[2013] FWCFB 9075

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

Jetstar Airways Pty Limited
v
Ms Monique Neeteson-Lemkes
(C2013/5863)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER RIORDAN

SYDNEY, 13 DECEMBER 2013

Appeal against decision [2013] FWC 5840 of Commissioner McKenna at Sydney on 16 August 2013 in matter number U2013/27.

Introduction

[1] On 21 December 2012, Ms Monique Neeteson-Lemkes was dismissed from her employment as a domestic flight attendant with Jetstar Airways Pty Limited (Jetstar). Jetstar’s reason for the dismissal was that Ms Neeteson-Lemkes was unable to perform the inherent requirements of her role, then or in the future, and that there were no reasonable adjustments which could be made to allow her to perform her role, which Jetstar characterised as “safety critical”. Ms Neeteson-Lemkes subsequently lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). On 16 August 2013, Commissioner McKenna issued a decision 1 (Decision) in which she found that Ms Neeteson-Lemkes’s dismissal was harsh, unjust and unreasonable, and determined that Ms Neeteson-Lemkes should be reinstated to her employment with Jetstar. The Commissioner issued an order2 (Order) to effect the reinstatement on the same day.

[2] On 8 September 2013, Jetstar filed a Notice of Appeal against the Decision and Order, which included an application for permission to appeal, under s.604 of the Act. The Notice of Appeal also sought a stay of the reinstatement order pending the final determination of the appeal. By consent, a stay order was made on 5 September 2013.

History of Ms Neeteson-Lemkes’s employment and the dismissal

[3] Before turning to Jetstar’s grounds of appeal, it is convenient to set out in summary form a history of Ms Neeteson-Lemkes’s employment with Jetstar, including the events which led to her dismissal. The Decision at paragraphs [3] to [23] sets out that history in a manner which was largely uncontroversial, and our summary is partly based upon that part of the Decision.

[4] Ms Neeteson-Lemkes commenced employment with Jetstar on 17 May 2006. On 19 January 2010 she made a workers’ compensation claim for a psychological injury arising from alleged bullying and harassment by a supervisor at work. The injury caused Ms Neeteson-Lemkes to be off work for some months. She was treated by her general practitioner, Dr Alan Saunders, a psychologist, Ms Maria Tzoumacas, and a consultant psychiatrist, Dr Ricardo Farago. The claim, initially disputed, was settled after proceedings were commenced in the Workers’ Compensation Commission of NSW. A medical report prepared for the purpose of the workers’ compensation proceedings by Dr Farago and dated 4 February 2011 stated that Ms Neeteson-Lemkes had originally been diagnosed with Major Depression caused by her “work issues”. This report further stated that at “last review” she was still suffering from “episodes of low mood” and was taking anti-depressant medication, and that “...[c]urrently her ability to perform normal duties is impaired by her psychiatric condition at episodic periods as evidenced by her sick leave”. The report (which referred to Ms Neeteson-Lemkes by her then married name of Sornsiri) concluded by saying:

[5] It is clear from the evidence that Ms Neeteson-Lemkes had not fully recovered from her 2010 psychological injury by the time that she suffered a further psychological injury on 11 August 2011. Dr Saunders’s clinical notes disclose that she was still reporting adverse psychological symptoms to Dr Saunders up until July 2011 and was being prescribed anti-depressant medication.

[6] The further psychological injury was the result of an incident which occurred on a flight on which Ms Neeteson-Lemkes was working. In the Decision the Commissioner described, in a way which was not in issue in the appeal, what occurred:

[7] Although there was apparently an investigation into this incident, the evidence does not disclose anything of substance about what the “device” that was discovered actually was or how it came to be where it was on the aircraft. Ms Neeteson-Lemkes made a workers’ compensation application with respect to the injury, for which liability was accepted by Jetstar.

[8] Ms Neeteson-Lemkes was again treated by her general practitioner, Dr Saunders, in respect of the injury. It may be noted at this point that Dr Saunders has been qualified by the Civil Aviation Safety Authority as a “Designated Aviation Medical Examiner”. In the period January 2012 to May 2012, Dr Saunders issued a series of WorkCover medical certificates which collectively deemed Ms Neeteson-Lemkes “unfit” for work for the period 7 January 2012 to 2 June 2012. These certificates diagnosed Ms Neeteson-Lemkes as suffering from “anxiety depression (exacerbation of previous condition)”. They also refer to Ms Neeteson-Lemkes having been referred to a psychologist, Mr Andrew McKinley, for ongoing treatment.

[9] In a letter dated 19 March 2012 which, we infer from the evidence, was sent to Dr Saunders, Mr McKinley said (underlining added):

[10] The “psychological management plan” referred to as being attached was not put into evidence.

[11] On 30 May 2012 Dr Saunders filled out a request for information sent to him by Allianz, which was engaged by Jetstar to assist with its management of workers’ compensation claims. In answer to the question “Do you believe a return to pre-injury duties is an appropriate return to work goal for Ms Neeteson-Lemkes?”, Dr Saunders replied (underlining added):

[12] On 22 June 2012, Dr Saunders issued a further WorkCover certificate in which he continued his diagnosis of “anxiety depression (exacerbation of previous condition)”, and also indicated that his present opinion was that Ms Neeteson-Lemkes was not “fit for pre-injury duties”, but was “fit for suitable duties” from 1 July 2012 to 31 August 2012. Those suitable duties were identified in the certificate as “fit for pre injury duties as a flight attendant, different employer including Qantas”. We note that Jetstar is a subsidiary of Qantas. In a letter dated 16 July 2012 from Mr Michael Coffey, Jetstar’s Occupational Health and Safety Manager, to Dr Saunders, Mr Coffey among other things requested that Dr Saunders provide “urgent clarification” of the following matters:

[13] The list of “routine tasks undertaken by a flight attendant” attached to Mr Coffey’s letter was as follows:

[14] Dr Saunders did not reply to this letter until 24 September 2012, when he faxed back to Jetstar a copy of the letter with his responses handwritten upon it. On the copy of this document put in evidence, the answers are almost entirely illegible.

[15] On 4 September 2012, Dr Saunders issued two further WorkCover certificates. They both contained the same diagnosis as in the earlier certificates, and neither indicated that Ms Neeteson-Lemkes was fit for “pre-injury duties”. However, the first certificate indicated that Ms Neeteson-Lemkes was “fit for suitable duties” for the period 1 September 2012 to 30 September 2012, such duties being “pre injury duties as a flight attendant, different employer including Qantas, fit for union duties”. The second indicated that Ms Neeteson-Lemkes was also “fit for suitable duties” from 1 October 2012 to 17 November 2012. Those duties were now identified as “fit to return flying, to resume 8 hours per week, with gradual increase in hours when certified”. There was no issue that this certificate was referring to suitable duties with Jetstar. This certificate indicating suitable restricted duties from 1 October 2012 represented the first time since Ms Neeteson-Lemkes had ceased work in January 2012 that she had been certified as fit to return to work at Jetstar in any capacity.

[16] Jetstar did not make any arrangement for Ms Neeteson-Lemkes to return to work in accordance with Dr Saunders’s certificate. As the evidence of Ms Audrey Pajmon, Jetstar’s Head of Customer Service, made clear, Jetstar was not satisfied that Ms Neeteson-Lemkes was fit to return to flying duties, and formed the view that she should be referred to an independent specialist for assessment. The bases for Jetstar’s view in this respect were summarised in the Decision as follows 3:

There was no issue that Jetstar was capable of providing Ms Neeteson-Lemkes with work as a flight attendant on the basis of restricted hours, provided she was otherwise fit to perform those duties.

[17] In a letter dated 13 September 2012, Ms Kylie Gardner, Jetstar’s People Manager - Customer Services & Ground Operations, directed Ms Neeteson-Lemkes to attend an appointment with Dr Kipling Walker, a Forensic Psychiatrist, on 19 September 2012. Included in this letter was the following statement:

[18] The same day, Ms Gardner sent a letter of instruction to Dr Walker for the purpose of the assessment of Ms Neeteson-Lemkes. This letter included the list of the “routine tasks undertaken by a flight attendant” that had been included in Mr Coffey’s letter of 16 July 2012 which we have earlier set out.

[19] In a letter also of the same date (13 September 2012) addressed to Mr Coffey, Dr Saunders elaborated upon the conclusions he had expressed in the two WorkCover certificates of 4 September 2012:

[20] Ms Neeteson-Lemkes did not attend the appointment with Dr Walker in accordance with the direction. By letter dated 28 September 2012 Ms Gardner issued a further direction for Ms Neeteson-Lemkes to attend a further appointment with Dr Walker on 17 October 2012, and made it clear that no suitable duties would be provided to her until then, and that disciplinary action, which might include termination of employment, would follow if she did not attend. Ms Neeteson-Lemkes attended this appointment, and provided Dr Walker with some documentation concerning her employment and medical history.

[21] Dr Walker subsequently provided Jetstar with a report dated 31 October 2012. His report stated (underlining added):

[22] Ms Gardner subsequently requested a supplementary report from Dr Walker concerning Dr Saunders’s opinion of Ms Neeteson-Lemkes’s capacity to return to work as a flight attendant. On 7 December 2013, Dr Walker sent a supplementary report to Ms Gardner which included the following (underlining added):

[23] Dr Walker also recorded in that report that he had spoken to Mr McKinley about Ms Neeteson-Lemkes’s condition, and that Mr McKinley said that he had been treating Ms Neeteson-Lemkes for symptoms of anxiety and depression, and that a diagnosis of post-traumatic stress disorder was considered.

[24] Dr Saunders had by this time issued a further WorkCover certificate. This certificate was dated 13 November 2012, and covered the period 17 November to 17 December 2012. In that certificate, Dr Saunders stated a diagnosis similar to that contained in his earlier certificates, namely that Ms Neeteson-Lemkes was suffering from “anxiety depression (exacerbation of previous condition), post traumatic stress”, and made no mention of a personality disorder. He again expressed the opinion that while Ms Neeteson-Lemkes was not fit for pre-injury duties, she was “fit to return flying, to resume 8 hours per week, with gradual increase in hours when certified, fit for union duties”.

[25] Since Dr Saunders had first certified Ms Neeteson-Lemkes as fit for a return to restricted flying duties on 4 September 2012, Ms Neeteson-Lemkes had been agitating to be allowed to return to work in accordance with his certification. After a number of representations were made by her or on her behalf, Ms Neeteson-Lemkes’s union made an application to this tribunal about this issue. This was listed before Commissioner Gregory on 6 December 2012. Jetstar’s position was that it was awaiting Dr Walker’s report before it could determine whether Ms Neeteson-Lemkes could be offered any duties as a flight attendant.

[26] On 11 December 2012, Ms Audrey Pajmon, Jetstar’s Head of Customer Service, sent a letter to Ms Neeteson-Lemkes which initiated the process which led to her dismissal. The key passages of this letter were as follows (underlining added):

[27] On 21 December 2012, Ms Neeteson-Lemkes’s solicitors, Maurice Blackburn, replied to Ms Pajmon’s letter. The letter included the following (underlining added):

[28] This letter, insofar as it disputed the diagnosis of Dr Walker relied on to justify the threatened dismissal, appears to have been concerned with the effect of that diagnosis on the issue of workers’ compensation liability as well as the threatened dismissal itself. Ms Pajmon’s evidence at the hearing was that, having received this letter, she “...observed that no reasons had been provided as to why Jetstar should not terminate Ms Neeteson-Lemkes’s employment”, and considered that Ms Neeteson-Lemkes “...did not want to provide such information”. We interpolate at this point that it appears that the statement that Ms Neeteson-Lemkes had never been diagnosed as suffering from any pre-existing or current personality disorder was not regarded by Ms Pajmon as relevant in this connection. Ms Pajmon sent Ms Neeteson-Lemkes a letter the same day informing her that she was dismissed for the reasons set out in the 11 December 2012 letter effective from that date, with four weeks’ pay in lieu of notice.

[29] Shortly after the dismissal, Dr Saunders wrote the following letter (addressed simply to “Dear Sir”, but which we assume was sent to Jetstar at some stage) giving his version of his communications with Dr Walker (underlining added):

The medical evidence at hearing

[30] At the hearing of Ms Neeteson-Lemkes’s unfair dismissal application, she called evidence from three of her treating practitioners, Dr Saunders, Mr McKinley and Dr Farago. In his evidence, Dr Saunders referred to a brief report he had written concerning Ms Neeteson-Lemkes’s health which he had written on 22 March 2013 after examining her that day. The report read:

[31] Dr Saunders expressed the opinion that Ms Neeteson-Lemkes was “...currently fit to return to working full time hours, whether at Jetstar or otherwise.” Dr Saunders also gave evidence of his recollection of the conversation he had had with Dr Walker on 3 December 2012 as follows:

[32] Dr Saunders also gave evidence that, insofar as he had said anything to Dr Walker about a diagnosis of a personality disorder, the effect of what he had said was only that he “...did not believe that Ms Neeteson-Lemkes suffered from a personality disorder unless her dislike and distrust of Jetstar is described as a personality disorder”.

[33] Mr McKinley had, shortly after the dismissal in about February 2013 4, prepared a “Psychological/Counselling Management Plan” in which he stated that in his opinion Ms Neeteson-Lemkes would not have the capacity to return to “pre-injury activity”. However, in a report which he signed on 6 May 2013 (but which also bears a date of 30 April 2013) he expressed a changed view:

[34] Dr Farago affirmed the contents of a medical certificate he had issued on 30 April 2013 which said:

[35] Ms Neeteson-Lemkes also obtained an expert report from Mr Ilan Cohen, a Clinical Psychologist. Mr Cohen consulted with Ms Neeteson-Lemkes on 27 April, 30 April and 1 May 2013 before preparing his report on 6 May 2013. Part of his assessment process was carried out by the use of a psychological test, the Carlson Psychological Survey. His conclusion in his report was as follows:

[36] Mr Cohen criticised some aspects of Dr Walker’s report in which he had diagnosed Ms Neeteson-Lemkes as suffering from a personality disorder, including that Dr Walker had not specified the type of personality disorder that Ms Neeteson-Lemkes was said to have, that Ms Neeteson-Lemkes had no history of the behaviours of self-harm, drug abuse or anti-social behaviour which were indicative of personality disorder, that Dr Walker had interviewed Ms Neeteson-Lemkes on one occasion only and had not administered a psychological test, and that he had treated Ms Neeteson-Lemkes’s demonstrated anger towards Jetstar as a symptom of a personality disorder rather than a justifiable reaction to her employment experiences with Jetstar.

[37] Jetstar called Dr Walker to give evidence. He affirmed the contents of his 31 October 2012 report, and the version he had given of his conversations with Dr Saunders as described in his supplementary report of 7 December 2012. In a reply statement, he responded to some of the matters raised in Mr Cohen’s report, including that:

[38] Dr Walker also made it clear that the personality disorder diagnosis was the critical issue with respect to Ms Neeteson-Lemkes’s capacity to return to her duties as a Jetstar flight attendant, saying:

The Decision

[39] The Commissioner found that the dismissal of Ms Neeteson-Lemkes was harsh, unjust and unreasonable. Her conclusions in this respect were as follows:

[40] Later in this decision we analyse in greater detail the reasoning process by which the Commissioner reached these conclusions, including the extent to which the matters identified in s.387 of the Act were taken into account. On the question of remedy, the Commissioner dealt with the medical evidence concerning Ms Neeteson-Lemkes’s capacity to resume work as a flight attendant with Jetstar, including in particular the evidence of Dr Walker. The Commissioner did not accept the opinion of Dr Walker and preferred the evidence of the practitioners called by Ms Neeteson-Lemkes, saying:

[41] The Commissioner went on to set out in detail those aspects of Dr Walker’s report she found to be “troubling” and why. The Commissioner then dealt with the necessity of Ms Neeteson-Lemkes to be re-issued with an Australian Security Identification Card (ASIC), and found this was not an impediment to reinstatement, being a separate matter beyond the Commission’s purview which would take its own course (underlining added):

Ultimately as to Ms Neeteson-Lemkes’s fitness to return to work, the Commissioner said:

[42] The Commissioner ordered Ms Neeteson-Lemkes’s reinstatement, and directed the parties to confer as to the making of an order for lost pay, with liberty to apply being granted if an agreement could not be reached on the subject.

Grounds of Appeal

[43] Jetstar’s Notice of Appeal contained a number of appeal grounds. Those grounds essentially involved three main propositions:

(1) The Commissioner failed to make a finding about whether Jetstar had a valid reason for the dismissal (namely that Ms Neeteson-Lemkes was incapable of performing the inherent duties of a flight attendant), and thereby failed to discharge her statutory duty under s.387(a) of the Act to take into account, in considering whether the dismissal was harsh, unjust or unreasonable, “whether there was a valid reason for the dismissal related to the person’s capacity or conduct”.

(2) The Commissioner erred in finding that Ms Neeteson-Lemkes had not been given an opportunity to respond to the reason for her dismissal relating to her incapacity, given that Jetstar’s letter to her of 11 December 2012 set out that reason and gave her ten days to respond, and Ms Neeteson-Lemkes did in fact respond by way of the letter of her solicitors, Maurice Blackburn, of 21 December 2012.

(3) The Commissioner erred in ordering the reinstatement of Ms Neeteson-Lemkes in circumstances where, on proper analysis, the medical evidence (particularly that of Dr Walker) demonstrated that she was unable to perform the inherent duties of a flight attendant, in particular the requirement to deal with emergency situations onboard aircraft, and where no reasonable adjustment to the requirements of those duties could be made to accommodate her.

Consideration

[44] It is only necessary for us to consider the first of these appeal submissions. Section 387 of the Act requires the Commission, when considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of specified matters. The first matter is as follows:

[45] The requirement to take this matter into account means that not only must it be considered but it must be treated as a matter of significance in the process of deciding whether the dismissal was unfair. 5 In this matter, as earlier stated, the reason for the dismissal relied upon by Jetstar was a capacity based one, namely that Ms Neeteson-Lemkes was unable to perform the inherent requirements of her safety critical role then or in the future, and that there were no reasonable adjustments which could be made to allow her to perform that role. Section 387(a) therefore required the Commissioner to consider and make findings as to whether, at the time of the dismissal, Ms Neeteson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her and, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her. Those findings then need to be considered and treated as matters of significance in the process of deciding whether Ms Neeteson-Lemkes’s dismissal was, to use the general rubric, unfair.

[46] The Commissioner’s consideration as to whether Ms Neeteson-Lemkes’s dismissal was unfair was set out in paragraphs [50]-[80] of the Decision. After some introductory comments at paragraphs [50]-[51], the Decision set out s.387(a) in a subheading. At paragraph [52], the Commissioner correctly identified the reason for the dismissal, but this section of the judgment then ended at paragraph [53], which states:

[47] The Commissioner then, under a series of further subheadings, dealt with each of the other matters required to be taken into account under s.387 in paragraphs [54] through to [74]. Then under the heading “Harsh, unjust or unreasonable”, the Commissioner stated her conclusions on this score. Although this section of the Decision opens with the proposition that “The dismissal was bereft of substantive and procedural fairness...”, the gravamen of this part of the Decision is that the unfairness identified was that Jetstar failed to give Ms Neeteson-Lemkes any “fair or reasonable opportunity” to answer the matters, based on Dr Walker’s reports, which Jetstar relied upon as the basis of the dismissal. The issue of “valid reason” was not considered in this part of the Decision beyond being mentioned in the following sentence in paragraph [75]:

[48] This section of the Decision ends with the following:

[49] In her written appeal submissions, and at the hearing of her appeal, it was not contended by Ms Neeteson-Lemkes that the Commissioner had anywhere in paragraphs [50]-[80] made any findings going to the “valid reason” consideration in s.387(a). Her counsel pointed to paragraph [83], which we have earlier set out, as containing the requisite finding. However, even if the second sentence of the above paragraph is to be read as amounting to a finding that Jetstar did not have a valid reason to dismiss Ms Neeteson-Lemkes based upon her capacity, that finding was only made in the context of the Commissioner’s consideration of the remedy to be granted, the Commissioner having already found that the dismissal was harsh, unjust and unreasonable. There is nothing in the Decision which indicates that the matter was taken into account in the Commissioner’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

[50] We are therefore compelled to conclude that the statutory obligation imposed by s.387(a) of the Act was not discharged. That amounts to a significant error of law. 6 In that circumstance, we consider that it is in the public interest to grant permission to appeal, and that it is necessary to quash the Decision and the Order. We so order.

[51] Rather than remit the matter to a single member of the Commission for a further hearing, we consider that the most efficient course is for us to re-determine the matter and issue a further decision pursuant to s.607(3)(b) of the Act.

Re-determination of the matter

[52] We will proceed to deal with each of the matters which we are required to take into account under s.387.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[53] We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. Consideration of the validity of that reason requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button 7, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.

[54] There was no dispute on the evidence that, at the time of the dismissal, Ms Neeteson-Lemkes was unable to perform the inherent requirements of her role, being that of a full-time flight attendant with Jetstar. Although Jetstar relied upon the reports of Dr Walker of 31 October 2012 and 7 December 2012 to support that conclusion, it is not necessary for us to do so. Dr Saunders’s last WorkCover certificate before the dismissal, that of 13 November 2012 for the period 17 November to 17 December 2012, made it clear he did not consider that Ms Neeteson-Lemkes was fit for “pre-injury duties”, only suitable duties. We have earlier referred to there being an evidentiary contest about two conversations which occurred between Dr Walker and Dr Saunders which were referred to in Dr Walker’s two reports. On Dr Saunders’s version (that is, taking the position at its highest in favour of Ms Neeteson-Lemkes), when Dr Walker asked him “Is she fit for return to full time work now?”, he replied “No”. No other practitioner had, either at or before the time of the dismissal, expressed an opinion that Ms Neeteson-Lemkes was fit for a return to her pre-injury duties. Nor did any practitioner who gave evidence at the hearing before the Commissioner express the opinion that, as at the date of dismissal, Ms Neeteson-Lemkes was fit to return to her pre-injury duties.

[55] The issue of the validity of that part of the reason for dismissal concerning Ms Neeteson-Lemkes’s future capacity to perform the inherent duties of her role involves greater complexity. It essentially involves an assessment of the validity of a prediction concerning Ms Neeteson-Lemkes’s future work capacity made at the time of dismissal. At the hearing before the Commissioner, Dr Farago, Dr Saunders, Mr McKinley and Mr Cohen as earlier set out all gave evidence that in their opinion Ms Neeteson-Lemkes was fit to resume her duties as a flight attendant with Jetstar. That evidence was in each case based upon an assessment of her state of health at a time well after the occurrence of the dismissal. Dr Farago assessed her as at 30 April 2013, Dr Saunders as at 22 March 2013, Mr McKinley on or about 30 April 2013, and Mr Cohen as at 27 April, 30 April and 1 May 2013. On one view, those post-dismissal expert opinions, if accepted, would demonstrate that at the time of the dismissal Ms Neeteson-Lemkes did have a future capacity to return to her full role, and to that extent Jetstar did not have a valid reason to dismiss her based upon a prediction otherwise. However, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. 8 Thus in Dundovich v P&O Ports9 - a case which concerned the dismissal of an injured employee who was dismissed because, for the foreseeable future, he would not be able to perform all the duties of his position - a Full Bench of the Commission found that it was necessary to take into account a court judgment that the employee’s injury was work related, even though that judgment post-dated the dismissal, because the judgment was declaratory of facts and legal rights in existence at the time of dismissal.10 Applying this principle, we do not consider it permissible to take into account the expert opinions to which we have referred in assessing the validity of Jetstar’s reason for dismissal because they were clearly founded upon a factual situation which came into existence well after the date of Ms Neeteson-Lemkes’s dismissal, namely her state of health at the time she was assessed. The validity of that part of Jetstar’s reason for dismissal which concerned her future capacity to perform her duties must be assessed by reference to her state of health, and the expert opinions expressed as to her state of health, as they were at the time of her dismissal.

[56] The evidence does not demonstrate that any health professional had positively expressed the view that Ms Neeteson-Lemkes, based upon her state of health at or before the dismissal, would be able to return to full duties at a future time. Dr Walker’s view, to which we have earlier referred, was that she was permanently incapable of returning to her full duties. His opinion was of course contested at the hearing, but even those practitioners who took a contrary view concerning Ms Neeteson-Lemkes’s diagnosis and prognosis had not at the time of dismissal advanced the position that, based on her state of health at that time, she would be able to perform her full role at some future time. As earlier stated, the “Psychological/Counselling Management Plan” prepared by Mr McKinley in about February 2013 11, shortly after the dismissal, stated that in his opinion Ms Neeteson-Lemkes would not have the capacity to return to “pre-injury activity”, although of course by the time of the hearing before the Commissioner he had changed his opinion based upon a later assessment of Ms Neeteson-Lemkes. Dr Saunders had recommended a return to work based on restricted hours, with “gradual increase in hours when certified”, but never gave a positive prognosis for a full return to work prior to the dismissal. Dr Farago did not see Ms Neeteson-Lemkes between 2011 and 2013, and Mr Cohen did not see her before 2013. Therefore it can at least be said that Jetstar’s view at the time of dismissal that Ms Neeteson-Lemkes would not be able to return to work her full duties as a Jetstar flight attendant was not contrary to any medical opinion in existence at or about that time.

[57] The evidence did not identify that there was any reasonable modification to the role of a full-time flight attendant that could be made to facilitate Ms Neeteson-Lemkes’s return to that role. It was the emergency and safety-critical aspects of that role which were of most concern given Ms Neeteson-Lemkes’s work and medical history, and there was no suggestion that any modification in that area was possible.

[58] Therefore we are satisfied that Jetstar had a valid reason for the dismissal of Ms Neeteson-Lemkes based upon the medical advice it had received or which existed at the time of the dismissal. We note that in J Boag and Son Brewing Pty Ltd, the Full Bench said 12:

[59] That proposition was not expressed as a hard and fast rule for every case, because as the Full Bench went on to acknowledge there may be particular facts in particular cases which dictate a different conclusion. The nature of the unfair dismissal jurisdiction is such that it is generally not appropriate to try to express binding rules about what conclusions should be reached in respect of the s.387 matters in relation to generalised factual scenarios. That having been said, we consider that the Full Bench’s proposition in J Boag and Son Brewing Pty Ltd can reasonably be applied to the facts of this case.

Whether the person was notified of that reason

[60] Ms Neeteson-Lemkes was informed of the reason relied upon by Jetstar to justify her dismissal in Ms Pajmon’s letter of 11 December 2012.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[61] We agree with and adopt the Commissioner’s conclusion that Ms Neeteson-Lemkes was not given an opportunity to respond to the reason relied upon by Jetstar to justify her dismissal. The “opportunity” referred to in s.387(c) must be a fair and adequate opportunity, being one which in a practical commonsense way ensures that the employee is treated fairly. 13 We do not consider that Ms Pajmon’s letter of 11 December 2012 afforded such an opportunity, taking into account the way in which the reason was communicated and the subsequent events prior to dismissal.

[62] The letter of 11 December 2012 was essentially a “show cause” letter primarily based upon Dr Walker’s diagnosis and prognosis of Ms Neeteson-Lemkes’s medical condition, with a secondary reliance upon what Dr Saunders purportedly conveyed to Dr Walker about his opinion concerning Ms Neeteson-Lemkes. Dr Walker’s reports were not supplied with the letter, and indeed Ms Neeteson-Lemkes saw them for the first time only after she had commenced her unfair dismissal proceedings. The letter gave a summary of Dr Walker’s conclusions, but no explanation of the basis upon which he had reached those conclusions.

[63] In order for Ms Neeteson-Lemkes to have a fair chance to respond to Ms Pajmon’s letter in a way which might displace Ms Pajmon’s prima facie conclusion that dismissal was justified, she needed to have a reasonable opportunity to rebut Dr Walker’s diagnosis and prognosis. Realistically she could only do that if she had a copy of Dr Walker’s reports and the opportunity to obtain the opinion of another medical specialist in response. This can particularly be demonstrated by reference to Dr Walker’s diagnosis that Ms Neeteson-Lemkes was suffering from a pre-existing personality disorder apparently unrelated to the incidents which occurred during her employment with Jetstar. As both Dr Walker’s report of 31 October 2012 and his subsequent evidence before the Commissioner made clear, the diagnosis of a personality disorder was critical to his prognosis that Ms Neeteson-Lemkes would never be able to return to her role as a Jetstar flight attendant. None of Ms Neeteson-Lemkes’s treating practitioners had ever diagnosed her as having a personality disorder. This was the first time this issue had arisen. The only way in which Ms Neeteson-Lemkes could properly respond to this would be, firstly, to get a copy of Dr Walker’s reports so that the basis of the diagnosis and its consequences could be identified, and secondly obtain an alternate specialist opinion on the subject. A bare denial on her part that she had a personality disorder would hardly constitute a proper response to a diagnosis by a psychiatrist.

[64] The letter sent by Ms Neeteson-Lemkes’s solicitors, Maurice Blackburn, on 21 December 2012 not surprisingly requested a copy of Dr Walker’s report. Ms Pajmon’s letter of dismissal of the same date rejected this request. Ms Neeteson-Lemkes’s union had, even before the letter of 11 December 2012, been requesting that Dr Walker’s report be provided to her, but Jetstar had failed to do this despite having had the primary report for some time. The evidence of Ms Pajmon did not disclose any reasonable basis for refusing to supply Ms Neeteson-Lemkes with Dr Walker’s report. The situation here is very similar to that in Ambulance Victoria v Ms V, in which the Full Bench determined that a failure to provide the employee with medical reports which formed the basis of the decision to dismiss the employee meant that the employee “...had no informed basis upon which she could have contested the decision”. 14

[65] We further note that Jetstar, when it directed Ms Neeteson-Lemkes to attend an appointment with Dr Walker for the purpose of a medical assessment, undertook to her that a meeting would be held with her (and a support person) to “...discuss the contents of the medical report received from Dr Walker”. This never occurred. Ms Pajmon was unable to explain this omission beyond saying that it was an “oversight”. This oversight contributed to the failure of Jetstar to provide Ms Neeteson-Lemkes with an opportunity to respond as referred to in s.387(c).

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[66] As earlier stated, there were no discussions related to the dismissal, so the matter identified in s.387(d) does not arise for consideration.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[67] Ms Neeteson-Lemkes’s dismissal did not relate to unsatisfactory performance, so that the matter identified in s.387(e) is not relevant.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[68] We agree with and adopt the Commissioner’s conclusions about this matter. 15 Jetstar (both in its own right and as a subsidiary of the Qantas Group) is a substantial employer. It has dedicated human resources personnel and access to high-level legal advice. In those circumstances, there was no reason for it not to follow fair procedures in considering whether Ms Neeteson-Lemkes ought be dismissed because of her medical condition.

Any other matters the Commission considers relevant

[69] There are two interconnected matters which we consider relevant to the assessment of whether the dismissal was harsh, unjust or unreasonable, and which weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

[70] The first is that Jetstar relied upon Dr Walker’s diagnosis that Ms Neeteson-Lemkes suffered from a personality disorder without making any proper attempt to consult with her treating doctors about this matter and take account of their opinions. As the evidence at the hearing demonstrated, Dr Walker’s diagnosis was highly controversial. Each of Ms Neeteson-Lemkes’s treating practitioners - Dr Saunders, Dr Farago and Mr McKinley - denied that Ms Neeteson-Lemkes had ever had a personality disorder. In addition Mr Cohen, the expert engaged by Ms Neeteson-Lemkes for the purpose of the hearing before the Commissioner, also disagreed with the diagnosis having assessed her by the use of a psychological test which he described as being “highly sensitive in detecting personality disorder”. Dr Walker did not, in his pre-dismissal reports, identify the nature of the personality disorder he had diagnosed, nor did he identify the criteria by which he had determined that Ms Neeteson-Lemkes suffered from that personality disorder. It was only in his reply statement of evidence that Dr Walker disclosed that the diagnosis was one of Borderline Personality Disorder, and identified which of the nine criteria for this disorder specified in DSM-4 were in his opinion satisfied in Ms Neeteson-Lemkes’s case.

[71] As earlier stated, it was Dr Walker’s diagnosis of a personality disorder (rather than his other diagnosis of adjustment disorder with anxiety) which was critical in his conclusion that Ms Neeteson-Lemkes would be unable to return to her role as a flight attendant with Jetstar. Jetstar, as a self-insurer for workers’ compensation purposes, had received earlier reports from Ms Neeteson-Lemkes’s treating practitioners concerning her mental condition, including from Dr Saunders and Mr McKinley. It also seems likely that Jetstar had received Dr Farago’s 2011 report prior to the dismissal, although the evidence is not entirely clear on that score. None of those reports had diagnosed Ms Neeteson-Lemkes with a personality disorder. In that circumstance, we consider that as a matter of fairness to Ms Neeteson-Lemkes, Jetstar should have obtained an informed response from these practitioners, and taken those responses into account, before making any decision to dismiss her based on an incapacity derived from that disorder.

[72] Jetstar did not do this. Dr Walker, in preparing his report of 31 October 2012, did speak to Mr McKinley and Dr Saunders. He recorded in that report that Mr McKinley had been treating Ms Neeteson-Lemkes for symptoms of anxiety and depression, and that a diagnosis of post-traumatic stress disorder was considered. He does not record that he ever obtained the views of Mr McKinley as to whether Ms Neeteson-Lemkes had a personality disorder, and of course Mr McKinley’s evidence at the hearing (the issue having been raised with him after the dismissal) was that she did not suffer from such a disorder.

[73] The position is a little different with Dr Saunders. After Jetstar received Dr Walker’s first report of 31 October 2012, it requested Dr Walker to “contact Dr Saunders and provide a supplementary report”. The evidence does not make clear why it took this course instead of contacting Dr Saunders directly and asking him to either prepare his own report or to respond to Dr Walker’s first report. Dr Walker reported that he had two conversations (on 20 November and 3 December 2012), in the first of which Dr Saunders purportedly “...agreed that Ms Neeteson-Lemkes had an adjustment disorder with anxiety, and a personality disorder”. Dr Saunders gave a significantly different version of this in his evidence, saying he could only recall one conversation in which he communicated his view that he “...did not believe that Ms Neeteson-Lemkes suffered from a personality disorder unless her dislike and distrust of Jetstar is described as a personality disorder”. If that is what was said, that was clearly not, properly speaking, an agreement to a diagnosis of a personality disorder. Dr Saunders’s further WorkCover certificate of 13 November 2012 had repeated his diagnosis of “anxiety depression (exacerbation of previous condition), post traumatic stress”, with no mention of a personality disorder. Dr Saunders’s letter of 24 December 2012 explained the proper context of his conversation with Dr Walker concerning whether Ms Neeteson-Lemkes had a personality disorder in terms consistent with his later evidence at the hearing. Having regard to these matters, we do not consider that the evidence demonstrates that Dr Saunders ever diagnosed, or agreed with a diagnosis, that Ms Neeteson-Lemkes suffered from a personality disorder. The approach taken by Jetstar in having Dr Walker ring Dr Saunders and then report back to it about what Dr Saunders had said was inappropriate and almost bound to lead to a miscommunication of Dr Saunders’s actual opinion.

[74] The appropriate course would have been to request Dr Saunders and Mr McKinley to prepare reports giving their response to Dr Walker’s first report. If this had occurred, then the fact that Dr Walker’s critical diagnosis of a personality disorder was rejected by Ms Neeteson-Lemkes’s treating practitioners would have become clear. The failure by Jetstar to take this course meant that Ms Neeteson-Lemkes was dismissed substantially in reliance upon a highly controversial diagnosis, and that no proper account was taken of the opinions of her treating practitioners.

[75] Secondly, this failure by Jetstar led to the further result that Ms Neeteson-Lemkes did not obtain the benefit of the policy requirements of Jetstar’s “Return to Work Program” (Policy), noting that the policy adopted by Jetstar is that of the Qantas Group as a whole. The Policy, which presumably was among other things intended to satisfy Jetstar’s statutory obligations under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), relevantly provided as follows (underlining added):

[76] The Policy clearly committed Jetstar to make reasonable efforts to return injured employees to work, on suitable duties if necessary, as soon as was safely possible. We do not consider that Jetstar made reasonable efforts to give Ms Neeteson-Lemkes the benefit of that commitment, in that Jetstar failed to act on Dr Saunders’s opinion that Ms Neeteson-Lemkes was fit to return to work on restricted duties as part of a graduated return to work plan, failed properly to obtain and take into account the opinion of Ms Neeteson-Lemkes’s treating practitioners as to whether she had a personality disorder before acting upon Dr Walker’s diagnosis and prognosis, and failed to give her an opportunity to provide a proper response to Dr Walker’s report. Having regard to the evidence concerning Ms Neeteson-Lemkes’s health which was adduced at the hearing before the Commissioner, there is a reasonable prospect that Ms Neeteson-Lemkes could have been returned to work on restricted or alternative duties, and that upon further assessment of her capacity and performance might ultimately have returned to full pre-injury duties, had Jetstar done otherwise.

Conclusion

[77] Having taken into account the matters identified in s.387 of the Act, we find that Ms Neeteson-Lemkes’s dismissal was harsh, unjust and unreasonable. In summary, although at the time of the dismissal Ms Neeteson-Lemkes was unfit to return to her full duties as a flight attendant and there was no positive prognosis that she would be fit to return to full duties at some future time, her dismissal was harsh, unjust and unreasonable because Jetstar:

(1) relied on Dr Walker’s diagnosis of a personality disorder in circumstances where such a diagnosis was highly controversial as demonstrated by the evidence at the hearing, none of Ms Neeteson-Lemkes’s treating practitioners had ever made such a diagnosis, and Jetstar made no proper attempt to obtain and take into account the views of the treating practitioners in response to Dr Walker’s report;

(2) failed to give Ms Neeteson-Lemkes a proper opportunity to respond to the reason for dismissal and Dr Walker’s report before dismissing her; and

(3) failed to make reasonable efforts to afford Ms Neeteson-Lemkes the return to work benefits of the Policy.

Remedy

[78] Ms Neeteson-Lemkes seeks the primary remedy of reinstatement under s.390 of the Act. The critical issue in this connection is whether Ms Neeteson-Lemkes is medically fit to resume her duties as a Jetstar flight attendant, particularly having regard to the issue of whether she has a personality disorder. In the Decision the Commissioner accepted the evidence of Mr Cohen, Dr Saunders, Dr Farago and Mr McKinley that Ms Neeteson-Lemkes “could be reintegrated to work as a flight attendant” and that “that would be appropriate”, and did not accept the evidence of Dr Walker to the contrary. 16 However we consider that the medical evidence taken in its entirety is unsatisfactory, and is not such as to permit us to form a final conclusion on the question of whether Ms Neeteson-Lemkes should be reinstated to her employment with Jetstar as a flight attendant, for the following reasons:

(1) Any determination we make as to reinstatement must be based on Ms Neeteson-Lemkes’s current state of health. The medical evidence as a whole is now considerably out of date. The most recent assessment of Ms Neeteson-Lemkes upon which any of that evidence was based occurred over seven months ago.

(2) Dr Walker, who was the only practitioner to diagnose Ms Neeteson-Lemkes with a personality disorder, carried out his assessment of her in October 2012. He did not examine her again at any time after her dismissal. The other practitioners, who all assessed Ms Neeteson-Lemkes at a considerably later point in time in 2013, were all of the view that her health had improved considerably since the time of her dismissal. It is difficult therefore to consider fairly whether to accept or reject Dr Walker’s evidence vis-a-vis that of the other practitioners in circumstances where his assessment was apparently based on a significantly earlier and different presentation of symptoms.

(3) In respect of the personality disorder issue, the practitioners appeared to be at cross-purposes as to the appropriate criteria for and method of diagnosis. For example, Dr Walker assessed Ms Neeteson-Lemkes on the basis of nine criteria derived from DSM-4, of which he said five had to be satisfied in order to support a positive diagnosis. He also proceeded on the basis that a diagnosis could be made on the basis of a single assessment session supported by material going to Ms Neeteson-Lemkes’s previous medical and personal history. However Mr Cohen appeared to consider that three behavioural criteria, namely self-harm, drug abuse and anti-social behaviour or extreme animosity were critical to a diagnosis of a personality disorder. He also expressed the opinion that assessment should occur over more than one assessment session, or else that a psychological test should be used. Thus the conclusions expressed by these practitioners cannot be assessed against commonly agreed criteria and methodology.

(4) Dr Walker in his reply statement of evidence identified which of the nine DSM-4 criteria he considered were satisfied in Ms Neeteson-Lemkes’s case. However what was not identified was the factual material he had before him which enabled him to reach the conclusion that particular criteria were satisfied. For example, Dr Walker said that the following criterion was satisfied: “Impulsivity in at least two areas that are potentially self-damaging (e.g. spending, sex, substance abuse, reckless driving, binge eating)”. We cannot readily identify in the material before us anything in Ms Neeteson-Lemkes’s behavioural history which would meet this criterion. At the hearing of the appeal, counsel for Ms Neeteson-Lemkes submitted that, with the possible exception of one criterion, there was no factual material to support the conclusion that any of the criteria were satisfied. But, as counsel for Jetstar pointed out, Dr Walker was never cross-examined about his conclusions as to the DSM-4 criteria, and thus was not given the opportunity to explain and defend his conclusions in this respect. We cannot therefore determine on the material before us whether there was a proper factual basis for Dr Walker’s conclusions as to those criteria.

(5) The evidence does not provide us with sufficient information about the nature of personality disorders, including when and how they originate and whether they are capable of amelioration or resolution. We consider such information is necessary to assist us in at least three respects. Firstly, although Dr Walker diagnosed Ms Neeteson-Lemkes as having a “pre-existing” personality disorder, he did not explain when this disorder may have developed or what (if anything) may have caused it. This is significant, given that Ms Neeteson-Lemkes appears to have worked satisfactorily as a flight attendant at least until the time of her first psychological injury if not afterwards; it raises the question of why, if she had the personality disorder at this time, it did not impact upon her work as a flight attendant. Secondly, given that Ms Neeteson-Lemkes’s health has apparently improved significantly in the early part of 2013, it raises the further question of whether, if she ever had a personality disorder, it has been ameliorated or resolved in a way that would no longer preclude her from performing work as a flight attendant for Jetstar. Thirdly, even if Ms Neeteson-Lemkes does have a personality disorder, it is unclear to us on the evidence why and how that would affect her capacity to perform flight attendant duties in the future. The medical evidence concentrated on the question of whether Ms Neeteson-Lemkes should be diagnosed as having a personality disorder, but paid little attention to the symptomology of such a disorder and its relationship, if any, with the capacity to perform flight attendant duties.

[79] In those circumstances we consider it necessary for there to be a further hearing on the question of remedy. That further hearing should involve additional expert medical opinion to address the difficulties in the existing evidence we have identified. We consider that the most desirable course would be for the parties to jointly instruct an independent forensic psychiatrist, nominated by agreement, to prepare a new report based on a current assessment of Ms Neeteson-Lemkes and a review of all the health reports, records and other material to date. The instructions to this expert should ensure that the issues we have raised in these reasons for decision are dealt with. If the parties cannot agree upon the nomination of a new expert, this Full Bench would be prepared to nominate one from an agreed list or otherwise if necessary. It will of course be necessary for Ms Neeteson-Lemkes to cooperate in this process by undergoing an assessment by the nominated forensic psychiatrist.

[80] We would also expect that further evidence would be adduced from Ms Neeteson-Lemkes herself concerning her current perception of her health and her work capabilities, having regard to her employment and personal history since the date of her dismissal.

[81] There is one other thing. Under s.590(1) of the Act, the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate, except as otherwise provided for by the Act. Although no mention at all was made about it by the parties in these proceedings, it has not escaped our attention that it has been reported in a number of Australian media outlets that law enforcement authorities in the Republic of South Africa have made allegations of criminal conduct of the most serious kind concerning Ms Neeteson-Lemkes and have stated an intention to take steps to have Ms Neeteson-Lemkes extradited to South Africa. We emphasise that we have formed no view whatsoever of the truth of the media reports, let alone the truth of the criminal allegations referred to in those reports. However, we do not consider that the fact that these matters have not been raised by either party in the proceedings entitles us simply to ignore them. We are required in this matter to determine whether Ms Neeteson-Lemkes should be reinstated to the role of flight attendant in a major Australian airline - a role which is safety-critical, and the performance of which requires the holding of an ASIC. It would put us in an entirely invidious position if we had to decide that question completely uninformed as to the very serious matters alleged in the media. The potential for detriment to the public interest in that situation is obvious. Significant questions also arise about any relationship between the airing of these allegations and Ms Neeteson-Lemkes’s current mental health, and whether Ms Neeteson-Lemkes will in future be able to obtain the security clearances necessary to make reinstatement practicable. Therefore we would expect at the further hearing of the matter to receive from the parties any available and reliable information about the reported matters, and submissions based on any such information, so that we may decide this matter in a way which is properly informed and not contrary to the public interest.

[82] We will call the matter on for a directions hearing shortly, at a time to be advised. We would expect that the parties will before that time confer as to the further disposition of the matter including the nomination of an independent psychiatric expert as earlier discussed. The parties may also wish to consider whether the matter can be settled having regard to our reasons for decision. If in that connection the parties consider that the assistance of a member of the Commission would be of utility, such assistance will be provided on request.

VICE PRESIDENT

Appearances:

F. Parry SC with J. Darams of counsel for Jetstar Airways Pty Limited

J. D’Abaco of counsel with M. Dawson solicitor for Ms Monique Neeteson-Lemkes

Hearing details:

2013.

Sydney:

22 October.

 1   [2013] FWC 5840, PR540392, 16 August 2013

 2   PR540393

 3   Decision at [13]

 4   PN1158

 5   Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5] per Moore J; King v Freshmore (Vic) Pty Ltd Print S4213 at [19]-[23].

 6   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, PR516282, 22 November 2011 at [14]

 7   [2010] FWAFB 4022, PR997513, 26 May 2010 at [22]-[27]

 8   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ and Dawson and Toohey JJ; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14; Paech v Big W Monarto Warehouse [2007] AIRCFB 1049 at [8].

 9   PR923358

 10   Ibid at [78]-[79]

 11   PN1158

 12   [2010] FWAFB 4022 at [29]

 13   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 at [26]; Osman v Toyota Motor Corporation Australia Ltd PR910409 at [69].

 14   [2012] FWAFB 1616, PR520567, 15 March 2012 at [51]-[52]

 15   Decision at [69]-[70]

 16   Decision at [81]-[84]

Printed by authority of the Commonwealth Government Printer

<Price code G, PR544705>