The Investigation
267 Mr Smith led an investigation into the cause of the industrial action on 14 February 2009, and the appropriate company response. The investigation begun on or about 16 February and ended on or about 6 March 2009. Mr Smith was assisted by Ms Corrente and Mr Brooke and, on one occasion, Mr Hall. The company's lawyers took preliminary statements from various managers, including Ms Corrente and Mr Brooke. Their statements were consistent with their evidence at trial. In the course of the investigation, Mr Smith gathered attendance records and the like, some CCTV footage, and conducted, or caused to be conducted, interviews of numerous employees.
268 During the investigation, Mr Smith sought to identify the employees responsible for the industrial action. Messrs Cicciarelli, Inguanti and Storen - all delegates - were stood down on 18 February, after meeting with Mr Smith, Mr Brooke and Ms Corrente and being given letters of allegation: see [11]-[14] above. On 19 February 2009, Messrs Sarmo, Briggs and Fischer were also stood down, after receiving letters of allegation. These six employees responded in writing and were interviewed.
269 On 20 February 2009, Mr Cicciarelli and Mr Inguanti, accompanied by their lawyer, were separately interviewed. Mr Smith's account of Mr Inguanti's and Mr Cicciarelli's interviews (see [132]-[133]) is borne out by the notes that Mr Smith and Ms Corrente kept. These notes indicated that Mr Inguanti and Mr Cicciarelli denied the allegations against them and, on this occasion, effectively declined to explain their conduct on 14 February 2009. At the request of their lawyer, Mr Smith agreed that each would provide a written response to the allegations against him.
270 On 20 February and over the next days, Mr Storen, Mr Sarmo, Mr Briggs and Mr Fischer provided written responses to the allegations against them. In summary:
Mr Storen said that he did not arrive at work until 11.10 am, when he was informed that a vote to stop work had been carried. He said that he felt that he had no choice but to stay in the lunchroom with the other Ramp employees. (He substantially repeated this account at the hearing: see above.)
Mr Sarmo said he came to work on 14 February at about 11-11:30 am to collect his wallet and footy fixture from his locker. He said that, when he arrived, Mr Cicciarelli told him the floor had voted to stop work. Mr Sarmo stayed at work (although not rostered) until about 4 pm when the employees returned to work.
Mr Briggs said that he was at work on 14 February. At about 9:45 am, Mr Cicciarelli gave him a quick run down on the issues. Mr Briggs said that there were 20 or more men in the lunchroom having their normal break and "Lou decided to give a report to the members about a number of union issues". Mr Briggs denied organising a meeting or inciting industrial action. (He substantially repeated this account at the hearing: see above.)
Mr Fischer said that he had heard of a possible meeting on the bus to work on the morning of 14 February. He said that he commenced work as normal and, at about 9:45 am, Mr Briggs and Mr Cicciarelli reported on union issues. During the report back, many people in the lunchroom became irate and Mr Cicciarelli said "Well what do you want to do?" Mr Fischer said he thought Mr Cicciarelli said "Let's take a vote". (Mr Fischer gave evidence at trial, as set out above, which differed from this statement in some particulars.)
271 By two letters both dated 23 February 2009, Mr Inguanti and Mr Cicciarelli provided written responses. In substance, Mr Cicciarelli said that, after constant pestering by Ramp employees, he told them the outcome of the 13 February meeting and also of his conversation with Mr Brooke. Mr Cicciarelli said that "[a]s news sank in ramp staff were upset and agreed on a course of action". He denied each of the allegations against him, including that he had organised industrial action.
272 Mr Inguanti denied that there was a meeting in the Baggage Room and reiterated that the "allegations [were] not true and [had] no foundation in fact". Mr Inguanti said that he attended work at the express request of his work group as an OH&S representative. He also said that, soon after attending, he met with Mr Brooke and Ms Corrente and had a conversation with them, in which he said that: (1) he was there as an OH&S representative; (2) there were no problems in the Baggage Room; and (3) he requested that they wear Hi-Vis vests. He said that Mr Brooke said "we will leave it up to you". Thus, Mr Inguanti alleged that his presence at work was authorised and not for the purposes alleged. He also denied the other allegations against him, including that he had attempted to incite industrial action.
273 Qantas management interviewed numerous other Ramp employees and Mr Giles and Mr Parsons from the Baggage Room over the following week. The Ramp employees made various responses.
274 Mr Inguanti received a further letter of allegations dated 25 February 2009: see [14] above. On 26 February 2009, Mr Inguanti provided a written response, saying in summary that: (1) he denied at any time on 13 February 2009 or prior to 11:30 am on 14 February speaking with Mr Cicciarelli; (2) he denied that he was already aware at 11:07 am that the Ramp employees had ceased work at 10:15 am; (3) he denied conducting a vote with 18 Baggage Room employees and stated instead that he spoke with staff about outside staff entering the workplace; (4) he denied saying that he had taken a vote; (5) he said that he had been called in and that Qantas was aware that he was there as an OH&S representative, and that there had been no need to report an actual OH&S incident because at the time he was satisfied that no incident existed; (6) he denied that he was there to organise industrial action and stated that "if he had of wanted to do so, I am confident it would have occurred".
275 After Mr Smith and Mr Brooke interviewed Mr Giles, a Baggage Room employee, Mr Smith dictated a note, which relevantly stated:
…
● At some stage between approximately 11:30 am to 11:40 am, Michael Inguanti (TWU delegate), entered the bag room and called the blokes into the lunch room.
● Approximately 20 of the baggage room workers attended the meeting including [Mr Giles]. At the meeting Michael Inguanti said words to the effect that "the Melbourne ramp employees had stopped work following issues arising from a TWU and company meeting held the previous Friday 13 February 2009". Michael said "I'm here to support you, do you want to support the ramp and stop work or do you want to keep working?" …
● Michael called for a show of hands and the meeting voted to stay at work 10 votes to 9. The meeting took approximately 10 minutes.
● At the conclusion of the meeting, Michael left the bag room and the blokes returned to work. At no stage did Michael raise safety or licensing issues at this meeting.
…
276 After Mr Smith and Mr Brooke interviewed Mr Parsons, another Baggage Room employee, Mr Smith dictated a note of his interview, which relevantly stated:
…
● At some stage between approximately 10:30 am or 11:00 am, Michael Inguanti (TWU bagroom delegate) arrived in the bag room. Michael proceeded to the tea room and conducted a meeting of the workers in the bag room. I joined the meeting in the tea room and Michael was addressing the meeting. Michael said that "the Melbourne ramp was taking industrial action", and that the "TWU was not supporting the action and it was left to the employees in the bag room to make a decision on whether they would support the ramp". He said "I actually would support the ramp by stopping work".
● One employee asked if the industrial action taken by the ramp was illegal. Michael responded to the effect that it was not illegal as the workers were entitled to "one Freebie". Some employees laughed when Michael said this. Michael asked for a show of hands and 9 employees voted to stop work and 10 voted to continue work.
● Once the vote was counted, Michael said "I've done all I can do, you can go back to work". It was not clear to me as to whether Michael had actually participated in the vote.
● During the course of the meeting Michael said "It's up to you whether you stop work, I'll support you. You can stop work or continue working and I'll go back to my day off".
● At no stage during the meeting did Michael raise any safety issues, including regarding driver's licences.
277 As noted already, Mr Smith gave evidence, which I accept, that he prepared the notes of interview of Mr Giles and Mr Parsons because he considered that what they said was particularly important and gave an account contrary to that which Mr Inguanti had given him.
278 By Friday, 27 February 2009, Mr Smith was able to report to Mr Hall, the company's lawyers and others that he believed that findings could be made about Mr Inguanti's conduct. Essentially these findings were to the effect that Mr Inguanti's account of his conduct on that day was not supported by the accounts of other employees and other available information. Mr Smith found, at least provisionally, that Mr Inguanti was not rostered to work that Saturday and that he had attended the workplace with a purpose of organising and inciting a stoppage in support of the Ramp employees. Mr Smith found that Mr Inguanti had called a meeting in the Baggage Room and conducted a vote about taking industrial action. Mr Smith did not believe that Mr Inguanti had received a telephone call to attend the workplace for an OH&S reason. Mr Smith's view was that Mr Inguanti had arrived at work prior to the deployment of the contingency staff and therefore his account did not fit with the chronology of events; and, further, his account was not corroborated by the person who made the call. Mr Smith formed the view that Mr Inguanti had no OH&S purpose for being in the Baggage Room at the time he conducted the meeting. Mr Smith was also of the view that Mr Inguanti's conduct was not inspired by the TWU. Mr Smith considered that Mr Inguanti's written and oral accounts of his conduct were untrue. In the circumstances, he considered that Mr Inguanti was guilty of serious misconduct in conducting a meeting in order that the employees engage in unlawful industrial action.
279 On 27 February 2009, Mr Smith told Mr Hall of his findings with respect to Mr Inguanti in a 20-minute conversation at the airport. Mr Hall accepted Mr Smith's findings: see [158] above. As noted earlier, Mr Hall, Mr Brooke and Ms Corrente met with Mr Inguanti on Monday, 2 March 2009. This was because Mr Hall decided to give Mr Inguanti one further opportunity to explain to Qantas management his involvement in the events of 14 February. At this meeting, after Mr Inguanti was given an opportunity to respond to certain questions, Mr Hall took a break, in the course of which Mr Hall decided to terminate Mr Inguanti's employment.
280 At the 2 March meeting with Mr Inguanti, Mr Hall referred to a draft of what was to become Mr Inguanti's letter of termination and, in particular, to draft findings that were in substance reproduced in the final letter. These findings were:
● you were not rostered to work on Saturday 14 February 2009, however you attended for the purpose of organising meetings or conducting discussions with bag room employees in order to organise unlawful industrial action.
● at no stage were you in attendance in your representative capacity as an OHS representative [].
● you failed to refer any matters which may have been the subject of a potential dispute between Qantas and its employees to be conducted in accordance with the dispute resolution process pursuant to clause 11 of [Enterprise Agreement 7].
● you failed to conduct yourself in accordance with Qantas' values and Standards of Personal Behaviour [under] the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth)).
● you engaged in conduct which was likely to bring Qantas into disrepute and was likely to damage the reputation, viability or profitability of Qantas.
● you have failed to provide honest answers to the questions asked of you during the investigation. You have told us that you attended in response to a request [from] employees alleging an OHS issue. There is no evidence to support this assertion.
The draft continued:
Michael your conduct constitutes a serious breach of the following:
● The terms and conditions of your employment with Qantas as an Airline Services Operator, including your obligations pursuant to your contract of employment, and [Enterprise Agreement 7] and Qantas' Policies and Procedures (including Qantas' Standards of Conduct);
● your obligation to conduct yourself in a manner of trust and confidence as an employee of Qantas
281 Mr Hall relied on these findings to terminate Mr Inguanti's employment. As both he and Mr Smith made clear, however, the reason for Mr Inguanti's termination was that he had attended on 14 February 2009 in the Baggage Room for the purpose of holding a meeting to organise and incite industrial action, and that he held such a meeting. At the time, both Mr Hall and Mr Smith believed that the industrial action was neither endorsed by the union nor protected under the Act.
282 By 2 March 2009, Mr Smith had interviewed a number of employees about events in the Ramp lunchroom, and had received Mr Cicciarelli's 23 February response to the first letter of allegation. At that stage, Mr Smith apparently thought that there could be some premeditation on Mr Cicciarelli's part since Mr Cicciarelli received a further set of allegations to this effect by a letter of 3 March 2009: see [12] above. Mr Cicciarelli responded by a letter dated 4 March 2009, stating in summary that: (1) he had discussions on Friday with employees in the lunchroom, but he did not determine or agree to conduct any further meeting on Saturday; (2) the method by which employees requested him to address them on Saturday "was verbally in the course of general discussion in the workplace on the morning"; (3) he denied organising a meeting in the lunchroom at 10:00 am; (4) he reported back to employees; (5) he did not conduct a vote but there was a show of hands; and (6) he denied that he had incited or encouraged employees to cease work.
283 Mr Smith was unconvinced that there was no premeditation on Mr Cicciarelli's part with regard to the work stoppage. Mr Smith directed that Mr Fischer should be further interviewed about the conversation about a possible work stoppage that Mr Fischer had previously said took place on the work bus on the morning of 14 February. On 4 March, Mr Smith, with amongst others, Mr Brooke, conducted this further interview with Mr Fischer, in the course of which Mr Fischer gave a different account of the conversation on the bus and also related that, on Friday 13 February, he had overheard part of the telephone call between Mr Cicciarelli and Mr Mancuso, discussing the possibility of industrial action. I accept that, as Mr Smith said, this "impacted on [Mr Smith's] view because it confirmed that matters had escalated to the potential for industrial action on that Friday evening and that Mr Mancuso and Mr Cicciarelli were dealing with that possibility". Presumably too, this indicated to Mr Smith how it was that, on the evening of 13 February 2009, Qantas' Mr Moore came to hear rumours of the possibility of industrial action the next day.
284 On 4 March, Mr Cicciarelli was also interviewed and his response to the further allegations received. Mr Smith considered that Mr Cicciarelli was unforthcoming in this meeting, particularly regarding the telephone call with Mr Mancuso on the Friday evening. This view is supported by Mr Smith's contemporaneous notes, which (as noted above) recorded at this point "long silences, hesitant, evasive when answering questions about this call".
285 On the basis of the information gathered in the course of the investigation, including the employee interviews, the accounts given by the relevant managers, including Mr Brooke and Ms Corrente, and his own experience, Mr Smith found that on Friday, 13 February 2009, Mr Cicciarelli was involved in organising and inciting potential industrial action for Saturday and that, on Saturday, he conducted the meeting in the lunchroom with a view to organising and inciting industrial action. Mr Smith's account of his reasons are set out at [142] above. Amongst other things, Mr Smith did not consider that Mr Cicciarelli had given a truthful account. In particular, Mr Smith considered that Mr Cicciarelli's account of his conversation with Mr Mancuso was incomplete. Mr Smith rejected Mr Cicciarelli's denial that he had conducted a vote and found instead that Mr Cicciarelli, in throwing the matter to the floor, had effectively incited the vote. Mr Smith also found that the work stoppage did not involve the TWU, and that the TWU had not encouraged, incited or authorised the stoppage. Moreover, based on his industrial experience, Mr Smith found that Mr Cicciarelli's conduct was consistent with the organisation and incitement of industrial action. That is, Mr Smith found that Mr Cicciarelli's report back had been made so as to inflame his listeners, without mentioning any of the reasons for not stopping work; and that his throwing the matter to the floor and taking a vote was to be viewed in this light.
286 Mr Smith informed Mr Hall of his findings regarding Mr Cicciarelli on 5 March 2009. During their conversation, Mr Hall made notes of what Mr Smith said: see [164] above. Mr Hall accepted Mr Smith's findings as correct. At the same time, Mr Smith provided Mr Hall with the allegation and response letters. Mr Hall considered the matter independently and decided that Mr Cicciarelli's misconduct was very serious and had jeopardised the company. Mr Hall said (as noted earlier) that, taking these matters into account, "the premeditation, the fact that nothing was done on the day to follow the correct procedures to [alleviate] the situation", he decided that he "would go through with a dismissal".
287 A letter of dismissal was compiled and used as a script by Mr Hall in a subsequent interview, in which Mr Cicciarelli was advised that his employment was terminated. This letter informed Mr Cicciarelli that the reasons for his dismissal were that:
● after your attendance at the meeting between the TWU and Qantas at 11.30 am on Friday 13 February 2009, you met in the lunchroom with other Qantas employees, including with some part-timers, during the course of the afternoon.
● at this meeting the issue of the selection of part-time employees for temporary full time employment was discussed (amongst other issues) and you determined to conduct a meeting the following morning, Saturday 14 February 2009, at which you would conduct a report back to employees.
● you understood that the report back meeting was likely to lead to a stoppage by employees in protest against the Company's position on that and other issues.
● you intended at the report back meeting to report back on the part-time issue, which was not the subject of the meeting on 13 February 2009 between the TWU and Qantas.
● you knew that this was a significant issue and that it was likely to result in unlawful industrial action.
● you did not seek authorisation from Qantas management to conduct this report back on Saturday 14 February 2009.
● you failed to refer any matters which were the subject of a dispute between Qantas and its employees to be conducted in accordance with the dispute resolution process pursuant to clause 11 of the Transport Workers' Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011).
● upon attending the workplace on Saturday 14 February 2009 you immediately commenced organising employees to attend a meeting in the lunchroom at 10.00 am.
● the purpose of the meeting was to advise the results of the meeting the previous day; to discuss the outstanding issues regarding part time employees and to encourage or incite industrial action by ramp employees.
● you led the 10.00 am meeting and reported back to employees on matters which were not the subject of the meeting on Friday 13 February 2009 between Qantas and the TWU. You knew that this reporting back would be likely to result in a stoppage of work.
● you conducted a vote concerning a proposed unlawful stoppage of work with a group of employees in the lunchroom at this meeting.
● shortly after 10.00 am you and Chris Briggs informed Shane Murphy that "the boys had walked" meaning that the ramp employees had unlawfully stopped work.
● you ceased work and incited or encouraged others to do so which resulted in a complete stoppage of work by Melbourne ramp employees.
● you directed at least two employees to cease work and attend at the lunchroom.
● the stoppage of work that arose from the 10.00 am meeting caused significant loss and damage to Qantas.
● you were directed to return to work between 10.40 am - 10.50 am and 12.30pm by Doug Brooke. You refused to do so.
● you failed to conduct yourself in accordance with Qantas' values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth)).
● you engaged in conduct which was likely to bring Qantas into disrepute and was likely to damage the reputation, viability or profitability of Qantas.
● you failed to provide open and frank answers to the questions asked of you during the investigation.
Luigi, your conduct constitutes a serious breach of the following:
● the terms and conditions of your employment with Qantas as an Airline Services Operator, including your obligations pursuant to your contract of employment, the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (2008-2011) and Qantas' Policies and Procedures (including Qantas' Standards of Conduct);
● your obligation to abide by Qantas' Standards of Conduct Policy, including the requirement to act with honesty and integrity; demonstrate Company and Qantas Group values and to not engage in unacceptable behaviours (see clauses 4 and 5);
● your obligation to conduct yourself in a manner of trust and confidence as an employee of Qantas.
288 The evidence was clear that the respondent's response to Mr Cicciarelli's and Mr Inguanti's conduct was determined by Mr Hall. I accept that, acting on Mr Smith's findings as reported to him, Mr Hall took responsibility for summarily dismissing the applicants. With respect to Mr Inguanti, the findings that Mr Smith made and Mr Hall accepted were clearly open on the material collected in the investigation, particularly bearing in mind the statements in the investigation of Ms Corrente, Mr Brooke, Mr Parsons and Mr Giles, as well as the lack of corroboration for Mr Inguanti's own account. Mr Hall plainly believed that Mr Inguanti's conduct was not authorised by the TWU; and that it was unlawful and justified termination. Indeed, the investigation yielded no evidence that Mr Inguanti's conduct on 14 February 2009 was in any sense authorised by the TWU or lawful; and the applicants did not submit to the contrary.
289 There was nothing in the evidence about the investigation, including the documents created in the course of the investigation, to justify an inference that Mr Inguanti was terminated for reasons that included his status as a delegate. Further, as senior counsel for Qantas submitted, it was never put to Mr Smith that he did not genuinely make the findings he claimed to make about Mr Inguanti's participation; and it was never put to Mr Hall that he did not genuinely accept the findings as conveyed to him by Mr Smith. Nor was it specifically put to them that they were affected by the fact that Mr Inguanti was a TWU delegate or, more simply, a troublemaker. Further, it is clear that neither Mr Hall nor Mr Smith believed that Mr Inguanti's conduct fell within s 793(1)(o) of the Act.
290 With respect to Mr Cicciarelli, Mr Smith denied that, in making his findings, he was influenced by the fact that Mr Cicciarelli was a delegate. As already stated, I found Mr Smith to be an honest and reliable witness. I accepted his evidence in this regard. With respect to Mr Cicciarelli, it was plainly open to Mr Smith to make the findings he did, having regard to the material gathered by him in the course of the investigation. I accept that his findings represented his genuine assessment of Mr Cicciarelli's actions on 13 and 14 February 2009.
291 Mr Smith's notes prepared in the course of the investigation showed, moreover, that he pursued his investigatory task in a fair and methodical way, seeking to ascertain, as best he could, what had happened on 14 February, how relevant employees had conducted themselves that day, and the reasons for their conduct.
292 Mr Hall denied that it was part of his reasons for deciding to terminate Mr Cicciarelli's employment that Mr Cicciarelli was a delegate and/or that his previous activities in that capacity were troublesome. As already stated, Mr Hall was a credible witness, and I accepted his evidence in this regard. It was open to him to rely on Mr Smith's findings as he did.
293 I accepted the substance of Mr Hall's testimony that his reasons for terminating Mr Cicciarelli's employment were that, on 13 and 14 February 2009, Mr Cicciarelli engaged in organising and inciting industrial action; that conduct was unlawful; and that conduct was not authorised by the TWU. Further, it is clear enough that neither Mr Hall (nor Mr Smith) believed that Mr Cicciarelli's conduct fell within s 793(1)(o) of the Act.
294 Mr Hall plainly believed that Mr Cicciarelli's (and Mr Inguanti's) conduct was more serious than that of the other participants in the events of 14 February. Thus, Mr Hall said, and I accept, that he assumed responsibility for deciding what should be done in the case of the other employees who were stood down - Mr Storen, Mr Briggs, Mr Sarmo and Mr Fischer - and that in their case he accepted that "they were not at the core of the incident" and that they should be given final warnings and returned to work.
295 To sum up, the evidence of the subjective reasons of the ultimate decision-maker, Mr Hall was that he had taken the decision to dismiss the applicants because they were guilty of misconduct and that he was not influenced by their status as delegates. Mr Smith, whose findings were accepted by Mr Hall, gave evidence that his findings included that Mr Cicciarelli had organised and incited industrial action and Mr Inguanti had attempted to organise and incite industrial action. Both Mr Hall and Mr Smith believed that the union had not authorised the industrial action. Both were aware that there might be difficulties because the applicants were delegates. I have accepted their evidence.
296 The applicants submitted, however, that there were other considerations aside from this evidence that should lead the Court to conclude that their employment was terminated for reasons that included that each was a delegate of the TWU.
297 The applicants argued that, even if Mr Hall was genuinely of the view that they had engaged in conduct sufficient to warrant summary dismissal, the Court should not accept that this view was a comprehensive expression of the reasons for their dismissal; and that Mr Hall's reasons were not separate from the circumstance of the applicants being delegates. Because Mr Hall had adopted Mr Smith's findings, then, so the applicants argued, "his stated intention [was] not a comprehensive exposition of the reasons for the termination of the applicants' employment". The applicants argued that the "Court need[ed] to consider factors which might reasonably have actuated the ultimate decision maker and whether in all the circumstances the fact of the applicants' delegateship was a material consideration".
298 As the applicants submitted, it is a question of fact as to whether there is a causal relationship between a proscribed reason and dismissal; and, as noted above, evidence of the subjective reasons of a decision-maker is not determinative of this question. For the reasons I am about to state, however, reference to the attendant circumstances did not have the outcome the applicants urged.
299 Thus, the applicants submitted that it was incorrect to aggregate the reasons for which each was dismissed into one compendious reason - that of organising and inciting industrial action in the case of Mr Cicciarelli and, in the case of Mr Inguanti, attempting to organise and incite industrial action. This was not, so the applicants said, what the evidence revealed. In support of this argument, the applicants relied on the allegations against each of them and the reasons given for dismissing them.
300 As the applicants noted, the initial letters of allegation of 18 February 2009 contained both general and specific allegations. Some allegations were apparently independent of other allegations. Nothing, in my view, turns on this. At the time these letters were written, the investigation was at an early stage. The varied nature of the allegations to which the applicants were asked to respond reflected the fact that at this point Mr Smith was only beginning to gather material that might assist him in understanding what had happened and why. Subsequent letters of allegation focussed more specifically on the facts and circumstances disclosed or indicated as a result of the investigatory inquiries. Plainly enough, these allegations concerned the conduct of the applicants on 14 February 2009. The allegation letters do not support the applicants' case with respect to s 792 of the Act.
301 The applicants also relied heavily on the reasons given for dismissing them as indicating the incorporation of an impermissible reason. As regards Mr Cicciarelli, his counsel contended that Mr Hall's evidence showed that there were, in effect, two bodies of reasons for Mr Cicciarelli's dismissal - the first contained in Mr Hall's notes of his meeting with Mr Smith on 5 March 2009 (see [164] above) and the second, in Mr Cicciarelli's letter of dismissal (see [287] above). Turning to Mr Hall's notes of what Mr Smith told him on 5 March 2009, Mr Cicciarelli's counsel drew attention to passages in which Mr Hall had recorded:
Allegation against him is that on the Friday he spoke to Mancuso re Part-timers wanting to take industrial action. M Fischer witness.
There seems to have been an element of premeditation.
..
Reports from employees that Cicciarelli presented to a group of people in lunch room in a provocative manner. "Leave it up to you to do what you want".
…
Lui did not remind employees about disputes procedure, possibility of getting matters into commission. No effort to avert action.
Premeditated on Friday night following discussions with Part-timers.
Tried unsuccessfully to engage TWU.
Did not try to stop action.
Did not try to manage the situation.
Told employees to stop work to go to lunch room. …
Counsel for the applicants submitted that these passages referred to matters associated with Mr Cicciarelli's role as a delegate - a point that he sought to highlight by noting that some matters were equally applicable to other Ramp employees, though they were not dismissed.
302 Further, counsel for the applicants submitted that the effect of Mr Hall's evidence was that the reasons for dismissal in Mr Cicciarelli's letter of dismissal could not be aggregated into one compendious reason - organising and inciting industrial action - but, rather, Mr Hall had relied on each matter separately and the reasons were to be considered in that light.
303 Counsel for the applicants propounded a similar analysis of the reasons for Mr Inguanti's dismissal. As already noted, the matters that formed the basis of Mr Inguanti's final interview were contained in his dismissal letter: see [280]-[281]. Again, Mr Inguanti's counsel argued that Mr Hall relied on each matter separately and the reasons were to be considered in that light.
304 I reject the submission that Mr Hall relied on each matter alleged against Mr Cicciarelli and Mr Inguanti as separate and distinct from each other alleged matter. In relation to Mr Inguanti, Mr Hall's evidence was that he relied on "[t]hose six findings and the information in his responses. And the fact that Mr Inguanti's "story not adding up". In relation to Mr Cicciarelli, Mr Hall's evidence was that he relied on "the collective - all of those things happening". I accept Mr Hall's evidence. The alternative propounded by the applicants is not tenable.
305 The applicants also contended that the allegations in their letters of dismissal showed that the reason for dismissing them included reasons associated with the fact that they were delegates. In relation to Mr Cicciarelli, the applicants' counsel argued that his dismissal letter:
… shows that the reasons for his dismissal included reasons associated with the circumstance that he was a delegate, in particular:
(i) the letter reveals that the respondent dismissed him for matters associated with him being a delegate, including a matter associated with him being a delegate, but common to all relevant employees;
(ii) the letter reveals that the respondent dismissed him for reasons common to a large number of employees who were not dismissed.
The applicants' counsel made the same argument with respect to the matters referred to in Mr Inguanti's dismissal letter.
306 By way of example, the first matter in Mr Cicciarelli's dismissal letter stated that Mr Cicciarelli "met in the lunchroom with other Qantas employees, including with some part-timers, during the course of the afternoon" on 13 February. Counsel for the applicants maintained that this was conduct engaged in by Mr Cicciarelli in his capacity as a delegate. Counsel made the same submission in relation to the conduct of the report back, the failure to invoke the disputes resolution procedures of Enterprise Agreement 7 and Mr Cicciarelli's advice to management that the Ramp employees had stopped work (all mentioned in Mr Cicciarelli's dismissal letter). In this way, counsel for the applicants characterised numerous matters relied on in Mr Cicciarelli's dismissal letter and Mr Inguanti's dismissal letter as conduct which occurred in the course of the duty of each as a delegate.
307 Further, counsel for the applicants submitted that the dismissal letters revealed that Qantas had dismissed Mr Cicciarelli and Mr Inguanti for reasons common to a large number of employees who were not dismissed. For instance, Mr Cicciarelli's dismissal letter stated that "you failed to conduct yourself in accordance with Qantas' values and Standards of Personal Behaviour pursuant to clause 4 of the Standards of Conduct Policy and you engaged in unacceptable behaviour including conduct which constituted a breach of relevant laws and regulations (including the Workplace Relations Act 1996 (Cth))". Counsel for the applicants submitted that this statement was also applicable to the other employees who participated in the industrial action. Counsel made the same point about a range of other matters mentioned in Mr Cicciarelli's and Mr Inguanti's letters of dismissal. Having regard to these statements, so the applicants' counsel submitted, the proper inference to draw was that Mr Cicciarelli and Mr Inguanti were treated differently for reasons associated with the circumstance that each was a delegate.
308 I reject the submission that I should infer from any of the dismissal letters, or from the other evidence concerning Mr Hall's reasons, that Mr Cicciarelli and Mr Inguanti were dismissed for reasons associated with the circumstance that they were delegates. As already stated, I accept that Mr Hall, as advised by Mr Smith, genuinely believed that not only had the applicants been involved in the industrial action on 14 February, but that their position differed from that of other employees, because none of the other employees had organised and incited, or had attempted to organise and incite, the industrial action. This is consistent with a proper reading of the dismissal letters and the other evidence as to Mr Hall's reasons - all of which are properly to be read and understood as a whole and not dissected in the manner for which the applicants contended.
309 Each of the various matters mentioned in the dismissal letters was in the nature of a finding along the way to the conclusion that the applicants had organised and incited or attempted to organise and incite the work stoppage that day. As noted above, I accept that, as the respondent submitted, the matters referred to in Mr Hall's reasons should not be considered in isolation from one another. Mr Hall's evidence regarding his decision to dismiss Mr Cicciarelli (which I accept) showed that Mr Hall considered matters as a whole, and the impact that Mr Cicciarelli's conduct had had on Qantas. Thus, Mr Hall said (and I accept) "I sat in my room by myself for a while and read it all again. I decided it was a very serious offence. It had inconvenienced a lot of our people. It had put the company and our operation in jeopardy…".
310 Mr Cicciarelli was not dismissed simply because he made a report back. Nor was he dismissed because Mr Hall (or Mr Smith) considered that he had lost control of the meeting. Rather, Mr Cicciarelli was dismissed because Mr Hall (and Mr Smith) believed (amongst other things) that, at the report back on 14 February, he set out to, and did, organise and incite industrial action. This organisation and incitement was not authorised by the TWU. In this regard, Mr Cicciarelli was not in fact acting as a delegate of the union. Mr Inguanti asserted that he was acting as an OH&S representative but his assertion was not believed by Mr Hall (or Mr Smith).
311 The applicants relied on two further factors as indicative of the fact that they were dismissed for a reason that included their delegate status. The applicants contended that Mr Hall's reasons for dismissing them "were informed by his view as to the[ir] role … within the workplace". The applicants specifically relied on Mr Hall's evidence that, in his view, delegates held leadership positions in the workplace and that he expected delegates to behave accordingly - that is, delegates were to encourage union members to comply with agreed disputes resolution procedures. I accept that Mr Hall held these views and that he therefore considered that Mr Cicciarelli and Mr Inguanti in their capacity as delegates had particular obligations that differed to some extent from the Ramp and Baggage Room employees who were not delegates. This proposition is unremarkable. A delegate might reasonably be expected to have responsibilities as a delegate that do not attach to a non-delegate. As the respondent submitted, however, this did not excuse misconduct or permit a delegate to engage in unlawful and unauthorised activities.
312 Counsel for the applicants submitted that the respondent could not rely on the status of being delegate - acquired by virtue of union membership and affiliation - as a reason to expect more of an employee and use a failure to meet that expectation as a reason for dismissal. This may be accepted. Counsel argued that the real reason that Mr Hall dismissed the applicants and not the other employees also involved in the industrial activity of 14 February 2009 was that he expected more of the applicants than the other employees because the applicants were delegates. I reject this submission. The evidence in this case does not justify the conclusion that Mr Hall's particular expectation about a delegate's conduct formed any part of his reasons for dismissing the applicants. As I have said, the gravamen of Mr Hall's reasons for dismissing Mr Cicciarelli was that he had organised and incited industrial action and, in Mr Inguanti's case, that he had attempted to organise and incite industrial action; and that the union had not authorised any of this industrial action, whether actual or attempted. That is, Mr Cicciarelli and Mr Inguanti were dismissed for unlawful conduct that was not authorised by the union. In this sense, they were not dismissed because they were delegates at all. The kind of difficulty that arose in Barclay does not arise in this case.
313 The second factor that the applicants relied on in this connection arose from their activities as delegates in the workplace. There was evidence (which I accept) that, in the year or so prior to termination, the applicants had been active union delegates. There was evidence that Mr Brooke had told Mr Hall that he thought the applicants were troublemakers. There was also evidence that, in the previous six months, Mr Hall had been unhappy and frustrated with Mr Cicciarelli about roster options. The applicants particularly relied on the email from Mr Hall about roster options, in which he had stated that Melbourne management was working "very hard … to undermine Cicciarelli's credibility with the workforce and the TWU": see [154] above. Counsel for the applicants argued that this email was significant for two reasons - first, because it "[was] a little window to Mr Hall's modus operandi"; and, secondly, because it was "reflective of his view of the importance of the position of delegate in a workplace".
314 Having heard all the evidence, however, I reject the proposition that this email, either alone or with other evidence, justifies a finding that, as at 14 February 2009, Mr Hall and/or other members of Qantas' management were actively involved in a campaign against Mr Cicciarelli and/or that Mr Hall was motivated to dismiss Mr Cicciarelli because of his past activities as a delegate. I accept Mr Hall's evidence about the circumstances addressed by the email and that these circumstances did not enter into his reasons to dismiss Mr Cicciarelli.
315 Further, the evidence does not justify a finding that the investigation led by Mr Smith was in any way biased in favour of dismissing Mr Cicciarelli or Mr Inguanti. Mr Smith had dealings with both applicants in their role as delegates. There was, however, no evidence to justify the view that Mr Smith was, for this reason, biased against them. In this context, I observe that Ms Corrente, who assisted Mr Smith, did not have any adverse view of the applicants. Further, there was no evidence that indicated that Mr Brooke's views about the applicants, even if unfavourable, affected the course of the investigation or Mr Smith's findings as conveyed to Mr Hall. Mr Smith was, plainly enough, an independent and fair-minded person. As already stated, he conducted the investigation in a fair and orderly way. In this connection, I note that the record of the investigation, including the applicants' letters of response, indicates that the applicants failed to take proper advantage of the opportunities provided to them to explain their conduct on 14 February 2009. Mr Smith reached his conclusions fairly, after an appropriate investigation.
316 I would therefore reject the applicants' submission that the evidence about their activities as delegates should lead me to find that Mr Hall made his decision to dismiss them for a prohibited reason, or for reasons that include a prohibited reason.
317 Further, I would reject the applicants' assertion that the deficiencies in the investigation were such as to infect the findings made by Mr Smith and accepted by Mr Hall. I accept Mr Hall's evidence that he took time to consider the position of each applicant, having regard to Mr Smith's reported findings and did not reach his own decision because of any subjective bias against them. When read fairly, there is nothing in the evidence concerning the investigation or in the voluminous documents created in the course of the investigation that demonstrates that a prohibited reason was part of the reasons for the decisions to dismiss Mr Cicciarelli and Mr Inguanti.
318 I accept that the investigation process had faults. In view of his previous dealings with the applicants, Mr Hall may not have been the ideal choice as decision-maker. Perhaps it would have been better if neither Mr Brooke nor Ms Corrente had been involved in the investigation process since both were also directly involved in the events of 14 February 2009 (although Qantas' policy contemplated the involvement of relevant managers). Nonetheless, I accept that, as counsel for the respondent submitted, the investigation was, overall, a reasonable attempt by Qantas to get to the bottom of the events of the day.
319 The evidence satisfies me that, on the balance of probabilities, Mr Inguanti's and Mr Cicciarelli's employment was not terminated for reasons that included that they were delegates or officers of the TWU. It follows that Qantas discharged the onus of proving that the applicants were not dismissed for a prohibited reason, or for reasons that included prohibited reasons.
320 For the reasons stated, I would reject the applicants' claim that they were unlawfully dismissed because they were delegates and officers of the TWU in contravention of s 792 of the Act.