"What I'm suggesting to you is not just that you assumed that she saw something offensive but you knew that you had an offensive image on your screen and that that's the reason why you apologised when she said, "That's fucking disgusting, mate." Isn't that right? --- Yes.

You didn't, of course say, "I've got no idea what you're talking about. What is it that is disgusting about this"? --- No.

The reason for that is that you did, at that time, have an explicit image on your screen, didn't you? --- I may have, yes."[97]

[164] In re-examination the Applicant was asked to clarify what he meant when he said in cross-examination that Ms Downes must have seen an explicit image on his iPad and said that he had no recollection of the image that Ms Downes saw but given that she had gone to the effort of making a complaint and describing the image in that manner, it must have been an explicit image.[98]

[165] The findings and outcomes of the investigation were made and determined by Mr Grimshaw. In making his findings Mr Grimshaw reviewed and considered the information gathered during the investigation and the Applicant's responses. Mr Grimshaw determined that each of the allegations in the first letter of allegations and the further letter of allegations had been substantiated. Mr Grimshaw appended his findings to a letter to the Applicant dated 23 January 2019 headed "Allegations about your conduct - findings and outcomes of the investigation (the findings letter)[99]. The findings letter stated:

"...these findings are very serious and the Company is considering disciplinary action against you which might be the termination of your employment.

I am particularly concerned you carried out the conduct described in allegations two and three [the allegations concerning Ms Remfrey] in the Further Allegations [the allegations concerning Ms Downes] on a repeated basis over an extended period of time. I am also concerned that the two Caltex employees witnessed you engaging in this conduct on multiple occasions.

Furthermore, I am seriously concerned that in response to a number of allegations, you have maintained the view that the material you were accessing whilst at work is not inappropriate, offensive or in breach of the Standards of Conduct Policy. You have also not shown any contrition or remorse for viewing such material in the workplace. Consequently I am seriously concerned as to whether the Company can maintain trust and confidence in your ongoing ability to abide by the Company's policies."

[166] In relation to the Applicant's responses referring to the Mobility Terms and Conditions and his belief about how these operated, the letter states:

• The iPad issued to you is a Company owned device. The iPad was confiscated from you so that it could be analysed by IT experts following two complaints being made about the material you were viewing on the Company iPad whilst at work.

• I provided you with a copy of the Mobility Terms and Conditions in our meeting on 17 December 2018. The Mobility Terms and conditions do not prohibit the Company from confiscating and accessing any information stored on a Company owned iPad. Rather, the mobility Conditions relate specifically to the operation of the 'Comp Portal' application on a device. Users are required to download this application to their device and enrol that device, in order to be able to access the Qantas IT Environment on that device. This is a requirement regardless of whether the device is a personally owned device or a device owned or leased by the Company.

• The Mobility Terms and Conditions relate to what the 'Comp Portal' application is able to access when the application is downloaded to a device. The Mobility Conditions provide that the Company cannot remotely monitor text messages and photos through the Comp Portal. I can confirm that the Company has not obtained any images, web history or data usage or any other information referred to in the letters of allegation, through remotely accessing or monitoring the Company iPad that was issued to you.

• The Mobility Conditions are subject to, and in fact, explicitly refer to the Cyber Security Policy (referred to as the IT Policy in the Mobility Conditions being the previous name of the Cyber Security Policy). The Cyber Security Policy allows only for 'reasonable personal use' of the Company's IT environment. Your use of the Company iPad is subject to compliance with all relevant Company policies, procedures and conditions.

[167] The details of the findings attached to the letter can be summarised as follows. In relation to Allegation 1 concerning the Applicant accessing the Fantasy Lingerie website on 3 August 2017, it was found that notwithstanding that it is retail website it is an adult retail website with images displayed including topless women and sex toys. It was also concluded that the images may reasonably be considered obscene, pornographic and/or offensive in nature and not appropriate to be accessed at work. Allegation 1 was therefore found to be substantiated.

[168] In relation to Allegations 2 and 3 concerning Ms Remfrey, it is noted that the Applicant suggested in his written response that the dates nominated by Ms Remfrey did not correspond with the dates in the allegations concerning the images on the iPad or the accessing of pornographic websites. The findings record that while this may be the case, the evidence of Ms Remfrey was not undermined because there were several plausible explanations for the lack of browsing history on the relevant dates, including private browsing or the manual deletion of internet browsing history. While noting that the Applicant had denied private browsing during the investigation, it was also determined by Mr Grimshaw that he had been unable to explain why there was no browsing history recorded on the iPad for three months during the period 17 May to 16 August 2018. Allegations 2 and 3 were also found to be substantiated.

[169] In relation to Allegation 4 concerning the images on the iPad, it was noted that in his written response dated 9 November 2018 the Applicant had stated that he stored them on the iPad because he understood that Qantas could not see them and that later in the response meeting on 17 December 2017 the Applicant stated that he did not realise that the images had been saved on the iPad. It was further noted that the Applicant had stated during the 17 November response meeting that he did not think that the images were offensive. The finding was that the images are obscene and pornographic and include an extreme close-up of a woman's genitals; a close-up of exposed female breasts and women in various stages of undress (some in sexually suggestive poses). Reference is also made to the interaction between the Mobility Conditions and the Company's policies including the Cyber Security Policy and the SOC Policy as set out in the covering letter. Allegation 4 was found to be substantiated.

[170] Allegation 5 concerned accessing websites on the iPad containing images and/or videos that were obscene, pornographic and/or offensive in nature, on a range of dates between 29 September 2016 and 25 September 2018. It was also alleged that the Applicant knew, or ought to have known, that using the Company iPad to access the websites was inappropriate and in excess of reasonable personal use. The finding was that notwithstanding the Applicant's response regarding the legality of the websites (about which no finding was made) the websites were obscene, pornographic and/or offensive in nature. It was also found that while the websites were not accessed during work time, they were inappropriate on the basis of the explicit content on them and the number of websites accessed and the time over which this occurred, was in excess of reasonable personal use, including one day when 23 websites were accessed over a 5 hour 14 minute period. The finding also noted that the Cyber Security Policy applies to the IT environment, which includes the Company owned iPad issued to the Applicant, at all times, regardless of whether the user is at work or not and that both aspects of Allegation 5 were substantiated.

[171] Allegation 6 concerned the Applicant exceeding the monthly data usage of 1.5GB in a single day on 7 occasions and that he was aware or should have been aware, by virtue of signing the iPad declaration form, that the amount of data involved was in excess of reasonable personal use. The Applicant's response that he was downloading updates for work related apps was found not to align with Apple's 150MB cellular data download restriction. It was also found that the Applicant's position that there was no communication or notification given to employees that their data use may exceed the monthly limit was relevant to the weight to be given to the allegation, but the allegation was nonetheless substantiated. This finding was later set aside following an internal appeal on the basis that the cellular download data restriction applied only to Apple apps and not to Qantas apps.

[172] The further allegation involving Ms Downes (which I have numbered as Allegation 7) had a number of parts. In relation to the first part of the further allegation, it was noted that the Applicant had conceded that he had a small number of personal photos on his iPad and that Ms Downes may have seen one of the images. In relation to the second part of the allegation it was noted that the Applicant denied that he was aware of the presence of Ms Downes at the relevant time. It was concluded that Ms Downes' description of the images she saw does not match the images the Applicant admitted to storing on his iPad. It was also concluded that the Applicant had not given Mr Grimshaw any reason to doubt Ms Downes' evidence and that the Applicant had admitted to viewing inappropriate images at work and in the presence of Ms Downes (although denying that he was aware of her presence). It was found that the Applicant ought to have been aware that Ms Downes could see the images and that given their explicit nature, that the images would be likely to cause offence, intimidation or humiliation to Ms Downes. Based on the information including the Applicant's admissions, it was found that this part of the allegation was substantiated.

[173] It was also found that the Applicant slowly closed the iPad and that the Applicant knew or should have known that his conduct would be likely to cause offence, intimidation or humiliation to Ms Downes. Further, it was found that in relation to the last incident reported by Ms Downes that her version of events should be accepted on the basis that the Applicant accepted that Ms Downes must have been offended by something based on her comment that it was "disgusting". The allegation that the Applicant should have been aware that Ms Downes was approaching the engineering hut was also substantiated. This conclusion was based on a finding that it was foreseeable that Ms Downes may be approaching the Engineers hut in the course of her duties and that there was also potential for a number of employees to enter the hut including ramp employees, flight crew and engineers.

[174] Mr Grimshaw said that following the meeting on 23 January 2019, he handed over the investigation documents including the findings letter to Ms Hobl and was not involved in the decision to dismiss the Applicant. In response to the Applicant's statement, Mr Grimshaw said that he is troubled by the Applicant continuing to take issue with the proper application of Qantas Group policies and procedures and that if the Applicant is reinstated, it will send a message to other LAMEs and staff that it is okay to view pornographic, offensive or otherwise inappropriate content at work where it clearly is not. According to Mr Grimshaw, this is a matter which should be understood by LAMEs even without training and the Applicant should have been aware of it given his training and acknowledgement of the applicable terms and conditions.

[175] Mr Grimshaw also referred to the Applicant's evidence about the lingerie website and said that he finds it difficult to comprehend the Applicant's statement to the effect that he does not find the website to be offensive, pornographic or obscene. Mr Grimshaw stated that even if the website is not pornographic, it is not appropriate to access at work. Moreover, Mr Grimshaw is satisfied that the Applicant accessed the website while he was in the Engineers hut which is an area which can be accessed by a range of Qantas employees and third parties. The substantiated conduct is said by Mr Grimshaw to be repeated conduct over an extensive period, rather than an isolated incident.

[176] Mr Grimshaw agreed that he became aware of Ms Remfrey's complaint on 12 July 2018 and that at that point he could have found out the identity of the engineer involved and had everything he needed to start an investigation process, notwithstanding that Ms Remfrey did not want to make a statement. Mr Grimshaw also agreed that the allegation was serious and that he had an obligation to investigate and that it did not matter whether Ms Remfrey made a statement. Further, Mr Grimshaw agreed that he could have asked the Applicant about Ms Remfrey's allegation and seized his iPad on 12 July 2018 when he first became aware of that allegation. Mr Grimshaw accepted that he did not take either of these actions and that nothing further happened for a two-month period.

[177] Under cross-examination, Mr Grimshaw made some concessions about the findings generally and in respect of each allegation. Mr Grimshaw agreed that the first time the Applicant was informed of the allegations, he offered to apologise. In relation to Allegation 1, Mr Grimshaw agreed that the terms "obscene, pornographic and/or offensive" have different meanings. Mr Grimshaw initially stated that the images on the Fantasy Lingerie website could be seen as pornographic but later said that "offensive" is as high as he could put the matter.[100] In relation to Allegations 2 and 3, Mr Grimshaw agreed that the wording of the allegations is from the SOC Policy and that the effect of the allegations is that the Applicant has harassed someone.[101] In relation to Allegation 4, Mr Grimshaw said that the images go beyond offensive, and are obscene and/or pornographic. Mr Grimshaw also agreed that Qantas should set a standard for what is obscene and/or pornographic and explain this to employees, because different people have different standards and a mistake could reasonably be made.[102]

[178] In relation to Allegation 5, Mr Grimshaw accepted that all of the URLs were accessed by the Applicant outside work, using his own Wi-Fi, and said that the breach was because use of the iPad to access the websites was inappropriate and the viewing was in excess of reasonable personal use. In relation to the use of the term "inappropriate use" Mr Grimshaw agreed that a particular policy breach was not being identified.[103] Mr Grimshaw also agreed that the Applicant's response that he believed that his personal use of the iPad would not be monitored because of the privacy statement in the Comp Portal app that Qantas could not see his photos or web history, was a reasonable belief on the part of the Applicant. Further, Mr Grimshaw agreed that the Applicant apologised for a second time and that his apology was unconditional.[104]

[179] Mr Grimshaw was also taken to the responses provided by the Applicant to each allegation and agreed with the following propositions. In relation to Allegation 1 Mr Grimshaw agreed that the Applicant stated that he did not think that the lingerie website was obscene, but sincerely apologised and was remorseful if someone saw it and was offended. The Applicant also agreed that he was open to Qantas explaining to him what the standard is.[105]

[180] In relation to Allegations 2 and 3, Mr Grimshaw accepted that he had no objective evidence to contradict the Applicant's statement that he honestly believed he had not looked at pornographic websites in the workplace. Mr Grimshaw accepted that the Applicant did not dig in his heels or state that Ms Remfrey was wrong or was being ridiculous. Further, the Applicant did not concede that he was looking at the lingerie website at the relevant times but rather suggested this as an explanation for what was seen by Ms Remfrey and the Applicant offered to apologise to Ms Remfrey.[106]

[181] In relation to Allegation 4, Mr Grimshaw agreed only two of the seven photos contain nudity and that he had no evidence that the Applicant ever intended the photos to be seen by anyone. Further the Applicant had stated that he believed that Qantas could not view the photos because that was what was on the iPad. Mr Grimshaw accepted that this was a fair understanding on the part of the Applicant and also that it was fair enough that the Applicant had a misunderstanding.[107]

[182] With respect to the Applicant's response to Allegation 5, Mr Grimshaw accepted that:

• His stated inability to respond until details of the websites were provided was fair;

• The Applicant spoke about the Mobility Policy and said that his understanding is that when he is on his home Wi-Fi he can look at these kinds of websites;

• The Applicant effectively stated that he did not think he was doing anything wrong at the time and if he had a different understanding that he would have acted differently;

• There is no reason to believe that the Applicant would not abide by the policies in the future;

• The first and last thing that the Applicant did was apologise;

• The Applicant took the allegations seriously and said if he had done the wrong thing it was mistake; and

• The Applicant's response was a totally appropriate response in a misconduct investigation and meant that the conduct was less likely to be misconduct.[108]

[183] Mr Grimshaw accepted that some of the websites referred to in Allegation 5 were not pornographic, such as a website which showed bikini competitions, notwithstanding that such sites may not be appropriate to be viewed at work. Mr Grimshaw also accepted that there was nothing wrong with the Applicant looking at this website at home on his Qantas iPad. In relation to the websites that did contain pornography, Mr Grimshaw agreed that they did not contain "hard core" pornography. Mr Grimshaw also accepted that there is no suggestion that viewing of such websites was conducted using Qantas data and that he had no reason to believe that the Applicant was not genuine in his remorse for any breach of Qantas policies or the code of conduct. Further Mr Grimshaw accepted that the Applicant did not dispute that he had breached Qantas policy but rather that he had a misunderstanding of a different policy.[109]

[184] Mr Grimshaw agreed that the nature of the allegation concerning Ms Downes was that the Applicant had sexually harassed her and that the essence was that the Applicant was looking at pornographic images in the engineering hut, when he knew or should have known that Ms Downes was going to be in the hut."[110] Mr Grimshaw accepted that he had no reason to doubt the genuineness of the Applicant's remorse and preparedness to apologise if he caused Ms Downes offence or humiliation, and that he believed the Applicant in this regard. Mr Grimshaw also accepted that the Applicant was taking issue with the allegations on the basis that the alleged conduct occurred two years before it was raised and at the same time as the other allegations had been raised.

[185] Mr Grimshaw agreed that the Applicant's admission that Ms Downes stated that something he was looking at was disgusting, was not in his interests and that it was used against him. Mr Grimshaw also agreed that the admission was to the Applicant's credit and that his honesty in this regard is something that should be weighed in considering what disciplinary action is appropriate and was a matter strongly in favour of keeping the Applicant in the workplace.[111] Mr Grimshaw further agreed that the Applicant sincerely apologised and was remorseful and there was no real risk that he would do anything like this again. Finally, in relation to this allegation, Mr Grimshaw said that while the times refuellers approach the engineering hut is "pretty stock standard" there is no precise time that this happens, and it is not by the clock.[112]

[186] In relation to the Applicant's responses about the circumstances in which the iPad was provided, Mr Grimshaw agreed that he asked the Applicant why he believed that Qantas could not see his photos and the response from the Applicant and his support person was that this was because the iPad said so. Mr Grimshaw also agreed that he took a screen shot of the iPad of the Applicant's support person which was also a Qantas owned iPad that was set to "personal". Mr Grimshaw accepted that at the time, this surprised him because he thought the iPads supplied to LAMEs were set to "corporate" and he did not know that any iPads used by LAMEs were set up in this way. Mr Grimshaw agreed that the Applicant's iPad and that of his support person had been set to "personal" and said that he made no further inquiries about this matter.[113] Mr Grimshaw agreed that it would be significant if the Applicant's iPad was treated the same way as a personal use device from a policy point of view.[114]

[187] In relation to the acceptance form completed by the Applicant, Mr Grimshaw accepted that the Applicant told him that the acceptance form was a "tick and flick" and that he understood the meaning of this term. Mr Grimshaw also accepted that the Applicant's support person corroborated his statement on this point and that he had no reason to disbelieve the statements in this regard.[115] In response to the proposition that the iPad says nothing about appropriate use and does not contain a link to the IT Policy, Mr Grimshaw said that one of the screens in the enrolment guide refers to the IT Policy.[116]

[188] In relation to the gap in browsing history on the Applicant's iPad, Mr Grimshaw agreed that when he interviewed the Applicant on 17 December 2018, it had been suggested to him that the gap must mean that the Applicant had been using private browsing. Mr Grimshaw accepted that it could also mean that the Applicant had simply not been on safari and that the iPad could have been used for personal and work related purposes without safari being opened and that this was equally as possible as private browsing. Mr Grimshaw agreed that he had shown the Applicant how to open private browsing and that it is plausible that he did not know how to do this.[117] In relation to the seven images stored on the iPad, Mr Grimshaw agreed that only one is obscene - the image of a woman's genitalia. [118]

[189] In relation to Ms Downes' allegations, Mr Grimshaw did not disagree with the proposition that it was put to the Applicant that he deliberately showed Ms Downes the images and that he was adamant that this was not the case. Mr Grimshaw also agreed that Ms Downes' allegation was that she walked into the hut and saw something on the screen of the iPad, the screen was in a position that she could see it and that the Applicant put the screen down when she made a noise. Mr Grimshaw agreed that the this was a tenuous basis to say that someone was deliberately showing the images, particularly in light of the Applicant's adamant denial. Mr Grimshaw conceded that he could not seriously substantiate this allegation.[119]

[190] In relation to the letter setting out the findings and outcomes of the investigation, Mr Grimshaw said that the letter was drafted by the case management team at Qantas but that he agreed with its contents. Mr Grimshaw also agreed that the lingerie website (subject of Allegation 1) is not pornographic nor objectively offensive but is inappropriate at work and viewing it does not justify dismissal. There is no objective evidence in support of Allegation 2 and Mr Grimshaw now knows that there is at least one other plausible explanation for the lack of browsing history notwithstanding that data was used on the dates in question. In relation to Allegation 3 it was a matter of one employee's evidence against that of another employee and there was no objective evidence to support the allegation. Mr Grimshaw further agreed that he had no proper basis to disbelieve the Applicant and that Allegation 3 should not have been substantiated.

[191] In relation to Allegation 4, Mr Grimshaw accepted that the finding that the images were obscene was not a fair description in relation to six of the seven images concerned and accessing it in the workplace would not justify dismissal. In relation to Allegation 5, there was no finding that the websites were illegal and that the Applicant accessing them in his home on his own Wi-Fi caused any cost to Qantas. The concern in relation to this allegation was that too much pornography had been accessed. Allegation 6 was substantiated but later found not to be substantiated following an internal appeal. Mr Grimshaw accepted that he could not personally substantiate Ms Downes' allegations and did not have a proper basis to assess her credibility. Further, Mr Grimshaw accepted that the allegation as substantiated was that the Applicant sexually harassed Ms Downes.[120]

[192] The decision to dismiss the applicant was made by Ms Hobl. On or about 23 January 2019, Ms Hobl attended a meeting with Mr Grimshaw. During the meeting, Mr Grimshaw said words to the effect that he had completed his investigation, that the allegations against the Applicant had been substantiated, and that the Applicant had been directed to provide a response to Ms Hobl as to why his employment should not be terminated. On 23 January 2019, Ms Hobl was emailed a copy of the Show Cause letter setting out findings and outcomes of the investigation which had been given to the Applicant and which invited the Applicant to write to Ms Hobl by 29 January 2019 to provide reasons as to why his employment should not be terminated.

[193] Ms Hobl said that she read the Show Cause Letter and noted that the allegations against the Applicant had been substantiated, including the allegations made by two separate witnesses that the Applicant had, on a number of occasions, looked at pornographic material while in the workplace. Ms Hobl said that she was very concerned that two women had been exposed to conduct of that kind while working with Qantas. On 30 January 2019, Ms Hobl received an email from the Applicant attaching his response to the Show Cause Letter. Ms Hobl states that she read the response and noted the following:

• The Applicant referred to his belief that viewing "lawful adult websites" on the company iPad in his own time was not a breach of Qantas policy, despite the clear words of the SOC Policy and the Cyber Security Policy;

• The Applicant maintained that he had "always complied" with the Qantas Mobility Service Terms and Conditions (Mobility Terms and Conditions), despite it being explained in the Show Cause Letter (among other things) that the Mobility Terms and Conditions only relate to the operation of the "Comp Portal" application on the iPad and also explicitly refer to the Cyber Security Policy;

• The Applicant stated that he did not consider that the images on his device, which included a photo of a woman's exposed breasts and a photo of a woman's exposed genitals, were pornographic. He described the images as merely "a bit naughty"; and

• While the Applicant apologised for "offending" Ms Downes, and seemed to admit that Ms Downes may have viewed a pornographic image on the iPad that he was using, at the same time the Applicant continued to deny that he had engaged in any inappropriate conduct.

[194] Ms Hobl said that she considered that these matters demonstrated a clear lack of understanding and a lack of judgment by the Applicant of both appropriate workplace behaviour and the seriousness of his conduct. Ms Hobl also reviewed the materials that had been found on the iPad used by the Applicant. Ms Hobl states that she was taken aback and very concerned by the graphic nature of some of those materials, including the images stored on the iPad and the list of websites accessed. Ms Hobl considered those materials to be explicit and plainly inappropriate to be accessed and/or stored on a company-issued iPad.

[195] Based on her review of the materials in the case file, Ms Hobl formed the view that the Applicant's conduct was in breach of his obligations as an employee, including, most plainly, his obligations under the SOC Policy. Ms Hobl considered the Applicant to be in breach of the SOC Policy because his conduct involved the access and storage, on a company device, of offensive and inappropriate material, including pornographic material. Ms Hobl also considered that the Applicant's conduct constituted harassment within the meaning of the SOC Policy. Ms Hobl's view in this regard was that the Applicant's conduct towards the two female refuellers was unwelcome and unwanted by them, had caused each of them offence, intimidation and/or humiliation, and had occurred on a number of occasions. Ms Hobl considered that the conduct fell within the definition of sexual harassment set out in the SOC Policy, including because the conduct was captured by one of the examples of sexual harassment in the SOC Policy, being "display or circulation...of sexual material, including magazines, posters or pictures and messages".

[196] On 6 February 2019, Ms Hobl attended a meeting with the Applicant at the Brisbane Domestic Terminal referred to by Ms Hobl as the Show Cause Meeting. Mr Luke Murray, Qantas LAME, attended the meeting as a support person for the Applicant. Ms Saddi attended the meeting as a representative of Qantas. Ms Hobl said that during the Show Cause Meeting, she showed the Applicant printed copies of the photographs on the iPad and asked him questions to the effect of whether he considered the images to merely be "naughty". The Applicant said words to the effect that they were private photos that were not meant to be seen by anyone, and that in that context they were "a bit naughty".

[197] Ms Hobl states that she also asked the Applicant some questions about his understanding of Qantas policies, given the reference in his Show Cause Response to his having "complied" with the Mobility Terms and Conditions. According to Ms Hobl, the Applicant, on a number of occasions, said words to the effect that he was not aware, at the time the conduct occurred, that his conduct was in breach of Qantas' policy. Ms Hobl appended to her statement a copy of notes taken by Ms Saddi during the Show Cause Meeting and said that she has reviewed those notes and they accord with her recollection of the meeting.[121]

[198] Ms Hobl tendered the notes of the Show Cause Meeting conducted on 6 February 2019.[122] The meeting notes indicate that Ms Hobl informed the Applicant that the Mobility Terms and Conditions do not supersede or replace the SOC Policy or the Cyber Security Policy. The notes record that the Applicant maintained that these matters were not made clear to him and that he had not breached the Company policy in the Company IT environment. The Applicant is also recorded as stating:

"If you want to claim that I looked at inappropriate sites within my own time within my own house, I can't contest that, but I can't see how it affects work. It's a piece of hardware and we were told we could do what we wanted to do with it outside of the company environment. It's clear that I had a misunderstanding and I am sure a lot of guys had the same misunderstanding."

[199] It is also apparent from the notes of the show cause meeting that Ms Hobl took issue with the Applicant continuing to assert that the Mobility Terms and Conditions justified what she believed to be his inappropriate use of the iPad despite being given an explanation of those Conditions including that they "do not prohibit the Company from confiscating and accessing any information on a Company owned iPad." The record of meeting also indicates that Ms Hobl asked the Applicant whether, following that explanation, he remained of the view that he did not breach Company policies and later, whether he breached the policy. The Applicant is recorded as stating:

"In my current understanding as a result of this investigation, it appears that I breached the policy. But it wasn't deliberate. I understood it to be a certain way because of the information I was given and I was mistaken."

[200] In response to a question about whether he now thinks it appropriate the Applicant is recorded as stating that he cannot answer that question without "shooting myself in the foot" and that he had answered this question in writing. In relation to the images stored on the iPad, the Applicant was asked whether, given he did not find them inappropriate or offensive, he would have no concerns about accessing them in the workplace. The Applicant's response is recorded as being that he does not think the photos are appropriate for public display and has never thought so and that he has never intentionally accessed inappropriate material in the workplace. Ms Hobl is also recorded as putting to the Applicant that he recalls Ms Downes stating that something he was viewing on his iPad was disgusting and yet appeared to have continued to engage in the same conduct. The Applicant is recorded as denying this assertion.

[201] It is also repeatedly stated by Ms Hobl that the Applicant has not shown contrition and remorse or made sincere and unqualified apologies and that essentially the Applicant is stating that he is not bound by the policies but if Qantas finds that he is, he will apologise. The Applicant is recorded as responding that:

"What I'm saying there is I am sorry, but at the time I didn't believe that I was bound by the policies. What I'm saying is that I didn't believe I was breaching any policies at the time, but if I am, I'm very sorry for it. But you understand I have to defend myself as well. Not when I'm at risk of losing my job. I'm drawing the line of defending myself and showing contrition. But I'm unconditionally sorry for anything that occurred that's against regulations or that's offended anyone. I had to somehow try to defend myself for a bit. But that's also under advice from the Union from a legal standpoint as well. That's not a conditional apology. That's an unconditional apology with the reservation at the time that I didn't believe that I was doing anything wrong. I think it all comes down to intent. I don't have any intent to offend people. I'm just really really sorry that this all happened."

[202] The Applicant is recorded as stating that Ms Downes may have been offended because he said: "I'm sorry darl" and that Ms Downes was disgusted but she was not meant to see "it". The Applicant also states that the problem will never recur and that: "I will never open an email on the damn thing again". Ms Hobl is also recorded as stating: "would I feel comfortable if my daughter was viewing that if she was in a place of work?" to which the Applicant responded that he accidentally accessed the images just before he got a CPAP machine and had been having "microsleep" at the time.

[203] In relation to personal circumstances the meeting record indicates that the Applicant said:

"I don't know anything but working for Qantas. This is my life. My father did 25 years at Qantas before me. At 41 years service I can't imagine that anyone would believe that I would deliberately jeopardise that. I'm just asking that you see it as an unintentional misunderstanding and I can see that you've substantiated the breaches and there were breaches. But I'm saddened that there has been no acceptance that I didn't deliberately engage in this and I'm saddened that my apologies aren't being taken with a little bit more genuity. This is destroying me. Problem has been in the past and it will never recur. I just can't change the past. I can't."

[204] Ms Hobl said that the Applicant's responses during the Show Cause Meeting, in particular his refusal to acknowledge that the images on the iPad were explicit and his repeated reliance on the Mobility Terms and Conditions without any acknowledgement of the SOC Policy and the Cyber Security Policy, reinforced her view that the Applicant did not understand what constituted appropriate workplace behaviour and did not appreciate the seriousness of his conduct. Ms Hobl also said that following the meeting with the Applicant on 6 February 2019, she considered the findings of the investigation, as well as the matters that the Applicant had raised in his Show Cause Response and during the Show Cause Meeting. Ms Hobl formed the view that the Applicant's conduct was serious, particularly given the following matters:

• The conduct, as substantiated by the investigation, involved unwelcome, offensive and/or humiliating conduct towards two different women which was repeated over a significant period of time;

• Ms Hobl was satisfied that the material those women saw, as substantiated by the investigation, was not a lingerie website as the Applicant claimed, but rather explicit pornographic material;

• In any case, the viewing of an adult lingerie website on a company device in the workplace would have also been inappropriate;

• The images stored on the iPad included similarly explicit material;

• The Applicant knew, or ought to have known, that his conduct was highly inappropriate and unacceptable; and

• The Applicant knew, or ought to have known, that his conduct was in breach of the SOC Policy and the Cyber Security Policy, particularly have regard to the training that the Applicant received on the SOC Policy as part of the refresher he undertook on 6 July 2016 in relation to the SOC Policy.

[205] Ms Hobl considered the Applicant's statements in the Show Cause Response and the Show Cause Meeting to the effect that any explicit material he may have "inadvertently" viewed in the workplace was not intended to be seen by anyone else. Ms Hobl did not accept that the Applicant's viewing of explicit material was inadvertent and, in any case, did not accept that his explanation would excuse the Applicant's conduct. Ms Hobl noted that conduct does not need to be intentional to fall within the definition of harassment under the SOC Policy. Further, even if the Applicant's version of events was accepted (which was not the finding of the investigation), Ms Hobl considered it to be completely unacceptable in any case for the Applicant to allow potentially explicit material to be sent to his company device, and for him to open that material in the workplace.

[206] Ms Hobl also considered the Applicant's statements in the Show Cause Response and the Show Cause Meeting that he was confused or unclear about the application of Qantas policies and concluded that it was not reasonable for the Applicant to suggest that he was confused or unclear about those policies. In this regard, Ms Hobl noted that the Applicant received regular training on the SOC Policy. Ms Hobl was also aware, from her review of the investigation materials, that the Applicant had signed a declaration when he received his iPad in which he agreed to comply with the IT Policy (now known as the Cyber Security Policy). Further, Ms Hobl considered that storing and accessing explicit or pornographic material on a company device, and viewing explicit or pornographic material in the workplace on a company device, is conduct that is so inappropriate that it goes without saying that it is not acceptable workplace behaviour. Finally, Ms Hobl also considered the relevant mitigating circumstances, including the Applicant's length of service and performance record, and the effect of the termination of his employment on his personal and financial circumstances.

[207] Ms Hobl said that ultimately, having considered and weighed up of all these matters, and after considering whether there were any reasonable alternatives to dismissal, she formed the view that the termination of the Applicant's employment was appropriate. Ms Hobl also said that mitigating factors did not outweigh the seriousness of the Applicant's conduct. Before making the final decision to terminate the Applicant's employment, Ms Hobl made inquiries to confirm that there were no previous employee disciplinary matters involving similar circumstances to the Applicant's in which the disciplinary outcome had been different. Having made those inquiries, Ms Hobl was satisfied that the termination of the Applicant's employment would not be inconsistent with Qantas' treatment of other employees. Ms Hobl also said that in any case, she was satisfied that the seriousness of the Applicant's conduct warranted the termination of his employment.

[208] On 26 February 2019, Ms Hobl met with the Applicant and his support person Mr Murray. The meeting was also attended by an officer of the ALAEA. Ms Saddi was unable to attend the meeting as a company representative, so Mr Grimshaw instead attended the meeting in that capacity. During the meeting, Ms Hobl provided the Applicant with a letter terminating his employment and confirming he would receive a payment in lieu of notice.

[209] Ms Hobl said that it is her understanding as part of these proceedings, that the Applicant is seeking reinstatement. Ms Hobl does not consider that reinstatement would be appropriate. Ms Hobl states that she made the decision to terminate the Applicant's employment after considering all relevant circumstances, including the seriousness of his misconduct and failure to acknowledge and appreciate that seriousness during the investigation and disciplinary process. Ms Hobl stated that if the Applicant was to return to the workplace, she would have strong doubts about his ability and/or willingness to comply with Qantas policies, particularly with regard to his conduct towards others in the workplace.

[210] According to Ms Hobl, the Applicant's responses during the disciplinary process indicated that he did not consider that storing explicit material on a company device, and accessing that material in the workplace in front of other people, was inappropriate or should be the subject of disciplinary proceedings. In those circumstances, Ms Hobl would be very concerned with returning the Applicant to a role that involves significant periods of unsupervised work and unsupervised interactions with other employees and contractors. In this regard, Ms Hobl said that the Applicant's conduct, as substantiated during Qantas' investigation, was completely unacceptable, had an adverse impact on the women who witnessed it, and cannot be tolerated in any workplace.

[211] In response to the Applicant's evidence, Ms Hobl said that she is concerned that he continued to suggest that he was not aware of Qantas policies governing his use of the iPad. Ms Hobl also said that whether or not the lingerie website is pornographic, the fact that the Applicant does not appear to accept that he should not have accessed such a website on Company device, while he was at work, reinforces her view that the Applicant lacks the judgment and understanding as to appropriate workplace behaviour. In relation to the Applicant's evidence that he may have opened an email or checked a "private image" while "alone" at work, Ms Hobl said that the Applicant appears to continue to consider that having explicit photos or images sent to or stored on his company-issued iPad and that opening them while in the workplace, is acceptable workplace behaviour.

[212] Under cross-examination, Ms Hobl agreed that she has previously managed cabin crew and that the cohort of employees she is managing in her present role are blue collar workers with a totally different educational background than cabin crew and that they work in a more male dominated environment. Ms Hobl agreed that she was alarmed by the use of the word "again" when Mr Grimshaw reported the complaint about the Applicant to her.

[213] In relation to the lingerie website subject of Allegation 1, Ms Hobl accepted that it is not appropriate to view at work. Ms Hobl agreed that the Applicant said in the investigation that he did not understand Qantas' view about the website when he looked at it at work in 2017. Further Ms Hobl agreed that the Applicant viewed the website at work on one occasion and that she had no evidence that would suggest anyone else had seen it. Ms Hobl accepted that the website is not pornographic but maintained that it is offensive. Ms Hobl's definition of the term "offensive" is that it contains material of a sexual nature that could cause offence. Ms Hobl also made a number of comments during cross-examination including that: she would not be happy if she saw the lingerie website; that she personally finds the site objectionable; and that it is not an environment that she would want her children in.[123] In response to a question about the basis upon which she considered the material on the lingerie website to be obscene, Ms Hobl said that there can be varying understandings and viewpoints that come down to personal biases and life experiences.

[214] Ms Hobl agreed that the Applicant raised a number of issues including that: he had learned from the experience; he thought that he could view pornographic websites on his home Wi-Fi outside of working hours; the basis for his understanding was material on the iPad and that he found the policies confusing. Ms Hobl also agreed that the Applicant accepted that his understanding of the policies was wrong and that he had taken his new understanding on board and could guarantee compliance and that the Applicant was not failing to acknowledge the Cyber Security Policy.

[215] Ms Hobl was cross-examined about the interaction between the IT Policy and the finding about the allegation regarding using the Company-issued iPad to access websites containing images and/or videos that were obscene, pornographic and/or offensive in nature and that the Applicant knew or ought to have known that the use of the iPad in this manner was inappropriate and in excess of reasonable personal use. Ms Hobl was referred to the IT Policy insofar as it provides that: "Users are permitted to use the IT environment for limited personal use which is lawful, not excessive, does not result in excessive cost and does not impact upon or interrupt the efficient, lawful and ethical operation of Qantas' business." Ms Hobl agreed that this was the aspect of the IT Policy which Qantas alleged that the Applicant had breached in relation to this Allegation 5.

[216] The proposition was put to Ms Hobl that the Applicant's use of the iPad to view the websites in his own home, on his own time and using his private Wi-Fi was lawful. Ms Hobl disagreed with this proposition and in response to a question as to what she considers "lawful" said that the term means content that does not cause offence or damage. Ms Hobl confirmed that this is the standard that she applied in considering the allegations against the Applicant.[124]

[217] After first asserting that she did not know whether the conduct that was the subject of this allegation cost Qantas anything, Ms Hobl conceded that there was no cost to Qantas and the viewing of the material by the Applicant had no impact on the Company's business or operations. Ms Hobl also maintained that the reference to "excessive" referred to the use of 4G data and then conceded that the Applicant had not used 4G data to undertake the viewing dealt with in Allegation 5 and that this could not sensibly be described as excessive.[125] Ms Hobl agreed that none of the terms of clause 2.9 of the IT Policy were in the part of the allegations letter that dealt with the viewing of the videos. Ms Hobl also agreed that the specific breach of the IT Policy relied on by Qantas in relation to this allegation was clause 2.8 in relation to data usage in that the allegation was "tied up with data usage" and not clause 2.9, notwithstanding that there is a reference to clause 2.9 of the IT Policy in the findings and outcomes letter.[126]

[218] In relation to the images stored on the iPad, Ms Hobl contended that images identified as IMG_003.JPG and IMG_0171.JPG were "explicit". In those images the female subject is wearing underwear. Ms Hobl was asked whether that was the standard she used in assessing the Applicant's conduct and said in response: "Would I be happy if that was my daughter in the photo? No." When asked again whether this was the standard by which she assessed the Applicant's conduct, Ms Hobl said that it was her personal view and reiterated that she would not be happy if that was a photo of herself or her daughter.[127]

[219] Ms Hobl accepted that there are degrees of breaches and that it would be more serious if explicit material was put up on a wall rather than the Applicant having such images on his Qantas iPad and agreed that the photographs on the Applicant's iPad did not match the description of the material said to have been seen by Ms Remfrey or Ms Downes. Ms Hobl accepted that she could not say that anyone saw the photographs. Ms Hobl also agreed that the Applicant:

• Thought he was permitted to have the photos on his iPad;

• Accepted it was an error of judgment not to delete them;

• Stated that he had learned from what had occurred;

• Stated that he would immediately delete any such images that found their way onto the iPad in future;

• Did not challenge the Standards of Conduct and acknowledged those standards; and

• Accepted that he had breached the Standards of Conduct Policy and the IT Policy.

[220] In relation to the allegations concerning Ms Remfrey, Ms Hobl agreed that they were in three parts: first that the Applicant looked at a video selection page for a pornographic website while he was at work; second that Ms Remfrey saw this happen twice; and third that the Applicant knew or should have known that Ms Remfrey would see it. Ms Hobl said that it had not been found that the Applicant knew that Ms Remfrey saw the material on the iPad screen but rather that he ought to have known that such material would be seen because of the day to day activities that he was engaged in which included refuellers walking in to the Engineers hut.[128]

[221] Later Ms Hobl agreed that the Applicant knowing someone could walk into the engineering hut is different to him definitely knowing that this would occur and that the finding was that: "...he knew that woman would be coming back into the hut."[129] Ms Hobl subsequently disagreed with the proposition that she concluded that the Applicant deliberately engineered a situation whereby Ms Remfrey viewed an inappropriate website but accepted that the allegation in relation to Ms Downes was that the Applicant had sexually harassed her.[130] Ms Hobl went on to accept that the Applicant deliberately setting up such a situation was more serious than if the content of his iPad had been viewed accidentally.[131]

[222] Ms Hobl agreed that the Applicant has never attacked Ms Remfrey or criticised her in any way and has always accepted that she was upset notwithstanding that he denied looking at pornographic websites at work. Ms Hobl could not recall if the Applicant offered to apologise to Ms Remfrey.[132] Ms Hobl also agreed that there was no objective evidence that the Applicant was watching pornography at work and that Ms Remfrey's recollection of what she saw was subjective. Further, Ms Hobl agreed that she could not say with certainty that the Applicant knew that Ms Remfrey was the refueller on either of the days on which the alleged conduct occurred or that he would know the precise time that she would enter the hut.[133] Ms Hobl conceded that there was not enough material for her to conclude that the Applicant had deliberately shown images on the screen of his iPad to Ms Remfrey.[134]

[223] In relation to the allegations concerning Ms Downes, Ms Hobl agreed that the fact that Ms Downes was offended and that the Applicant apologised to her during one of the alleged incidents did not mean the image she saw was objectively offensive. Ms Hobl also agreed that the specific description of what Ms Downes claimed to have seen did not match any of the images stored on the Applicant's iPad.[135] Ms Hobl further agreed that the Applicant expressed remorse for having offended Ms Downes. Ms Hobl was also cross-examined about the Applicant's responses to the allegations in relation to Ms Downes and agreed that the Applicant had stated his belief that he had not breached the IT Policy in the Company IT environment and that he drew a distinction between the Company IT environment and his home environment. Ms Hobl agreed that the Applicant accepted that his understanding about the Mobility Policy and the IT Policy in this regard, was wrong.

[224] Ms Hobl was asked in cross-examination about her conclusion that the Applicant's apologies were conditional and not genuine. Ms Hobl said she based this view on the Applicant's comments that the images on his iPad were "a little bit naughty" and that she took this comment into account in relation to his level of understanding of what is right and wrong and what is appropriate to be viewing in the workplace. Ms Hobl did not disagree with the proposition that the Applicant did not concede that Ms Remfrey or Ms Downes saw the images on his iPad or with the proposition that the Applicant had accepted that the images were not appropriate to be shown to people in the workplace.[136]

[225] In response to the proposition that the main allegation was that the Applicant sexually harassed two refuellers, Ms Hobl said that looking at the evidence holistically including what was on the Applicant's iPad, "then that probability comes to hand".[137] Ms Hobl also said that she was concerned that there was a risk that the Applicant would do the same thing again.[138]

[226] Mr Purvinas gave evidence about a number of other misconduct cases involving Qantas employees allegedly engaging in sexual harassment in support of the proposition that the Applicant was treated differently than those employees. Mr Purvinas also gave evidence about redundancies made by Qantas in its LAME workforce and the difficulties those former employees are encountering finding other employment. Mr Purvinas pointed to the likelihood of further redundancies as a result of Qantas retiring its 747 aircraft by 2020. Further, Mr Purvinas said that the Applicant licenses are aircraft specific and those aircraft are operated by a limited number of airlines in Australia. Positions are highly contested by numerous applicants.

[227] According to Mr Purvinas the Applicant is unlikely to find other employment because of his age and the reason for his dismissal. Further, if the Applicant does not work on an aircraft within two years he will face restrictions on his licence which will require him to be supervised for a six month period if he gains alternative employment. This will further restrict the Applicant's ability to gain such alternative employment. The Applicant said that he is scared about what the future holds and that his search for employment has not been successful. The Applicant also said that he is 59 years old and works in a specialised area. He has no experience in job hunting and has worked for Qantas since he was 18 years old.

The approach to considering Pornographic or offensive material in the workplace

[228] As Counsel for the Respondent pointed out in its submissions, the following comments made by a Full Bench of the Commission in Queensland Rail v Wake[139], are as true today as they were in 2006:

"It cannot be doubted that electronic traffic in sexually-related, pornographic and violent images is of legitimate and growing concern to employers. Such images, apart from being offensive to many, can undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination...it is reasonable and, arguably necessary, that employers take what steps they can to eradicate traffic in such images."[140]

[229] It is also the case, as Counsel for the Respondent submitted, that while the task is now vastly more difficult due to the plethora of mobile devices and information sharing, the passage of time has seen a shift in what the employer can reasonably expect from employees in relation to the use of devices and platforms and that employees should be expected to understand what is, and what is not, appropriate.

[230] However, as Counsel for the Applicant put it, the present case is not a "morality play". Rather, it turns on how workplace standards in relation to on-line pornography are set, explained and maintained. It is also submitted that the present case concerns a "grey area" in terms of whether material is suitable for the workplace. Further it is submitted that the present case requires a careful analysis of the facts and determination of how the Applicant's conduct should be characterised and whether, having regard to the seriousness of the conduct, the Respondent has come up to the required standard of proof in relation to all allegations of fact.[141]

[231] I accept those observations. The present case also highlights issues which can arise where employees are using devices for personal purposes which can also connect with their employer's IT environment. Such devices may be the personal property of employees or issued by the employer on the basis that reasonable personal use is permitted. The practice of employees connecting with their employer's IT environment on a personal device has developed as modern workplaces demand increasing responsiveness and flexibility on the part of employees. The capacity for interaction between personal devices owned by, or issued to employees, and the employer's IT environment, doubtless assists both parties. Such interaction means that work can be undertaken remotely by employees at times when the employer requires it to be done or at times that suit the personal needs of employees. However, the interaction between personal devices and an employer's IT environment raises complex issues concerning the use of such devices to store, access and disseminate material which is work related and material which is not work related.

[232] Notwithstanding the complexity of those issues, it remains the case, as the Full Bench in Wake observed, that:

"...in general it is in the public interest that, subject always to considerations of fairness, the Commission's decisions should support employers who are striving to stop inappropriate email traffic."[142]

[233] I respectfully agree with those observations and I would add that the Commission's decisions should also support employers who are striving to establish standards in workplaces where all are treated with respect and are not exposed, in any form, or by any means, to material which is inappropriate or offensive in a workplace or can impact inappropriately on the wellbeing of persons at work. I also share the view of Deputy President Sams who observed in Batterham and Ors v Dairy Farmers Limited[143] (a case decided in 2011) that:

"Obviously, general community standards have changed over time and personal views as to what constitutes 'hardcore' and 'softcore' pornography will vary widely. On one view, this is hardly the point. What people do in the privacy of their own home is entirely a matter for them, save for unlawful conduct, such as storing or distributing child pornography or soliciting young persons for sex. However, on any objective analysis, the distinctions drawn by the respondent in this case are entirely sensible, fair and rational. Displaying email images in the workplace of male or female genitalia and obvious sexual acts, would obviously be offensive to many people in the community, maybe the large majority. This is really the point."[144]

[234] In the 21st century the proposition that there is no room in the workplace for pornographic, obscene or sexually related images of any kind or in any form, goes without saying. Further, I do not accept the proposition that the viewing or dissemination of such material in any workplace can be explained or excused on the basis that the workforce in a particular workplace is "male-dominated" or "blue collar". Nor do I accept that disseminating or viewing such material in the workplace is acceptable, whether this occurs on a privately owned device or a device issued by an employer.

[235] It is also the case, as the Full Bench in Wake observed, that the Commission's decisions in relation to whether the dissemination of such material is a valid reason for dismissal, are subject to fairness. Considerations relevant to fairness identified by the Full Bench in Wake were that the employer in that case had a firm and well publicised policy prohibiting the use of its electronic communication system to store or transmit sexually related, pornographic or violent material, that policy was supported by appropriate training and education and the employer had taken steps to warn employees that breach of policy could result in termination of their employment. Further, whether a particular breach by an employee is intentional, or the level of seriousness of the breach, may also be relevant to general considerations of fairness. Other relevant matters may be the personal circumstances of the employee - for example length of service, age, financial impact of a disciplinary outcome or the effect of a personal event or health issue on the employee at the relevant time.

[236] The matters that were considered in Wake are not unique to cases involving pornographic, obscene or sexually related material and are consistent with the well-established principle that notwithstanding that a dismissal is for a valid reason it can be found to be unfair on the basis of mitigating or extenuating circumstances. There is no general rule to the effect that an employee who is found to have disseminated pornographic, obscene or sexually related material in the workplace has engaged in serious misconduct that will invariably be found to constitute a valid reason for dismissal. However, where the Commission finds that an employee has engaged in such conduct, and the employer has firm, clear and well publicised policies warning that it may be grounds for dismissal, it will be difficult to find that the dismissal is unfair because of the personal circumstances of the employee. As a Full Bench of the Commission observed in DP World Sydney Limited v Lambley:

"...In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer's disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made."[145]

[237] I turn now to consider each of the criteria in s. 387 of the Act in relation to the present case.

Was there a valid reason for the Applicant's dismissal - s. 387(a)?

The approach to considering whether there was a valid reason for dismissal

[238] As I have previously noted, in determining whether there is a valid reason for dismissal it is necessary for the Commission to consider whether the conduct occurred and whether dismissal was a justifiable response to the conduct. While the Commission does not stand in the shoes of the employer, any such consideration must be objective and not based on personal views.

[239] In the present case, I have approached the task of determining whether there was a valid reason for the Applicant's dismissal by first considering the context in which the conduct occurred by reference to the policies and procedures in the workplace. I have taken this approach because Qantas relied significantly on breach of the SOC and IT Policies as a basis for its assertion that there was a valid reason for the Applicant's dismissal. The Applicant maintains that he misunderstood the Policies and that he had a reasonable basis for his misunderstanding. Accordingly, the context in which those Policies operates is relevant to the consideration in s. 387(a).

[240] Second, I have considered the actual conduct engaged in by the Applicant and made findings, on the balance of probabilities, about what occurred. Third I have considered whether the conduct meets the description of the conduct set out in the allegations and the findings letters and breaches relevant Policies having regard to the context in which they operated. Fourth, I have considered whether dismissal of the Applicant was a justifiable response to the conduct, in all of the circumstances. The relevant Policies contain terms such as "pornographic", "obscene" or "offensive". The Policies do not define these terms. There was an absence of coherent evidence from witnesses for Qantas about the meaning they assigned to those terms when they made decisions concerning the Applicant's employment. It is also the case that Mr Grimshaw and Ms Hobl made a number of concessions about the various allegations and whether they should have been substantiated.

[241] While confusion about policies and terms contained in them is relevant to whether there is a valid reason for dismissal it is not determinative. Mr Grimshaw and Ms Hobl were subjected to very skilful and forensic cross-examination by Counsel for the Applicant, about which no criticism can be made, given what was at stake in this hearing. Mr Grimshaw made some significant concessions while Ms Hobl maintained her position even when it was untenable. While concessions about the characterisation of the Applicant's conduct (or unreasonable refusal to make concessions) are also relevant, to whether there was a valid reason for dismissal, they are not determinative. The question of whether there was a valid reason for dismissal must be determined on an objective basis. When considering the material that is the subject of the allegations in the present case, I have adopted standard definitions as follows:

"Pornographic" - Explicit depiction, in pictures, writing or other material, of sexual subjects or activity in a manner intended to arouse. It does not include material intended for other educational, artistic or aesthetic purposes.

"Obscene" - (of the portrayal or description of sexual matters) offensive or disgusting by accepted standards or morality and decency.

"Offensive" causing someone to feel resentful, upset or annoyed.

"inappropriate" not suitable or proper in the circumstances.

[242] Qantas' SOC Policy underpins its other policies, and prohibits Qantas employees - among other things - from:

• engaging in threatening or intimidating behaviour;

• accessing or storing material of an obscene or pornographic nature, or using Qantas equipment or its IT environment (eg. internet, email, phone, fax, iPad, electronic organiser) for accessing or storing offensive material, or engaging in unauthorised use of Qantas' time, resources or facilities or its IT environment for private purposes;

• engaging in any activity which could cause Qantas public embarrassment or other damage or which is likely to bring Qantas into disrepute; or

• failing to comply with any applicable policy, procedure or rule.

[243] The version of the SOC Policy relied on by Mr Grimshaw and Ms Hobl in their decisions in relation to the Applicant's employment, was tendered by Ms Hobl. It is dated 12 February 2018. No earlier version of the SOC Policy was tendered. The 12 February 2018 version of the SOC Policy includes reference in clause 15.6 to "equipment or the IT environment" and a reference to an iPad being encompassed in the IT environment. However, the definition of IT Environment in the definitions section of the SOC Policy does not include reference to an iPad and refers only to "device component that is used by the Qantas Group" in connection with a range of its activities. The definition of IT Environment in the SOC Policy is the same definition as found in the IT Policy and later the Cyber Security Policy. Unlike the IT Policy and the Cyber Security Policy, the SOC Policy does not include a definition of IT Device.

[244] Counsel for the Applicant made an important point that there is a distinction in the relevant Polices between the Qantas IT Environment and the devices that connect to it. This distinction is in my view significant, because Qantas essentially dismissed the Applicant for conduct which breached its SOC Policy and IT Policy despite his assertions that he was confused as to the interaction between these Policies and the Terms and Conditions which he was told applied when he was issued with the iPad. It is also not clear when the reference to an iPad was inserted into clause 15.6 of the SOC Policy and whether it was included in that Policy when the Applicant did the SOC refresher training on 6 July 2016, after he was provided with the iPad and before 26 June 2017 when he installed Microsoft InTune and the Comp Portal app as part of migrating his iPad to the new MDM system. Furthermore, the training the Applicant was given when he

[245] The iPad issued to the Applicant was issued to him on the basis that he could use it at work in the Qantas IT Environment or use it personally outside that environment. I accept that an employee could breach the SOC Policy by using an unreasonable or excessive amount of 4G data paid for by Qantas while using the iPad for personal reasons. However, there is room for doubt as to whether any lawful personal use of a Qantas issued iPad by virtue of the iPad being connected to an employee's home Wi-Fi service (including viewing pornographic material), could breach the SOC Policy.

[246] Notwithstanding the problematic issue of whether the SOC Policy included the iPad in the definition of IT Environment, the training module completed by the Applicant was comprehensive. The Training Module included a slide defining harassment which stated inter alia that it is unwelcome and unwanted conduct that causes offence in circumstances where a reasonable person would have anticipated the possibility of offence being caused.

[247] At the time the Applicant was provided with a Qantas issued iPad, Qantas also had an IT Policy which provided that employees must not use the IT Environment for unacceptable reasons including transmitting, accessing, storing, or copying pornography or other material which may generally be regarded as objectionable, discriminatory or harassment. As previously noted, the IT Policy defined "IT Environment" to include any "device" used by Qantas Group in connection with information being created, accessed, processed, transmitted or stored by electronic means. The IT Policy had a separate definition for "IT Device" which included a tablet or portable storage device. The IT Policy was later replaced with the Cyber Security Policy which was relevantly in the same terms.

[248] In my view the Qantas IT Policy and later the Cyber Security Policy are also unclear in relation to their application to the personal use of a Qantas issued device such as an iPad, outside the Qantas IT environment. While the definition of IT Environment includes reference to devices, such reference is to devices used by the Qantas Group. If that definition was intended to encompass Qantas issued devices such as iPads, there would be no need for a separate definition of IT devices in the Policy.

[249] It is not in dispute that the Applicant signed a declaration when he received the iPad to the effect that he had read and understood the IT Policy and the "Qantas Mobile Computing and Remote Access Policy". There were two documents in evidence that could be the document described in the declaration as a "Qantas Mobile Computing and Remote Access Policy". These documents were tendered by Ms Leonardi and are entitled "Staff Privately Owned Mobile Device Terms and Conditions"[146] and "Qantas Mobility Service Terms and Conditions". The latter document replaced the former. If a document existed at any time known as the "Qantas Mobile Computing and Remote Access Policy" then it was not in evidence in these proceedings.

[250] I find that in May 2016 when the Applicant was issued with the iPad, the relevant terms and conditions were found in the "Staff Privately Owned Mobile Device Terms and Conditions" document. That document is the only one in evidence that could be described as the "Qantas Mobile Computing and Remote Access Policy" as at May 2016. It is more probable than not that when the Applicant was requested to declare that he had had read and understood such a Policy on 26 May 2016 then it is this document that is the relevant "Policy".

[251] The Staff Privately Owned Mobile Device Terms and Conditions state that a "Device" is any mobile equipment owned or leased by a Qantas staff member and used to access the Qantas ICT environment. The Definition specifically includes iPads. Patently the iPad issued to the Applicant was not a privately owned device. The Privately Owned Mobile Device Terms and Conditions defines the ICT environment (which I infer is essentially the same as the IT environment) to include: "any infrastructure, equipment, system or database used by a Qantas Group entity in connection with the access, storage, transmission or processing of any information via electronic means."

[252] While technically that definition could include an iPad that was issued by Qantas, it is far from clear that this is the case. It is equally arguable that the Terms and Conditions establish that the mobile items connecting to the ICT environment are "Devices" which are distinct from the ICT environment which encompasses "equipment" other than "Devices". This construction is supported by the fact that the Terms and Conditions at the time the iPad was issued, only applied to devices personally owned or leased by employees and that the term was defined in this way in the document. Further the Staff Privately Owned Mobile Device Terms and Conditions applied in relation to the connection of mobile devices to the Qantas ICT environment and not to the private use of the device by employees, consistent with the fact that the devices to which it applied were personally owned by employees. Ms Leonardi accepted under cross-examination, that there is a distinction between the device and the ICT environment.

[253] It is also apparent from the earlier version of the Mobile Device Terms and Conditions that any monitoring and inspection of the device would relate only to security configurations and that Qantas stated that it will not prevent employees from installing software or applications to their devices but may prevent devices with certain software or applications from connecting to the ICT environment for reasons including security. The later version entitled Qantas Mobility Service Terms and Conditions applies to privately owned and Qantas issued devices and states that Qantas will not monitor employees' phone call history but may restrict access to certain sites while a device is connected to the Qantas network for operational or policy reasons (my emphasis).

[254] The earlier Mobile Device Terms and Conditions contain a warning that personal data should be kept separate from Qantas data stored on the device. While the Mobile Device Terms and Conditions state that use of the Qantas ICT environment is subject to compliance with the IT Policy and contains a link to that Policy, as stated earlier, it is far from clear that the iPad itself is part of the Qantas ICT environment as defined in the Mobility Terms and Conditions or the IT environment as defined in the IT Policy. It is also the case that the Guide for enrolling the iPad on the then Citrix MDM system which applied when the Applicant was issued with his iPad contains no reference to the IT Policy or to the Mobility Terms and Conditions in the form they were in at the time.

[255] It is true that the guide for installing the Citrix MDM system does not include a privacy statement of the kind later found in the Microsoft InTune MDM installation Guide and in the Comp Portal app. However, the original Terms and Conditions stated that Qantas would monitor the device only in relation to security configuration, would not prevent the installation of software or applications and that personal data should be separated on the device. All of these statements indicate that personal use outside the Qantas IT environment would not be monitored.

[256] By 26 June 2017 when the Applicant installed Microsoft In Tune as part of migrating his iPad to the new MDM system, later Qantas Mobility Service Terms and Conditions was in effect". Unlike the earlier version the Qantas Mobility Service Terms and Conditions defined a "Device" as a "Qantas Approved Mobile Device" which included a Qantas issued or a privately owned device. The Qantas Mobility Service Terms and Conditions defined the Qantas ICT environment in the same way as it was defined in the earlier version of the Terms and Conditions including with the same lack of clarity about whether the ICT environment included the devices connected to it. While there was no evidence as to the reason for the new Terms and Conditions including personal and Qantas issued devices, it is apparent that the substantive difference between the documents is the expansion of the definition of "Device" to include both privately owned/leased devices and Qantas issued devices.

[257] Notwithstanding the definition of "Device" indicating that both personal and Qantas issued devices were caught by the Terms and Conditions, there is no other distinction in those Terms and Conditions in relation to personal and Qantas issued devices. Provisions relating to monitoring apply to both types of devices and state that monitoring is limited to security configurations and that Qantas will not prevent the installation of applications or software but may block the device from accessing its ICT environment if it contains data, software or applications that may compromise security or are contrary to policy. The same statement to the effect that Qantas will not actively monitor phone call history and may restrict access to certain sites while the device is connected to its network also appears. The same statement in relation to separating personal data also appears, which given the application of the Terms and Conditions to Qantas issued and private devices, means that the Terms and Conditions indicate acceptance that Qantas issued devices may contain personal data.

[258] The new Qantas Mobility Service Terms and Conditions also include a link to the IT Policy and state that employees acknowledge and agree that their use of the Qantas ICT environment is subject to the IT Policy. For the reason set out above, the IT Policy does not make clear that it applies to private use of an IT device such as an iPad outside the Qantas IT environment.

[259] The Enrolment Guide for the InTune MDM system that the Applicant used to enrol his iPad on 26 June 2017 included a screen headed: "We care about your privacy" which as previously noted informed employees that Qantas could never see their web history, email and text messages and camera roll. It was also possible to set the iPad to either a "personal" or a "corporate setting". The Applicant asserted that his iPad was set to "personal" and the records of meetings during the disciplinary process also indicate that the iPad used by the Applicant's support person was set to "personal". There is no evidence that the Applicant set his own iPad to "personal" or changed it to that setting after it was issued to him and I accept that the iPads provided to engineers were set in this way by Qantas when they were issued.

[260] The privacy statements in the enrolment guide and in the Comp Portal app on the iPad, while slightly different, are not qualified and are expressed in absolute terms. The statement in the enrolment guide is: "IT Admin cannot see this on your device" - before listing the items that cannot be seen while the statement on the iPad lists the same things and states: "What Qantas can never see". It is also the case that there is no reference either in the Mobility Terms and Conditions or the Step by Step enrolment guide, to the possibility of a Qantas device issued to an employee on a personal basis, being subject to seizure and forensic analysis.

[261] Ms Leonardi's evidence, suggesting that the privacy statement in the enrolment guide is limited to what Qantas is able to access remotely through the MDM system, as distinct from what Qantas could see if it seized and forensically analysed the device, was in my view, an exercise in splitting hairs. Unless this was specifically pointed out to a person enrolling a device it would not be reasonably apparent.

[262] While I doubt if Qantas would have the right to seize a privately owned device, I accept that it can take this action in relation to a Qantas issued device. However, seizure and forensic analysis of the Applicant's iPad to obtain his personal browsing history and to examine photographs and other private data stored on the iPad is inconsistent with what the Applicant was told about the iPad when he enrolled it into the InTune MDM system and in particular the privacy statement in the enrolment guide and in the Comp Portal on the iPad. Finally, as Ms Leonardi accepted, the Mobility Terms and Conditions say nothing about what employees can and cannot view on the iPad in their private time, using their own Wi-Fi and in fact state that Qantas cannot monitor that viewing. I also note that Mr Grimshaw conceded under cross-examination the Applicant's misunderstanding about these matters was "fair enough" and in my view that concession was correctly made.

[263] The lack of clarity about the private use of Qantas issued devices in the SOC Policy, the IT Policy and the Mobility Terms and Conditions, is compounded by the unsatisfactory training provided to the Applicant when he was issued with the iPad. Firstly, Qantas could not establish the actual content of the training. The version of the training related to the issuing of the iPad attached to Mr Pinto's statement was not the version actually delivered to the Applicant. The person who provided the training to the Applicant did not give evidence and instead Mr Pinto's evidence addressed this matter. Taken at its highest, Mr Pinto's evidence establishes that there was a training program developed and made into a PowerPoint presentation to be delivered to engineering employees who were provided with an iPad. The exact content of the training is as it was actually delivered to the Applicant is not clear.

[264] Even if Mr Pinto's evidence is accepted, and the matters in the presentation appended to his witness statement were imparted to the Applicant, issues with the training were evident. The single slide dealing with the IT Policy referred to "usage" being monitored and not to what was being accessed on the iPad. Further the slide on the IT Policy referred to use of the "IT Environment" rather than the iPad. If Qantas wanted to emphasise the IT Policy and that it applied to use of the iPad at all times including at work when it was in the Qantas IT environment or using Qantas provided 4G data, and at the employees' homes where they may be using their home Wi-Fi, then it would have been relatively simple to have included a screen on the iPad which required employees to click on and read the IT Policy before they enrolled their iPad. The Applicant maintained that the IT Policy was not handed out at the training session. The Applicant's evidence on this point was not contested and I accept it.

[265] Even if the training had included the provision of a copy of the IT Policy or a link requiring it to be read before the declaration was signed, this would not have assisted given the lack of clarity with respect to the operation of the IT Policy where an iPad was being used personally and outside the Qantas IT environment.

[266] It is also the case that sequence of slides in the training program provided for employees to sign the declaration at the point the fifth slide was being viewed, before the IT Policy slide which was the tenth slide in the presentation had been viewed. Notwithstanding the Applicant's evidence that he signed the declaration later in the program, the positioning of the declaration early in the program evidences the lack of emphasis on the connection between the private use of the iPad and the IT Policy that Qantas now seeks to rely on.

[267] In relation to the training when the iPad was provided, there is force to the submission of Counsel for the Applicant to the effect that it would have taken one slide to inform the Applicant and employees to whom the iPads were issued that:

• The iPads remained Qantas devices;

• They should not use the iPads in breach of the SOC or IT Policies;

• They should not use the iPads to access material of the kind described in the SOC Policy in relation to harassment - eg. unlawful, sexual, pornographic, racial, homophobic, transphobic, biphobic or other offensive material;

• That Qantas retained the right to seize a Qantas issued iPad at any time if it believed that a user had breached any of its policies; and

• The privacy statement in the enrolment guide and in the Comp Portal guaranteed only that Qantas could not access the listed matters through the Comp Portal.

[268] It would be expected from an employer of the size and with the resources of Qantas, that if there were a number of versions of a training program the versions and the date they were created would be identified. It would also be expected that there was a training record to indicate when the training was undertaken by particular employees so that the timing of the training could be matched with the version of the training materials that was actually delivered.

[269] In all of the circumstances, I make the following findings in relation to the context in which the conduct subject of the allegations occurred:

• It was reasonable for the Applicant to believe that the SOC Policy and the IT Policy did not apply to his personal and lawful use of the iPad when he was at home using his personal Wi-Fi;

• The Applicant genuinely did not understand the interaction between SOC Policy and the IT Policy on the one hand and the Mobility Terms and Conditions and the privacy statement in the enrolment guide and the Comp Portal App on the other;

• It was reasonable for the Applicant to believe that Qantas could never view his browsing history or his camera roll or other personal information stored on the iPad.

[270] In making these findings I note that the Citrix MDM enrolment guide at the time the iPad was provided to the Applicant on 26 May 2016 or the app which was installed on the iPad at that time, did not contain a specific privacy statement of the kind later provided in the InTune enrolment guide and the Comp Portal app. It is improbable that the Applicant was even aware of the privacy statement until 26 June 2017, when he installed the Comp Portal app on his iPad. I also note that notwithstanding this, the browsing history on the iPad indicates that the Applicant was watching pornography on the iPad from 26 September 2016 - a considerable time before he would have been made aware of the privacy statement on which he now relies.

[271] With some reservations, I have given the Applicant the benefit of the doubt in relation to this matter on the basis that he was not cross-examined about it and because of the lack of clarity in the SOC and IT Policies in relation to personal use and on the basis that the original Mobility Terms and Conditions suggest that private material can be stored on the iPad.

[272] The allegations which were substantiated against the Applicant were framed on the basis that he knew or should reasonably have known that all of the alleged conduct breached the SOC Policy and/or the IT Policy. I do not accept that this conclusion was reasonably open to Qantas. For the reasons set out above, I do not accept that it was reasonably open to Qantas to substantiate allegations involving the use of the iPad by the Applicant to browse and view pornographic material on his own Wi-Fi when he was not at work and to store pornographic or offensive material on the iPad. I have also considered how the Applicant's reasonably held views about the private use of the iPad impacted on the conduct that is said to provide a valid reason for his dismissal.

[273] In relation to the allegations about viewing pornography, sexually related or otherwise inappropriate material in the workplace, I respectfully adopt the approach of Deputy President Sams in Batterham and Ors v Dairy Farmers Limited[147] where his Honour stated:

"For any employee to argue that they require training not to send or access email pornography at the workplace is disingenuous nonsense. It is akin to arguing that having no knowledge of drink driving laws is a defence for doing so. It is patently obvious that one should not engage in such behaviour as distributing pornography at the workplace. It is not only inappropriate and a theft of the employer's time, but raises the real risk of employer liability for ensuring its employees occupational health and safety, due to the potential harassment by other employees. The fact that no one seemingly complained is not the point and was probably more a case of fortuitous good luck. It would only have been a matter of time before someone would have complained of being offended or harassed. In any event, in my opinion, it is not necessary to prove anyone was offended or harassed by the inappropriate emails; it is only sufficient that the respondent considered, on a reasonable basis, that the material was inappropriate. There can be no room to doubt that it was."[148]

[274] This is also a case where regardless of lack of clarity in relation to private use of the iPad on the Applicant's own Wi-Fi when the Applicant was at home, the Applicant knew that it was not, under any circumstances, appropriate to view pornographic, obscene, offensive or sexually related material in the workplace. The Applicant also knew that to do so would, at very least, breach the Qantas SOC Policy and could constitute harassment of anyone who saw such material, regardless of whether he intended to harass. In this respect, there was no lack of clarity with regard to the SOC Policy and that harassment included display of sexual, offensive and pornographic material. I do not accept that any definition of what constitutes such material is required beyond the ordinary meanings given to such terms.

Whether the Applicant engaged in the alleged conduct

[275] It is convenient to first deal with the conduct encapsulated in Allegations 1, 4 and 5. Allegation 1 was that the Applicant used his Qantas-issued iPad to access a lingerie website during work hours on 3 August 2017. I am satisfied and find that the Applicant did engage in such conduct. I am also satisfied that the website contained material that could be described as offensive. The images from the website tendered in these proceedings depict woman in lingerie that is clearly sexually related. The images are captioned: "even sexier". The lingerie exposes rather than covers the bodies of the women in the images and in some cases, the women are wearing stylised versions of handcuffs and blindfolds. The website also sells sex toys.

[276] I do not accept that the images are pornographic. There is no explicit sexual activity displayed. I am also of the view that it is a stretch to describe the images as obscene. However, I am satisfied and find that it would be a reasonable response for a person being exposed to such images in the workplace - for example by observing a colleague viewing them - to be offended. Further, on any reasonable and objective view, the images were inappropriate to be viewed in the workplace because of the likelihood that they would cause offence. The description by the Applicant of the Fantasy Lingerie images in the meeting of 17 December, as retail images or what you would see on television or at the beach, is not to the point. The simple answer is that going to a beach, watching television or looking at retail advertising, are activities about which choice can be exercised. Exposure to offensive material in the workplace is not a matter about which choice can be exercised by persons who inadvertently see such material. One of the purposes of the Standards of Conduct Policy and the IT Policy is to prevent employees from being exposed to images in the workplace, which are likely to cause offence.

[277] The fact that the email with the link to the lingerie website was stored on the Applicant's Qantas issued iPad, does not mean it was a breach of Qantas' IT Policy simply on the basis of the storage. This is because the IT Policy (and later the Cyber Security Policy) prohibit use of the Qantas IT Environment for unacceptable reasons. As previously noted, the IT Environment is not defined to specifically include devices other than a "device component used by Qantas". For reasons of the inconsistencies in the SOC Policy between the definition of the IT Environment in the definitions clause and the reference to the use of an iPad in clause 15.6, and the lack of clarity about whether that reference was in the SOC Policy at the relevant time, I am also of the view that the storage of the email containing the link did not breach the SOC Policy.

[278] However, the fact that the Applicant viewed the website while he was at work on 3 August 2017, was a breach of both the IT and the SOC Policies. The Applicant accepted that he viewed the website at work for the purposes of purchasing items for his partner. Regardless of whether the iPad was referred to in the SOC Policy and included in the definition of the "IT Environment" in that Policy or the IT Policy, it is more probable than not that the Applicant viewed the website at work using 4G data provided by Qantas (given that Qantas Wi-Fi would have blocked access to the site). Data provided by Qantas is part of the Qantas IT Environment and accordingly the Applicant breached the SOC Policy and the IT Policy in using his iPad at work for this purpose.

[279] I am also of the view that the Applicant viewing the lingerie website in the workplace by any means was a breach of the SOC Policy. Whether the purpose of the Applicant accessing the website on 3 August 2017 to purchase items or whether he was simply viewing the website, images from the website must have been displayed on the Applicant's iPad. This created a real risk that the images could have been seen by someone else. Even if the Applicant opened and closed the images quickly, there was such a risk. For the purposes of the Standards of Conduct Policy, this conduct could have caused offence constituting harassment or brought Qantas into disrepute if it was viewed by another employee or by a contractor employee who may have reported the conduct to an entity other than Qantas. It is one thing to shop on-line or to view on-line shopping sites on a work device while at work and on a break. It is another thing entirely to view an erotic lingerie retail website or to shop for erotic lingerie, in such circumstances.

[280] While reasonable confusion on the part of the Applicant about private use of the iPad mitigates the storage of a link to the website on the iPad, it does not explain or mitigate the Applicant opening and viewing the website and the images on it, in the workplace. I am satisfied and find that the Applicant knew or should reasonably have known that to use his Qantas issued iPad to open and view the images of the lingerie website in the workplace was a breach of the SOC Policy and the IT Policy.

[281] Even if the Applicant was using a privately owned device and his own 4G data to open and view an exotic lingerie site at work, the Applicant would have breached the SOC Policy notwithstanding that the device was not enrolled in the InTune system. If the website had been seen by another employee, it could have constituted harassment by way of display of offensive material regardless of the device on which it was viewed.

[282] For these reasons I find that the Applicant viewed an erotic lingerie site containing material that could objectively be described as offensive, using his Qantas issued iPad and Qantas IT resources - namely 4G data provided by Qantas. Such conduct was a breach of the SOC and the IT Policies. The conduct is not explained or mitigated by any misunderstanding on the part of the Applicant about the manner in which he was permitted to use the iPad. Regardless of any misunderstanding, the Applicant knew or should reasonably have known that to view the lingerie website in the workplace was contrary to the SOC Policy and to do so on a Qantas issued iPad using Qantas resources, was contrary to the IT Policy. I am also of the view that it goes without saying that the Applicant should not have been viewing a website selling erotic lingerie while at work regardless of the manner in which he was viewing the website. My view would be the same if the applicant was looking at a paper catalogue for such a retailer.

[283] Finally, Allegation 1 as framed by Qantas, was that the Applicant used his iPad while rostered to work, to access a website containing images that were obscene, pornographic and/or offensive in nature. In relation to the finding made by Qantas about this allegation, I do not accept that it was open to Qantas to substantiate the allegation insofar as it found that the images on the lingerie website were obscene or pornographic. The images were offensive - no more and no less.

[284] In relation to Allegation 4, the Applicant had seven images stored on his iPad which included images of a partially clothed woman, an image of a woman's exposed breasts and a close-up image of a woman's genitalia. I accept that six of the seven images are offensive rather than obscene, with some being more offensive than others, depending on the state of undress of their subject. The woman in the images is posing in a provocative manner, regardless of the fact she is dressed in tracksuit pants in a number of the images. The images show the tracksuit pants (where they are worn) being worn in a way that exposes the woman's body in a sexually suggestive way. The photograph showing the woman's breasts is the most offensive of the six images which can reasonably be described in this way. The close-up image of the woman's genitalia crosses the line between offensive and obscene and in my view can objectively be described as obscene. I do not accept that any of the images can objectively be described as pornographic on the basis that they do not depict sexual activity.

[285] I do not accept the Applicant's evidence as to how the images came to be stored on the iPad or that he opened them accidentally. Firstly, the forensic analysis conducted by Mr Barry, which was not disputed, establishes that the images were created on the iPad on 31 May 2016. The analysis also shows that the images were opened on a number of occasions in August and September 2018. Secondly the Applicant tendered an exchange of messages with the woman who sent him the photos in which he states: "haven't got a sexy mistress pic in the inbox for a while". That message is inconsistent with the Applicant's statement that he was sent a message attaching the images without a warning about their nature and that he opened them accidentally.

[286] It is improbable that the Applicant did not know the identity of "sexy mistress" or that he did not know the kind of images that would be attached to the message. It is also improbable that he opened those images accidentally, some two years after they were sent to him. Thirdly, the fact that the images were opened twice in 2018 after being stored in 2016 evidences that the Applicant knew that they were on the iPad and renders his evidence that they were stored there without his knowledge, and opened accidentally, improbable. The Applicant's evidence under cross-examination that he only ever deliberately opened the images at home, is also improbable and I do not accept it.

[287] For the same reasons as my findings in relation to Allegation 1, the fact that the images were stored on the Applicant's Qantas issued iPad, was not a breach of Qantas' IT Policy or SOC Policy simply on the basis of the storage. However, the fact that the Applicant viewed images while he was at work on two occasions in September 2018, was a breach of the SOC Policy. There is insufficient evidence that the Applicant used the Qantas IT Environment to download the images at work (rather than simply opening images stored on the iPad) and I make no finding in this regard.

[288] I am satisfied and find that the Applicant viewed the images in the workplace and did so deliberately in full knowledge of the nature of the images before opening them. This was a further breach of the SOC Policy. While I accept that no other person saw the images, there was a risk that they would be seen by colleagues in the workplace. For the purposes of the SOC Policy, this conduct could have resulted in an employee who viewed the images being harassed or brought Qantas into disrepute if it was viewed by another employee or by a contractor employee who may have reported the conduct to an entity other than Qantas.

[289] No amount of confusion on the part of the Applicant about the interaction between the Mobility Terms and Conditions on the one hand and the SOC and IT Policies on the other hand, mitigates the Applicant opening and viewing the images in the workplace. I am satisfied and find that the Applicant opened and viewed the images in the workplace in full knowledge of the nature and content of the images. I am also satisfied and find that the Applicant knew or should reasonably have known that to use his Qantas issued iPad to open and view the images in the workplace was a breach of the SOC Policy. Further, I am of the view that it goes without saying that the Applicant should not have been looking at such images in the workplace.

[290] It was not open to Qantas to make an adverse finding that any of the images were pornographic or that all the images were obscene. One image was obscene and six were offensive. It was also not open to Qantas to make the finding that the Applicant stored the images on his iPad in breach of its IT or SOC Policies.

[291] Allegation 5 was that the Applicant accessed websites containing images and/or videos that were obscene, pornographic and/or offensive in nature and that the Applicant knew, or should reasonably have known, that using the Company iPad on the relevant dates and times was inappropriate and in excess of reasonable personal use. The allegation does not specifically refer to any policy and the term "inappropriate" does not appear to relate to any Policy. Ms Hobl's evidence under cross-examination that the Applicant breached Policy because his viewing was "unlawful" cannot be sustained. There is no evidence that any of the material viewed by the Applicant was unlawful and nor was it unlawful for the Applicant to view pornographic videos at home on his private Wi-Fi.

[292] The gravamen of this allegation was that accessing the sites on the Qantas issued iPad was inappropriate and in excess of reasonable personal use. In relation to this allegation I find that it did not breach either the SOC Policy or the IT Policy. For the reasons set out above, it was not clear that the IT Policy prohibited the use by the Applicant of his Qantas issued iPad to view pornography, the content of which was lawful, in the privacy of his own home using his own Wi-Fi Connection. The viewing was undertaken at no cost to Qantas either in terms of its resources or the Applicant's working time. The use of the term "inappropriate" in the allegation is not referable to any Qantas Policy and the use was not unreasonable where it did not use Qantas resources. The basis upon which the Applicant knew or should have known that his conduct in this regard was either inappropriate or unreasonable is not apparent and I find that the Applicant did not engage in misconduct by virtue of this use of the iPad. I also find that there was no reasonable basis for this allegation to have been substantiated by Qantas. Qantas conceded, in my view correctly, that allegation six in relation to exceeding monthly data usage was not substantiated.

[293] The allegations concerning Ms Remfrey and Ms Downes are, as Counsel for the Applicant accepted, the most serious of the allegations. I turn now to consider them. I found Ms Remfrey to be an entirely credible witness. In short, I accept Ms Remfrey's evidence that she saw a video selection page for a pornographic website on the screen of the Applicant's iPad on two separate occasions. I accept Ms Remfrey saw what she described, notwithstanding that she was deeply distressed while giving her evidence. That distress is entirely understandable given that Ms Remfrey had to go through the ordeal of providing a report to Qantas and coming to the Commission to give evidence and be subjected to cross-examination.

[294] While there was nothing inappropriate about the manner in which Ms Remfrey was cross-examined by Counsel for the Applicant, she was placed in that position through no fault of her own, because she walked in on the Applicant when he was viewing pornographic material at work. Ms Remfrey's distress illustrates the impact of such conduct on those who are subjected to it and it is not a basis upon which her evidence should be doubted.

[295] Ms Remfrey's reluctance to report the incidents out of concern at the reaction she may be subjected to by the Applicant and/or his colleagues was also understandable and does not affect her credit. Ms Remfrey said that she did not want to get the Applicant into trouble or cause him to lose his job. These concerns are entirely reasonable given that Ms Remfrey is a woman working in an environment where the majority of her colleagues are men, who would probably hear about any complaint she may have made about the Applicant's conduct. I also accept that Ms Remfrey would understand the implications for the Applicant of losing his job given that she also works in the aviation industry, and that this would have added to her reluctance to report the incidents and her distress when she did so.

[296] Ms Remfrey's credit is further confirmed by the fact that she made a contemporaneous report to her Supervisor about what she saw on the screen of the Applicant's iPad on 11 July 2018, and maintained that position in her later statements, both to Qantas and in her evidence to the Commission. The essential part of the allegation did not change. Ms Remfrey was adamant that what she saw on the screen of the Applicant's iPad was a selection page for pornographic videos, containing thumbnails of different videos. Ms Remfrey was also adamant that the images she saw did not in any way resemble the images on the lingerie website, which the Applicant stated that she may have accidentally viewed. Under intense cross-examination (in relation to which no criticism can be made of Counsel for the Applicant) Ms Remfrey did not depart from her view about the nature of what she saw on the screen of the Applicant's iPad. Ms Remfrey's explanation about how she was certain about what she saw was also entirely credible in that Ms Remfrey made reference to her own life experience and having seen such material before. The fact that Ms Remfrey has seen such material before is immaterial. She should not be subjected to seeing it on the screen of a colleague's iPad, while at work.

[297] Ms Remfrey also made a contemporaneous report about what the incident on 24 September. The email of 25 September from her Supervisor at Caltex setting out her report of this incident, is illuminating. It indicates that Ms Remfrey refuelled one aircraft - QF563 - and delivered the fuel docket to the Applicant, without incident. It was only on the second occasion when Ms Remfrey delivered the fuel docket for QF639 that she reported the images being seen on the Applicant's iPad. I accept that this was not elucidated in Ms Remfrey's evidence and was not put to the Applicant in cross-examination. While it supports Ms Remfrey's assertion that the Applicant knew that she was the refueller on that date and had seen her earlier in the shift, this is not a matter upon which I have placed weight given that it was not canvassed with the Applicant or Ms Remfrey. More significantly, the email confirms that notwithstanding it was the second such incident, Ms Remfrey maintained her reluctance to report the Applicant's conduct as she was concerned about possible repercussions for both her and the Applicant. The email is also significant because it indicates that Caltex has concerns about the impact of such conduct on Ms Remfrey and the fact that one of its employees feels uncomfortable in Qantas' work environment.

[298] The fact that Ms Remfrey said that she saw the same video selection page on both occasions is also not a matter which could properly be found to negatively impact on Ms Remfrey's credit as a witness. A video selection page for a website featuring pornographic videos may be similar to that of another such selection page notwithstanding that the images in the thumbnail sketches are different, and this was conceded by Ms Remfrey in cross-examination.

[299] I have also considered that Ms Remfrey was unable to remember incidental details, about the incidents with the Applicant and that notwithstanding this, Ms Remfrey did not depart from her evidence about what she saw. I do not accept that the fact that Ms Remfrey could not remember incidental details indicates any lack of recollection about the essence of her allegations. Nor do I accept the fact that Ms Remfrey's recollection became more detailed in subsequent statements and in her evidence to the Commission, is a basis to place less reliance on that evidence. I accept the submission of Counsel for Qantas that subsequent to making her first statement, Ms Remfrey was asked for more detail including being subjected to cross-examination and questioning at the hearing of this application and that this explains any additional details she recalled. It is also the case that the additional details were not significantly at odds with Ms Remfrey's original statements so that any assertion of recent invention could be sustained.

[300] Issue could be taken with Ms Saddi's record of Ms Remfrey's allegation - in particular that Ms Saddi removed statements made by Ms Remfrey to the effect that her views that she was being treated differently by engineers after she reported the Applicant's conduct may be paranoia. While I accept that Ms Saddi may have placed a gloss on the record of interview, I do not accept that this goes to the credit of Ms Remfrey or her recollection about the incidents that she alleged. Ms Remfrey appropriately conceded during cross-examination, that her perceptions about how she was being treated by other engineers, after reporting the Applicant's conduct were not correct. Ms Remfrey made a similar concession that the contents of her statement indicating concern about going into the Engineers hut on 24 September 2018, may also have been incorrect, based on the fact that she had refuelled with the Applicant on a number of occasions, between the first and second incidents. As I have previously noted, it is possible that on 24 September Ms Remfrey went into the hut once without incident before seeing the material she complained of on the screen of the Applicant's iPad, and that her evidence that she was anxious before she entered the Engineers hut may not have been accurate or may have been embellished. However, I do not accept that either of these matters provide a basis to disbelieve Ms Remfrey's evidence about what she saw on the screen of the Applicant's iPad.

[301] Quite simply there is no evidence that Ms Remfrey had any reason to invent such a serious allegation about the Applicant and any antipathy that she displayed towards him in giving her evidence, including embellishing her feelings about entering the Engineers hut at the relevant time, can be explained by the fact that she was distressed and angry at what she had seen and that she had to be placed in the difficult situation of reporting it, and being a witness in these proceedings.

[302] I also found Ms Downes to be an entirely credible witness. While Ms Downes was also angry and distressed when she gave her evidence, this is explained by the fact that Ms Downes strongly believed that she should not have been put in a position whereby she was exposed to pornography in the workplace and required to report it and give evidence about her experience. In this context her emotional state during the hearing is understandable. Ms Downes' distress and anger are further explained by her feelings of guilt about not reporting her experiences in 2016, and her belief that had she done so, Ms Remfrey would not have experienced the same conduct. I accept that there was a delay between the occurrence of the incidents that Ms Downes complained of and her reporting those incidents. However, that delay was explained by Ms Downes, and her explanation was reasonable. It remains the case that Ms Downes had a clear recollection of what she saw on the screen of the Applicant's iPad, and I see no basis to doubt her evidence. It is also the case that Ms Downes contemporaneously reported her experience to a supervisor who confirmed this in a statement to the Commission.

[303] Further, I consider that the discussion between Ms Remfrey and Ms Downes about their experiences with the Applicant did not affect their credit in any way. Ms Downes and Ms Remfrey did not seek each other out for the purposes of collaborating in relation to statements about the Applicant's conduct. They were together in a vehicle by coincidence. It is entirely understandable that in circumstances where Ms Downes and Ms Remfrey were together at the Brisbane airport by coincidence, and where Ms Remfrey was in the process of providing a report to Qantas about her experiences, that they would have a discussion. This is made even more likely by the fact that Ms Downes and Ms Remfrey were in a minority, being female aircraft refuellers, working almost exclusively with males.

[304] It is also significant that both Ms Remfrey and Ms Downes reported what they had seen to their supervisors, and notwithstanding that their reports were made almost two years apart, and without any collaboration, both described that they had seen a selection page for pornographic videos on the screen of the Applicant's iPad on multiple occasions.

[305] I do not accept the Applicant's denial that he viewed pornographic material in the workplace. My reasons for not accepting the Applicant's evidence and preferring the evidence of Ms Remfrey and Ms Downes, are as follows. The Applicant was a prolific viewer of pornographic material, to the extent that he viewed some 32 pornographic videos while he was absent for two days on personal leave. The Applicant was also a frequent visitor to websites where free pornographic movies may be viewed. The titles of the URLs viewed by the Applicant contain references which are consistent with some of the images which Ms Downes claimed to have seen on the screen of the Applicant's iPad. While the Applicant specifically denied that he viewed pornography involving young women, this denial is at odds with the listed titles which contain multiple references to teenagers engaging in a range of sexual acts including with "step-moms" and step-sisters, although it is not the case that any of the titles indicate unlawful content.

[306] I do not accept that the lack of browsing history on the Applicant's iPad for the period 17 May to 16 August 2018, including to sites where pornographic material is found, establishes a basis for finding that the allegations about viewing pornography at work, made by Ms Remfrey, should not have been substantiated. I note that the gap in browsing history includes the date of 11 July 2018 when Ms Remfrey claims that she saw the pornographic video selection page on the screen of the Applicant's iPad. I also note that in the period leading up to 24 September 2018 (the second date alleged by Ms Remfrey) there was no record of browsing in the days immediately before the incident.

[307] There are a number of possible explanations for the lack of browsing history in these periods:

• The Applicant did not browse the internet at all during that period and only used 4G data to update work related apps on the iPad;

• The Applicant engaged in private or incognito browsing; or

• The Applicant manually deleted his browsing history for that period.

[308] All possible explanations need to be assessed in light of the fact that there was data used on every day during the period of the gap in browsing history between 17 May and 16 August 2018 and on some days large amounts of data exceeding 50MB was used. The explanations also need to be considered in light of the Applicant's browsing history and his evidence that he used the iPad to browse the internet at least every second day.

[309] In relation to the first possibility that he did not browse during the gap period, the Applicant provides no explanation as to why he would have significantly altered his habits in the gap period. The lack of personal browsing both on pornographic and other sites, is uncharacteristic when the Applicant's browsing history from 2016 onwards is considered. In relation to the second possible explanation, the Applicant's denial of knowing how to engage private browsing may be untruthful or he may have turned on private browsing inadvertently. On Ms Leonardi's evidence, this is not difficult. In relation to the third possibility, while it is unlikely that the Applicant would have selectively deleted browsing in this period and left all his other browsing history on the iPad - particularly to pornographic sites - it cannot be ruled out.

[310] Even if the Applicant did not browse the internet at all during this period, it does not remove the possibility that he was viewing pornographic material on the iPad while at work. This is because sites browsed by the Applicant could have simply been cached on the iPad and been available to be viewed when the Applicant opened safari. In this regard, Ms Leonardi's evidence was that if the page was not refreshed it still could have been viewed. It is also possible that a pornographic video selection page cached on the iPad could have been refreshed using 4G data. Ms Leonardi also said this would not have been recorded on the browsing history of the iPad.

[311] I accept that the possibility of pages being cached on the Applicant's iPad was not put to him and that he may have denied this possibility by stating that he always took care to close pages to avoid such a situation. However, in circumstances where I prefer the evidence of Ms Remfrey and Ms Downes to that of the Applicant, it is an explanation to which I am able to have regard in weighing the evidence and concluding that on the balance of probabilities, the Applicant was viewing pornographic material on his iPad at work.

[312] In relation to Ms Downes' allegations there was evidence of the Applicant viewing pornographic material on the iPad in 2016. While I accept that the Applicant's concession that Ms Downes stated to him on one occasion that what he was viewing on his iPad was "fucking disgusting" is to his credit, that evidence supports a finding that the Applicant was viewing a video selection page for a pornographic video site, in the context of the other evidence in relation to his viewing of such sites privately, and in light of Ms Downes' rejection of the proposition that what she saw on the iPad was the erotic lingerie site. As I have noted, there are numerous titles in the videos searched by the Applicant on the iPad that meet the description Ms Downes gave of what she saw on the screen of the iPad.

[313] In my view the existence of these possibilities and the intermediate facts which underpin them, in combination with the evidence of Ms Remfrey and Ms Downes - both of whom were credible witnesses - supports a finding that the Applicant was viewing pornography in the workplace on his Qantas issued iPad. Accordingly, I am satisfied and find that on at least five occasions the Applicant was viewing a video selection page containing thumbnail images of pornographic videos on his Qantas issued iPad.

[314] It is irrelevant whether the page had been refreshed and it is sufficient to make out the allegations of Ms Remfrey and Ms Downes that such material was on the screen of the Applicant's iPad and seen by them. It follows that I do not accept the Applicant's denial that he viewed such material in the workplace. In light of the Applicant's denial of these allegations, there is no room for a finding that any viewing of such material in the workplace was accidental or that his viewing of such material at work is mitigated by a lack of understanding about the interaction between various policies and terms and conditions relating to the use of the iPad.

[315] The Applicant can have been in no doubt that viewing pornographic material in the workplace was a serious breach of the SOC Policy and the IT Policy and that Qantas would respond strongly to such conduct. The Applicant should also have known that other work colleagues, including female colleagues, could enter the engineering hut at any time with little warning, and that there was a possibility that they could see the screen of his iPad. The Applicant should also have known that female colleagues are not the only group of persons who might find such material offensive or be intimidated or harassed by it.

[316] It is also the case that at the point the incidents with Ms Remfrey occurred, the Applicant had been forewarned by Ms Downes informing him in no uncertain terms that what he was viewing on the screen of his iPad was "fucking disgusting". If the Applicant did not realise the danger of viewing such material at work where it could be seen by colleagues before Ms Downes made that comment, he can have been in no doubt after she said this. Regrettably, the Applicant ignored the comment and chose to tempt fate by continuing to view pornographic material in the Engineers hut, where it was also seen by Ms Remfrey. In a further twist of fate, both women found themselves sharing a vehicle and their mutual experiences, with the result that their allegations were corroborated.

[317] I do not accept that the Applicant deliberately timed his viewing of pornographic material for the purpose of harassing Ms Remfrey or Ms Downes. The evidence does not establish this aspect of the allegation. Nonetheless, two women on five separate occasions were subjected to pornography in the workplace. The serious repercussions of this conduct cannot be understated. In circumstances where both women walked into a hut and were alone with the Applicant, in circumstances where he was looking at pornography, their perceptions that his conduct was intentional were reasonable. I am satisfied that the Applicant ought to have known that the iPad screen was visible and that it was probable or even possible that a female refueller would enter the hut. The Applicant should also have known that this could cause offence, intimidation or humiliation to female colleagues or other colleagues.

[318] There is no excuse for the Applicant viewing pornography at work. There is no basis upon which he can reasonably assert that he did not know that to do so would breach the SOC Policy. Given my finding that the Applicant did engage in this conduct, despite his denials, the Applicant's preparedness to apologise for any offence he may have caused to Ms Remfrey or Ms Downes, or to undertake that the conduct will not be repeated because he now understands Qantas policies, is not a matter to which I attach significant weight. The Applicant should not have viewed such material at work and by doing so he has caused significant distress to both Ms Remfrey and Ms Downes, the effect of which continues. It is also the case that despite the Applicant's apologies and expressions of regret, and notwithstanding that he accepted that Ms Downes and Ms Remfrey may have seen something on the iPad screen which upset them, the Applicant's denial that he was viewing pornography, implicitly impugns the credit of Ms Downes and Ms Remfrey.

[319] I find that the applicant's conduct in relation to Ms Remfrey and Ms Downes was a valid reason for his dismissal. This conduct, viewed in isolation or in combination with viewing an erotic lingerie website and offensive and obscene images at work, is such that dismissal is a sound, defensible and well-founded response. This conclusion is further supported by the Applicant's continued denial of his conduct with respect to Ms Remfrey and Ms Downes and the ongoing impact of that conduct on them.

[320] Accordingly, I am satisfied and find that there was a valid reason for the Applicant's dismissal.

Whether the Applicant was notified of the reason for his dismissal

[321] I am satisfied and find that the Applicant was notified of the reason for his dismissal in a number of pieces of correspondence including a letter advising of his dismissal and orally at a meeting prior to the dismissal.

Opportunity to respond to any reason for dismissal related to capacity or conduct

[322] There is substance to the submission for the Applicant that he was not given an opportunity to respond to reasons for his dismissal related to his conduct by virtue of the manner in which he was dealt with by Mr Grimshaw and Ms Hobl. In particular, there was a complete lack of engagement with the Applicant's responses to the allegations in relation to the Mobility Terms and Conditions and the Comp Portal app and the Applicant's belief that his private use of the iPad had not breached any Qantas policies.

[323] For the reasons set out above, the Applicant's views about private use of the iPad were reasonable. Despite the Applicant and his support person demonstrating to Mr Grimshaw that the iPads were set to personal and the privacy statement in the Comp Portal, Mr Grimshaw did not make any inquiries about these matters or have regard to the Applicant's response. Ms Hobl's view about these matters was even more fixed than the view of Mr Grimshaw. As a result, Allegation 5 was substantiated in circumstances where it should not have been and Allegations 1 and 4 were given more weight than was justified.

[324] It is also of significant concern that Ms Hobl was unable to provide a cogent explanation about the meanings of terms set out in the policies she purported to apply - for example "pornographic", "offensive" and "obscene". Ms Hobl was the decision maker and regrettably she was incapable of bringing an objective view to her task. Of particular concern, was Ms Hobl's propensity to assess the Applicant's conduct by reference to irrelevant and subjective matters such as whether she would be happy if her daughter was portrayed in some of the images on his iPad. Ms Hobl also maintained untenable positions such as her definition of "unlawful" conduct as being conduct in breach of Qantas policies.

[325] With respect to Ms Hobl, her approach to deciding whether the Applicant had engaged in misconduct justifying dismissal was inappropriate, particularly in circumstances where she was dealing with serious allegations against a long-term employee, with an otherwise unblemished work history. Ms Hobl was pressed in cross-examination and made a number of significant concessions about her findings. In other instances Ms Hobl refused to make concessions and maintained an untenable position. Mr Grimshaw also made significant concessions - in my view correctly - to the effect that a number of the allegations should not have been substantiated. The overwhelming impression from Mr Grimshaw's evidence was that he readily accepted under cross-examination that a number of allegations against the Applicant should not have been substantiated. Quite simply, Mr Grimshaw should have come to that conclusion as part of the findings and outcomes he forwarded to Ms Hobl.

[326] Notwithstanding my concerns about these matters, they are not of such significance that they render the dismissal unfair in circumstances where I am satisfied that the Applicant did engage in conduct to which dismissal was a sound, defensible and well-founded response. I am also of the view that responses to the allegations relating to Ms Downes and Ms Remfrey, and the other allegations which I have found to have been made out, have now been ventilated by and on behalf of the Applicant in these proceedings. I do not accept the responses and I do not accept that had they been provided to Qantas before the Applicant was dismissed, that these matters are of such significance that they would properly have resulted in an outcome other than dismissal.

Any unreasonable refusal to allow the Applicant to have a support person

[327] The Applicant had a support person present to assist him in discussions relating to dismissal and this consideration is not relevant in the present case.

Whether the Applicant was warned about any unsatisfactory performance

[328] The Applicant was not dismissed for unsatisfactory work performance and this consideration is not relevant in the present case.

Impact of size of employer's enterprise and any absence of dedicated human resource management representatives on procedures followed in effecting the dismissal

[329] Qantas is a major employer with dedicated internal human resource management representatives and access to experienced external advisors. It is appropriate to hold Qantas to a high standard in terms of its dismissal processes. Issues with those processes have been considered elsewhere in this decision and there are no additional matters for consideration under these provisions.

[330] The Applicant raises a number of factors said to be relevant to whether his dismissal was unfair. First, the Applicant points to his extraordinarily long period of excellent service with Qantas and submits that this renders his dismissal harsh. It is further submitted that there is an absence of future risk of similar conduct and that this supports a conclusion that the dismissal was unfair.

[331] I accept that the length and unblemished nature of the Applicant's employment weighs in favour of a finding that his dismissal was harsh as does the impact of the dismissal, because it is unlikely that the Applicant will find a similar role with another employer. However, this must be balanced against my finding that the Applicant engaged in misconduct involving the viewing of pornography in the workplace in blatant disregard for Qantas Policies. It is also the case that the Applicant has steadfastly denied this conduct in circumstances where I have found that on the balance of probabilities it did occur. Further, the pornographic material viewed by the Applicant was seen by two female employees on five occasions and had a significant impact on them. These factors weigh against a finding of harshness.

[332] I do not accept the Applicant's second point to the effect that the conduct he engaged in is at the lower end of the scale of misconduct. To the contrary. It goes without saying that employees should not view pornography in the workplace and that an employee who engages in this pastime will generally be found to have engaged in serious misconduct. By viewing pornography in the workplace, the Applicant placed Qantas at risk in its duty of care to its own employees and those of its contractors. One needs to look no further than the distress of Ms Remfrey and Ms Downes, and the ongoing impact that the Applicant's conduct had on them, to appreciate its serious implications.

[333] I also do not accept that the misconduct cases cited by Mr Purvinas involve a proper comparison for the purposes of establishing differential treatment. The cases do not involve comparing apples with apples and I am not persuaded that they are relevant to the present case.

[334] In all of the circumstances and after weighing the criteria in s 387 of the Act, I am satisfied that the Applicant's dismissal was not harsh, unjust or unreasonable. In reaching this conclusion I have considered the harshness of the Applicant losing his employment close to the end of a long career with Qantas. I have also considered whether the manner in which Mr Grimshaw and Ms Hobl dealt with the allegations has resulted in the dismissal being unjust. For the reasons set out above, I have concluded that any injustice to the Applicant does not outweigh the validity of the reason for the dismissal.

[335] Accordingly, the Applicant's dismissal was not unfair. The Application in U2019/3179 is dismissed and an Order to that effect will issue with this Decision.

Ms L Saunders of Counsel instructed by the ALAEA for the Applicant.

Mr A Pollock of Counsel instructed by Ashurst for the Respondent.

[1] Witness Statement of Gary Mellios Exhibit A1; Witness Statement in Reply of Gary Mellios Exhibit A2.

[2] Witness Statement of Stephen Purvinas Exhibit A3; Witness Statement in Reply of Stephen Purvinas Exhibit A4.

[3] Statement of Jennifer Louise Remfrey Exhibit R2.

[4] Statement of Jennifer Maree Downes Exhibit R3.

[5] Statement of Martin Leslie Grimshaw Exhibit R4.

[6] Statement of Christina Leonardi Exhibit R5.

[7] Statement of Gerald-Jan Henry Pinto Exhibit R6.

[8] Statement of Paul Michael Barry Exhibit R7.

[9] Statement of Tracey-Anne Marion Hobl Exhibit R9.

[10] Statement of Glen Andrew Stapleton, Exhibit R10.

[11] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

[12] Selverchandron v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.

[13] Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

[14] Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

[15] Bista v Glad Group Pty Ltd [2016] FWC 3009.

[16] Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

[17] [1938] HCA 34; (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

[18] [1992] HCA 66; (1992) 110 ALR 449.

[21] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579.

[22] [2011] FCA 1408; (2011) 198 FCR 514.

[24] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

[29] Transcript PN2038 - 2072, 2085 - 2092.

[42] Exhibit A1 Statement of Gary Christopher Mellios paragraph 9.

[48] Transcript PN3359 - 3362; Transcript PN3372 - 3381.

[53] Exhibit A1 Annexure MG-5; Exhibit R4 Annexure MG-10.

[56] Exhibit A1 Annexure GM-7; Exhibit R4 Annexure MG-14.

[86] Exhibit R3, Witness Statement of Jennifer Maree Downes Annexure JD-1.

[93] Exhibit R8, Witness Statement of Glen Stapleton.

[111] Transcript PN2430 - 2437; PN2445 - 2453.

[115] Transcript PN2490 - 2497, 2504, 2507 - 2512.

[117] Transcript PN2525 - 2536, 2547 - 2549, 2574.

[123] Transcript PN3848, PN3860, 3871.

[139] (2006) 156 IR 393.

[140] Queensland Rail v Wake (2006) 156 IR 393 at [3].

[143] [2011] FWA 1230.

[145] [2012] FWAFB 4810 at [26].

[147] [2011] FWA 1230.

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