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Norman Waterhouse

Training instructor reinstated after dismissal for staring at a colleague’s chest

When investigating workplace complaints, quite often employers are faced with conflicting versions of events. The challenge for the employer is to make judgements on the credibility of the complainant compared to that of the alleged perpetrator and other witnesses to make a decision on the balance of probabilities.

The following decision is an example where the investigator failed to consider the inconsistencies in an complaint leading to negative findings being made against the employer in an unfair dismissal claim.

In the matter of Daniel Matthews v Qantas Airways Limited [2022] FWC 654, Daniel Matthews (the Applicant) was employed by Qantas as an Aviation Safety Training Instructor. In the course of a training session, an employee (the Complainant) complained that Mr Matthews had stared at her eyes and chest, which left her feeling uncomfortable and humiliated. Qantas commenced an investigation process and ultimately terminated Mr Matthews’ employment as a result of these allegations. Mr Matthews commenced an unfair dismissal application in the Fair Work Commission (FWC), claiming that the Complainant’s version of events was wrong, and that he had not engaged in the alleged conduct.

Facts

The Complainant’s version of events

Mr Matthews was providing training on basic aviation first aid. While he was demonstrating how to check for the relevant ‘signs’, such as if the patient is breathing, the Complainant claimed that Mr Matthews stared into her eyes for ‘probably about 10 seconds’, before his eyes moved to her ‘chest area’ for 10-20 seconds. The Complainant claimed that Mr Matthews then said words to the effect of, ‘You can look into a person’s eyes to see if they are responsive,’ before laughing and continuing, ‘And then you may have noticed that I was deliberately staring at [the Complainant’s] chest to see if she was breathing.’ The Complainant indicated that she felt embarrassed and asked Mr Matthews to move on. She then claimed that Mr Matthews said, ‘Oh look, [the Complainant’s] face is the same colour as [another employee’s] top.’ The Complainant took this to refer to the red and pink colours on the employee’s uniform. Mr Matthews later returned to the session after a break and said ‘Earlier I had made a joke and it was not received well, so I’ll try and do better.’

Mr Matthews’ version of events

As part of his demonstration, Mr Matthews claims he looked at the Complainant and said, ‘You look at the person and ask, How are you going?’ He could not tell anything from the Complainant’s face as she was wearing glasses and and a face mask. He then looked at the Complainant’s chest area, for about 2 to 3 seconds, to determine if she was breathing. He interacted with the class, noting that they should observe skin colour and redness. The Complainant interrupted, saying, ‘Can we just move on?’ which Mr Matthews interpreted to mean a desire to get the session over and done with. Mr Matthews says he did not understand the Complainant to be uncomfortable, and he would have apologised and used a different participant to demonstrate on had he known. He says that he later made a comment along the lines of ‘I will try to do better’, referring to difficulties communicating during the session due to the use of face masks.

Termination process

After the Complainant’s complaint, Qantas commenced an investigation process and issued an allegations letter, claiming that Mr Matthews’ conduct breached Qantas’ Standards of Conduct Policy. The allegations were largely found to be substantiated and Mr Matthews’ employment was terminated.

Decision

Due to the conflicting versions of events, the FWC had to determine which version was more likely to have occurred.

The FWC noted inconsistencies in the Complainant’s evidence at the hearing, either in comparison to the statements provided by the other participants in the class, or in comparison to the evidence she provided during the investigation process. For example, in cross examination, the Complainant conceded that Mr Matthews may have only looked at her for a couple of seconds, as the other participants in the class had indicated, even though it felt like much longer. The Complainant also said that Mr Matthews had looked at her ‘chest area’ during the investigation and show cause processes. However, in cross examination, she mentioned the ‘breast area’ for the first time.

While there were certain allegations that were found to be substantiated, the FWC largely preferred Mr Matthews’ evidence, and found that the the ‘central planks’ of the allegations against Mr Matthews did not occur. In relation to Mr Matthews observing the Complainant’s eyes and chest, the FWC was satisfied that those actions were not inherently sexual but were typical of the conduct one would expect in a first aid training session, to demonstrate monitoring alertness and breathing. The FWC found that the Complainant had misapprehended Mr Matthews’ comments, and accepted Mr Matthews’ submissions that simply because the Complainant was upset did not mean that Mr Matthews had done something which objectively warranted his dismissal.

In the FWC’s assessment, as Mr Matthews had not engaged in the conduct to which his termination related, there was no valid reason for his dismissal, so he was unfairly dismissed. The FWC ordered that Mr Matthews be reinstated to his former position.

Take Home Messages

This case is a reminder to employers to ensure that a thorough investigation process is undertaken before putting any allegations of misconduct to employees. It is also important to consider the context in which allegations are made. The investigator should seek clarity where there are any inconsistencies between the primary complaint and the evidence of witnesses. Importantly, each response to the allegations must be objectively assessed and the final determination must give consideration to all the evidence obtained as part of the investigation.

If you would like to discuss any of the matters raised in this article, please contact Ganesh Krishnan on + 61 8 8217 1395 or gkrishnan@normans.com.au, Virginia Liu on + 61 8210 1279 or vliu@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.

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