Qantas trainer sacked over a first aid demonstration is reinstated

What happened

Daniel Matthews worked for Qantas from 1 August 2013 and became an Aviation Safety Training Instructor in Flight Operations. On 7 January 2021 he ran a recurrent aviation medical and security course at the Qantas Jet Base in Sydney. Because of COVID-19, the participants wore face masks and sat well apart.

Teaching first aid observation, Mr Matthews picked a participant to demonstrate on without asking for a volunteer. From at least about 1.5 metres away, he looked at her face, then at her chest to check her breathing. That evening she emailed her manager. She said he had stared at her chest, sniggered as he told the class he had been staring at it to see if she was breathing, and laughed when her face went red.

Qantas investigated, and he was told not to attend work in the meantime. The investigator found most of the allegations substantiated. On 13 August 2021 Qantas dismissed him for breaching its conduct policy, including conduct that "arguably could constitute sexual harassment". He lodged an unfair dismissal claim.

The legal test

Under the Fair Work Act 2009 (Cth), a dismissal is unfair if it is harsh, unjust or unreasonable. In deciding that question the Commission must weigh the factors in s 387, and the first is whether there was a valid reason for the dismissal related to the employee's capacity or conduct. A valid reason is one that is sound and well founded.

Importantly, the Commission does not ask only whether the employer believed the allegations. It decides on the evidence before it what actually happened, and then whether that conduct was a valid reason. Here both Mr Matthews and the complainant gave evidence and were cross-examined, something that, as the Commissioner noted, had not happened to the complainant during the investigation.

What the Commission found

Commissioner McKenna accepted that the complainant's evidence showed she felt embarrassed and upset. But on the contested facts she mostly preferred Mr Matthews' evidence. She found that he had "signposted" the demonstration by asking the class and then the complainant "How are you going?", and that he looked at her chest for about 2–3 seconds, not the 10–20 seconds the complainant estimated.

She found that he did not snigger or laugh, did not say he had been deliberately staring at her chest, and did not compare her face to a colleague's uniform. The complainant had been wearing a surgical-style mask and glasses, and that comment was not in her first email. She also found that the complainant did not say "Please stop, you are making me feel uncomfortable"; she had said "Can we just move on", which he reasonably took to be about time.

At the hearing, Qantas's barrister began describing the area he looked at as her "breast area", a term never used in the investigation. The Commissioner rejected "any suggestion that the applicant was involved in any form of ogling". She said the late change carried "at least the appearance of an attempted bolstering" of a "highly contestable" ground.

Why there was no valid reason

With those findings made, the conduct Qantas relied on largely fell away. She found that the comments Mr Matthews made were "matter-of-fact" first aid instruction, not personal comments about the complainant. The Commissioner agreed with his lawyers that "the subjective reaction of another is not itself enough": an employee must have done something that objectively warrants dismissal.

She also found that the investigation and decision "focussed on the subjective reactions of the complainant rather than properly balancing with a fuller consideration of what unfolded and the context". She accepted that Qantas had taken the complaint seriously and acted conscientiously. She also stressed that nothing in her decision should discourage anyone from making a complaint.

Mr Matthews conceded he should have asked for a volunteer. But the Commissioner found it was a brief, well-distanced demonstration and, without a valid reason, the dismissal was harsh, unjust and unreasonable.

Reinstatement, and the appeal

Reinstatement is the primary remedy for unfair dismissal. Qantas opposed it, pointing among other things to a formal warning Mr Matthews had received in November 2019 over comments made during an earlier course. The Commissioner held that past matters which had not led Qantas to dismiss him at the time should not now block his return. She ordered that he be reappointed within 21 days, with continuity of employment and lost pay, the amount to be worked out between the parties.

Qantas sought permission to appeal. On 21 June 2022 a Full Bench refused it in Qantas Airways Limited v Daniel Matthews [2022] FWCFB 111. It found that the Commissioner's unchallenged findings showed Mr Matthews "engaged in a legitimate demonstration exercise", and that her approach to reinstatement was rational.

What this means for you

If you are accused of misconduct, the facts and their context matter. A complaint, even one an employer finds credible, is not the end of the story. It is worth responding to each allegation in detail, asking to see the evidence relied on, and pointing out where accounts differ.

For employers, the case is a reminder to test a complaint against the other evidence before acting on it, and to put the same case to the employee that you will later rely on. If you have been dismissed, a Fair Work unfair dismissal claim must be lodged within 21 days.