[16] The difference between the respondent's position and that of the applicant is that the applicant asserted (and the respondent denied) that a number of the respondent's elected officials should also be counted as employees.

1. In support of the respondent's position, Mr Scanlon gave evidence that to his knowledge, 'there is no written or unwritten employment agreement between the FAAA and any official of the FAAA regarding undertaking the duties of their office as an employee.'[6]

2. Mr Scanlon stated that in accordance with the relevant FAAA Rules, elected officials including the Divisional Secretary, Divisional Assistant Secretary, Divisional President, Divisional Vice-President and Divisional Councillors undertake duties consistently with the Rules. In recognition of the execution of duties in accordance with the Rules, the Divisional Executive officers are paid an honorarium of $492.97 per month and Divisional Councillors receive $208.33.[7] Mr Scanlon also gave evidence that officials who attend the FAAA office to perform 'general or administrative tasks' or to work on 'a special project' are paid a day allowance; however, this is on an 'ad hoc' basis.[8] Mr Scanlon said that:

'As a small union with limited resources it is expected that officials will assist the association in meeting the needs of members as part of their positions as elected officials'.[9]

1. Mr Scanlon said that at no time in his long involvement with the FAAA had any members of the Executive, or a Divisional Council, been considered to be an employee of the FAAA. Within both Divisions of the FAAA, there was a very clear distinction between officials and staff. He also noted that Qantas employees (as well as to the best of his knowledge other airlines) required their employees to request approval for secondary employment. To the best of his knowledge no member of the Executive or Divisional Council had ever completed a secondary employment form, once they had been elected to an honorary position with FAAA.[10]

2. Mr Scanlon gave evidence that honorariums were withdrawn for Divisional Councillors in July 2014, due to financial constraints, and reintroduced in 2017.[11]

1. The applicant originally commenced employment with the respondent on 7 June 2004 and held various positions, including that of National Industrial Officer.[12] On 13 May 2011, she resigned from her position as National Industrial Officer for the respondent.[13] On 4 July 2016, the applicant recommenced employment with the respondent as Manager, Member Support and Union Development, until her dismissal on 7 December 2017.[14]

2. The applicant's role was to lead the Member Support team of the organisation, growing and strengthening membership through coordinating training, planning and campaigning.[15] According to the 'role overview' in her position description, the applicant's role also included the following:

• Mentor - organisational governance and administration;
  • Program Manager - i-Assist Program team;
  • Author - monthly update on Member Recruitment, quarterly reporting on Member Support Services and quarterly report on Organisational Development;

1. Review and re-develop organisational structure to meet new opportunities and growth.[16]

3. In late August or early September 2017, a dispute arose between the FAAA National Division Executive and Andrew Staniforth, then Secretary of the Division, which resulted in Mr Staniforth being absent from the workplace while an investigation into his conduct occurred.[17]

4. On 30 August 2017, Mr Scanlon, then FAAA National Division President, held a meeting with all staff to let them know Mr Staniforth would not be attending the office due to an ongoing investigation.[18]

[25] On 31 August 2017, Mr Scanlon sent an email to all staff, including the applicant, which stated, inter alia:

I want to reassure everyone that the briefing yesterday to staff in relation to Andrew not attending the Association office due to an ongoing investigation will not affect the running of this organisation.

It is important that we recognise why we are here, the representation of our members and the organisation will always come first.

I as President would like to reassure you that the elected officials are here to support staff and members and to that end it is business as usual.

It is important that while the matter raised is dealt with professionally the work of the FAAA must continue.

For clarity, staff are directed that they are not to be involved in any discussions around the Secretary's position while he has stood himself aside from the office.

It is important that we remain focused on our members and the proper functioning of the organisation.

For abundant clarity your elected officials will not tolerate this being discussed with other elected officials or staff.

Any breach may result in disciplinary procedures.'[19]

1. During her cross-examination the applicant agreed that this was very clearly saying that members of staff were not to be involved in any discussions around the Secretary's position.[20]

[27] On 7 September 2017, Mr Uren sent a further email to all staff:

'... I have been required by the Executive to act as Secretary until 27 September 2017. As such, and to avoid any confusion, should you receive any request or direction from Andrew Staniforth, then you are required to refer Andrew to me.

Should this direction to be (sic) staff not be clear, then please do not hesitate to contact me directly.'

This email was headed 'DIRECTIVE - ALL STAFF'.[21]

During her cross-examination, the applicant agreed that on 21 September 2017, she went to Melbourne to meet with Mr Staniforth and Mr Worthy.[22] She said that she had made this arrangement on 6 September 2017.[23] Initially the applicant appeared to agree that one of the purposes of her travelling to Melbourne was to meet with the Registered Organisations Commission (ROC) in relation to Mr Staniforth's position.[24] However, she later changed this and said she had wanted to go to Melbourne to talk about her own role.[25]

During his cross-examination, Mr Worthy agreed that during this period he was acting as Mr Staniforth's advocate and representative,[26] and that the meeting with ROC was part of Mr Staniforth's response to having been stood down from his role as Secretary.[27] He agreed that in arranging the meeting he discussed the matter with the applicant on a number of occasions.[28] He also agreed that he had arranged for Ms Summers to come to Melbourne to help him represent Mr Staniforth.[29]

Mr Worthy also gave evidence during his cross-examination that Ms Summers assisted him prepare an email that was sent on 25 September 2017 to ROC.[30]

Mr Worthy agreed that the 'gist' of this email, which contained a number of allegations about the way Mr Staniforth had been treated by certain FAAA officials, was the matter that had been raised at the meeting with ROC.[31]

Mr Worthy agreed that he and Ms Summers used their private email addresses because they did not want anyone at the FAAA finding out about their communications.[32]

Mr Staniforth commenced proceedings in the Federal Court in relation to his dispute with the FAAA. In resolution of these proceedings, the parties agreed that allegations against Mr Staniforth's conduct would be investigated by an independent investigator. If Mr Staniforth was found to have engaged in misappropriation of the respondent's funds, a substantial breach of the FAAA's Rules, or gross misbehaviour or gross neglect of duty, his conduct would be referred for consideration by a Special Divisional Council meeting. The independent investigator's report on 2 November 2017 found that Mr Staniforth had acted in gross neglect of duty. Mr Staniforth was given a notice to show cause why he should not be removed from office.[33]

On 21 November 2017, the applicant sent from her personal email address an email to Mr Staniforth's official FAAA Secretary email address. Mr Uren, as acting Secretary, had access to this email address.[34] The email was also sent to Mr Worthy's private email address. The email was in the form of a draft letter from Mr Worthy, and was addressed to two officials from the ROC. It contained allegations of breaches of the Fair Work Registered Organisations Act 2009 (the RO Act) and contravention of the FAAA's Rules. In particular, the email stated:

'Section 329AB Fair Work (Registered Organisations) Act 2009

I hold serious concerns in relation to the practices being applied by the FAAA National Division President, Assistant Secretary and FAAA International Division President and Secretary in relation to the democratic control of our registered organisation by not allowing Mr Staniforth and myself telephonic attendance at the Special Federal Council meeting held last week on 15 November 2017.

I respectfully request the Commissioner under Section 329AB to monitor and ensure that the Executive Elected Officers of both Divisions of the FAAA are complying with the democratic functioning and control of the organisation so that our Members have confidence in all the affairs of the Association.

I look forward to your or the Commissioner's reply.

1. The applicant gave evidence that on 21 November 2017, she received an 'unsolicited' phone call from Mr Worthy, advising that he wished to send a complaint to the Registered Organisation Commission.[36] She stated that while she was on a rostered day off, her contract required her to be available as required and accordingly, she provided the requested assistance to Mr Worthy:[37]

'I began taking digital notes about Mr Worthy's concern. Mr Worthy had prepared in his mind his draft complaint and because I was well into the process of typing out his complaint, for which he requested relevant instrument references, he suggested I email him what I'd typed with the references inserted when I could.'[38]

[37] The applicant stated that she included Mr Staniforth's FAAA email address in the correspondence as he had been referred to in the email by Mr Worthy.

'After the phone call, I reviewed the document and considered that because it was a complaint to the regulator I should for transparency link all related email threads - one previous email was sent to my personal email account from Mr Worthy on 25 September 2017 - and also ensure the email draft complaint copied in relevant personnel, as well as ensuring the document was filed with the @faaa.org.au email system should the matter ever result in an investigation by the regulator...'[39]

'Also, I expected Mr Staniforth's email address to be monitored by Committee of Management members who were performing his duties in his absence, as is normal business practice these days. I considered it important to demonstrate that I was being transparent, loyal to the Respondent and not personally using my employed position for any individual person's gain. I held out hope that all Elected Officers viewing my email may contact one another to resolve the ongoing conflict before the draft complaint progressed further.'[40]

1. In cross-examination, it was put to the applicant that her role was not merely that of a typist, and that she and Mr Worthy had been in discussions prior to 21 November 2017 about preparing further communications to the ROC regarding Mr Staniforth's position.[41] It was also put to the applicant that she had drafted the earlier 25 September 2017 email to the ROC.[42] In relation to that earlier email, the applicant agreed that she 'drafted' parts of the email.[43] When asked if she drafted all of it, she clarified:

'No. I typed probably - I would say I typed most of it, but the drafting of it, the authorship of it, is Mr Worthy's, apart from the parts that I had already known that related to Mr Staniforth's individual grievance and dispute with Qantas.'[44]

[40] Similarly, when pressed in relation to the 21 November 2017 email she stated:

'When you say "draft", Mr Gibian - typed. So I listen. Mr Worthy is telling me what he wants to put forward and I am typing out notes as I do for most of the elected officials when they call me.'[45]

1. Mr Worthy said during his cross-examination that he spoke to Ms Summers on a number of occasions in the days leading up to 21 November 2017 about his intention to send a further email to ROC about Mr Staniforth.[46] Mr Worthy also said 'there may have been a three-way conversation' between himself, the applicant and Mr Staniforth in relation to the preparation of the 21 November 2017 email.[47]

2. Mr Worthy also agreed that the 21 November 2017 email had been sent to Mr Staniforth because he, Mr Staniforth and the applicant had been discussing the preparation of the document.[48] This had been done to get Mr Staniforth's input into the preparation of the document. However, the applicant had erroneously sent the email to Mr Staniforth's work email address (to which he did not have access, as he had been stood down).[49]

3. I found the applicant's evidence about the circumstances surrounding the draft email dated 21 November 2017 to be very unpersuasive. The email was addressed to (but not sent to) the ROC and was sent to Mr Worthy and copied to Mr Staniforth's email address which was monitored by Mr Uren, the acting Secretary.[50] By this time, staff had been directed not to communicate with Mr Staniforth while the respondent undertook an investigation in relation to his conduct.[51] The applicant's explanation as to why Mr Staniforth's email address was copied into the email is utterly implausible and diminishes the applicant's overall credit.

[44] It is clear from Mr Worthy's evidence that the applicant was in contact with Mr Staniforth and himself to discuss issues surrounding Mr Staniforth's position as Secretary, in spite of the clear directions given by Mr Uren. Further, the applicant took steps to prevent other officials of the respondent being aware of these communications. It was only because the applicant made the mistake of sending a copy of the 21 November 2017 email to Mr Staniforth's work email address that her dealings with Mr Staniforth and Mr Worthy became known to the respondent.

1. On 27 November 2017, Mr Uren sent the applicant an email directing her to provide copies of any emails she had sent to, carbon copied or blind carbon copied to Mr Staniforth on and from 7 September 2017.[52]

[46] On 28 November 2017, Mr Uren sent the applicant a further email about the 21 November 2017 email, requiring the applicant to explain to him:

'...whether this was prepared by you, what its purpose is and how it is not a contravention of my email to all staff on 7 September 2017.'[53]

[47] The applicant responded on 28 November 2017 that:

'The request came from Chris [Worthy] - to refer him to relevant instruments in an email he was preparing to send - fulfilled under my Areas of Responsibility and Staff Commitment.

I noticed the related email at the foot of Chris's draft and for Association governance records, I linked all the subject-related digital/email files together with the originating email content of 7/9/2017. I am aware that Andrew's [Staniforth's] @faaa.org.au account is not accessible by him at this time and would not contravene your directive.'[54]

[48] On 30 November 2017, Mr Uren replied to the applicant advising that she had failed to properly address his questions or explain her conduct and directed her to attend a meeting with himself and Mr Scanlon on 7 December 2017. The email included the following:

'You have not answered the question of whether you prepared the email, although it seems that you did.

You have not explained to me what its purpose is and rather refer me to Chris, the recipient of the email, to ascertain its purpose.

Your explanation as to why you say you did not contravene my directive is that you say you know Andrew's FAAA email account is not accessible to him. If that is the case why did you cc. the email to him? Your answer is implausible.

Your explanation, as I understand it, is that you prepared the email to Chris because it was a response to Chris. You say this was done in accordance with "your agreed Areas of Responsibility and Staff Commitment." This is not correct.

To suggest the drafting of a complaint, or your assistance in the drafting of the complaint, to the Registered Organisations Commission against your employer, as being part of your responsibilities, is nonsense.

It seems to me that you have participated in an exercise designed to seriously damage the FAAA. It is conduct which disregards the essential conditions of your contract to be faithful to the FAAA. It puts your interests, or others' interests, in direct conflict with the FAAA.

In addition, you have defied my clear direction given to all staff on 7 September 2017 in relation to how to deal with Andrew Staniforth. This is unacceptable.'

[49] The email then directed the applicant to attend a meeting on 7 December 2017.

'At the meeting we will invite you to explain to us any additional matters that you consider might be relevant for us to consider, and any other factors you wish to consider in our determination of what, if any, disciplinary action the FAAA should take in relation to these matters we have raised above.

We want you to appreciate that the disciplinary actions available and which we may take, after we consider any explanations you offer, may include termination of your employment.'[55]

1. The applicant attended the 7 December 2017 meeting with a support person and provided a letter that Mr Uren determined was 'not responsive' to his 30 November email.[56] Mr Uren gave evidence that he found the applicant's explanations to be unacceptable.[57] He stated he formed the view that the applicant had knowingly and deliberately breached the instructions he and Mr Scanlon had given.[58] He also formed the view that the applicant was assisting in an exercise by others designed to seriously damage the FAAA and to interfere with its proper operation, and by doing so was acting in breach of her obligation of fidelity to the FAAA as her employer.[59]

2. Following consultation with the FAAA President, Mr Uren decided to terminate the applicant's employment for serious and wilful misconduct effective immediately, on 7 December 2017.[60]

[52] The first matter for determination is whether the respondent was a small business as defined by s.23 of the FW Act at the time of the applicant's dismissal. This turns on whether any of the elected officials of the FAAA were also its employees.

[53] In Edward v Transport Workers' Union of Australia, New South Wales Branch (No 2), Schmidt J observed:

'The holding of such an office does not necessarily lead to the conclusion that an employment relationship also exists, nor however, does it preclude that result... the answer to the question of whether the applicant was an employee as well as an elected organiser of the respondent, must depend first on the rules of the respondent Union and secondly on the conduct of the parties.'[61]

[54] For any of the officials to be employees, they would need to be employed under the terms of an employment contract. As Latham CJ said in Amalgamated Collieries of WA Ltd v True:

'The creation of the relation of employer and employee depends upon an agreement between them and not upon any award. Thus, the existence of the obligations under an award in relation to a particular employer and employee always depends on the existence of a contract between them.'[62]

[55] For a contract to exist there must, inter alia, be an intention to enter a contractual relationship. This requires an objective assessment of the state of affairs between the parties. The search for the intention to create contractual relations:

'... describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.'[63]

[56] The officials that the applicant claims are employees all hold their positions and exercise duties and responsibilities by virtue of the respondent's Rules.

1. The RO Act states that an 'office' includes the office of 'president, vice president, secretary or assistant secretary' of an organisation or a branch of an organisation.[64] In accordance with the FAAA Rules, the National Divisional Executive is comprised of a Divisional Secretary, Divisional Assistant Secretary, Divisional President and two Divisional Vice-Presidents. The Rules empower the Divisional Council to:

'...employ such staff as may be required by the Division and to fix salaries, allowances and conditions for all employees and Officers of the Division.'[65]

[58] Thus, the FAAA's Rules distinguish between employees and Officers.

[59] The applicant relies heavily on the fact that Officers receive 'remuneration' from the respondent. However, I am satisfied based on the evidence, that the payments that are made to Officers are true honorariums. They are not made as a consequence of any contractual obligation of the respondent, but by unilateral determination of the executive of the National Division and the International Division.

[60] I am satisfied that there are no written or unwritten contracts of employment made with elected officials of the FAAA. Each of the elected Officers holds office by reason of having been elected to that office and by operation of the FAAA's Rules, and performs duties by operation of those Rules. When the respondent's officials carry out FAAA business or attend the FAAA's offices, it is as part of their honorary elected position. The FAAA relies on work being done by delegates and elected officials, which they carry out in their own time. There is no evidence which points to any offer or acceptance of any intention to create a contractual relationship.

[61] In consequence, I find that none of the Officers are employees. It follows that at the time of the applicant's dismissal, the respondent had 14 employees. Accordingly, it was a small business for the purpose of the FW Act.

[62] As I have found that the respondent was a small business at the time of the applicant's dismissal, I must determine whether or not her dismissal was consistent with the Small Business Fair Dismissal Code.

[63] The applicant was dismissed with immediate effect, and therefore the 'summary dismissal' part of the Code is relevant.

[64] The Full Bench in Ryman v Thrash indicated that the 'summary dismissal' section of the Code operates in the following way:

'(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the "Summary dismissal" section of the Code. All other types of dismissals by small business employers are to be considered under the "Other dismissal" section of the Code.

(2) In assessing whether the "Summary dismissal" section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal, and second whether the employer's belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.'[66]

[65] It is uncontroversial that wilfully disobeying a lawful and reasonable direction can justify summary dismissal.

[66] I do not doubt that the respondent genuinely held the view that the applicant had knowingly and deliberately breached the instructions given by Mr Scanlon and Mr Uren not to communicate with Mr Staniforth. The respondent genuinely believed that this conduct was sufficiently serious to justify immediate dismissal.

[67] The other requirement of the Code is that the belief was held on reasonable grounds. I am satisfied that the respondent had a reasonable basis for believing that the applicant had been in communication with Mr Staniforth. The sending of the email of 21 November 2017 to Mr Staniforth's email address was good and sufficient evidence of this, despite the applicant's strenuous but entirely implausible denials. It flows quite logically from this that the applicant had acted in contravention of Mr Uren and Mr Scanlon's clear directions to staff and officials not to have contact with Mr Staniforth while an investigation into his conduct was underway.

[68] I also consider that it was reasonable for the respondent to consider that those directions were lawful and reasonable in the circumstances. These circumstances were that Mr Staniforth had been stood down from his position as Secretary because of the serious allegations of impropriety that had been made against him. Mr Scanlon and Mr Uren quite reasonably wished to minimise the disruption to the respondent's activities.

[69] I wish to observe that it would not generally be reasonable to hold that the making of a complaint in good faith to the ROC could of itself constitute serious misconduct. A person wishing to make a complaint about the affairs of a registered organisation based on genuinely-held concerns should not be dissuaded from doing so. Indeed, Part 4A of Chapter 11 of the RO Act contains specific provisions for the protection of whistleblowers who make qualifying disclosures under the RO Act. However, while the applicant may well have genuinely held concerns about the respondent's compliance with its own obligations, she nevertheless actively involved herself with Mr Staniforth after her employer had directed her not to have any contact with him. I also wish to make the observation that if the applicant really did have concerns about the respondent's compliance, she could have contacted the ROC without seeking to involve Mr Staniforth.

[70] I am satisfied that the respondent was a small business employer and that the applicant's dismissal was consistent with the Small Business Fair Dismissal Code. Therefore, the applicant was not unfairly dismissed, because s.385(c) of the FW Act is not satisfied. It is not necessary to consider s.385(b) of the FW Act.

[71] The respondent's jurisdictional objection is therefore upheld. The application for an unfair dismissal remedy is dismissed.

M Gibian, counsel, for Flight Attendants Association of Australia National Division.

1. [1] Respondent's submission in reply on jurisdictional objections dated 20 April 2018 [33].
2. [2] Fair Work Act 2009 (Cth) s.382.
3. [3] Respondent's submission in reply on jurisdictional objections dated 20 April 2018 [2].
4. [4] Ibid [26].
5. [5] Applicant's Outline of Submissions dated 28 March 2018, p.4.
6. [6] Exhibit 2 [4].
7. [7] Ibid [4]-[6].
8. [8] Ibid [7]
9. [9] Exhibit 3 [7].
10. [10] Ibid [16].
11. [11] Ibid [18]-[19].
12. [12] Exhibit 7 [1]-[2].
13. [13] Ibid [3]
14. [14] Ibid [4].
15. [15] Ibid annexure CS-2.
16. [16] Ibid annexure CS-2.
17. [17] Exhibit 4 [4]
18. [18] Ibid [5].
19. [19] Ibid annexure A.
20. [20] PN1823.
21. [21] Ibid annexure B.
22. [22] PN1832.
23. [23] PN1833.
24. [24] PN1836.
25. [25] PN1838-PN1839.
26. [26] PN1123.
27. [27] PN1133.
28. [28] PN1134-PN1138.
29. [29] PN1141-PN1143.
30. [30] PN1159-PN1178.
31. [31] PN1179.
32. [32] PN1202.
33. [33] Exhibit 4 [10]-[12].
34. [34] Ibid annexure C.
35. [35] Ibid.
36. [36] Exhibit 7 [68].
37. [37] Ibid.
38. [38] Ibid.
39. [39] Ibid.
40. [40] Ibid.
41. [41] PN1917-PN2022.
42. [42] PN1926, PN1936.
43. [43] PN1936.
44. [44] PN1944.
45. [45] PN2011.
46. [46] PN1207-PN1213.
47. [47] PN1219-PN1221.
48. [48] PN1284-PN1285.
49. [49] PN1286-PN1288.
50. [50] Exhibit 4 annexure C.
51. [51] Ibid annexures A and B.
52. [52] Ibid annexure D.
53. [53] Ibid annexure E.
54. [54] Ibid.
55. [55] Ibid annexure F.
56. [56] Ibid [18].
57. [57] Ibid.
58. [58] Ibid [19].
59. [59] Ibid [20].
60. [60] Ibid [21].
61. [61] Edward v Transport Workers' Union of Australia, New South Wales Branch (No 2) (1995) 60 IR 466, 469-70.
62. [62] Amalgamated Collieries of WA Ltd v True [1938] HCA 19; (1938) 59 CLR 417, 423.
63. [63] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 [25].
64. [64] Fair Work (Registered Organisations) Act 2009 (Cth) s.9 (1)(a).
65. [65] Flight Attendants' Association of Australia Rules rule 7(1)(b)(xiv).
66. [66] Ryman v Thrash Pty Ltd t/a Wisharts Automatic Services [2015] FWCFB 5264.

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