Aviation First Aid Training
An Aviation Safety Training Instructor for Flight Operations had been employed with an Australian airline company since August 2013. On 7 January 2021, the training instructor conducted a training course for the airline employees at their jet base in Sydney.
The training consisted in a morning and an afternoon session with a morning tea/coffee break, a lunch break, and an afternoon tea/coffee break in between. There were six participants in the morning session.
Masked and socially distanced
All participants were interacting face-to-face for the first time in a year because of the pause in airline operations due to the Covid-19 pandemic. All the participants sat far apart and they all wore masks to comply with social distancing requirements. All the participants wore their uniforms except for the complaining employee who wore a t-shirt with a scoop neckline. There was an empty seat with a desk in front of the complaining employee and the instructor kept about 1.5 meters distance from the complaining witness at all times.
Physical observations of signs, determining symptoms
During the morning session, the instructor was providing instruction in basic aviation first aid which included how to conduct physical observations. The instructor was attempting to demonstrate to the participants how to ascertain whether a passenger required medical attention.
Determining skin colour and breathing
The instructor paused in his lecture and stood in front of the complaining participant. He attempted to demonstrate how to look for signs that the passenger was still responsive by staring into her eyes. And then, he attempted to demonstrate how to determine if the passenger was still breathing by staring at the applicant’s chest. The applicant claimed that the instructor never asked permission to use her as a subject of his demonstration nor did he ask for the applicant to volunteer for the demonstration. The instructor claimed that he signalled that it was part of the demonstration.
Discomfort of the applicant
The instructor also tried to make light of the situation by saying that he had deliberately looked at the applicant’s chest to see if she was breathing. The applicant asked the instructor to move on as his behaviour made her feel uncomfortable. She put on her cardigan to deflect further attention to herself.
The instructor denied being aware or having been made aware by the applicant of her discomfort. The applicant had been wearing glasses and a mask and they were at least 1.5 meters apart. Had he been made aware of the applicant’s discomfort, he would have apologised and used another participant in his demonstration.
Joke about the applicant’s red face
The applicant claimed that the instructor made an observation that the applicant’s face was the same colour as the red and fuchsia pink colours of the airline’s uniform. The applicant was doubly embarrassed by this. The instructor however, denied this and said that he was making a point about observing the redness of a passenger’s skin to determine if they may have allergies.
Applicant interactions with other participants
During the morning tea/coffee break, the applicant asked two other participants if she had been overreacting to what had happened and they said no.
During the afternoon session, three other participants joined so that there were nine participants in all. The instructor then said that he had made a joke earlier that had not been well received and that he will do better, but he approached the applicant, and that made the applicant felt singled out. The instructor recalled having said that he “will try to do better” but he was referring to the difficulties they had with communication seeing as they had to wear masks during the practical training session.
The applicant claimed to have been so thoroughly discomfited that she disengaged from the training and sat in the back of the room. She no longer participated actively in the training as she felt uncomfortable throughout. The instructor did not think anything about the applicant staying in the back of the room as they had to move to a bigger training room in the afternoon and the participants were free to choose where to sit.
Email complaint sent by the applicant
She later sent an email complaint to her manager, making allegations against the instructor for behaving in a way that he ought to have known would be unwelcome or unwanted or would cause offence, intimidation or humiliation. In her email, the applicant did not mention any event that had occurred during the lunch break.
The airlines’ response
The airline company investigated the complaint. In its allegation letter dated 21 January 2021, it informed the instructor that it would conduct the investigation under their Standards of Conduct Policy. The instructor was directed not to attend work while the allegations were being investigated. The other participants in the morning session were interviewed by the airline company’s investigators but their statements were not provided to the training instructor.
The airlines did not conclude its investigation until June 2021. During a meeting between the airline executives and the instructor on 18 June 2021, the airline executives provided the instructor with their findings.
In their findings, the airline mentioned that the applicant was in tears in the kitchen and had to be comforted as the instructor’s behaviour had triggered deeper emotional issues. The instructor explained that he had not been aware of any deeper emotional issues that the applicant had nor had those deeper emotional issues been shared with him or with her colleagues.
The airline company based their findings on the piece of information about the applicant crying in the kitchen because she had deeper emotional issues that had been triggered by the instructor’s behaviour. This piece of information was not included by the applicant in her email complaint which had been sent just hours after the end of the training or in her witness statement which was dated on 20 January 2021. The piece of information might have come from the other participants in the morning session who had been interviewed. However, the statements of those participants were never provided to the instructor. The findings letter contained a much-abbreviated form of all the allegations and findings of fact of the airlines.
Instructor was dismissed, unfair dismissal application
The airline company dismissed the instructor finding that the allegations of sexual harassment made against him had been substantiated and that he had breached the airlines’ code of conduct and policy against intimidation and bullying.
The instructor filed an application for unfair dismissal before the Fair Work Commission but also appealed the dismissal internally with the airline company but his internal appeal was dismissed on 20 September 2021.
Findings of the Commission: material details were contested
The Fair Work Commission that the airlines relied on the applicant’s email complaint to her manager and her witness statement on 20 January 2021. However, the FWC noted that the allegations were contested even by the very participants who had been part of the investigation. The witnesses whose statement the airlines relied upon had conflicting testimonies as to what had happened.
Instructor did not stare at the applicant’s eyes without warning
Even while the applicant in her email and her statement alleged that the instructor never asked her permission or give her warning that she was to be part of his demonstration and just stared at her. On cross-examination, the applicant admitted that the instructor “signposted” his demonstration by addressing the class, and instructing them to ask “How are you going?” to any passenger with a medical complaint. He then asked the applicant the same question: “How are you going?” before staring into her eyes.
The Commission also accepted that the instructor stared into the applicant’s eyes as he was demonstrating how and what to observe such as the condition of the eyes, if they were red, unequal or if the pupils were dilated or the eyelids were blinking. The Commission also accepted that the staring was done from a distance of 1.5 meters away.
Instructor did not stare for 10-20 seconds at the applicant’s chest
Again, on cross-examination, the applicant admitted that while “it felt a lifetime” that the instructor had stared at her chest area, in silence, he might have only stared at her eyes for ten seconds and then at her chest for another 10 seconds. The instructor’s evidence was he stared to observe the applicant’s breathing which would have been for 2-3 seconds. Another participant had testified in the investigation that the instructor stared at her chest area for only 5 seconds. The Commission accepted that the instructor stared at the applicant for 5 seconds and from a distance of 1.5 meters away. The Commission also accepted that he had stared because he was demonstrating what else the participants could observe such as the colour of the skin and the breathing pattern of the passenger.
Instructor did not stare at the applicant’s breasts
Prior to the trial, there was no question when the applicant alleged that the instructor stared at her chest area. However, during the trial, the instructor gave evidence that he had looked at her upper chest area, just below the neck, to observe her breathing. He did not stare at her breasts. The applicant admitted that in her email complaint and in her witness statement, she used the term “chest area” which was ambiguous and only used the term “breast area” during her direct examination.
Since the allegation against the instructor was harassment of a sexual nature, the duty of the airlines when it had investigated the matter was to determine which part of the chest area the instructor stared at and whether he had indeed stared at the applicant’s breasts. Given that the instructor had been 1.5 meters away from the applicant, evidence of his staring could not have been characterised as “distinguishably lewd” as claimed by the applicant.
Instructor did not snigger or laugh about staring into applicant’s chest
None of the participants remembered that the instructor laughed about having stared into the applicant’s chest. They all remember that he had said “you’ll notice that I deliberately looked at (her) chest” but he did not laugh or snigger. He did not laugh off any comment made by the applicant to “move on.”
The Commission found that the applicant never told the instructor to “stop” or that his behaviour was “making me uncomfortable” or that he should “move on.” The email complaint sent by the applicant immediately after the incident did not contain any reference to her having said any of those words.
The applicant even admitted during the cross-examination that after the “staring” part; she had to get up, get her cardigan, put on her cardigan, and then looked around at the other participants’ reactions. Thus, if she had said those words, it would not have meant anything to the applicant who by then had already moved on with his lecture after “staring” at her. The instructor did mention in his statement that while he had been lecturing (after the “staring”), the applicant interrupted him to say “Can we just move on?” which the applicant took to mean that she was referring to the time and her desire to get the session over and done with.
Instructor did not make a comment about the redness of the applicant’s face
The Commission also found it difficult to believe that the instructor made a comment about the applicant’s face being a certain colour of red. For one, the applicant did not include this fact in her email complaint. Also, the applicant was 1.5 meters away from the applicant and the applicant had on a surgical-type mask that covered the lower half of her face. He could not have been referring to the colour of the skin on her chest area as by that time, according to the applicant, she had already put on her cardigan and had buttoned it from top to bottom.
The Commission found the instructor’s evidence to be more credible. At that point, the instructor was instructing the class, asking them what other physical signs they should observe and stated: “You observe sweaty, dry skin, the breathing rate, yes. Do you have any allergies – the person may say no, but you may be thinking yes because their skin is red”.
Dismissal was unfair
The Commission did not find that there was a valid reason for the dismissal that related to the instructor’s conduct. The airlines focused on the subjective reactions of the applicant rather than properly balancing with a fuller consideration of the events as they unfolded and the context of the events. Without a valid reason for the dismissal, the dismissal was harsh, unjust, and unreasonable. The instructor was reappointed to his former position with continuity of employment and restoration of lost pay.
Source:
Daniel Matthews v Qantas Airways Limited [2022] FWC 654 (24 March 2022)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2022/654.html
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