It is common for employers to face conflicting versions of events when investigating sexual harassment complaints. When dealing with such instances, employers are required to assess the reliability and credibility of the evidence to make findings on the balance of probabilities.
Sexual harassment includes an unwelcome sexual advance or other unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Some examples of sexual harassment include unwelcome touching; staring or leering; requests for sex or unwanted invitations to go out on dates.
The case of Daniel Matthews v Qantas Airways Limited [2022] FWC 654 is a reminder to employers about the importance of properly investigating allegations of sexual harassment and ensuring that consideration is given to all evidence before making a finding.
Background
Daniel Matthews (Applicant) commenced employment with Qantas Airways (Qantas) on 1 August 2013 prior to his dismissal on 13 August 2021.
The Applicant was employed as an Aviation Safety Training Instructor at the time of termination.
The Applicant conducted a training course on 7 January 2021. A female employee (Complainant) claimed that the Applicant leant forward and stared at her eyes while the Applicant was engaged in a breathing exercise. The Complainant also alleged that the Applicant:
lowered his eyes and stared at the Complainant’s chest for approximately 10-20 seconds;
looked up into the Complainant’s eyes and said words to the effect of, “You can look into a person’s eyes to see if they are responsive” before sniggering and saying words to the effect of, “and then you may have noticed that I was deliberately staring at her chest to see if she was breathing”; and
laughed at the Complainant when she said to the Applicant, “Please stop, you are making me feel uncomfortable. Can we please move on?”
The Complainant felt embarrassed and made a complaint against the Applicant.
Qantas investigated the complaint and subsequently terminated the Applicant’s employment because:
the Applicant looked at the Complainant’s chest and made comments about her chest while delivering a training course;
the Applicant’s comments drew unwanted attention to the Complainant;
the Applicant’s comments and the attention caused the Complainant to feel embarrassed; and
the Applicant’s actions were unwelcome, unwanted and caused offence, intimidation and humiliation and could constitute sexual harassment.
The Applicant subsequently made an unfair dismissal application against Qantas.
Finding
The Fair Work Commission (Commission) found that the Applicant was unfairly dismissed by Qantas.
Relevantly, Qantas did not have a valid reason to terminate the Applicant’s employment because the conduct did not amount to sexual harassment and was best classed as a misunderstanding. Further, the Commission said that the central planks of the Complainant’s account of the meeting did not occur and therefore was not a valid reason for the dismissal.
The Commission also held that the Applicant did not make ‘comments of a personal nature’ in relation to the Complainant’s chest and the comments he did make were ‘matter-of-fact’ and ‘unremarkable’ in the context of the first aid instruction the Applicant was providing.
The Commission also held that the investigation and the decision-making were imperfect as they focussed on the subjective reactions of the Complainant rather than properly balancing these against a fuller consideration of what unfolded and the context in which the behaviour occurred. For example, some of the participants’ recollections did not accord uniformly with the evidence of either the Applicant or the Complainant and in some instances, the participants’ investigation statements were significantly divergent on various matters, including some key matters that were in contention in this case.
The Commission ordered Qantas to reinstate the Applicant.
Qantas appealed the decision to the Full Bench. However, the appeal was refused.
Relevantly, the Full Bench referred to Qantas’ failure to call witnesses to give evidence at the hearing after Qantas collected witness statements from them in the internal investigation. Such failure may legitimately be the subject of a Jones v Dunkel inference – being that a failure to call witnesses to give evidence without proper explanation may lead to an inference that the uncalled evidence would not have assisted the party.
Key Lessons
It is important to ensure that allegations involving sexual harassment are properly and thoroughly investigated.
If there are conflicting versions of events given by a complainant, respondent or witnesses, the employer should assess the credibility and reliability of each evidence and consider the contextual background before making a finding of the allegation.
A complainant’s subjective perception is not determinative.
For more information please contact:
Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au
Geeta Vanugopal
Associate
T +61 3 9611 0135
E: gvanugopal@sladen.com.au
