Tribunal rules on Qantas staffer sacked for allegedly staring at employee's chest
A Qantas safety instructor terminated for allegedly staring at an employee’s breasts “for 10 seconds” during training has won his job back after the Fair Work Commission ruled that claims of harassment weren’t valid.
The commission ruled that the airline reinstate the instructor with full back pay because he had merely been assessing the employee’s breathing rate, The Australian reported. The ruling has, however, sparked public concern from Qantas about the message it sends employees, the publication said.
The commission found that the instructor had stared at the employee’s chest for two to three seconds, not the 10 seconds claimed.
Commissioner Donna McKenna agreed with submissions that Qantas’ legitimate interest in managing workplace harassment “does not mean that every moment of offence caused generates a valid reason for dismissal.”
“Questions of fact and degree remain important,” McKenna said, quoting the submissions. “[The instructor] must be found to have engaged in some conduct objectively warranting his dismissal; the subjective reaction of another is not itself enough.”
Qantas said it would appeal the decision. This is the second ruling in two months to have overturned an employer’s termination decision for allegedly sexually inappropriate conduct, The Australian reported.
“We’re very disappointed and concerned about the message that this judgment sends and we will appeal,” an airline spokesman told the publication. “Everyone has the right to feel safe and respected when they come to work.”
The airline dismissed the instructor last year following a complaint by an employee that, while demonstrating to a class how to monitor a person’s medical condition, he had looked into her eyes and then down to her chest for 10 to 20 seconds. The employee said it “felt like a lifetime” and made her feel humiliated and uncomfortable.
The instructor then allegedly told the class, “You may have noticed that I was deliberately staring at [the employee’s] chest to see if she was breathing.”
The employee said she put on her cardigan and fastened all the buttons, later telling the instructor, “Please stop, you are making me uncomfortable. Can we please move on?” She said the instructor didn’t acknowledge the comment and continued the training, The Australian reported.
The employee said she again felt humiliated when, following a break, the instructor allegedly told the class, “Earlier I made a joke and it was not received well, so I’ll try to do better.”
The instructor denied he had stared at the employee’s chest for 10 or 20 seconds, saying it was more like two or three seconds. He said the employee had “misinterpreted” and “embellished” the incident.
The instructor claimed that the employee had only said, “Can we please move on,” which he assumed was a reference to finishing the training. He said the “joke” he had referred to was a previous comment about a CPR doll.
McKenna agreed with the instructor’s account and rejected accusations that he was “ogling” the employee’s breasts, The Australian reported. She found that his “principal” visual focus was the rise and fall of the employee’s chest above the scooped neckline of her shirt.
“That said, I doubt it would have been possible to visually focus – as if with some type of laser-point precision – solely or exclusively on the upper chest area … without that focus also incidentally encompassing the complainant’s breast area or at least the upper part of her breasts/breast area,” McKenna said.
She said that Qantas’ late references to breasts, rather than the chest, during the hearing appeared to be “an attempted bolstering of an otherwise questionable and/or highly contestable dismissal ground, namely [that] the applicant’s actions ‘arguably could constitute sexual harassment.’”
McKenna also rejected that the instructor had told the class he had been “deliberately staring” at the employee’s chest and said that the employee had “misapprehended” that statement as well as other matters. She also said the employee had a “distorted sense of time.”
McKenna said that witness evidence in the case was “all over the place” and “shambolically divergent.” However, she found that the “central planks” of the employee’s claims did not occur, and so couldn’t form a valid reason for sacking the instructor, The Australian reported.
McKenna held that prior complaints about the instructor’s conduct, which Qantas said contradicted the “culture and behaviour expected of trainers,” were not relevant. As a result, compensation for lost pay should not be discounted, she said.
