Stephen Hanson [2021] FWC 2200 (22 April 2021)

To correct minor typographical errors at paragraphs [155]; [157]; Footnote 176; [164]; [197]; [202]; [203]; [207]; [220]; [224]; [226]; [229]; and [230].

To insert the words " ;and g) Witness Statement of Sean Morgan." at the end of paragraph [19].

[2021] FWC 2200

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Application for an FWC order to stop bullying - four core incidents of alleged bullying - incidents concerned safety and disciplinary processes, and issue of media releases concerning Applicant - unreasonable behaviour found - unreasonable behaviour concerning not only the four incidents but also safety and disciplinary processes associated with same - Commission satisfied of bullying claims - proceeding adjourned to determine appropriate Orders.

[1] Mr Stephen Hanson (Applicant / Mr Hanson) has filed a Form F72 anti-bullying application (Anti-Bullying Application) with the Fair Work Commission (Commission) seeking relief (in the form of stop-bullying orders) under Part 6-4B of the Fair Work Act 2009 (FW Act).

[2] The Respondents to the Anti-Bullying Application are:

(a) Regional Express Holdings Ltd (REX), Mr Hanson's employer;

(b) Mr Mark Burgess, REX Deputy General Manager - Engineering (Mr Burgess);

(c) Ms Maree Penglis, REX Human Resources Adviser (Ms Penglis); and

(d) Mr Png Yeow Tat, REX General Manager - Engineering (Mr Png).

[3] The Anti-Bullying Application was amended, with my leave, on 3 June 2019. These amendments were not opposed by the Respondents.

[4] Conciliation conferences were held with the parties in an effort to resolve the proceedings by way of agreement. Ultimately, on 3 July 2019, it became apparent that resolution via conciliation would not occur, and directions were issued to program the matter for hearing. The directions were subsequently amended a number of times at the request of the parties.

[5] A hearing was conducted over six days in Sydney.

[6] During the hearing, Mr Hanson was represented by Ms Lucy Saunders of counsel (instructed by Mr Sean Morgan, Industrial / Legal Officer, of the Australian Licensed Aircraft Engineers Association (ALAEA)). The Respondents were collectively represented by Mr Dilan Mahendra of counsel (instructed by Clayton Utz Lawyers). Permission for all parties to be legally represented was not opposed, and I granted permission pursuant to s.596 of the FW Act for all parties to be legally represented having regard to the complexity of the matter, and my view as to the more efficient conduct of the hearing with the parties being legally represented.

[7] The Respondents oppose the Anti-Bullying Application, including any relief sought by Mr Hanson pursuant to same. In this regard, the Respondents rely upon three core contentions:

(a) there is no jurisdictional basis for Mr Hanson to make an application under s.789FF of the Fair Work Act 2009 (FW Act), in that he does not hold a "reasonable belief" that he has been bullied at work as required by s.789FC of the FW Act;

(b) the alleged bullying conduct complained of by Mr Hanson constitutes reasonable management action carried out in a reasonable manner, meaning that the Respondents have not been acting unreasonably towards Mr Hanson (cf. s.789FD(a) of the FW Act); and

(c) each of the individually named Respondents "were removed from dealing with Mr Hanson". It flows from this that it cannot be contended that REX has permitted the individually named Respondents to have acted unreasonably towards Mr Hanson. It equally follows that there is no evidence that an individual or group of individuals has "repeatedly" behaved unreasonably towards Mr Hanson within the meaning of s.789FD(1) of the FW Act.[1]

[8] I note that there is no dispute before this Commission that Mr Hanson is a "worker" within the meaning of s.789FC(2) of the FW Act, or that REX is a constitutionally covered business as defined by s.789FD(3).

[9] The Bullying Application was heard together with the ALAEA's application to resolve a dispute (Dispute Application) under the Regional Express Aircraft Engineers Agreement 2018-2021 (REX EBA).

[10] I issued my decision dismissing the Dispute Application on 29 July 2020 in The Australian Licensed Aircraft Engineers' Association v Regional Express Holdings.[2]

[11] Whilst the Dispute Application concerned the construction of the REX EBA, the core aspect of the dispute was whether certain actions taken by REX against Mr Hanson were "disciplinary". If a finding was made that such actions were disciplinary, the ALAEA asserted that in the events that have happened, REX acted contrary to the terms of clause 35 of the Agreement. My ultimate findings, leading to the dismissal of the Dispute Application, were:

"[21] Despite the real concerns of the ALAEA and Mr Hanson as to the terms of the File Note having been intentionally drafted by REX so as to cast Mr Hanson in an unfavourable light, REX's unequivocal statement that the File Note does not equate to or impose disciplinary action means that the File Note cannot be used as reference point or foundation for future decisions by REX as to disciplinary action against Mr Hanson, and/or the termination of his employment.

[22] The manner in which the Investigation has been conducted, and the contents of the File Note, are to be considered as part of Mr Hanson's separate bullying at work claim against REX (and other individually named Respondents) under Part 6-4B of the Act. Whether the suspension of Mr Hanson's company certification authority is indeed a requisite (and reasonable) response by REX to its operational and regulatory obligations will also be considered as part of Mr Hanson's bullying at work claim".[3]

[12] On 20 August 2020, the Respondents filed a Form F1 (Recusal Application). By way of that application, the Respondents sought an order that I recuse myself from further dealing with Mr Hanson's Anti-Bullying Application.

[13] I issued my decision dismissing the Recusal Application on 22 February 2021 in Stephen Hanson v Regional Express Holdings Ltd (Recusal Decision).[4] I note that an appeal has been filed by the Respondents in respect of the Recusal Decision. I equally note that on appeal, allegations of apprehended bias are to be dealt with first, before any substantive appeal (if any) that might arise from this decision can occur.[5]

[14] Mr Hanson has been employed by REX since February 2006 in the role of Licensed Aircraft Maintenance Engineer (LAME), based at Sydney's domestic airport. He is a member of the ALAEA. In or around May 2007, Mr Hanson was appointed to the position of B1 Category LAME. The terms and conditions of Mr Hanson's employment are governed by the REX EBA, and REX's policies and procedures.[6]

[15] REX is the employer of Mr Hanson. It is an Australian regional airline, and provides scheduled air services across New South Wales, South Australia, Victoria, Queensland, Tasmania and Western Australia. Relevantly, at the time these proceedings were heard, REX operated a fleet of approximately 60 SAAB 340 aircraft, and had around 180 employees in its engineering department.

[16] Mr Png is the REX General Manager - Engineering. He is based in Melbourne, Victoria, and has been with REX since June 2007. He is a member of the REX Engineering Management Committee, and a member of the REX Management Committee. Mr Png is responsible for the overall oversight of REX's engineering operations. He has been appointed by the Civil Aviation Safety Authority (CASA) as the Accountable Manager for the REX's engineering operations (i.e. Mr Png is the contact for CASA, and has responsibility to CASA in relation to REX's engineering operations).

[17] Mr Burgess reports to Mr Png, and thus has regular contact with him. He is the REX Deputy General Manager - Engineering. He is based in Adelaide, South Australia, and has been employed by REX since its inception in 2002 (in various roles). Mr Burgess, like Mr Png, is a member of the REX Engineering Management Committee. Mr Burgess' evidence primarily concerns the Second Incident and Third Incident.

[18] Ms Penglis is a REX Human Resources Adviser, based in Sydney, New South Wales. She has been employed by REX since 21 June 2004 (in the roles of Human Resources Manager and Human Resources Advisor). Ms Penglis was not involved in the Fourth Incident, and her role in the First to Third Incidents primarily involved advising and assisting her managerial colleagues from a human resources perspective.

[19] The Applicant relied upon the following witness evidence in these proceedings:

[20] The Respondents relied upon the following witness evidence in these proceedings:

[21] Sections 789FD and 789FF of the Act read:

(a) while the worker is at work in a constitutionally-covered business:

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the _Work Health and Safety Act 20_11) and either:

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.

(a) a worker has made an application under section 789FC; and

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body - those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes - that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes - those outcomes; and

[22] The Commission's powers under s.789FF(1) are of wide import insofar as the FW Act provides that the Commission may make any order that it considers appropriate. However, the power to make such an order is conditional upon the Commission first being satisfied that the worker has been "bullied at work". As Vice President Hatcher stated in Application by Mac:[7]

"[75] It can be seen that s.789FF establishes three prerequisites to the exercise of the power to make anti-bullying orders:

(1) A worker must have made an application under s.789FC.

(2) The Commission must be satisfied that the applicant worker has been bullied at work by an individual or group of individuals.

(3) The Commission must be satisfied that there is a risk that the applicant worker will continue to be bullied at work by the individual or group of individuals."[8]

[23] There are several aspects of ss.789FD and 789FF that have been considered by case law.

[24] Firstly, the test imposed is an objective one, with the measure of "reasonability" being a question of fact.[9] In other words, the impugned behaviour will be caught by s.789FD if a reasonable person (having regard to all the facts and circumstances) may consider it to be unreasonable.[10]

[25] Secondly, the word "repeatedly" must be applied, meaning that a single incidence of unreasonable behaviour will fall outside the scope of the section.[11] Beyond a single incidence, however, there is no specific number of incidences required to meet the requirement for "repeated" (unreasonable) behaviour.[12]

[26] Thirdly, the impugned behaviour must also "create a risk to the health and safety". In this regard, in Re SB,[13] Commissioner Hampton stated:

"[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of 'risk' is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual".[14]

[27] Fourthly, the worker must have been bullied "at work".[15]

[28] Fifthly, in relation to s 789FF(1), as the Full Bench in Mekuria v Mecca Brands Pty Ltd said:[16]

"[29] Apart from the requirement for an application to have been made under s.789FC, s.789FF(1) establishes two prerequisites: first, the Commission must be satisfied that the worker has been bullied at work by an individual or group of individuals and, second, the Commission must be satisfied that there is a risk that the worker will continue to be bullied at work by the individual or group. The use of the definite article in s 789FF(1)(b)(ii) in connection with the individual or group of individuals indicates that they must be the same as the individual or group of individuals considered for the purpose of s 789FF(1)(b)(i). That is, it is not sufficient to satisfy the second condition in s 789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s 789FF(1)(b)(i)."[17]

[29] Sixthly, even if a worker is able to establish the impugned behaviour satisfies the criteria in sub-s.789FD(1) of the Act, sub-s.789(2) of the Act operates to qualify the impugned behaviour if that behaviour is "reasonable management action carried out in a reasonable manner". As to the operation of sub-s.789(2), again I rely on Commissioner Hampton's considerations in Re SB:

"[47] Section 789FD(2) of the FW Act is not so much an "exclusion" but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace.

[48] The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

[49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

• the circumstances that led to and created the need for the management action to be taken;
• the circumstances while the management action was being taken; and
• the consequences that flowed from the management action.

[50] The specific 'attributes and circumstances' of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be 'reasonable action' even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be 'irrational, absurd or ridiculous';
• any 'unreasonableness' must arise from the actual management action in question, rather than the applicant's perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a 'reasonable manner'. Consistent with the approach above, what is 'reasonable' is a question of fact and the test is an objective one.

[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

[54] All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards the applicant and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the FW Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work".[18]

[30] The reasoning of the Full Bench in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Sears[19] is also relevant:

"[19] The expression 'management action' in s.789FD(2) is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out. Placing an employee on a PIP clearly falls within the scope of the expression 'management action'.

[20] To determine whether the action constitutes "reasonable management action" it is necessary to undertake "an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time". The test for reasonable management action is whether the "management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'."

[21] The specific question of whether placing a worker on a PIP constituted "reasonable management action" for the purposes of s.789FD(2) of the Act, was considered by Vice President Hatcher in Mac v Bank of Queensland Limited. In that case, the applicant, Ms Mac, argued that the managerial decision to impose, and continue to impose, a PIP on her, was not reasonable management action because the shortcomings in her performance had not been sufficiently serious to justify that decision being made. In assessing the reasonableness of this managerial decision, the Vice President did not attempt to form his own judgment as to whether Ms Mac's overall performance was satisfactory, explaining:

'... I do not consider that an assessment of whether the imposition of the PIP on Ms Mac was unreasonable requires the Commission to engage in the process of attempting to form its own judgment as to whether her overall performance was satisfactory or not and to substitute its judgment for that of the relevant BOQ managers and supervisors. Even if a different and better opinion of Ms Mac's work performance could legitimately be formed on the evidence before me, that would not be sufficient to show that the decision to introduce the PIP was unreasonable. What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.' (emphasis added)

[22] In the Decision subject to appeal the Commissioner agreed with the approach taken by the Vice President and applied it to the matter before him, noting:

'It follows that I do not need to form my own judgment as to whether Mr Blagojevic's overall performance was satisfactory or not. The primary issues for determination are whether the decision to introduce the PIP or revise it lacked any evident and intelligible justification, and whether the introduction and implementation of the initial and revised PIP was carried out in a reasonable manner.'

[23] It is convenient to note here that Mr Blagojevic did not challenge this aspect of the Commissioner's decision; nor did he contend that Mac v BOQ was wrongly decided. For our part, we agree with the observations of Vice President Hatcher set out at [21] above."[20]

[31] Finally, the observations of Vice President Hatcher in Mac v Bank of Queensland Ltd[21] as to examples of conduct "which one might expect to find in the course of repeated unreasonable behaviour that constituted bullying at work" are pertinent:

"intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination."[22]

[32] In view of the authorities set out in this decision, in making my findings as to liability in this decision, I must consider all of the circumstances of the case. In doing so, it is not only appropriate, but necessary, that I consider the application of the civil aviation safety legislative and regulatory requirements to the events that have happened, including to the extent that such legislative and regulatory requirements interact with the processes adopted, and outcomes applied, by the Respondents in relation to Mr Hanson.

Civil Aviation Act 1988

[33] Section 3A of the Civil Aviation Act 1988 (CAA) states that its main object is "to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents."

[34] Section 98 of the CAA enables the making of regulations (not inconsistent with the CAA), whilst sub-section 98(5A)(a) of the CAA empowers CASA to issue legislative instruments pursuant to the CASR in relation to "matters affecting the safe navigation and operation, or the maintenance, of aircraft".

Civil Aviation Safety Regulations 1998

[35] REX is an Approved Maintenance Organisation (AMO) for the purposes of Part 145 of the Civil Aviation Safety Regulations 1998 (Cth) (CASR). In short, this provides REX with the ability to, amongst other things, self-certify aircraft (including aircraft maintenance undertaken or performed by REX employees), provide relevant training to LAMEs, and grant licences to LAMEs.

Part 145 Manual of Standards (MOS) - legislative instrument

[36] CASA is responsible for establishing procedures detailing how "applications" and "approvals" for an AMO under Part 145 of the CASR are managed and maintained. For the purposes of s.98(5A) of the CAA, and Part 145 of the CASR, r.145.005 and r.145.015 of the CASR enable CASA to issue a Manual of Standards (in the form of a legislative instrument) for the purposes of Part 145 of the CASR that "specifies matters affecting the maintenance or airworthiness of aircraft", including in relation to a "safety management system".[23] Relevantly, the prescribed 'legislative instrument' in this regard is titled the "Part 145 Manual of Standards (MOS)" (MOS145).[24]

[37] REX obtains and maintains its AMO status and privileges, via its development and use of an Acceptable Means of Compliance (AMC) program (specific to REX) that fulfils the requirements of the CASR for the issuing of certificates, licences, approvals, or other authorisations. As I understand it, the requirements for an AMC are developed by CASA, including in the form of guidelines for the creation by REX of its own maintenance organisation "Exposition". However, this Exposition is:

(a) complementary to the requirements of the CAA and the CASR (including Part 145 of the CASR, and the MOS145 made under the CASR); and

(b) does not otherwise supersede or replace associated legislative requirements.

[38] An AMO's Exposition is a document that an AMO (in this case REX), must follow and comply with (in that it is a document relied upon by CASA to approve the relevant organisation as an AMO). Compliance with the Exposition equally ensures on-going compliance by the AMO with legislative requirements and obligations (including under the CAA, the CASR, and the MOS145).[25]

[39] The MOS145 sets out the requirements that 'must' be met by REX to perform maintenance of aircraft and aeronautical products, and provide training and assessment to relevant REX employees.[26] Relevantly, the MOS145 sets out:

(i) the appointment (by REX as AMO) of an "accountable manager" (in this case, Mr Png), who "must", amongst other things:

• establish and promote safety and quality management policies;

• have and maintain an understanding of MOS145 and REX's Exposition (that includes safety and quality policy, maintenance procedures, and a safety management system); and

• ensure that REX, as an AMO, complies with its Exposition, its approval rating, and the CASR.[27]

(ii) the nomination (by REX as AMO) of "responsible manager/s", who "must ensure" that, for his or her area of responsibility, REX complies with the requirements of MOS145 and REX's Exposition;

(iii) the nomination (by Mr Png as accountable manager) of a "quality manager", who has the responsibility and authority for issuing and revoking certification authorisations on behalf of REX; and

(iv) the nomination (by Mr Png as accountable manager) of a "safety manager", who has the responsibility for the "safety management system" required under the MOS145.[28]

(b) The requirement for REX (as AMO) to "ensure" that in specifying standards (including, but not limited to, qualifications and experience) relevant individuals (such as LAMEs) have an understanding of the application of "human factors" and "human performance" issues appropriate to that individuals function at REX.[29] "Human factor principles" in relation to aircraft maintenance, mean principles that deal with the interaction between human performance and maintenance system components that are applied to improve the "safety of air navigation".[30] "Human performance", in relation to aircraft maintenance, means the human capabilities and limitations that have an effect upon the "safety of air navigation", such as fitness, health, stress, fatigue, drugs and alcohol, and work environment.[31]

(c) The requirement for REX (as AMO) to have, and properly follow, an internal occurrence reporting, investigation and feedback system which utilises "Just Culture" reporting principles.[32]

(d) The requirement for REX (as AMO) to have, and properly follow, safety and quality policies which:

(i) show safety as the overriding consideration at all times;

(ii) encourage employees to report to the AMO maintenance-related incidents and errors; and

(iii) require "all employees" to comply with quality and safety standards and procedures, and cooperate with requests for independent quality auditors relating to maintenance services that employees undertake.[33]

(e) The requirement for REX (as AMO) to have procedures that "ensure" good maintenance practices and compliance with MOS145, which include the taking into account of "human factors principles" and "human performance limitations".[34]

(f) The requirement for REX (as AMO) to have, and properly follow (or comply with), a REX specific written safety management system, a safety management risk plan, a safety assurance system, a safety promotion system, and an internal reporting system and associated investigation process (the latter integrated into REX's safety assurance system).[35]

[40] Mr Burgess describes the REX Group Safety Management System Manual (GSMSM) as follows:

"The REX Group Safety Management System Manual (GSMSM) is a document that helps manage safety with regards to the organisational structure, accountabilities, policies, procedures and measurement of associated key performance indicators. This includes Operational Safety, Security, Quality, Work Health and Safety and the Environment.

Chapter 5 of the GSMSM prescribes the process for investigating reported occurrences raised by a reporter through the Safety Management System (SMS). The level of investigation is determined by the occurrence risk rating and all maintenance errors are investigated.

Paragraph 4.7.3 of the GSMSM sets out guidelines for the assignment and priority of investigations into reported occurrences. In broad terms, the guidelines in that paragraph provide that the level of risk from a reported occurrence will dictate the priority and extent of any investigation into the occurrence. That is, higher risk occurrences merit faster and more thorough investigations."[36]

[41] The GSMSM forms part of REX's overall Exposition to qualify and operate as an AMO, and is thus a document drafted for the purposes of compliance with the CAA, the CASR, and the MOS145. It follows that the GSMSM is a document that must be followed and adhered to by REX at all times, especially in relation to those aspects of the MOS145 that require compliance, and/or direct REX to "ensure" certain obligations, procedures or standards are complied with.

[42] It is equally apparent that the GSMSM is to be read in conjunction with other pertinent or applicable legislation, regulations, the Exposition, manuals, policies, and operations notices/bulletins.[37] In my view, it is not contentious that the GSMSM is a document to be read in conjunction with the requirements of the REX EBA. In this regard, whilst there may be some circumstances of direct or indirect conflict between the GSMSM (including the procedures under same) and the REX EBA (including the procedures under same), the proper approach where such circumstances of conflict arise, is to reconcile the respective provisions so as to enable compliance with both.[38]

[43] Further to the foregoing paragraph, given that REX has the ability under the GSMSM to suspend relevant licences or authorisations (so that particular work is not performed), and/or stand down an employee/s pending the completion of a safety investigation, or the proper consideration of a safety report,[39] it is extremely difficult to envisage a situation where REX would seek to avail itself of the processes under clauses 35 or 36 of the REX EBA prior to a safety investigation or report in relation to an accident or incident (as defined in the GSMSM and/or the REX EBA) being finalised. This is not a question of whether or not the GSMSM or the REX EBA expressly state that this should occur, rather it is a question of a fair reading of the GSMSM (especially by reference to "Just Culture" principles), and ensuring compliance with same. Indeed, for REX to travel down the path of a process under clauses 35 or 36 of the REX EBA, prior to a safety report being finalised, or at the same time a safety investigation is open, can only likely interfere, or be in direct conflict, with REX's obligations under its GSMSM. Alternatively, if REX was to comply with the requirements of the GSMSM prior to commencing a process under clauses 35 or 36 of the REX EBA, REX would not only have the benefit of the relevant closed safety investigation and report when commencing its process under the REX EBA, but would also have already complied with the requirements of the GSMSM (thus ensuring that compliance with both the GSMSM and the REX EBA has or can occur).[40]

[44] Relevant extracts from the REX GSMSM, in relation to safety and investigation matters read:

The focus of accident investigations should therefore be directed towards effective risk control. With the investigation directed away from looking for a guilty party and towards effective risk mitigation, cooperation will be fostered among those involved in the accident, facilitating the discovery of the underlying causes. The short-term expediency of finding someone to blame is detrimental to the long-term goal of preventing future accidents.

In line with our Safety Policy, the principles of 'Just Culture' apply to our investigation policy and procedures. The purpose of conducting investigations and trend analysis is to identify and rectify possible procedural and other deficiencies within the organisation; it is not an exercise to apportion blame to any individual or group.

Investigations are carried out such that every attempt is made to understand the systemic or underlying causes that contributed to the occurrence and identify and implement corrective actions to mitigate against recurrence.

All occurrence reports are reviewed by Group Safety in the DSR and risk rated. The decision to commence an investigation as well as scope and depth of investigations will depend on the risk associated with the occurrence.

The maximum timeframe for the completion of internal safety investigations is nominally set to three (3) months, however the actual timeframes for the completion of investigations will of course depend on the nature and complexity of the investigation being conducted and the Safety Group resources available at the time. It is our objective to complete internal safety investigations in the shortest possible time.

If for any reason an assigned investigator is unable to complete an investigation within the maximum three (3) month period, an extension may be requested by contacting Group Safety and requesting an extension.

Group Safety will review each request on a case by case basis and in association with the assigned investigator(s), may extend the due date to a maximum period of three (3) months.

Any extension request must include the reason for the extension.

All extension requests will be entered into the SMS database investigation log and monitored by Group Safety."[41]

"When considering human error, an understanding of the conditions that may have affected human performance or decision-making is required. These unsafe conditions may be indicative of systemic hazards that put the entire system at risk. Consistent with the systems approach to safety, an integrated approach to safety investigations considers all aspects that may have contributed to unsafe behaviour or created unsafe conditions."[42]

2. Considered for events that pose a Low risk (refer Chapter 4.7.3).

They can be completed by SMS Investigators who are considered to be subject matter experts in the area concerned. Level 2 investigations may also be conducted by a member of the Human Factors Group. Timeframes for completion for Level 2 investigations are decided according to the assigned risk level and will be indicated by the on-line occurrence reporting system.

Expected timeframes for all investigations may be changed at the direction of the relevant Accountable Manager to suit particular circumstances associated with the investigation.

The process for the conduct of Level 2 investigations is as follows:

1. The report is risk rated during the DSR. It is assigned an Event Cateory (for trend analysis) and assigned to a Lead Investigator. This Lead Investigator, where possible will be a subject matter expert or have sufficient knowledge and experience to complete the investigation. Notification is sent to the Investigator by email, allowing the Investigator to login to the on-line SMS interface.

2. The Investigator then uses the SMS interface to input information pertinent to the investigation. The required fields to be filled out include:

• The investigation actions taken;
  • - Corrective and preventative actions taken (these actions must be taken and not pledged to be taken); and
  • - A brief summary of the report outcomes which will be sent to the reporter.

Any supporting documentation must be included in the Investigation Log.

Once these sections are filled out by the Investigator, the report is returned to the Group Safety for review prior to closure of the investigation."[43]

REX's Maintenance Error/Incident Procedure (MEIP)

[45] The foregoing conclusions are equally consistent with REX's Maintenance Error/Incident Procedure (MEIP). In this regard, were a maintenance error event (ME Event) is deemed to have occurred, REX's is required to apply and comply with its MEIP (i.e. it is to be used as a guide to implementing REX's GSMSM).[44] Mr Png accepts that the MEIP must be followed by REX in relation to all ME Events,[45] and that before any disciplinary action is to be considered in relation to an ME Event, a finding must first have been made in an SMS investigation as to "wilful breach" (which is then referred to Mr Png).[46]

[46] In relation to the MEIP, the following requirements apply:

(a) Where a ME Event occurs, a Safety Management System (SMS) Report should be made, and an SMS investigation will ensue.

(b) The SMS investigation is to be conducted or led by a subject matter specialist (normally a line maintenance supervisor).

(c) To investigate a maintenance error, a Maintenance Error Decision Aid (MEDA) may be used to produce a MEDA report. However, in relation to MEDAs, and their use, the following applies:

(i) an MEDA can only be accessed and used as part of an "open" SMS investigation;

(ii) the only ME Events that "require" an MEDA report are those with a moderate, high or extremely high risk rating. ME Events that have a lower risk rating do not require an MEDA report, but the General Manager Engineering (Mr Png) may request that an MEDA report be made;

(iii) during an SMS investigation using an MEDA, the line maintenance supervisor (subject matter specialist, lead investigator), will undertake a review of the ME Eevent in terms of root causes, human factors, and relevant preventative actions (so as to prevent a similar ME Eevent occurring into the future);

(iv) the "James Reason Culpability Tree" (JRC Tree) (see paragraph [57] of this decision) may be used to assist to identify root causes, and decipher between intentional and accidental errors;

(v) once the MEDA investigation is complete, the MEDA report will be submitted, and the SMS Report will be responded to (i.e. having regard to the conclusions of the MEDA report); and

(vi) if the cause of an ME Event is no-compliance with company policies or procedures by an individual, the individual may be counselled or required to complete retraining.

(c) Where "clear breaches" of REX policy and procedure occur, a file note can be added to an individual's personnel file.

(d) For "wilful breaches", further disciplinary action "may be" warranted, but only 'after' such a finding or conclusion is made as part of the SMS investigation (by a subject matter specialist), and such a finding or conclusion is referred to the General Manager Engineering (Mr Png).

(e) Just Culture principles should be applied to the SMS investigation and its outcomes.

[47] The GSMSM defines "Just Culture" as:

"An organisational perspective that discourages blaming the individual for a mistake that contributes to an accident or incident. Sanctions are only applied when there is evidence of a conscious violation or intentional reckless or negligent behaviour."[47]

[48] Clause 1.6 of the GSMSM sets out the "REX 'Just Culture' Principles":

"The REX Group accident/incident/occurrence investigation policy incorporates the principles of 'Just Culture'. Transparency and sharing of information are recognised as fundamental values in aviation safety. The intent of a 'just culture' is to aid in creating an environment in which the reporting and sharing of information is encouraged and facilitated.

Just culture is an organisational perspective that discourages blaming the individual for mistakes that contribute to an occurrence. Sanctions are only applied when there is evidence of a conscious violation or intentional reckless or negligent behaviour. Reporting of safety occurrences are a vital element of the REX SMS and failure to report any safety related incident may be considered misconduct and may warrant disciplinary action (please refer to Chapter 4 of this manual for more information regarding occurrence reporting)."[48]

[49] In October 2018, CASA released an advisory publication to ensure CASA's formally endorsed definition of "Just Culture" is accurately reflected in the relevant Exposition, manuals, and policies of AMOs.[49] Such updated definitions and principles in respect of "Just Culture" read:

An organisational culture in which people are not punished for actions, omissions or decisions taken by them that are commensurate with their experience, qualifications and training, but where gross negligence, recklessness, wilful violations and destructive acts are not tolerated.

Limiting or curtailing a person's aviation privileges until they can demonstrate that they are able to exercise those privileges safely are not to be regarded as discipline or punishment.

Just Culture (Safety Policy, Objectives and Planning)

A 'just culture' provides clear boundaries about confidentiality, reporting requirements, and individual responsibilities in relation to the SMS as far as management and staff are concerned. However, in a 'just culture' policy, a clear distinction is required between what is acceptable behaviour and what is unacceptable, and that people are treated accordingly. 'Just culture' is a necessary evolution from the 'blame free' culture of the past.

Where it is necessary in the interests of safety to limit or curtail the exercise of a person's aviation privileges until it can be shown that the person is able and willing to exercise those privileges safely, such action does not constitute discipline or punishment.

CASA's approach to just culture, and the approach CASA expects to see reflected in an organisation's safety management practices, is consistent with the safety management standards adopted by the International Civil Aviation Organisation, European regulations governing safety occurrence reporting and the US Federal Aviation Administration's Compliance Philosophy."[50]

"The Organisational Safety Policy/SMS Protocols would need to state that the purpose of internal investigations is to find systemic causes and implement corrective actions, NOT to apportion blame to individuals. Where a 'Just Culture' policy is in place, the Policy and Protocols for internal investigations should clearly reference such policy."[51]

[50] In March 2019 REX submitted an updated version of its GSMSM to CASA to reflect the foregoing change by CASA to the wording of Just Culture principles. This update appears to have arisen from a CASA audit (as opposed to REX making the update of its own volition).[52] At the time of the hearing, REX's updated GSMSM was yet to be approved by CASA. Despite any issues that might be argued to flow from the absence of formal approval by CASA of REX's updated GSMSM, I observe, for the purposes of this decision, that each of the provisions in respect of "Just Culture" broadly:

(b) require the adoption of a blame free cultural environment;

(c) do not seek to punish individuals for actions, omissions or decisions that are commensurate with their experience, qualifications and training;

(d) encourage the creation of a workplace and safety environment where voluntary reporting of accidents/incidents/occurrences is supported, and safety information and data are shared between all employees in an open and transparent fashion, whilst at the same time maintaining confidentiality for any relevant employees involved;

(e) do not tolerate, and/or only seek to apply sanctions in circumstances concerning "conscious" or "wilful" violations, destructive acts, recklessness, or negligence (noting that the updated definition of October 2018 uses the arguably higher test of "gross negligence");

(f) allow for the removal, limitation or curtailment of an individual's aviation privileges (such as licences and authorisations), which does not constitute disciplinary action, provided that such removal only occurs until such time as it can be shown that the individual is able and willing to exercise those privileges safely. In my view, inherent in this is that the removal, limitation or curtailment of an individual's aviation privileges would:

(i) not constitute disciplinary action, provided that the removal, limitation or curtailment of an individual's aviation privileges does not become some form of an unjustified, unexplained or unreasonable permanent, indefinite or prolonged ban (and therefore a form of punishment, including by default);[53]

(ii) ordinarily be temporary, with extent of any period of removal, suspension or curtailment directly referrable to any classification of risk (e.g. high, medium, low), and whether the relevant individual involved has been subject to any disciplinary action concerning the specific accident/incident/occurrence in question;

(iii) only involve the relevant aviation privileges attached to or referrable to the particular accident/incident/occurrence concerned; and

(vi) provide the ability for an individual, within a reasonable timeframe, to be able to show to an AMO that they can willingly exercise the relevant safety privileges that have been removed, limited or curtailed. This would occur via the AMO providing the individual/s with the opportunity/s to do so, thus putting an end to any removal, limitation or curtailment, within an appropriate and justifiable timeframe).[54]

"Just Culture" - conscious violation, intentional recklessness, and/or negligent behaviour

[51] The GSMSM (applying as at the time of the hearing) states that "sanctions are only applied when there is evidence of a conscious violation or intentional reckless or negligent behaviour". These terms are not defined in the GSMSM.

[52] For a "violation" to be "conscious", a person's state of mind and intent are relevant. Intent may be implied, but is to be determined objectively. A state of mind has an essential mental element, and concerns a person's belief, thought, perception, intention, purpose, will, or a determination to do a certain thing. CASA's publication "SMS for Aviation - A practical guide - Human Factors" is a comprehensive document that outlines how CASA has considered human factors amongst aviation operators are to be identified and managed.[55] According to this publication, making errors is a part of normal everyday life, or "about as normal as breathing oxygen".[56] Errors should first be classified as intentional actions, or unintentional actions, which can then be considered as either basic errors (such as slips, lapses or mistakes), or more serious violations.

[53] The term "recklessness" is something more than mere negligence.[57] No issue as to recklessness arises in these proceedings.

[54] "Negligence" means a failure to exercise care and skill. In an action for negligence, a plaintiff must prove that:

(a) the defendant owed him or her a duty to take reasonable care;

(b) the defendant breached that duty by failing to take reasonable care;

(c) the defendant's breach of duty caused the injury or damage suffered by the plaintiff; and

(d) the injury or damage suffered was not too remote a consequence of the breach of duty.[58]

[55] Whilst there remains debate as to whether the term "gross" adds anything of substance to the test for negligence, in my view it will depend upon the circumstances of the case, and any relevant provision being considered.[59] In this case, CASA has sought to preface the term "negligence" with the word "gross". The word "gross" must have some work to do. In other words, I consider that CASA has intended for "gross negligence" to be something more than mere negligence. I note that in the case of Red Sea Tankers Ltd and Others v Papachristidis and Others Henderson, Baarma and Bouckley,[60] Mance J noted that the distinction between mere negligence and gross negligence was material as the contractual term in that case was intended by the parties to represent something more than a failure to exercise the standard of care that would ordinarily constitute mere negligence.[61] Ultimately the court held that "gross" negligence would include conduct undertaken with actual apprehension of the risks involved, and "serious disregard of" or "indifference to" an obvious risk.[62]

[56] An action for negligence will not succeed if a defendant/s can establish a defence. At common law, contributory negligence is a complete defence to a claim of negligence.[63] However, each State and Territory have now enacted legislation that limit this common law position, whilst at the same time enabling for the apportionment of 'damage' based upon contributory negligence. In New South Wales, where the incidents involving Mr Hanson occurred, such legislative apportionment can extend to 100 percent of a claim.[64]

[57] In determining culpability for the accidents/incidents/occurrences that an employee is involved in, REX applies the JRC Tree as set out in its GSMSM. The JRC Tree was developed by Professor James Reason, Professor Emeritus of Psychology at the University of Manchester, England. The JRC Tree is expressed in the following diagram:

[58] My understanding is that the JRC Tree has been adopted worldwide as a measure of culpability in the aviation industry, as have the broad principles underpinning the JRC Tree (as devised by Professor Reason). Mr Hanson tendered in these proceedings Chapter 9 (Engineering a Safety Culture) of Professor Reason's text entitled "Managing the Risk of Organisational Accidents".[65] Given that the Respondents rely upon the JRC Tree as explaining or justifying certain determinations that they have made in respect of Mr Hanson, it is appropriate that I summarise and/or set out, some of the extracts from Chapter 9.

[59] Professor Reason points out that a "minimum of fuss" definition of "organisational culture" entails:

"Shared values (what is important) and beliefs (how things work) that interact with an organisation's structures and control systems to produce behavioural norms (the way we do things around here)."[66]

[60] He goes on to explain that the main elements of a "safety culture" broadly include:

(a) A "Culture" that propels the goal of maximum safety, regardless of more immediate commercial concerns, and regardless of the personalities of the leadership team.

(b) An "Informed Culture" encompassing the gathering of the right kinds of data, including human, technical, organisational and environmental factors.

(c) The willing participation of the workforce (being "the people in direct contact with hazards") in a climate where individuals are prepared to report their errors and near-misses ("Reporting Culture").

(d) The proper facilitation of a reporting culture by encouraging, even rewarding, individuals who voluntarily report safety accidents/incidents/occurrences. In the broad sense, not leaning towards, or being seen to lean towards, directly or indirectly, the apportionment of blame and/or punishment except in clear evidence-based circumstances of wrongful behaviour ("Just Culture").

(e) Ensuring that control is placed with relevant task experts in the first instance. After this, control can revert back to a traditional bureaucratic (management/human resources) mode ("Flexible Culture").[67]

[61] When discussing trust (or a "climate of trust"), Professor Reason quotes from learned authors O'Leary and Chappel:

"For any incident reporting programme to be effective in uncovering the failures which contribute to an incident, it is paramount to earn the trust of the reporters. This is even more important when there is a candid disclosure of the reporter's own errors. Without such trust, the report will be selective and will probably gloss over pivotal human factors information. In the worst case - that in which potential reporters have no trust in the safety organization - there may be no report at all. Trust may not come quickly. Individuals may be hesitant to report until the reporting system has proved that it is sensitive to reporters' concerns. Trust is the most important foundation of a successful reporting programme, and it must be actively protected, even after many years of successful operation. A single case of a reporter being disciplined as the result of a report could undermine trust and stop the flow of useful reports."[68]

[62] On the issue of the interaction between self-reporting and disciplinary matters, Professor Reason refers to a quote from a former aircraft engineer:

"David Marx, an aircraft engineer who was one of the principal architects of the Boeing's Maintenance Error Decision Aid (see Chapter 7), made the following comments on the relationship between reporting and disciplinary systems. Though he is writing about the aviation industry, the points are widely applicable:

'Many of us have found today's disciplinary systems to be a significant obstacle to asking an employee to come forward and talk about his or her mistake. Consequently, as an industry, we have begun to re-evaluate the inter-relationship of employee discipline and event investigation. Many programs have been developed, both internal to an airline and in association with the FAA ... Whether it is called immunity, amnesty or 'performance-related incentive' - each program attempts to encourage the erring employee to come forward. Yet, as more incentive programs enter the marketplace of ideas, the disciplinary landscape becomes increasingly complex and confusing. With all the programs today, the individual employee needs to be a lawyer to assess whether it is safe to come forward.'"[69]

[63] I also consider it appropriate to set out some of Professor Reason's considerations as to culpability under the JRC Tree:

'The operator of aircraft, the surgeon performing an operation and the promoter of a tightrope act in the circus must all foresee that their acts might cause death; but we should not describe them as reckless, unless the risk taken was unjustifiable. Whether the risk is justifiable depends on the social value of the activity involved, as well as on the probability of the occurrence of the foreseen evil.'

Negligence, on the other hand, involves bringing about a consequence that a 'reasonable and prudent' person would have foreseen and avoided. One can also be negligent with regard to a circumstance: 'A person acts negligently with respect to a circumstance when a reasonable man would have been aware of the existence of the circumstance and, because of its existence would have avoided acting in that manner.' In the latter case whether the person failed to foresee the bad outcome and was unaware of the circumstance is irrelevant. ... In a court of law, it is not necessary for the prosecution to prove anything at all about the person's state of mind at the time of the act. It is enough to establish that particular actions were carried out in certain circumstances. Negligence is historically a civil rather than a criminal law concept and has a much lower level of culpability than recklessness.

Those involved in the operation of hazardous technologies are often perceived as carrying an additional burden of responsibility by virtue of their training and of the great risks associated with human failure. For example, in the case of Alidair v. Taylor in 1978, Lord Denning ruled that:

'There are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure of that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal.'

This 'hang them all' judgement is unsatisfactory in many respects. It ignores the ubiquity of error as well as the situational factors that promote it. Nor is it sensitive to the varieties of human failure and their differing psychological origins. Pushing this judgement to an absurd conclusion, it could be claimed that, since all pilots, control room operators and others with safety-critical jobs in hazardous technologies are fallible, they will all, at some time or another, inevitably fall short of Lord Denning's 'high standards' and so should all be sacked. Even wise and distinguished judges do not get it right all of the time.

A much sounder guideline is Neil Johnston's substitution test. This is in keeping with the principle that the best people can make the worst errors. When faced with an accident or serious incident in which the unsafe acts of a particular person were implicated, we should perform the following mental test. Substitute the individual concerned for someone else coming from the same domain of activity and possessing comparable qualifications and experience. Then ask the following question: 'In the light of how events unfolded and were perceived by those involved in real time, is it likely that this new individual would have behaved any differently?' If the answer is 'probably not' then, as Johnston put it, ' ... apportioning blame has no material role to play, other than to obscure systemic deficiencies and to blame one of the victims'. A useful addition to the substitution test is to ask of the individual's peers: 'Given the circumstances that prevailed at that time, could you be sure that you would not have committed the same or similar type of unsafe act?' If the answer again is 'probably not', then blame is inappropriate."[70]

[64] The foregoing analysis by Dr Reason as to the substitution test has been adopted, albeit in a somewhat modified form, by a CASA guideline, as follows:

"Any person in the same situation might have found it difficult not to commit a violation (the substitution test)" (noting that "violations" are defined in the CASA guideline as acts involving "deliberately (and consciously) departing from known and established rules or procedures", and are categorised into routine, situational, optimising, exceptional, and acts of sabotage violations).[71] (Substitution Test)

[65] The CASA guideline also sets out an example of how one would apply the Substitution Test:

(b) "Substitution Test: Ask the individual's peers: Given the circumstances at the time of the event, could you be sure you would not have committed the same, or a similar, unsafe act?"[72]

[66] REX did not advance any evidence as to what it actually defines the substitution test to be. In other words, there was no definition in the REX Exposition, or any other documents tendered by REX, of the substitution test that REX says applies when making an assessment under the JRC Tree. Whilst some of REX's witnesses gave evidence as to how they would make an assessment of some of the incidents under the JRC Tree, the actual terms of the substitution test they were applying was never addressed (other than vaguely).[73] It appears to be a very unusual situation that CASA would approve an Exposition containing the JRC Tree, that requires the JRC Tree to be applied on questions of root cause and culpability, but then not have the definition of the substitution test to be applied expressly (and separately) set out in the Exposition.

[67] For the purposes of this decision, I adopt of the Substitution Test as defined in the CASA Guidelines. Although not squarely addressed by REX's counsel at the hearing, the adoption of the CASA guideline definition appears to be the general tenor of Respondents' submissions as to the appropriate definition of the substitution test.[74] That said, however, I equally do not cast aside what Professor Reason has said about the substitution test and its practical application. His views may not be wholly binding, but they are certainly relevant and informative.[75]

[68] REX has a Code of Conduct (REX's Code) that applies to all executive and non-executive directors, officers, employees and contractors.[76] REX's Code states that the reasons for the Code encompass REX's commitment to "delivering strong returns and shareholder value whilst also promoting shareholder and general market confidence in the [REX] Group". The REX Code also states:

"The [REX] Group is committed to complying with this Code and all employees are required to uphold the Code and any associated relevant policies and procedures. Employees should at all times comply with both the spirit as well as the letter of all laws which govern the operation of the [REX] Group and the principles of this Code."

[69] The Code refers to the principle of "Just Culture" in relation to how REX is to handle disciplinary matters concerning its employees. That statement reads:

"The Group practices the principle of Just Culture when handling disciplinary matters concerning employees.

Just Culture seeks to encourage all employees to self-report all instances of errors, mistakes, negligence and wrongful/illegal acts or practices with regard to the Policies of the Group, promulgated operational procedures, approved company manuals and prevailing laws and regulations. Such a culture seeks to uncover all mistakes made so that the Group and employees can benefit by learning from them. Just Culture seeks to move away from a culture of blame to a culture of accountability and learning.

Just Culture does not absolve culpability and the findings on culpability will not differ whether the matter is self-reported or discovered through other means. However Just Culture principles will lead to a much lighter disciplinary measures taken by the Group when the matter is self-reported.

This is similar to the legal/justice system where self-reporting of a crime does not change the verdict of guilty of the perpetrator but will be a strong mitigating factor in the sentencing and will lead to a reduced or suspended sentence.

The Group expects all employees to self-report all errors, mistakes, negligence and wrongful/illegal acts or practices and commits to responding in a compassionate and supportive manner in accordance to the principles of Just Culture."

"Always act in a manner that is in compliance with all applicable laws and regulations. In addition, it is expected that all employees will act in compliance with this Code and [REX's] other policies in force from time to time."

[71] Despite acknowledging that the REX Code is a "key HR document", the reasons for the disparity and inconsistencies between the "Just Culture" provisions under the REX Code (especially in relation to disciplinary matters), and the "Just Culture" provisions under the GSMSM were never explained by the Respondents at the hearing.[77] In my view, such inconsistency and disparity arise as follows:

(a) the words and general tenor of the REX Code Just Culture provision are substantially different to the terms of the Just Culture provision under REX's GSMSM and CASA's October 2018 formally endorsed definition of Just Culture;

(b) the REX Code Just Culture definition expressly makes the point that Just Culture is a principle that does not absolve culpability, does not result in any different culpability where a safety issue is self-reported, and will be applied not to remove disciplinary action outcomes from safety accidents/incidents/occurrences, but may lead to "lighter disciplinary measure[s] taken" where self-reporting occurs. In making this point, the "Just Culture" provision under REX's Code uses the unfortunate example of "the legal/justice system where self-reporting of a crime does not change the verdict of guilty of the perpetrator but will be a strong mitigating factor in the sentencing and will lead to a reduced or suspended sentence"; and

(c) the REX Code Just Culture provision states that REX "expects all employees to self-report all errors, mistakes, negligence and wrongful/illegal acts or practices". In other words, rather than asking employees to self-report safety accidents/incidents/omissions/concerns/issues, REX's Code requires employees to self-report what REX upfront asks employees to categorise as "errors, mistakes, negligence and wrongful/illegal acts or practices".

[72] The foregoing inconsistencies and disparities between the terms of the REX Code and the terms of the GSMSM, in relation to "Just Culture", create competing obligations. On the one hand, REX requires and demands that its employees comply with its Code, but on the other hand, REX puts itself forward to CASA as promising to comply with the MOS145 via observing and applying the terms of its GSMSM and Exposition. It is not clear to me how REX, or its employees, can comply with both the REX Code and the GSMSM (in relation to "Just Culture") at the same time. Nor can this confusion be said to be resolved by generalised statements in the REX Code advising that employees need to comply with all applicable laws and regulations, whilst at the same time complying with the terms of the REX Code. This is because of the inherent difficulty in having to comply with the inconsistent terms of "Just Culture" at the same time.

[73] In my view, a fair reading the GSMSM as a whole, by reference to the "Just Culture Principles" set out at clause 1.6 of the GSMSM (and the definition of "Just Culture" in the GSMSM), identifies that "Just Culture" is not merely a consideration or principle that REX (as an AMO), and its appointed and nominated personnel, ought to have regard or aspire to, but must directly apply. In other words, when interpreting any terms of the GSMSM, and/or determining the manner in which any process or investigation is to occur, or outcome is to apply or be adopted, in relation to a safety accident/incident/occurrence (whether under the GSMSM or otherwise),[78] "Just Culture" principles (as contained in the GSMSM) are the central foundation and focus. More importantly, the GSMSM is a document that comes into existence not because REX has chosen to bring it into existence, but because REX has sought to obtain approval, and gained approval, as an AMO. In doing so, REX has promised to comply with the legislative requirements set out under the CAA, the CASR, and the MOS145 - including as expressly set out in, and/or otherwise reflected under its GSMSM in relation to "Just Culture".

[74] It is appropriate to set out relevant terms of the REX EBA that will be referred to later in this decision:

4.1 'Accident' is as defined by ICAO in the latest version of Annex 13.

4.13 'Company Authorisations' means an Employee who is approved by the Employer to certify for aircraft maintenance, specific aircraft tasks and/or component maintenance for and on behalf of Regional Express.

4.19 'Extended Privileges' means Company approval to certify for tasks outside their normal licence privileges.

4.25 'Incident' as is defined in by ICAO in the latest version of Annex 13.

4.32 "Licenced Aircraft Maintenance Engineer Grade Payments" requires a Company Authorisation or approval from the General Manager Engineering.

4.36 "PCT" means Practical Consolidated Training.

8.1 The overarching responsibility of the Employees is to ensure the safe arrival and departure of aircraft on a daily and regular basis. The parties will work in a flexible and co-operative way to ensure that these responsibilities are met.

(a) Issuance of a Company Authorisation is wholly at the discretion of the Company and subject to the assessed skill/performance of the Engineer and the Company's need for such authorised engineers. Authorisation payments will only be paid when an engineer holds the applicable Company Authorisation.

(b) Subject to clause 13.7, of the Company Authorisations which are subject to Enterprise Agreement payments, only those listed in table 11.7.1 may be removed from the Engineer by the Company for other than performance/disciplinary issues. Upon removal of the Company Authorisations listed in table 11.7.1 payments will be grandfathered for 3 years with a reduction by one third (1/3) in the allowance each year.

PA28 / PA44 B1 or B2 when a Saab 340 B1 or B2 is held and the Saab 340 is the engineers primary focus

Saab 340 B1 or B2 when a PA28 / PA44 B1 or B2 is held and the PA 28 / PA44 is the engineers primary focus

(c) Any new Company Authorisations introduced by the Company which incur an Enterprise Agreement payment will be deemed to be included in the above table 11.7.1.

(d) Clause 11.7(b) is intended to operate where Company Authorisations are genuinely not required due to on-going operational needs.

An approved Trainer / Assessor is a person who holds a Company Authorisation to carry out training and / or assessment of specific engineering tasks as defined by the GME and will be paid an allowance as provided in Schedule 11.8.

35.1 Preliminary meetings with staff may be conducted for the purpose of gathering information regarding potential disciplinary matters with the aim of determining if a formal meeting between an Engineer and representatives of the Company is required. Preliminary meetings do not require formal notification.

35.2 An Engineer who is required to attend a formal meeting with representatives of the Company whose purpose is to determine if disciplinary action should be taken, except as outlined in clause 36 of this Agreement and as promulgated in Company Policies will be provided with written notification of the subject/s of the meeting, including a list of those attending the meeting on behalf of the Company. Such a meeting shall be confined to the subject/s as provided in that notification.

35.3 Any request for postponement of the meeting to allow time for relevant preparation will not be unreasonably refused.

36.1 In the event of an Accident or Incident as defined in clauses 4.1 and 4.25 persons involved are to make a statement without prejudice, as soon as practicable. Such statement may be made in the presence of a friend.

36.2 After receiving the statement, the Employer is entitled to stand the person down, with pay, whilst the report, in total, is considered.

36.3 Should the Employer be satisfied with the report and no further action is required, the person so cleared will be advised to resume normal work.

36.4 Where it is proposed to further interview an Employee in connection with the Employee's alleged involvement in an Accident or Incident which may lead to disciplinary action against the Employee the Employee will be informed by the responsible officer of the Employer:

(b) of the charge against him/her and outline of reasons therefore;

(d) that the Employee has the right to be accompanied and represented by an Employee representative;

(e) the Employee may request reasonable time (not more than 24 hours) to become familiar with matters set out in sub-clause 36.4(b).

36.5 If the Employee elects to be accompanied and/or represented by such accredited representative, the Employee may require that the advice given in sub-clauses 36.4(a), 36.4(b), 36.4(c) and 36.4(d) will be repeated in the presence of such accredited representative.

36.6 If, following such interview, the Employer proposes to dismiss, suspend without pay, or remove the Employee from a supervisory position; the Employee will be informed of that proposed disciplinary action in the presence of an Employee representative.

36.7 In the event that an Employee is dissatisfied with the decision, the matter may be referred to the Fair Work Commission for conciliation and/or arbitration.

36.8 Subject to any appeal rights of the parties, the decision of Fair Work Commission in relation to matters raised under this clause will be final and binding.

36.9 In addition to other provisions of this clause 36, in the prevention or settling of disputes the duly appointed representative or delegate of the Association or Union in the workplace is entitled to such paid time during working hours as is necessary to meet with the Employer or its representative to discuss matters affecting the Employees.

36.10 For the avoidance of doubt, nothing in this clause is intended to confer an entitlement or remedy in relation to a termination of the Employee's employment that is unfair as described in section 194 of the Act."

[75] On 3 July 2017, whilst an aircraft (REX SAAB 340, registration VH-ZLA) was being taxied from the tarmac (F15B) to a REX maintenance/engineering hanger, the aircraft struck the upright lid of an open industrial skip-bin, causing damage to the left wing-tip's strobe-light (and some damage to the surface finish of the paint on the wingtip). There was no structural damage to the wing-tip or the aircraft (hereinafter First Incident).[79]

[76] Mr Hanson was the left seat operator (LSO) of the aircraft involved in the First Incident, and Mr Andrew Margiotta was the right seat operator (RSO).

[77] As the LSO for a SAAB 340 aircraft, Mr Hanson was in charge of the operation of the aircraft when taxiing to the hanger, and responsible for ensuring that the area forward and to the left of the aircraft were free of obstructions. He was also the holder of a recognised license covering aircraft engine starting, running and shutdown, and aircraft taxiing procedures,[80] and had been relevantly trained by REX in that regard.

[78] As the RSO, Mr Margiotta was responsible for monitoring the right wing of the aircraft. He has confirmed that all proper procedures were followed by Mr Hanson in taxiing the aircraft in the cockpit (i.e. engine starts, radio operation and ground runs).[81]

[79] Mr Davis Steel was inside the hangar some 35-50 metres from the aircraft. Just prior to the incident, Mr Steel attempted to bring to the attention of Mr Hanson and/or Mr Margiotta that the left wing may hit the industrial bin. Neither Mr Hanson nor Mr Margiotta noticed Mr Steel waving his hands about in or near the hangar.[82] There was no requirement for a marshaller to be in front of or external to the aircraft whilst it was being taxied.[83]

[80] Immediately after impact, Mr Hanson stopped the aircraft and took photos of the area and the damage, reported the incident to his supervisor (Mr Kendall), and submitted a REX Safety Management System Report (First Incident SMS Report).[84] The REX Safety Group made a preliminary risk assessment of the First Incident, and marked it as "low",[85] and not a "high priority".[86] Mr Kendall was appointed as the "lead investigator" in relation to the First Incident SMS Report, with supporting investigators Mr Png, Mr Burgess, Mr Richard Taylor, and Mr Robyn Will (First Incident SMS Investigation).[87]

[81] It is not in dispute that Mr Hanson also approached Mr Kendall shortly after the First Incident and stated: "Ryan [Mr Kendall], I've stuffed up. I was taxiing an aircraft into the hangar and I've hit the wing tip on the skip bin, I saw it was close but thought I'd be alright".[88]

[82] Later that day, Mr Kendall issued Mr Hanson with a letter advising him that his Taxi Authority (TA) and Critical Task Authority (CTA) were suspended. The suspension of the TA meant that Mr Hanson could no longer taxi REX aircraft until such time as the REX engineering technical board had recertified or approved him to do so. The suspension of the CTA meant that any critical system maintenance carried out by Mr Hanson would require independent certification from another (relevantly rated) LAME, and that Mr Hanson could not certify independent checks carried out by other LAMEs. The letter also stated that:

"You will be required to attend a follow up interview with the REX engineering technical board or Sydney LMS in regards to this incident and company taxiing procedures.

It is understood that this is not a punishment but is intended to be a corrective action to better build you as a highly competent engineer, the same standards that are expected of all REX engineers are maintained to the highest level, in addition to preventing safety incidents."[89]

[83] Whilst on its face, this letter is consistent with the concept of "Just Culture", and the suspension of the TA and CTA not being punishment or disciplinary action, in considering all of the circumstances of the case, it is the substance of what has occurred post this letter that is the focus in this Anti-Bullying Application in relation to the First Incident. I note that the assigned closure dated of the First Incident SMS Investigation was 3 October 2017.[90]

[84] I also note that video footage of the First Incident, taken from the hangar, was viewed by Mr Kendall on 3 July 2017.[91] Sometime after this, the video footage was lost.[92] Mr Kendall did not make any notes at the time he viewed the First Incident on video.

[85] When lodging the First Incident SMS Report on 3 July 2017, Mr Hanson included the following "without prejudice" statement (WP Statement):

"The aircraft was being taxied from F15B to the hangar using normal procedures. It had just started raining. I was in the left seat and looked out the side windshield to check for clearance as it is usually a bit tight when approaching the hangar. I saw the bin lid was close to the wingtip. I was moving slowly and thought it would pass the bin ok. I saw the wingtip start to pass the bin lid and thought it was still good. Then I saw the glass fragments falling and the bin lid dropped. I stopped the aircraft where it was. I shut the aircraft down. I exited the aircraft and observed that I was about 6 inches to the right of the taxi line. I took photos and passed them to the LMS."[93]

[86] I note that it does not appear to be in dispute that a without prejudice statement is not be used or otherwise relied upon in relation to any disciplinary process or outcomes under clause 36 of the REX EBA (meaning that the WP Statement by Mr Hanson should have only been used as a baseline for the First Incident SMS Investigation, with Mr Hanson, as promised in the letter from Mr Kendall, to be given a subsequent opportunity to make a formal, official and more complete statement as part of that investigation). That said, the issue appears to be of no moment in that Mr Kendall stated at the 1 November 2017 meeting that he "did not use the [WP Statement] from SH [Mr Hanson] in the [First Incident SMS] investigation".[94]

[87] On 4 October 2017, being just over three months after the First Incident, and a day after the "assigned closure date" for the First Incident SMS Investigation, Mr Hanson was issued a letter to attend a meeting with Ms Penglis on 16 October 2017 in relation to the First Incident. The meeting had been directed to occur by Mr Png and Mr Kendall.[95] I note that at this time Mr Hanson had yet to be formally interviewed or provide a formal statement as part of the First Incident SMS Investigation. The letter stated, "As disciplinary action may be considered, you are entitled to have a representative". No allegation against Mr Hanson is contained in this letter.[96] I note that Mr Sowter, ALAEA Industrial Officer (on behalf of Mr Hanson) raised concerns about the 16 October 2017 meeting with Ms Penglis by way of letter dated 12 October 2017.[97] In short, Mr Sowter was seeking clarification from Ms Penglis as to why her letter stated that Mr Hanson may be subject to disciplinary action as part of a human resources disciplinary investigation, whether Ms Penglis was commencing a process under the REX EBA and what that process was, what REX was doing in relation to compliance with its Exposition and the GSMSM in relation to the First Incident, whether REX intended that a "subject matter expert" would be present during any the meeting with Mr Hanson (as required by the REX GSMSM and the MEIP), and what was the status of the First Incident SMS Investigation.

[88] I consider that it was wholly appropriate for Mr Sowter to be raising these issues with Ms Penglis. In forming this view, I have had regard to the requirements of the GSMSM (including "Just Culture" principles), the MEIP, the terms of clause 36 of the REX EBA, the disciplinary process that REX appeared to be adopting (prior to the First Incident SMS Investigation being closed), and the fact that Mr Hanson was unaware of what was going on in relation to the First Incident SMS Investigation.[98] I note that as Ms Penglis did not respond in writing to Mr Sowter's 12 October 2017 letter, it appears that Mr Sowter and Mr Hanson assumed that such response (and clarification) would be forthcoming from Ms Penglis at the meeting on 16 October 2017.

[89] The meeting on 16 October 2017 was attended by Mr Hanson, Mr Sowter, Ms Penglis, and Ms Elicia Zaragoza (REX note-taker). However, it was adjourned as a result of Ms Penglis being unable to provide answers to the issues that had been raised by Mr Sowter (being issues that Mr Sowter had previously brought to Ms Penglis' attention in his letter of 12 October 2017).[99] During the meeting, Ms Penglis advised that she was following HR processes and conducting an investigation in relation to the First Incident, and that there were no "charges" against Mr Hanson as yet, but that such charges may arise following her investigation. Mr Sowter made the point that the MEIP process needed to be followed first, with HR becoming involved post the completion of the MEIP process, and post any contest (appeal) made by Mr Hanson in relation to the MEIP process or its outcomes. By reference to the minutes of the meeting of 16 October 2017, not only is it apparent that Ms Penglis failed to engage with the issues being raised by Mr Sowter, but it is also apparent that she appears to have had no genuine appreciation or understanding of those issues. Instead, she appears to have considered Mr Sowter's queries as being obstructive, and not enabling her (on behalf of REX) to "talk to our employee":

Mr Sowter: "You can talk to your employee. Are you aware of Just Culture?"

Mr Sowter: "Well that's part of the safety investigation".

[90] The notion that Ms Penglis did not consider that "Just Culture" makes a difference, whether as part of a safety investigation and/or a disciplinary process, raises concerns not only as to Ms Penglis' knowledge as to the application of "Just Culture" principles in the REX workplace, but also as to what instructions she had received from Mr Png and/or Mr Kendall as to the process to be commenced. As the REX GSMSM states, "Just Culture" is at the forefront of both safety and related disciplinary processes and outcomes. It very much ought to have been at the forefront of any instructions that Mr Png and/or Mr Kendall gave to Ms Penglis prior to commencing any process arising from the First Incident as it concerned Mr Hanson. There is no evidence before this Commission that it was.

[91] The last page of the minutes of the meeting of 16 October 2017 appear to reflect the matters that Ms Penglis was seeking Mr Hanson's response to (but did not get around to asking). On their face they appear to be reasonable questions, however, that is not to the point. These same questions are relevant for the First Incident SMS Investigation. However, at this point in time, none of these questions were formally put to Mr Hanson as part of the First Incident SMS Investigation. In my view, the questions highlight that REX's HR department (through Ms Penglis) was operating completely separately or detached to the processes under the GSMSM and the MEIP process, in circumstances where the GSMSM and MEIP processes had not yet concluded. In other words, the REX HR Department had commenced a disciplinary process under clause 36 of the REX EBA in circumstances where a parallel process by subject matter experts under the GSMSM and MEIP was on-going and yet to be concluded.[100] During the 16 October 2017 meeting, Ms Penglis accepts herself that she is not a subject matter expert, and surprisingly, was not aware of the MEIP process. It is not particularly concerning that there was some detachment between the REX HR Department and its engineering department in relation to a disciplinary matter, however, as explained below, it does not make sense for a disciplinary process under clause 36 of the REX EBA to have commenced when the REX HR Department was totally unaware of the findings of the First Incident SMS Investigation. In other words, there may well be levels of partial detachment in terms of process, but there should not be any detachment at all when it comes to the sharing of information that arises from a safety investigation process that is relevant to a disciplinary process. Indeed, to conduct oneself otherwise would be in direct breach of the REX GSMSM, and the MEIP.

[92] On 23 October 2017, Mr Hanson was issued another letter by REX to attend a meeting with Ms Penglis, Mr Png and Mr Kendall on 1 November 2017 in relation to the First Incident. This time, the letter made the allegation against Mr Hanson that in relation to the First Incident, Mr Hanson had failed "to adhere to company Taxiing Procedure as per TI-03, SAAB 340 Aircraft Maintenance Manual and as signed off by QI-01". The letter again stated "As disciplinary action may be considered, you are entitled to have a representative".[101] The letter does not state how Mr Hanson had failed to adhere to the taxiing procedure, nor does it indicate in what circumstances the taxiing procedure had not been adhered to.

[93] At the meeting on 1 November 2017, Mr Hanson was represented by Mr Stephen Re, ALAEA Technical Manager. There were discussions back and forth at this meeting as to the procedure being adopted by REX in relation to its dealings with Mr Hanson over the First Incident, and the purpose of the disciplinary meeting.[102] During the meeting, Mr Kendall advised that the First Incident SMS Investigation had been closed,[103] which was also confirmed by Ms Penglis.[104] A copy of the closed report was not provided to Mr Hanson or Mr Re at this meeting. REX did not produce a copy of this closed report at the hearing, and advised the Commission that it no longer possesses a copy of this closed report (this is despite the obligations upon REX as an AMO in relation to record keeping under the GSMSM).

[94] Despite Mr Kendall advising at the 1 November 2017 meeting that the First Incident SMS Investigation had been closed, he does not answer in his evidence whether the First Incident SMS Investigation was indeed closed on 1 November 2017 (in accordance with his comments at the meeting on 1 November 2017).[105] Instead, he simply says that the "REX Safety Department" closed the First Incident SMS Investigation on 14 November 2017 (being around six weeks after its assigned closure date), and absent Mr Hanson making (or being given the opportunity to make) any formal statement, or being formally interviewed, as part of that SMS investigation.[106]

[95] Mr Kendall had held discussions with Mr Hanson, Mr David Steer, another unnamed "REX engineer who was inside the hangar while Mr Hanson was taxiing the aircraft", and Mr Andrew Marigotta shortly after the First Incident occurred on 3 July 2017. Those discussions are reflected in a contemporaneous file note annexed to Mr Kendall's statement.[107] However, it appears that such discussions were never conducted formally, or for the purposes of a fact-finding or disciplinary investigation. There is no evidence of any follow-up discussions with any of these individuals post 3 July 2017, formally or otherwise. Nor is there any evidence that the content or substance of these discussions made their way into the final version of the First Incident SMS Report (albeit, there are some anecdotal references therein).

[96] The minutes of the meeting on 1 November 2017 reflect that:

(a) Despite Mr Kendall advising that the investigation into the First Incident had been closed, he was unable to or did not communicate to Mr Hanson and Mr Re what the outcome of that closed investigation was (as it concerned Mr Hanson or otherwise).

(b) Despite Ms Penglis being aware that the investigation into the First Incident had been closed, she had not read the investigation results (and was not otherwise aware of same).[108] Indeed, Ms Penglis was only aware that there was an incident, a discussion between Mr Kendall and Mr Hanson on 3 July 2017, that Mr Hanson's taxiing authority has been rescinded "temporarily", and that a safety investigation had occurred.[109] In my view, this level of factual detachment between the disciplinary process and the safety process is unacceptable.

(c) In closing the investigation into the First Incident, REX had either not relied upon any statement or evidence from Mr Hanson or had relied upon his WP Statement (despite Mr Kendall stating that no reliance had been placed upon same). The net effect was that the First Incident SMS Report, flowing from the First Incident SMS Investigation, officially took into account none of the evidence from Mr Hanson as to what occurred in relation to the First Incident. The approach is contrary to the requirements of the REX GSMSM and the MEIP.

[97] These conclusions are equally available from the evidence of Mr Re, who was at the meeting.[110] I note that Mr Re's evidence also highlights that despite Mr Hanson requesting that he be formally interviewed by Mr Kendall for the purposes of the First Incident SMS Investigation, and despite Mr Kendall agreeing to do so, Mr Png stated "No, that won't be necessary". Mr Re makes the point that both Mr Png and Mr Kendall are responsible officers under the AMO. I conclude from this, by reference to the terms of the REX Exposition, the GSMSM, and the MOS145, that even if Mr Png as the REX General Manager and AMO Accountable Manager did not agree to engage in a process consistent with the legislative requirements for an AMO, that did not absolve Mr Kendall or other employees of REX from doing so.

[98] I reject the assertions of Mr Png, Mr Kendall and Ms Penglis that Mr Hanson and/or Mr Re attended the meeting on 1 November 2017 to obstruct the meeting, or to otherwise avoid answering questions in relation to the First Incident. A fair reading of the minutes of this meeting, and the evidence of Mr Hanson and Mr Re, does not support such a conclusion. Rather, in my view, a fair reading of the minutes of the meeting, and the evidence of Mr Hanson and Mr Re, is that Mr Hanson was still attempting to understand and grapple with the procedure being adopted by Mr Png, Mr Kendall and Ms Penglis, and why the relevant procedure/s under the GSMSM and the MEIP were not being adopted by REX.

[99] On 14 November 2017, Mr Hanson received an email confirming closure of the First Incident SMS Investigation, which reads:

Report #26903 [First Incident SMS] has been closed. Please see the investigation outcome below. Your full report can be found by logging into the SMS Website at http://sms.rex.org.au and clicking on the 'Submitted Reports' tab on the left hand side.

Corrective and preventative actions have been taken to address this issue.

SACL have also permanently hatched the area where the bin was located as a "No Storage or parking" zone and have completed line markings on tarmac. Bins have been relocated to ensure ample clearance.

The Skip bin servicer was informed of the importance of placing bins within the marked area.

Adapter lift has moved two skip bins including the one involved in the incident and the area has been marked out as a "No Storage" zone.

LH wing strobe assy replaced and wing tip inspected and assessed as cosmetic damage only. Aircraft released to service.

The event has been discussed with the engineer involved.

If you have any questions about your report, please contact SMS Admin on (02) 9667 7777.

[100] The evidence of Mr Kendall is that around a week or two after 14 November 2017, Mr Png contacted him and asked him to re-open the First Incident SMS Investigation in order to make alterations or additions to the First Incident SMS Report. The fact that an SMS investigation can or may be reopened as part of standard procedure, by Mr Png or any other investigator, is not to the point. One needs to consider the surrounding circumstances as to why the investigation was re-opened, not simply the ability or power to re-open it. Neither Mr Hanson, nor the ALAEA, were notified that the First Incident SMS Investigation had been re-opened. Nor was there any new or additional evidence that had arisen subsequent to the time that the First Incident SMS Investigation was closed on 14 November 2017. Indeed, the only thing that had occurred between the time that Mr Kendall had first stated that the investigation had been closed (1 November 2017), the time it was actually first closed (14 November 2017), and the time that Mr Png had asked Mr Kendall to reopen the closed investigation (around 22 November 2017), was that a disciplinary meeting had occurred with Mr Hanson on 1 November 2017 (at which Mr Hanson and Mr Re had raised serious process concerns, which Mr Png, Mr Kendall and Ms Penglis could not answer or resolve, causing the meeting to be deferred).

[101] According to Mr Kendall, in requesting that the First Incident SMS Investigation be re-opened, Mr Png was particularly concerned that Mr Hanson "would not take responsibility for his mistake" in relation to the First Incident. This concern is equally reflected in Mr Png's own evidence where he states that at the meeting on 1 November 2017 he expected Mr Hanson to attend and "acknowledge he made a mistake", and/or that he had made "poor judgement[s]", such that Mr Hanson accepts responsibility for the First Incident. Indeed, Mr Png goes even further than this and sets out in his witness statement the "wording" of statement that he expected Mr Hanson to make at the meeting on 1 November 2017:

"I expected Mr Hanson to say something like - 'I taxied an aircraft into a bin and damaged the aircraft. There are a few reasons why that happened but ultimately, I was in control of the aircraft and I was the person responsible for taxiing the aircraft, and I hit the bin and caused damage to the aircraft. That was my mistake or poor judgement.'"

[102] Mr Png goes on to state in his witness statement:

"Mr Hanson's refusal to acknowledge his responsibility for his mistakes and be held accountable was and remains my major concern with Mr Hanson's response to this incident (and Mr Hanson's response to the second and third incidents, discussed below)."

[103] Mr Png's evidence in the foregoing paragraphs is reflected in his evidence going to his view on the actual day that the First Incident occurred (on 3 July 2017):

"Nonetheless, Mr Hanson continued on and taxied the aircraft into the lid of the bin, causing damage to the aircraft. In addition, Mr Kendall advised me that Mr Hanson was taxiing on the right of the taxi line to try to avoid the bin and other clutter that was on the left of the taxi path.

My preliminary view was that Mr Hanson had breached the taxi procedure."

[104] The additions to the closed First Incident SMS Report were made by Mr Kendall at the direction of Mr Png (as Mr Kendall's "boss").[111] Mr Kendall simply inserted what Mr Png had told him to insert.[112] The inserted additional words were as follows:

"REX SOP [standard operating procedures] manual Chapter 12.12.12 Aircraft taxi procedures & the Saab 340 Aircraft Taxi Training manual states that it is the responsibility of the LSO [left seat operator, i.e. Mr Hanson] to avoid obstacles.

For this case, LSO should have strictly abided to the taxi-line and should have stopped after noticing the bin. He should have not steered the a/c [aircraft] off the taxi line to avoid collusion solely based on his guesstimate of the possible safe-gap between the a/c wing tip & the bin."[113]

[105] As later explained below, a number of the conclusions made in the foregoing two paragraphs inserted by Mr Png are in contest. Firstly, whether the industrial bin was indeed perceived by Mr Hanson (at the time of the incident) as an "obstacle", or whether the bin simply reflected part of the day-to-day clutter that was normally present in the marked storage zone area in question. Secondly, whether or not Mr Hanson abided by the taxi-line, or steered off of it at the place of the collision between the aircraft and the bin. Thirdly, whether Mr Hanson steered the aircraft off the taxi-line to avoid collusion. Fourthly, whether Mr Hanson steered the aircraft off the taxi-line to attempt to avoid a collision with the industrial bin "solely based on his guesstimate" of the possible safe-gap between the aircraft and the wing-tip. Fifthly, whether the industrial bin was on or over the storage zone line marking. Sixthly, whether Mr Hanson followed REX's taxiing procedure.

[106] In my view, the evidence set out above is concerning from a "reasonableness" perspective. In this regard:

(a) Mr Png's views, at the time he asked Mr Kendall to reopen the First Incident SMS Investigation, in relation to what occurred in relation to the First Incident, have not arisen from any investigative findings. Rather, they appear to be based upon what Mr Kendall had told him on the day the First Incident occurred (i.e. 3 July 2017),[114] and/or out of Mr Png's desire to attribute responsibility to Mr Hanson.[115] When one turns to consider what Mr Kendall had told Mr Png on that day, it is apparent that Mr Kendall is simply reporting to Mr Png what had been told to him by Mr Hanson (and others) on a preliminary and without prejudice basis (i.e. hearsay from Mr Kendall to Mr Png). In other words, Mr Png is starting from the perspective that, on the basis of hearsay, Mr Hanson has engaged in certain conduct (being factual findings yet to be confirmed by an investigation), breached the taxi procedure (being a conclusion), and made a mistake that Mr Hanson would need to accept responsibility for (being yet another conclusion). Whilst there was further discussion between Mr Png and Mr Kendall after the First Incident SMS Investigation had been closed, such a discussion was not based upon any formal statement from Mr Hanson (i.e. at the 1 November 2017 meeting, Mr Hanson did not make or provide a statement in relation to the First Incident, formal or otherwise).[116]

(b) The views of Mr Png are also reflected in Mr Png's direction to Ms Penglis to commence, sometime prior to 4 October 2017, and certainly prior to the First Incident SMS Investigation being completed, a disciplinary process against Mr Hanson by requiring him to attend a meeting at which "disciplinary action may be considered" (4 October 2017 letter). The fact that an initial disciplinary meeting may be fact-finding does not change the substance or the nature of the process that has been formally initiated, nor its potential outcome.

(c) It is abundantly apparent that Mr Png was expecting, even requiring, that Mr Hanson attend the meeting on 1 November 2017 and make admissions that he had made a "mistake/s", accept that he breached the REX taxiing procedure, and accept "responsibility" for the First Incident. This is in circumstances where Mr Hanson is told at the 1 November 2017 meeting, for the first time, that the First Incident SMS Investigation is closed; Mr Hanson is not provided with a copy of the final report flowing from the First Incident SMS Investigation; Mr Hanson has never been provided with an opportunity to make a formal statement as part of the First Incident SMS Investigation; and neither Mr Png, Mr Kendall nor Ms Penglis are able to clarify any of the real and genuine issues that are being raised by Mr Re (on Mr Hanson's behalf). In essence, Mr Png is steadfast in his view that because there is nothing that expressly states that REX cannot conduct a safety investigation process and a disciplinary investigation process concurrently, or a disciplinary investigation process before a safety investigation process has been closed (and a final report made), one does not need to consider the process that Mr Png has sought to put in train any further.

[107] In my view, the totality of the events leading up to and including the meeting on 1 November 2017, viewed objectively, by reference to not only the terms of REX's Exposition, the GSMSM, the MEIP, and the MOS145, but also by reference to basic principles of procedural fairness, are unreasonable. They do not reflect reasonable management action taken in a reasonable manner. They do not reflect "Just Culture" principles. Indeed, far from it. Rather, they reflect an attitude by Mr Png that seeks to cast aside REX's obligations as an AMO, and the promises that REX has made to CASA in that regard. It is not clear to me, at all, the basis upon which REX employees would feel comfort, trust and confidence in self-reporting safety incidents when Mr Png, as its General Manager - Engineering, and as its AMO Accountable Engineering Officer to CASA, is prepared to, whether intentionally or by mistake:

(a) cast aside civil aviation legislative and regulatory obligations; and

(b) move straight to a disciplinary process that has gaping procedural fairness failings (including the expectation that certain specific answers and admissions are to be provided by Mr Hanson on the basis that he accepts that his conduct was erroneous and contrary to procedure, involved poor judgements and/or mistakes by him, of which Mr Hanson agrees to accept responsibility (blame) for).

[108] The evidence shows that the First Incident SMS investigation was reopened on 23 November 2017 (at the request of Mr Kendall on 22 November 2017, and as directed by Mr Png). Records indicate that a further addition to the First Incident SMS Report was made on 14 December 2017, and that no further alterations or additions were made until it was closed for a second time on 2 January 2018. In other words, despite Mr Png asking Mr Kendall to reopen the First Incident SMS Investigation at some point prior to or on 22 November 2017, the alterations and additions that Mr Png had requested Mr Kendall make to the First Incident SMS Report were not made until 14 December 2017, and the First Incident SMS Investigation was thereafter left open for more than two weeks, and finally closed again on 2 January 2018. Again, Mr Hanson, at this time, had not made a formal statement as part of the First Incident SMS Investigation.

[109] On 20 November 2017, Mr Hanson was again directed to attend a disciplinary meeting on 11 December 2017 to respond to an allegation that he had failed to adhere to REX Taxiing procedures. I note that this letter was sent two days prior to Mr Kendall reopening the previously closed First Incident SMS Investigation. Mr Re wrote back to REX on 23 November 2017 seeking further particulars of the allegations made against Mr Hanson, and requesting a copy of the taxiing procedure that REX would be relying upon. REX responded and provided that information (by way of letter) on 5 December 2017.

[110] On 6 December 2017, Mr Re responded to REX's letter of 5 December 2017. In my view, Mr Re's letter of 6 December 2017 properly encapsulates Mr Hanson's concerns and position at that time, including by reference to REX's obligations in relation to safety investigations under the REX GSMSM and the MEIP. REX did not respond to this letter.

[111] On 11 December 2017, a disciplinary meeting was conducted. Mr Hanson, Mr Re, Ms Penglis, Mr Png and Mr Kendall were present, along with Ms Elicia Zaragoza (REX note-taker).

[112] The following matters of discussion at the meeting on 11 December 2017 do not appear to be in contest:

(a) The 11 December 2017 meeting was a continuation of the disciplinary process that had first commenced on 4 October 2017 in relation to the First Incident, being a process that was being conducted absent any consideration of the findings of the First Incident SMS Investigation. This was despite the First Incident SMS Investigation, being undertaken by subject matter experts, having been officially closed on 14 November 2017, but then re-opened by Mr Kendall on 23 November 2017. In other words, Mr Hanson and Mr Re attended the meeting on 11 December 2017 of the belief, never corrected by Mr Png, Mr Kendall or Ms Penglis, that the First Incident SMS Investigation was closed. Indeed, Ms Penglis made statements during the 11 December 2017 meeting that the First Incident SMS was now closed given that Mr Hanson had received the details of the outcome of that investigation on 14 November 2017.[117]

(b) As at 11 December 2017, Ms Penglis had not read the initial SMS Report, as submitted by Mr Hanson on 3 July 2017. Nor had she read the findings of the First Incident SMS Investigation that had been closed on 14 November 2017.

(c) Mr Hanson had not made a formal statement in relation to the First Incident SMS Investigation, but was being asked to respond to questions being asked of him in relation to the First Incident ("about your performance on the day") as part of a disciplinary process. This is contrary to REX's promise to Mr Hanson on 3 July 2017, as set out in the Mr Kendall's letter dated 3 July 2017, which states that Mr Hanson will be provided with the opportunity to attend a follow-up interview with the REX engineering technical board or Sydney LMS in relation to the First Incident.

(d) The disciplinary process was being undertaken absent any consideration of the outcomes of the First Incident SMS Investigation. This was said by Ms Penglis to be occurring so as to not be biased about any findings that might be made out of the disciplinary process. It is not clear the basis upon which it might be asserted that factual findings made by subject matter experts as part of the First Incident SMS Investigation might give rise to bias. Indeed, one would have thought that it would be reasonable to work on the basis that any findings made pursuant to the First Incident SMS Investigation would be the factual foundation for a disciplinary process (if one was required).

(e) In the ten or so years that Mr Hanson has been taxiing aircraft at REX, this is the first time he had ever been involved in a collision with an aircraft.

(f) There was always "clutter" in the marked storage zone that the collision occurred (e.g. mobile aircraft steps, vans, bins and stands).

(g) The First Incident occurred at or around the commencement of Mr Hanson's shift on 3 July 2017. In other words, Mr Hanson had not taxied an aircraft past the marked storage zone that day where the industrial bin was located. Nor did anyone at REX, who had been taxiing aircraft past the marked storage zone prior to Mr Hanson commencing his shift that day, alert Mr Hanson to the possibility of a risk at the storage zone in the form of an industrial bin or other object being over the marked storage zone line.

(h) At the conclusion of the meeting on 11 December 2017, Mr Re again reiterated to those present, including Mr Png and Mr Kendall, of REX's (and their individual) obligations under the Exposition, the GSMSM, the MOS145, and the application of "Just Culture" principles.

[113] After Ms Penglis had finished her initial questioning of Mr Hanson at the 11 December 2017 meeting, she asked Mr Png and Mr Kendall if they had any questions of Mr Hanson. After first confirming with Mr Hanson that the taxiing procedure requires that if you see an "obstacle" you stop the taxiing, the following exchange occurred:

In your statement you said you were over a foot over the line, why do you need to steer the aircraft away?"

I think he is referring to a written statement. The SMS Tat?

It wouldn't be the statement you gave to me because we cannot use the without prejudice statement."

[114] The premise behind Mr Png's question to Mr Hanson about steering the aircraft "away" from, or around, the industrial bin is erroneous in that it purports to rely upon a written statement by Mr Hanson to that effect (made prior to the meeting on 11 December 2017). Whilst Ms Penglis said that it came from the "SMS" (which she had not read), Mr Hanson made no such statement in the original SMS Report that he filed on 3 July 2017. The short notes taken by Mr Kendall concerning his initial discussions with Mr Hanson on 3 July 2017 (around an hour after the First Incident) do not reflect any statement by Mr Hanson to that effect. Further, even if Mr Hanson did make such a statement, it would have been a without prejudice statement that could not be relied upon as part of a disciplinary process. Again, in all of this it must be remembered that Mr Hanson never made (and was never given the opportunity to make) a formal statement as part of the First Incident SMS Investigation, and Ms Penglis had commenced the meeting on 11 December 2017 on the basis that REX would not be relying upon the First Incident SMS Investigation (or its outcomes) for the purposes of the disciplinary interview (apparently to quell any suggestion of bias).

[115] I pause at this point to clarify my understanding, based upon the evidence, as to the "taxi-line", and the requirement to follow same when taxiing an aircraft.[118] In the documentary and oral evidence relied upon at the hearing, terms such as "centre-line" and "taxi-line" have been used somewhat interchangeably in oral testimony, witness statements, and documentary communications (minutes of meetings, correspondence and emails). My understanding is that:

(a) A "taxi-line" is equally descriptive of a single yellow "centre-line" marking on the tarmac. There may be black markings on either side of the single yellow centre-line (taxi-line) marking.[119] The SAAB 340B has two front nose wheels with a space between them (i.e. each wheel is mounted to either side of the front landing gear/shaft).[120] If one is to "follow" the taxi-line, each wheel would sit or be placed on top of or over each side of the respective black markings on either side of the taxi-line, meaning that the tip of the nose, and the nosewheels, of the aircraft (ideally) follow directly over the centre-line.

(b) When taxiing an aircraft, one does their best to follow (at all times) the taxi-line, however, some slight deviation is permitted, remembering that one is taxiing an aircraft with twin propellers on a taxi-line that must be navigated from a cockpit that is viewing the taxi-line at around 20 to 30 metres in front of the taxiing aircraft. Unintentional deviations might occur (e.g. when one is attempting to navigate a turn or bend in the taxi-line, or when the aircraft slightly drifts off the taxi-line (e.g. due to wind turbulence on the tarmac)). Intentional deviation from the centre-line should not occur. In other words, one does not taxi an aircraft off or away from the taxi-line to take a short-cut across the tarmac, nor does one taxi an aircraft off or away from the taxi-line so as to avoid an obstacle on the tarmac. Rather, if an obstacle is identified, the aircraft is to remain on the taxi-line and stop until such time as the obstacle moves on itself (e.g. a van or another aircraft), or the obstacle is physically removed from the path of the taxi-line (and is thus removed from the path of the aircraft being taxied along that taxi-line to its ultimate destination). That said, an aircraft may be taxied so as to maintain the nosewheel/s within 1.5 metres (or four feet or 11 inches) either side of the taxi-line.

(c) The storage zone markings in this case are identified by double yellow line markings. Double yellow line markings also indicate the edge of the taxi-way. The aircraft wingtips should not pass over the double yellow lines, even when under tow.[121]

(d) Tarmac line-markings are drawn and marked such that relevant aircraft that pass along a taxi-line have ample clearance between the taxi-line and any storage or other exclusion zones, including in respect of clearance that might occur as a result of an aircraft being taxied up to 1.5 metres away from the taxi-line. In other words, when taxiing an aircraft, one works on the assumption, or prima face basis, that if they follow the taxi-line, and do not deviate more than 1.5 metres away from either side of the taxi-line, you will comfortably avoid the passing of any part of the aircraft (including a wing-tip) into an area marked out by double lines on a tarmac (for example, a storage or other exclusion zone marked out by a double yellow line). Of course, one does not taxi an aircraft blindly, and only work on the basis of their assumption (based upon line-marking protocol) that clearance will always be correct. Rather, situational awareness is at all times required. Equally, the person taxiing an aircraft will use their day-to-day experience in regularly taxiing an aircraft past a particular tight aspect of the taxi-way (e.g. a storage zone). If one sees an obstacle, no matter where that obstacle is located, taxiing procedure requires them to stop. However, an obstacle may be more obvious when taxiing an aircraft if the obstacle is outside an area of the tarmac that is not marked by a double yellow line (i.e. a place on the tarmac that would not (and should not) have an obstacle present, for example, an unattended cleaning van parked in the middle of the tarmac). Conversely, an obstacle may not be readily identifiable or perceived as an obstacle where such an obstacle is located on the cusp of a storage zone, and/or in an area of the taxiing path that is always perceived to be a tight fit, and regularly has items stored in same. I say this again noting the nature of the visibility from the elevated cockpit of an aircraft.

[116] On 11 December 2017, post the disciplinary meeting that day, Mr Hanson was immediately asked to "confirm in writing to [REX]" his "reason/s for steering away from the centre line".[122]

[117] On 12 December 2017, Mr Re emailed Ms Penglis raising various concerns that he said arose from Mr Hanson being "misrepresented" by Mr Png at the 11 December 2017 meeting. In this regard, Mr Re advised that Mr Hanson had never made a written statement (prior to the 11 December 2017 meeting) stating that he had steered "away" from the taxi-line (as asserted by Mr Png).[123] Mr Re asked for particulars of the written statement by Mr Hanson that Mr Png had been referring to (especially given it was now related to a question being asked of Mr Hanson to confirm in writing for the purposes of the disciplinary process (i.e. "the reason/s for [Mr Hanson] steering away from the centre line")). Mr Re also set out his understanding of Mr Hanson's position at the 11 December 2017 meeting (i.e. Mr Hanson position was that he "was located on the right hand side of the centreline and was not steering away from it", and he never stated that "he steered away from the clutter"). In doing so, Mr Re made the point, which he says was confirmed at the meeting by Mr Kendall, that "the taxi centre-line is a guideline for taxiing as it is not always possible to taxi the aircraft with the nosewheel following the line". Mr Re equally highlighted that:

(a) "it is normal for the nosewheel to move to the right of the centre-line during [a] turn before coming back onto the centre-line as the aircraft straightens up"; and

(b) the taxi centre-line path that Mr Hanson was taxing along on 3 July 2017 "makes a right hand turn shortly before the equipment parking area [storage zone] where the [First] Incident took place".[124]

[118] Ms Penglis responded to Mr Re's email on 19 December 2017, but did not engage with any of the issues or concerns raised by Mr Re. Instead, she simply reiterated that REX required a response to the matters raised in her letter dated 11 December 2017.[125]

[119] On 20 December 2017, Mr Re responded to Ms Penglis, requesting that she respond to the issues he had raised, and again asking that Mr Hanson be provided with the alleged written statement by Mr Hanson that had been referred to by Mr Png at the 11 December 2017 meeting, and/or as to whether Mr Png had been labouring under a "misunderstanding".[126] Ms Penglis did not reply to Mr Re's email. In my view, Mr Re, in suggesting that a misunderstanding may have occurred, was providing Mr Png with the opportunity to back away from his erroneous assertion that Mr Hanson had previously provided a written statement to the effect that he steered "away" from the taxi-line. It was an opportunity, at that time, that Mr Png either failed to understand, or intentionally disregarded and ignored.

[120] On 2 January 2018, the First Incident SMS Investigation was closed for a second time. Mr Hanson, at this time, remained unaware that the investigation had been reopened. He also was unaware that it had been closed for a second time.[127] To his complete surprise, on 2 January 2018, Mr Hanson was provided with a copy of the First Incident SMS Report (as closed for a second time).

[121] On 9 January 2018, Mr Png emailed the ALAEA and retracted his assertion (made at the meeting on 11 November 2017) that Mr Hanson had previously made a written statement that he had steered away from the centre-line. After apologising for his error, Mr Png asserted that it was a "verbal statement" that Mr Hanson had made (in the same terms).[128] There is no evidence that Mr Hanson ever made such a verbal statement.

[122] Despite the First Incident SMS Report having been closed for a second time on 2 January 2018, Mr Png (in early February 2018) directed Mr Kendall to obtain further statements from himself (Mr Kendall) and other relevant witnesses in respect of the First Incident, which were provided (in the body of emails) on 6 and 7 February 2018. The new statements were made by Mr Kendall, another engineer who viewed the video footage on 3 July 2017 (Mr Josh Jackson), and another engineer (Mr Michael Bradley) who was (it appears) an actual witness to the First Incident.[129] There is no evidence to suggest that either Mr Jackson or Mr Bradley were formally interviewed or gave a statement as part of the First Incident SMS Investigation, or that any such evidence formed part of the First Incident SMS Investigation (as closed on 2 January 2018). Mr Kendall gives no evidence that he spoke to them during the first or second iterations of the First Incident SMS Investigation. In any event, it is certainly clear that none of these email witness statements (provided on 6 and 7 February 2018) could have formed part of the First Incident SMS Investigation in that it had already been closed (for a second time) on 2 January 2018. The Respondents did not explain why Mr Jackson and Mr Bradley did not provide a statement in writing (including via email) during the six-month period that the First Incident SMS Investigation remained open. Significantly, there is no evidence to suggest that any of these email witness statements were ever passed onto or provided to Mr Hanson or the ALAEA as part of the disciplinary process or otherwise.[130] I infer from all of this that the purpose for obtaining the email witness statements from Mr Jackson and Mr Bradley was not for the purposes of the First Incident SMS Investigation, so as to, for example, make such an investigation more thorough and robust so as to properly identify root causes and human factors. Rather, the purpose appears to have been to ground the assertions being made by Mr Png against Mr Hanson during the disciplinary process that Mr Hanson has steered the aircraft away from the taxi-line. Again, the conduct identifies a focus, certainly by both Mr Png and Mr Kendall, away from safety and just culture, and towards discipline and blame; being discipline and blame grounded in a total absence of procedural fairness.

[123] On 27 February 2018, some nine months after the First Incident occurred, Mr Hanson received a Show Cause Letter from Mr Png (Show Cause Letter).[131] In relation to the Show Cause Letter being issued, Mr Png gave the following evidence at hearing:

Ms Saunders: Mr Lim [REX's Chairman based in Singapore] has been making the decisions in relation to this matter for some time at this point, hasn't he?

He was the one that instructed you to issue the show cause letter in the first place?

And he instructed you to do that, firstly, because you had a view that Mr Hanson was refusing to answer your queries?

[124] The immediate problem with the foregoing evidence arises from the fact that Mr Png is the REX AMO Accountable Engineering Officer. He should not be receiving his riding instructions as to safety investigation processes, or disciplinary processes relating to safety incidents, from the REX Chairman over the telephone from Singapore. The further problem is that Mr Png's evidence is that he directed for the First Incident to be dealt with by REX HR so as to get REX HR's advice and expertise. It is apparent that the advice Mr Png is receiving as to the conduct of the First Incident, and potential outcomes, is coming not only from REX HR, but also from Mr Lim. Whatever may be said about this arrangement, as Mr Kendall says, it simply cannot be a situation in which it is consistent with the REX GSMSM, the MEIP, or the MOS145.[133]

[125] I make the following preliminary points in relation to the Show Cause Letter:

(a) The Show Cause Letter states that Mr Hanson chose not to participate in the meeting on 16 October 2017 "by not answering questions". However, this a misrepresentation of Mr Hanson's position at the meeting on 16 October 2017. It seeks to cast Mr Hanson as obstructive and uncooperative. It was ultimately a decision by Ms Penglis not to continue with the meeting on 16 October 2017 given Mr Kendall was not present, and she was not aware (and could not explain) the process she had commenced on Mr Png's instructions.

(b) The Show Cause Letter states that at the meeting on 11 December 2017, Mr Hanson had "indicated the reason [he] steered to the right was because there was clutter on the left, there was room on the right and it made sense to be cautious to move that way".

(c) The Show Cause Letter states that Mr Hanson has not provided a written response to the matters set out in REX's letter dated 11 December 2017. No mention is made of Mr Re's email of 20 December 2017 advising that Mr Hanson would not be making a written statement until such time as REX clarified the foundation (written or verbal) upon which Mr Png was asserting that Mr Hanson had previously stated that he steered "away" from the taxi-line. This again wrongly seeks to cast Mr Hanson as obstructive and/or uncooperative, absent any genuine consideration of Mr Hanson's previously communicated position.

(d) The Show Cause Letter states that Mr Re had advised REX that Mr Hanson had never made a statement, during the meeting on 11 December 2017 or otherwise, that Mr Hanson had (prior to 11 December 2017) "steered away from the centre line". This assertion was presumably taken from Mr Re's emails on 12 and 20 December 2017 (and a mistaken or intentional misreading of same).

(e) The Show Cause Letter states that the reason for issuing Mr Hanson the letter on 11 December 2017 was because of the discrepancy between what REX asserted that Mr Hanson had stated at the meeting on 11 December 2017, and what Mr Re (on behalf of Mr Hanson) was asserting in his emails of 12 and 20 December 2017.

(f) The Show Cause Letter states that the foregoing discrepancy has caused REX "to believe that [Mr Hanson's] integrity and truthfulness [are] in question". Being a conclusion based upon erroneous representation of Mr Hanson's position, and an erroneous representation of Mr Re's communications.

(g) The Show Cause Letter states that "the investigation determined that you [Mr Hanson] failed to carry out your duties correctly, and that your actions on this day were negligent". It is not clear what "investigation" Mr Png is referring to, i.e. the investigation pursuant to the disciplinary process, or the First Incident SMS Investigation. If Mr Png is referring to the First Incident SMS Report, arising from the First Incident SMS Investigation that was closed on 2 January 2018, there is nothing in the report that states that Mr Hanson was negligent. Further, purported reliance upon the findings of the First Incident SMS Investigation is contrary to the representations made by Ms Penglis that REX would not be relying upon such findings as part of the disciplinary process so as to not give rise to "bias". If Mr Png is referring to the disciplinary process, as at 27 February 2018, the disciplinary process remained yet to be concluded, and Mr Hanson was yet to provide a written statement.

(h) The Show Cause Letter states that in view of the matters set out in the Show Cause Letter, Mr Hanson now has the opportunity to "show cause" why his employment should not be terminated. At this point in time, this is a dramatic escalation of a procedurally flawed disciplinary process, and contrary to "Just Culture" principles.

[126] In the events that occurred precipitating this Show Cause Letter, as set out in this decision above, there are a number of real difficulties and concerns with the facts, assertions and allegations contained in the Show Cause Letter. In this regard, the Show Cause Letter reads:

"In that meeting, conducted on 11 December 2017 you indicated the reason you steered to the right was because there was clutter on the left, there was room on the right and it made sense to be cautious to move that way.

In the letter dated 11 December 2017 and 19 December 2019 [Ms Penglis email] the Company asked that you confirm in writing:

b. the reason/s for steering away from the centre line.

The Company has received no response from you in regards to this request.

Stephen Re from the ALAEA later advised that you had not made that statement and had not steered away from the centre line, aside from any normal variation that occurs during aircraft taxiing. This information is conflicting with the information you provided during the meeting held on 11 December 2017, therefore we requested the above information in writing.

The Company is finding it difficult to understand why the information you provided in the meeting has now been communicated by the ALAEA to be not correct. This has led us to believe that your integrity and truthfulness is in question. The role as LAME is a respected one that holds great responsibility, it is imperative that the Company has trust and confidence in its employees to carry out their role and inherent duties. Your actions have led the Company to question its ability to put in you the requisite faith required.

The aircraft was damaged, and the investigation determined that you failed to carry out your duties correctly, and that your actions on this day were negligent."

[127] The first difficulty and concern with the foregoing extract of the Show Cause Letter is that Mr Re's emails of 12 and 20 December 2017 (at their core) go to the issue of what written statement Mr Png was relying upon at the meeting on 11 December 2017 (i.e when Mr Png made the allegation that Mr Hanson had previously stated (in a written statement prior to 11 December 2017) that he had steered away from the centre-line). REX did not engage with this issue prior to issuing the Show Cause Letter, other than to the extent that Mr Png appeared to accept (via email on 9 January 2018) that such a written statement was never made by Mr Hanson but was instead made pursuant to a verbal statement by Mr Hanson. In other words, Mr Png's position, as a matter of substance, had not changed to the extent that Mr Png continued to rely upon an alleged prior statement by Mr Hanson, that he steered "away" from the centre-line, in circumstances where there is absolutely no evidence of Mr Hanson ever making such a statement (in written or oral form prior to 11 December 2017, or otherwise).

[128] Following on from the foregoing paragraph, the second difficulty and concern is that the Show Cause Letter seeks to cast Mr Re's emails of 12 and 20 December 2017 as some form of denial or reversal by Mr Hanson of the answers he gave at the 11 December 2017 meeting. However, as a matter of fact, this is not the position, nor it is a genuine, proper or fair reading of Mr Re's emails. Intentionally, or by mistake, the assertion by Mr Png as to "denial or reversal" by Mr Hanson is an erroneous and self-serving construct, that is then used by Mr Png as a platform to now raise new and serious allegations as to Mr Hanson's integrity, professionalism and truthfulness - that threatened to give rise to Mr Hanson's employment potentially being terminated.

[129] The third difficulty and concern is the assertion by Mr Png in the Show Cause Letter that the First Incident SMS Investigation made a positive finding that Mr Hanson "failed to carry out [his] duties correctly". This is false. No such finding or conclusion is contained on the face of the First Incident SMS Report, as closed on 2 January 2018. Further, to the extent that the First Incident SMS Report states that "the LSO should have strictly abided to the taxi-line and should have stopped after noticing the bin" and "he should have not steered the [aircraft] off the taxi-line to avoid collision solely based on his guestimate of the possible safe-gap between the [aircraft] wing tip and the bin" (SMS Inserted Words), three issues arise:

(a) Firstly, the SMS Inserted Words were inserted by Mr Png into the First Incident SMS Report after it was closed and then re-opened. They reflect bare conclusions by Mr Png, inserted on his instructions into the reopened report, in circumstances where no formal statement by Mr Hanson had been made. One of these conclusions by Mr Png is that Mr Hanson "steered the aircraft off the taxi-line to avoid collision", being a central issue in contest as part of the disciplinary process.

(b) Secondly, the SMS Inserted Words reflect conclusions made by Mr Png in mid to late November 2017, prior to the meeting with Mr Hanson on 11 December 2017. They equally reflect conclusions made by Mr Png absent any procedural fairness being afforded to Mr Hanson as part of the First Incident SMS Investigation, and inter alia, the disciplinary process. In short, even if it might be said that parts of the Show Cause Letter rely upon what was said by Mr Hanson at the meeting on 11 December 2017, the SMS Inserted Words identify that Mr Png had already formed a view as to Mr Hanson's conduct prior to ever hearing from him. If that be the case, one wonders why Mr Png would need to instruct the REX HR department to engage in a process involving correspondence and disciplinary interviews that appear to have, as their core purpose, Mr Hanson making admissions that only serve to reinforce Mr Png's mid to late November 2017 conclusions, and have Mr Hanson engage in acts of self-loathing (i.e. via Mr Hanson accepting Mr Png's conclusions, taking ultimate almost unreserved responsibility for the First Incident, and then apologising for errors, mistakes and failings).

(c) Thirdly, and flowing from (b), the SMS Inserted Words seek to "blame" Mr Hanson for the First Incident, in circumstances where there were a whole raft of deep systemic failures leading to the First Incident (for example, incorrect taxi and storage zone line markings). In short, the SMS Inserted Words suggest that despite any systemic failures concerning the First Incident, Mr Hanson is to blame because he did not do what Mr Png considered he should have done. This conclusion (by Mr Png) is to be compared to an assessment under the JRC Tree as to whether another LAME with the same training, qualifications and experience, in the circumstances at the time of the First Incident, "could be sure" that they would not have committed the same, or similar, mistake or unsafe act, including by reference to "Just Culture" principles.

[130] The fourth difficulty and concern is the assertion by Mr Png that the First Incident SMS Investigation made a positive finding that Mr Hanson had been "negligent". This is completely false. There is no finding of negligence in relation to Mr Hanson concerning the First Incident, either pursuant to the First Incident SMS Investigation, or on the face of the First Incident SMS Report (as closed on 2 January 2018). The making of such a serious assertion, absent any foundation to do so, is uncalled for and completely unreasonable, especially given its consequences for Mr Hanson's status as a LAME (with relevant authorisations), and reputation (both personally and professionally).

[131] On 2 March 2018, Mr Sowter wrote to Mr Png setting out some of the above difficulties and concerns in respect of the Show Cause Letter and advised that if the disputed issues between the parties could not be resolved, the ALEA would notify the Commission of a dispute.[134]

[132] On 13 March 2018,[135] Mr Png responded to Mr Sowter's letter of 2 March 2018. In that letter Mr Png asserted:

(a) The First Incident SMS Investigation "determined that [Mr Hanson] did steer away from the line".

(b) That the ALEA's position that a safety investigation be conducted and closed prior to a disciplinary process being commenced was not based upon any express requirement to do so.

(c) That Mr Hanson had been uncooperative at the meeting on 1 November 2017.

(d) Reiterated Mr Png's view that there is an inconsistency between Mr Re's emails and Mr Hanson's statements made at the 11 December 2017 meeting, leading to a loss of trust and confidence by REX in Mr Hanson's integrity and professional capabilities.

(e) Advised that REX's determination or conclusion that Mr Hanson had "failed to carry out his duties correctly and his actions on this day were negligent" are based upon Mr Hanson's responses at the meeting on 11 December 2017. This is to be contrasted with the Show Cause Letter which states that these determinations and conclusions were made as part of the positive findings of the First Incident SMS Investigation (as closed on 2 January 2018).

(f) Reiterates that Mr Hanson still needs to respond to the matters raised in the Show Cause Letter, including as to why his employment should not be terminated.

[133] In my view, all of the assertions and conclusions contained in Mr Png's letter of 13 March 2018 are infected by the same difficulties and concerns identified in the Show Cause Letter. Indeed, it is appropriate to highlight that the 13 March 2018 letter confirms the serious concern that the Show Cause Letter falsely represented that the First Incident SMS Investigation found that Mr Hanson failed to carry out his duties correctly on 3 July 2017, and that his actions on this day were negligent. In doing so, it equally identifies that such a determination and conclusion was one made by Mr Png as part of the disciplinary process, and not the safety investigation process.

[134] On 16 March 2018, the ALEA filed a dispute with the Commission. It appears to be uncontentious that the outcome of this dispute was that a further meeting would occur to finally allow Mr Hanson to give his official account of the First Incident, and that any response from Mr Hanson in relation to the Show Cause Letter would be suspended.

[135] Mr Hanson provided his written account of the First Incident at a further meeting on 9 May 2018 attended by himself, Mr Sowter, Mr Kendall, Mr Png, Ms Penglis, and Ms Zaragoza (as note taker). Whilst the written account is dated 3 July 2017, it was provided at the 8 May 2019 meeting.[136] Apart from a reference as to whether he noticed Mr Steer in the hangar, (albeit not noticing him waving on approach), Mr Kendall confirmed in his evidence that the written statement by Mr Hanson is an accurate reflection of what Mr Hanson has been stating as to his version of First Incident all along.[137] Key matters of note from Mr Hanson's written account of the First Incident, and the discussion at the meeting are:[138]

(a) Mr Hanson observed that the marked storage zone on the left of the aircraft was congested in the usual manner, and that he perceived there was nothing unusual that stood out as being in the way.

(b) Mr Hanson, when negotiating the right-hand curve in the taxi-line maintained one nose wheel on the taxi-line and one nose wheel off the taxi-line, i.e. the position of the aircraft was to the right of the taxi-line, but still on the taxi-line (again noting allowance is made for an aircraft to taxi up to 1.5 metres off either side of the taxi-line).

(c) Taxiing to the right of the taxi-line is Mr Hanson's normal practice in the area of the tarmac where the relevant storage zone is marked out. This is because there is room on the right to do so, whilst still staying on the taxi-line.

(d) Mr Hanson noticed that the industrial bin had its lid up, so he paid more attention than normal to it. However, the position of the industrial bin was not aligned from that where it might ordinarily be positioned in the storage zone. From Mr Hanson's view from the elevated cockpit, the industrial bin appeared to be inside the marked line. His assessment was that whilst the clearance between the wing-tip and the industrial bin might be close, there was still sufficient wing-tip clearance if he maintained the taxi of the aircraft on the right of the taxi-line (but still having the left nose wheel on the taxi-line). This is consistent with Mr Hanson's assumption that the taxi-line markings that are required to be adhered to provide, in and of themselves, reliable and sufficient clearance between the wing-tip and the double yellow boundary line of the storage zone line markings, including an extra buffer zone for error tolerance. In short, Mr Hanson worked on the assumption, in accordance with taxiing procedures and taxiing training, and pursuant to his previous experience with taxiing in that area of the tarmac, that the tarmac lines, as actually marked-out, provided clearance for an aircraft with a 23-metre wingspan (including an additional clearance beyond that of at least a further 1.5 metres). Indeed, this is what the tarmac markings themselves indicated. As it turned out, the SAAB 340B aircraft Mr Hanson was taxiing has a 22.75 metre wingspan, but the tarmac markings between the taxi-line and the storage zone double yellow line markings were actually marked for a 21-metre aircraft (despite being labelled as fit for clearance in respect of a 23-metre aircraft). I observe here that these incorrect and inadequate taxi-line and storage zone markings had been in place for around five years or more (i.e. subsequent to REX replacing its 21 wing-span aircraft fleet with the 22.75 aircraft wing-span fleet). It follows that the line markings, for five years, were in fact erroneous. It equally follows that the taxiing procedures, including as taught as part of REX taxiing training, would be difficult for anyone to follow when taxiing through that part of the tarmac for around five years. In other words, the First Incident reflects a fundamental and systemic breakdown in safety at REX, being one that must only have been avoided over a five-year period by regular and repeated taxiing of aircraft in that area of the tarmac consistent with the manner in which Mr Hanson was taxiing his aircraft on 3 July 2017.[139] The fact that the First Incident crystallized and identified the problem, it seems to me, is one of statistical luck for REX. Further, the fact that the safety deficiency only resulted in a broken wing-tip strobe light is very fortunate. The latent safety deficiency in line markings may well have resulted in damage or injury much (much) more significant.

(e) An apprentice prior to Mr Hanson commencing work on 3 July 2017 identified the open lid of the industrial bin as a potential hazard. The apprentice went to close the bin lid but was distracted and did not get around to doing so.[140]

[136] On 20 May 2018, Mr Png sent Mr Lim an email setting out his summary of the events concerning the First Incident to date and asking Mr Lim "for your guidance pls. Thanks".[141] In that email, Mr Png advises Mr Lim that:

"(a) Mr Hanson has been uncooperative during the investigation;

(b) the ALAEA has fought aggressively during the disciplinary process;

(c) the Show Cause Letter was issued to Mr Hanson, as instructed to occur by Mr Lim, after Mr Hanson refused to answer questions, and the ALAEA brought a dispute to the Fair Work Commission;

(d) it came to light during the discussion with Mr Hanson at the 8 May 2018 meeting that the taxiing of an aircraft allows for "tolerance of +/- 1.5m from the centreline" as per the REX taxiing training manual;

(e) there is a systemic problem with the line markings on the tarmac between the taxi-line and the storage zone line (i.e. there is only about 0.4 metres of clearance when there should be at least 1.5 metres).[142] This systemic problem has been in existence for around 5 years (i.e. since REX introduced aircraft with a wider wingspan). Mr Png is unable to explain why this systemic problem has not come to REX's attention before the First Incident;

(f) the line markings on the tarmac between the taxi-line and the storage zone line have been remarked so as to now provide 2 metres of clearance for REX aircraft;

(g) the industrial bin should have been placed right inside the line of the storage zone by the bin contractor;

(h) notwithstanding the systemic problems in terms of the inadequate clearance on the line markings, and the poor placement of the industrial bin, Mr Hanson:

(i) is an "experienced [aircraft] taxi holder cum (sic) Trainer cum (sic) Assessor";

(iii) made a poor/wrong judgement (by trying to navigate a tight clearance);

(iv) should have been aware there was less than 1.5 metres of clearance;

(vi) took a chance without reason, so is "professional negligence";

(viii) has not formally admitted his mistake in writing (likely misguided by the ALAEA).

(i) in view of the foregoing, Mr Hanson should be issued with a warning and have his aircraft taxiing, trainer and assessor authorisation (along with the allowances that are attached to same) removed. This will send an appropriate signal to all in REX engineering."

[137] What is highlighted at sub-paragraph (d) above is the complete misapprehension that Mr Png had been proceeding upon prior to receiving Mr Hanson's response. In other words, each of the disciplinary meetings and related correspondence had been proceeding on the basis of whether Mr Hanson was on the taxi-line, steered to the right of the taxi-line, or steered away from the taxi-line. However, the REX taxiing procedure manual allows for an aircraft to be taxied on +/- 1.5m tolerance of the taxi-line.[143] In other words, the First Incident did not involve a question as to whether Mr Hanson did not follow taxiing procedure, but whether he perceived, or should have perceived, the open lid of the industrial bin as an obstacle and stopped accordingly.

[138] On the issue of issuing a warning to Mr Hanson in relation to the First Incident so as to send a signal to REX engineering employees, Mr Kendall deprecated the behaviour, and agreed that such behaviour was "very unusual"; contrary to "Just Culture" principles; and inconsistent with REX's safety management system.[144] I concur with Mr Kendall's assessment in this regard.

[139] On 31 May 2018, consistent with the recommendation in the email to Mr Lim on 20 May 2018, Mr Hanson was issued with a "written warning" (signed by Mr Png) in relation to the First Incident for "professional negligence".[145] Consistent with Mr Png's most recent awareness of the +/- 1.5m tolerance of the taxi-line, the finding of professional negligence was grounded in the following statement in the warning letter:

"You have explained that the tightest area for clearance during the taxi is near the light pole situated at the north east point of the equipment parking area and that you noticed the bin lid was open. After careful consideration, it has been decided you will receive this Written Warning for professional negligence."

[140] The warning also stated that should further negligence occur, or Mr Hanson breach REX policies and procedures or his employment obligations, disciplinary action, up to termination of employment may result. It also stated that Mr Hanson's profit share may be revoked or reduced due to the warning (being a sanction or punishment in addition to the warning). Finally, Mr Png promised Mr Hanson in the letter that his Taxiing Authority would be re-instated after successful completion of retraining, however, he did not give a timeframe for this to occur.

[141] On 14 June 2018, the ALEA wrote to Mr Png advising that it disputed the finding as to professional negligence, and the warning (including on the basis of a failure to apply Just Culture principles).[146] In his response dated 17 July 2018 (i.e. over a month later), Mr Png advised that the warning, and the finding as to negligence, stood. Concerningly, part of the reason Mr Png determined that the warning and the finding as to negligence would not be withdrawn was on the basis that because Mr Hanson knew there was a 1.5 metre tolerance off the taxi-line (as per the REX taxiing procedure manual), Mr Hanson should have been aware there would be difficulty with the tolerance in that area of the tarmac and should have stopped the aircraft. The problem with this assertion by Mr Png is that it appears to suggest that Mr Hanson was aware, or ought to have been aware, that the line markings between the taxi-line and the storage zone were wrongly marked (being information that Mr Hanson, Mr Png, and everyone else at REX had only became aware of after the First Incident had occurred).[147]

[142] On 14 August 2018, the ALAEA filed a dispute with the Commission in relation to the warning issued to Mr Hanson concerning the First Incident, and the finding of negligence.

[143] On 5 September 2018, the dispute in relation to the warning and the finding of negligence was resolved as a result of a file note (dated 5 September 2018) being placed upon Mr Hanson's personnel file (First Incident File Note).[148] That file note does not mention the circumstances (for example, root causes) related to the First Incident,[149] although it does remove any finding as to negligence on the part of Mr Hanson.

[144] At the hearing, Mr Png gave the following evidence:

(a) the REX human resources department is not required to abide by REX's Exposition;[150]

(b) despite what is contained in the REX Exposition in relation to sanctions and disciplinary action arising from a safety incident or a maintenance error, the REX human resources department can form a different conclusion as to whether disciplinary action or other sanctions should occur;[151]

(c) consistent with (a) and (b) above, on the issue of what the crux of the First Incident was from Mr Png's perspective (as General Manager Engineering and REX AMO Accountable Engineering Officer), Mr Png deferred to REX's human resources department:

The point is he was taxiing the aircraft. He hit something. He's not meant to hit something. It's his fault. That's really what all of this is about, isn't it?

(d) Mr Png initially, and wrongly, considered that Mr Hanson had breached the REX taxiing procedure because he had not stayed directly on the taxi-line. It was news to Mr Png, at the meeting on 9 May 2018, that a deviation of up to 1.5 metres each side of the taxi-line was authorised under the REX taxiing procedure.[152]

(e) Mr Png wanted REX's treatment of Mr Hanson to be an example, or a "lesson learned for all".[153]

[145] The Respondents contend that there is nothing unreasonable in relation to the approach taken by REX in relation to the First Incident. In setting out the Respondents' submissions in this regard,[154] I have set out my conclusion in respect of same under each point of submission (i.e. having regard to the facts and circumstances as set out in this decision):

(a) The Respondents were entitled to investigate the First Incident in the manner they did.

Commission conclusion: This submission must be rejected. As already set out in this decision, the manner in which the First Incident was investigated identifies significant inconsistencies in approach, unsubstantiated findings, an absence of procedural fairness, substantive unfairness, bad faith, a failure to comply with the REX GSMSM, the MEIP and the MOS145, and a failure to apply "Just Culture" principles.

(b) The Respondents were entitled to be legitimately and reasonably concerned that Mr Hanson had not been honest during the investigation process.[155]

Commission conclusion: I reject this submission for the reasons set out in of this decision. The suggestion that Mr Hanson was dishonest, untruthful, misleading, uncooperative, or otherwise acted in bad faith at any point in the events that have happened is contrary to the evidence.

(c) Mr Hanson refused to accept responsibility for the First Incident.[156]

Commission conclusion: This submission is rejected. Mr Hanson expressed contrition and responsibility in relation to the First Incident shortly after it occurred to Mr Kendall.

(d) The fact that REX withdrew the written warning is not an admission that Mr Hanson did not deserve to be dismissed or warned in relation to the First Incident, including on the basis of his conduct during the investigation process.[157]

Commission conclusion: It is not clear what point this submission seeks to make. Whether or not REX makes such an admission or not, I do not consider there is any basis for REX to continue to maintain before this Commission that Mr Hanson deserved to be dismissed or warned in relation to the First Incident. This is especially so having regard to the root causes and human factors that led to the First Incident, and the application of the REX GSMSM, the MEIP, and "Just Culture" principles.

(e) Mr Hanson's belief that he has been bullied at work in relation to the First Incident is not a "reasonable belief".[158]

Commission conclusion: I reject this submission. In the events that have happened to Mr Hanson in relation to the First Incident, including the disciplinary process that the Respondents have adopted in dealing with the First Incident, I consider that there is ample evidence for me to comfortably find that Mr Hanson had a rational and wholly reasonable basis to hold the belief that he was being treated unreasonably, unfairly, wrongly, and bullied.

(f) The Respondents' conduct quite clearly constitutes reasonable management action.[159]

Commission conclusion: I reject this submission. The submission is made absent substance and/or appropriate foundation on the evidence. As already set out in this decision, the manner in which the First Incident was investigated identifies significant inconsistencies in approach, unsubstantiated findings, an absence of procedural fairness, substantive unfairness, bad faith, a failure to comply with the REX GSMSM, the MEIP and the MOS145, and a failure to apply "Just Culture" principles.

(g) REX is entitled to place file notes on the personnel files of employees, irrespective of what the terms of the GSMSM may say.[160]

Commission conclusion: Whether or not Rex can place a file note on an employee's personnel file misses the point. In this case, the file note in relation to the First Incident arises from a disciplinary process. The file note on Mr Hanson's personnel file in relation to the First Incident cannot be minimised to just a file note.

(h) There is nothing in the REX GSMSM or the SMS process that contains an express prohibition on a disciplinary process being conducted at the same time as a safety investigation process.[161]

Commission conclusion: That may be so, however, if a disciplinary process is to be conducted at the same time as a safety investigation process, that does not mean that the safety investigation process (as prescribed under the REX GSMSM and the MEIP) can be modified, displaced or cast aside. To do so would be in contravention of, or likely compromise, the process required to be followed and adhered to as part of a safety investigation under the GSMSM and the MEIP. The issue is not what is expressly said can be done, it is what should or needs to be done to ensure compliance with all legislative requirements.

(i) The First Incident relates to a breach of the REX taxiing procedure, not a question of negligence.[162] This breach of policy arises because Mr Hanson noticed the lid of the industrial bin open, and once he noticed the open bin lid, he should have stopped taxiing immediately.[163]

Commission conclusion: I reject the submission that Mr Hanson has breached the REX taxiing procedure in relation to the First Incident. The evidence of Mr Hanson, Mr Kendall and Mr Margiotta (the RSO) is that Mr Hanson followed the REX taxiing procedure. Mr Png's assertion that Mr Hanson breached the REX taxiing procedure is founded on the basis that Mr Hanson saw an obstacle (the industrial bin) and proceeded to taxi the aircraft anyway. On the balance of probabilities, I do not accept that I can make a finding that Mr Hanson considered the open lid of the industrial bin to be an obstacle. Further, I consider that the root causes and human factors weigh heavily against any finding that Mr Hanson engaged in any wrong-doing in relation to the First Incident. Yes, he made a mistake, or committed an error of judgement, but in the overall circumstances, I do not consider that I could be sure that someone in the same position as Mr Hanson (with the same qualifications and experience) would not have committed the same or a similar mistake. Of course, the Respondents' submit that my conclusion in this regard is not relevant or does not really matter in that reasonable minds can differ. That is correct up to a point. There must be scope on the objective facts for such reasonable minds to differ. In this case, I do not accept that the facts support a different conclusion, especially having regard to the evidence of Mr Kendall (a subject matter expert).

(j) Mr Hanson only received a file note, and no finding of dishonesty or negligence was made in that file note. In other words, the file note is not a sanction and innocuous.

Commission conclusion: Unreasonable conduct is as much about the process, as it is the outcome. From a process point of view, Mr Png's conduct has been, in my view, unarguably unreasonable from beginning to end. From an outcome point of view, the file note has been used to remove and/or deny Mr Hanson's authorisations. If the process leading to the issuing of the file note is unreasonable, and the file note itself leads to unreasonable outcomes (e.g. the permanent removal of authorisations (contrary to "Just Culture" principles) as a sanction, punishment, or to send a message), I do not accept that the file note is innocuous.

[146] The approach by Mr Png to the First Incident, and his near relentless pursuit of Mr Hanson to admit mistake and wrong-doing, accept responsibility, and show personal remorse, has been uncompromising, inconsistent, unfair and uncooperative. In taking this approach, Mr Png has cast aside basic notions of procedural fairness, and REX's promises to CASA under its Exposition. In doing so, he has acted contrary to the provisions of REX's GSMSM, the MEIP, the MOS145, and Just Culture principles. The end result is, on any analysis, unreasonable conduct by Mr Png towards Mr Hanson in relation to the First Incident (including the various steps taken in dealing with the First Incident), carried out over an unnecessarily lengthy period of 14 months, involving multiple disciplinary meetings, and two separate dispute applications before this Commission. It is not conduct that can be categorised as reasonable management action carried out in a reasonable manner.

[147] The approach taken by Ms Penglis to the First Incident equally constitutes unreasonable behaviour on a repeated basis. In this regard, my finding is that whilst Ms Penglis appears to have been conducting a disciplinary process on the instructions of Mr Png, the manner in which she has conducted that process, even on instructions, has been contrary to the GSMSM, including in terms of the application of "Just Culture" principles. This is evident pursuant to her lack of knowledge of the SMS Investigation process when conducting the interviews with Mr Hanson. I do not accept the proposition that because Ms Penglis may have been acting on a mistaken belief that her conduct thereafter can be said to become reasonable. Indeed, if she engages in a disciplinary process absent of the awareness of the GSMSM and thereafter conducts herself inconsistently with the requirements of the GSMSM, then such behaviour is in my view unreasonable.

[148] On 23 October 2018, the pilot of a REX aircraft (VH-ZRL) raised a defect in an Aircraft Maintenance Log (AML). In the AML, the pilot used the words "DUST COVER FIRST OFFICERS CONTROL COLUMN OBSERVED TO BE MISSING" (Dust Cover AML).

[149] The Dust Cover AML had been marked by the pilot who completed the AML as "deferred" (meaning it was non-safety critical, and could be rectified at a later date (within 4 days of 23 October 2017)). In the meantime, as the AML was non-safety critical, the aircraft could remain in normal service.

[150] On 26 October 2018, Mr Hanson was assigned by his supervisor, Mr James Roden, to again re-defer (i.e. further extend the rectification of) the already deferred Dust Cover AML. Upon attending the aircraft and looking for the stated "dust cover", Mr Hanson noticed that the "dust boot", which protects and covers the base of the pilot's steering column, was torn (i.e. defective). Given he did not notice any "missing" parts, Mr Hanson considered that the pilot in the Dust Cover AML had misdescribed the actual defect in the AML (i.e. the pilot had written "dust cover" missing when he actually meant "dust boot" torn or defective). Mr Hanson considered that the dust boot needed to be replaced immediately given that a stray item/s had the potential to fall through the torn dust boot, and into the base of the steering mechanism, causing the steering column to potentially jam. In other words, Mr Hanson formed the view that the torn dust boot was in a defective form such that it needed to be immediately replaced (and not further deferred) if the aircraft was to remain in service.

[151] Prior to replacing the dust boot, Mr Hanson spoke to his supervisor, Mr Roden, and explained the situation. Mr Roden agreed that the dust boot should be replaced immediately. Mr Hanson quickly moved to find a new dust boot, and went about replacing it. As he was half-way through replacing the dust boot, the flight crew arrived to prepare the flight for a passenger service. Mr Hanson hurriedly completed the dust boot replacement, double checked the steering column for free movement, and performed a cockpit loose equipment check. He considered he had rectified the issue in the Dust Cover AML, so he closed it with the following words "RH CONTROL COLUMN DUST BOOT REPLACED IAW AMM 20-10-00 CONTROL COLUMN CHECKED FOR FULL & FREE MOVEMENT - OK".

[152] On 29 October 2018, CASA performed a routine audit of REX's AMLs. During this audit, CASA identified a discrepancy in the Dust Cover AML. The discrepancy was that the Dust Cover AML had been closed without rectifying the actual defect (Second Incident).

[153] On 30 October 2018, a defect with the steering column was raised in a new AML by REX Engineering which read "RH PILOT CONTROL COLUMN YOKE PLUG MISSING" (Yoke Plug AML). In other words, the Yoke Plug AML correctly stated what the pilot who completed the Dust Cover AML should have stated.[164] Albeit no one at REX checked that this was indeed the defect with the pilot who had originally completed the Dust Cover AML.

[154] The Yoke Plug AML was deferred by REX (on 30 October 2018) as being a non-safety critical defect.[165] In essence, this was a further deferral of the original Dust Cover AML, to an 'A' Check deferral (meaning that the yoke plug defect was not required to be rectified until the aircraft was next serviced in the hangar - post the completion of a specific number of additional flying time hours or flights). As it turns out, the Yoke Plug AML was not resolved by REX until 21 December 2018 (i.e. just short of two months after the issue with the Dust Cover AML was first raised by the CASA audit). In other words, the Yoke Plug AML was not a defect that prevented the aircraft from continuing to undertake normal passenger flights without rectification of the defect.

CASA Safety Observation in relation to the Second Incident

[155] On 18 December 2018 CASA issued REX with a "Safety Observation" document (CASA Safety Observation) in relation to the Dust Cover AML (that had been first raised by CASA with REX on 29 October 2018).[166] A Safety Observation issued by CASA is used to formally advise an AMO of "latent conditions resulting in system deficiencies that, while not constituting breach, have the potential to result in a breach if not addressed, and/or, potential areas for improvement in safety performance".[167] In this case, the CASA Safety Observation read (in part):

"It appears that the engineer [Mr Hanson] originally misidentified the defect due to the terminology used in the [Dust Cover] AML".[168]

[156] On 4 January 2019 an SMS Investigation was opened by Mr Michael Bradley (REX Sydney Line Production Supervisor) into the Second Incident (Second Incident SMS Investigation).[169] The initial risk rating for the investigation was stated to be "Very Low".[170] In relation to the absence of the yoke plug on the steering column, the SMS states: "there is no risk for a control cable jam to occur, no real safety or flight implication".[171]

[157] In response to the CASA Safety Observation, on 8 January 2019, REX responded to CASA via a Safety Observation Report (REX SOR) which identified the risk of the misidentified defect in the Dust Cover AML as "Low Risk 4", advised that the Root Causes and the Casual Factors were both "unintentional", determined that residual risk was "Very Low Risk 2", and stated "It appears that the engineer originally misidentified the defect due to the terminology used in the AML".[172]

[158] The REX OSR also states that:

(a) the Yoke Plug AML was "cleared" (i.e. fixed and resolved);

(b) a toolbox meeting was held with relevant employees in December 2018, during which the "communication breakdown" was explained to employees, and employees were advised to clarify any ambiguous terminology in an AML via contacting the relevant crew member (e.g. pilot), or via contacting their relevant supervisor for further guidance.[173] Whilst none of REX's witnesses gave evidence as to the date of the December 2018 toolbox meeting, it must have occurred sometime between 19 December and 31 December 2018;[174] and

(c) "An SMS report has been raised and the certifying engineer [Mr Hanson] will be interviewed by the Deputy General Manager Engineering [Mr Mark Burgess] as part of a Maintenance Error Investigation". It is noted that the REX OSR does not refer to a disciplinary process being commenced in relation to the Second Incident. It is also noted that a Maintenance Error Investigation requires the MEIP to be followed.

Statement of Mr Hanson concerning the Second Incident

[159] On 8 January 2019, Mr Hanson was asked to provide a written statement in respect of the Second Incident for the purposes of the Second Incident SMS Investigation (Second Incident Statement).[175] He did so on 10 January 2019, however, given the manner in which the file was formatted, it took REX until around 15 January 2019 to open it.[176] Despite being supplied by Mr Hanson on 10 January 2019, the Second Incident Statement is dated 4 January 2019.

[160] In the Second Incident Statement, Mr Hanson relevantly states:

(a) After inspecting the control column, "[Mr Hanson's] thoughts were that the pilot had not correctly written the defect and had written the word 'missing' instead of the word 'damaged'."

(b) He had experienced several incidents where pilots had incorrectly completed an AML, the AML had spelling errors, and/or technical aircraft parts referred to in the AML were incorrectly or unusually named. In those cases, a certain amount of interpretation is always required by the engineer concerned.

(c) In view of the foregoing, Mr Hanson considered that he identified the part (dust boot, and not dust cover) that the pilot was referring to in the AML. He does not recall noticing the "yoke plug" to be missing.

(d) He contacted his supervisor, Mr Roden, to advise that the defective (torn) dust boot cover was not acceptable to be again re-deferred. Mr Roden agreed that the dust boot should be replaced prior to the next passenger service for the aircraft that day.

(e) Mr Hanson went about replacing the dust boot and resolving the defect, but there was not much time to do so given that the aircraft was soon to commence a passenger service that day. Under time pressure, Mr Hanson completed the task just as passengers were arriving to board the aircraft.

REX commences disciplinary process in relation to the Second Incident

[161] On 22 January 2019, being nearly three months after REX was notified by CASA of the Second Incident, and whilst the Second Incident SMS Investigation was open and on-going, Mr Hanson was issued a letter to attend a meeting with Mr Mark Burgess (REX Deputy General Manager Engineering) and Ms Penglis on 30 January 2019 in relation to the Second Incident.[177] The letter stated; "As disciplinary action may be considered, you are entitled to have a representative". No allegation against Mr Hanson is contained in this letter. The letter was signed off by "Human Resources".

[162] It is also appropriate to highlight at this point that the 22 January 2019 letter states "This [the defect] was identified by CASA during the AMO 145 audit and [is] currently subject to a [CASA] Safety Observation report". This statement is false. The REX OSR was supplied to CASA by REX on 8 January 2019 (i.e. two weeks prior to 22 January 2019). Further, despite referring to the CASA Safety Observation, the 22 January 2019 letter does not provide a copy of same to Mr Hanson. In other words, REX is asking Mr Hanson to attend a disciplinary meeting about the CASA Safety Observation in circumstances where he is not provided with a copy of it, and in circumstances where REX has failed to disclose that it supplied the REX OSR to CASA on 8 January 2019.

[163] By way of letter dated 24 January 2019, Mr Sowter of the ALAEA (on behalf of Mr Hanson) raised concerns about the 22 January 2019 letter, and the meeting on 30 January 2019. These concerns essentially related to the very same issues that the ALAEA had previously raised with REX at the initial stages of the First Incident disciplinary process (i.e. under what legislation, instrument, REX EBA and/or other policy is this process being conducted, and why is the process being conducted in this manner). In his letter, Mr Sowter requests details of the CASA Safety Observation, and details of the Second Incident SMS Investigation.

[164] On 25 January 2019, Mr Burgess responded to Mr Sowter's letter. In that letter Mr Burgess asserted that REX was conducting the process under clause 36.4 of the REX EBA, and in accordance with "MOE 2.24.3, Engineering Instruction (ME Events), and GSMSM Para 4.7.3". Pursuant to this letter, Mr Burgess confirms that REX is conducting a concurrent safety investigation and a disciplinary process at the same time. However, the letter does not identify that REX had already responded to CASA on 8 January 2019 in the REX SOR concerning the Second Incident. In other words, REX's 25 January 2019 letter represents (falsely) to Mr Hanson that the CASA Safety Observation has not been finalised or otherwise responded to by REX, and that the meeting on 30 January 2019 has, as one of its purposes, the obtaining of responses from Mr Hanson so as to finalise REX's response to the CASA Safety Observation. The letter also fails to provide Mr Hanson with details or a copy of the CASA Safety Observation, the REX OSR, or the Second Incident SMS Investigation.

Second Incident disciplinary meeting - 30 January 2019

[165] The following points are relevant to note in respect of the discussion at the meeting on 30 January 2019:

(a) REX asserts that it is contemplating disciplinary action against Mr Hanson in respect of the Second Incident, whilst at the same time seeking to gather evidence (and responses) in relation to the CASA Safety Observation, and the (open) Second Incident SMS Investigation. In other words, the 30 January 2019 meeting has multiple purposes;

(b) REX does not dispute that the torn dust boot was a defect that was correctly identified by Mr Hanson, and needed to be fixed prior to the aircraft continuing service;

(c) REX does not dispute that Mr Hanson sought to clarify the ambiguity as to the misdescribed defect in the Dust Cover AML with his supervisor, Mr James Roden, prior to replacing the dust boot and closing the Dust Cover AML. Nor is it in dispute that:

(i) Mr Hanson raised with Mr Roden the fact that it was unusual that the pilot had said in the Dust Cover AML that the misdescribed part was "missing", when it was only "torn"; and

(ii) Mr Roden did not suggest to Mr Hanson that it was unusual that the pilot had both misdescribed the defective part, and stated that it was missing (as opposed to torn),

(d) REX does not dispute that "this is the first meeting of this type of AML" as it concerns Mr Hanson's history of employment at REX;

(e) Mr Burgess stated that "CASA said this could be indicative of a bigger problem" and that CASA "didn't specify" whether this bigger problem was specific to Mr Hanson, or REX. There is no evidence to support these assertions by Mr Burgess in respect of CASA. Whilst it is trite that any safety issue may give rise to potential systemic safety issues, that may then give rise to bigger safety issues, there is no evidence that CASA ever expressly said this in relation to the Second Incident.[178] The assertion by Mr Burgess that this was said by CASA, and/or that there is ambiguity as to whether the statement was made in relation to Mr Hanson as an individual, or REX more generally as an AMO, is not only misleading, and a misrepresentation of CASA itself, but extremely concerning in that it is wholly inconsistent with "Just Culture" principles. Indeed, if CASA did have specific concerns in relation to Mr Hanson individually, one assumes that CASA would have raised such concerns in a wholly unambiguous manner with REX and/or Mr Hanson directly (which CASA did not do). These assertions by Mr Burgess as to CASA's ambiguous concerns are also being advanced without Mr Hanson being provided with the CASA Safety Observation or the REX OSR;

(f) As at 30 January 2019, no one at REX had spoken to the pilot who completed the Dust Cover AML (and misidentified the "yoke plug" as a "dust cover"). Further, despite never having spoken to the pilot, REX accepts that the Dust Cover AML misidentified the relevant defect, but considers that the actions of Mr Hanson in failing to replace the misidentified yoke plug were a maintenance error;

(g) REX considers that the issue in relation to the Second Incident concerns Mr Hanson not identifying the missing yoke plug, despite it being misidentified in the Dust Cover AML, and despite Mr Hanson legitimately identifying the torn and defective dust boot as the likely defect that the pilot had actually meant to refer to in the Dust Cover AML, and contacting his supervisor about it;

(h) Notwithstanding that an engineer who has concerns as to the clarity of a defect described in an AML being required to contact the pilot who completed the AML, or his supervisor, in this case Mr Hanson should have directly contacted the pilot who completed the Dust Cover AML (and not just his supervisor). Indeed, in this instance, Mr Burgess asserts (at the 30 January 2019 meeting) that the fact that Mr Hanson contacted his supervisor about the ambiguity in the Dust Cover AML was insufficient. It has not been explained by REX as to why this was the case (in this instance). Further, I note that REX's position is advanced in circumstances where, as at 30 January 2019, REX has made no contact with the pilot to clarify what he was actually referring to in the Dust Cover AML, and raised the Yoke Plug AML (and cleared it) prior to speaking to the pilot himself. In other words, REX engineering has:

(i) raised a new AML (Yoke Plug AML) without first speaking to the pilot as to whether the new AML being raised correctly reflects what he misidentified in the Dust Cover AML;

(ii) cleared the Yoke Plug AML, without first speaking to the pilot to confirm that the replacement of the missing yoke plug is consistent with what he misidentified in the Dust Cover AML, thus enabling the closure of the Yoke Plug AML absent any potential on-going or outstanding defect issue;

(iii) commenced a disciplinary process against Mr Hanson in relation to the Second Incident without speaking to the pilot, in circumstances where REX has essentially engaged in the same conduct that it is now considering taking disciplinary action against Mr Hanson for (i.e. clearing an AML that was raised from an initial misdescription in a previous AML, prior to speaking with the pilot about the previous AML); and

(iv) responded to CASA in the REX OSR without first speaking to the pilot.

[166] In addition to the foregoing, during the 30 January 2019 meeting, Mr Burgess initially actively resisted and pushed back upon suggestions by Mr Sowter that the disciplinary process should not continue until REX has first spoken to the pilot. In other words, Mr Burgess commenced the meeting on 30 January 2019 on the basis of various facts that he maintained should simply be accepted or assumed by Mr Hanson, absent clarification from the pilot who actually completed the Dust Cover AML.

[167] It is equally appropriate to highlight that Mr Burgess makes statements at the 30 January 2019 meeting that concern not only to the Second Incident, but also become relevant to the Third Incident (as further discussed later in this decision). Such statements are:

"You don't always have to speak with crew [pilots], if you can't the airplane stays, if not sure speak to [the] supervisor."

"When you are in that position again you need to seek guidance."

"You need to clarify with the crew or MOCC. Safety is paramount, don't feel pressure to not ground aircraft. MOCC probably would have tried to contact the captain."

[168] In relation to the Second Incident, it is not clear why these statements were being advanced by Mr Burgess absent relevant context. As Mr Hanson stated at the 30 January 2019 meeting, "I went to the aircraft [and] I saw an issue with the item [as described in the Dust Cover AML]. I didn't think it was fishy enough to warrant grounding the aircraft. I was trying to do my job in a timely manner". Obviously, Mr Burgess is making the general point that an ambiguous AML needs to be clarified with the pilot who wrote it, or a supervisor at the REX engineering department. However, the context for the Dust Cover AML and/or the Yoke Plug AML is that they both essentially relate to a missing yoke plug on an aircraft steering column that has always been non-safety critical. The missing yoke plug was originally deferred for up to four days, and then again deferred on an A-Check basis, meaning that the defect was not rectified for nearly two months (even after CASA drew it to REX's attention). This is not a case in which a misdescribed AML concerns a safety critical issue, or a safety issue that is of such significance that it cannot be deferred, or would cause (on any analysis) an aircraft to be grounded or unsafe. One would assume that the Second Incident is merely a very good example of a systemic error in the completion of AMLs, arising from a misdescription and miscommunication that has the potential to arise in other (potentially more safety-critical AMLs), and provides lessons to all REX engineers when dealing with AMLs completed by pilots or others.[179] In short, the Second Incident is not one that only Mr Hanson can learn from, but that all REX engineers can learn from to improve safety and systems at REX. In this way, the Second Incident moves further and further away from questions of blame and/or potential disciplinary action, and more and more towards the direct application of "Just Culture" principles.

[169] On 31 January 2019, Mr Burgess asked Mr Michael Bradley (Mr Hanson's Line Supervisor) to arrange for some training concerning matters arising from the Second Incident. On 14 February 2019, Mr Bradley advised Mr Hanson that in order to finalise the Second Incident SMS Investigation, Mr Hanson needed to sign-off on the training he had completed. During that meeting Mr Bradley indicated that his understanding was that Mr Hanson signing-off on the training should be the end of any further processes or issues in relation to the Second Incident, and that the Second Incident SMS Investigation was to be closed.[180] Albeit, I note that Mr Bradley was not the decision-maker in this regard.

Mr Burgess makes inquiries of the pilot who completed the Dust Cover AML

[170] On 1 February 2019, Mr Burgess made inquiries from the pilot who completed the Dust Cover AML as to what "terminology was correct" on the AMLs concerning the Second Incident. The inquiry appears to have been answered the same day, i.e. the pilot was referring to the "yoke plug" and not the misdescribed "dust cover".[181]

ALAEA request for details and documents rejected by Mr Burgess

[171] On 4 February 2019, Mr Sowter wrote to Mr Burgess, setting out his understanding of the facts and events to date in relation to the Second Incident. In that letter, Mr Sowter relevantly stated:

"CASA have requested, and are expecting, REX to report back to them on the investigation and the [CASA Safety Observation]."

"As a matter of procedural fairness, and in accordance with clause 36.4.2 of the [REX EBA], we ask that you please provide a copy of the [CASA Safety Observation] and any other information relevant to the [Second Incident] SMS Investigation that you may rely on in making your decision about whether to proceed with disciplinary action by 18 February 2019."[182]

[172] On 15 February 2019, Mr Burgess advised Mr Sowter that REX would not be suppling Mr Hanson with a copy of the CASA Safety Observation and would be requiring Mr Hanson to attend a further meeting to discuss the Second Incident.[183] Mr Burgess did not seek to respond to, or otherwise clarify, any of the other matters set out in Mr Sowter's letter of 4 February 2019. He did, however, confirm that the pilot who wrote the Dust Cover AML had been spoken to, and that to "assist in concluding the [Second Incident SMS Investigation], Mr Hanson had been asked to complete some training".

[173] On 19 February 2019, having received Mr Hanson's signature on the training document, Mr Burgess moved to finalise the Second Incident Investigation. It was ultimately closed on 6 March 2019. There is no evidence that Mr Hanson was advised that the Second Incident SMS Investigation had been closed at this point in time. The outcome of the investigation, as set out in the Second Incident SMS Investigation Report was as follows:

(c) A toolbox meeting was held with relevant employees in December 2018, during which the "communication breakdown" was explained to employees, and employees were advised to clarify any ambiguous terminology in an AML via contacting the relevant crew member (e.g. pilot), or via contacting their relevant supervisor for further guidance.[184]

Second Incident SMS Investigation Report closed, but later added to by Mr Png

[174] Although the Second Incident SMS Investigation was closed on 6 March 2019, Mr Png made a further entry to the Second Incident SMS Report on 22 May 2019. The records for the Second Incident SMS Investigation do not identify that it was ever re-opened after 6 March 2019, hence it is unclear as to how Mr Png's additional entry was made or is otherwise justified. Indeed, Mr Png's 22 May 2019 entry is absent any express foundation (that I can identify) under the Second Incident SMS Report. It reads:

"I have reviewed the investigation and found it to be in order, i.e. it is negligence on the part of Stephen Hanson. Mark did carry out the investigation according to the Part 145 boundary accordingly."

[175] There is no evidence that this addition was ever reviewed or adopted by the REX investigators who were involved in undertaking the Second Incident SMS Investigation.

Further correspondence concerning the Second Incident

[176] On 26 February 2019, Mr Burgess sent a further disciplinary letter to Mr Hanson in relation to the Second Incident, albeit this letter contained no allegations against Mr Hanson.[185] The letter stated that a meeting was to occur on 12 March 2019, and that the purpose of the meeting was to interview Mr Hanson in relation to his certification of the Dust Cover AML, to update Mr Hanson on feedback from the pilot who drafted the misdescribed part of the Dust Cover AML, and to update Mr Hanson on the Second Incident SMS Investigation (and its outcome).

[177] Mr Sowter replied to Mr Burgess on 1 March 2019, attempting to find out exactly what was occurring. Further correspondence ensued between Mr Sowter and Mr Burgess. I observe that Mr Sowter's correspondence seeks clarifications, particulars and documents, most of which are either ignored or not addressed in reply correspondence by Mr Burgess.[186] On 8 March 2019, Mr Burgess advised Mr Sowter that he will come back to him on the issues Mr Sowter has raised, and that the meeting originally set down for 12 March 2019 was to be postponed.

Second Incident disciplinary letter containing allegations - 10 April 2018

[178] On 10 April 2019, Mr Burgess sent yet a further letter to Mr Sowter.[187] The letter, nearly six months after the Second Incident occurred, and over a month after Mr Burgess advised Mr Sowter, he would get back to him, finally lays REX's cards on the table as to what it is alleging against Mr Hanson in relation to the Second Incident.

[179] In the 10 April 2019 letter, Mr Burgess advises that "the allegation or the charge" against Mr Hanson is that a maintenance error has occurred, and that Mr Hanson was negligent in his duties and responsibilities as a LAME. This, it is said by Mr Burgess, arises by reference to an analysis under the JRC Tree, because Mr Hanson did not clarify the Dust Cover AML with the pilot, the Maintenance Operations Control Centre, or his supervisor (noting Mr Burgess says that whilst Mr Hanson did discuss his determination to replace the dust boot with his supervisor, he did not discuss the ambiguity in the Dust Cover AML with his supervisor). Further, Mr Hanson closed the defect without actually rectifying it, and thus failed to use a reasonable level of skill commensurate with his experience. I note that there is no evidence from Mr Roden as to what Mr Hanson discussed with him about the misdescription in the Dust Cover AML. However, there is evidence that Mr Hanson did discuss with Mr Roden both the misdescribed part, and the fact that the pilot had said that the dust boot was "missing" and not torn. Despite Mr Burgess advising that he would come back to Mr Sowter with a new meeting date on 8 March 2019, Mr Burgess advises on 10 April 2019 that the further meeting will now occur in just two days' time, on 12 April 2019.

[180] In his reply letter dated 11 April 2019, Mr Sowter sets out a comprehensive summary of the events that had happened in relation to the Second Incident.[188] There is no suggestion on the evidence that this summary by Mr Sowter is in any way incorrect. The letter also points out that:

(a) the ALAEA's repeated requests for relevant specified documents have either been refused or ignored for the last two months;

(b) Mr Burgess has been at best misleading, and at worst wholly dishonest, in his conduct towards Mr Hanson to date. In this regard, Mr Burgess represented to both Mr Hanson and Mr Sowter at the 30 January 2019 meeting that the CASA Safety Observation had yet to be responded to by REX. Further, Mr Sowter put this to Mr Burgess directly in his correspondence on 4 February 2019, and at no time did Mr Burgess clarify or otherwise correct the position (i.e. that REX had responded to the CASA Safety Observation via the REX SOR on 8 January 2019, being prior to Mr Hanson providing his written statement in relation to the Second Incident on 10 January 2019). Further, given that REX had refused to supply the CASA Safety Observation to either the ALAEA or Mr Hanson, the ALAEA had gone to the trouble of making a freedom of information request to CASA, the result of which was the production of the CASA Safety Observation and the REX OSR.[189] As Mr Sowter states in the 11 April 2019 letter:

"You stated at the meeting on 30 January 2019, confirmed in ALAEA correspondence of 4 February [2019], that 'CASA have requested and are expecting, REX to report back to them on the investigation and the Safety Observation Report'. You dishonestly made this statement with direct knowledge that:

• The Observation Report [CASA Safety Observation] had been closed on 8 January 2019; and

• Gary Filmer had reported to CASA on 8 January 2019 via the RCA (REX OSR] that the root cause was unintentional and likely due to the terminology used in the AML.

• Has reported to CASA that the incident was unintentional and likely because of the incorrect terminology used by the pilot; and

• Are threatening the engineer [Mr Hanson] with allegations that he was "negligent in his duties and responsibilities as a LAME" for the same incident;

The logical inference is that either [REX] has knowingly been untruthful in a report to CASA (which may be an offence under the Civil Aviation Act 1988) or, [REX] is maliciously pursuing vexatious allegations against Mr Hanson for an incident that was both; unintentional and occurred as a result of incorrect terminology used by the pilot.

In relation to the matters covered above ... the ALAEA would now inform you that the ALAEA, under the provisions of the Freedom of Information Act 1982 (FOI Act), obtained copies of the [CASA Observation Report] ... and the [REX OSR] ... which again strongly infers that REX, and/or you personally, have been intentionally dishonest."

[181] In his witness statement, Mr Burgess says that his statement at the meeting on 30 January 2019 to the effect that part of the purpose of that meeting was to enable REX to respond to the CASA Safety Observation "was inadvertent and very minor misstatement, and I refute any allegation that I was intentionally dishonest".[190] He also says that "I did not respond to that letter. At the time of receiving the letter, I only scanned through it and did not read it closely enough."[191] Given that the assertion that Mr Burgess was dishonest was never put to him in cross-examination, it is not appropriate that I make any findings in this decision to that effect. However, I find the conduct extremely concerning. The fact that Mr Burgess positively represented to Mr Hanson and Mr Sowter at the 30 January 2019 meeting that REX had yet to respond to the CASA Safety Observation, and the fact that Mr Burgess had chosen not to correct Mr Sowter's documented understanding in that regard (pursuant to Mr Sowter's letter of 4 February 2019), can hardly be categorised, on any analysis, as a minor misstatement. Rather, this was a highly significant misstatement, that in my view, poisoned the manner in which the Second Incident had proceeded to date, from both a substantive and a procedural perspective. Nor can it be said to be appropriate for Mr Burgess to seek to minimise the gravity of his failure to engage with the issues raised in the 11 April 2019 letter by stating that he only "scanned through" it, and did not read it closely. The whole foundation for the Second Incident, and the SMS investigation and disciplinary process that ensued, arises from matters that were specified in the CASA Safety Observation (after a CASA safety audit). In not advising Mr Sowter and Mr Hanson that REX had responded to the CASA Safety Observation via the REX OSR on 8 January 2019; in stating that such a response was outstanding; in not immediately supplying Mr Hanson and Mr Sowter with a copy of the CASA Safety Observation and the REX OSR; and thereafter in conducting and maintaining a disciplinary process against Mr Hanson in these circumstances, Mr Burgess' conduct is nothing short of wholly unreasonable and completely unjustifiable.

Second Incident disciplinary meeting - 12 April 2019

[182] On 12 April 2019, Mr Hanson, Mr Sean Morgan (ALAEA Legal Officer), Mr Burgess and Ms Westblade (REX HR) attended a further disciplinary meeting in relation to the Second Incident (as originally requested by REX in its letter dated 26 February 2019).[192] At this meeting, Mr Burgess asserted that the purpose of the meeting was primarily to update Mr Hanson on what the pilot had said about his misdescription in the Dust Cover AML. However, Mr Burgess had clarified this misdescription with the pilot on 1 February 2019 (over two months prior to 12 April 2019). It is wholly unexplained as to why the details of such an update would not have been immediately provided to Mr Hanson on 1 February 2019 via correspondence, or why a face-to-face meeting was required to provide the pilot's feedback. I note that Mr Burgess did not advise Mr Hanson at this meeting that he had obtained the feedback from the pilot on 1 February 2019, only that the pilot had been spoken to and clarified the misdescription.

[183] Mr Burgess, at this meeting, also advised Mr Hanson, for the first time, that the Second Incident SMS Investigation had been officially closed.[193] Again, on Mr Burgess' evidence, the Second Incident SMS Investigation was closed on 6 March 2019 (more than a month prior to the 12 April 2019 meeting). As at the time the Second Incident SMS Investigation was closed (on 6 March 2019) no finding of negligence was made in the Second Incident SMS Investigation Report. There is no evidence that Mr Hanson was provided with a copy of the Second Incident SMS Investigation Report (as required by the MEIP when an SMS investigation is closed). Nor is there any evidence that Mr Hanson was provided with any of the details of the Second Incident SMS Report (prior to the 12 April 2019 meeting).

[184] On the issue of pilot feedback, Mr Burgess stated that the pilot had stated that he "could have made the AML clearer". Mr Burgess also stated that the "negligence is the closing of the [Dust Cover] AML and not the writing". In other words, no action would be taken by REX against the pilot who made the misdescription in the Dust Cover AML, despite it being a root cause of the Second Incident.

[185] At the 12 April 2019 meeting, the so-called "the allegation or the charge" that Mr Hanson had been negligent (as made in the 10 April 2019 letter) turned into a foregone conclusion. As Mr Burgess stated "This meeting is just to follow up on our findings of the [Second Incident SMS Investigation] and the maintenance error being classed as negligent. We are just deciding what disciplinary action to take if any". Mr Hanson was asked if he had anything to say about disciplinary action being taken against him given REX's conclusion as to negligence. In my view, it is readily apparent that as at 12 April 2019:

(a) When the Second Incident SMS Investigation was closed on 6 March 2019, no finding as to a failure to exercise due care, or negligence, had been made against Mr Hanson in relation to the Second Incident.

(b) The REX OSR, as provided to CASA, does not state that Mr Hanson was negligent, nor does it even mention the term negligence, or refer to any failure by anyone to exercise due care.

(c) Despite REX representing in its 10 April 2019 letter that "the allegation or the charge" against Mr Hanson being "negligent" was just that, an allegation of charge to be responded to at the 12 April 2019 meeting, REX's true position was that it had already concluded that Mr Hanson had been negligent. This conclusion is not one based upon an allegation as to negligence being directly put to Mr Hanson (and responded to).

(d) REX's finding as to negligence on the part of Mr Hanson in relation to the Second Incident occurred after only one meeting with Mr Hanson (that took place on 30 January 2019). At no time prior to the 12 April 2019 meeting had it been communicated to Mr Hanson that REX had already concluded that Mr Hanson was negligent, nor had Mr Hanson been given any opportunity to respond to such an allegation. In the events that had happened up to 12 April 2019, it is not clear to me (at all) how REX's conclusion as to negligence on the part of Mr Hanson can be said to arise from a procedurally fair process. It totally misses the point to suggest that because Mr Hanson was being offered the opportunity at the 12 April 2019 meeting to advise Mr Burgess as to whether there "is anything we are missing", and/or respond to the fact that disciplinary action may be taken against him, makes the process procedurally fair. In other words, Mr Hanson had never been given the opportunity to respond to the allegation or charge that he had been negligent in the first place, being the step prior to Mr Hanson having to respond to whether disciplinary action should be taken against him.

(e) Despite the ALAEA requesting a copy of the CASA Safety Observation as far back as 24 January 2019, REX refused to supply same (for reasons wholly unexplained).[194] Further, REX failed to notify Mr Hanson that the REX OSR had been submitted on 8 January 2019 (being two days before Mr Hanson provided his written statement in relation to the Second Incident), and failed to provide Mr Hanson with a copy of the REX OSR, or any of the information set out therein. The only way Mr Hanson became aware of the contents of the CASA Safety Observation, and the contents of the REX OSR, was via a freedom of information request. The notion that an employee would need to obtain documents directly and centrally relevant to a safety investigation and disciplinary process that they are being subjected to, via their union having to make a freedom of information request, is in my view, disgraceful. This is not to mention the fact that Mr Hanson, up until the time that documents were produced in response to the freedom of information request, had been labouring under the fundamental misconception (since 22 January 2019) that the CASA Safety Observation remained open, and that part of the process he was being subjected to was for the purpose of REX (as an AMO) responding to the CASA Safety Observation.

[186] On 15 April 2019, Mr Morgan sent a letter to Mr Burgess raising concerns with the findings made against Mr Hanson, and the disciplinary process conducted by REX in the lead up to such findings. Whilst Mr Burgess did not respond to Mr Morgan's letter, in his evidence he dismisses Mr Morgan's concerns.[195]

[187] Ultimately, on 13 June 2019, Mr Hanson was issued with a file note (Second Incident File Note) that made various adverse findings against him in relation to the Second Incident, including an ultimate finding that he had been negligent. This finding of negligence is said by REX to arise because, in its opinion, Mr Hanson's conduct was not commensurate with his experience and thus a finding as to negligence is "open" to be concluded. There are several difficulties with REX's view that a finding of negligence is open to be made against Mr Hanson, as follows:

(a) There is no evidence that REX has applied, or properly applied, the CASA substitution test in making its determination as to negligence (being, "[g]iven the circumstances at the time of the event, could you be sure you would not have committed the same, or a similar, unsafe act?").[196] Whilst the words "could you be sure" are to be applied having regard to an individual's qualifications, training and experience, I do not accept that the evidence discloses that, in the totality of the circumstances concerning the Second Incident, REX could reasonably make a finding that it could "be sure" that a person with Mr Hanson's qualifications, training and experience "would not have committed the same, or a similar, unsafe act"; and

(b) Further to the foregoing, REX's position is totally inconsistent with the findings contained in the Second Incident SMS Investigation Report (as closed on 6 March 2019), and the REX OSR (as supplied to CASA on 8 January 2019). Rather than REX taking into account all of the circumstances in reaching a conclusion as to negligence as part of the safety process and investigation, REX makes such a finding as to negligence as part of the disciplinary process, and then says that its determination not to take disciplinary action is based upon matters that appear to have been given no or little weight when applying the substitution test (that gave rise to the finding of negligence in the first place).

Mr Burgess' evidence undermines Second Incident File Note

[188] Many of the core conclusions contained in the Second Incident File Note were also wholly undermined by Mr Burgess in his evidence at the hearing. In this regard, Mr Burgess acknowledged that:

(a) there is no procedure at REX for closing AMLs;[197]

(b) there would not be a breach of procedure where an "unintentional mistake" occurs;[198]

(c) a LAME does not always need to speak to a pilot who drafted an ambiguous AML to clarify it, and may speak to their supervisor or the MOCC. These are all options that a LAME may take;[199]

(d) a LAME, in a hypothetical scenario, would not be negligent if they notice an ambiguity and checked it with their supervisor. Further, disciplinary action would not be considered, or even referred for consideration;[200]

(e) where a LAME raises a concern with his/her supervisor over an ambiguous AML, there is also an onus upon the supervisor to clarify the AML with the pilot or the MOCC;[201]

(f) the scenario of the hypothetical LAME (as put to Mr Burgess during cross-examination) exactly reflects what occurred in respect of Mr Hanson (i.e. for the purposes of applying the substitution test),[202] and it follows that:

(iii) Mr Hanson did the right thing in contacting his supervisor about the misdescription in the Dust Cover AML;

(iv) disciplinary action should not have been "considered" (or even begun) in relation to the Second Incident until the Second Incident SMS Investigation was closed;

(v) he has not spoken to Mr Hanson's supervisor, Mr Roden, about the Second Incident;

(vi) he only spoke to or sought information from the pilot who completed the misdescribed Dust Cover AML after Mr Hanson asked him to; and

(vii) neither the pilot, or Mr Roden, have been subjected to a counselling or disciplinary process concerning the Second Incident, nor have they received a file note about the Second Incident.[203]

[189] The Respondents contend that there is nothing unreasonable in relation to the approach taken by REX in relation to the Second Incident. In setting out the Respondents' submissions in this regard,[204] I have set out my conclusion in respect of same under each point of submission (i.e. having regard to the facts and circumstances as set out in this decision):

(a) The assertion that REX's conduct in investigating and seeking to speak with Mr Hanson about the Second Incident constitutes bullying is absurd. There was no disciplinary action taken against Mr Hanson in relation to the Second Incident, REX is entitled to raise mistakes with their employees (even if they are minor), and it was reasonable and understandable that REX would investigate a matter arising from a CASA audit.

Commission conclusion: I reject this submission in that it misses the point. Mr Hanson's claims as to bullying in relation to the Second Incident are not limited to the fact that REX determined to investigate the closed AML, and speak to Mr Hanson about same. As set out in this decision, the manner in which the Second Incident was investigated identifies significant inconsistencies in approach, unsubstantiated findings, an absence of procedural fairness, substantive unfairness, bad faith, a failure to comply with the REX GSMSM, the MEIP and the MOS145, and a failure to apply "Just Culture" principles.

(b) Mr Hanson refused to accept responsibility for the Second Incident, and REX was entitled to issue Mr Hanson with a file note in relation to the Second Incident.

Commission conclusion: This submission is rejected. In this case, the file note in relation to the Second Incident arises from a disciplinary process. The file note itself makes various adverse findings against Mr Hanson, absent consideration of root causes and human factors, and the application of "Just Culture" principles.

(c) Mr Hanson's belief that he has been bullied at work because REX sought to investigate the Second Incident is not a "reasonable belief".

Commission conclusion: I reject this submission. Mr Hanson's claims as to bullying in relation to the Second Incident are not limited to the fact that REX determined to investigate the matter and speak to Mr Hanson. Rather, they go to the process adopted to conduct such an investigation, and its findings as to negligence. In the events that have happened to Mr Hanson in relation to the Second Incident, including the disciplinary process that has been adopted in dealing with the same, I consider that there is ample evidence be for me to comfortably find that Mr Hanson had a rational and wholly reasonable basis to hold the belief that he was being treated unreasonably, unfairly, wrongly, and bullied.

[190] The approach by Mr Burgess to the Second Incident has been uncompromising, inconsistent, unfair and uncooperative. In taking this approach, Mr Burgess has cast aside basic notions of procedural fairness, and acted contrary to the provisions of REX's GSMSM, the MEIP, the MOS145, and "Just Culture" principles. The end result is, on any analysis, unreasonable conduct towards Mr Hanson in relation to the Second Incident, carried out over an unnecessarily lengthy period of nine months, involving multiple disciplinary meetings, and a dispute application before this Commission. It is not conduct that can be categorised as reasonable management action carried out in a reasonable manner.

Third Incident - Identification of corrosion on aircraft propeller shaft

[191] At dawn on 10 April 2019, Mr Hanson was performing a Line Check 1 (LC1) on a REX aircraft scheduled to depart that morning at around 5.30am.

[192] An LC1 is a routine walk-around check of a REX aircraft. It is a pre-flight check that does not require an intense or detailed inspection, and is designed to pick-up very obvious or significant defects, and ordinarily takes a LAME around 20 minutes to perform.[205] It is valid for 96 elapsed hours. An LC1 is to be compared to a comprehensive check on a broader basis of any potential (including minor) defects, which is undertaken at set intervals after a certain number of flights or amount of flying time (whilst an aircraft is not in service).

[193] The requirements for inspection during an LC1 are set out in a REX Task Card LC1 document.[206] I note that the LC1 requires inspection of the right and left hand propellers, (including inspection of propeller assembly for oil or grease leakage from hub assembly), the propeller gearbox oil level, the propeller gearbox filter, and the inboard (or inner) and outer aircraft wings. In inspecting these items, the LC1 "proposed line check program" suggests than an inspection occur by moving around the outside of the aircraft, down the outer wing, around the propeller, and across the inboard wing.

[194] During his performance of the LC1 on 10 April 2019, Mr Hanson was using a torch (noting it was dawn). Whilst checking the aircraft, he noticed what he considered to be corrosion on the aircraft's propeller shaft (Third Incident).[207] In this regard, Mr Hanson states in his without prejudice statement concerning the Third Incident:

"During this inspection while inspecting the right-hand Propeller gearbox ('PGB') in accordance with LC1 section 6 'Check propeller gearbox oil level; and replenish as required (791202REX)', as the PGB oil sight glass viewing window is adjacent to the gap between the propeller spinner and the fairing I noticed that the RH engine propeller shaft had a rusty look to it. I only noticed this because it was directly in my field of view and the torch light highlighted it."[208]

[195] Mr Hanson took photos of the corroded propeller shaft and reported it to his supervisor, Mr Bill Smith. Mr Smith asked Mr Hanson to write the defect up in an AML, and advised that he would organise an aircraft swap. Mr Smith also stated to Mr Hanson "well you can't un-see what you've seen"; and advised that we will just have to "go through the process of determining the extent of damage and work out a fix".[209]

[196] The defect raised by Mr Hanson in the AML, as drafted by Mr Hanson, reads:

"Inspection of RH PGB Propeller Shaft C/O WRT GE MM 72-10-00. Shaft cleaned using solvent and rag. Corrosion found to be small pits in Zone C: area extends to 2 attach studs distance in both directions from one dowel hole. Scotch brite pad used to remove surface corrosion WRT GE MM 71-10-00 5A(4)(b) of "PGB Inspection". Small pits still evidence. Cadium coating appears to be compromised. TSE consulted. Awaiting instruction."[210]

[197] Ultimately, the pitting on the propeller shaft required the engine to be removed and some of its cad plating to be restored before the engine could be placed back into normal service.[211]

[198] Of concern, in light of "Just Culture" principles, is that Mr Hanson also considered the need to include the following statement in his without prejudice statement (explaining why he reported the corrosion):

"I was reluctant to report the defect because of the current disputed situation between myself and management, particularly with regards to nearly two years of constant investigations and eroding of my working conditions. I found myself carefully weighing up: Not wanting to cause any disruption to the schedule; not wanting to find a defect which I shouldn't report due to MSG-3 principles as I have been trained; not wanting to give the management an opportunity for another malicious investigation."[212]

[199] In short, REX accepts that Mr Hanson did nothing wrong in reporting the corrosion on the propeller shaft, however, REX says that the sighting of such corrosion on the propeller shaft is almost impossible if an LC1 is performed properly. In other words, in seeing the corrosion on the propeller shaft, Mr Hanson must have deviated from the LC1, and intentionally inspected a part of the aircraft that was not required to be inspected pursuant to an LC1.

[200] There are various claims and counter-claims made between Mr Hanson and the ALAEA, and Mr Png and Mr Burgess, as to REX's investigation into whether or not Mr Hanson breached the LC1 procedure.[213] After a dispute was filed in the Commission, REX ultimately placed a file note on Mr Hanson's personnel file that gave him the "benefit of the doubt" as to whether he breached the LC1 procedure.[214]

[201] The difficulty with the file note is that it can be relied upon to remove or not re-certify Mr Hanson's authorisations (and the allowances that attach to such authorisations). In this case, the Third Incident file note was relied upon by the REX Technical Board in suspending Mr Hanson's LC1/LC2 Company Authorisation, and not revalidating his Company Authorisation (B1.1 CA).[215] Further, the contents of the file note are not reflected in the findings and statements contained in the Third Incident SMS Investigation, that reflect poorly upon Mr Hanson's identification of the corrosion, including that a casual factor was "individual violation - intentional".[216]

[202] Having viewed a video of an individual walking around a REX aircraft near the propeller shaft during the hearing, I do not consider it to be almost impossible or extremely difficult to have seen the corrosion on the propeller shaft during an aircraft walk around. Further, I note that this video footage is taken further away from the aircraft than the distance at which an LC1 would ordinarily be conducted. I also take into account the use of a torch that can shine directly into crevices or gaps that might ordinarily not be illuminated in daylight or by indirect light.[217]

[203] The Respondents submit that they have acted reasonably in relation to the Third Incident, given that no disciplinary process was commenced against Mr Hanson, and no disciplinary action has been taken against him. The Respondents further say that the removal of Mr Hanson's company authorisations is not disciplinary action, retaliatory, or a sanction. Rather, it has occurred as part of the REX Technical Board's standard procedure.

[204] In view of my factual findings concerning the Third Incident, whilst it was reasonable that REX investigate the issue of corrosion on the propeller shaft, I do not accept that it was reasonable for that investigation to focus upon Mr Hanson's alleged deviation from the LC1 procedure. There is no evidence to suggest that Mr Hanson intentionally deviated from the LC1 procedure. Whilst the file note that was issued in relation to the Third Incident states that it gives Mr Hanson the benefit of the doubt in this regard, the real outcome for Mr Hanson has been the suspension of his authorisations and the seemingly arbitrary basis upon which he might be able to reattain them. In this case, Mr Hanson has been subject to what is quite clearly a sanction. The cause of that sanction derives from the file note that has been issued to him and Mr Png's recommendation to the REX Technical Board that Mr Hanson's authorisations be suspended. Taking into account all the circumstances associated with the Third Incident, I again conclude that Mr Png has engaged in unreasonable behaviour.

[205] Mr Hanson filed his Anti-Bullying Application with the Commission on 11 April 2019, represented by Mr Sean Morgan of the ALAEA. This was then followed by the related Dispute Application filed by the ALAEA on 3 June 2019 concerning the REX EBA.

[206] On Saturday, 29 June 2019, REX issued a media release entitled "Rex Responds to Accusations from Disgruntled Engineer" (First Media Release). The First Media Release was dated 30 June 2019, and its stated purposes was said to be to "[respond] to reports from the tabloids that cited anonymous sources accusing REX of having a poor safety culture". It stated that "the same wild accusations have been raised by a disgruntled engineer and his union, first to the Fair Work Commission and then to the Civil Aviation Safety Authority (CASA)".[218]

[207] The First Media Release went on to personally name Mr Hanson, and states that:

(a) the accusations against REX are "malicious attacks", "despicable and cowardly", "baseless", "not getting traction", and that REX has been "advised by the ALAEA that it is CASA that is behind the anonymous leaks".

(b) REX has invited senior management of CASA to discuss "the professional failings of the disgruntled engineer".

(c) REX's safety culture is second to none.[219]

[208] The First Media Release was sent out by Ms Joanne Patrick, REX Corporate Communications Manager. The distribution list for the First Media Release was very wide, and included:

(c) QLD TMR [Queensland Department of Transport and Main Roads];

(d) WA Dot [Western Australian Department of Transport];

(e) Minister Michael McCormack's aviation advisor, Steven Campbell, Steven Kennedy + Pip Spence from the Department;

(f) CASA - Tony Matthews, Shane Carmody, Graeme Crawford, Murray Collings, Michael Bridge, Anita Taylor, Jonathan Alex, Rob Walker;

(g) ATSB [Australian Transport Safety Bureau] - Greg Hood;

(h) WoAG [Whole of Government] Fed Gov Travel; and

[209] Although is it somewhat difficult to identify exact times of day, on the evidence, the First Media Release appears to have been drafted prior to Saturday, 29 June 2019, in collaboration with Mr Lim KimHai (REX Chairman) and Ms Patrick. It appears that Mr Lim provided the initial draft, and sent it to Ms Patrick with the words "get nifty to fill in the blanks pse aok" (the reference to "nifty" being Mr Neville Howell, REX Chief Operating Officer, and the phrase "pse aok" appears to be short for 'please approve'). The subject line of the email from Mr Lim to Ms Patrick attaching the draft First Media Release was titled "Fwd: Re: FW: Stephen Hanson - Further Bullying Conduct".

[210] The only words missing from the draft of the First Media Release sent by Mr Lim is the name of the so-called "disgruntled engineer" (Mr Hanson), as is apparent from the following statement in the draft:

"As a result of a CASA leak to the media, REX is the subject of several adverse media articles related to (name of engineer)'s matter."

[211] Ms Patrick sent a final draft of the First Media Release to Mr Lim, Mr Howell, and Mr John Sharp, REX Deputy Chairman, for approval. Ultimately, Mr Howell responded via email with the words "Jo [Ms Patrick], I have just spoken with John [Sharp] and the changes are approved". Ms Patrick then emailed the distribution list attaching the First Media Release containing Mr Hanson's name.

[212] Sometime later, within hours, Mr Kim responded to Mr Howell's email approving the issuing of the First Media Release with the phrase "WHAT!!!!!!!!!!!!!!!!!!!!!!!!!!!". It appears that a meeting of the REX Board was urgently called. In another email, Mr Lim described the situation as a "COMPLETE DISASTER".[221]

[213] Whilst Ms Patrick did her best to try and recall the First Media Release, it appears her attempts were largely unsuccessful. Many REX staff received the First Media Release. Ms Patrick also resorted to sending out an email asking people to destroy the email and not reference it for any purpose.[222]

[214] Unfortunately, that was not the end of the matter. Instead of issuing a retraction, Mr Hanson's name was removed from the First Media Release, and it was again distributed to the distribution list in the same terms as originally sent (Second Media Release). In relation to the Second Media Release, an email from Mr Lim confirms his approval to issue the Second Media Release with the words "this needs to go out asap as the harm done is incalculable."[223]

[215] Post the issuing of the media releases, Mr Hanson immediately became the subject of adverse media articles in the Sunday Telegraph, and on Channel 9 television.[224] He was also the subject of personal abuse from a fellow REX employee whilst he was on shift on Sunday, 30 June 2019.[225]

[216] When Mr Morgan of the ALAEA raised with Mr Png, Mr Burgess and Ms Penglis (amongst others at REX) the adverse media articles being further evidence of the bullying of Mr Hanson, and the personal abuse he had received, Mr Png responded: "Kindly take note that Stephen [Mr Hanson] should follow the Company's policy with regards to his accusation against fellow staff member. Failure to do so could result in disciplinary actions." However, this response was not drafted by Mr Png, but by Mr Lim, who upon being forwarded the email from Mr Morgan sent an email to Mr Png which reads:

Tat [Mr Png] respond to alaea to say that Stephen shd (sic) follow company policy with regards to his accusations against fellow staff member. Failure to do so could result in disciplinary action."[226]

[217] It is apparent from the foregoing email from Mr Lim to Mr Png, that Mr Lim was again acting as some form of 'puppet-master' of Mr Png in relation to dealing with Mr Hanson at the REX workplace.

[218] On 1 July 2019, Mr Morgan again raised serious concerns via email over the media releases with Mr Png. Mr Png forwarded that email to Mr Lim and the REX Board of Directors. In a 'Reply-All' email, Mr Lim responded with the words "leave this to nifty [Mr Howell] to deal with".[227]

[219] As at the date of the hearing in February 2020, the Second Media Release remained on the REX website, with REX having previously rejected requests to remove it, or otherwise issue a correction.

[220] There is also evidence that REX has issued further media releases on 3 July 2019, 4 July 2019, 5 July 2019, 8 July 2019 and 16 July 2019 that refer to a "disgruntled engineer" and/or "a disgruntled engineer and his union" and make various assertions that the disgruntled engineer has been "taken to task for several instances of professional negligence and misconduct".[228] In my view, some of these media releases can easily be read as a reference to Mr Hanson. However, for the purposes of this decision, I make no finding in that regard. Rather, any findings I make are based upon the First and Second Media Releases.

[221] There was some debate between counsel as to whether the Respondents were properly on notice about Mr Hanson's use of the media releases in these proceedings. Having reviewed the evidence, I note that Mr Morgan first raised the issue of the press releases amounting to bullying with the Respondents on 30 June 2019, and again on 1 July 2019.[229] It came up in discussions about the production of documents at the hearing on 24 September 2019,[230] including to the extent that Ms Saunders put the Respondents on notice that "any press release which permits Mr Hanson to be identified and is cast in derogatory terms about him is unreasonable behaviour".[231] The ALAEA wrote to the Respondents about the issue on 12 November 2019, and 14 November 2019.[232] During the hearing on 15 November 2019, I provided the Respondents with the opportunity to put on any further evidence to respond to the issue of whether the distribution of the media releases constitutes unreasonable management action.[233] In my view, the Respondents were on notice and had every opportunity to deal with the evidentiary issues concerning bullying arising from the media release distribution on 29/30 June 2019. Further, the question of whether the media releases give rise to unreasonable management action and bullying in these proceedings have been extensively addressed by the Respondents via submissions on issue of my power to make orders dealing with the media releases.

[222] In dealing with the issue of media releases, I observe that one of their purposes is to provide short and sharp quotes and grabs, so as to garner media attention, and get a story into the public domain. They also ordinarily have a purpose to get a message out framed in a way that seeks to cast that message in the manner intended by the issuer of the media release. Being short and sharp grabs and quotes, another aspect of media releases is to have the receiver draw their own conclusions and form an opinion from the limited information provided. Depending upon how the media release is drafted and framed, and what information is included, not included, or otherwise emphasised or played down, such conclusions or opinions to be draw might be good, bad, or concerning, or might otherwise cast doubt on the genuineness of a person or issue.

[223] The Respondents submit that the First and Second Media Releases "do not constitute bullying in any way whatsoever". This is because it was an error to include Mr Hanson's name in the First Media Release, and this was corrected by the removal of his name from the Second Media Release.

[224] In my view, no matter how one slices and dices questions of reasonableness in relation to the First and Second Media Releases, their content and their distribution is grossly unreasonable behaviour. I say this for the following reasons (in relation to the First and Second Media Releases):

(a) The media releases were very widely released and distributed, including to all staff at REX, media outlets, and other external government and travel bodies.

(b) Mr Hanson was at work performing a shift on 30 June 2019 (i.e. at the time they entered the public domain).

(c) I reject the suggestion that because the First Media Release (containing Mr Hanson's name) was later retracted, and replaced by the Second Media Release (in exactly the same terms, but absent Mr Hanson's name), that no one would know or otherwise draw the conclusion that the Second Media Release was referring to Mr Hanson. Mr Hanson knew it was referring to him. Mr Morgan knew it was referring to Mr Hanson. There is evidence that other REX employees knew it was referring to Mr Hanson. Although only assumption, I consider it wholly safe to assume that Mr Hanson's family and close friends may have been exposed to the media coverage that followed on from the media releases being distributed and would have known it was Mr Hanson, who was being referred to. In other words, it is apparent from the content of the media releases that part of their intention was to cast Mr Hanson and his motives in a bad light, and it must have been known to those who issued the media releases that they were likely to cause Mr Hanson to be humiliated amongst his work colleagues (both personally and professionally), and amongst other persons that know Mr Hanson and are aware (or somewhat aware) of his work circumstances. The further difficulty here is that not only does the Second Media Release remain on the REX website, but various media articles about the issue are likely to stay on the internet permanently. If the aviation industry is like other industries, these media articles have the real potential to have an on-going deleterious impact upon Mr Hanson's future employment prospects with other employers.

(d) I equally reject the suggestion that because the issuing of the First Media Release (containing Mr Hanson's name) was a mistake, was sought to be recalled, and a Second Media Release was issued (not containing Mr Hanson's name), that REX is somehow absolved, in part or in whole, from unreasonable conduct. The evidence is that not all of the emails containing the First Media Release were recalled. I have found that Mr Hanson can be identified by some people (including his work colleagues) in the Second Media Release. Further, REX has made no retraction of either of the media releases, no apology to Mr Hanson, and no public apology or retraction of the allegations and assertions made against Mr Hanson in the media releases.

(e) At the time of the release and distribution of the media releases, there were active disputes before this Commission concerning Mr Hanson, and Mr Hanson's Anti-Bullying Application was also open and before this Commission. These active (and yet to be determined matters) before the Commission are being said in the media releases to be grounded in "wild accusations ... raised by a disgruntled engineer and his union ... to the Fair Work Commission". Further, these active matters before the Commission are subject to public listings on the Commission's website.

(f) The content of the media releases cast Mr Hanson as a "disgruntled engineer" making "wild accusations", who is being supported by the ALAEA. In other words, the ALEA is in the business of supporting disgruntled members who make wild accusations. These assertions are then connected to what is suggested to be anonymous malicious attacks. However, the implication is that no matter who is launching these anonymous malicious attacks, they have their source from Mr Hanson and/or the ALAEA. This is directly apparent from the following statement in the media releases:

"REX's Chief Operating Officer Neville Howell said: "Realising that these baseless accusations [by a disgruntled engineer and his union] are not getting any traction, some are now taking the despicable and cowardly approach of launching anonymous malicious attacks on REX in the press."

(h) The assertions in the media releases that Mr Hanson was making wild accusations to the Fair Work Commission, and was doing so because he was disgruntled, had no proper foundation at the time they were made. Nor did REX squarely put such a contention as to "wild accusations" before this Commission to be tested. My conclusions on the evidence in these proceedings are that none of Mr Hanson's claims have been "wild accusations", indeed, quite the opposite. In short, in my view, REX had no basis to be making these accusations as to "wild accusations" by Mr Hanson in the first place. They are not credible accusations, and have never been credible accusations.

[225] One final point on the issuing of the media releases by REX being unreasonable, is that it is conduct that is contrary to the requirements of the REX GSMSM, including "Just Culture" principles.[234] It is conduct that is therefore likely to have a deleterious and direct impact upon the safety culture at the REX workplace. It is conduct that erodes trust generally, and thus undermines a safety culture that is 'Just'. Rhetorically, why would a REX employee want to report a safety issue if they have the potential to end up in a media release referring to them as disgruntled engineer who makes wild accusations?

[226] It is appropriate that I deal with some of the two other contentions made by the Respondents in these proceedings.

[227] The Respondents contend that Mr Hanson's conduct in relation to the First to Third Incidents ought to be characterised as Mr Hanson using the Commission's bullying jurisdiction for a purpose that it has not been intended to be used, consistent with the reasoning of Sams DP in the case of Tanka Jang Karki:[235]

"In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act's stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.

For some time, I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purpose."[236]

[228] I reject this contention. It is not supported by the facts in this matter, or my findings in this matter.

[229] The Respondents contend that the ALAEA, and its officers, Mr Re, Mr Sowter and Mr Morgan, have acted unreasonably in representing Mr Hanson in the First to Third Incidents, and that such representation has caused or otherwise contributed to the delay in resolving these incidents, and/or caused REX to behave in the manner it has in relation to these incidents. This contention must be rejected. On the evidence before me, I consider the ALAEA and its officers to have been exceptional and professional representatives of Mr Hanson. Indeed, given the nature of the issues that Mr Hanson has been confronted with, the behaviour of Mr Png, Mr Burgess and Ms Penglis, and the complexities surrounding the legislative obligations in relation to safety at the REX workplace, I do not accept that any of the conduct of the ALAEA's officers in relation to correspondence drafted, requests made, attendance at interviews, and the representation of Mr Hanson more generally has been other than totally above board and professional.

[230] Having regard to the evidence before me, the written and oral submissions of the parties, and my findings and conclusions as set out throughout this decision, the findings I make in relation to bullying are as follows:

(a) Mr Hanson is a "worker" who is protected by Part 6-4B of the FW Act, employed by REX (being a constitutionally-covered business (s.789FC(2); s.789FD(1)(a); s.789FD(3));

(b) In the events that have happened, and on his own evidence as tendered in these proceedings, Mr Hanson holds a "reasonable belief" that he has been bullied at work (s.789FC);

(c) Mr Hanson was relevantly "at work" in respect of the First to Fourth Incidents (the latter as it concerns the First and Second Media Releases) (s.789FD(1)(a));

(d) Each of the three individually named Respondents are "individuals" who have "behaved unreasonably towards" Mr Hanson (s.789FD(1)(a)). In this regard:

(i) Mr Png has behaved unreasonably towards Mr Hanson in relation to the First Incident, the Second Incident, and the Third Incident (s.789FD(1)(a));

(ii) Mr Burgess has behaved unreasonably towards Mr Hanson in relation to the Second Incident (s.789FD(1)(a)); and

(iii) Ms Penglis has behaved unreasonably towards Mr Hanson in relation to the First Incident (s.789FD(1)(a)).

(e) The unreasonable behaviour towards Mr Hanson has been engaged in by each of the three individual Respondents "repeatedly" (s.789FD(1)(a)). In making this finding, I have concluded that the unreasonable behaviour in this matter is not only based upon each of the three incidents as a whole, but relates to the persistent steps taken by each of the individual Respondents as part of, and in the lead up to, the outcomes of the three incidents.[237] In this regard, in my view, the unreasonable behaviour concerning matters such as repeated failure to follow policy (such as the MEIP), and repeated failure to comply with the GSMSM (including principles of "Just Culture") and the MOS145, has occurred repeatedly throughout the conduct of each of the three incidents.

(f) It is clear on the evidence that the unreasonable behaviour has not only created a risk to Mr Hanson's health and safety; but has actually resulted in Mr Hanson's health and safety being compromised.[238]

(g) The unreasonable behaviour has not been reasonable management action carried out in a reasonable manner (s.789FD(2)).

(h) The First and Second Media releases are unreasonable behaviour and are reflective of a course of conduct related to, and directly connected with, the unreasonable behaviour in the First, Second and Third Incidents.

[231] In view of the above findings, I am satisfied that Mr Hanson has been bullied at work by each of the individually named Respondents. Further, having regard to the unreasonable behaviour that I have found to have occurred, and the Respondents' failure at any point in these proceedings to accept that their behaviour has been unreasonable and/or take reasonable steps to ensure that it does not continue, I am equally satisfied that there is a real risk that Mr Hanson will continue to be bullied at work by the individually named Respondents.

[232] In closing submissions, Ms Saunders stated:

"Yes, I think that is the appropriate course, what I said earlier, is that if in the event the Commissions' minded to grant the application, in whole or in part, findings be identified and the parties given an opportunity to propose orders, given the slightly unusual nature of this case."[239]

[233] I concur with this submission and propose to adopt the approach suggested by Ms Saunders. Directions will be issued separately to this decision providing the parties with the opportunity to provide draft orders, and submissions in support of such orders. I will then make a further decision and issue the relevant orders that I consider appropriate to prevent Mr Hanson from being further bullied at work by the individually named Respondents.

[1] Respondent's Outline of Submissions, undated, at [4].

[2] [2020] FWC 3988.

[4] [2021] FWC 951.

[5] Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55, at [117], per Kirby and Crennan JJ, concurring with Callinan J.

[6] Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [1]-[6]; [98].

[7] [2015] FWC 774

[9] Re GC [2014] FWC 6988 at [47] (Hampton C), cited with approval in Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174 at [15] (Ross J, Kovacic DP, Hampton C); Mac v Bank of Queensland Limited [2015] FWC 774 at [88] (Hatcher VP); Re SB (2014) 244 IR 127; [2014] FWC 2104 at [43] (Hampton C).

[11] Re SB (2014) 244 IR 127; [2014] FWC 2104 at [41] (Hampton C), cited with approval in Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174 at [17] (Ross J, Kovacic DP, Hampton C).

[12] Re GC [2014] FWC 6988 at [45] (Hampton C); Mac v Bank of Queensland Limited [2015] FWC 774 at [89] (Hatcher VP).

[13] Re SB (2014) 244 IR 127; [2014] FWC 2104 at [41] (Hampton C), cited in Mac v Bank of Queensland Limited [2015] FWC 774 at [89] (Hatcher VP).

[15] Bowker v DP World Melbourne Limited & Ors [2014] FWCFB 9227.

[16] [2019] FWCFB 2771, 289 IR 105.

[19] [2018] FWCFB 4174.

[21] (2015) 247 IR 274; [2015] FWC 774.

[24] See current MOS145 compilation, 18 March 2015: https://www.legislation.gov.au/Details/F2015C00263 ("MFI-1").

[25] Note Transcript, 24 September 2019, PN1327-PN1335.

[28] MOS145, at 145.A.30(a) to (c); see also 145.A.65(d)

[36] Exhibit R9, Burgess, dated 23 August 2019, at [17] to [19] (as at 1 October 2018).

[37] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-1", p.43.

[38] By way of example, see approach to the interpretation of legislation where there may be conflicting legislative provisions in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [69]-[70]. See also Exhibit R9, Burgess, dated 23 August 2019, at [36].

[39] See also Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-2", p.228. Note also clause 36.2 of the REX EBA.

[40] Compare Exhibit R4, Mr Png Statement, 23 August 2019, at [38], [42](a)].

[41] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-1", p.137.

[42] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-1", p.139.

[43] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-1", pp.142-143.

[44] See Exhibit R9, Burgess Statement, dated 23 August 2019, Annexure "MB-2", p.228, and "MB-3", pp.203-233. Note also clause 36.2 of the REX EBA. See also Transcript, 24 September 2019, PN1538-PN1540.

[46] Transcript, PN4245; Transcript, 24 September 2019, PN1571.

[47] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-1", p.64.

[48] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-1", p.77.

[49] Exhibit R9, Burgess, dated 23 August 2019, at [31] to [35], Annexure "MB-6", especially at pp.338-339.

[50] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-6", pp.344 and 351.

[51] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-6", pp.375.

[52] Exhibit R9, Burgess, dated 23 August 2019, Annexure "MB-7", p.393.

[53] Transcript, 15 November 2019, at PN2769; PN4021; PN4193-PN4194.

[54] Note Transcript, 24 September 2019, at PN1336-PN1356; PN1370-PN1386; PN1506-PN1516;

[57] See R v Nuri [1990] VicRp 55; [1990] VR 641 and Albert E Reed & Co, Ltd v London & Rochester Co Ltd, [1954] 2 Lloyd's Rep 463, at 475.

[58] See Halsbury's Laws of Australia, [300-1] 'Negligence - Introduction'. I note that Mr Kendall considers "negligence" to require intention (Transcript, 24 September 2019, PN1357-PN1368; PN1629-PN1640), whereas Mr Burgess and Mr Png consider that negligence can be found on the basis of unintentional acts. Whilst Mr Burgess and Mr Png are correct, the fact that Mr Kendall has a different view appears to highlight a broader deficiency in REX training as to the meaning of Just Culture (including the term negligence).

[59] Red Sea Tankers Ltd and Others v Papachristidis and Others Henderson, Baarma and Bouckley [1997] 2 Lloyd's Rep 547, at 586 per Mance J.

[63] McLean v Bell (1932) 147 LT 262; British Columbia Electric Railway Co Ltd [1916] 1 AC 719.

[64] Civil Liability Act 2002 (NSW), Part 1A, ss. 5R and 5S.

[65] Exhibit A11, Reason, James, "Managing the Risks of Organisational Accidents", Routledge, 1997, Chapter 9.

[67] Exhibit A11, Reason, James, "Managing the Risks of Organisational Accidents", Routledge, 1997, Chapter 9, pp.195-196.

[68] Ibid, pp.197-198, citing M. O'Leary and S.L. Chappel, "Confidential incident reporting systems create vital awareness of safety problems", ICAO Journal, 51, 1996, pp.11-13.

[73] See, for example, Transcript, 24 September 2019, PN1588; PN1597-PN1606.

[76] Exhibit R3, Ms Penglis Statement, Annexure "MP-1", REX Code of Conduct.

[77] Transcript, 15 November 2019, PN3612 to PN3621.

[79] Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure "RK-8" (p.59 of Mr Kendall Statement, p.3 answer under heading "Damage Description").

[80] Exhibit A6, Mr Re Statement, 2 August 2019, p.22, Annexure "SR-4": SAAB 340 Aircraft Maintenance Manual. Note also "SAAB 340 Aircraft Taxi Training" procedure for REX Approved Aircraft Taxiing Trainer & Assessor on pp.21-22 of Mr Re Statement.

[81] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54], Annexure "RK-3" (p.41 of Mr Kendall Statement) and Annexure "RK-8" (pp.57-71 of Mr Kendall Statement).

[82] Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure "RK-3", p.41.

[83] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54], Annexure "RK-3" (p.41 of Mr Kendall Statement) and Annexure "RK-8" (pp.57-71 of Mr Kendall Statement).

[84] Exhibit A4, Mr Sowter Statement, 2 August 2019, at [7]; Exhibit A6, Mr Re Statement, 2 August 2019, at [6]; Exhibit R1; Mr Kendall Statement, 23 August 2019, at [50]-[53].

[85] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [60].

[86] Exhibit R4, Mr Png Statement, 23 August 2019, at [35].

[87] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [61].

[88] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [50]. Transcript, 24 September 2019, at PN528.

[89] Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [8]-[9], Annexure "SH-1".

[90] Exhibit R4, Mr Png Statement, 23 August 2019, Annexure "PYT-3", p.41.

[91] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54].

[92] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [71(b)(i)].

[93] Exhibit R4, Mr Png Statement, 23 August 2019, Annexure "PYT-3", p.40. See also Annexure "PYT-10", pp.77-78.

[94] Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure "RK-5" (p.46 of Mr Kendall Statement containing the minutes of the meeting on 1 November 2017).

[95] Exhibit R4, Mr Png Statement, 23 August 2019, at [36].

[96] Exhibit A1, Mr Hanson Statement, undated, filed 2 August 2019, at [13]-[17], Annexure "SH-2".

[97] Exhibit A4, Mr Sowter Statement, 2 August 2019, at [10]-[12], Annexure "GS-1".

[98] Being an investigation that Mr Hanson had never been provided with an opportunity to make a formal statement (and had only provided a preliminary verbal without prejudice statement).

[99] Exhibit A4, Mr Sowter Statement, 2 August 2019, at [13]-[17]. See also minutes of meeting on 1 November 2017 where Ms Penglis acknowledges that she is "not aware of the MOE process": Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure "RK-5" (bottom of p.46).

[100] Note Transcript, 24 September 2019, PN1819-PN1834.

[101] Exhibit A1, Hanson Statement, undated, filed 2 August 2019, at [18]-[19], Annexure "SH-2".

[102] Exhibit A1, Hanson Statement, undated, filed 2 August 2019, at [20]-[21]; Exhibit A6, Mr Re Statement, 2 August 2019, at [11]-[17]; Exhibit R1, Mr Kendall Statement, 23 August 2019, at [70]-[72].

[103] Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure "RK-5" (bottom of p.45 of Mr Kendall Statement containing the minutes of the meeting on 1 November 2017). I note that Mr Kendall does not have a good recollection of this meeting, and does not remember whether or not he advised Mr Re that the First Incident SMS Report was closed (Exhibit R1, Mr Kendall Statement, 23 August 2019, at [71]), however, the statement as to closure is included in the meeting minutes of 1 November 2017 contained at Annexure "RK-5".

[104] Exhibit R1, Mr Kendall Statement, 23 August 2019, Annexure "RK-5" (bottom of p.46).

[105] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [73].

[106] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [74]; see also Exhibit A1, Hanson Statement, undated, filed 2 August 2019, at [22]-[23], Annexure "SH-4".

[107] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [54], Annexure "RK-3".

[108] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-7", p.54: "MP not aware of safety investigation results".

[110] Exhibit A6, Mr Re Statement, 2 August 2019, at [11]-[17].

[111] Transcript, 24 September 2019, PN1929-PN1930.

[112] Transcript, 25 September 2019, PN1929-PN1930.

[113] Exhibit R4, Mr Png Statement, 23 August 2019, Annexure "PYT-3", p.38. It appears these statements were inserted twice into the First Incident SMS Report.

[114] Exhibit R4, Mr Png Statement, 23 August 2019, at [24].

[115] Transcript, 24 September 2019, PN1882; PN1896-PN1897.

[116] Exhibit R4, Mr Png Statement, 23 August 2019, at [50] to [53].

[117] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-13", top of p.75.

[118] Exhibit R7, REX Aircraft Taxi Training (SAAB 340) Manual, pp.4, 6, 8, 10, 19-20, 22, 27.

[119] Exhibit R4, Mr Png Statement, 23 August 2019, Annexure "PTY-3", pp.47-49.

[120] Exhibit R4, Mr Png Statement, 23 August 2019, Annexure "PTY-3", p.46.

[121] Exhibit R4, Mr Png Statement, 23 August 2019, Annexure "PTY-3", p.43 (example of double yellow lines).

[122] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-13", p.81.

[123] Nor had Mr Hanson made a verbal statement to that effect (Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-14", point 0.75 of p.83.

[124] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-14", pp.83-84.

[125] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-15", p.86.

[126] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-16", p.88.

[127] Exhibit A1, Mr Hanson Statement, filed 2 August 2019, at [35] to [37], Annexure "SH-7".

[128] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-18", top of p.94. The email being referred to from Mr Png to the ALAEA on 9 January 2018 did not make its way into evidence before the Commission.

[129] Exhibit R1, Mr Kendall Statement, 23 August 2019, at [94] to [97], Annexure "RK-10".

[130] Transcript, 24 September 2019, PN1709-PN1712. Nor did the respondents call Mr Jackson or Mr Bradley to give evidence in these proceedings.

[131] Exhibit R3, Ms Penglis statement, 23 August 2019, Annexure "MP-17", p.90-91.