Fair Work Act 2009

s.394 - Unfair dismissal

Determinative conference to determine inter alia whether Dr Kipling Walker in his Fitness for Work Assessment and Report of dated 27 March 2017 regarding the Applicant concluded that the Applicant had or had not been bullied at work whilst employed by the Respondent - found that Dr Walker did not form a view as to whether the Applicant had or had not been bullied at work whilst employed by the Respondent.

[1] Mr Ross Kennedy (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 3 November 2017 alleging that the termination of his employment by Qantas Ground Services Pty Ltd T/A Qantas Ground Services Pty Ltd, Qantas Group (QGS - the Respondent) on 2 November 2017 was unfair. Mr Kennedy's application has been the subject of several interlocutory decisions.[1] This decision, which deals with the issue of 'disputed facts' regarding Mr Kennedy's unfair dismissal application, is another interlocutory decision.

[2] Following a telephone mention/directions hearing on 20 August 2018 separate directions were issued in respect of Mr Kennedy's unfair dismissal application and his application for orders requiring persons to attend the hearing of his unfair dismissal application, with those applications listed for hearing on 26 - 28 November and 19 October 2018 respectively. On 17 October 2018 Mr Kennedy sent an email to the Commission in which he requested that the Commission convene a determinative conference "on disputed facts". Mr Kennedy's email included the following:

"... A determinative Conference held on disputed facts will I believe permit a quicker and more efficient Hearing on the substantive matter.

As claimed by Mr Michael O'Neil of the Respondent below in his email of 7 October 2018 (12.34pm), it is the Respondent's long-held position that the allegations of bullying that I made during my employment are not relevant for the unfair dismal proceedings and the substantive Hearing. I strongly dispute Mr O'Neil's position. Mr O'Neil states that my dismissal was "was not at all concerned with any 'bullying' that you allege took place during the course of your employment". Mr O'Neil has been consistent in his approach on this matter throughout these proceedings including in relation to Respondent's response to my Applications to produce documents.

My position is that the allegations of bullying are relevant in these proceedings on account of the following:

[a] the background materials provided to Dr Kipling Walker for the Fitness-for-Duty Examination held on 1 February 2017 and report finalised 27 March 2017 including findings made by MJSP Consulting on an investigation of my bullying complaints made in an Anti-Bullying Application to the Fair Work Commission on 30 May 2016;

[b] the findings and recommendations made by Dr Walker in his report that Qantas Ground Services Pty Ltd Head Brett Hardy relied upon to terminate my employment;

[c] my consistent position that the investigation conducted by MJSP Consulting was not held in a fair, thorough or reasonable manner. Mr O'Neil evidently asserts that it was held in a reasonable manner;

[d] affidavits sworn by former colleagues including ... that clearly state that they believed that I was subjected to bullying at the Canberra Port workplace. The affidavits were not considered by Tracey Silvester in the MJSP investigation; and

[e] statements sworn by former colleagues including ... and supervisor ... that clearly indicates that each subjected me to some level of harassment.

A determinative conference will also allow the Fair Work Commission to make a determination and give directions as to the filing of evidence given that Mr O'Neil has raised the possibility that the Respondent will object to evidence that I may file. Finally, the Commission will be better informed at the substantive Hearing on how most appropriately to deal with the bullying claims..."

[3] By way of background, Dr Walker's Fitness for Work Assessment and Report concluded inter alia that Mr Kennedy was "permanently unfit for any role with Qantas. Given his history of perceived mistreatment at different workplaces, and his assessment of a "high risk" of being bullied at Qantas, he is likely to feel bullied and/or harassed in any role at Qantas. As has occurred previously, perceived bullying and/or harassment will precipitate another episode of depression."[2] QGS had regard to Dr Walker's report in deciding to terminate Mr Kennedy's employment on 2 November 2017.

[4] The hearing scheduled for 19 October 2018 was subsequently rescheduled for 25 October 2018 with Mr Kennedy's request for the Commission to convene a determinative conference considered at that hearing. At the hearing it was agreed that a determinative conference would be convened. General agreement was also reached on the questions to be determined by the Commission.

[5] Specifically, the questions which it was agreed the Commission would determine at the determinative conference were:

1. Did Dr Walker conclude that Mr Kennedy had or had not been bullied at work whilst employed by Qantas Ground Services in Canberra or alternatively did Dr Walker not form a view on that question?

2. If Dr Walker concluded that Mr Kennedy had or had not been bullied at work, on what basis did Dr Walker come to that conclusion?

[6] Against that background, the scheduled hearings of Mr Kennedy's unfair dismissal application and application for orders requiring persons to attend did not proceed.

[7] The determinative conference was held on 23 November 2018. At the conference Mr Kennedy appeared on his own behalf, while Mr Michael O'Neil (Qantas' Head of Industrial Relations, Associated Airlines and Services) appeared for QGS. Dr Walker attended the conference to give evidence regarding his Fitness for Work Assessment and Report concerning Mr Kennedy. The determinative conference concluded with the Commission reserving its decision.

[8] On 29 November 2018 Mr Kennedy sent an email to the Commission indicating that he wished to provide a response to the determinative conference. The Commission subsequently advised that while not necessary it was willing to receive Mr Kennedy's response and that it would provide QGS with the opportunity to respond. Mr Kennedy provided his written submission on 12 December 2018 followed by a further email the following day. QGS provided its written response on 17 December 2018.

[9] For the reasons outlined below, I have determined that the answer to Question 1 above is that Dr Walker did not form a view as to whether Mr Kennedy had or had not been bullied at work whilst employed by QGS. Accordingly, it is not necessary for the Commission to determine Question 2 above.

[10] Dr Walker's viva voca evidence can be summarised as follows:

• he did not form a view as to whether or not Mr Kennedy had actually been bullied and/or harassed while working for QGS;[3]

• even if he were to assume that Mr Kennedy had been bullied it would not have caused him to review or change his diagnosis or the conclusions in his report;[4]

• he certainly noted in his report that Mr Kennedy perceived that he had been bullied;[5]

• the reference to "perceived" was a subjective comment in which he acknowledged that Mr Kennedy perceived that he had been mistreated at a range of workplaces over decades but without making a judgement on whether or not that had occurred;[6]

• it was beyond his area of expertise to comment on whether someone had actually been bullied or harassed at work, later adding that that there were commissions and tribunals to make that determination;[7]

• with regard to that aspect of his report which stated "...[i]n several different workplaces, he [Mr Kennedy] has been bullied and harassed for a number of reasons."[8] he considered that putting the statement under the heading 'History from Mr Kennedy' demonstrated that he was reporting what Mr Kennedy had put to him, disputing that he made a conclusion to the effect that Mr Kennedy had been bullied and harassed but acknowledging that it may have been clearer had he said that Mr Kennedy perceived that he had been bullied and harassed.[9]

[11] At the determinative conference, after hearing Dr Walker's evidence, Mr Kennedy stated that although he was "less sceptical about Dr Walker's report" he still considered that Dr Walker had concluded that he had not been bullied.[10] Mr Kennedy further stated in respect of Question 1 above that, although he was less pessimistic, he was "still not a hundred percent convinced that he [Dr Walker] made that conclusion that I wasn't bullied."[11] As to Question 2 above, Mr Kennedy stated that he was not provided procedural fairness in respect of Dr Walker's report given that at the time he was not provided with the material that had been provided to Dr Walker.[12] Beyond that, Mr Kennedy made a number of statements which go to the merits of his unfair dismissal application as opposed to the questions to be determined by the Commission in the determinative conference. For instance, Mr Kennedy disputed aspects of Dr Walker's report.

[12] Mr Kennedy's written submission of 12 December 2018 canvassed a range of matters not directly related to the two questions to be determined by the Commission but which may be relevant in the context of the substantive hearing of his unfair dismissal application. Mr Kennedy also contended in his written submission that there was a lack of procedural fairness at the determinative conference as a result of QGS providing a folder which contained copies of the documents provided to Dr Walker by QGS and Mr Kennedy. Specifically Mr Kennedy submitted that he felt it was his right to have been made aware in a timely manner as to what QGS had intended to file at the conference to enable him to provide any considered response that he may have wished to at the conference.

[13] With particular regard to the questions to be determined by the Commission, Mr Kennedy submitted among other things that:

• he believed that Dr Walker had reached a conclusion on the bullying matter, citing Dr Walker's evidence that he had concluded in his report that Mr Kennedy perceived that he had been bullied at the workplace;

• he believed contrary to Dr Walker's evidence that Dr Walker did conclude that he [Mr Kennedy] was not bullied at the workplace, citing the statement on page 2 of Dr Walker's report that "[a]n independent investigation did not substantiate the allegations" to support that view; and

• he did not accept Dr Walker's claims that he did not make a determination as to whether or not he was bullied at the workplace.

[14] In his email of 13 December 2018 Mr Kennedy contended that Dr Walker came to two conclusions in his report on the question of whether or not he had or had not been bullied at the workplace. Specifically, Mr Kennedy submitted that:

• it should be clear to the Commission that Dr Walker concluded in his report that he [Mr Kennedy] perceived that he was bullied at the workplace and further bullied after commencing sick leave on 30 May 2016;

• it should also be clear to the Commission that Dr Walker concluded in his report that if he [Mr Kennedy] was returned to the workplace he would continue to perceive that he was being bullied; and

• in respect of questions to be determined by the Commission, the Commission must find that Dr Walker concluded that he [Mr Kennedy] perceived that he was bullied at the QGS Canberra workplace and that he would perceive that he was being bullied at the QGS Canberra workplace in any return to the workplace.

[15] At the determinative conference QGS summarised the key aspects of Dr Walker's evidence in similar terms to those outlined at paragraph [10] above, highlighting inter alia Dr Walker's evidence that even if it was accepted that Mr Kennedy had been bullied as he alleged that it would not have changed his diagnosis. With particular regard to the questions to be determined by the Commission, QGS stated:

• Dr Walker's evidence indicated that he did not form a view on whether Mr Kennedy had or had not been bullied while employed by QGS in Canberra; and

• as a result the second question falls away.[13]

[16] QGS further stated that with regard the substantive hearing of Mr Kennedy's unfair dismissal application, evidence in relation to whether Mr Kennedy had or had not been bullied at QGS in Canberra was not relevant to determination of his application and therefore ought not to be admitted.[14]

[17] In its written submission in reply to Mr Kennedy's response, QGS noted that much of Mr Kennedy's written submissions were not directed to the questions to be determined by the Commission but rather were directed to the question of whether or not the conclusions in Dr Walker's report were sound which was beyond the scope of the determinative conference. QGS further submitted that:

• there was no reason why the word "perceived" would suggest that Dr Walker had formed a view on whether Mr Kennedy's allegations of bullying were real or not;

• the use of the word "perceived" was entirely consistent with Dr Walker's evidence that he did not form any view on whether Mr Kennedy had actually been the victim of bullying or not;

• there was no basis to Mr Kennedy's claim that he was denied procedural fairness during the determinative conference as all of the documents contained in the folder of material provide by QGS at the commencement of the determinative conference were already in Mr Kennedy's possession; and

• Mr Kennedy had failed to raise any issue that would cause the Commission to doubt the evidence given by Dr Walker's at the determinative conference.

[18] Dr Walker's evidence that he did not form a view as to whether or not Mr Kennedy had actually been bullied and/or harassed while working for QGS is supported by an examination of his report regarding Mr Kennedy. Specifically, Dr Walker's report includes the statements set out below:

• under the heading 'Sources of information' in which Dr Walker refers to the material he has read regarding Mr Kennedy:

"Your [the Respondent's] request from 12 January 2017 ... He complained of bullying and harassment from ... On 2.6.16, he applied to the Fair Work Commission (FWC) 'for an order to stop bullying against 13 employees'. An independent investigation did not substantiate his allegations ..."[15] (underlining added);

• as previously mentioned in the section headed 'History from Mr Kennedy' under the subheading 'History of Presenting Complaints':

"In several different workplaces, he has been bullied and harassed for a number of reasons"; [16]

• a section which deals with Dr Walker's examination which includes the following:

"Mr Kennedy said ... there was a high risk he would be bullied again ..."[17] (underlining added);

"Given his history of perceived mistreatment at different workplaces and his assessment of a "high risk" of being bullied at Qantas, he is likely to feel bullied and/or harassed in any role at Qantas. As has occurred previously, perceived bullying and/or harassment will precipitate another episode of ..."[18] (underlining added)

"... He expects to be bullied on returning to work ..."[19] (underlining added).

[19] With the exception of the extract at second dot point above, the underlined text in the above extracts from Dr Walker's report point to Dr Walker reflecting what Mr Kennedy had put to him. As to the second dot point above, while it implies that Dr Walker had formed a view that Mr Kennedy had been bullied and harassed, as noted above Dr Walker disputed this in his evidence, attesting that putting the statement under the heading 'History from Mr Kennedy' demonstrated that he was reporting what Mr Kennedy had put to him. I accept Dr Walker's evidence in this regard.

[20] I would also note that Dr Walker's evidence at the determinative conference was consistent throughout and gave no reason for the Commission to question either its veracity or reliability.

[21] Having regard to Dr Walker's evidence and his Fitness for Work Assessment and Report regarding Mr Kennedy supports a finding that Dr Walker did not form a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS.

[22] As previously mentioned, in his email of 13 December 2018 Mr Kennedy contended that Dr Walker concluded that he [Mr Kennedy] perceived that he was bullied at the QGS Canberra workplace and that he would perceive that he was being bullied at the QGS Canberra workplace in any return to the workplace. Such a finding is entirely consistent with Dr Walker's evidence. However, such a finding does not equate to a finding that Dr Walker concluded that Mr Kennedy was bullied at work whilst employed by QGS. In my view, it is nothing more than an acknowledgement by Dr Walker that Mr Kennedy believes that he was bullied at work whilst employed by QGS. The conclusion sought by Mr Kennedy does not alter the finding at paragraph [21] above that Dr Walker did not form a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS.

[23] As to Mr Kennedy's submission regarding procedural fairness, I note several things:

• the documents contained in the folder tabled by QGS were all in Mr Kennedy's possession, having either been provided to him in accordance with orders to produce issued by the Commission on 14 May 2018[20] or having been provided by him to Dr Walker on 17 February 2017;

• Mr Kennedy did not raise any objection at the determinative conference to the material being provided or seek an adjournment to consider the material;

• although not necessary, the Commission agreed to Mr Kennedy's request of 29 November 2018 (i.e. post the conference) to "provide a response to the determinative conference";

• in that section of his response headed 'Background of the Submission' Mr Kennedy made a number of points regarding among other things the materials provided by QGS to Dr Walker; and

• those comments do not go directly to the questions to be determined by the Commission.

[24] Having regard to the above, I do not consider that Mr Kennedy was denied procedural fairness at the determinative conference.

[25] The answers to the questions to be determined by the Commission are set out below.

1. Did Dr Walker conclude that Mr Kennedy had or had not been bullied at work whilst employed by Qantas Ground Services in Canberra or alternatively did Dr Walker not form a view on that question?

Answer - Dr Walker did not form a view on whether Mr Kennedy had or had not been bullied at work whilst employed by QGS.

1. If Dr Walker concluded that Mr Kennedy had or had not been bullied at work, on what basis did Dr Walker come to that conclusion?

Answer - In view of the answer to Question 1, it is not necessary for the Commission to determine this question.

[26] Mr Kennedy's unfair dismissal application and his application for various persons to be required to attend will now be listed for a mention and directions hearing to agree on a revised timetable for the provision of submissions and evidentiary material and hearing of those applications.

[27] I would observe that the answer to Question 1 above raises doubts as to the relevance of evidentiary material relating to the question of whether or not Mr Kennedy was bullied whilst working at QGS Canberra and whether that material should be admitted. I anticipate those issues will be further traversed at the abovementioned mentions and directions hearing.

Written submissions provided by the Applicant on 12 and 13 December 2018 and by the Respondent in reply on 17 December 2018.

[1] [2018] FWC 1818, [2018] FWC 2689 and [2018] FWCFB 4552

[2] Mr Ross Kennedy Fitness for Work assessment and Report at pages 12 and 13

[5] Ibid at PN130, PN143-PN144 and PN232

[8] Mr Ross Kennedy Fitness for Work assessment and Report at page 8

[15] Mr Ross Kennedy Fitness for Work assessment and Report at pages 1 and 2

[20] PR607057

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