Fair Work Commission|2026-02-10

Cassandra Cooke v National Jet Express Pty Ltd [2026] FWC 434 (10 February 2026)

s 394 - Unfair dismissal

Unfair dismissal - valid reason - reinstatement - evidential onus that reinstatement not appropriate not met

[1] Ms Cassandra Cooke (the Applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) regarding her dismissal as a First Officer (E190 Pilot) with National Jet Express Pty Ltd (the Respondent).

[2] At the time of her dismissal, the Applicant had worked for the Respondent for 27 years, and, according to the Applicant in her first witness statement, she had no previous disciplinary or performance issues. However, in her witness statement in reply, the Applicant provided detail of the disciplinary issues that had arisen over her long tenure.

[3] The Applicant's dismissal arose after a conversation with a work colleague on 21 March 2025. It is alleged that on that day, the Applicant was dropping off pilot attendance paperwork to the Resource Planning team at the Perth Airport Head Office. Whilst doing this, the Applicant is said to have engaged in a conversation with Victoria Portelli (Portelli), Crew Training Coordinator. It is Portelli's evidence that the Applicant made certain comments to her about Wayne Ovens (Ovens), Head of Flying Operations. Those comments were said to be about Ovens' work and personal life. This conversation, particularly the Applicant's alleged comments about Ovens, were reported to Ovens, presumedly by a member of the Resource Planning team. Ovens subsequently made a written complaint on 1 April 2025 to the Respondent about the Applicant's purported conduct after having asked Portelli to write a statement. The disparaging comments were said to include the following:

(a) 'he hates women';

(b) 'he is clearly having marital problems';

(c) 'he is obviously fighting with his wife'; and

(d) 'even the Union Member agreed with these statements'.

[4] After receipt of Ovens complaint, the Respondent instructed the Applicant not to attend work on 16 April 2025. An investigation ensued and the allegation was ultimately found to have been substantiated by the Respondent notwithstanding the Applicant's denial that the conduct occurred. The Applicant was dismissed for 'serious misconduct' on 26 May 2025. However, whilst the Applicant's conduct was characterised by the Respondent as 'serious misconduct', she was provided payment in lieu of notice.

[5] Before deciding the merits of the application, s 396 of the Act requires that I decide four matters. First, whether the application was made within the 21-day period required by s 394(2) of the Act. Second, whether the Applicant was a person protected from unfair dismissal, because she had served the minimum employment period and earned less than the high income threshold or was covered by an industrial instrument. Third, whether the dismissal was a case of genuine redundancy. Fourth, whether the Respondent is a small business employer, rendering the Small Business Fair Dismissal Code relevant to this matter. The Applicant made her application in the requisite timeframe and was protected from unfair dismissal. The Respondent was not a small business employer at the relevant time and there is no claim that the Applicant's position was made redundant, hence rendering these preliminary considerations of no further relevance.

[6] Having considered the evidence before me, I am of the view that the Applicant's dismissal was unfair notwithstanding that there was a valid reason for her dismissal based on her misconduct of 21 March 2025. The censure of dismissal was, however, harsh in all the circumstances and having weighed the factors favouring reinstatement against the factors which do not favour reinstatement, and noting that I am limited to the evidence adduced, I have concluded that I cannot be satisfied that reinstatement is not appropriate.

[7] However, I do not consider it appropriate, in the circumstances of the present matter, to put the Applicant into a position where she has suffered nothing out of this exercise. By not making an order for the restoration of lost pay, a very clear message is given to the Applicant as to the consequences that flow from her own conduct.

[8] Issued concurrently with this decision are orders for the reinstatement of the Applicant to take effect from 24 February 2026 and that the Respondent is to treat the period of employment of the Applicant with the Respondent to have not been broken by the dismissal.[1] The intervening period between the dismissal and reinstatement of the Applicant shall be counted for all purposes as the period of employment.[2] My detailed reasons follow.

Background and some initial factual findings

[9] Before turning to the consideration of s 387 of the Act, it is necessary to describe the factual background and to make findings in relation to contested matters. In respect of findings, it is trite to observe that when an employer alleges misconduct, it must establish, on the balance of probabilities, that the misconduct occurred.

[10] The background to the matter is structured in accordance with the some of the circumstances that ultimately led to the Applicant's dismissal.

[11] It is observed that, in support of her case, the Applicant gave evidence.

[12] The Respondent relied upon the evidence of:

(a) Portelli, Crew Training Coordinator and, prior to April 2025, Resource Planner;

(b) Mark Heal (Heal), Fleet Manager for the Embraer E190 - the aircraft operated by the Applicant, and the Applicant's manager for the 12 months prior to her dismissal;

(c) Robin Furber (Furber), Chief Operating Officer; and

(d) Shannyn Van Heerden (Van Heerden), Resource Planner.

[13] Before broaching the circumstances that gave rise to the Applicant's dismissal, it is timely to outline the responsibilities and duties of the Applicant within her former workplace. In addition, further context is provided about the work environment and some of the purported issues with the Applicant's behaviour that the Respondent drew upon to support its contention that there was a valid reason for the Applicant's dismissal.

[14] It appeared uncontroversial that the conduct of the Applicant and other employees of the Respondent was regulated by the Respondent's Code of Conduct (Code) in conjunction with its Harassment, Discrimination and Workplace Bullying Policy (HDB Policy). In its Show Cause Notice to the Applicant, the Respondent referred to its preliminary view that the Applicant's conduct on 21 March 2025, constituted a breach of the Code and obligations in the HDB Policy.[3]

[15] In particular, the Respondent relied upon clause 2 of the Code, which gave detail of the obligation that '[E]mployees are required to uphold the Code and any associated relevant policies and procedures'.[4] Clause 3.1 titled 'Corporate Regulation' set out the following:

All Employees must behave in a professional manner at all times and not engage in any behaviour which brings the Group into disrepute, whether at work premises, in public or on social media.

[16] As to 'relevant' policies and procedures, the Respondent referred to its HDB Policy. Insofar as the Applicant was alleged to have breached certain requirements of that policy, the Respondent relied upon clauses 6.1 and 6.3. Whilst the Respondent relied upon clause 6.3 without more, it is unclear how the clause proved relevant. The Respondent referred to the requirement in clause 6.3 that an employee must not discriminate against someone on the grounds of their association with someone who has, or is assumed to have, a 'Protected Attribute'. The passage in question states:

It is also unlawful to discriminate against someone on the grounds of their association with someone who has, or is assumed to have, a Protected Attribute.

[17] Clause 6.1, which perhaps was more on point given that which was alleged against the Applicant, was titled 'Harassment' and set out, amongst other matters, the following:

Harassment is any form of behaviour that is not wanted, not welcome, unreciprocated and that is likely to create a hostile or uncomfortable work environment by seriously offending, humiliating or intimidating a person for any reason.

explicit or implicit;
physical, spoken or written; and/or
a singular act or a series of incidents that occur over a period of time.

Harassment does not require intent for the behaviour to be deemed as harassment.

Examples of behaviour that can constitute harassment include, but are not limited to:

making and/or circulating offensive or disparaging remarks to or about staff about their work or capacity for work, personal life, absences, or clams for compensation;
destructively criticising or undermining staff publicly or privately....

[18] The Respondent specifically relies upon that part of clause 6.1 of the HDB Policy that is in bold font.

[19] The Respondent referred to the NJE Pilots Enterprise Agreement 2022-2026[5] (the Agreement), noting that clause 13.2 of the instrument required those covered to comply with the Respondent's 'Operations Manuals and Procedure Manuals, systems and policies as communicated to Pilots from time to time'.[6]

[20] Regarding the context in which the Applicant performed her duties, Heal gave a detailed account of crew resource management. He explained that there is a working relationship between all parties involved in the operation of an aircraft. This involves interactions between flight crew members, cabin crew, ground crew and air traffic control. According to Heal operating in a dynamic environment and with many operational challenges, makes operating an aircraft a very high stress environment.

[21] The indefatigable view of Heal, the Applicant's manager although not responsibile for her dismissal, was that it was not appropriate for the Applicant to be operating the Respondent's aircraft.[7] Heal premised his reasons, in part, on the Applicant's lack of accountability in respect of a medical certificate about her injured toe, a subject that will be addressed shortly, and lack of accountability following a claim against a colleague in 2022 about cheating. It is the latter reason that is addressed first.

2.1 The Applicant's purported allegation that a colleague had cheated

[22] The Respondent's contention that it and the operating crew had lost trust in the Applicant, was, in part, premised on Heal's evidence that the Applicant had made an unsubstantiated claim during her training in Europe in July 2022, that a colleague had cheated in an exam.[8]

[23] Included in the Respondent's evidence was an email dated 3 July 2022 titled 'Record of conversation with FO Cass Cooke'. Ovens was copied to the email. The sender and recipient of the email were not called to give evidence, but it appeared to be accepted that the email constituted a business record. An abridged version of the email follows:

The following is a short dot point recall of a conversation with FO Cass Cooke, regarding allegations of Capt XXXX XXXXXX cheating during a systems exam.

Cass stated that "XXXX XXXXXX has cheated on that morning's systems exam, as he knew the answers, which she perceived were ready prior to the start of the exam"

I stated that "how could he, as no one has any idea what questions were in the exam"

Cass stated "that he got them from Wayne Ovens HTD, as they wanted Ryan to pass.

Cass stated that "he never opened his IPad, and the only time he did he had the fifty answers ready to go"...[9]

[24] A further email chain dated 6 July 2022, commencing with an email from the pilot at the centre of the purported cheating allegation to Gavin Healy (Healy), Head of Flying Operations, Ovens and two further recipients, was included in the Respondent's evidence. The email was titled 'Training concerns' and outlined that the pilot was unsure of the best way to tackle the issue, that he understood that HR had briefed Healy about what had happened, and that the pilot's concerns had not been appreciated to the extent warranted. The responsive email to the pilot from Healy of that same date stated that he needed to have a group conversation so all knew that 'these behaviours will not be supported' and that Healy was 'aware of [the pilot's] concerns re the type of rating and am working through this at the moment'.

[25] In her witness statement dated 25 September 2025, the Applicant refers to Heal having provided examples as to why he had lost trust in the Applicant, including the example that the Applicant claimed in 2022 that a colleague was cheating.[10] The Applicant gave evidence in her second witness statement that she had a short meeting with Healy sometime in 2022. He informed her in the meeting that someone had complained that the Applicant claimed a colleague was cheating in an exam.[11] The Applicant stated that she informed Healy that the comment she made was a joke, and that after having provided Healy with her explanation, she never received any letter of allegation, confirmation of an investigation or outcome of investigation.[12]

[26] Of the Applicant's purported allegation that a colleague cheated, I make the following observations. The importance of approaching fact‑finding based on the contemporaneous documentary record and objective circumstances was described by Lee J in Transport Workers' Union v Qantas (No. 1).[13] His Honour, noting the industrial context before him, set out an approach to fact‑finding, observing that what usually matters most is the proper construction of contemporaneous notes and documents and the probabilities that can be derived from those notes and any other objective facts.[14] Referring with approval to the judgment in Gestmin SGPS SA v Credit Suisse (UK) Limited[15] ('Gestmin'), His Honour extracted the following passage from paragraph 22 of Gestmin:

... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

[27] Lee J went on, at paragraph 17, to set out that the approach is one premised on the assumption that contemporaneous notes and documents are the extemporaneous and unvarnished product of the conduct of internal dealings or communications between the contesting parties, and that confidence can be placed on the contemporaneous record, particularly where that record is unfiltered and sufficiently complete.

[28] The Respondent has adduced two business records in support of its assertion that the Applicant (falsely) claimed a colleague had been cheating during a systems exam. The Applicant's account is that she made a comment (presumedly about her colleague cheating) but that it was a 'joke'. Leaving aside why anyone, particularly a pilot of the Applicant's experience, would assert that their colleague had cheated on an exam as a 'joke', the Applicant's evidence clearly conflicts with the content of the email of 3 July 2022 titled 'Record of conversation with FO Cass Cooke'. However, the email from Healy to the pilot (presumedly the colleague against who the Applicant made the cheating allegation) references only that he would have a 'group conversation so all would know that these behaviours will not be supported'.[16]

[29] The limited documentary evidence is sufficient to draw doubt about the accuracy of the Applicant's recollection that her assertion that her colleague cheated was said as a joke. Nevertheless, there is no evidence before me indicative that the Applicant was subject to disciplinary action or that the Respondent investigated the pilot's complaint with the exception of what is disclosed in the Respondent's email from Healy to the pilot dated 6 July 2022. It follows that there is no evidence of a disciplinary record that evinces a record of counselling, a warning or the like. To thereafter submit the Respondent's loss of trust in the Applicant arose, in part, due to her unsubstantiated assertion that her colleague had cheated, is unreasonable in this context.

2.2 Injury and its impact on the Applicant's work prior to 21 March 2025

[30] Prior to the conversation between Portelli and the Applicant on 21 March 2025, the Applicant had sustained an injury to her toe. It appears that the Applicant initially injured her toe in a non-work-related injury, only to then re-injure it whilst undertaking simulator work in Japan on 26 March 2024.[17] The Applicant's evidence shows that in February 2025 the Applicant broke a toe again. The Applicant provided a medical certificate in relation to her injured toe, on 10 March 2025. The medical certificate of 10 March 2025 set out the following:

Ms Cassandra Cooke has a medical condition and I have recommended a postponement of her simulator assessment for another four weeks from now.

Ms Cook remains fit for active flying duties.[18]

[31] The Applicant gave evidence that the Designated Aviation Medical Examiner (DAME) requested that she return to work fit for flying duties and that she was trying to go back to work to go flying.[19] In the period in which she was trying to go back to work, the Applicant was studying to be a 'human factors and non-technical skills instructor'. The Applicant achieved that 'assessment' on 21 March 2025, the day, according to the Applicant, that she received her allegation (presumedly concerning her purported comments about Ovens).[20]

[32] The injury of the Applicant's toe drew attention at hearing. Heal gave written evidence that accountability is an important aspect for a pilot to meet the standard required to operate a commercial aircraft.[21] At hearing, Heal stated that the requirement for a simulator assessment serves to check the key competency skills of a pilot (regulatory requirements), and one of those key competency-based scenarios is an engine failure, also referred to as a 'V1 cut'. This particular scenario is said to require a pilot to show competency in managing the aircraft with a power loss on take-off.[22] The pilot's response is said to require a sustained level of pressure on the rudder pedals which exerts pressure on the foot.[23] Heal explained that there had been a previous context where the Applicant had a broken toe, and in that scenario it was shown there was a potential that exerting pressure in the simulator session using an injured foot may cause either further damage or potentially show a limited ability to perform the task.[24]

[33] When asked about the purpose of including evidence about the Applicant's medical certificate from the DAME in his witness statement, Heal responded to the effect that to provide a doctor's note suggesting a pilot is not okay to participate in a simulator session but is competent to operate an aeroplane, when the above mentioned scenario is considered, demonstrated a lack of judgment (by the pilot - the Applicant) - regardless of what the DAME had to say.[25]

[34] Heal explained that a 'DAME' is a medical practitioner certified by the Civil Aviation Authority to make medical judgments on licensed pilots within Australia.[26]

[35] In cross examination, Heal acknowledged that following receipt of the Applicant's medical certificate dated 10 March 2025, the Applicant was asked to obtain a second medical certificate. The evidence suggests that the Applicant provided a further medical certificate to the Respondent on 26 March 2025. It reads in the same terms as the medical certificate of 10 March 2025.[27]

[36] Heal was asked further questions in cross examination about whether he questioned everyone that comes up with a fit to fly, to which he responded, 'no'.[28] When asked whether he interrogated the Applicant about the medical certificate, Heal explained that he had not, and in his time as a manager he had not (presumedly questioned others), because he had not previously seen a conditional medical clearance.[29] That is, a medical clearance that did not encompass every operational aspect of consideration of the Applicant's job.[30] It was proposed to Heal that the thrust of his evidence was that because of this accountability issue, the Applicant could not be trusted to return to work. Heal provided qualified agreement with this proposition, noting it was a component (as to why the Applicant could not be trusted), clarifying that the Applicant's unsubstantiated claim about others 'cheating' formed the other component.[31]

[37] It was Furber who said that in March 2025, he had received the letter from the DAME, stating that the Applicant was unfit to conduct simulated sessions but fit to fly.[32] That letter had, according to Furber, been provided to him as he was the accountable manager.[33]

[38] Furber said that the letter (presumedly one of the medical certificates) was reviewed by the Management Committee, but he made the decision to stand down the Applicant. Furber explained that he stood down the Applicant because, in his view, the question arose that if a pilot is not fit to fly a simulator which can be stopped at any time - then how can the pilot be deemed fit to fly an aircraft?[34] Furber stated that:

So you're actually placing the aircraft - you're actually placing the airline, safety, everything else, at major risk, because if you're deemed not to be able to fit a simulator because it may do damage to your toe, then if you're in an incident where you're operating an aircraft and you have a very - I don't know, some adverse situation, and all of a sudden now, because of her injury, her toe is affected, and as a result the detriment of the aircraft and the crew is put at severe risk so that's why I made the decision to stand Ms Cooke down. That was the communication to me from Wayne Ovens, because he received the medical certificate for me himself and the management committee to review, and I took it - and I took it further to CASA, which when I spoke to Avmed - which, sorry, it's Aviation Medical - they agreed:

Yes, you're right to - within your rights to stand Ms Cooke down...[35]

[39] An email between Furber and 'Matt' of the Civil Aviation Safety Authority (CASA) dated 4 April 2025, copying in Ovens was located at page 82 of the Digital Hearing Book. That email set out Furber's concerns relating to the DAME's medical certificate for the Applicant dated 10 March 2025. In the email, Furber referred to the DAME's recommendation to postpone the Applicant's recurrent simulator sessions rostered concurrently for 24 and 25 March for 30 days whilst also advising that the Applicant remains fit for active flying duties. Furber further described the similarities in requirements between flying and simulator sessions and outlined that he considered there had been a serious dereliction in the DAME's responsibilities.

[40] An email between Furber, Kim Hai and the Management Committee was also included at page 82 of the Digital Hearing Book. The email dated 11 April 2025, detailed that Furber had a call with Mr Hockberg from CASA Aviation Medicine and that 'the agree we [sic] our assessment and have started an investigation into this matter and will contact me to advise on their findings...'.

[41] As at 21 March 2025, the Applicant was not permitted to fly the Respondent's planes despite the Applicant stating that the DAME had requested she return to work fit for flying duties. According to the Applicant's evidence she was trying to return to flying and had provided the medical certificate dated 10 March 2025 to the Respondent to demonstrate her fitness to fly.

[42] The Respondent takes issue with the Applicant having not taken accountability in respect to the approach she took regarding the DAME's medical certificate. It is difficult to conceive why the Respondent frames its concept of 'accountability' insofar as the Applicant's behaviour is concerned, as comprising of the Applicant conducting a self-assessment of her fitness to the extent that her assessment would result in her deeming herself unfit to fly. Where the Respondent disagrees with the medical assessment of the DAME, it is open to the Respondent to provide further instruction to the DAME in respect of the duties and responsibilities of the Applicant's role and request a further medical examination based on that additional information. Alternatively, the Respondent may seek a further medical examination from the DAME (a second opinion) and where conflicting reports arise, a further medical opinion may be warranted, or, as was the case here, the Respondent may challenge the veracity of the medical certificate with the relevant regulator who oversees the practice of the DAME.

[43] While a pilot's self-assessment of fitness for work and fatigue may form a requisite responsibility within their role, the context before me was one where the assessment of the Applicant's fitness to fly had been referred to a qualified and appropriate medical practitioner, namely the DAME. As was described by Heal, the DAME is certified by the Civil Aviation Safety Authority to make medical judgments on licensed pilots within Australia.[36] It was therefore neither appropriate nor required that the Applicant deviate from the DAME's assessment. The Applicant was simply not qualified to make that determination. To therefore attribute to the Applicant a lack of accountability because of her failure to deem herself unfit to fly in light of her lack of fitness to undertake simulator training, as determined by the DAME, was unreasonable.

[44] It is important to caution as an aside, that this did not in turn mean that the Applicant had no recourse in respect of a medical report with which she disagreed. As was the case for the Respondent, had the Applicant disagreed with the DAME's assessment then similarly it was open to her to request a further medical assessment or to agitate her consternation with the relevant regulatory body.

[45] However, returning to the issue at hand, there is no basis for finding that the Applicant demonstrated a lack of accountability when she persisted in trying to return to fly or failed to consider herself unfit to fly.

[46] On 21 March 2025, Portillo was at her workstation in the Resource Planning office at the Respondent's Perth premises. At the relevant time, Portillo was a resource planner, responsible for writing the rosters for the E190 flight crew and the 146 flight crew.[37] Portillo explained that her work involved interacting with a few different departments including the management team, training and training facilitators, in addition to operations and the flight crew.[38]

[47] Portelli stated that in respect of roster requests, the crew received the opportunity to put in roster bids every month. Regarding the Applicant, Portelli said she had been quite accommodating of the Applicant's past requests and noted that the two had previously chatted about their personal lives and the Applicant's (roster) requests.[39] Expanding upon discussions broaching personal circumstances, Portelli's evidence disclosed that the two spoke of their children, and that at times Portelli instigated a work-related discussion that evolved into a 'chat'.[40]

[48] Regarding the interaction between Portelli and the Applicant on 21 March 2025, Portelli acknowledged that she instigated the chat when the Applicant entered into the office to congratulate the Applicant on achieving sign off as a HF Instructor (Human Factors Instructor).[41]

[49] Also present in the Resource Planning office that day was Van Heerden, a Resource Planner with the Respondent. Van Heerden commenced employment with the Respondent on 3 or 4 March 2025.[42]

[50] Van Heerden recalled sitting at her desk in the afternoon of 21 March 2025 and observing the Applicant talking to Portelli. Van Heerden stated in her witness statement that she overheard parts of the conversation in which the Applicant was talking (to Portelli) about their children (Portelli's and the Applicant's children).[43] Van Heerden further expressed the following in her witness statement:

It caught my attention when they talked about the Medical Certificate stating that she was fit to fly but not to attend the simulator training. And the conversation further went into Wayne Ovens.[44]

I knew it was about Wayne Ovens because I heard her say his name.

The incident in question (the conversation pertaining to Wayne Ovens) is what stands out about this whole conversation. I sit about 1 meter away from Victoria. We have adjoining desks. The incident where Case Cooke mentioned Wayne Ovens started with the applicant stating, "he was in such poor form" and being "rude to everyone is because of conflict going on at home between him and his wife".

I sit quite low in my chair; I face Victoria from a directional point of view. Caz Cooke was standing no more than half a metre from me. I can't remember the wording specifically. I just know that Wayne Ovens was the top of conversation.

I peered through my screens and to see if Victoria was ok. She looked uncomfortable. I remember Victoria standing up after the conversation and she said that was uncomfortable and the conversation was weird...[45]

[51] It appears that on 14 April 2025, Van Heerden was interviewed by Anjali Walia (Walia), who is described in the Respondent's contemporaneous materials as its Head of HR and appeared at hearing as the Respondent's Chief Corporate Services Officer, and Jigna Panchal (Panchal), Human Resources Coordinator for the Respondent, was the notetaker.[46] The interview commenced with Walia explaining to Van Heerden that they were conducting a formal investigation into a matter concerning comments made by the Applicant about Ovens on 21 March 2025, and that Van Heerden had been listed as a witness.

[52] The interview notes scribed by Panchal (Van Heerden interview notes) recorded, amongst other things, the following:

SV - Yes, In the afternoon she came in to our room, dropped some paperwork and she was then updating Vic on the same

SV-I believe she was instructing a course , HF course and and then came to drop of the paperwork

AW - Where were you at time of the conversation between Caz Cooke and Victoria

SV - I was at my workstation opposite to Victoria.

AW -can I confirm if you were you in a position to overhear the conversation between them**?**

SV -Yes but I wasn't listening to the whole conversation. Cass was talking about her kids, maybe a birthday party.

AW - At any point during the conversation, did you hear any rumours, gossip, or personal remarks made about anyone?

SV - Yes towards the end, I know Cass brought something up. She was upset about something, that she has a medical certificate clearing her fit to fly or something but wayne is not letting her. She was talking about how he was having issues with his wife and said something like, "he's such a dick, that's why he is being rude to everyone."

AW - So confirming you heard her say she was upset, and that wayne and his wife were fighting, and

SV - Yes. She said, "I know he is having problems with his wife at home". I couldn't believe that she said it about the head of flying operations and it was only my second or third week. It wasn't my place to get involved in the conversation.

SV - I don't remember her saying anything otherwise

SV - After Cass left the room, Vic stood up and said, "That was weird"

AW - Is there anything else that could help with this investigation?

[53] Van Heerden was questioned in cross examination about the evidence in her witness statement and the Van Heerden interview notes. Van Heerden confirmed that she was not listening to all of the conversation between the Applicant and Portelli.[47] Van Heerden was asked whether the Applicant and Portelli had discussed kid's birthday parties, to which Van Heerden responded that she was not 100 percent certain.[48] When Van Heerden was informed that she had told the Respondent about the conversation broaching birthday parties, she acknowledged that she had not included reference to the birthday parties in her witness statements as she was not certain of it.[49]

[54] In cross examination, Van Heerden confirmed that she had heard part of the conversation about the Applicant's medical certificate; her attention was drawn to that part of the conversation because she considered it weird that the Applicant was not able to go to the simulator (training) but was still able to fly.[50] Van Heerden further confirmed to Counsel for the Applicant, that she had heard:

Wayne, he's such a dick, that's why he's being rude to everyone. He's having issues with his wife. I know he's having problems with his wife at home'.[51]

[55] When asked whether there was mention of 'Wayne's' surname, Van Heerden was unable to remember whether there was or not but accepted that she had inferred that it was 'Wayne Ovens' and that she could not rule out that the Applicant was talking about a different 'Wayne'.

[56] When asked what happened when the Applicant left the office, Van Heerden gave evidence that Portelli stood up, mentioned she was uncomfortable and that she did not know why someone did not say something, and that she thought Portelli said, 'that was, like, really weird' and then that was the end of it.[52] It was pointed out to Van Heerden that when interviewed by the Respondent she had not said that to the Respondent - Van Heerden was referred to the Van Heerden interview notes.[53]

[57] The Applicant was taken to page 127 of the Digital Hearing Book where the Van Heerden interview notes set out the following:

SV - I don't remember her saying anything otherwise.

V - I remember the conversation happening, and not long after that, Cass left the room.

SV - After Cass left the room, Vic stood up and said, "That was weird"

AW - Is there anything else that could help with this investigation?

[58] Counsel for the Applicant noted to Van Heerden that the evidence Van Heerden had given to the Commission is that Portelli had stood up, said that she felt that was uncomfortable, and asked why didn't anyone intervene, to which Van Heerden agreed.[54] Van Heerden acknowledged that when interviewed by the Respondent what she told the company was not in those words.[55]

[59] It was proposed to Van Heerden that the evidence she had given to the Commission was evidence that she thought she remembered but was actually a reconstruction of what happened - to which the Van Heerden responded: 'I wouldn't say it's a reconstruction. I would say this is just how I'm presenting it'.[56]

[60] Van Heerden was asked in cross examination whether she was asked by the Respondent to clarify whether the Applicant and Portelli were talking about Wayne Ovens.[57] Van Heerden confirmed that Paul Joyce (Joyce), Employee Relations Advisor for the Respondent, had asked her to confirm whether the conversation between the Applicant and Portelli concerned Wayne Ovens and not 'Wayne Revitt', to which Van Heerden replied 'yes',[58] acknowledging that it had been suggested to her that it was Wayne Ovens.[59]

[61] In re-examination, Van Heerden was asked how she had arrived at the conclusion that the Applicant and Portelli were talking about Ovens.[60] Van Heerden responded:

...Ms Cooke and Victoria were discussing the medical certificate and her return to work, or whatever was going on. I didn't hear or - I didn't hear the conversation stay [sic] to anything else so when the conversation switched to Wayne, I didn't believe there could be anyone else they were talking about...[61]

[62] As to the Resource Planning office, it was Van Heerden's evidence that the office was 'fairly small', the whole room being 'probably less than 10 metres'.[62] According to Van Heerden the room housed seven desks which were not very big and were placed so that there was not very much space between each one.[63] Van Heerden said that she sat opposite Portelli separated by computer screens.[64]

[63] In respect of what occurred on the 21 March 2025, the Applicant said she walked into Portelli's office to hand in the attendance sheet that she had completed from the class that day.[65] The Applicant recalled that there was a woman in the office with blonde hair toward the back of the room and another colleague, Naomi Coslani (Coslani), was at her desk near the hallway.[66] The Applicant said that she approached Portelli at her desk. The Applicant said that the room was large and others in the room were at a distance.[67]

[64] In respect of the woman in the office with the blonde hair, the Applicant said she believed the woman was Van Heerden.[68] According to the Applicant, Van Heerden sat five to ten metres away from Portelli's desk and the Applicant had her back to her.[69] The Applicant expressed that her conversation with Portelli was not loud enough for Van Heerden to hear or at least understand the context.[70]

[65] Leading up to her conversation with Portelli on 21 March 2025, the Applicant explained that on 20 March 2025, she had gone out to coffee with a group of mothers she had known for around nine years.[71] Those same mothers had children at the school that the Applicant's daughter had previously attended, and whilst the Applicant had moved her daughter to another school last year, the Applicant noted that she kept in touch with the mothers.[72]

[66] At the coffee catch-up, the group of mothers were discussing circumstances surrounding a teacher at the school where the Applicant's daughter previously attended. According to the Applicant, the mothers were discussing this same teacher to the extent that they referred to the following:

a) he was having marital problems;

b) he had a bad temper which was affecting students at the school;

c) the students had witnessed him and his wife bickering (the wife taught at the same school);

d) there was a proposal to move him to the school where the Applicant's child attends, to separate the teacher and his wife;

e) students had complained of him raising his voice in the playground towards his wife; and

f) children were saying that they believed the teacher hated women.[73]

[67] The Applicant said she was teaching human factors non-technical skills (the training course for pilots and cabin crew) on the day,[74] because she was on a restricted medical clearance after breaking her big toe in March 2025.[75]

[68] The Applicant recalled that the conversation between her and Portelli unfolded as follows:

Applicant: I've got clearance from the doctor - so when the company and the union agrees, I'll go back to flying

Applicant: how's the little one going at school?[76]

[69] The Applicant stated that Portelli showed her a photo of her son on his first day of school and that the Applicant showed Portelli a photo of her daughter on her first day of school.[77] The Applicant further stated that the two of them started talking about how difficult it is to manage and juggle workload commitments and family responsibilities.[78]

[70] The Applicant recalled that she said to Portelli words to the effect of:

Look, I heard a bit of a rumour from the school mums yesterday, that Wayne from [my daughter's previous school] maybe [sic] heading your way. He's having issues with his wife. He's going through a messy divorce. I think this is their way of shifting him sideways to let things cool down and give them a bit of space. Some of the girls are complaining that he hates women.[79]

[71] The Applicant explained that she informed Portelli about the teacher because the day prior (20 March 2025) she heard that the teacher might be moving to Portelli's son's school and the teacher was obviously going through some challenges.[80]

[72] The Applicant reported that in response to that information Portelli just nodded and acknowledged the conversation.[81]

[73] The Applicant stated that when she read the allegation against her, it took her some time to recall the conversations that she had previously had with Portelli.[82]

[74] Portelli gave evidence that at approximately 3:00PM on 21 March 2025, she was at her workstation in the Resource Planning office when the Applicant entered the office to drop off paperwork following a 'HFNTS course' she had conducted.[83]

[75] Portelli stated that the conversation with the Applicant started because she engaged in conversation with the Applicant, congratulating her on being signed off as a 'HF Instructor'.[84] According to Portelli, the Applicant walked over to her desk and asked her if she was aware of what was happening with her current roster.[85] In cross examination Portelli explained further that whilst she could not be exact on the wording she recalled:

...she was I think sick - had been put - her flying duties had been turned to sick leave, I believe, on the live roster which is dealt with by ops after we in resource planning publish it. And she wanted to know what was happening with the roster because the medical certificate that she had provided was, I guess - had said that she was medically still cleared to fly. And I said, "[I]t's out of my hands. It's sitting in the live roster and I don't have anything to do with that".[86]

[76] In her witness statement Portelli similarly explained that she advised the Applicant that the situation was out of her hands and being in a published roster, it would probably 'be Ops who would be making any changes'.[87]

[77] It was at this point that the Applicant is said to have started talking to Portelli about Ovens. Portelli reports that the Applicant stated 'he hates women, and is clearly having marital problems'. Portelli added that the Applicant informed her that she 'had spoken to her "DAME" who had provided the certificate and mentioned he was also not happy it wasn't being accepted by the company'.[88]

[78] Portelli stated that she changed the conversation to something that the two had spoken about in the past and something that they had in common, as she felt very uncomfortable about the Applicant's comments.[89] According to Portelli, that topic was how difficult school hours were for working parents, and Portelli believed that she said '[s]chool hours suck!'.[90]

[79] Portelli said that after a brief conversation about school hours, the Applicant offered to help her with drop off and pick up whenever she got stuck, and then the Applicant turned the conversation back to Ovens.[91] Portelli detailed that the Applicant told her that she had engaged the union in her current matter, and when speaking to the union representative, they had both agreed that Ovens was 'obviously fighting with his wife and having issues at home'.[92]

[80] In cross examination, Portelli, when asked whether the Applicant had referred to Ovens' surname, responded, 'I can't be sure if his surname was used, but as you said, it would probably be unusual to use his surname'.[93]

[81] It was Portelli's evidence that after the Applicant left the room, she stood up and asked her colleagues in the room if anyone had heard the conversation and 'why didn't anyone butt in and "save me"?'. Portelli said that Coslani asked what was said and she repeated the Applicant's comments that the Applicant had made about Ovens.

[82] As to the size of the Resource Planning office, Portelli gave evidence that six people worked within the room, and that opposite from her - across the other side of the partition - was Van Heerden.[94]

[83] Portelli was questioned in cross examination as to whether she was aware that she had a responsibility to report behaviour that might qualify as harassment, to which she responded she was.[95] She was further asked whether she reported the conduct, and she confirmed that she did not.[96] Portelli's evidence was such that it was Ovens who came to her the following week and said that 'HR has requested me [Portelli] to write a statement',[97] and that she was pretty sure that she sent the statement directly to Ovens.[98]

[84] Counsel for the Applicant drew to Portelli's attention that things were said in her witness statement that were not in the 'interview notes' of 14 April 2025 that were located in the Digital Hearing Book at page 131 (Portelli interview notes). The 'interview notes' disclosed, in part, the following:

Victoria: I couldn't recall word for word, but it was along the lines of:

Victoria: I tried to change the topic. I picked up my phone and showed her a photo of my son in uniform. The conversation went that way, but then circled back to Wayne again, and she made more

She was probably there for about 20 minutes.[99]

[85] Portelli agreed that was correct[100] and acknowledged that the statement '[h]e hates women' was not something that she had said in the interview of 14 April 2025.[101] Portelli stated, '[y]es, it seems I have left that out'[102] and again 'I may have left it out and I...'.[103] Portelli was asked whether she was encouraged to put certain things in her statement (presumedly her witness statement, the content of which differed in the respect highlighted by Counsel for the Applicant).[104] Portelli responded, '[n]o. No one has given me any encouragement to add those words'.[105]

[86] The evidence suggests that the investigation process was triggered by the complaint of Ovens dated 21 March 2025.[106] In that complaint at part 2 of 'Schedule 1 - Complaint Lodgement Form', Ovens had identified that in respect of the outcome he sought:

I would like a full review of Ms Cooke's HR record to establish their suitability to remain an employee of NJE [sic] This is not the first time that I have heard that Ms Cooke has made false accusations about myself and other NJE management, however this time there were several witnesses.[107]

[87] The Applicant said that she received a call from Joyce on 16 April 2025, in which Joyce informed her that an allegation had been made about her and that she would be immediately stood down subject to a formal investigation about a conversation said to have occurred in March 2025.

[88] On that same date, the Applicant was provided with a letter which confirmed that a formal complaint had been made against her by Ovens about the alleged comments the Applicant made to Portelli about Ovens.

[89] A meeting was scheduled for 17 April 2025 for the Applicant to respond to the allegations, but that meeting was rescheduled to 23 April 2025, to enable the Applicant time to obtain representation, understand the allegations, and recall any related conversations with Portelli.

[90] The Applicant attended a meeting with Joyce and Panchal on 23 April 2025. The Applicant was accompanied by Alan Bailey, a Transport Workers' Union (TWU) official, the Applicant's support person. The Applicant said that she explained to Joyce and Panchal that the conversation with Portelli during which the remarks were allegedly made was not about Ovens, but rather about the deputy principal of the school her daughter attended,[108] and that the alleged remark about a 'union member' was in relation to a separate conversation about her return to work from an injury, which the TWU was assisting her with.[109] The Applicant said that she informed Joyce and Panchal that she did not make any comments about Ovens.[110]

[91] The Applicant said that at the meeting on 23 April 2025, Joyce refused to agree to copy the union to emails in relation to the investigation and whilst he invited the Applicant to provide her own witnesses to the conversation, when the Applicant asked whether she could contact two persons from 'Rex', Joyce declined the request, purportedly because the two persons were not the Respondent's employees.[111]

[92] A meeting was held on 9 May 2025 between the Applicant, Joyce and Edward Nell, a TWU official. The Applicant stated that she was informed by Joyce that the investigation had concluded, the allegations had been substantiated, the Respondent would send a show cause letter with a view to terminating her employment, and that the Respondent had also considered previous performance issues in deciding to terminate the Applicant's employment.[112]

[93] By 16 May 2025, the Respondent wrote to the Applicant informing her that it was satisfied that the allegations had been substantiated and that the preliminary view of the Respondent was that the Applicant's behaviour constituted serious misconduct.[113] Whilst the Applicant provided a further written response to the allegations in the letter of 16 May 2025, on 26 May 2025, she attended a meeting with Joyce, accompanied by Shane O'Brien, a TWU official, and was informed that she was being dismissed.[114]

[94] Furber gave evidence that as the Chief Operating Officer (interim)[115] and account manager of the Respondent, it was his 'responsibility to make the final determination of certain things, especially when it affects safety...'.[116] Furber noted that whilst it was his decision (in respect of the Applicant's dismissal), he could also receive feedback from the Management Committee.[117] Furber clarified that the Management Committee included the following personnel: the Executive Chairman, Chief Corporate Services Officer (who was appearing, at hearing, on behalf of the Respondent), Chief Corporate Officer, Ovens and the Chief Fly-in Offshore Officer.[118] Furber clarified, in short, that a response from the Management Committee (in respect of the Applicant) was limited due to the fact that the allegations against the Applicant centred on Ovens,[119] and therefore Ovens was not part of those discussions.[120]

[95] Furber initially gave evidence in cross examination that he did not know what Ovens wanted from the outcome,[121] but then acknowledged that he stood corrected,[122] and then clarified when the Applicant's Counsel broke down the questions, that he had not seen the complaint form as part of the investigation report he was given by HR.[123] Then at a later point in cross examination, Furber said he had read the complaint form from Ovens, confirming that he did look at it before the Applicant's employment was terminated.[124]

[96] Furber's evidence was that he received the investigation file on 30 April 2025.[125]

[97] On 28 May 2025, the Applicant received a letter from the Respondent stating that her employment had been terminated on the basis of 'serious misconduct'. However, the letter of 28 May 2025, clarified that '[i]n spite of this gross misconduct, you will be paid 5 weeks' notice in lieu...'.[126]

2.5 The Applicant's past interactions with Ovens

[98] The Applicant described having had, at times, a complicated working relationship with Ovens,[127] albeit the Applicant stated that her involvement with Ovens on a personal level had been limited.[128] In respect of interactions, the Applicant referred to engaging with Ovens in consultation meetings as part of her role as a member of the TWU Flight Safety Committee and the Pilot Consultative Committee.[129]

[99] Ovens had been the Applicant's superior since she started with the Respondent. On a number of occasions, they disagreed with one another, according to the Applicant. In this respect the Applicant referred to the following:

a) soon after commencing with the Respondent, Ovens took issue with the Applicant's height and therefore suitability for flying an aircraft, so she took the matter to the Australian Industrial Relations Commission and Deputy President O'Callaghan ordered her reinstatement;

b) the Applicant complained to management about Ovens in October 2023, regarding his alleged swearing and yelling in the simulator. The Applicant gave evidence that Ovens stated in respect of the simulator female computer voice, 'shut that fucking barking bitch up now' and that when she responded, 'that's really inappropriate' he replied 'what the fuck would you know' (Applicant's complaint about Ovens);[130] and
c) the Applicant and Ovens disagreed about whether 24 hours rest time was required before starting simulator duties.[131]

[100] Regarding, presumedly, the complaints outlined at (b) and (c) above, the Applicant stated that a meeting was held between herself, the TWU, and Chris Hines, the Chief Operating Officer at the time, and the matter was resolved.[132]

[101] The merits of the Applicant's unfair dismissal application turn on contested points of fact. It is unremarkable that in cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.[133] The notion that the standard of proof on the balance of probabilities requires the fact finder to reach a state of actual persuasion of the occurrence or existence of the fact in issue before it can be found is very well entrenched and unquestionably represents the current state of the law.[134] Part of this process of fact-finding, as will be expanded upon shortly, is recognising that the graver the consequences of a particular finding, the stronger the evidence needs to be in order to conclude that any fact is established on the balance of probabilities.[135]

[102] To explain further, in Opal Packaging Australia Pty Ltd v Calovski[136] the Full Bench, in its consideration of what is meant by the 'balance of probabilities', referred to the explanation provided by the Court in Lehrmann v Network Ten Pty Ltd[137] ('Lehrmann'). In Lehrmann, the phrase was considered in the context of s 140(1) of the Evidence Act 1995 (Cth), Lee J explaining:

The concept used in subsection (1), being the "balance of probabilities", is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 (at 403 per Dixon J). The "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.

Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: "not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision": see D H Hodgson, 'The Scales of Justice: Probability and Proof in Legal Fact-finding' (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]-[16] per Hodgson JA, Beazley JA agreeing).

Whatever way it is put, a "[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact": NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).[138]

[103] In the case before me much has been made of the what the balance of probabilities means, particularly where serious allegations of misconduct are in issue. In Parker v Garry Crick's (Nambour) Pty Ltd, the Full Bench acknowledged that the strength of evidence necessary to establish a fact in issue will vary according to the nature of what is sought to be proved.[139] At paragraph [125], the Full Bench continued:

...In Neat Holdings Pty Ltd v Karajan Holdings the High Court explained the approach as follows:

'The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct'.

[104] It is well settled that Briginshaw has long established that where serious allegations involving, for example, criminal conduct are made, such reasonable satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'circumstances pointing with a wavering finger to an affirmative conclusion'.[140] In Briginshaw, Dixon J emphasised that a state of reasonable satisfaction is not attained independently of the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence or the gravity of the consequences flowing from the finding in question.[141] The Full Bench of this Commission, in Illawarra Coal Holdings Pty Ltd v Sleiman, noted that each of those matters could properly bear upon whether a court or tribunal is reasonably satisfied or feels actual persuasion in relation to the facts in issue.[142]

[105] It has previously been said that it is trite that the tribunal of fact having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence or accepting some of the evidence and rejecting the rest.[143] As will become apparent, I am of the view that the Applicant engaged in that not unusual approach of communicating falsehoods about some things whilst telling the truth about others in her evidence. The reason for making this credit finding in respect of the Applicant, is because I found Van Heerden and Portelli to be candid and forthright with their evidence and prefer their accounts over that of the Applicant. This is notwithstanding that Portelli's evidence concerning the Applicant's remarks about Ovens, as reported in her witness statement, did not precisely mirror what Portelli had reported to Walia as scribed by Panchal in the Portelli interview notes, as can also be said for Van Heerden, and that neither Van Heerden nor Portelli, were able to confirm whether Ovens' surname was said by the Applicant in the context of the conversation on 21 March 2025.

[106] To further explain, it is first necessary to consider the evidence of Van Heerden. Van Heerden had been employed by the Respondent for less three weeks when the conversation was held between the Applicant and Portelli on 21 March 2025. There is therefore no reason to assume, nor evidence to suggest, that Van Heerden was motivated by some agenda or held a level of animus toward the Applicant, such that she would provide evidence unsupportive of the Applicant's account.

[107] Unlike the Applicant who gave evidence that the Resource Planning office was large and that the woman she believed to be Van Heerden sat five to ten metres from Portelli's desk, Van Heerden expressed that the office was 'fairly small', the whole room being 'probably less than 10 metres'.[144] Van Heerden said the office housed seven desks which were not very big and were placed so that there was not very much space between each one.[145] Van Heerden said she sat opposite Portelli separated by computer screens.[146] Similarly, Portelli gave evidence that opposite from her (in the Resource Planning office) - across the other side of the partition - was Van Heerden.[147] As Portelli and Van Heerden appeared to have worked out of the Resource Planning office at the relevant time and understood the seating arrangements, I consider them a more reliable source of truth as to the physical layout of the office on 21 March 2025, and I consider Van Heerden was positioned to hear the conversation between Portelli and Applicant - that is, to those parts to which she listened.

[108] As to Van Heerden's evidence, I accept, for the most part, her evidence as set out in the Van Heerden interview notes, that on 21 March, when conversing with Portelli, the Applicant was upset about something and that the Applicant had brought up with Portelli that she had a medical certificate clearing her fit to fly or 'something' but 'Wayne' was not letting her.[148] I further accept that Van Heerden paid attention to this part of the conversation between Portelli and the Applicant because it was 'something' she 'never heard before', namely that the Applicant 'wasn't able to go to the simulator but she was still able to fly'.[149]

[109] Van Heerden's evidence as set out in the Van Heerden interview notes, was that the Applicant was talking about how 'Wayne' was having issues with his wife and said something like, 'he's such a dick, that's why he is being rude to everyone.'[150] In her witness statement Van Heerden states that the incident where the Applicant had mentioned 'Wayne Ovens' started with the Applicant stating, 'he was in such poor form' and being 'rude to everyone is because of conflict going on at home between him and his wife'.[151] Whilst Van Heerden's witness statement does not refer to the Applicant stating 'he's such a dick', the Van Heerden interview notes record that the Applicant said something like, 'he's such a dick, that's why he is being rude to everyone' and in giving her evidence at hearing, Van Heerden again confirmed that she 'heard something about Wayne being such a dick, that's why he's rude to everyone'.[152] On balance I am not persuaded that the Applicant referred to Ovens as 'such a dick' in the conversation with Portelli on 21 March 2025. Van Heerden refers to 'something like' in the interview notes and the phrase 'such a dick' is not referred to by Portelli.

[110] In cross examination, Van Heerden was asked whether there was mention of Wayne's surname and Van Heerden conceded, appropriately in my view, that she inferred that it was 'Wayne Ovens',[153] that she was not listening closely,[154] and that she could not rule out that the Applicant was talking about a different 'Wayne'.[155]

[111] As to what Portelli did at the end of the conversation with the Applicant, Van Heerden's evidence in cross examination was that Portelli 'stood up and mentioned that she was uncomfortable, and she doesn't know why someone didn't say something'. Van Heerden expressed that she thought Portelli said, '"[t]hat was like really weird", and then that was the end of it'.[156] Counsel for the Applicant drew Van Heerden's attention to the point that in her oral evidence, she had said that Portelli expressed that 'she felt that was uncomfortable and why didn't anyone intervene' but that was not what she told the Respondent when interviewed (see the Van Heerden interview notes where Van Heerden said Portelli 'stood up and said, "That was weird"').[157]

[112] Turning to Portelli's evidence, I accept that the relationship between Portelli and the Applicant was cordial, that they communicated about their children, and, in fact, on the day in question, namely 21 March 2025, reference had been made to the children. Further, I consider it uncontroversial that at the relevant time, Portelli was responsible for writing rosters for the E190 flight crew and the 146 flight crew[158] and that in respect of roster requests, the crew received the opportunity to put in roster bids every month.

[113] I further accept that Portelli started the conversation with the Applicant by congratulating her on being signed off as a 'HF Instructor',[159] and that the Applicant walked over to her desk and asked her if Portelli was aware of what was happening with her current roster,[160] and that Portelli informed the Applicant '[I]t's out of my hands. It's sitting in the live roster and I don't have anything to do with that'.[161]

[114] As was the case for Van Heerden, there is therefore no reason to assume, nor evidence to suggest, that Portelli was motivated by some agenda or held a level of animus toward the Applicant, such that she would provide evidence unsupportive of the Applicant's account.

[115] Portelli gave evidence that after she initially engaged the Applicant in conversation the Applicant came closer to her desk and asked what was happening with her roster.[162] Portelli said that she informed the Applicant that it 'was sitting with Wayne and flight ops'[163] and that after that, the Applicant went on to mention that she had spoken to the DAME who was not happy that the company had not accepted her medical certificate because the medical certificate did state that she was fit to fly but not fit to attend a simulator. According to Portelli, it was upon talking about the DAME and the medical certificate, that the comments about 'Wayne' were made.[164]

[116] I accept Portelli's account that the Applicant stated 'he hates women, and is clearly having marital problems', that the Applicant informed her that she 'had spoken to her 'DAME' who had provided the certificate and mentioned that he was also not happy it wasn't being accepted by the company',[165] and that the Applicant told her that she had engaged the union in her current matter, and when speaking to the union representative, they had both agreed that Ovens was 'obviously fighting with his wife and having issues at home'.[166]

[117] The Portelli interview notes did not include reference to '[h]e hates women'. When proposed to Portelli that the statement '[h]e hates women' was not something that she had said in the interview of 14 April 2025,[167] Portelli stated, 'It seems that I didn't',[168] '[y]es, it seems I have left that out',[169] and again, 'I may have left it out and I...'.[170] Portelli was asked whether she was encouraged to put certain things in her statement (presumedly her witness statement, the content of which differed in the respect as highlighted by Counsel for the Applicant).[171] Portelli responded, '[n]o. No one has given me any encouragement to add those words'.[172]

[118] I accept that Portelli has given a truthful and accurate account and had not succumbed to suggestion. Regarding succumbing to suggestion, in giving her evidence, Portelli stated that she was 'asked, when going through my [her] statement, if there were any other situations that I [she] have [had] been made to feel uncomfortable in the past' (regarding the Applicant) by Joyce.[173] It appears that Joyce had asked Portelli to include other circumstances where her interaction with the Applicant had led to her feeling uncomfortable (see paragraphs 13 and 14 of Portelli's witness statement). However, the inclusion of those paragraphs in response to Joyce's enquiry and Portelli's candid response as to their presence in her witness statement, leads me to conclude that Portelli was being honest when giving her evidence.

[119] The Applicant's evidence is no stranger to the phrase, 'he hates women'. The Applicant, of course, conceded the utterance of these words but did so in the context of the deputy principal that may have been heading to the school of Portelli's child. Whilst on balance I find that the Applicant said this phrase, I do not believe the Applicant's account that it was said in reference to the deputy principal.

[120] It is perhaps relevant to note at this juncture that the Applicant's evidence as set out in her first witness statement concerning the conversation with Portelli was not challenged through the process of cross examination. It should be stated that I am not persuaded that the Respondent, who was self-represented, simply accepted the Applicant's evidence in this respect, but rather was not familiar with practice of placing a witness on notice of contradictory evidence to allow the witness to address the contradiction.

[121] I return to Portelli's evidence that after the Applicant left the room, she stood up and asked her colleagues in the room if anyone had heard the conversation and 'why didn't anyone butt in and "save me"?'. That Portelli stood up after the Applicant left the room, accords with the evidence of Van Heerden and whilst Van Heerden said that Portelli stated, '[t]hat was weird' and Portelli's recollection differed to the extent that she reports she said, essentially, 'why didn't anyone butt in and save me?', that the recollections differ slightly in this respect does not, in my view, detract from the truthfulness of their accounts as to what the Applicant said about Ovens.

[122] In cross examination Portelli, when asked whether the Applicant had referred to Ovens' surname, conceded, again appropriately in my view, 'I can't be sure if his surname was used, but as you said, it would probably be unusual to use his surname'.[174]

[123] Whilst neither Portelli nor Van Heerden heard Oven's surname mentioned, their recollections are consistent with respect to context - discussion about a medical certificate, discussion about the simulator, and discussion about the Applicant expressing views about a 'Wayne' that were, in my view disparaging and inappropriate, which I will reflect further on shortly. Turning then to the issue of the correct identity of 'Wayne', the Applicant's evidence draws into question whether the conversation between Portelli and the Applicant was about 'Wayne', a deputy principal of a primary school as purported by the Applicant (or a principal of a junior school as suggested by Counsel for the Applicant),[175] or about 'Wayne Ovens'.

[124] Portelli gave evidence that she had no idea who the principal of the junior school was notwithstanding that the Applicant had asserted that their conversation had touched on that deputy principal's alleged conduct.[176] Furthermore, Portelli's evidence was that she probably said the name 'Wayne' first and that following that the Applicant proceeded to talk about the DAME, the medical certificate and then the Applicant made comments about 'Wayne'.[177] Portelli stated that she had 'never spoken about Wayne somebody else whose name I can't remember, or any other faculty of the school in that manner, so...'.[178]

[125] In re-examination, Van Heerden was asked how she had arrived at the conclusion that the Applicant and Portelli were talking about Ovens.[179] Van Heerden responded:

...Ms Cooke and Victoria were discussing the medical certificate and her return to work, or whatever was going on. I didn't hear or I didn't hear the conversation stay [sic] to anything else so when the conversation switched to Wayne, I didn't believe there could be anyone else they were talking about...[180]

[126] The evidence of the Applicant aligns somewhat with Portelli to the extent that there was discussion of 'clearance from the doctor'[181], reference to 'he hates women' by the Applicant, and discussion of their children and work commitments. The evidence of the Applicant then departs from that of Portelli and Van Heerden in respect to the conversation referring to Ovens. These differences between authentic aspects of the evidence given by Portelli and Van Heerden as detailed, and the account given by the Applicant, are sufficient for me to harbour significant doubts about the truthfulness of the Applicant's evidence to the extent that based on what I have detailed above, I do not believe the Applicant's account that she was referring to Wayne, a deputy principal, and not Ovens. That the Applicant and Portelli were at cross purposes in the conversation, that is, that there was a miscommunication regarding the identity of Ovens, is, in my view, implausible. Portelli and Van Heerden provided clear and cogent evidence.

[127] I find that the Applicant informed Portelli that in respect to Ovens - not 'Wayne' the deputy principal - that:

(a) 'he hates women';

(b) 'he is clearly having marital problems';

(c) 'he is obviously fighting with his wife'; and

(d) 'even the Union Member agreed with these statements'.

[128] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust, or unreasonable (s 385(b) of the Act). The conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[182]

Cassandra Cooke v National Jet Express Pty Ltd [2026] FWC 434

At a glance

Court

Decision date

Source

Judgment (358 paragraphs)

Cassandra Cooke v National Jet Express Pty Ltd [2026] FWC 434 (10 February 2026)

Parties

Legislation Cited (2)

Cases Cited (13)