. In his outline, he stated that he was working a morning shift from 5:00-11:30 and, at some point, he walked into the locker room. From here, he could “hear a lot of noise coming from the lunchroom”. When he went into the lunchroom, he “saw everyone yelling and telling [Mr Cicciarelli] they weren’t happy, let’s walk off”. Many people were, so he said, saying “let’s put it to a vote”. According to Mr Ardino, Mr Cicciarelli was just listening; and he “looked like he’s sort of stuck between a rock and a hard place sort of thing”. An informal vote was taken. Mr Ardino did not recall Mr Cicciarelli saying anything.
83 The effect of this evidence was, however, diminished by Mr Brooke’s notes of the interview that he and Mr Smith conducted with Mr Ardino on 26 February 2009, in which Mr Ardino was recorded as telling Mr Smith and Mr Brooke that “a decision [was] made to stop work before he got there”. Further, it appeared that he had also said that he did not see any delegate in the room. This account is confirmed by Mr Smith’s notes. Both Mr Brooke and Mr Smith made their notes contemporaneously with the relevant interviews.
Mark Fischer
84 Mr Fischer was part of the Ramp staff on 13 and 14 February 2009 and at work both days. He was also a TWU member. In his outline, Mr Fischer said that he was in the lunchroom after Mr Cicciarelli had the 13 February meeting and he “could hear [Mr Cicciarelli’s phone conversation in which Mr Cicciarelli] was trying to get Peter Mancuso to come into work to sort all of the issues out”. Mr Fischer said that he heard Mr Cicciarelli warn Mr Mancuso of the possibility that there might be a strike and that Mr Cicciarelli did not want this to occur.
85 In interview notes prepared by Qantas management and signed by Mr Fischer on 6 March 2009, Mr Fischer said of this conversation:
On the afternoon of Friday 13 February 2009, I overheard Luigi Cicciarelli talking to Peter Mancuso on a mobile phone in the lunchroom. It appeared to me that he was having a heated argument with Mancuso.
I heard Luigi tell Mancuso that there were a lot of part timers who wanted to stop work, and he was trying to get Mancuso to sort things out. He was relaying a message to Mancuso that the guys wanted to stop work. I heard Luigi ask Mancuso to come to the airport. Luigi then walked out of the lunchroom and I did not hear the rest of the conversation.
86 Mr Fischer’s evidence was that he commenced his shift on 14 February 2009 at 7:00 am. He said that he was present when Mr Cicciarelli and Mr Briggs gave a report to the members in the Ramp lunchroom about the 13 February meeting and Mr Cicciarelli’s conversation with Mr Brooke. According to Mr Fischer, this was in accordance with Mr Cicciarelli’s usual practice. Mr Fischer said that Mr Cicciarelli did most of the talking and, at the end of his report, said “What do you want to do?” or “It’s up to you”. In his outline Mr Fischer’s evidence was that:
Many of the members were getting upset and angry about Doug Brooke changing his mind and some were yelling and swearing. As he usually did, [Mr Cicciarelli] asked us what we wanted to do. A lot of people were yelling and someone from the floor put a motion to stop work. … A spontaneous vote was taken by the members and the result was that the majority wanted to stop work.
Mr Fischer’s evidence was that he suggested to Mr Cicciarelli that he tell management of the work stoppage.
87 Mr Fischer confirmed that Mr Brooke had entered the lunchroom “soon after” and told everyone that they had five minutes to return to work. Mr Fischer also confirmed that Mr Cicciarelli had told him and the members at large that he was trying, unsuccessfully, to contact the TWU. Mr Fischer also said that Mr Cicciarelli had remained in the lunchroom for most of the time until he went to the Commission.
88 Mr Fischer stated that he had stopped work in support of the motion that had been put to the floor. He subsequently received a letter from Qantas alleging serious misconduct against him. Mr Fischer said that he was stood down following the work stoppage and was interviewed during the subsequent investigation. He also provided a written response to Qantas’ allegations dated 23 February 2009. Ultimately, Qantas sent a letter to Mr Fischer dated 6 March 2009, stating that it considered his conduct to be unacceptable and in breach of the terms and conditions of his employment. Mr Fischer was given a written warning, a copy of which was placed on his file.
89 In assessing Mr Fischer’s evidence, it is relevant that part of his evidence in cross-examination indicated that, at least in the Qantas investigation, he was concerned to protect Mr Cicciarelli. This aside, Mr Fischer was a generally credible witness.
Mario Bordignon
90 Mr Bordignon was part of the Ramp staff on 14 February 2009 and at work that day. He was also a TWU member. In his outline, he said that on 14 February he was rostered to work a 6:00 – 11:00 am shift and was in the lunchroom when Mr Cicciarelli came in. Mr Bordignon said that “[t]here were a lot of people talking and asking about what had happened in the meeting he had had with Qantas management”. He continued:
[Mr Cicciarelli] told us what had happened in the meeting regarding site money and rosters. A lot of people were getting frustrated with the fact that nothing had been resolved and the majority of the members present spontaneously decided that they would stay there until the issues were resolved. It happened very quickly and [Mr Cicciarelli] did not propose the members to stop work.
91 In oral testimony, Mr Bordignon said that Mr Cicciarelli “spoke to the majority of us, because we were all there. At one stage and then he just went, ‘It’s up to you guys what you want to do’. Mr Bordignon said Mr Cicciarelli appeared calm and the mood of the meeting changed as he spoke from “civilised” to “a bit of outrage”. Mr Bordignon added that there were “a lot of people ranting and raving”. When asked to describe what Mr Cicciarelli was doing, Mr Bordignon said:
He was just saying, “listen, I can’t do anything.” ... Yes, he was quite calm and said, “Look, let me go to them. I can’t say anything. I can’t encourage you to do anything”. … “It’s up to you”.
92 When asked about the issues that Mr Cicciarelli discussed, Mr Bordignon had little recollection, save that Mr Bordignon said that the principal issue was receipt of site money and he recalled that Mr Brooke did not want to talk with the staff.
93 Mr Bordignon received a letter from Qantas regarding its investigation into the events of 14 February 2009. At a subsequent interview, he said that, with regards to the events of 14 February, he had “no idea what was going on”.
94 Plainly, in the investigation led by Mr Smith, Mr Bordignon sought to distance himself from the events that led to the work stoppage, whilst at trial, he was concerned to support Mr Cicciarelli’s case. These considerations and an apparently selective memory lessen the cogency and weight of Mr Bordignon’s evidence.
Brett Storen
95 Mr Storen was part of the Ramp staff on 14 February 2009 and at work that day. He was also a TWU member and a co-delegate. In his outline, he said that Mr Cicciarelli called him after the meeting on 13 February 2009 (which Mr Storen also understood to be a meeting to resolve all outstanding Ramp issues). Mr Storen said that Mr Cicciarelli told him that the discussion had gone nowhere and that he, Mr Cicciarelli, was trying to get Mr Mancuso to come to talk to the members. In oral testimony, Mr Storen said that Mr Cicciarelli told him that “he felt as though the spotlight was on him in the meeting”. Mr Storen described Mr Cicciarelli as “annoyed”. Mr Cicciarelli wanted Mr Mancuso to come in, so Mr Storen said, because “he didn’t know how to deal with it [i.e., the situation]”. Mr Storen’s evidence was that a report back was not discussed with him since “there always is a report back because people always ask you; you get hounded in there”.
96 According to Mr Storen, on 14 February 2009, he was on the bus to work when he received a text message that the Ramp had gone on strike. He decided not to work that day because he was a delegate and “people expected the delegates not to work if there was a stop work”. Mr Storen also said that, at some point, Mr Brooke and Ms Corrente had come in and spoken to Mr Cicciarelli, saying that there had been a change in management in Sydney and that he, Mr Cicciarelli, was the instigator. According to Mr Storen, Mr Cicciarelli replied that he had contacted the union and was waiting for the union’s call. Mr Storen, who was a credible witness, said, “[w]e did not know what else to do other than wait for the union to get back to us”.
97 Mr Storen was required to attend the Commission in the afternoon of 14 February, along with Mr Cicciarelli, Mr Briggs, and Mr Inguanti. Mr Storen subsequently received a letter dated 18 February 2009 from Qantas alleging serious misconduct and was stood down pending investigation. Mr Storen was interviewed on 19 February 2009 as part of the respondent’s investigatory process. With the assistance of the TWU, Mr Storen responded by letter dated 20 February 2009. Mr Storen also provided a written response to Qantas’ allegations dated 23 February 2009. Ultimately, Qantas sent a letter to Mr Storen dated 2 March 2009, stating that it considered his conduct to be unacceptable and in breach of the terms and conditions of his employment. Mr Storen was given a written warning, a copy of which was placed on his file.
Sam Loporto
98 Mr Loporto was part of the Ramp staff on 14 February 2009 and at work that day. He was a TWU member at that time but ceased membership when Qantas terminated Mr Cicciarelli’s employment. In his outline, he said that, on 14 February, he was rostered on an early morning shift. Mr Loporto stated that he had breakfast with Mr Cicciarelli between 8:00 am and 9:00 am that morning. According to Mr Loporto:
[Mr Cicciarelli] told me that he had had a meeting with Qantas management the previous day and nothing had been resolved. He said that he did not want to face the guys downstairs because he knew that they would be very unhappy about this.
I returned to the lunchroom with [Mr Cicciarelli] and as soon as he walked in the door, guys were coming up to him and asking him what had happened in the meeting yesterday. [Mr Cicciarelli] started explaining to everyone what had happened. I checked my tasks and was allocated to the next flight. I then went to the bathroom and returned [to] the lunchroom no more than 5 minutes later. When I returned, everyone was sitting down and talking to [Mr Cicciarelli] and someone told me that everyone had decided to stop work.
99 Mr Loporto’s evidence was that, over breakfast, Mr Cicciarelli had discussed personal matters and the 13 February meeting. Both men were upset about the outcome of the meeting. According to Mr Loporto, Mr Cicciarelli had said “he did not want to face the guys”. In cross-examination, Mr Loporto also said that there were about 20 or 30 people present in the lunchroom when he and Mr Cicciarelli arrived there, probably around 10 am. He added that Mr Cicciarelli “got stopped before going into the lunchroom”.
100 Telephone records indicated that Mr Loporto had also spoken with Mr Cicciarelli in the evening of 13 February 2009. In cross-examination, Mr Loporto’s evidence was, in effect, that they had not discussed the 13 February meeting that evening. Mr Loporto explained that “[w]e speak all the time on the phone”.
101 Mr Loporto subsequently received a letter from Qantas dated 25 February 2009, advising of the investigation and the consequences of engaging in unlawful industrial action. Mr Loporto was interviewed as part of the investigation and subsequently received a warning letter from Qantas and was docked four hours’ pay.
102 Mr Loporto was a friend of Mr Cicciarelli and his evidence demonstrated that, as such, he was most anxious to support Mt Cicciarelli. This desire coloured his evidence and to some extent lessened its strength in some particulars.
Craig Thomson
103 Mr Thomson was part of the Ramp staff on 14 February 2009 and at work that day. He had been called in to work a four hour shift from 6 am to 10 am. His evidence was that he came into the lunchroom around 10 am, when there were about 20 or 30 people present. Mr Thomson said that:
I heard Mr Cicciarelli say and I do remember this quite clearly, he said that “I can’t tell you blokes what to do. It’s up to you guys”, and that’s what I heard Lui Cicciarelli say.
In cross-examination, Mr Thomson maintained that he told Mr Hall and Mr Smith, during the investigation, that this is what he had heard (although there was no record of this in the notes taken at the time by Mr Hall or Mr Smith). Mr Thomson also said that, at that time, the lunchroom was noisy; “[t]here was quite a lot of talk amongst the group of guys that were there”; and Mr Cicciarelli was standing at the front of the room.
104 Mr Thomson’s evidence was that he left the lunchroom to take a call from an allocator asking him to stay “a bit longer”. He also said in evidence that he recalled Mr Brooke and a woman entering the kitchen area, and having a conversation with Mr Cicciarelli. Mr Thomson subsequently received a letter from Qantas dated 25 February 2009, advising of the investigation and the consequences of engaging in unlawful industrial action.
Garry Runnalls
105 Mr Runnalls was part of the Ramp staff on 14 February 2009 and at work that day. He was also a TWU member. On 14 February 2009, Mr Runnalls was rostered for a 5:00 to 14:30 shift. In his outline, Mr Runnalls said:
Shortly after 9:00 that day, I was in the lunchroom when [Mr Cicciarelli] came in from working an aircraft. As soon as he came in, many of the members in the room started asking him what had happened the previous day in the meeting with management. … Many members, especially the part timers were being very vocal and kept asking [Mr Cicciarelli] what had happened in the meeting. … [Mr Cicciarelli] explained what had happened in the meeting and told us that management had decided not [to] convert part timers based on seniority after all. The members were demanding that [Mr Cicciarelli] get the TWU organisers on the phone and get the union to explain what was going on and to get the TWU organisers to come out for a meeting with the members. [Mr Cicciarelli] was still talking to the floor when people started to say[] that they wanted to stay in the lunch room until the union explained what they were doing and what could be done in relation to the unresolved issues. [Mr Cicciarelli] told the members to keep working, don’t stop, because Qantas management will think that we are having a stop work meeting. A spontaneous vote was held by the floor when people started raising their hands and the members decided to stop work.
106 Mr Runnalls’ evidence was that, during the report back, the people in the lunchroom were “very aggressive” but that Mr Cicciarelli was “very calm”. Mr Runnalls said that “[t]he motion was put that they would stay in the room until the union was contacted”. After the motion was put, then, according to Mr Runnalls, Mr Cicciarelli said “I’ll leave it up to you. You tell me what to do”. Mr Runnalls’ evidence was that “[h]e didn’t tell them to do it and he didn’t tell them not to do it”, although Mr Cicciarelli tried to explain that “[i]f we did that we might – there might be trouble”.
107 Mr Runnalls subsequently received a letter from Qantas dated 25 February 2009, advising of the investigation and the consequences of engaging in unlawful industrial action.
108 The weight to be accorded Mr Runnalls’ evidence is diminished to some extent by his evident concern at trial to support Mr Cicciarelli’s position.
Michael Fong
109 Mr Fong was part of the Ramp staff on 13 and 14 February 2009 and at work on those days. He was also a member of the TWU. Mr Fong said, in his outline of evidence, that, whilst in the lunchroom on 13 February, he overheard Mr Cicciarelli talking to someone from the union on the phone. He said that he “could tell it was someone from the TWU because of what [Mr Cicciarelli] was saying”. According to Mr Fong, Mr Cicciarelli “said to the person on the other end to make sure he comes down tomorrow to discuss the meeting with the blokes on the ramp, the boys are not happy, this needs to be resolved”. In cross-examination, Mr Fong agreed that Mr Cicciarelli did not necessarily say “tomorrow”. Mr Fong said:
I can’t recall whether it was the next day, Sunday or Monday but he wanted someone – basically the gist of the conversation I overheard was that he wanted someone from the union, from Port Melbourne to come down and address the boys about the site money and to speak with management about it also.
110 On 14 February, Mr Fong commenced work at 6:00 am. Mr Fong said that he was on a break in the lunchroom when Mr Cicciarelli entered and “we all started talking about what had happened in meetings with management the previous day”.
[Mr Cicciarelli] reported that management wouldn’t do anything about the site money and they didn’t want to negotiate. As usual, [Mr Cicciarelli] asked for feedback from the floor on what everyone wanted to do. Almost everyone became upset and angry and wanted to stop work until management listened to them. [Mr Cicciarelli] did not suggest the members stop work but the suggestion came from a number of members. There was then an impromptu show of hands on the floor and we all raised our hands to go out on strike.
111 In cross-examination, Mr Fong said that, when Mr Cicciarelli came into the lunchroom on 14 February 2009, “there was enough blokes in the room and then he just gave an informal – just to give a heads up as to what happened at the meeting previously”. In Mr Fong’s words, “[t]his was no different from any other meeting previously he held because he always gave feedback to the boys”.
112 Mr Fong subsequently received a letter from Qantas dated 25 February 2009, advising of the investigation and the consequences of engaging in unlawful industrial action. Mr Fong was interviewed as part of the investigation on 26 February 2009. In cross-examination, Mr Fong accepted that the contemporaneous notes made by Mr Smith and Mr Brooke at the 26 February interview were generally correct (although Mr Fong maintained that their notes mistakenly omitted that he told them that Mr Cicciarelli had said that the matters in dispute ought to be taken to the Commission). Mr Fong’s evidence in this latter regard was inconsistent with that of Mr Cicciarelli and not supported by any other witness. I conclude that Mr Fong, though generally a credible witness, was not reliable in every regard, including this last-mentioned matter.
Chris Briggs
113 Mr Briggs was part of the Ramp staff on 13 and 14 February 2009 and at work on those days. He was a TWU member and, at the relevant time, a co-delegate.
114 According to Mr Briggs, who was also a generally credible and reliable witness, Mr Briggs spoke to Mr Cicciarelli briefly on 13 February 2009 about the outcome of the meeting with management that day, and Mr Cicciarelli told him “he would explain it to everyone the next day”. Mr Briggs commenced work early the next morning and was in the lunchroom when Mr Cicciarelli entered “and said he was going to tell everyone what happened in the meeting from the previous day”. Mr Briggs said that when Mr Cicciarelli began his report back, Mr Cicciarelli stood out front and Mr Briggs stood beside him. In cross-examination, Mr Briggs denied that the time of Mr Cicciarelli’s report back had been planned, although he agreed that he would have mentioned to people that Mr Cicciarelli would make a report back that Saturday at some time.
115 In his outline, Mr Briggs said:
The members were upset by management’s response and many people were being very vocal about this and some were yelling out. Members were saying things like that’s it, we’ve had enough, let’s stop. The members decided they wanted to stop working and [Mr Cicciarelli] and I made sure that this is what they wanted. They confirmed they wanted to stop work over the unresolved issues and we told them we would then pass this on to management. The decision or suggestion to stop work did not come from [Mr Cicciarelli].
116 When asked at trial what happened, Mr Briggs said:
Lui said these are the issues. … [T]he part timers ones came out first and they got very upset and then full timers started saying what about ours? What is happening with our site money? And we got to that. And then they went off as well and said we have all had enough. … [T]he whole room sort of erupted.
117 In cross-examination, Mr Briggs said that he and Mr Cicciarelli said, in the course of the 14 February report back:
“Is this really – this is what youse want to do?” We kept saying it a couple of times and they all kept yelling, “Yes, this is what we want to do,” and the hands all, sort of, went up. We didn’t really actually call a vote, we just said, “is this what you want to do?” and everyone said, “Yes, we’ve had enough,” put their hands up and that was the majority there with their hands up.
Mr Briggs was “absolutely positive” that they had both said to the people in the lunchroom, “are you really sure this is what you all want to do?”. The majority indicated that they wanted to stop work.
118 Mr Briggs stated that, after he and Mr Cicciarelli had informed the Business Services Manager of the decision to stop work, they returned to the lunchroom and tried to contact the TWU. According to Mr Briggs, when Mr Brooke came in to speak with Mr Cicciarelli, Mr Brooke said “he better be careful, Sydney are not happy with this, it’s costing them a lot of money”. Mr Brooke told Mr Cicciarelli that he “was on his own”.
119 Mr Briggs attended a meeting with Qantas management on 18 February 2009, at which he was given a letter dated 18 February 2009 alleging serious misconduct. He attended interviews on 19 and 20 February and 2, 4 and 6 March 2009. He also provided a written response to Qantas’ allegations dated 23 February 2009. Ultimately, at the 6 March interview, Qantas gave him a letter dated 6 March 2009, stating that it considered his conduct to be unacceptable and in breach of the terms and conditions of his employment. Mr Briggs was given a written warning, a copy of which was placed on his file.
Tony Cassar, Ashneel Kumar and Gary Agresta
120 The outlines of evidence of Messrs Cassar, Kumar and Agresta were in evidence, although none of them were cross-examined. At the relevant time, Mr Cassar and Mr Kumar were part of the Ramp staff and also TWU members. Mr Agresta was employed in the Baggage Room with Mr Inguanti and he was also a TWU member.
121 Mr Cassar described how Mr Cicciarelli would regularly keep the members on the Ramp informed of meetings with Qantas. Mr Agresta described how Mr Inguanti would regularly keep the members in the Baggage Room informed of meetings with Qantas.
122 Mr Kumar stated that, when he had finished a task on a flight on 14 February 2009, he went into the lunchroom. Mr Kumar said that he noticed a “lot of people … were standing around and [Mr Cicciarelli] was explaining what had happened in meetings he had had with Qantas management about site allowance and the part-time roster”. Mr Kumar continued:
Many of the members were upset. [Mr Cicciarelli] asked what the members wanted him to do next and said that it was up to us. Some of the members [were] saying “let’s walk”. … When I returned to the lunchroom, I asked some of the guys what was going on, and they told me “we’re off”.
123 Mr Agresta said that, on 14 February 2009, he had been rostered to commence at 10:30 or 11:00 am. Mr Agresta continued:
When I arrived at work, I passed [Mr Inguanti] who was leaving through the gates. I asked him what was happening and he explained to me that the ramp had stopped work and a vote was taken by the baggage room to see whether they wanted to go out in support of the ramp. He said that the result was that the majority wanted to keep working and so everyone returned to work. I asked [Mr Inguanti] if the vote could be taken again, as I and some other members were starting work and if we voted again, the result would probably change to stopping work. [Mr Inguanti] said no, the vote has already been taken, it’s been counted and it’s official.
After I started work, I saw that there were people who were not from Melbourne port working on the tarmac, filling in on the ramp. Managers and HR were also working on the ramp. I saw them driving tugs bringing in flights. There was some confusion with the baggage room workers because we did not know whether these people had licences to work on the tarmac.
Mr Peter Smith – Qantas Industrial Relations Manager
124 At the time of trial, Mr Smith, an experienced industrial relations practitioner, was employed by Qantas as Manager of Industrial Relations based in Sydney. As at February 2009, his responsibilities included “providing industrial relations … representation services and advice”, particularly in the areas of airports, catering and freight. Mr Smith did not have a reporting relationship with the airport manager, Mr Hall, who was the ultimate decision-maker in this case.
125 Mr Smith’s evidence was that he had dealt with Mr Cicciarelli (in company with Mr Mader and Mr Mancuso) before February 2009, particularly in relation to resolving a part-time to full-time conversion dispute. Mr Smith had also had previous dealings with Mr Inguanti in connection with issues at Melbourne airport.
126 Mr Smith’s evidence was that he attended the meeting in Melbourne on 13 February 2009 at the request of Mr Mader, who also led the meeting. Mr Smith said that various issues were discussed, including the disability allowance and meal breaks issues. Mr Smith recalled that Mr Mader and Mr Cicciarelli spoke to the issue of the disability allowance and that, in this connection, he (Mr Smith) had discussed Enterprise Agreement 7 and had spoken about the outcome of a similar claim in New South Wales. Mr Smith stated that, in this discussion, “there were tensions between Mr Cicciarelli and Mr Mader” who, at one point, had turned to Mr Cicciarelli and told him to shut up. At the conclusion of the meeting, Mr Smith said that he understood there would be a further meeting, although no date was then set.
127 According to Mr Smith, after he returned to Sydney, he received a telephone call at about 8:30 pm that evening from an industrial relations advisor about the possibility of a work stoppage on the Melbourne Ramp the next day. Mr Smith subsequently telephoned various people, including Mr Hall, who was the Head of Airports, and Qantas’ solicitors. In cross-examination, Mr Smith said that, after the conversation with Mr Hall, he knew that there would be a contingency deployed – that is, a potential replacement workforce to hold the operation if the Ramp employees withdrew.
128 Mr Smith said there was a telephone hook-up amongst Qantas management on the morning of 14 February; and that, when he became aware at about 10 am that there was industrial action on the Ramp in Melbourne, he contacted the airline’s solicitors. Mr Smith said that his subsequent attempts to contact the TWU’s Mr Mancuso and Mr Mader were unsuccessful. After another telephone hook-up around midday, Mr Smith boarded a plane for Melbourne and, on arrival, went directly to the Commission. In the meantime, Qantas had flown 40 to 45 people from Sydney to the Melbourne airport (arriving about 7:30 am) as the contingency.
129 Mr Smith’s evidence was that, on Monday or Tuesday of the following week, he was required to go to Melbourne to lead the investigation into the cause of the industrial action and the appropriate company response. Mr Smith was assisted by Ms Corrente and Mr Brooke. Ms Corrente attended meetings and took notes, and instructed lawyers and the like. Mr Brooke participated in various meetings and kept notes and, according to Mr Smith, provided practical operational information.
130 On 18 February 2009, Mr Smith met with Messrs Cicciarelli, Inguanti and Storen, gave them the letters of allegation, and informed them of the initial decision to suspend them. Also on 18 February 2009, Mr Smith met with Mr Mader and Mr Mancuso from the TWU, who informed him that the TWU would represent Mr Inguanti and Mr Storen but that Mr Cicciarelli was considering his position. According to Mr Smith, Mr Mancuso advised him the next day that Mr Cicciarelli would not be represented by the TWU and, some time later, that Mr Inguanti had also decided to be represented by the same solicitor as Mr Cicciarelli.
131 Mr Smith, along with Ms Corrente and/or Mr Brooke, identified other employees (Messrs Sarmo, Briggs, and Fischer) who had “potentially done more than simply participate in the industrial action”. These employees were also given letters of allegation, initially stood down, and interviewed. Mr Smith noted that each responded in writing and at their interviews. Mr Smith (and Ms Corrente and Mr Brooke: see below) kept contemporaneous notes of the interviews with employees.
132 Ms Corrente and the company’s lawyers prepared an interview script for Mr Smith to use in interviewing Mr Inguanti (and Mr Cicciarelli) on 20 February 2009. Mr Smith’s evidence was that he commenced by “walking through the interview script, in an endeavour to get a response to the allegations”. Mr Smith said of this 20 February interview:
[I]t just didn’t get very far at all. Mr Inguanti’s solicitor made a number of points around … procedural fairness type issues, and we didn’t receive a substantive response to … the allegations.
133 So far as Mr Cicciarelli’s interview on this occasion was concerned, Mr Smith said:
Again, Mr Cicciarelli was represented by a solicitor …. And then the meeting followed the same pattern. [The solicitor] made a number of points around procedural fairness, natural justice type issues, then made a generic statement essentially denying the allegations but they declined to give an account of events about what happened on the Friday and the Saturday.
134 On 20 February and subsequently, Mr Smith, with Ms Corrente and/or Mr Brooke, interviewed Mr Storen, Mr Sarmo, Mr Fischer and Mr Briggs – in each case in the presence of TWU representatives. Mr Smith stated that he worked from an interview script and that these employees provided an account of their actions on 14 February 2009. These employees also provided written responses.
135 In the course of the following couple of days, Mr Smith and others from Qantas management also interviewed numerous other Ramp employees, in the main in accordance with a script that Mr Smith prepared. Other local managers conducted interviews of the afternoon shift employees, who were not involved in the morning’s decision to stop work.
136 Mr Smith prepared a record of interview in the case of Leigh Giles and Lindsay Parsons, both from the Baggage Room, because, as he said in evidence, “[t]hey were particularly important. I thought they gave an account of events contrary to what Mr Inguanti had told me.” Mr Smith conceded in cross-examination that, besides Mr Inguanti, he had interviewed only Messrs Giles and Parsons from the Baggage Room, saying “[i]t didn’t occur to [him] as being necessary” to interview others.
137 In evidence in chief, Mr Smith said that by Friday, 27 February 2009:
I was able to report to Mr Hall and senior management and also in communication with our lawyers, that … findings could be made in relation to Mr Inguanti, essentially the account that he gave us of his involvement on the day, being Saturday 14 February, was not supported by the investigation in the accounts of other employees, and … other information available.
138 When asked about the findings he made about Mr Inguanti’s attendance on 14 February, Mr Smith said:
I found that Mr Inguanti wasn’t rostered to work on Saturday, that he attended work for the purpose of organising and inciting industrial action. He called a meeting in the bag room and conducted a vote about taking industrial action.
When asked about Mr Inguanti’s OH&S reasons, Mr Smith said:
I formed the view that that wasn’t true. There were – in particular, Mr Inguanti, as I understood it, was saying to the company that he received a phone call from a person who he declined to identify, that there was some issue around contingency labour operating equipment. My view is that that didn’t fit the chronology of events. That is, Mr Inguanti turned up to work at a time earlier, prior to the contingency being deployed, so that his account and the reason for him turning up to work (a) wasn’t corroborated by the person who made the call, he wouldn’t give the name, and [(b)] didn’t fit into the chronology of events. There was no contingency on the tarmac to call him to report at that time. And so I formed the view that there was no OH&S purpose to him being in the bag room at the time that he conducted the meeting.
(In cross-examination, Mr Smith agreed that the use of untrained people on the Melbourne Ramp would pose potential OH&S issues and would be in breach of the Ramp Services Manual.)
139 Mr Smith went on to say:
The view that I had formed on the Saturday … and then reaffirmed throughout the … investigation was that the stoppage was not a TWU inspired or organised event.
Mr Smith acknowledged that there had been no industrial action in the Baggage Room, but added that “the findings of serious misconduct were his conducting the meeting with a view to getting that group of workers to go out”.
140 Mr Smith’s evidence was that he spoke to Mr Hall on 27 February 2009, to update him on the progress of the investigation. Mr Smith stated that he was told on Monday morning, 2 March 2009, that Mr Hall had decided to terminate Mr Inguanti’s employment. According to Mr Smith, Mr Hall was given Mr Inguanti’s draft letter of termination (as prepared by the company’s lawyers on Mr Smith’s instructions) on Monday, 2 March or early Tuesday, 3 March 2009.
141 Mr Smith subsequently conducted further interviews on 4 March 2009 with Mr Fischer, Mr Briggs, and Mr Cicciarelli in order to investigate whether Mr Cicciarelli and others had in fact planned the industrial action on 14 February 2009. In particular, Mr Smith questioned Mr Cicciarelli about his phone call with Mr Mancuso on 13 February after the meeting. Mr Smith’s notes record “Long silences, hesitant, evasive when answering questions about this call”. When asked about this notation, Mr Smith said in evidence:
… I was trying to press Mr Cicciarelli to tell us about that phone call. He was unforthcoming about it. He basically wouldn’t disclose the contents of the conversation, beyond saying that it was very heavy and then I asked him about the type of things they talked about … And when I kept going back to him and pressing him … Lui would just go silent. He would just freeze. I would sit there in silence, just let that stay there and he just – I took him to be someone that just did not want to talk about that conversation.
142 Mr Smith’s evidence was that after this interview he formed the view that Mr Cicciarelli “on the Friday the 13th, was involved in organising and inciting potential … industrial action for the Saturday, and I also formed the view that on the Saturday he conducted the stop- the meeting with … a view to organising and inciting industrial action”. Mr Smith went on to say:
Mr Cicciarelli conducted a report back to employees in the lunch room, in a provocative way. He reported back on a part time to full time conversion issue, which he knew was an extremely hot issue amongst some of the employees. He did it in a provocative way, using the language of the ramp manager … “reneging on a deal”, which … is inflammatory language in an industrial context; that he failed to indicate that that matter hadn’t been discussed at the meeting that I [at]tended the day before, on the Friday. He reported back about the meal breaks and the disability allowance in an incomplete and negative way, failed to indicate that … the work and the process that had been undertaken to try and address and resolve those issues that we were working through with the TWU at the meeting
[M]y findings were generally that as the … reaction in the room heated up, which he would have or should have known it would as a result of that type of report back, he failed to say any of the things that you would ordinarily do to try and manage or deal with a meeting of that nature. He failed to indicate that the TWU were … involved in the process and things were to happen. He failed to alert employees that there was a dispute settlement procedure that could be followed. As the temperature lifted in the room, people became more upset. He essentially threw the issue to the floor, saying, “Well what do you want to do?” That is not a way to control or steer that sort of a meeting. That’s the way that an industrial person would allow a meeting to blow up and go in a volatile direction. He failed to indicate to the employees whilst they were grappling with this issue that any industrial action would be unlawful, failed to indicate that their pay would be withheld. He failed to give the employees any other alternative to resolve their grievances, created an environment where the employees were likely, and they did, to choose to take industrial action.
… I found that Mr Cicciarelli did encourage and incite others to take industrial action. Outside of the meeting we identified at least two individuals who he had effectively encouraged or directed to take industrial action.
… I understand from Mr Doug Brooke that the employees were directed to return to work as normal, without disruption, and that Mr Cicciarelli, amongst others, declined to obey that direction.
… I thought significant aspects of his account weren’t believable. Firstly, … his account of the conversation with Mancuso the night before I found was incomplete and not believable. His account that he didn’t conduct a vote and that there was a show of hands was not accepted by me. The weight of evidence that I was able to identify indicated to me that it was Lui that threw the matter to the floor and effectively invited the vote.
… I had formed the view that the TWU had not encouraged or incited the industrial action.
… [N]or authorised it.
143 Having formed these views, Mr Smith consulted with senior management and the company’s lawyers. Mr Smith stated that he was informed that Mr Hall would be the decision-maker and, in consequence, he reported to Mr Hall “on the findings”. He said that he met with Mr Hall at Melbourne airport on 5 March 2009 and gave him a bundle of documents containing the allegation and the response letters (and a “draft chronology”, but see below [167]). Mr Smith’s evidence was that he became aware of Mr Hall’s decision later on 5 March 2009; and that Mr Cicciarelli’s letter of termination was prepared by Qantas’ lawyers on instruction from him “based on the findings of the investigation”. The letter was then provided to Mr Hall.
144 In cross-examination, Mr Smith’s evidence was that the 19 findings set out in the letter dated 6 March 2009 to Mr Cicciarelli were the findings he had made in the inquiry and were the matters relied on by Qantas to terminate his employment. In cross-examination, Mr Smith relied on two matters to support his finding that Mr Cicciarelli made a premeditated decision to organise a work stoppage, namely: (1) Mr Fischer’s evidence about the conversation that he overheard between Mr Cicciarelli and Mr Mancuso (although Mr Smith agreed that Mr Fischer did not tell him that he had heard Mr Cicciarelli say that he was going to organise a stop work meeting or that there would be a stop work meeting); and (2) Mr Cicciarelli’s failure to give a plausible account of that conversation.
145 In cross-examination, Mr Smith’s evidence was that the findings set out in the letter of 2 March 2009 to Mr Inguanti were findings he had made in the inquiry and were relied on by Qantas to terminate his employment. Mr Smith also said that, in making the final decisions, a distinction was drawn between those who participated in the industrial action of 14 February and those who organised and incited such action; and that Mr Hall was the decision-maker with regard to the later group and Mr Brooke was the decision-maker with regard to the other employees. Mr Smith said in re-examination that he found that Mr Inguanti, Mr Cicciarelli and, in a limited respect, Mr Briggs had incited the action.
146 Mr Smith’s evidence in cross-examination was that, whilst he had reported in various conversations to senior management, he had not prepared a report in accordance with clause 4.6(f)(vii) of the Employee Misconduct and Disciplinary Policy. His findings were, so he said, documented in correspondence, and in the draft chronology given to Mr Hall.
147 In cross-examination, Mr Smith acknowledged that Mr Brooke had told him that, from time to time, he had difficulties in his relationship with the delegates in his area of responsibility, including Mr Cicciarelli and Mr Inguanti. In relation to them, Mr Brooke had told him, “things wouldn’t be resolved”. According to Mr Smith, Mr Brooke had “concerns with managing the relationship with Michael [Inguanti]”, in that “[h]e had a measure of frustration in trying to manage change and to get things done”.
148 Also in cross-examination, Mr Smith agreed that he had told Mr Brooke (it appeared shortly after 10 am on 14 February) that the industrial action was not inspired by the TWU but by the delegates. This is confirmed by Mr Brooke’s contemporaneous note. Further, the three employees who were initially stood down were delegates – Messrs Inguanti, Cicciarelli and Storen. Mr Smith also acknowledged in cross-examination that he discussed the progress of the investigation and provisional findings with other managers, including Mr Brooke.
149 In cross-examination, Mr Smith expressed the view that delegates should know how to handle meetings such as that on 14 February because of their experience in those sorts of meetings. This was consistent with some of his questions at the employees’ interviews. For example, in an interview with Mr Briggs, Mr Smith had put to him that as a delegate he should have known how to handle a meeting. Mr Smith agreed that he had a particular view about delegates and their obligations to deal with meetings because of their leadership position. Mr Smith also agreed that, in interviewing Mr Inguanti and Mr Cicciarrelli, he had asked questions (based on a prepared script) about their delegate status.
150 Mr Smith also agreed that because Mr Cicciarelli was in a leadership position he should have explained: (1) the dispute resolution procedure to the employees during the report back on 14 February; and that (2) the work stoppage would result in employees’ pay being docked. Mr Smith acknowledged that he was critical of Mr Cicciarelli for not referring the matter to the Commission and for not mentioning that the stoppage was unlawful, since he was in a leadership position. He denied, however, that he had “some heightened expectation about Mr Cicciarelli”.
151 As stated hereafter, Mr Smith was an honest and reliable witness, whose evidence I accepted.
John Hall – Head of Airports
152 Mr Hall was Head of Airports for Victoria, Tasmania, South Australia and the Northern Territory and reported to the Executive Manager of Airports (Brad Moore). He made the decision to terminate the employment of Messrs Cicciarelli and Inguanti.
153 The evidence showed that, from time to time, Mr Hall had found Mr Cicciarelli and Mr Inguanti troublesome delegates. In cross-examination, Mr Hall readily confirmed that supervisors, including Mr Brooke, had experienced difficulties with Mr Cicciarelli and Mr Inguanti in that they “were tired of going over and over the same issues”; and that Mr Brooke and Allan Jackson (another manager) had described them as troublemakers, because they were persistent about issues.
154 So far as Mr Hall’s relationship with Mr Cicciarelli was concerned, the applicants relied particularly on an email sent by Mr Hall on 4 August 2008. The significance of this email depends on the context in which it was written. When in Sydney for the negotiation of Enterprise Agreement 7, Mr Cicciarelli had lobbied Sydney management about the introduction of a proposed 10 hour-roster. Brigitte Fairbanks, a Sydney-based Qantas Human Resources Manager, had emailed Mr Hall about the possibility of a further meeting with Mr Cicciarelli to discuss the issue. By email dated 4 August 2008, Mr Hall had responded:
Brigitte,
We have done all this. Even had Wayne Mader and Peter Mancuso involved in the process. It doesn’t really surprise me that the message does not “resonate” with them when we are not giving them what they wanted.
We are also working very hard here to undermine Cicciarelli’s credibility with the workforce and the TWU. Having yet another meeting on this issue would only serve to strengthen his position.
Recently we beat him on a false LTI claim which was deemed to be the result of IR action by Dr Isles.
Have a safe day!
John
The email chain showed that Mr Brooke too was concerned that Ms Fairbanks’ proposal would undermine the Melbourne management’s position with regard to the roster issue.
155 In cross-examination on this email chain, Mr Hall agreed that he and the Melbourne management staff had been working hard at this time to undermine Mr Cicciarelli’s credibility with the workforce, by communicating with the workforce directly on the roster issue. This was because, so Mr Hall said, Mr Cicciarelli was “telling a different story to what we agreed”. Mr Hall’s evidence was that he wanted “[t]o get the facts around the roster issue to the workforce”. When asked why he had written to Ms Fairbanks in this way, Mr Hall said that he was “trying to tell her to go away”. Mr Hall continued:
As much as we said to Mr Cicciarelli that we didn’t like that option, as much as we put numbers and facts on the table as to why we didn’t like that option, he continued to talk to the rest of the workforce about his roster and how he was going to get it in. And it seemed that even when the union were telling him that it wasn’t going to happen, he continued to talk it through. So my point there was we were trying to get direct communication with the workforce to try and tell them what the hell was going on rather than what seemed to be an ongoing distorted view of our position.
I accept Mr Hall’s explanation. When considered in context, the 4 August 2008 email and the email chain indicate that, whilst the Melbourne management considered that Mr Cicciarelli was not making accurate reports to the workforce, management’s strategy was that of direct communication. This would indicate that, whilst Mr Cicciarelli had in the past created some difficulties for management, management had sought to meet them in an appropriate way.
156 Mr Hall had not attended the 13 February meeting. He was in Newcastle that evening when he first heard from Mr Moore that there might be a stoppage in Melbourne on 14 February. At Mr Moore’s direction, he arranged for a contingency staff to come down to Melbourne to carry out operations in the event of industrial disruption, although he said in cross-examination that he “didn’t believe it was going to happen”. When advised by Mr Brooke on the Saturday that the Ramp staff had stopped work, he telephoned Mr Moore and spent the day at home in and out of teleconference. Mr Hall’s evidence was that the stoppage had a significant adverse effect on Qantas and its customers, and cost the company a lot of money. Mr Hall also said in cross-examination that he had no idea on the morning of Saturday, 14 February whether the stoppage was TWU-inspired.
157 On Monday, 16 February 2009, Mr Hall became involved in assessing the consequences of the stoppage and how the stoppage might be investigated. Mr Hall conceded in cross-examination that he knew at the time that the three employees stood down on 16 February were delegates but said “they appeared to be the people that had instigated the activity”. Further, when Mr Hall addressed the employees in the Ramp lunchroom on 18 February, he told them that the delegates had been stood down.
158 Mr Hall’s evidence was that the investigation led by Mr Smith was conducted under the Qantas Standards of Conduct Policy. Mr Hall met Mr Smith briefly, for about 20 minutes, on Friday, 27 February, when Mr Smith told him about some aspects of the investigation and, in particular, Mr Inguanti’s responses to the allegations against him. Mr Hall said in evidence:
I believe the discussion was along the line of confirming that … Mr Inguanti had come in to work on the Saturday when he was rostered off, that he had said he had come in over a safety issue, that he had been phoned by staff about a safety issue. The facts, at the time, indicated that when he had been called there could not have been a – such a safety issue happening. He told me that, he believed that Michael attempted to hold a vote of the baggage room staff to stop work and they were the main findings of the investigation.
Mr Hall’s view was that Mr Smith had provided an oral report, with recommendations – to make a decision. Mr Hall accepted Mr Smith’s report. By that time, according to Mr Hall, Mr Mancuso and Mr Mader had informed him that they were not involved in the events of 14 February.
159 In cross-examination, Mr Hall confirmed that he got his “final facts” regarding Mr Inguanti (and Mr Cicciarelli) from Mr Smith. Save for the four Ramp employees he interviewed on 25 February, Mr Hall did not see the statements made by the other employees or notes of interview made by Qantas managers (although he had seen the applicants’ allegation letters and responses, as well as the written responses of some other employees who later received warnings).
160 Mr Hall, Mr Brooke and Ms Corrente met with Mr Inguanti on Monday, 2 March 2009. When asked the purpose of this meeting, Mr Hall said:
I believe by that stage we had formed the view that we had asked him the questions over – about the incident a number of times. We had received some answers, [but] there were some questions we received no answers. We decided to put it to him one more time that he had the opportunity to tell us what he had done, who he had contacted, who had contacted him, etcetera, which we did at that meeting.
161 At the meeting, a response was sought from Mr Inguanti to the allegations against him. In that meeting, Mr Hall decided the outcome of the investigation with respect to Mr Inguanti. Mr Hall’s evidence was:
I had had a chance to review all of the facts and the outcome of the investigation with respect to Mr Inguanti and … I had reached a point where if we were not going to get any further answers or any further cooperation, there was no point in going over and over it again and we were at the point where we had to move and I decided that dismissal was appropriate.
162 In cross-examination, Mr Hall said that, in dismissing Mr Inguanti, he relied on the findings later set out in Mr Inguanti’s letter of termination and the fact that “the story” did not add up. When challenged about his decision to dismiss a delegate and not the other employees involved in the stoppage, Mr Hall observed that the other employees “didn’t try and take a vote to stop work”.
163 Mr Hall found out the results of the investigation of Mr Cicciarelli a few days later, on 5 March 2009, when he met again with Mr Smith. Mr Hall said:
[Mr Smith] ran through a number of points about the stoppage that had occurred on the Saturday, some things that had supported the notion that it was pre-meditated. He talked about some of the people who were involved. He talked about people being called in to the lunchroom to hold a vote. He just gave me an outline of a number of those aspects of the investigation.
[H]e provided me with a copy of the … allegations that had been put to Mr Cicciarelli and Mr Cicciarelli’s response to those documents which I had already seen along the way. But I had a copy of those plus his verbal advice that he had given me in the meeting.
164 According to Mr Hall’s contemporaneous notes, Mr Smith told him that: (1) “[a] small number of people voted to stop work and then others gathered in the lunch room”; (2) the “stoppage was premeditated on Friday night following discussions with part-timers”; (3) Mr Cicciarelli made “no effort to avert the action and no effort to stop the action; and (4) Mr Cicciarelli “told employees to stop work and go to the lunch room”. Mr Hall’s evidence was that “Peter [Smith] said that on the basis of all that I have given you, you need to make a decision now”. Mr Hall said that, at the same time, Mr Smith advised him of the risks to be taken into account, including that “Mr Cicciarelli may complain that he is being singled out as a delegate. Therefore, I need to focus on the activities of the day”. Mr Hall substantially repeated this evidence in cross-examination, saying that he “had been told … that a small number of employees met and decided to have a stoppage. Then a whole lot of other employees came in and – without knowing what was going on. There was a lot of heated discussion.” When challenged on his decision with regard to Mr Cicciarelli, Mr Hall said, “[h]e was standing out the front inciting it”.
165 According to Mr Hall, after talking with Mr Smith, Mr Hall
… decided that it was a very serious offence. It had inconvenienced a lot of people. It had put our – the company and our operation in jeopardy, put the relation of the customer airlines at jeopardy. We had a situation where we had a number of our employees who were – we weren’t sure what we were going to do with them. We may have chosen to sanction individuals, we hadn’t made up our mind about that at the time and I thought that taking all that into account, the premeditation, the fact that nothing was done on the day to follow the correct procedures to [alleviate] the situation. I decided that I would go through with a dismissal.
166 Mr Hall used a draft of what was to become Mr Cicciarelli’s termination letter in his interview with Mr Cicciarelli on 5 March 2009. By this time, Mr Hall understood that Mr Cicciarelli’s conduct had not been supported by the TWU. Mr Hall took the view that the other employees who had been stood down were “not at the core on the incident” and would not be dismissed.
167 When he made his decision, Mr Hall said that he did not have the draft chronology to which Mr Smith referred in his evidence (see [143]), but he did have the letters of allegation and Mr Cicciarelli’s written responses. Mr Hall’s evidence was that he relied on all the matters set out in Mr Cicciarelli’s termination letter – although Mr Smith had not specifically raised a number of matters with him in his oral briefing.
168 In cross-examination, Mr Hall readily acknowledged that delegates held leadership positions in the workplace and that he would expect delegates to encourage union members to comply with agreed disputes procedures. In particular, Mr Hall said “[a]s delegates they’ve got some obligations to represent … people to feed back to … people to bring issues to management, to take issues back”; and he agreed that they have “different obligations … to ensure … dispute resolution processes are complied with”.
169 Mr Hall also said that, in his view, Mr Cicciarelli “should have done better because he was in a leadership position as a delegate”. Mr Hall also said that, as a delegate, Mr Inguanti was “to keep the peace and assure people that he can take it to the next step in the dispute procedure which might mean discussion with management, it might mean putting it in the Industrial Relations Commission”.
170 Mr Hall was an honest and generally reliable witness, although the passage of time had affected his recollection of certain details. For example, Mr Hall’s evidence that Mr Moore mentioned 10 am as the time for the rumoured stoppage was inconsistent with other aspects of his evidence. Further, this particular item of evidence was not borne out in the evidence of Mr Smith or Mr Brooke.
Connie Corrente – Manager, People Relations
171 Ms Corrente was the Manager, People Relations, Victoria and Tasmania for Airports. Amongst other things, she was responsible for the performance management, employee engagement, employee development and local industrial relations issues at Melbourne airport. In cross-examination, Ms Corrente’s evidence was that she did not think Mr Cicciarelli and Mr Inguanti were difficult.
172 Ms Corrente, who was present at the meeting on 13 February 2009, gave evidence that, at one point, Mr Mader and Mr Cicciarelli had a difference of opinion, with Mr Mader asking Mr Cicciarelli to keep quiet and, after a break in the meeting, there was “some conflict” between them.
173 According to Ms Corrente, she received a phone call from Mr Hall on the evening of 13 February to say that there was a rumour that there could be industrial action the next day and to ask her to make herself available on the Saturday.
174 Ms Corrente’s evidence principally concerned the period after management had been advised of the work stoppage. After receiving this news, Ms Corrente said that she and Mr Brooke had gone to the Ramp lunchroom, where Mr Brooke advised about 40 employees present that they needed to return to work within five minutes, or their pay would be docked and the work stoppage seen as industrial action. According to Ms Corrente, when she and Mr Brooke left the lunchroom, they walked towards the Baggage Room, where they met Mr Inguanti. Ms Corrente’s evidence was that, in answer to a question from Mr Brooke:
Mr Inguanti said that he had a meeting with the guys in the bag room and that they were going to meet back again in about half an hour’s time. And whether to go out in support of the Ramp guys.
… He then said we didn’t have any – Doug Brooke and myself didn’t have any high [visibility] vests on and ... if we could put those on and we said yes, we acknowledge that.
Ms Corrente’s evidence was that Mr Inguanti had said that he would inform Mr Brooke of the outcome of the subsequent Baggage Room meeting, but that Mr Inguanti did not mention any other OH&S issues. Ms Corrente’s evidence was substantially corroborated by the notes that she made at the time.
175 Ms Corrente said that she and Mr Brooke visited the Ramp lunchroom again later that morning, where they spoke to Mr Cicciarelli. In this conversation, Mr Ciciarelli said that he was waiting for a TWU official. After this conversation, she and Mr Brooke went up to the canteen and, on the way, they met Mr Inguanti for the second time – just in front of the arrivals hall. When Mr Brooke asked him to leave the premises, Mr Inguanti said that “it was a public place and he had no right to say that” and that Mr Brooke was harassing him. According to Ms Corrente, Mr Brooke responded by saying “you have no reason to be at work here today. You need to leave the premises”.
176 Mr Corrente said that she spoke with Mr Inguanti a third time that day, after he left a message for her on her telephone, saying:
The guys had contacted him as [they were] coming in too close to the laterals in the bag room. And that that was an issue. And that he had – under OH&S he had to be admitted onto the premises.
Ms Corrente said that she contacted Mr Inguanti and told him that “he was allowed to enter the premises with an escort but he was only to talk about OH&S issues and that he would be accompanied by a member of management”. Ms Corrente was an honest and reliable witness, whose evidence I accepted.
Douglas Brooke – Ramp Services Manager
177 Mr Brooke was the Ramp Services Manager at the relevant time and reported to Mr Hall.
178 In answer to Mr Cicciarelli’s claim that Mr Brooke discriminated against him by making him a ‘floater’, Mr Brooke explained in his evidence that he had created teams of four in order that the leading hands might work consistently with the same people, and this change had resulted in a number of unallocated employees. Since Mr Cicciarelli “as a delegate … required substantial time off work to attend [to] his duties as delegate”, Mr Brooke allocated him the status of floater in order to meet both Qantas’ needs and those of Mr Cicciarelli. Mr Brooke said in cross-examination that he had spoken to Mr Cicciarelli on at least three occasions about the issue and on no occasion had Mr Cicciarelli objected to being made a floater.
179 Mr Brooke also said in cross-examination that he did not consider that Mr Cicciarelli and Mr Inguanti were excessively persistent in their demands or requests for meetings, although he conceded that, from time to time, he was frustrated in his dealings with Mr Cicciarelli and frequently had problems with them both. Mr Brooke said that, whilst he had no specific problems in the way Mr Inguanti carried out his duties as a delegate, he had difficulties “specifically with him in his discharging his OH&S duties”. Mr Brooke denied that he was ever intentionally dismissive of Mr Cicciarelli and Mr Inguanti. Mr Brooke accepted that he had expressed his frustration about the two men to Mr Hall, specifically in relation to the roster and disability allowance issues.
180 Referring to the email chain discussed earlier, counsel for the applicants put to Mr Brooke that he sought to undermine Mr Cicciarelli in his role as a delegate. Mr Brooke responded:
I think undermine is not the way I would put it. I became aware that Lui, when he fed back the outcomes of meetings to employees, would do so in an inaccurate way. And I was determined that employees ought to hear directly what I believed were the correct messages.
When asked whether he considered Mr Cicciarelli needed to be sidelined because he threatened to endanger his capacity to manage the Ramp, Mr Brooke responded that “[i]t was specifically around the issue of the 10 hour roster”. Mr Brooke added that he was frustrated with Sydney management giving attention to what was “essentially a decision in Melbourne”. I accept Mr Brooke’s explanation, which was consistent with that of Mr Hall: see further [155] above.
181 Mr Brooke gave evidence that, at a meeting with Mr Cicciarelli in early February 2009 on the part-time/full-time roster issue, he had said that he agreed only “to consider incorporating an element of seniority” in the process of converting part-time staff to full-time. When Mr Cicciarelli spoke to him about the issue ten days later, on 13 February 2009, Mr Brooke told him that he had “determined that it wasn’t feasible and we would be going ahead with the roster as … originally proposed”. Mr Brooke said that:
Lui seemed quite upset with that. He said that he would take that matter to Peter Mancuso and discuss it further with him.
In cross-examination, counsel for the applicants put to Mr Brooke that Mr Cicciarelli thought that he had agreed to the change, and Mr Brooke responded “[i]t wouldn’t surprise me, Mr Cicciarelli frequently interpreted things differently to me”.
182 Mr Brooke went on to say that Mr Mancuso of the TWU called him at home about 6:30 pm the same evening to discuss the part-time to relieving full-time issue. Later that evening, about 8:30 pm, Mr Moore (see [152]) called to inquire about the industrial situation in Melbourne. According to Mr Brooke, Mr Brooke replied “that we had had a meeting today that hadn’t really got us anywhere other than Lui seemed unhappy with the outcomes. I said that as far as I knew things were okay at work but I would check and call him back later”. According to Mr Brooke, Mr Hall later instructed him to make preparations for a work stoppage the next day.
183 Mr Brooke’s evidence was that he heard that the Ramp employees had stopped work about 10:15 am on the Saturday morning. After telephoning Mr Moore, at about 10:40 am, he went with Ms Corrente to the Ramp lunchroom in order to direct the employees back to work. Mr Brooke said that:
I got no response. The room was silent. People turned their … backs … to me. They were doing other things. I believe I asked whether there were any questions and no-one had any questions. So I was ignored.
184 In cross-examination, Mr Brooke said that he did not know what the issues were at that time. Also in cross-examination, Mr Brooke said that he had looked at the roster “specifically to check Lui Cicciarelli’s start and finish time, so that we had an idea of when … the window in which industrial action would be likely”. Mr Brooke believed that “Lui was … orchestrating something … That’s why we were there”.
185 Mr Brooke stated that he and Ms Corrente walked from the Ramp lunchroom to the Baggage Room, where they met Mr Inguanti. Mr Brooke gave the following account of this conversation:
Mr Inguanti first confronted us both, told us that we should be wearing our Hi Vis vests. I said that we would go and attend to that and put our Hi Vis vests on. I recall asking Mr Inguanti how things were. He said the guys were working normally “for now” and that he would be conducting another vote, “in about 20 minutes” is my recollection. It was a short conversation. We then moved away from there.
Mr Brooke said that Mr Inguanti raised no OH&S issue other than that about the vests. Mr Brooke did not recall saying to Mr Inguanti that he would “leave it up to” him, or words to that effect. Mr Brooke subsequently ascertained that Mr Inguanti was not on duty that day. When it was put to him in cross-examination that his account was improbable, Mr Brooke said “Mr Inguanti frequently threatened industrial action, and up until that point, it had never occurred”. Mr Brooke added that “[t]he reality of it was … I had a contingency in place. I’d reallocate my resources to ensure that we covered the important flights and the machine kept running”.
186 After he had established that Mr Inguanti was not rostered for work that day, Mr Brooke, accompanied by Ms Corrente, had a further conversation with Mr Inguanti. Mr Brooke described this conversation in the following terms:
I told him that he wasn’t rostered on, that he wasn’t required at work and that he should leave. Michael replied that he was in a public area, he didn’t need to leave, and then accused me of bullying and harassing him, intimidating him, and walked away.
… There was no discussion about OHS.
187 According to Mr Brooke, he and Ms Corrente subsequently visited the Ramp lunchroom a second time that morning after speaking with Mr Smith. This time he spoke specifically with Mr Cicciarelli. According to Mr Brooke, Mr Smith had instructed Mr Brooke to pass the messages to Mr Cicciarelli that “we didn’t believe this was a … stoppage supported by the TWU and that we would hold Lui directly accountable”. Mr Brooke agreed that Mr Smith also told him the stoppage was run by the delegates.
188 Mr Brooke also gave evidence that he assisted Mr Smith in the investigation. During the investigation, Mr Brooke created many notes, including notes written preparatory to Mr Fischer’s last interview. These notes recorded “want him to give us enough detail around C’elli to terminate him”. In this context, the applicants’ counsel put to him that “you thought that there was more that he should tell you so that you were able to arrive at a decision to dismiss Mr Cicciarelli?”. Mr Brooke replied:
Well, it wasn’t ever me that was going to arrive at that decision. … But my role was to establish the facts as best I could in assisting Mr Smith.
The applicants’ counsel also put to Mr Brooke that “you and [Mr Smith] drew conclusions about Mr Cicciarelli’s involvement and Mr Inguanti’s involvement”. Mr Brooke said:
… it always seemed very clear what Mr Inguanti had done, because … we knew where he was, and [t]hat he had come in and, … when he appeared at work, what it appeared would have happened. It wasn’t so clear with Mr Cicciarelli, and … I believe that’s why there was so many interviews conducted around the ramp.
189 Mr Brooke was a frank witness, especially about his relationship with Mr Cicciarelli and Mr Inguanti and his admitted difficulties with them – none of which could be described as particularly out of the ordinary in a workplace. I found him an honest and reliable witness, whose evidence I accepted in the main.
Dragan Koscak – Ramp leading hand
190 Mr Koscak was a leading hand on the Ramp and at work on 14 February 2009.
191 Mr Koscak’s evidence was that, at about 10:30 am on 14 February 2009, he walked to the office to get his next task and he saw Mr Cicciarelli and Mr Briggs. In answer to a question from Mr Cicciarelli, Mr Koscak said he had his load sheet, and either Mr Cicciarelli or Mr Briggs said to him “there is a meeting in the lunchroom”.
192 On 11 March 2009 Mr Koscak met with Mr Smith and Ms Corrente to give his recollection of events of 14 February and subsequently signed a written statement prepared by Qantas, which was relevantly the same as his evidence at trial. Mr Koscak was evidently a truthful witness.
Lindsay Parsons – Baggage Room leading hand
193 Mr Parsons was a leading hand in the Baggage Room and at work on 14 February 2009.
194 Mr Parsons said that Mr Inguanti came into the Baggage Room on Saturday morning and told him that he “wanted to have a talk with the boys and was going to call a meeting in the tea room”. Mr Parsons agreed. According to Mr Parsons:
Everybody went into the tea room so I followed them in. And [Mr Inguanti] was in there, explaining what was happening out on the Ramp because there was industrial action taking place. And he asked the boys to take a vote, whether we would join the guys on the Ramp or stay at work.
… [W]e had a show of hands. And it was nine people voted to support the blokes outside and 10 decided to continue working. So we continued working.
195 Mr Parsons could not recall OH&S issues being mentioned at that meeting, but he said that “[t]here was a time later on when one of the workers actually rang [Mr Inguanti] to tell him that they had problems with workers from other States coming into the baggage room”.
196 On 26 February 2009, Mr Parsons met with Mr Smith and subsequently signed the notes of interview prepared by Qantas. These notes included the following account of the meeting in the Baggage Room tea room:
During the course of the meeting Michael said ‘It’s up to you whether you stop work, I’ll support you. You can stop work or continue working and I’ll go back to my day off.’
…
Once the vote was counted, Michael said ‘I’ve done all I can do, you can go back to work.’
197 The applicants’ counsel put some questions in cross-examination of Mr Parsons and Mr Brooke designed to elicit that Mr Parsons had some disagreement with Mr Inguanti. Whether or not this was so, I found Mr Parsons to be an honest and reliable witness.
Craig Thomas – Manager
198 Mr Thomas was employed by Qantas. He was Manager Apron Operations Compliance, reporting to Mr Brooke. An outline of his evidence was admitted. He was not cross-examined. It is unnecessary to say more about his evidence.
FINDINGS OF FACT
199 The parties presented this case as essentially a dispute about the facts, to which the trial was almost entirely devoted. It is convenient to set out the Court’s factual findings at this stage, although, on the view that I prefer, these findings are largely irrelevant to the outcome of the application: see below.
Applicants’ involvement in industrial issues
200 Mr Cicciarelli and Mr Inguanti were both active and persistent advocates for industrial issues concerning the employees on the Ramp and in the Baggage Room. From time to time, their advocacy created difficulties for management, especially Mr Brooke, and led to disputes with management. At the relevant time, there were two issues of particular significance – a claim for a disability allowance and a claim for conversion of part-time employees to full time and the criteria that would be used in the conversion. It is unnecessary to set out the details and progress of the claims here, although evidence about them was given at trial. There was a suggestion at trial that Mr Cicciarelli had been singled out for adverse treatment. This suggestion was not made out.
201 In considering the evidence and the circumstances disclosed by the evidence, counsel for the applicants invited the Court to accept that the applicants were “uncomplicated men”. I do not consider this is an apt description. I accept, however, that the applicants performed relatively unskilled work and were not highly educated. Mr Cicciarelli, in particular, had limited educational attainments. At the same time, Mr Cicciarelli and Mr Inguanti were familiar with the Qantas workplace on the Ramp and in the Baggage Room and, broadly speaking, with the industrial constraints operating there.
Events on 13 February 2009
202 It is common ground that the meeting in Melbourne on 13 February 2009 was the catalyst, or part of the catalyst, for the work stoppage on 14 February 2009. The meeting was called at the request of Mr Mader (TWU Branch Secretary) to discuss a number of claims, some of which were of particular concern to Ramp and Baggage Room employees. The meeting was attended by numerous people, including Mr Mader, Mr Mancuso (a TWU organiser), Mr Smith, Ms Corrente, Mr Cicciarelli and Mr Inguanti. The TWU delegates had different expectations of the purpose and outcome of the meeting to the Qantas management staff. The delegates believed that this was to be a meeting to resolve all outstanding issues; management had no such expectation.
203 The witnesses were, however, generally in agreement about what happened at the meeting. During the meeting, there was evident disagreement between Mr Cicciarelli and Mr Mader, especially about the disability allowance and meal breaks issues. Mr Mader made it clear that he did not support Mr Cicciarelli with regard to the quantum of the claimed disability allowance and sided with Qantas on the meal breaks issue. Further, in the course of the meeting, Mr Mader spoke rudely to Mr Cicciarelli, telling him to “shut up”. None of the issues of concern to the Ramp and Baggage Room employees were resolved to Mr Cicciarelli’s satisfaction. The meeting concluded on the basis that there would be another meeting at a later unspecified date.
204 At the end of the meeting, both Mr Cicciarelli and Mr Inguanti were unhappy about the outcome and Mr Cicciarelli was particularly upset about Mr Mader’s treatment of him and the lack of TWU support. Mr Inguanti was also “very disappointed” with “the attitude and the professionalism” presented by Mr Mader and was “angry with the TWU”, rather than Qantas, because of what he saw as the union’s lack of support for the members.
205 Mr Cicciarelli’s unhappiness about industrial matters increased following his conversation with Mr Brooke later on 13 February, when Mr Brooke informed him that he was unable to accept Mr Cicciarelli’s proposal in relation to the part-time/full-time staff roster issue. I accept Mr Brooke’s evidence that he had not previously agreed to Mr Cicciarelli’s proposal and had, instead, said only that he would consider it. Mr Brooke’s evidence on this point was clear and credible. Equally, I accept that, after his conversation with Mr Brooke on 13 February, Mr Cicciarelli believed, mistakenly, that Mr Brooke was in some way resiling from the position he had previously adopted.
206 After his conversation with Mr Brooke, therefore, Mr Cicciarelli was upset with the TWU and its lack of support for his position and with Qantas management, especially Mr Brooke, for what Mr Cicciarelli saw as Mr Brooke’s reneging on the roster issue. As Mr Cicciarelli himself said, he felt that management was “making a joke of him”. Mr Cicciarelli and Mr Inguanti spoke by telephone later that day. In this instance, I accept Mr Inguanti’s evidence, as opposed to that of Mr Cicciarelli, that they “briefly spoke regarding the meeting and how it was a joke, another waste of time, etc, etc, no resolution”, their disappointment with the representation provided by the union, and how “we wasted a lot of time …”. Mr Cicciarelli and Mr Inguanti later spoke again by telephone, for about 15 minutes, although Mr Cicciarelli could not recall what was discussed. Mr Inguanti’s evidence was that, in this conversation, Mr Cicciarelli “just elaborated even more” on the earlier call. I accept Mr Inguanti’s evidence that he and Mr Cicciarelli further discussed issues arising from the meeting. I also accept Mr Inguanti’s evidence that they discussed “the meeting and how Wayne Mader wasn’t representing and etcetera, etcetera, another meeting, another meeting, how many meetings” and that they “were very disappointed that the union did not represent its members as it should have been, to help resolve the matters once and for all which is what we were requesting continuously”.
207 It is unclear whether the applicants discussed the possibility of a work stoppage at this stage: see further below. Neither applicant impressed me as a reliable witness on this score. For instance, Mr Inguanti’s evidence in this regard at trial was inconsistent with his statement in his 26 February 2009 letter to Qantas that he did not speak with Mr Cicciarelli “at any time on 13 February 2009”.
208 During the afternoon of 13 February, Mr Cicciarelli also spoke with some Ramp employees about the outcome of the meeting earlier that day. I reject his evidence that he did not tell them then that there would be a report back the next day. His evidence in this regard was inconsistent with the evidence of Mr Briggs – a generally credible and reliable witness – that Mr Cicciarelli in fact told him that he would explain what happened at the meeting “the next day” – Saturday, 14 February.
209 Further, around 6 pm on 13 February, Mr Cicciarelli had a telephone conversation with Mr Mancuso (the TWU organiser who had attended the meeting at Qantas but did not give evidence at trial). His conversation was overheard by at least two Ramp employees – Mr Fong and Mr Fischer – who substantially corroborated one another and, to some extent, Mr Cicciarelli. I accept that, as Mr Cicciarelli said, he had a heated conversation with Mr Mancuso to the effect that the Ramp staff was upset about the outcome of the meeting and wanted to “walk”; that he would be making a report back to the Ramp members the next morning; and that he wanted Mr Mancuso to come to the airport “to sort things out”. Mr Cicciarelli’s evidence, as corroborated by the other two Ramp employees, shows that Mr Cicciarelli was aware on the evening of 13 February 2009 that there was a real possibility of a work stoppage and that Mr Cicciarelli was pressing Mr Mancuso for a meeting with the Ramp staff. There is, however, no evidence to indicate that Mr Mancuso (or anyone else from the TWU) indicated that they would be able to come the next day to talk with the Ramp staff.
210 It was plain enough that Mr Cicciarelli gave a different account to Qantas in the investigation conducted shortly after the events of 14 February. Mr Cicciarelli’s evidence at trial regarding his conversation with Mr Mancuso can be contrasted with the version of events that Mr Cicciarelli gave Mr Smith at an interview with Mr Smith on 4 March 2009, when, according to Mr Smith’s contemporaneous notes, Mr Cicciarelli said that during this conversation he “did not talk about [a] stop work meeting” and he “didn’t ask P[eter] M[ancuso] to come down to the airport”.
211 Mr Cicciarelli made a number of phone calls on the evening of 13 February, including to Mr Loporto (another Ramp employee) and twice to Mr Storen (another Ramp employee and delegate). When questioned at trial about these phone calls, Mr Cicciarelli denied that he had spoken with Mr Loporto about the 13 February meeting, or told Mr Loporto that he was upset with Qantas and the TWU. He also denied that he had told Mr Storen that he was upset and said that it “definitely wasn’t about an organising of a stopwork or anything like that”.
212 I am unable to accept Mr Cicciarelli’s evidence about these phone calls. He agreed that he was upset with the TWU and Qantas. He had already told a group of people in the lunchroom about the meeting of 13 February and had reported to Mr Mancuso that some on the Ramp wanted to “walk”. Mr Inguanti’s evidence was that he and Mr Cicciarelli had discussed their disappointment and frustration about the meeting in phone calls that day. Mr Cicciarelli’s evidence that he did not mention any of this in the phone calls to Mr Loporto and Mr Storen is not credible. I would infer from the evidence that, in the afternoon and evening of 13 February 2009, Mr Cicciarelli discussed at least three matters with Mr Loporto, Mr Storen and Mr Inguanti – (1) the outcome of the 13 February 2009 meeting and his conversation with Mr Brooke; (2) a report back on the disability allowance, meal breaks and roster issues the next morning in the lunchroom; and (3) the possibility of a work stoppage.
213 Precisely what was said about the possibility of a stoppage is, however, unknown. Qantas argued that there was sufficient evidence to support an inference that Mr Cicciarelli was at this stage “organising a meeting for 10 am the following day where a vote on industrial action would take place”. I reject this submission. Whilst the evidence is indicative of such a possibility, it does not in my view reach the level that would justify me in so finding. Both Mr Loporto and Mr Storen denied this had been said. As already noted, Mr Storen in particular was a credible witness.
214 On the evening of 13 February, Qantas management (including Mr Hall, Mr Smith, Ms Corrente and Mr Brooke) became aware that there might be industrial action on the Ramp the next day, Saturday 14 February. They took steps to arrange for a contingency staff to be ready to come down to Melbourne to carry out operations in the event of industrial action. A contingency staff of some 40 to 45 people was flown from Sydney to Melbourne, arriving about 7:30 am on Saturday morning. Shortly after 10 am on Saturday morning, Qantas management (including Mr Hall, Mr Smith, Ms Corrente and Mr Brooke) were informed that the Ramp employees had stopped work. Mr Smith’s (and Mr Cicciarelli’s) subsequent attempts to contact Mr Mancuso and Mr Mader of the TWU were unsuccessful. As noted already, the stoppage lasted for about six hours, ending after proceedings later that day in the Commission.
Events on 14 February 2009
215 As to the events on 14 February 2009, I turn first to Mr Cicciarelli. At about 7:45 am on 14 February 2009, Mr Cicciarelli commenced work as usual, although, as already noted, he said that, between tasks, Ramp staff repeatedly asked him about the meeting the day before. Mr Cicciarelli breakfasted with Mr Loporto upstairs between 8 am and 9:30 am. This was, so Mr Cicciarelli said, because the atmosphere in the lunchroom was “pretty rioty”.
216 I interpolate here that Mr Cicciarelli had given no such account of the atmosphere in the Ramp lunchroom previously and, in particular, had not mentioned “rioty” behaviour in his interviews with Qantas on 20 February or 4 March 2009. I reject Mr Cicciarelli’s evidence in this regard, which, in any event, was not supported by other witnesses (save perhaps for Mr Loporto’s evidence: as to which see above).
217 In evidence at trial, Mr Cicciarelli said that, when he arrived at work that day, he had intended to make a report back later that morning, but that he changed his mind when he saw “the rioty ... or how the members were, it wasn’t good for me to do a report back”. I also reject this evidence. Mr Cicciarelli had never given evidence of this kind previously and, in particular, he said no such thing in his interviews with Qantas, which were very shortly after the events of 14 February. His evidence in this regard was inconsistent with that of Mr Briggs, who said that at around 10 am, “we sort of said ‘look there’s enough people in here ... let’s have ... we’ll let them know now’ and I said ‘okay’”. I would infer that Mr Cicciarelli attended work on 14 February 2009 with the intention of holding a report back meeting that day, as Mr Briggs’ evidence indicates; and that Mr Cicciarelli intended to report back on issues that he knew might well lead to a work stoppage. This latter matter is clear from the evidence concerning his conversation with Mr Mancuso the previous evening.
218 I reject Mr Cicciarelli’s evidence that he “didn’t know” if the employees were waiting for him because it was inconsistent with his acknowledgment that he knew that there would be “a demand for a report back”. Mr Cicciarelli accepted in evidence that the Ramp employees were expecting a report back that morning, as it was “customary practice” for him to give a report back after meetings, and he had not told them otherwise. Indeed, Mr Fong’s evidence was that he heard on the bus that there was to be a meeting to “address the troops”.
219 Mr Cicciarelli also gave evidence at trial that, by the time he arrived at work that Saturday, he was no longer angry and that he was unaware that the Ramp staff might well walk. I reject this evidence too. It was inconsistent with Mr Loporto’s evidence that, at breakfast, Mr Cicciarelli was upset about the failure of the meeting the day before to resolve issues and had told him “there were no further meetings planned”. As already noted, his evidence about his lack of awareness about the possibility of industrial action was inconsistent with the evidence concerning his telephone conversation with Mr Mancuso the previous day.
220 Mr Cicciarelli’s evidence at trial was that, when he returned to the lunchroom at about 10 am, the Ramp staff “pretty much jumped down my throat”. This was consistent with Mr Loporto’s evidence. However, Mr Cicciarelli’s evidence that, at this early stage, “a lot of people were just in a rage” was inconsistent with that of other witnesses. The evidence of Mr Briggs, Mr Fischer and Mr Bordignon was that the employees’ anger was ignited and increased during the report back. Mr Briggs agreed that, as Mr Cicciarelli spoke on the report back issues, people became upset. Mr Fischer’s evidence was that the atmosphere in the lunchroom immediately prior to and at the beginning of the meeting was “normal”. His evidence was that the members were not angry at the start of the meeting but that they became angry and upset “as the information that happened at the meeting was translated across to them”. Even Mr Loporto said that, when he and Mr Cicciarelli entered the lunchroom, there was “no yelling” and it was “uneventful”. Mr Bordignon also gave evidence to the effect that the mood changed from “civilised” to “a bit of outrage”.
221 Mr Cicciarelli’s statement in evidence that he made the report back only “due to pressure” and his counsel’s suggestion that he was out of his depth is inconsistent with most of the evidence, including the evidence of Mr Cicciarelli’s demeanour during the meeting. I reject Mr Cicciarelli’s evidence in this regard and counsel’s submission. Mr Bordignon’s evidence was that, during the report back, Mr Cicciarelli was “quite calm”. Mr Runnalls said that Mr Cicciarelli was “very good”, “very calm”.
222 As already noted, Mr Ardino’s evidence about the noise in the lunchroom, seeing the vote, and Mr Cicciarelli’s apparent loss of control was inconsistent in significant respects with the account he gave Mr Smith and Mr Brooke at his interview on 26 February 2009 (as recorded in Mr Smith’s and Mr Brooke’s contemporaneous notes) when he said that he did not see the vote taken. Further, though not entirely clear, it seems from Mr Ardino’s evidence at trial that the meeting was well advanced when he heard people say “let’s put it to the vote”. I would not accord much weight to Mr Ardino’s evidence as to Mr Cicciarelli’s loss of control. In this regard, I prefer the evidence of Mr Bordignon and Mr Runnalls.
223 At about 10 am on 14 February, Mr Cicciarelli reported back to about 40 employees (estimates varied) in the Ramp lunchroom. Mr Cicciarelli turned the television down and stood up in front of the employees, who were sitting down. Mr Cicciarelli reported on the meal breaks issue and that there was “no outcome” in respect of the disability allowance claim. He said nothing about the TWU progressing the claim as “there’s nothing more to progress”. He told employees about his conversation with Mr Brooke and said words to the effect that Mr Brooke had changed his mind (or reneged) about the part-time to full-time roster issue.
224 Mr Cicciarelli’s report had the effect of angering the employees in the Ramp lunchroom. Bearing in mind that Mr Cicciarelli had already warned Mr Mancuso the previous evening that there was a possibility that they would “walk”, I accept that, as Qantas submitted, Mr Cicciarelli would have known that his report back would anger employees and lead to a call for a work stoppage.
225 Mr Cicciarelli said “what do you want to do? or “it’s up to you”, meaning it was up to the employees whether they were to stop or continue to work. This was the effect of Mr Cicciarelli’s own evidence, which was in substance corroborated by Mr Briggs, Mr Thomson and Mr Runnalls. With these words said, it was not unnatural that Mr Cicciarelli or someone else said, as he did, “let’s take a vote” and put a motion to the floor to stop work. People raised their hands to vote. A majority of people put their hands up to stop work. The vote was understood as binding on all members. This was, so it seems to me, the effect of Mr Cicciarelli’s own evidence at trial that “no-one in that [lunch]room said otherwise”. Indeed, whilst I would not attach a great deal of weight to much of Mr Ardino’s evidence, I accept his evidence that, as a member, he considered himself bound by the vote to stop work. In so far as Mr Cicciarelli gave evidence to the contrary, I would not accept it. After the vote was taken, Mr Cicciarelli informed the relevant Qantas manager, Shane Murphy, that the Ramp had ceased work.
226 I accept that, as Qantas submitted, Mr Cicciarelli took no steps to dissuade the employees from stopping work. In particular, Mr Cicciarelli did not remind them that industrial action would be unlawful and in breach of the Act. Mr Cicciarelli did not refer to the need to follow the disputes procedure in Enterprise Agreement 7. He did not tell the employees that the TWU had not given its support to the industrial action; or that Mr Mancuso had said that he would come for a further meeting at a later time. Nor did he refer to the fact that a stoppage would result in the docking of at least four hours’ pay.
227 Further, Mr Cicciarelli knew the essential parameters of the industrial regime that governed him and the Ramp employees. It was clear on the evidence that Mr Cicciarelli knew that there was provision in Enterprise Agreement 7 for the settlement of industrial disputes (see clause 11) and that, pursuant to this provision, until a matter was determined, work was to continue as instructed by the company. Mr Cicciarelli agreed that a breach of the disputes procedure was a serious matter. Mr Cicciarelli was also aware that, at the time, there were various requirements to be met before industrial action could lawfully be taken, and that, as at 14 February 2009, the necessary steps had not been taken.
228 In summary, Mr Cicciarelli conducted a report back, the upshot of which was that a vote on whether to stop work was taken and carried. In the circumstances known to Mr Cicciarelli at the time, I would infer that Mr Cicciarelli would have known that this was the probable outcome of the kind of report back he made.
229 It is convenient at this point to mention two further incidents, which so Qantas said, evidenced that Mr Cicciarelli encouraged employees to join the work stoppage. The first concerned Mr Koscak and the second, Mr Arnold. For the reasons stated below, however, I would not attach much weight to the evidence of either incident.
230 After an interview with Qantas management on 11 March 2009, Mr Koscak signed a statement on 13 March 2009, which he adopted at trial. He also gave evidence consistent with his statement at trial. As already stated, Mr Koscak said that, at about 10:30 am on 14 February, as he was going to get his next task, he met Mr Cicciarelli and Mr Briggs. Mr Cicciarelli or Mr Briggs said “there’s a meeting in the lunchroom”; and Mr Koscak had then gone to the lunchroom. Mr Cicciarelli said that, after notifying Mr Murphy of the work stoppage, he saw Mr Koscak on the concourse and that he “just notified him that the members ha[d] decided to cease work”.
231 Qantas argued that this was “clearly a communication designed to encourage Mr Koscak to join the meeting where employees had voted to stop work”. I would not accept this submission. The evidence concerning Mr Koscak was equivocal. It may be that Mr Cicciarelli or Mr Briggs wanted Mr Koscak to join the work stoppage, but the statement that “there’s a meeting in the lunchroom” in fact did little more than inform Mr Koscak of what was happening and did not necessarily amount to encouragement to join the stoppage. Perhaps more importantly, it was unclear whether Mr Cicciarelli or Mr Briggs spoke the words in question. In any event, in his statement of 13 March 2009, Mr Koscak stated that he sat in the lunchroom “for a while”, decided he had “had enough”, and left the lunchroom, with the intention of returning to work.
232 Qantas also argued that an incident involving Mr Cicciarelli and Mr Arnold showed that Mr Cicciarelli acted to encourage other Ramp employees to join the work stoppage. Mr Arnold did not give evidence, and the evidence concerning this incident was at best equivocal. I would not accept Qantas’ submission in this regard.
233 At 10.40 am on 14 February 2009, Mr Brooke and Ms Corrente (with a Mr Speers) came into the Ramp lunchroom and Mr Brooke told everyone there that they had five minutes to get back to work or the stoppage would be viewed an industrial action and pay would be docked. The Ramp employees did not return to work. In evidence, Mr Cicciarelli said that, because he was in the kitchenette area, he did not believe Mr Brooke was speaking to him, but, in this instance, Mr Cicciarelli’s evidence was not credible. Mr Cicciarelli said that he was doing his best to contact the union. Mr Cicciarelli conceded, however, that he heard what Mr Brooke said; and what Mr Brooke said clearly applied to him, since he was not performing his usual work duties. Further, Mr Cicciarelli made no attempt to speak to Mr Brooke at this time about the issues that prompted the stoppage.
234 Mr Brooke and Ms Corrente returned to the lunchroom at about 11.10 am and this time spoke specifically to Mr Cicciarelli. Mr Brooke told Mr Cicciarelli that the stoppage was not endorsed by the union and that people should return to work. In cross-examination, Mr Cicciarelli asserted, for the first time, that in this conversation he had told Mr Brooke about the matters in issue, although, when pressed, he could say no more than he believed that he had referred to the issues at this point. I reject Mr Cicciarelli’s evidence to this effect, which did not appear in any of Mr Cicciarelli’s previous evidence and had no corroboration. I accept Ms Corrente’s evidence that Mr Cicciarelli said that he was waiting for a TWU official to come. Mr Cicciarelli agreed that he had indicated that the employees were waiting for a union organiser.
235 Shortly after speaking with Mr Brooke and Ms Corrente, at about 11.15 am according to Mr Cicciarelli, Mr Inguanti came into the Ramp lunchroom.
236 Mr Cicciarelli said that around this time he was trying to get a TWU representative to attend at the airport. There is no record in his phone records of any call to Mr Mancuso on Saturday, 14 February 2009 before 11.26 am. In any event, he was unsuccessful; and the evidence shows plainly enough that Mr Cicciarelli had no reason to believe that Mr Mancuso or any other TWU official would be available to attend at the airport that Saturday. That is, Mr Cicciarelli knew from his telephone conversation with Mr Mancuso the previous evening that Mr Mancuso was not intending to come to the airport that day but at some later time. In cross-examination, Mr Cicciarelli stated that he did “speak” to Mr Mancuso on the Friday night and that “he was no help to me whatsoever”. Indeed, by midday that Saturday, Mr Cicciarelli was well aware that the stoppage of work by employees was unprotected and that he had been unable to contact any TWU officials. Nonetheless, he did nothing to encourage the Ramp employees to return to work. As it happened, he was not in contact with any union official until 1:15 pm and this was in relation to the Commission hearing later that day.
237 I turn now to Mr Inguanti. Mr Inguanti was not rostered to work on 14 February 2009 and was not asked by Qantas to come into work that day. Mr Inguanti’s evidence in cross-examination was that he received telephone calls from a Mr Fox from the Baggage Room at about 8:30 am and just after 10 am. Although the applicants filed an outline of evidence to the effect that Mr Fox would give evidence, Mr Fox was ultimately not called as a witness at the trial. There was no explanation about the failure to call him. For the reasons stated below, I would infer that Mr Fox was not called because his evidence would not have assisted Mr Inguanti’s case: see [249]. Mr Inguanti’s reference to a conversation with Mr Fox that Saturday was, moreover, the subject of a successful hearsay objection. Also, as Qantas noted, the alleged call from Mr Fox at 8:30 am was not disclosed in Mr Inguanti’s letters of response to Qantas on 23 or 26 February 2009. Nor did Mr Inguanti refer to it in his subsequent interviews with Qantas management. Having regard to all these matters, I would not regard Mr Inguanti’s explanation made by reference to Mr Fox as substantiated.
238 Mr Inguanti swiped in for work at 11:07 am that Saturday. His case at trial was that he attended to address an OH&S issue in the Baggage Room arising from the use of untrained contingency staff. This case was not, however, supported by the evidence.
239 Mr Inguanti’s phone records showed that he made numerous calls to a number of Qantas employees on the morning of 14 February 2009, as well as a call to Channel 7. According to these records, Mr Inguanti made his first telephone call that day at 9:23 am to Mr Storen, a co-delegate in the Ramp area. According to Mr Inguanti, in this brief call he called to “see whether there was any truth [to the rumour that the ramp had stopped work] and leave it at that”. At no point prior to trial had Mr Inguanti disclosed that he had a telephone conversation that morning with Mr Storen. Mr Storen was unable to recall the content of this call. The phone records also indicated that Mr Inguanti sent a text message to Mr Storen at 10.26 am and that he called Mr Fox at 10:39 am.
240 Mr Inguanti stated that, after his conversation with Mr Fox, he called the real time (work) allocators at Qantas. His phone records showed, however, that Mr Inguanti in fact called the real time allocators at 10:27 am before calling Mr Fox. Mr Inguanti accepted in cross-examination that he did not ask the real time allocators whether there was an OH&S representative on the Ramp that day.
241 After calling Mr Fox, at 10:56 am Mr Inguanti telephoned Channel 7 and spoke to someone there. Mr Inguanti had not mentioned his contact with Channel 7 at any time prior to trial. Mr Inguanti said in cross-examination that he could not recall his call to Channel 7 or why he had called. As noted earlier, he simply said at trial that “I must have just been angry”.
242 In the case of Mr Inguanti (as for other witnesses) some allowance must be made for the fading of memory due to the passage of time and, in consequence, I would not attach a great deal of weight to inconsistencies about times and the order in which he said he spoke to particular individuals. Nonetheless, taken as a whole, Mr Inguanti’s account of his activities prior to attending the airport was clearly unsatisfactory. I return to this matter below.
243 Shortly after calling Channel 7, Mr Inguanti attended the airport. According to Mr Inguanti, he went first to the Baggage Room and spoke with some employees there. Thereafter, about 11:15 am, he went to speak with Mr Cicciarelli, who told him that the Ramp had ceased work because of “unresolved issues” and that they were “waiting for the union organiser, Peter Mancuso, to come in”. This evidence of Mr Inguanti about his arrival at the airport can be accepted. Mr Inguanti’s evidence was that whilst Mr Cicciarelli did not specifically identify the issues, he already knew what they were. This may be accepted too. The roster issue did not, of course, affect the Baggage Room, although the meal breaks and disability allowance issues did. Mr Inguanti claimed that he spoke to Mr Cicciarelli at this time about outside port staff coming on site. This was not, however, corroborated in any way by Mr Cicciarelli in his evidence at trial. It was, moreover, sometime after midday that the Baggage Room apparently raised the issue of untrained workers with Mr Inguanti. I would not accept Mr Inguanti’s evidence that he raised the issue of outside port staff with Mr Cicciarelli at this earlier time.
244 Mr Inguanti’s evidence was, in substance, that he returned to the Baggage Room and that the Baggage Room staff had assembled in the lunchroom at about 11:20 am. Mr Inguanti said further that he sought the permission of both leading hands – Mr Parsons and Mr Lui Luang – to address the staff. Mr Parsons’ account was, relevantly, different. Mr Parsons stated in evidence that Mr Inguanti came into the Baggage Room and told him that “he [Mr Inguanti] wanted to talk with the boys and was going to call a meeting in the tea room and that I could come along if I wished to”.
245 According to Mr Inguanti, he informed the assembled Baggage Room staff that the Ramp had stopped work and that he had a concern about “outside staff” working on the Ramp. Mr Inguanti also said that he told the employees that “we had to have further discussions with Peter Mancuso and Doug Brooke in regards to our issues in our section”. Mr Inguanti denied that his purpose in assembling the staff was to see if they wanted to stop work in support of the Ramp, or that he asked them whether they supported the stoppage. Mr Inguanti’s evidence was that the meeting “was out of control”; “it was bedlam”; and “[t]hey were like charging bulls in Spain”. This account was rejected by Mr Parsons. Indeed, Mr Parsons specifically rejected the proposition that the meeting was “a very loud and noisy gathering” and stated that “most people were listening to what [Mr Inguanti] was saying”. Mr Parsons’ evidence was that Mr Inguanti “asked the boys to take a vote, whether we would join the guys on the Ramp or stay at work”.
246 As already noted, I found that Mr Parsons was an honest and reliable witness. Further, his evidence at trial was consistent with the contemporaneous note made by Mr Smith of his interview with Mr Parsons during the Qantas investigation; and which Mr Parsons had accepted as an accurate record of what he had said to Mr Smith. I prefer Mr Parsons’ evidence to the extent that it is inconsistent with that of Mr Inguanti with respect to what occurred immediately before and in the Baggage Room tea room. Indeed, Mr Inguanti’s own evidence was that he told the Baggage Room employees that, if they stopped work, he would support them.
247 In his outline of evidence and in oral testimony, Mr Inguanti said that he “falsified” the vote to show a no-majority for a work stoppage. Mr Inguanti did not, however, mention falsifying the vote during the Qantas investigation, although, plainly enough, if true, it would have been a significant factor militating in his favour. Mr Inguanti sought to explain this away, by saying Qantas failed to ask him, but, as Qantas submitted, this was not a credible explanation. Mr Inguanti was given ample opportunity to explain himself to Qantas in the investigation. I reject Mr Inguanti’s explanation, as well as Mr Inguanti’s evidence that he falsified the vote as he claimed. Mr Inguanti either fabricated this evidence at the trial or over time has wrongly persuaded himself that this is what he did.
248 Mr Inguanti conducted a vote as to whether to stop work in support of the Ramp employees. The vote was narrowly lost. At this time, Mr Inguanti admitted that he did not tell the employees that the contemplated industrial action was unlawful nor did he refer to the effect of the disputes procedure under Enterprise Agreement 7. In cross-examination, Mr Inguanti also agreed that he had not attempted to contact the TWU before conducting the vote.
249 It is relevant to note at this point that Mr Inguanti called no other employees from the Baggage Room to support his version of what had occurred. (Mr Agresta, who was from the Baggage Room, gave no useful evidence in this regard.) The significance of the failure to call someone to corroborate his account is heightened by the fact that the applicants had previously filed outlines of evidence from Baggage Room employees who might have been expected to give the relevant evidence. No explanation was offered for the failure to call them. An unexplained failure to call a witness may in appropriate circumstances lead to an inference that the evidence of that witness would not have assisted that party’s case: see Jones v Dunkel (1959) 101 CLR 298 at 308. In some circumstances, the inference will not be available or, if available, of limited significance: see, for example, Fabre v Arenales (1992) 27 NSWLR 437 at 449-450; J D Heydon, Cross on Evidence Eighth Australian Edition (LexisNexus Butterworths Australia, 2010) at [1215]. In the present circumstances, having regard to the discussions in the authorities, I would infer that neither Mr Fox (see also above) nor any other witness of events within the Baggage Room tea room was called by Mr Inguanti because their evidence would not have assisted Mr Inguanti’s case. I would add, however, that, given the burden of the evidence against Mr Inguanti, this inference is no more than another, comparatively slight factor weighing against him.
250 In any event, Mr Brooke, Ms Corrente and Mr Inguanti met in the Baggage Room at about 11:30-11:45 am. According to Mr Brooke and Ms Corrente, Mr Inguanti told them that the Baggage Room had just held a meeting and that they would hold a further vote in 20 to 30 minutes to decide whether to stop work in support of the Ramp. In cross-examination, Mr Inguanti denied that he said anything about a further vote. Ms Corrente was an honest and reliable witness, whose evidence I accept. Her evidence on this point was corroborated by the notes that she made that day and by Mr Brooke. I reject Mr Inguanti’s evidence to the contrary.
251 Mr Inguanti also said in evidence that he had notified Mr Brooke and Ms Corrente at this stage that he was at the airport as an OH&S representative but that he had not identified the nature of his OH&S concern because neither had asked him and he was not given an opportunity to do so. This was not supported by the evidence of Mr Brooke or Ms Corrente, both of whom said that Mr Inguanti asked them to put on their high-visibility vests but did not state that he was attending as an OH&S representative. Their evidence is further supported by Ms Corrente’s contemporaneous notes. In these circumstances I prefer the evidence of Ms Corrente and Mr Brooke to that of Mr Inguanti, which I reject.
252 Mr Brooke and Ms Corrente saw Mr Inguanti again, at about mid-day, in the arrivals hall. On this occasion, Mr Brooke asked Mr Inguanti to leave the premises. Mr Inguanti’s phone records indicated that, shortly after this, he called various employees more than once around this time – Mr Cicciarelli, Mr Giles, Mr Storen – and also sent a text message to a Mr Durkin. After speaking with them, Mr Inguanti called Ms Corrente (at 12:55 pm) and left a message asking her to arrange access to the site on the basis of an OH&S concern. Mr Inguanti apparently also called Mr Brooke’s mobile for the same purpose.
253 When Ms Corrente returned Mr Inguanti’s call, she told him that he would be let back in upon the basis that he would only discuss safety issues and be accompanied at all times by a manager. Before re-entering, however, Mr Inguanti was served with the papers requiring him to attend the Commission.
CONSIDERATION
No breach of s 792
254 Sections 792(1)(a) and 793(1)(a) of the Act effectively proscribe dismissal for the reason, or for reasons that include the reason, that the employee was an officer or delegate of an industrial association. For this purpose, a delegate is a person who represents the industrial association on site: see Plumton v Cathay Hotel Pty Ltd (1987) 21 IR 410 at 416 per Dowsett J. The effect of s 809 is that the respondent bears the onus, on the balance of probabilities, of excluding a conclusion that the applicants were dismissed for reasons that included that they were delegates or officers of the TWU.
255 Since the employer bears this onus, then, as Buchanan J said in Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 (‘Seymour’) at 14 [29]:
normally sworn evidence denying such a reason is necessary, and, in most cases, an explanation of the real reason for dismissal consistent with the absence of delegateship or [office-holding] as a reason is, in a practical sense, also necessary.
256 There was some debate between the applicants and the respondent in this case as to the status of evidence of the subjective reasons of an employer for taking the impugned action. The authorities establish that evidence of this kind is relevant and usually necessary, but not determinative of the question whether the employer took the action for an impermissible reason.
257 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 89 [325], 91-2 [332], [338]-[339], [345], 93 [350]-[351] illustrates how evidence denying that a prohibited reason formed part of the reasons for the impugned action and the evidence as to the claimed actual reasons operate together to affect the conclusion reached by the Court as to the cogency of the denial. See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2011) 191 FCR 212 at 221 at [28] (Gray and Bromberg JJ; special leave granted 2 September 2011) and, at first instance, Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 at 261 [34] (though reversed on appeal). (The voluminous nature of the evidence adduced in this case by the respondent circumvents the need to discuss the difference in judicial approaches that this latter litigation may indicate.)
258 If an employer was, as in this case, a corporation, then, it is usual for evidence of the subjective reasons for taking the impugned action to be given by the person or persons who made or authorised the decision. Of course, the corporate mind might be found in the knowledge, belief, or reasons of more than one corporate officer, depending on the particular circumstances: see Wood v City of Melbourne (1979) 41 FLR 1 at 19 and Brambles Holdings Ltd v Carey (1976) 2 ACLR 176 at 181.
259 In this case, the ultimate decision-maker was Mr Hall, but Mr Hall said (and I accept) that he accepted the findings of Mr Smith, the leader of the investigation (discussed below), about the applicants’ involvement in the events of 14 February 2009. The respondent therefore properly recognised that it was appropriate to lead evidence from both Mr Hall and Mr Smith (as well as a great deal of other evidence) in order to rebut the statutory presumption in s 809 of the Act.
260 Particular practical and analytical difficulties have arisen in cases where, as in this case, an employee is also an active union delegate: As Gyles J said in Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Australian Health and Nutrition Association Ltd (2003) 147 IR 380 (‘Australian Health and Nutrition Association’) at 381 [3]:
On the one hand, victimisation of union officials is not to be tolerated. On the other hand, a union official is given no immunity from normal constraints of behaviour, nor any licence to act in a manner which would not be tolerated in another employee.
261 As already noted, there was evidence at trial that Mr Cicciarelli and Mr Inguanti were active union delegates, who had been involved in contentious industrial issues. In this circumstance, the applicants invited the Court to find that the real reason for their dismissals was that Qantas believed that they were troublemakers on account of activities closely associated with their status as delegates and not because of any particular misconduct.
262 In this connection, counsel for the applicants relied particularly on the decision of the High Court in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 (‘Bowling’) at 619, a case under s 5 of the Conciliation and Arbitration Act 1904 (Cth) (the ‘C & A Act’), as explained by Merkel J in Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173 (‘Ansett’) at 190 [72].
263 Under s 5 of the C & A Act, a court was required to determine whether the “real reason” for the prejudicial action against an employee was or included a proscribed reason. In Bowling, there was evidence called on behalf of the employer as to what actuated its decision to take action against the employee, which was treated as relevant, although not conclusive. The significance of this evidence was assessed by reference to the attendant circumstances. Whilst Mason J, with whom Gibbs, Stephen and Jacobs JJ agreed, said (at 617) that he would “accept the finding that the principal reason for the dismissal was that the appellant considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others”, his Honour went on to say (at 617-618):
It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward. … Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. … It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant’s management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward.
264 Whilst Mason J noted that generally activities of a delegate fell within the equivalent of para 793(o) of the Act, as opposed to the equivalent of para 793(a), his Honour did not regard a dismissal on the basis of past activities as irrelevant to para (a). Thus, so counsel for the applicants said, conduct could be relevant to the question of dismissal because of an employee’s status as an officer or delegate, in the way explained by Mason J in Bowling. See also Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 at 78-79. This latter submission might be accepted, although I would reject the case that the applicants made in reliance on it: see below.
265 In Ansett, Merkel J at 190-191 [72], interpreted his Honour to be stating “that in a case in which the dismissal of union official or delegate occurs in circumstances that are closely associated with the activities of the employee in that capacity, the employer carries the onus of rebutting the very real possibility that the dismissal was associated with the circumstance that the employee was an official or delegate”. See also Harrison v P & T Tube Mills Pty Ltd (2009) 181 IR 162 at 237 [298] (upheld on appeal, see (2009) 188 IR 270). This proposition lay at the heart of the applicants’ case not only with respect to their past activities but also with respect to their conduct on 14 February 2009.
266 In the present case, however, the applicants were dismissed only after an investigation, as to which Qantas adduced a voluminous amount of documentary evidence. This evidence and the evidence of Mr Hall, Mr Smith and the other Qantas managers (as well as certain other evidence) was intended by Qantas to rebut the statutory presumption to which s 809 gave rise. In order to appreciate the significance of the investigation, it is necessary to set out in some detail the facts concerning it.
The Investigation
267 Mr Smith led an investigation into the cause of the industrial action on 14 February 2009, and the appropriate company response. The investigation begun on or about 16 February and ended on or about 6 March 2009. Mr Smith was assisted by Ms Corrente and Mr Brooke and, on one occasion, Mr Hall. The company’s lawyers took preliminary statements from various managers, including Ms Corrente and Mr Brooke. Their statements were consistent with their evidence at trial. In the course of the investigation, Mr Smith gathered attendance records and the like, some CCTV footage, and conducted, or caused to be conducted, interviews of numerous employees.
268 During the investigation, Mr Smith sought to identify the employees responsible for the industrial action. Messrs Cicciarelli, Inguanti and Storen – all delegates – were stood down on 18 February, after meeting with Mr Smith, Mr Brooke and Ms Corrente and being given letters of allegation: see [11]-[14] above. On 19 February 2009, Messrs Sarmo, Briggs and Fischer were also stood down, after receiving letters of allegation. These six employees responded in writing and were interviewed.
269 On 20 February 2009, Mr Cicciarelli and Mr Inguanti, accompanied by their lawyer, were separately interviewed. Mr Smith’s account of Mr Inguanti’s and Mr Cicciarelli’s interviews (see [132]-[133]) is borne out by the notes that Mr Smith and Ms Corrente kept. These notes indicated that Mr Inguanti and Mr Cicciarelli denied the allegations against them and, on this occasion, effectively declined to explain their conduct on 14 February 2009. At the request of their lawyer, Mr Smith agreed that each would provide a written response to the allegations against him.
270 On 20 February and over the next days, Mr Storen, Mr Sarmo, Mr Briggs and Mr Fischer provided written responses to the allegations against them. In summary:
Mr Storen said that he did not arrive at work until 11.10 am, when he was informed that a vote to stop work had been carried. He said that he felt that he had no choice but to stay in the lunchroom with the other Ramp employees. (He substantially repeated this account at the hearing: see above.)
Mr Sarmo said he came to work on 14 February at about 11-11:30 am to collect his wallet and footy fixture from his locker. He said that, when he arrived, Mr Cicciarelli told him the floor had voted to stop work. Mr Sarmo stayed at work (although not rostered) until about 4 pm when the employees returned to work.
Mr Briggs said that he was at work on 14 February. At about 9:45 am, Mr Cicciarelli gave him a quick run down on the issues. Mr Briggs said that there were 20 or more men in the lunchroom having their normal break and “Lou decided to give a report to the members about a number of union issues”. Mr Briggs denied organising a meeting or inciting industrial action. (He substantially repeated this account at the hearing: see above.)
Mr Fischer said that he had heard of a possible meeting on the bus to work on the morning of 14 February. He said that he commenced work as normal and, at about 9:45 am, Mr Briggs and Mr Cicciarelli reported on union issues. During the report back, many people in the lunchroom became irate and Mr Cicciarelli said “Well what do you want to do?” Mr Fischer said he thought Mr Cicciarelli said “Let’s take a vote”. (Mr Fischer gave evidence at trial, as set out above, which differed from this statement in some particulars.)
271 By two letters both dated 23 February 2009, Mr Inguanti and Mr Cicciarelli provided written responses. In substance, Mr Cicciarelli said that, after constant pestering by Ramp employees, he told them the outcome of the 13 February meeting and also of his conversation with Mr Brooke. Mr Cicciarelli said that “[a]s news sank in ramp staff were upset and agreed on a course of action”. He denied each of the allegations against him, including that he had organised industrial action.
272 Mr Inguanti denied that there was a meeting in the Baggage Room and reiterated that the “allegations [were] not true and [had] no foundation in fact”. Mr Inguanti said that he attended work at the express request of his work group as an OH&S representative. He also said that, soon after attending, he met with Mr Brooke and Ms Corrente and had a conversation with them, in which he said that: (1) he was there as an OH&S representative; (2) there were no problems in the Baggage Room; and (3) he requested that they wear Hi-Vis vests. He said that Mr Brooke said “we will leave it up to you”. Thus, Mr Inguanti alleged that his presence at work was authorised and not for the purposes alleged. He also denied the other allegations against him, including that he had attempted to incite industrial action.
273 Qantas management interviewed numerous other Ramp employees and Mr Giles and Mr Parsons from the Baggage Room over the following week. The Ramp employees made various responses.
274 Mr Inguanti received a further letter of allegations dated 25 February 2009: see [14] above. On 26 February 2009, Mr Inguanti provided a written response, saying in summary that: (1) he denied at any time on 13 February 2009 or prior to 11:30 am on 14 February speaking with Mr Cicciarelli; (2) he denied that he was already aware at 11:07 am that the Ramp employees had ceased work at 10:15 am; (3) he denied conducting a vote with 18 Baggage Room employees and stated instead that he spoke with staff about outside staff entering the workplace; (4) he denied saying that he had taken a vote; (5) he said that he had been called in and that Qantas was aware that he was there as an OH&S representative, and that there had been no need to report an actual OH&S incident because at the time he was satisfied that no incident existed; (6) he denied that he was there to organise industrial action and stated that “if he had of wanted to do so, I am confident it would have occurred”.
275 After Mr Smith and Mr Brooke interviewed Mr Giles, a Baggage Room employee, Mr Smith dictated a note, which relevantly stated:
…
● At some stage between approximately 11:30 am to 11:40 am, Michael Inguanti (TWU delegate), entered the bag room and called the blokes into the lunch room.
● Approximately 20 of the baggage room workers attended the meeting including [Mr Giles]. At the meeting Michael Inguanti said words to the effect that “the Melbourne ramp employees had stopped work following issues arising from a TWU and company meeting held the previous Friday 13 February 2009”. Michael said “I’m here to support you, do you want to support the ramp and stop work or do you want to keep working?” …
● Michael called for a show of hands and the meeting voted to stay at work 10 votes to 9. The meeting took approximately 10 minutes.
● At the conclusion of the meeting, Michael left the bag room and the blokes returned to work. At no stage did Michael raise safety or licensing issues at this meeting.
…
276 After Mr Smith and Mr Brooke interviewed Mr Parsons, another Baggage Room employee, Mr Smith dictated a note of his interview, which relevantly stated:
…
● At some stage between approximately 10:30 am or 11:00 am, Michael Inguanti (TWU bagroom delegate) arrived in the bag room. Michael proceeded to the tea room and conducted a meeting of the workers in the bag room. I joined the meeting in the tea room and Michael was addressing the meeting. Michael said that “the Melbourne ramp was taking industrial action”, and that the “TWU was not supporting the action and it was left to the employees in the bag room to make a decision on whether they would support the ramp”. He said “I actually would support the ramp by stopping work”.
● One employee asked if the industrial action taken by the ramp was illegal. Michael responded to the effect that it was not illegal as the workers were entitled to “one Freebie”. Some employees laughed when Michael said this. Michael asked for a show of hands and 9 employees voted to stop work and 10 voted to continue work.
● Once the vote was counted, Michael said “I’ve done all I can do, you can go back to work”. It was not clear to me as to whether Michael had actually participated in the vote.
● During the course of the meeting Michael said “It’s up to you whether you stop work, I’ll support you. You can stop work or continue working and I’ll go back to my day off”.
● At no stage during the meeting did Michael raise any safety issues, including regarding driver’s licences.
277 As noted already, Mr Smith gave evidence, which I accept, that he prepared the notes of interview of Mr Giles and Mr Parsons because he considered that what they said was particularly important and gave an account contrary to that which Mr Inguanti had given him.
278 By Friday, 27 February 2009, Mr Smith was able to report to Mr Hall, the company’s lawyers and others that he believed that findings could be made about Mr Inguanti’s conduct. Essentially these findings were to the effect that Mr Inguanti’s account of his conduct on that day was not supported by the accounts of other employees and other available information. Mr Smith found, at least provisionally, that Mr Inguanti was not rostered to work that Saturday and that he had attended the workplace with a purpose of organising and inciting a stoppage in support of the Ramp employees. Mr Smith found that Mr Inguanti had called a meeting in the Baggage Room and conducted a vote about taking industrial action. Mr Smith did not believe that Mr Inguanti had received a telephone call to attend the workplace for an OH&S reason. Mr Smith’s view was that Mr Inguanti had arrived at work prior to the deployment of the contingency staff and therefore his account did not fit with the chronology of events; and, further, his account was not corroborated by the person who made the call. Mr Smith formed the view that Mr Inguanti had no OH&S purpose for being in the Baggage Room at the time he conducted the meeting. Mr Smith was also of the view that Mr Inguanti’s conduct was not inspired by the TWU. Mr Smith considered that Mr Inguanti’s written and oral accounts of his conduct were untrue. In the circumstances, he considered that Mr Inguanti was guilty of serious misconduct in conducting a meeting in order that the employees engage in unlawful industrial action.
279 On 27 February 2009, Mr Smith told Mr Hall of his findings with respect to Mr Inguanti in a 20-minute conversation at the airport. Mr Hall accepted Mr Smith’s findings: see [158] above. As noted earlier, Mr Hall, Mr Brooke and Ms Corrente met with Mr Inguanti on Monday, 2 March 2009. This was because Mr Hall decided to give Mr Inguanti one further opportunity to explain to Qantas management his involvement in the events of 14 February. At this meeting, after Mr Inguanti was given an opportunity to respond to certain questions, Mr Hall took a break, in the course of which Mr Hall decided to terminate Mr Inguanti’s employment.
280 At the 2 March meeting with Mr Inguanti, Mr Hall referred to a draft of what was to become Mr Inguanti’s letter of termination and, in particular, to draft findings that were in substance reproduced in the final letter. These findings were:
● you were not rostered to work on Saturday 14 February 2009, however you attended for the purpose of organising meetings or conducting discussions with bag room employees in order to organise unlawful industrial action.
● at no stage were you in attendance in your representative capacity as an OHS representative [].
● you failed to refer any matters which may have been the subject of a potential dispute between Qantas and its employees to be conducted in accordance with the dispute resolution process pursuant to clause 11 of [Enterprise Agreement 7].
● you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour [under] the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth)).
● you engaged in conduct which was likely to bring Qantas into disrepute and was likely to damage the reputation, viability or profitability of Qantas.
● you have failed to provide honest answers to the questions asked of you during the investigation. You have told us that you attended in response to a request [from] employees alleging an OHS issue. There is no evidence to support this assertion.
The draft continued:
Michael your conduct constitutes a serious breach of the following:
● The terms and conditions of your employment with Qantas as an Airline Services Operator, including your obligations pursuant to your contract of employment, and [Enterprise Agreement 7] and Qantas’ Policies and Procedures (including Qantas’ Standards of Conduct);
● your obligation to conduct yourself in a manner of trust and confidence as an employee of Qantas
281 Mr Hall relied on these findings to terminate Mr Inguanti’s employment. As both he and Mr Smith made clear, however, the reason for Mr Inguanti’s termination was that he had attended on 14 February 2009 in the Baggage Room for the purpose of holding a meeting to organise and incite industrial action, and that he held such a meeting. At the time, both Mr Hall and Mr Smith believed that the industrial action was neither endorsed by the union nor protected under the Act.
282 By 2 March 2009, Mr Smith had interviewed a number of employees about events in the Ramp lunchroom, and had received Mr Cicciarelli’s 23 February response to the first letter of allegation. At that stage, Mr Smith apparently thought that there could be some premeditation on Mr Cicciarelli’s part since Mr Cicciarelli received a further set of allegations to this effect by a letter of 3 March 2009: see [12] above. Mr Cicciarelli responded by a letter dated 4 March 2009, stating in summary that: (1) he had discussions on Friday with employees in the lunchroom, but he did not determine or agree to conduct any further meeting on Saturday; (2) the method by which employees requested him to address them on Saturday “was verbally in the course of general discussion in the workplace on the morning”; (3) he denied organising a meeting in the lunchroom at 10:00 am; (4) he reported back to employees; (5) he did not conduct a vote but there was a show of hands; and (6) he denied that he had incited or encouraged employees to cease work.
283 Mr Smith was unconvinced that there was no premeditation on Mr Cicciarelli’s part with regard to the work stoppage. Mr Smith directed that Mr Fischer should be further interviewed about the conversation about a possible work stoppage that Mr Fischer had previously said took place on the work bus on the morning of 14 February. On 4 March, Mr Smith, with amongst others, Mr Brooke, conducted this further interview with Mr Fischer, in the course of which Mr Fischer gave a different account of the conversation on the bus and also related that, on Friday 13 February, he had overheard part of the telephone call between Mr Cicciarelli and Mr Mancuso, discussing the possibility of industrial action. I accept that, as Mr Smith said, this “impacted on [Mr Smith’s] view because it confirmed that matters had escalated to the potential for industrial action on that Friday evening and that Mr Mancuso and Mr Cicciarelli were dealing with that possibility”. Presumably too, this indicated to Mr Smith how it was that, on the evening of 13 February 2009, Qantas’ Mr Moore came to hear rumours of the possibility of industrial action the next day.
284 On 4 March, Mr Cicciarelli was also interviewed and his response to the further allegations received. Mr Smith considered that Mr Cicciarelli was unforthcoming in this meeting, particularly regarding the telephone call with Mr Mancuso on the Friday evening. This view is supported by Mr Smith’s contemporaneous notes, which (as noted above) recorded at this point “long silences, hesitant, evasive when answering questions about this call”.
285 On the basis of the information gathered in the course of the investigation, including the employee interviews, the accounts given by the relevant managers, including Mr Brooke and Ms Corrente, and his own experience, Mr Smith found that on Friday, 13 February 2009, Mr Cicciarelli was involved in organising and inciting potential industrial action for Saturday and that, on Saturday, he conducted the meeting in the lunchroom with a view to organising and inciting industrial action. Mr Smith’s account of his reasons are set out at [142] above. Amongst other things, Mr Smith did not consider that Mr Cicciarelli had given a truthful account. In particular, Mr Smith considered that Mr Cicciarelli’s account of his conversation with Mr Mancuso was incomplete. Mr Smith rejected Mr Cicciarelli’s denial that he had conducted a vote and found instead that Mr Cicciarelli, in throwing the matter to the floor, had effectively incited the vote. Mr Smith also found that the work stoppage did not involve the TWU, and that the TWU had not encouraged, incited or authorised the stoppage. Moreover, based on his industrial experience, Mr Smith found that Mr Cicciarelli’s conduct was consistent with the organisation and incitement of industrial action. That is, Mr Smith found that Mr Cicciarelli’s report back had been made so as to inflame his listeners, without mentioning any of the reasons for not stopping work; and that his throwing the matter to the floor and taking a vote was to be viewed in this light.
286 Mr Smith informed Mr Hall of his findings regarding Mr Cicciarelli on 5 March 2009. During their conversation, Mr Hall made notes of what Mr Smith said: see [164] above. Mr Hall accepted Mr Smith’s findings as correct. At the same time, Mr Smith provided Mr Hall with the allegation and response letters. Mr Hall considered the matter independently and decided that Mr Cicciarelli’s misconduct was very serious and had jeopardised the company. Mr Hall said (as noted earlier) that, taking these matters into account, “the premeditation, the fact that nothing was done on the day to follow the correct procedures to [alleviate] the situation”, he decided that he “would go through with a dismissal”.
287 A letter of dismissal was compiled and used as a script by Mr Hall in a subsequent interview, in which Mr Cicciarelli was advised that his employment was terminated. This letter informed Mr Cicciarelli that the reasons for his dismissal were that:
● after your attendance at the meeting between the TWU and Qantas at 11.30 am on Friday 13 February 2009, you met in the lunchroom with other Qantas employees, including with some part-timers, during the course of the afternoon.
● at this meeting the issue of the selection of part-time employees for temporary full time employment was discussed (amongst other issues) and you determined to conduct a meeting the following morning, Saturday 14 February 2009, at which you would conduct a report back to employees.
● you understood that the report back meeting was likely to lead to a stoppage by employees in protest against the Company’s position on that and other issues.
● you intended at the report back meeting to report back on the part-time issue, which was not the subject of the meeting on 13 February 2009 between the TWU and Qantas.
● you knew that this was a significant issue and that it was likely to result in unlawful industrial action.
● you did not seek authorisation from Qantas management to conduct this report back on Saturday 14 February 2009.
● you failed to refer any matters which were the subject of a dispute between Qantas and its employees to be conducted in accordance with the dispute resolution process pursuant to clause 11 of the Transport Workers’ Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011).
● upon attending the workplace on Saturday 14 February 2009 you immediately commenced organising employees to attend a meeting in the lunchroom at 10.00 am.
● the purpose of the meeting was to advise the results of the meeting the previous day; to discuss the outstanding issues regarding part time employees and to encourage or incite industrial action by ramp employees.
● you led the 10.00 am meeting and reported back to employees on matters which were not the subject of the meeting on Friday 13 February 2009 between Qantas and the TWU. You knew that this reporting back would be likely to result in a stoppage of work.
● you conducted a vote concerning a proposed unlawful stoppage of work with a group of employees in the lunchroom at this meeting.
● shortly after 10.00 am you and Chris Briggs informed Shane Murphy that “the boys had walked” meaning that the ramp employees had unlawfully stopped work.
● you ceased work and incited or encouraged others to do so which resulted in a complete stoppage of work by Melbourne ramp employees.
● you directed at least two employees to cease work and attend at the lunchroom.
● the stoppage of work that arose from the 10.00 am meeting caused significant loss and damage to Qantas.
● you were directed to return to work between 10.40 am – 10.50 am and 12.30pm by Doug Brooke. You refused to do so.
● you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth)).
● you engaged in conduct which was likely to bring Qantas into disrepute and was likely to damage the reputation, viability or profitability of Qantas.
● you failed to provide open and frank answers to the questions asked of you during the investigation.
Luigi, your conduct constitutes a serious breach of the following:
● the terms and conditions of your employment with Qantas as an Airline Services Operator, including your obligations pursuant to your contract of employment, the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011) and Qantas’ Policies and Procedures (including Qantas’ Standards of Conduct);
● your obligation to abide by Qantas’ Standards of Conduct Policy, including the requirement to act with honesty and integrity; demonstrate Company and Qantas Group values and to not engage in unacceptable behaviours (see clauses 4 and 5);
● your obligation to conduct yourself in a manner of trust and confidence as an employee of Qantas.
288 The evidence was clear that the respondent’s response to Mr Cicciarelli’s and Mr Inguanti’s conduct was determined by Mr Hall. I accept that, acting on Mr Smith’s findings as reported to him, Mr Hall took responsibility for summarily dismissing the applicants. With respect to Mr Inguanti, the findings that Mr Smith made and Mr Hall accepted were clearly open on the material collected in the investigation, particularly bearing in mind the statements in the investigation of Ms Corrente, Mr Brooke, Mr Parsons and Mr Giles, as well as the lack of corroboration for Mr Inguanti’s own account. Mr Hall plainly believed that Mr Inguanti’s conduct was not authorised by the TWU; and that it was unlawful and justified termination. Indeed, the investigation yielded no evidence that Mr Inguanti’s conduct on 14 February 2009 was in any sense authorised by the TWU or lawful; and the applicants did not submit to the contrary.
289 There was nothing in the evidence about the investigation, including the documents created in the course of the investigation, to justify an inference that Mr Inguanti was terminated for reasons that included his status as a delegate. Further, as senior counsel for Qantas submitted, it was never put to Mr Smith that he did not genuinely make the findings he claimed to make about Mr Inguanti’s participation; and it was never put to Mr Hall that he did not genuinely accept the findings as conveyed to him by Mr Smith. Nor was it specifically put to them that they were affected by the fact that Mr Inguanti was a TWU delegate or, more simply, a troublemaker. Further, it is clear that neither Mr Hall nor Mr Smith believed that Mr Inguanti’s conduct fell within s 793(1)(o) of the Act.
290 With respect to Mr Cicciarelli, Mr Smith denied that, in making his findings, he was influenced by the fact that Mr Cicciarelli was a delegate. As already stated, I found Mr Smith to be an honest and reliable witness. I accepted his evidence in this regard. With respect to Mr Cicciarelli, it was plainly open to Mr Smith to make the findings he did, having regard to the material gathered by him in the course of the investigation. I accept that his findings represented his genuine assessment of Mr Cicciarelli’s actions on 13 and 14 February 2009.
291 Mr Smith’s notes prepared in the course of the investigation showed, moreover, that he pursued his investigatory task in a fair and methodical way, seeking to ascertain, as best he could, what had happened on 14 February, how relevant employees had conducted themselves that day, and the reasons for their conduct.
292 Mr Hall denied that it was part of his reasons for deciding to terminate Mr Cicciarelli’s employment that Mr Cicciarelli was a delegate and/or that his previous activities in that capacity were troublesome. As already stated, Mr Hall was a credible witness, and I accepted his evidence in this regard. It was open to him to rely on Mr Smith’s findings as he did.
293 I accepted the substance of Mr Hall’s testimony that his reasons for terminating Mr Cicciarelli’s employment were that, on 13 and 14 February 2009, Mr Cicciarelli engaged in organising and inciting industrial action; that conduct was unlawful; and that conduct was not authorised by the TWU. Further, it is clear enough that neither Mr Hall (nor Mr Smith) believed that Mr Cicciarelli’s conduct fell within s 793(1)(o) of the Act.
294 Mr Hall plainly believed that Mr Cicciarelli’s (and Mr Inguanti’s) conduct was more serious than that of the other participants in the events of 14 February. Thus, Mr Hall said, and I accept, that he assumed responsibility for deciding what should be done in the case of the other employees who were stood down – Mr Storen, Mr Briggs, Mr Sarmo and Mr Fischer – and that in their case he accepted that “they were not at the core of the incident” and that they should be given final warnings and returned to work.
295 To sum up, the evidence of the subjective reasons of the ultimate decision-maker, Mr Hall was that he had taken the decision to dismiss the applicants because they were guilty of misconduct and that he was not influenced by their status as delegates. Mr Smith, whose findings were accepted by Mr Hall, gave evidence that his findings included that Mr Cicciarelli had organised and incited industrial action and Mr Inguanti had attempted to organise and incite industrial action. Both Mr Hall and Mr Smith believed that the union had not authorised the industrial action. Both were aware that there might be difficulties because the applicants were delegates. I have accepted their evidence.
296 The applicants submitted, however, that there were other considerations aside from this evidence that should lead the Court to conclude that their employment was terminated for reasons that included that each was a delegate of the TWU.
297 The applicants argued that, even if Mr Hall was genuinely of the view that they had engaged in conduct sufficient to warrant summary dismissal, the Court should not accept that this view was a comprehensive expression of the reasons for their dismissal; and that Mr Hall’s reasons were not separate from the circumstance of the applicants being delegates. Because Mr Hall had adopted Mr Smith’s findings, then, so the applicants argued, “his stated intention [was] not a comprehensive exposition of the reasons for the termination of the applicants’ employment”. The applicants argued that the “Court need[ed] to consider factors which might reasonably have actuated the ultimate decision maker and whether in all the circumstances the fact of the applicants’ delegateship was a material consideration”.
298 As the applicants submitted, it is a question of fact as to whether there is a causal relationship between a proscribed reason and dismissal; and, as noted above, evidence of the subjective reasons of a decision-maker is not determinative of this question. For the reasons I am about to state, however, reference to the attendant circumstances did not have the outcome the applicants urged.
299 Thus, the applicants submitted that it was incorrect to aggregate the reasons for which each was dismissed into one compendious reason – that of organising and inciting industrial action in the case of Mr Cicciarelli and, in the case of Mr Inguanti, attempting to organise and incite industrial action. This was not, so the applicants said, what the evidence revealed. In support of this argument, the applicants relied on the allegations against each of them and the reasons given for dismissing them.
300 As the applicants noted, the initial letters of allegation of 18 February 2009 contained both general and specific allegations. Some allegations were apparently independent of other allegations. Nothing, in my view, turns on this. At the time these letters were written, the investigation was at an early stage. The varied nature of the allegations to which the applicants were asked to respond reflected the fact that at this point Mr Smith was only beginning to gather material that might assist him in understanding what had happened and why. Subsequent letters of allegation focussed more specifically on the facts and circumstances disclosed or indicated as a result of the investigatory inquiries. Plainly enough, these allegations concerned the conduct of the applicants on 14 February 2009. The allegation letters do not support the applicants’ case with respect to s 792 of the Act.
301 The applicants also relied heavily on the reasons given for dismissing them as indicating the incorporation of an impermissible reason. As regards Mr Cicciarelli, his counsel contended that Mr Hall’s evidence showed that there were, in effect, two bodies of reasons for Mr Cicciarelli’s dismissal – the first contained in Mr Hall’s notes of his meeting with Mr Smith on 5 March 2009 (see [164] above) and the second, in Mr Cicciarelli’s letter of dismissal (see [287] above). Turning to Mr Hall’s notes of what Mr Smith told him on 5 March 2009, Mr Cicciarelli’s counsel drew attention to passages in which Mr Hall had recorded:
Allegation against him is that on the Friday he spoke to Mancuso re Part-timers wanting to take industrial action. M Fischer witness.
There seems to have been an element of premeditation.
..
Reports from employees that Cicciarelli presented to a group of people in lunch room in a provocative manner. “Leave it up to you to do what you want”.
…
Lui did not remind employees about disputes procedure, possibility of getting matters into commission. No effort to avert action.
Premeditated on Friday night following discussions with Part-timers.
Tried unsuccessfully to engage TWU.
Did not try to stop action.
Did not try to manage the situation.
Told employees to stop work to go to lunch room. …
Counsel for the applicants submitted that these passages referred to matters associated with Mr Cicciarelli’s role as a delegate – a point that he sought to highlight by noting that some matters were equally applicable to other Ramp employees, though they were not dismissed.
302 Further, counsel for the applicants submitted that the effect of Mr Hall’s evidence was that the reasons for dismissal in Mr Cicciarelli’s letter of dismissal could not be aggregated into one compendious reason – organising and inciting industrial action – but, rather, Mr Hall had relied on each matter separately and the reasons were to be considered in that light.
303 Counsel for the applicants propounded a similar analysis of the reasons for Mr Inguanti’s dismissal. As already noted, the matters that formed the basis of Mr Inguanti’s final interview were contained in his dismissal letter: see [280]-[281]. Again, Mr Inguanti’s counsel argued that Mr Hall relied on each matter separately and the reasons were to be considered in that light.
304 I reject the submission that Mr Hall relied on each matter alleged against Mr Cicciarelli and Mr Inguanti as separate and distinct from each other alleged matter. In relation to Mr Inguanti, Mr Hall’s evidence was that he relied on “[t]hose six findings and the information in his responses. And the fact that Mr Inguanti’s “story not adding up”. In relation to Mr Cicciarelli, Mr Hall’s evidence was that he relied on “the collective – all of those things happening”. I accept Mr Hall’s evidence. The alternative propounded by the applicants is not tenable.
305 The applicants also contended that the allegations in their letters of dismissal showed that the reason for dismissing them included reasons associated with the fact that they were delegates. In relation to Mr Cicciarelli, the applicants’ counsel argued that his dismissal letter:
… shows that the reasons for his dismissal included reasons associated with the circumstance that he was a delegate, in particular:
(i) the letter reveals that the respondent dismissed him for matters associated with him being a delegate, including a matter associated with him being a delegate, but common to all relevant employees;
(ii) the letter reveals that the respondent dismissed him for reasons common to a large number of employees who were not dismissed.
The applicants’ counsel made the same argument with respect to the matters referred to in Mr Inguanti’s dismissal letter.
306 By way of example, the first matter in Mr Cicciarelli’s dismissal letter stated that Mr Cicciarelli “met in the lunchroom with other Qantas employees, including with some part-timers, during the course of the afternoon” on 13 February. Counsel for the applicants maintained that this was conduct engaged in by Mr Cicciarelli in his capacity as a delegate. Counsel made the same submission in relation to the conduct of the report back, the failure to invoke the disputes resolution procedures of Enterprise Agreement 7 and Mr Cicciarelli’s advice to management that the Ramp employees had stopped work (all mentioned in Mr Cicciarelli’s dismissal letter). In this way, counsel for the applicants characterised numerous matters relied on in Mr Cicciarelli’s dismissal letter and Mr Inguanti’s dismissal letter as conduct which occurred in the course of the duty of each as a delegate.
307 Further, counsel for the applicants submitted that the dismissal letters revealed that Qantas had dismissed Mr Cicciarelli and Mr Inguanti for reasons common to a large number of employees who were not dismissed. For instance, Mr Cicciarelli’s dismissal letter stated that “you failed to conduct yourself in accordance with Qantas’ values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth))”. Counsel for the applicants submitted that this statement was also applicable to the other employees who participated in the industrial action. Counsel made the same point about a range of other matters mentioned in Mr Cicciarelli’s and Mr Inguanti’s letters of dismissal. Having regard to these statements, so the applicants’ counsel submitted, the proper inference to draw was that Mr Cicciarelli and Mr Inguanti were treated differently for reasons associated with the circumstance that each was a delegate.
308 I reject the submission that I should infer from any of the dismissal letters, or from the other evidence concerning Mr Hall’s reasons, that Mr Cicciarelli and Mr Inguanti were dismissed for reasons associated with the circumstance that they were delegates. As already stated, I accept that Mr Hall, as advised by Mr Smith, genuinely believed that not only had the applicants been involved in the industrial action on 14 February, but that their position differed from that of other employees, because none of the other employees had organised and incited, or had attempted to organise and incite, the industrial action. This is consistent with a proper reading of the dismissal letters and the other evidence as to Mr Hall’s reasons – all of which are properly to be read and understood as a whole and not dissected in the manner for which the applicants contended.
309 Each of the various matters mentioned in the dismissal letters was in the nature of a finding along the way to the conclusion that the applicants had organised and incited or attempted to organise and incite the work stoppage that day. As noted above, I accept that, as the respondent submitted, the matters referred to in Mr Hall’s reasons should not be considered in isolation from one another. Mr Hall’s evidence regarding his decision to dismiss Mr Cicciarelli (which I accept) showed that Mr Hall considered matters as a whole, and the impact that Mr Cicciarelli’s conduct had had on Qantas. Thus, Mr Hall said (and I accept) “I sat in my room by myself for a while and read it all again. I decided it was a very serious offence. It had inconvenienced a lot of our people. It had put the company and our operation in jeopardy…”.
310 Mr Cicciarelli was not dismissed simply because he made a report back. Nor was he dismissed because Mr Hall (or Mr Smith) considered that he had lost control of the meeting. Rather, Mr Cicciarelli was dismissed because Mr Hall (and Mr Smith) believed (amongst other things) that, at the report back on 14 February, he set out to, and did, organise and incite industrial action. This organisation and incitement was not authorised by the TWU. In this regard, Mr Cicciarelli was not in fact acting as a delegate of the union. Mr Inguanti asserted that he was acting as an OH&S representative but his assertion was not believed by Mr Hall (or Mr Smith).
311 The applicants relied on two further factors as indicative of the fact that they were dismissed for a reason that included their delegate status. The applicants contended that Mr Hall’s reasons for dismissing them “were informed by his view as to the[ir] role … within the workplace”. The applicants specifically relied on Mr Hall’s evidence that, in his view, delegates held leadership positions in the workplace and that he expected delegates to behave accordingly – that is, delegates were to encourage union members to comply with agreed disputes resolution procedures. I accept that Mr Hall held these views and that he therefore considered that Mr Cicciarelli and Mr Inguanti in their capacity as delegates had particular obligations that differed to some extent from the Ramp and Baggage Room employees who were not delegates. This proposition is unremarkable. A delegate might reasonably be expected to have responsibilities as a delegate that do not attach to a non-delegate. As the respondent submitted, however, this did not excuse misconduct or permit a delegate to engage in unlawful and unauthorised activities.
312 Counsel for the applicants submitted that the respondent could not rely on the status of being delegate – acquired by virtue of union membership and affiliation – as a reason to expect more of an employee and use a failure to meet that expectation as a reason for dismissal. This may be accepted. Counsel argued that the real reason that Mr Hall dismissed the applicants and not the other employees also involved in the industrial activity of 14 February 2009 was that he expected more of the applicants than the other employees because the applicants were delegates. I reject this submission. The evidence in this case does not justify the conclusion that Mr Hall’s particular expectation about a delegate’s conduct formed any part of his reasons for dismissing the applicants. As I have said, the gravamen of Mr Hall’s reasons for dismissing Mr Cicciarelli was that he had organised and incited industrial action and, in Mr Inguanti’s case, that he had attempted to organise and incite industrial action; and that the union had not authorised any of this industrial action, whether actual or attempted. That is, Mr Cicciarelli and Mr Inguanti were dismissed for unlawful conduct that was not authorised by the union. In this sense, they were not dismissed because they were delegates at all. The kind of difficulty that arose in Barclay does not arise in this case.
313 The second factor that the applicants relied on in this connection arose from their activities as delegates in the workplace. There was evidence (which I accept) that, in the year or so prior to termination, the applicants had been active union delegates. There was evidence that Mr Brooke had told Mr Hall that he thought the applicants were troublemakers. There was also evidence that, in the previous six months, Mr Hall had been unhappy and frustrated with Mr Cicciarelli about roster options. The applicants particularly relied on the email from Mr Hall about roster options, in which he had stated that Melbourne management was working “very hard … to undermine Cicciarelli’s credibility with the workforce and the TWU”: see [154] above. Counsel for the applicants argued that this email was significant for two reasons – first, because it “[was] a little window to Mr Hall’s modus operandi”; and, secondly, because it was “reflective of his view of the importance of the position of delegate in a workplace”.
314 Having heard all the evidence, however, I reject the proposition that this email, either alone or with other evidence, justifies a finding that, as at 14 February 2009, Mr Hall and/or other members of Qantas’ management were actively involved in a campaign against Mr Cicciarelli and/or that Mr Hall was motivated to dismiss Mr Cicciarelli because of his past activities as a delegate. I accept Mr Hall’s evidence about the circumstances addressed by the email and that these circumstances did not enter into his reasons to dismiss Mr Cicciarelli.
315 Further, the evidence does not justify a finding that the investigation led by Mr Smith was in any way biased in favour of dismissing Mr Cicciarelli or Mr Inguanti. Mr Smith had dealings with both applicants in their role as delegates. There was, however, no evidence to justify the view that Mr Smith was, for this reason, biased against them. In this context, I observe that Ms Corrente, who assisted Mr Smith, did not have any adverse view of the applicants. Further, there was no evidence that indicated that Mr Brooke’s views about the applicants, even if unfavourable, affected the course of the investigation or Mr Smith’s findings as conveyed to Mr Hall. Mr Smith was, plainly enough, an independent and fair-minded person. As already stated, he conducted the investigation in a fair and orderly way. In this connection, I note that the record of the investigation, including the applicants’ letters of response, indicates that the applicants failed to take proper advantage of the opportunities provided to them to explain their conduct on 14 February 2009. Mr Smith reached his conclusions fairly, after an appropriate investigation.
316 I would therefore reject the applicants’ submission that the evidence about their activities as delegates should lead me to find that Mr Hall made his decision to dismiss them for a prohibited reason, or for reasons that include a prohibited reason.
317 Further, I would reject the applicants’ assertion that the deficiencies in the investigation were such as to infect the findings made by Mr Smith and accepted by Mr Hall. I accept Mr Hall’s evidence that he took time to consider the position of each applicant, having regard to Mr Smith’s reported findings and did not reach his own decision because of any subjective bias against them. When read fairly, there is nothing in the evidence concerning the investigation or in the voluminous documents created in the course of the investigation that demonstrates that a prohibited reason was part of the reasons for the decisions to dismiss Mr Cicciarelli and Mr Inguanti.
318 I accept that the investigation process had faults. In view of his previous dealings with the applicants, Mr Hall may not have been the ideal choice as decision-maker. Perhaps it would have been better if neither Mr Brooke nor Ms Corrente had been involved in the investigation process since both were also directly involved in the events of 14 February 2009 (although Qantas’ policy contemplated the involvement of relevant managers). Nonetheless, I accept that, as counsel for the respondent submitted, the investigation was, overall, a reasonable attempt by Qantas to get to the bottom of the events of the day.
319 The evidence satisfies me that, on the balance of probabilities, Mr Inguanti’s and Mr Cicciarelli’s employment was not terminated for reasons that included that they were delegates or officers of the TWU. It follows that Qantas discharged the onus of proving that the applicants were not dismissed for a prohibited reason, or for reasons that included prohibited reasons.
320 For the reasons stated, I would reject the applicants’ claim that they were unlawfully dismissed because they were delegates and officers of the TWU in contravention of s 792 of the Act.
The contract claim
321 On or about 23 December 1996, Mr Cicciarelli and Qantas entered into a contract of employment. Qantas’ letter of engagement stated:
Qantas’ policies and procedures set out conditions which are relevant to your employment. You are required to comply with such policies and procedures as determined or varied from time to time where relevant and any breach of those policies and procedures may result in you being disciplined and/or dismissed where appropriate. A copy of the Corporate Policies and Procedures Manual is available from your divisional Employee Relations Manager, or (other position or location to be specified) upon request. It is your responsibility to keep up to date and seek information regarding Qantas policies and procedures.
…
Your employment may be terminated by yourself or by the Company in accordance with the following schedule or by equivalent payment in lieu of notice.
Employees period of continuous service with the Employer | Notice of period |
Not more than 1 year | 1 week |
More than 1 year but not more than 3 years | 2 weeks |
More than 3 years but not more than 5 years | 3 weeks |
More than 5 years | 4 weeks |
NB: The period of notice is increased by one week if the employee is over 45 years old and has completed at least 2 years continuous services with the employer.
Qantas shall terminate your employment without notice in the event of serious misconduct or other sufficient cause, in which case salary and other remuneration is payable up to the date of dismissal only. Serious misconduct includes but is not limited to theft, consumption of or being under the influence of alcohol whilst on duty, fighting and matters as set out in the Company Policy and Procedures Manual. (Emphasis added.)
322 On or about 18 May 2002, Mr Inguanti and Qantas entered into a contract of employment. Qantas’ letter of engagement stated:
You are required to comply with Qantas policies and procedures as determined or varied by Qantas from time to time. Any breach of these policies and procedures may result in you being disciplined and, where appropriate, dismissed. A copy of the Qantas Policy Manual is available from your Human Resources Manager, upon request or can be accessed through the Qantas intranet site. In addition, a copy of the current Standards and Conduct Policies and the IT Usage Policy are attached. It is your responsibility to keep up to date and seek information regarding Qantas policies and procedures.
…
Your employment may be terminated by you[] or by Qantas giving notice of termination in accordance with the following table:
Employees period of continuous service with the Employer | Notice of period |
1 year or less | 1 week |
1 year and up to 3 years | 2 weeks |
3 years and up to 5 years | 3 weeks |
5 years and over | 4 weeks |
If, at the time of the termination of your employment you are over 45 years of age and have completed more than two years continuous services with Qantas, Qantas will give you an extra week’s notice. Qantas may, instead of giving you notice, pay you an amount equal to your salary for the period of notice not given.
Qantas may terminate your employment without notice in the event of serious misconduct or other sufficient cause, in which case salary and other remuneration is payable up to the date of dismissal only. “Serious misconduct” includes but is not limited to theft, consumption of or being under the influence of alcohol or other drugs whilst on duty, fighting, representing Qantas without authorisation, including acting in a manner that will bring Qantas’ image into disrepute, and other matters in accordance with Qantas policies as varied from time to time. (Emphasis added.)
323 In terms, the applicants’ letters of engagement contemplated that Qantas might dismiss the applicants without notice for serious misconduct or other sufficient cause. The expression “serious misconduct” is inclusively defined in the letters of engagement. This definition and the context in which it is used indicate that “serious misconduct” here means much the same as “misconduct” in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 (Smithers and Evatt JJ), 616 (Franki J).
324 Qantas maintained (and broadly speaking I accept) that these letters of engagement incorporated the company’s policies, including the Standards of Conduct Policy and the Employee Misconduct and Disciplinary Policy and, in consequence, they too formed part of the applicants’ employment contracts.
325 The preamble to the Standards of Conduct Policy stated:
Employees are expected to be aware of and comply with this policy, other relevant Company and Qantas Group policies as well as obligations set out in relevant legislation. Where breaches of this policy occur, disciplinary action will be taken in accordance with the Employee Misconduct and Disciplinary Policy, which in serious cases may include termination of employment.
326 Qantas relied on various provisions of this Policy, including clause 2.2(d) and (g) and clause 5.5. Pursuant to clause 2.2(d) and (g), employees were responsible for, amongst other things, “acting in the best interests of the Company and the Qantas Group at all times” and “seeking advice and/or authorisation before undertaking an action or activity that may be contrary to the Company policy”. Clause 5.5 read as follows:
Staff must not engage in Unacceptable Behaviour. Unacceptable behaviour includes, but is not limited to:
…
breach of relevant laws and regulations.
327 The expression “relevant laws and regulations” is not defined in the Policy document. Ordinarily, one would expect that a breach of the Act would fall within the expression. In particular, as at 14 February 2009, employees were prohibited from organising or engaging in industrial action by virtue of s 494(1) of the Act. Clause 11 of Enterprise Agreement 7 made provision for the procedure to be followed to settle industrial disputes. Organising or attempting to organise industrial action in breach of s 494 of the Act would, I accept, fall within “breach of relevant laws and regulations” in clause 5.5 of the Qantas’ Standards of Conduct Policy. Accordingly, organising or attempting to organise industrial action would constitute unacceptable behaviour within the meaning of that clause.
328 Clause 13.3 of the Standards of Conduct Policy further provided:
(a) Where an Employee breaches this policy, action will be taken in accordance with the Employee Misconduct and Disciplinary Policy. In serious cases, such action may include termination of employment.
(b) Any appeals regarding disciplinary action or grievances will be dealt with in accordance with the Employee Appeals Policy.
329 The Employee Misconduct and Disciplinary Policy (referred to in clause 13.3) commenced as follows:
1. Policy Objectives
…
1.2 This policy sets out a framework whereby Employees and Managers can address issues of Unacceptable Behaviour and Misconduct by:
(a) ensuring Employees and Managers are aware of their rights and responsibilities with respect to the Company’s disciplinary process;
(b) taking steps to improve Employee conduct where necessary; and
(c) ensuring that all matters involving inappropriate conduct are dealt with fairly, objectively, promptly and consistently.
2. Application
…
2.2 This policy applies in respect of conduct which relates in any way to employment with a Qantas Group company, or in connection with a Company provided benefit. This includes, but is not limited to, Employees who are:
(a) on Company Premises;
(b) on duty in any place where Staff of any Qantas Group Company are working;
…
2.3 This policy operates in conjunction with relevant awards, workplace agreements, legislation and other Company and/or Qantas and/or Qantas Group policies including but not limited to the Qantas Group Standards of Conduct Policy, IT Usage Policy and the Employee Grievance Resolution Policy.
330 Clause 3.2 provided that employees were responsible for:
(d) participating fully in any disciplinary investigations so that:
(i) their version of events can be heard;
(ii) any allegations can be fully investigated and appropriate action taken; and
(iii) any training or development issues or barriers to improvement can be identified and addressed …
331 Part 4 of the Employee Misconduct and Disciplinary Policy concerned the Qantas disciplinary process. In particular, clause 4.3 stated:
Where Serious Misconduct is alleged, the incident must be managed formally. An investigation must be conducted fairly and promptly and in accordance with this policy and/or any other process set out in a relevant award or workplace agreement.
A “formal process” was set out in clause 4.6, with provision for: (1) interim actions including suspending employees; (2) procedural fairness; and (3) the investigation process. Investigations were to be “confidential, prompt and procedurally fair” and involved the following stages: gathering evidence; preparing a letter of allegation; obtaining written responses and reports; conducting interviews; and
(vii) after all of the above, making an assessment of the evidence and a determination of whether the allegation is substantiated or unsubstantiated on the balance of probabilities;
(viii) preparation of an investigation report, including recommendations for action to be taken in regards to any substantiated allegations; and
(ix) communication of the findings of the investigation to the Complainant and the Respondent. This communication should be made by the investigator, face to face where possible. (Emphasis added.)
332 Clause 4.6(g) made provision for determining the appropriate outcomes and taking disciplinary action.
333 Pursuant to the applicants’ contracts of employment, Qantas had power to terminate an employee’s employment, with or without notice, depending on the circumstances. When the applicants’ letters of engagement and Qantas’ policy documents, particularly clause 4.6 ([331] above), are read together, the contract provided that Qantas was bound to determine whether an allegation of serious employee misconduct was substantiated on the balance of probabilities by reference to the evidence obtained in the investigation. See generally Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40].
334 It follows from this that, under the contracts of employment with the applicants, it was for Qantas to determine on the balance of probabilities on the evidence in the investigation whether the serious misconduct allegations to which the events of 14 February 2009 gave rise were made out. Under the contracts, this was not a question for resolution by a court. For present purposes, I assume that Qantas bore the onus of proof that it had made the determinations concerning Mr Cicciarelli and Mr Inguanti in the manner required by their employment contracts.
335 Qantas conducted an investigation under the Employee Misconduct and Disciplinary Policy into allegations of serious misconduct on the part of a number of its employees. Mr Smith conducted the investigation in accordance clause 4.6 of that policy. The investigation was appropriate and clearly bona fide. Mr Smith’s evidence about the investigation and his findings concerning Mr Inguanti and Mr Cicciarelli established that he made his determination as to whether or not the allegations against them were substantiated on the evidence on the balance of probabilities. As noted above, Mr Hall accepted Mr Smith’s findings as reported to him and determined to dismiss the applicants summarily after conscientious reflection on Mr Smith’s report to him. That is, after conducting a bona fide investigation, Qantas determined on the balance of probabilities that Mr Cicciarelli had engaged in serious misconduct – namely, the organisation and incitement of unprotected industrial action. Qantas also determined on the balance of probabilities that Mr Inguanti had engaged in serious misconduct – namely, the attempted organisation and incitement of unprotected industrial action. Having so determined, Qantas decided that their conduct justified their summary dismissal. In this way, Qantas fulfilled its relevant contractual obligations.
336 The applicants referred to an implied term of a duty of mutual trust and confidence, but this does not assist them. The contracting parties can modify or exclude a term of this kind; and, in this case, such a term would not override the contractual provisions to which reference has been made. Compare Malik v Bank of Credit and Commerce International SA [1998] AC 20 at 45. Indeed, whilst some authorities favour the implication of a term of mutual trust and confidence (and, perhaps, good faith), others have expressed doubt about this proposition: see, for example, Tracey J’s discussion in Van Efferen v CMA Corporation Ltd (2009) 183 IR 319 at 337-338 [79]-[86]; Rogan-Gardiner v Woolworths Ltd (No 2) [2010] WASC 290 at [112]-[125] (Hall J); and State of South Australia v McDonald (2009) 104 SASR 344 at 383-390 [206]-[239]. It is unnecessary to resolve this debate because, in this case, even if there were such terms in the applicants’ employment contracts, I would, for the reasons indicated, reject the proposition that they were breached.
337 As stated earlier, whilst acknowledging that the investigation had its faults, I would reject the applicants’ challenge to the investigation process and the findings made by Mr Smith and accepted by Mr Hall. The applicants were fully informed of the allegations against them and given ample opportunities to respond. Mr Smith reported the outcome of the investigation led by him to Mr Hall, the relevant manager at the time, and recommended that a decision be made with respect to the applicants. Mr Hall accepted Mr Smith’s report and made his decisions to dismiss the applicants summarily. Mr Smith and Mr Hall discharged their responsibilities fairly and conscientiously. Even if Mr Smith should have provided a written, as opposed to an oral, report (which I doubt), the applicants did not argue that the absence of a written report had any material affect on the outcome of the investigation. There was indeed no evidence to support any such argument.
338 The applicants also argued, however, that it was not enough that Qantas determined, in the manner discussed, that the serious misconduct allegations against them were substantiated. The applicants contended that, under their contracts of employment, they could not be summarily dismissed unless they in fact engaged in conduct justifying summary termination; and that this required Qantas to satisfy the Court that they had engaged in such conduct.
339 Earlier in these reasons for judgment, I set out the facts as I found them on the evidence adduced at the trial. I note that the evidence led at trial was greater than the material gathered in the investigation.
340 I have found that: (1) Mr Cicciarelli attended work on 14 February 2009 with the intention of holding a report back meeting at which he would raise matters that he knew might well lead to industrial action; (2) on that Saturday morning, Mr Cicciarelli conducted the report back that had the effect of angering the Ramp employees; (3) Mr Cicciarelli would have known that his report back would anger them and lead to a vote to stop work; and (5) Mr Cicciarelli took no steps to dissuade the employees from stopping work, either before the vote was taken or subsequently when his attempts to contact the union had failed. On the facts as found, I am satisfied on the balance of probabilities that Mr Cicciarelli organised and incited the work stoppage to put pressure on the union and on Qantas, with respect to the industrial matters that he had agitated the previous day.
341 As indicated at the outset of these reasons, counsel for the applicants argued that, having regard to the large overall size of the Ramp staff on 13 and 14 February 2009, and the relatively small number of Ramp staff who were at work on both days (who included an even smaller number of part time staff), the “Grand Plan” that the respondent attributed to the applicants was untenable. I reject this submission. Mr Cicciarelli’s conduct did not involve a Grand Plan, of the kind to which the applicants referred.
342 Further, I have found that, on 14 February 2009, Mr Cicciarelli knew the parameters of the industrial regime that governed him and the Ramp employees. In particular, Mr Cicciarelli knew that, under Enterprise Agreement 7, work was to continue whilst an industrial dispute was determined in accordance with the disputes resolution procedure in the Agreement. He also knew that the work stoppage was unprotected and unlawful, as well as contrary to Qantas’ policies.
343 I have also found that, on 14 February 2009, Mr Cicciarelli had no reason to believe that Mr Mancuso or any other TWU official would be available to attend at the airport on that Saturday. In the circumstances, especially having regard to his conversation with Mr Mancuso on the evening of 13 February and his conversation with Mr Brooke in the morning of 14 February, Mr Cicciarelli must also have know that the work stoppage did not have the union’s authorisation or endorsement. Mr Cicciarelli’s actions with respect to the work stoppage were not done to advance the industrial position of the union.
344 On the facts as found, I would conclude that Mr Cicciarelli’s conduct on 14 February 2009 constituted the organisation and incitement of unlawful industrial action. Mr Cicciarelli must have known at the time that the industrial action would cause substantial damage to Qantas, as in fact it did. This conduct would fall within the expression “serious misconduct”.
345 The evidence at trial established that Mr Cicciarelli’s conduct was in breach of the contract of employment between Qantas and Mr Cicciarelli. In the circumstances, it was open to Qantas to determine that Mr Cicciarelli’s conduct constituted serious misconduct, which justified summary dismissal pursuant to the employment contract between him and Qantas. Even on the applicants’ construction of the contract, Mr Cicciarelli failed to establish that Qantas had breached his employment contract, as he alleged.
346 Mr Inguanti’s case was that he had attended the airport on Saturday, 14 February 2009, because of OH&S concerns first raised by a Mr Fox; and that he had not attended to take a vote to see whether the Baggage employees would stop work in support of the Ramp. The evidence was overwhelmingly against him.
347 Mr Inguanti failed to identify the source of the OH&S concerns during the investigation and named Mr Fox only when he filed his outline of evidence. As already noted, Mr Fox was ultimately not called as a witness. The evidence showed that Mr Inguanti felt strongly about the issues raised at the 13 February meeting and was angry with the union for its lack of support; that he discussed these issues with Mr Cicciarelli after the meeting; and that he attended work the next day specifically to facilitate a vote on whether to stop work – in support of the Ramp employees. I reject Mr Inguanti’s evidence that the possibility of industrial action never crossed his mind on 14 February 2009.
348 I reject Mr Inguanti’s claim that he was not given an opportunity during the Qantas investigation to explain the OH&S issues that motivated him to act as he did, or to answer the allegations against him. He might have set out a full explanation in his letters of response or sought to explain himself in his interviews but he did not do so.
349 There were at trial numerous contradictions and inconsistencies in Mr Inguanti’s evidence as to when he became aware of the alleged OH&S issue. Ultimately, I have found that, after making numerous phone calls, he came into work, entered the Baggage Room, subsequently spoke with Mr Cicciarelli, then returned to the Baggage Room where he took a vote on whether to stop work in support of the Ramp employees. Mr Inguanti made no attempt to contact Qantas management about any OH&S issue before taking the vote because, in his own words, he did not “think it was relevant at that point”. These were not the actions of an employee who had a genuine OH&S concern and was motivated to act because of that concern. Further, on first meeting with Mr Brooke and Mr Corrente, Mr Inguanti did not inform them that he was at the airport on account of an OH&S concern, as one would have expected if this was his motivating reason. Rather, I have found that the OH&S claim emerged only after Mr Inguanti found that he had been denied access to the Baggage Room. I find that Mr Inguanti’s claimed OH&S concern was no more than a ruse, either to gain access to the workplace or to disguise his earlier activities.
350 On 14 February, Mr Inguanti wanted to alert the media to the events at the airport. As Qantas submitted, his efforts to contact Channel 7 were more consistent with a desire on his part to draw the media’s attention to the stoppage by the Ramp employees, and, in so far as he was able, to foster their cause. Mr Inguanti agreed in evidence that telephoning Channel 7 was “of no benefit to no one [sic]”; and he did not mention that he had telephoned Channel 7 either in his outline of evidence or during the Qantas investigation.
351 I would infer from the circumstances established by the evidence in this case that Mr Inguanti attended the airport on 14 February 2009 in order to hold a vote of Baggage Room employees to decide whether they would stop work in support of the Ramp. Mr Inguanti’s conduct in this regard was the attempted organisation and incitement of industrial action and was as such unlawful and in breach of Qantas’ policies. Mr Inguanti’s conduct in this regard was “serious misconduct”, in breach of the contract of employment between him and Qantas.
352 Mr Inguanti was, moreover, well aware that Enterprise Agreement 7 made provision for the resolution of disputes that arose in the Baggage Room and on the Ramp. On a number of occasions, Mr Inguanti had in fact raised issues on behalf of members in his own name and initiated disputes resolution under that procedure. Mr Inguanti was also aware that the Agreement provided that work was to continue pending the resolution of a dispute and that he was required to comply with Qantas’ policies and procedures during the course of his employment, including the Standards of Conduct Policy.
353 The evidence at trial established that Mr Inguanti’s conduct was in breach of the contract of employment between him and Qantas. In the circumstances, it was open to Qantas to determine that Mr Inguanti’s conduct constituted serious misconduct justifying summary dismissal. Even on the applicants’ construction of the contract, Mr Inguanti failed to establish that Qantas had breached his employment contract, as he alleged.
354 For the reasons stated, I would dismiss the applicants’ claim for damages for breaches of their employment contracts said to be constituted by their summary dismissals.
DISPOSITION
355 For the reasons stated, I would dismiss the applicants’ amended application dated 21 July 2009.
I certify that the preceding three hundred and fifty-five (355) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
