[2013] FWC 5840
The attached document replaces the document previously issued with the above code on 16
August 2013.
The attached document corrects miscellaneous typographical errors.
Associate to Commissioner McKenna
Dated 19 September 2013
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Monique Neeteson-Lemkes
v
Jetstar Airways Pty Limited
(U2013/27)
COMMISSIONER MCKENNA SYDNEY, 16 AUGUST 2013
Application for unfair dismissal remedy.
[1] Monique Neeteson-Lemkes (“the applicant”) has lodged an application, pursuant to
s.394 of the Fair Work Act 2009 (“the Act”), for an unfair dismissal remedy concerning her
dismissal by Jetstar Airways Pty Limited (“the respondent”).
[2] The determination of the applicant’s application falls to be considered only on the
question of whether the dismissal was harsh, unjust or unreasonable. There are no preliminary
matters that require determination in this decision as it is common ground the applicant
properly may make this application for an unfair dismissal remedy.
Background
[3] The applicant commenced employment with the respondent airline in May 2006 as a
Sydney-based, domestic flight attendant. The respondent dismissed the applicant on 21
December 2012 on the basis of the conclusion by the respondent’s Head of Customer Service,
Audrey Pajmon, the applicant was, shortly stated, unable to fulfil the inherent requirements of
the position.
[4] By way of background, the applicant has made three claims with respect to workers’
compensation-related injuries during her period of employment with the respondent. The
applicant sustained a work-related back injury in 2006. The applicant performed light duties
and received physiotherapy for three months after this injury, and returned to full duties.
Nothing in the proceedings turned on the first workers’ compensation claim.
[5] In 2010, the applicant made a workers’ compensation claim concerning alleged
bullying and harassment. The second workers’ compensation claim was initially disputed, but
the claim later settled following proceedings before the Workers’ Compensation Commission
of NSW. The applicant returned to full duties after the second workers’ compensation claim.
The terms of settlement were not in evidence.
[2013] FWC 5840 [Note: An appeal pursuant to s.604 (C2013/5863) was
lodged against this decision - refer to full Bench decisions dated
13 December 2013 [2013] FWCFB 9075 and 24 December 2014 [[2014]
FWCFB 8683]] respectively for result of appeals.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB8683.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB8683.htm
http://www.fwc.gov.au/decisionssigned/html/2013FWCFB9075.htm
[2013] FWC 5840
2
[6] On 11 August 2011, the applicant was performing duties on Flight JQ 672 from
Sydney to Darwin. In the course of cleaning and re-stocking the lavatories, the applicant
noticed something in a toilet bowl. It was a type of green circuit board embedded in a
plasticine-like substance, with protruding wires and a cylindrical battery (“the device”). A
photograph of the device was in evidence and it fairly can be described as having every
appearance of being a bomb. After finding the device, the applicant attended to matters that
were professionally expected of a flight attendant while the plane continued flying. When the
plane landed, the applicant again attended to those matters that were professionally expected
of her as a flight attendant, including preparation of documentation and the like concerning
the incident.
[7] Apart from the understandably (put at its lowest) upsetting experience of finding the
device, which the applicant also understandably feared would explode while the plane
continued on its journey, the applicant was also upset, concerned and angered by what she
considered to be the inappropriate conduct of the respondent following the discovery of the
device, including, but not limited to, the failure to divert the plane or request an emergency
landing and a range of other matters in the aftermath.
[8] Following the events concerning finding the device, the applicant developed a
psychological injury and was, following periods of forms of leave, unable to work from about
January 2012. The applicant made a third workers’ compensation claim with respect to that
injury. Liability was accepted concerning the applicant’s workers’ compensation claim.
[9] As workers’ compensation liability was accepted, various workers’ compensation
statutes and policies of the respondent concerning workers’ compensation were engaged. As
to legislation, the statutes included the Workplace Injury Management and Workers'
Compensation Act 1998 (NSW) and the Workers Compensation Act 1987 (NSW). The
respondent has a policy titled the Jetstar Injury Management Policy and a detailed Return to
Work Program policy concerning injured workers. The respondent is a workers’
compensation self-insurer and engages a company named Allianz Australia Worker’s
Compensation (NSW) Ltd (“Allianz”) to attend to at least some aspects of its workers’
compensation matters, while dealing with other such matters on an in-house basis.
[10] The applicant has, pre- and post-dismissal, consulted a number of doctors,
psychologists and psychiatrists, and was also, preceding the dismissal, directed by the
respondent to attend an appointment with a psychiatrist it nominated (collectively, “the health
professionals”), concerning her psychological injury. A number of documents were tendered
in evidence concerning the applicant and the health professionals’ diagnoses and prognoses;
and oral evidence was also adduced in the respective cases concerning such matters. The
health professionals’ opinions differed about the proper characterisation of the applicant’s
diagnosis.
[11] While I have considered all the evidence concerning the applicant and her condition at
various stages following the workers’ compensation claim, I do not repeat those matters in
this decision. For present purposes, it suffices to say the applicant presented to the respondent
WorkCover medical certificates from her general practitioner, Dr Alan Saunders (who is also
designated by the Civil Aviation Safety Authority (“CASA”) as a Designated Aviation
Medical Examiner), relevantly indicating that the applicant was considered unfit for work
around the first half of 2012; the applicant was, for a time, considered fit for pre-injury duties
as a flight attendant with an airline such as Qantas, albeit not with the respondent; and the
[2013] FWC 5840
3
applicant was then next considered as fit for a graduated return to flying work, including with
the respondent, of eight hours a week, with a gradual increase in hours when certified.
[12] The respondent did not make arrangements to return the applicant to work in
accordance with the WorkCover certificate specifications for eight hours a week with a
gradual increase in hours, or on any other basis. As to this, Ms Pajmon deposed as follows
concerning matters related to the applicant’s return to work:
“30. ... it is correct that if an employee is fully cleared to fly on a graduated hours
schedule, [the respondent] may be able to accommodate the graduated hours, taking
into consideration the particular injury and needs of the individual employee and [the
respondent’s] flying patterns. However, in the case of the applicant, because of the
concerns set out in paragraph 18 above, [the respondent] was not initially satisfied that
[the applicant] was fully fit to return to flying duties. ...”
[13] The concerns to which reference is made in the preceding extract of Ms Pajmon’s
evidence were, in particular, that it was necessary to seek an independent specialist opinion
regarding the applicant’s condition for these reasons:
two medical certificates concerning the applicant were received on the same day;
the applicant’s medical certification had moved straight from being unfit for any
duties with the respondent, including any administrative duties, to being fit to return
to flying;
the safety-critical nature of a flight attendant’s flight duties determining the
applicant’s fitness for work before returning her to flying duties; and
given the nature of the applicant’s condition, having an independent opinion of a
specialist psychiatrist, not just a general practitioner.
[14] The respondent’s People Manager - Customer Service & Ground Operations, Kylie
Gardner, wrote to the applicant on 13 September 2012 directing the applicant to attend an
appointment with Dr Kipling Walker. Among other matters, the letter, which was headed
“Your Injury Management and Return to Work Plan”, advised the applicant of the following:
“... Following this appointment we will arrange a meeting with you to discuss the
contents of the medical report received from Dr Walker. Present at this meeting will be
myself as your HR Business Manager, and your manager [named individual] you are
also welcome to bring a support person to this meeting if you wish. I will be in touch
shortly to confirm the time and location of this meeting.
I look forward to meeting with you soon.”
[15] For reasons that are unnecessary to recount in this decision, the applicant did not
attend the initial appointment the respondent had arranged with Dr Walker.
[16] On 28 September 2012, Ms Gardner again wrote to the applicant about matters
including, but not limited to, reasons why “until attendance at the below mentioned
[2013] FWC 5840
4
appointment [with Dr Walker], suitable duties are not able to be provided”. The letter advised
in part:
“It is for the above reasons, and those outlined in our letter dated 13 September 2013,
you are directed to attend a medical appointment with Dr Kipling Walker, Psychiatrist,
at 9 am on 17 October 2012. Dr Walker is located at [address]. This requirement to
attend the above appointment is also consistent with S38A of the Workers
Compensation Act 1987. You are further put on notice that should there be an earlier
appointment that may arise with Dr Walker prior to 17 October 2012 you may be
required to attend at short notice to avoid further delays.
As previously advised, Jetstar is able to require you to attend this medical appointment
under the terms of your employment contract dated 12 May 2006, a copy of which is
attached. Failure to attend this medical appointment will result in you being personally
liable to cover all associated costs with non attendance to the appointment.
If you fail to follow this lawful and reasonable direction, you will be subject to
disciplinary action, which may include termination of your employment.”
[17] The applicant attended an appointment with Dr Walker on 17 October 2012.
Following that appointment, Dr Walker prepared a nine-page report dated 31 October 2012.
[18] There was evidence from a union official, Dissio Markos, outlining the informal and
formal contact made by the union on the applicant’s behalf concerning the delay in returning
the applicant to work in accordance with her WorkCover certificates from Dr Saunders. In
this regard, Mr Markos’ evidence indicated that from around the end of October or the
beginning of November 2012, he contacted Ms Gardner on a number of occasions to query
the delay in effecting the applicant’s return to work and to explain this was frustrating. Ms
Gardner advised Mr Markos the respondent was waiting for Dr Walker’s report before an
assessment could be made. Proceedings were initiated in the Tribunal about matters
concerning the applicant, which were listed before Gregory C on 6 December 2012. Mr
Markos deposed that the respondent’s representative in the proceedings, Chris Best,
Employee Relations Advisor, advised the respondent was, as of that date, waiting for Dr
Walker’s report. Mr Markos further deposed that, on 6 December 2012, the union received
correspondence from Ms Gardner advising that the respondent was awaiting the report from
Dr Walker.
[19] By letter dated 11 December 2012, Ms Pajmon, wrote to the applicant noting certain
matters, including that the applicant had most recently provided a WorkCover certificate
relevantly indicating she was “fit to return to flying, to resume flying 8 hours per week, with a
gradual increase in hours when certified ...”. The letter further noted the applicant had
attended an appointment with Dr Walker, whose nine page opinion was summarised in six
points in the respondent’s letter. The letter referred also to the content of discussions said to
have occurred between Dr Walker and Dr Saunders (the content of that discussion was the
subject of dispute on the evidence of the respective doctors). The letter was referred to in Ms
Pajmon’s evidence as a “show cause” letter. It read:
“As you know, you have not performed work as a Flight Attendant for Jetstar since
January 2012.
[2013] FWC 5840
5
You have been diagnosed with "[conditions] (exacerbation of previous condition)" by
your treating medical practitioner, Dr Alan Saunders. Dr Saunders has also provided,
through WorkCover certificates and a report dated 13 September 2012, the following
fitness for duty assessments:
7 Jan 2012 - 31 Jan 2012 “unfit”
19 Feb 2012 -17 Mar 2012 “unfit to fly, unfit for FAA duties”
18 Mar 2012 - 7 Apr 2012 “unfit”
8 Apr 2012 - 5 May 2012 “unfit”
6 May 2012 - 2 June 2012 “unfit”
1 Jul 2012 - 31 Aug 2012 “Fit for pre-injury duties as a flight
attendant, different employer including
Qantas”
1 Sept 2012 - 30 Sept 2012 “fit for pre-injury duties as a flight
attendant, different employer including
Qantas, fit for union duties”
1 Oct 2012 -17 Nov 2012 “fit to return to flying, to resume flying 8
hours per week, with gradual increase in
hours when certified”
17 Nov 2012 -17 Dec 2012 “fit to return to flying, to resume flying 8
hours per week, with gradual increase in
hours when certified. Fit for union work”
As we advised you by letter dated 6 September 2012, as part of the ongoing
management of your Return to Work Program, Jetstar needed to make an assessment
regarding your future capacity to undertake the duties of a Flight Attendant with
Jetstar. To ensure we had the most up to date medical information when making any
decisions we made an appointment for you with an independent medical specialist, Dr
Kipling Walker, who is a psychiatrist.
You attended an appointment with Dr Walker on 17 October 2012.
Following your assessment, Dr Walker has advised Jetstar of his expert opinions as
follows:
1. You suffer from psychological conditions, namely [named conditions].
2. You are not fully fit to return to work as a flight attendant with Jetstar.
3. Your psychological prognosis is poor and you are unlikely to become fully
fit to return to work in a flight attendant role at Jetstar.
[2013] FWC 5840
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4. Returning you to work with Jetstar in any capacity will aggravate and
prolong your [condition].
5. You are not fit to deal with emergency situations on-board aircraft and such
emergency situations would aggravate and prolong your [condition].
6. An exacerbation of your [condition] would prevent you from carrying out
emergency procedures as it would affect your concentration and thought
processes, overwhelming your ability to think logically and respond
appropriately to an emergency situation.
Dr Walker has discussed these matters with your treating GP, Dr Saunders, most
recently on 3 December 2012, who:
1. Agrees with Dr Walker's diagnosis of your psychological conditions as
identified in 1 above.
2. As a result of the diagnosis, would be surprised if you became fit for full-
time flight attendant duties, even with a graduated return to work.
3. Is unsure how you would react in an emergency situation as a flight
attendant.
On the basis of all of the information presently available to Jetstar about your present
and future fitness for work, we are now considering terminating your employment on
the basis that you are unable to perform the inherent requirements of your role with
Jetstar now or in the future and there are no reasonable adjustments that could be made
such as to allow you to perform your safety-critical role.
You are now invited to provide to Jetstar any additional material that you would like
Jetstar to consider before making a decision in relation to your employment. Any such
material must be provided to me in writing (by email: [email address]) by no later than
5pm 21 December 2012.”
[20] By letter dated 21 December 2012, the solicitors who were then acting for the
applicant in relation to workers’ compensation matters, Maurice Blackburn Lawyers, wrote to
Ms Pajmon. Among other matters, the applicant’s solicitors disputed Dr Walker’s diagnosis
and requested a copy of the report concerning the applicant he had provided to the respondent
(and any other relevant medical information), particularly in the context of the potential
implications for the applicant’s workers’ compensation entitlements should the respondent
terminate the applicant’s employment. The letter read, in part:
“As you are no doubt aware, our client suffered a psychological injury on 11 August
2011 during the course of her employment with Jetstar. Consequently, she consulted
her nominated treating doctor, Dr Saunders. Dr Saunders then referred her on to Mr
Andrew R McKinley, Psychologist for further review.
[2013] FWC 5840
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Our client was diagnosed as suffering from [named conditions] which was work-
related. Since the most recent work-related injury, our client has been receiving
counselling and cognitive behavioural therapy from her psychologist.
As a result, she has been unfit to return to her pre-injury duties as a flight attendant
with Jetstar.
As a result, Jetstar arranged for our client to attend an appointment with Dr Walker,
Psychiatrist on 17 October 2012 to ascertain her capacity to return to her pre-injury
duties. The outcome of the assessment led Dr Walker to opine that our client suffers
from [named conditions].
We confirm that our client instructs that she has never been diagnosed as suffering
from any [named conditions]. Our client instructs that the reason for her ongoing
incapacity in relation to her employment with Jetstar as a flight attendant is entirely as
a result of the most recent injury which she sustained on 11 August 2011 and the
subsequent trauma that followed.
In your correspondence dated 11 December 2012, you rely upon the diagnosis of Dr
Walker in relation to the psychological conditions suffered by our client in order to
determine whether Jetstar will terminate her employment due to her ongoing
incapacity.
In light of the above, in particular the diagnosis of a [named condition], and its
potential implications on our client’s ongoing workers’ compensation entitlements
should you choose to terminate her employment, we kindly request that you provide a
copy of the report of Dr Walker and any other medical information that you might
have that demonstrates or confirms that our client suffers from a pre-existing
[condition].
We look forward to your response and a copy of Dr Walker’s report in due course.
In the interim, if the writer can be of any assistance, please do not hesitate to contact
him or his assistant [name of assistant and telephone number].”
[21] It does not appear the applicant or her solicitors were aware of Dr Walker’s
supplementary report, given there was no request in the letter of 21 December 2012 for that
particular report.
[22] In her evidence-in-chief, Ms Pajmon, who was the decision-maker concerning the
applicant’s dismissal, described the matters that led her to make the decision to dismiss as
follows:
“28. On 21 December 2012, [the respondent] received a letter from Maurice Blackburn
Lawyers who were acting for [the applicant.] I reviewed the letter and observed that no
reasons had been provided as to why [the respondent] should not terminate [the
applicant’s] employment. I therefore considered that [the applicant] did not want to
provide such information and that I should proceed to determine whether to terminate
her employment based on what information I had. ...
[2013] FWC 5840
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29. Based on the reports from Dr Walker and the lack of any reasons provided by [the
applicant] in response to the show-cause letter dated 11 December 2012, I decided that
[the respondent] should terminate [the applicant’s] employment. ...”
[23] By letter dated 21 December 2012, Ms Pajmon wrote to the applicant advising of the
dismissal.
Submissions for the applicant
[24] The submissions for the applicant addressed the satisfaction of the prerequisites for the
applicant to make an application for an unfair dismissal remedy and then addressed the
provisions of s.387 of the Act in contending the dismissal was harsh, unjust or unreasonable.
[25] The reasons given by the respondent for the applicant's dismissal were described in the
letter of termination of 21 December 2012 as being the reasons set out in Ms Pajmon’s letter
of 11 December 2012, namely that the applicant was unable to perform the inherent
requirements of her role with the respondent then or in the future and there were no
reasonable adjustments that could be made such as to allow her to perform her safety-critical
role.
[26] Such reasons were said to have been based upon Dr Walker’s opinion that: the
applicant suffered from certain psychological conditions; the applicant was not fully fit to
return to work as a flight attendant with the respondent; the applicant's psychological
prognosis was poor and she was unlikely to become fully fit to return to work in a flight
attendant role with the respondent; returning the applicant to work with the respondent in any
capacity would aggravate and prolong her anxiety; the applicant was not fit to deal with
emergency situations on board an aircraft and such emergency situations would aggravate and
prolong her anxiety; and an exacerbation of the applicant's condition would prevent her from
carrying out emergency procedures as it would affect her concentration and thought
processes, overwhelming her ability to think logically and respond appropriately to an
emergency.
[27] The decision was said to be further based on Dr Walker’s report that the applicant's
treating general practitioner, Dr Saunders, agreed with Dr Walker's diagnosis of the
applicant's psychological conditions and, as a result of the diagnosis, would be surprised if the
applicant became fit for full-time flight attendant duties, even with a graduated return to work,
and was unsure how the applicant would react in an emergency situation as a flight attendant.
[28] As to these matters, counsel for the applicant submitted the reasons given by the
respondent had not been made out on the evidence and, further, or in the alternative, the
reasons were conclusions reached by the respondent based upon the erroneous opinion of Dr
Walker.
[29] To this end, the applicant’s submissions noted the dismissal is said to have related
directly to the capacity of the applicant. The respondent reached the conclusion the applicant
could not perform the inherent requirements of her role, and that her purported ongoing
condition was unlikely to resolve based upon the reports of Dr Walker. However, Dr Walker
said in evidence he misunderstood CASA requirements, which impacted on any conversation
he had with Dr Saunders. Dr Saunders said his view, as expressed to Dr Walker, was based on
Dr Walker’s erroneous description of CASA requirements. Further, Dr Walker was clearly in
[2013] FWC 5840
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error when he used "anger" as being a characteristic of the condition he diagnosed, as the
preponderance of evidence is that it is a marked characteristic resulting from bullying. Dr
Walker failed to ask the applicant any questions about the matters detailed in the statement
she provided to him, particularly the parts relating to bullying. In addition, Dr Walker failed
to ask the applicant what her duties were (including what the emergency procedures entailed)
or ascertain details of her flying hours. Dr Walker agreed that he should have done so, as a
matter of fairness.
[30] Irrespective of the fact Dr Walker had spoken to another health professional, Andrew
McKinley, he acknowledged he had not asked Mr McKinley in any detail about the bullying
or about Mr McKinley's diagnosis - which seems extraordinary as Mr McKinley had been
treating the applicant over a period of time. Dr Walker said the bulk of his work involved
reports for employers and work-related clinical assessments. The applicant’s submissions
contended it would be fair to say Dr Walker’s medical assessment could hardly be described
as thorough or fair.
[31] The evidence of another health professional, Ilan Cohen, in detailing an analysis of Dr
Walker's medical assessment, further illustrated the significant flaws concerning the basis of,
and the opinion of, Dr Walker. Mr Cohen's evidence in that regard should be accepted. Mr
Cohen was not the applicant’s treating doctor; rather, he reviewed the various medical
opinions, including those of Messrs Farago, Saunders, McKinley and Walker and came to his
own assessment after having conducted what could only be described as a highly-sensitive
personality test.
[32] As to s.387 of the Act, the applicant was notified of the reasons relied upon by the
respondent for the dismissal.
[33] As to s.387(c) of the Act, it is clear the applicant was not provided a copy of Dr
Walker’s reports. As a result, the applicant was denied an opportunity to respond to the
content of the reports: Ms V v Ambulance Victoria [2011] FWA 8576, [2012] FWAFB 1616.
The respondent’s letters of 11 and 21 December 2012 made it clear the decision to terminate
the applicant’s employment was based on the information in the report of Dr Walker. Ms
Pajmon, in her evidence to the Commission, agreed that despite requests for a copy of the
(initial) report made by both her solicitors and her union, that report was not provided to the
applicant or her representatives. The submissions for the applicant in this respect continued
that it is no answer to provide selective parts of Dr Walker’s report. Without Dr Walker’s
report, on which the respondent's decision was said to have been based, the applicant had no
informed basis upon which she could have contested the respondent's decision.
[34] It was also clear from Ms Pajmon’s evidence that despite the applicant having been
given written advice that she would have a meeting with the respondent following her
consultation with Dr Walker, she was denied this opportunity.
[35] It was further submitted on the applicant’s behalf that it is open for the Commission to
find that at the time the reply from the applicant’s solicitors was received by the respondent
on 21 December 2012, the decision already had been made to terminate the applicant's
employment. In this regard, it would be unrealistic to have expected a detailed, evidenced
reply in answer to a medical assessment, the contents and premise of which medical report
were unknown, in the timeframe that was provided for response.
[2013] FWC 5840
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[36] As to s.387(d) of the Act, because the applicant was not afforded the meeting she was
promised, the opportunity for a support person to attend with the applicant did not arise.
[37] As to s.387(e) of the Act, there were no previous warnings given to the applicant
regarding unsatisfactory performance.
[38] As to ss.387(f) and 387(g) of the Act, the applicant submitted the Commission must
take into account the fact the respondent is an organisation which is not only extremely large,
but also has significant resources both in its human resources area (including Ms Gardner who
was not made available to give evidence) and its internal legal team, some of whom are
employment lawyers.
[39] As to any other relevant matters to be considered pursuant to s.387(h) of the Act, the
applicant’s submissions referred to the respondent's letter of 28 September 2012 concerning
attending the appointment with Dr Walker for assessment. The respondent sought to invoke
workers' compensation legislation to compel the applicant's attendance at the appointment.
Against that background, it was submitted it ill-behoves the respondent to now ignore and/or
say are not relevant, the obligations it is was required to follow pursuant to the relevant
workers’ compensation legislation - when it used the legislation to compel the applicant to
attend the medical assessment. Further, the respondent is fully cognisant of its legal
responsibilities, as acknowledged by Ms Pajmon and as set out in the respondent’s policies.
The failures by the respondent to comply with its obligations under the Workplace Injury
Management and Workers' Compensation Act included failures by it to comply with ss.43(5),
46(2), 49, 52, 73, 119(4), 119(5) and 126; and reg 46 of the Workers' Compensation
Regulations 2010). It was submitted the failure to comply with such obligations rendered the
dismissal inherently unfair.
[40] The submissions contended the respondent: failed to make, or to so much as
endeavour to make, any genuine reasonable adjustments in order to retain the applicant in
employment; adopted an inconsistent application of the respondent's processes in sending the
applicant for a psychiatric assessment, as compared to the processes adopted with other
employees; and dealt in an inappropriate and inadequate way with the explosive device
incident when it should have been clear to the respondent that those actions would cause the
applicant severe distress.
[41] The applicant’s submissions contended a variety of other reasons existed which were
likely to have been the real reasons for the dismissal, including:
the applicant's earlier bullying and harassment complaint and her subsequent
complaints about the way this was managed by the respondent;
previous matters between the applicant and the respondent which have come before
the Tribunal;
the explosive device incident and the applicant's complaints about the way the
respondent managed that incident;
the fact the applicant was a "whistle blower", having given evidence against the
respondent during her employment at a Senate inquiry into fatigue, safety, and
bullying and harassment in the airline industry in November 2011;
[2013] FWC 5840
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the fact the applicant was a union delegate;
the fact the applicant was a dual workers’ compensation claimant.
[42] In all the circumstances and taking into account the factors in s.387 of the Act, it was
submitted the applicant's dismissal was harsh, unjust and unreasonable. The respondent's
contention it was entitled to dismiss the applicant because she could not perform the inherent
requirements of her position was wrong on the face of the evidence. There was no valid
reason for her dismissal; there was an absence of compliance by the respondent with its
obligations under its own policies and workers' compensation legislation; and the process
undertaken by the respondent in terminating the applicant’s employment was flawed. The
applicant, it was submitted, was unfairly dismissed. Even if there was a valid reason for the
dismissal (which, it was submitted, there is not), in ensuring a “fair go all round” it is
necessary to weigh the effect of the failure by the respondent to provide the applicant with a
proper opportunity to respond and/or to make reasonable accommodations, including by
providing the applicant with the opportunity to be redeployed into another role or to perform
alternative duties.
Respondent’s submissions
[43] The respondent submitted the applicant's employment was terminated by the
respondent because: the applicant was unable to perform the inherent requirements of her
role as a flight attendant with the respondent at the time of dismissal, or in the future, and
there were no reasonable adjustments that could be made such as to allow her to perform her
safety-critical role; and the applicant failed to provide the respondent with any substantive
reasons why her employment should not be terminated, despite being given an opportunity to
do so. The applicant was paid four weeks' pay in lieu of notice, which was permissible
pursuant to the terms and conditions governing the applicant’s employment. The respondent
submitted that, on an application of the statutory scheme concerning unfair dismissal to all the
relevant evidence, the applicant was not unfairly dismissed.
[44] As to s.387(a) of the Act, the respondent had a valid reason for terminating the
Applicant's employment within the meaning of "valid reason" considered in Selvachandran v
Peterson Plastics Pty Ltd (1995) 62 IR 371. In that case, Northrop J held at 373 that: “valid"
should be given the meaning of sound, defensible or well founded", that "a reason which is
capricious, fanciful, spiteful or prejudiced could never be a valid reason" and, further, "the
reason must be valid in the context of the employee's capacity or conduct based upon the
operational requirements of the employer's business".
[45] Determining whether a reason is valid requires an objective analysis of the entire
factual matrix. It is not the Commission’s role to substitute its own view for that of the
employer, but, rather, to assess whether the employer had a valid reason: Watson v Mermaid
(1996) 142 ALR 681 at 685. It is well-established that an inability to perform the inherent
requirements of a position will generally provide a valid reason for the dismissal; and it is the
substantive position or role of the employee that must be considered, not some modified,
restricted duties or temporary alternative position: J Boag and Son Brewing Pty Ltd v Allan
John Button [2010] FWAFB 4022.
[2013] FWC 5840
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[46] The respondent contended that the evidence established the applicant was, and
remains, unfit to fulfil the inherent requirements of her pre-injury position as a flight
attendant. In all the circumstances, there was a valid reason to terminate the applicant's
employment having regard to the following matters in particular:
the applicant had not performed flight attendant duties with the respondent since 11
August 2011, when she found a suspicious device in the toilet on board an aircraft;
the applicant's general practitioner certified she was unfit to work with the
respondent in numerous WorkCover certificates for the period 7 January to 30
September 2012;
the report prepared by Dr Walker, an independent medical examiner, found the
applicant was not, and will not become in the future, fit to work as a flight attendant;
Dr Walker’s supplementary report of 7 December 2012, following discussions with
the applicant's treating general practitioner, Dr Saunders, found the applicant was
permanently unfit for any duties with the respondent and Dr Saunders agreed with
his assessment;
on 11 December 2012, the respondent wrote to the applicant and provided her with
the opportunity to respond to concerns about her present and future fitness for work,
and placed the applicant on notice the respondent was considering terminating her
employment;
on 21 December 2012, the respondent received a response to its letter of 11
December 2012 from the applicant’s solicitor that did not provide any substantive
reasons why the applicant's employment should not be terminated;
the applicant has not adduced any evidence that would satisfy the respondent or the
Commission she is fit to perform the inherent requirements of her pre-injury position
as a flight attendant, particularly having regard to the safety-critical and emergency
procedures aspects of the role of a flight attendant.
[47] The respondent’s submissions continued that the obligations on an employer pursuant
to ss.387(b) and (c) of the Act are related to the concept of procedural fairness: Crozier v
Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151. An employer is required to inform an
employee of the reasons why it is considering termination of employment and give the
employee an opportunity to respond. On 11 December 2011, the applicant was put on written
notice that her employment may be terminated if she was unable to fulfil the inherent
requirements of her position, and was given an opportunity to provide to the respondent any
additional material she may have wished the respondent to consider before making a decision
in relation to her employment. The applicant responded by letter from her solicitors on 21
December 2012. The respondent took the applicant's response into account before making its
decision.
[48] The respondent submitted the matters in ss.387(d) to (g) of the Act are not relevant to
this application. As to any other relevant matters, the evidence established that between July
and December 2012 inclusive, the respondent took necessary steps to determine whether the
[2013] FWC 5840
13
applicant was fit to perform the inherent requirements of her safety-critical role as a flight
attendant, prior to making a decision about her employment.
[49] The respondent submitted that on a balanced and contextual assessment of the criteria
in s.387 of the Act, the applicant's dismissal was not harsh, unjust or unreasonable.
Consideration
[50] I begin by observing it is not immediately apparent why the applicant determined
initially to commence dispute proceedings under s.739 of the Act in C2012/6355 to deal with
a workers’ compensation-type dispute (and later made an application for an unfair dismissal
remedy under s.394 of the Act) where non-excluded workers’ compensation operating in the
State of New South Wales closely regulates the rights and obligations concerning a return to
work of an injured worker: see the Workplace Injury Management and Workers'
Compensation Act 1998 (NSW). The Workers Compensation Act 1987 (NSW) also contains
dedicated provisions concerning applications for reinstatement by injured employees who
have been dismissed on account of a compensable injury not only to his or her pre-dismissal
position, but to work suited to an applicant’s injury.
[51] Be that as it may, the application before the Commission is an application for an unfair
dismissal remedy made under s.394 of the Act and thereby falls to be determined according
the criteria in s.387 of the Act, as conditioned by the authorities concerning such criteria. I
turn now to those matters that must be taken into account in considering whether a dismissal
was harsh, unjust or unreasonable.
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)
[52] The reason for the dismissal appears to be capacity-derived. That is, the respondent
determined the applicant was unable to perform the inherent requirements of her role with the
respondent at the time of the dismissal or in the future (and no reasonable adjustments could
be made to allow the applicant to perform her safety-critical role).
[53] Given my later conclusions concerning matters related to substantive and procedural
fairness concerning the respondent’s withholding of Dr Walker’s report, being the report
which was said to found a valid reason for effecting the dismissal, I propose to deal with the
question of whether the respondent had a valid reason to dismiss the applicant more generally
later in this decision.
Whether the person was notified of that reason
[54] The applicant was informed of the reasons for dismissal in Ms Pajmon’s letter of 21
December 2012, albeit somewhat circuitously by reference to her earlier letter of 11
December 2012. Among other matters, in the letter of 11 December 2012 Ms Pajmon distilled
six points concerning the opinion about the applicant that Dr Walker provided to the
respondent and adverted to the content of discussions said to have occurred between Dr
Walker and Dr Saunders.
Whether the person was given an opportunity to respond to any reason related to the capacity
or conduct of the person
[2013] FWC 5840
14
[55] Despite the submissions for the respondent, the evidence made it plain the applicant
was not given an opportunity, or any proper opportunity, to respond to any reason for the
dismissal related to her capacity to perform the inherent requirements of the job.
[56] Specifically, when the applicant was first directed to attend an appointment with Dr
Walker, Ms Gardner’s letter of 13 September 2012, said to be dealing with what was
described as “Your Injury Management and Return to Work Plan”, advised that the
respondent would arrange a meeting (with the applicant, Ms Gardner as the applicant’s HR
Business Manager, the applicant’s own manager and, if the applicant wished, a support
person) to discuss Dr Walker’s report.
[57] On 28 September 2012, Ms Gardner again wrote to the applicant concerning her
attendance at an appointment with Dr Walker. The letter of 28 September 2012, in turn,
referred to the earlier letter of 13 September 2012, which, it may be reiterated, advised a
meeting would be arranged to discuss Dr Walker’s report. It is unclear, but it seems there may
have been some issue about whether the respondent could direct the applicant to attend the
appointment under the terms of the employment contract, with the result it seems (although
this is again unclear) Ms Gardner determined to assert the requirement to attend was
consistent with (the since repealed) s.38A of the Workers’ Compensation Act.
[58] Irrespective of the basis on which the respondent purported to require the applicant to
attend the appointment with Dr Walker, the fact remained the respondent had undertaken to
arrange a meeting to discuss that report. Despite Ms Gardner’s written advice to the applicant
that she would be in touch shortly to confirm the time and location of the meeting to discuss
Dr Walker’s report, and that she was looking forward to soon meeting with the applicant, no
such meeting eventuated as none was organised by the respondent.
[59] The applicant’s appointment with Dr Walker occurred on 17 October 2012. Dr
Walker’s report was dated 31 October 2012. It may be inferred the respondent received Dr
Walker’s report some time on, or reasonably soon after, 31 October 2012.
[60] The applicant’s union, though Mr Markos, began informally contacting Ms Gardner
about the failure of the respondent to effect the applicant’s return to work in accordance with
her latest WorkCover certificate; Ms Gardner advised the respondent was still waiting for Dr
Walker’s report. The union then formally wrote to the respondent about the same matter; and
Ms Gardner’s letter in reply advised the union the respondent was still awaiting the report.
[61] The applicant lodged an application before the Tribunal concerning a letter she had
received from the respondent, albeit the nature of that application was not in evidence. The
union represented the applicant in the proceedings. The matter was listed before Gregory C on
6 December 2012. Mr Markos of the union deposed that the respondent’s representative in the
proceedings, Mr Best, was asked why there was such a delay with the applicant’s return to
work request and he responded the respondent was still waiting for Dr Walker’s report. That
same day, Ms Gardner sent a letter to the union stating the respondent was waiting for Dr
Walker’s report. Thus, the union from around late October-onwards was seeking a copy of Dr
Walker’s report, being a report which Ms Gardner had indicated would be discussed at a
meeting with the applicant and her “support person”. Despite these representations by the
applicant’s union, the respondent did not provide a copy of the report to the union.
[2013] FWC 5840
15
[62] In her letter to the applicant of 11 December 2012, Ms Pajmon referred to Dr Walker’s
assessment in advising that, on the basis of all the information available to the respondent, the
respondent was considering termination of employment because the applicant was unable to
perform the inherent requirements of her role with the respondent now or in the future and
there were no reasonable adjustments that could be made such as to allow the applicant to
perform her safety-critical role.
[63] As of 11 December 2012, the respondent was obviously in receipt of Dr Walker’s
report, but the respondent had neither arranged the foreshadowed meeting to discuss the
report nor provided the report to the applicant’s union even though Mr Markos of the union
had been seeking the report since around the time it was written by Dr Walker.
[64] By letter dated 21 December 2012, the applicant’s solicitors wrote to Ms Pajmon in
reply to her letter of 11 December 2012. Among other matters, the applicant’s solicitors
requested a copy of Dr Walker’s report (and any other relevant medical information). The
solicitors indicated that they looked forward to receiving Dr Walker’s report in due course
and advised that if “in the interim” the writer could be of assistance to contact him or his
assistant. It is plain from the tenor of the letter the applicant’s solicitors were expecting to be
provided with a copy of Dr Walker’s report, being a report which Ms Gardner had earlier
advised, in a letter said to be about “Your Injury Management and Return to Work Plan”, was
to be the subject of a meeting.
[65] On the same day the respondent received the letter from the applicant’s solicitors
requesting Dr Walker’s report, the respondent dismissed the applicant. In the letter
terminating the applicant’s employment, Ms Pajmon relevantly wrote:
“I have considered all of the matters set out in the letter from Maurice Blackburn
lawyers. Your lawyers assert a number of matters which appear to predominantly
relate to your workers compensation claim (which are not conceded by Jetstar).
Having considered your response and all of the other information available to Jetstar,
for the reasons set out in my letter dated 11 December 2012, Jetstar has decided to
terminate your employment.
Your termination will take effect today and you will be paid in lieu of notice of
termination. Please ensure you return your ASIC card and any other property of Jetstar
within the next 7 days marked to my attention addressed to Jetstar [address].
You will shortly receive your final pay, which will include 4 weeks in lieu of notice,
pro-rata long service leave payable on termination of employment and accrued annual
leave.
You have a current workers’ compensation claim that is being managed by our
insurers, Allianz, and Jetstar’s Internal Occupational Health and Safety Department.
While your employment with Jetstar has ended, this is separate from your workers’
compensation claim. You will continue to receive communication from Allianz and
relevant Jetstar staff, (which includes [named individual] Workers’ Compensation
Adviser) in relation to this claim. As the matters are separate, we are not prepared
to provide you with a copy of the medical information requested.” [My emphasis]
[2013] FWC 5840
16
[66] Thus, even as at the date of the dismissal, the respondent continued to deny the
applicant an opportunity to respond to any reason related to her capacity to undertake the
inherent requirements of the job by the obdurate and unreasonable refusal to provide to the
applicant, the applicant’s union or the applicant’s solicitors the report on which Ms Pajmon
based her assessment concerning the applicant’s dismissal, being a report which otherwise
was to have been the subject of a meeting to be arranged by Ms Gardner.
Any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussions relating to dismissal
[67] The manner of the respondent’s peremptory dismissal of the applicant on 21
December 2012 had the result there were no discussions whatsoever relating to the dismissal,
notwithstanding it reasonably might have been expected that, if the meeting to discuss Dr
Walker’s report had actually eventuated, the applicant would have wished to have support in
such discussions from her union representative or solicitors; or support from some other
source, such as a rehabilitation provider or, potentially, someone such as Dr Saunders.
If the dismissal related to unsatisfactory performance by the person—whether the person had
been warned about that unsatisfactory performance before the dismissal
[68] The applicant’s dismissal did not relate to unsatisfactory performance. That is, the
respondent would not allow the applicant any return to work in accordance with her
WorkCover medical certificates such that any performance issues thereto could not be
assessed let alone be the subject of warnings before the dismissal.
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
[69] The respondent employs a large number of employees and has in-house human
resource management specialists or expertise, as indicated by some of the titles of position-
holders in documents tendered in the proceedings. The evidence, such as Ms Pajmon’s letter
of termination, indicated the respondent has an in-house Occupational Health and Safety
Department which appears to deal with some aspects of workers’ compensation arrangements,
and the respondent also has some type of external arrangements with Allianz in relation to
such matters.
[70] The respondent’s Return to Work Program is applicable to the respondent and the
Qantas group generally. The rights and obligations specified in the program are conditioned
by the operation of NSW workers’ compensation legislation, rather than being, for example, a
mere policy. Among other provisions of the Return to Work Program, clauses 11.5 to 11.7
deal with matters concerning the role of return to work coordinators, finding and providing
suitable duties, and the involvement of approved workplace rehabilitation providers. Clause
15 deals with disputes about suitable duties or the Return to Work Program, reading as
follows:
“15. Dispute resolution about Suitable Duties or the Return to Work Program
[2013] FWC 5840
17
If there are disagreements about suitable duties or some aspects of the Return to
Work Program, the Qantas Group will work with the injured worker and any union
representing them to try to resolve the disagreements.
Failing this, the Qantas Group will attempt to resolve disagreements by consulting
with the WorkCover Approved Workplace Rehabilitation Provider, the treating
doctor or an Injury Management Consultant.
Assistance may be sought from insurance company or Qantas workers compensation
team ... or by contacting the WorkCover Claims Assistance Service on [telephone
number].”
[71] Given the size of the respondent’s operations and its access to internal and external
expertise in relation to the circumstances concerning the applicant, it is somewhat surprising
that processes and procedures better than those identified in the evidence in this case
concerning the applicant were not adopted by the respondent. For example, the respondent
failed to hold a meeting with the applicant in relation to Dr Walker’s report or otherwise to
provide the report to the applicant or her representatives for consideration/response, being the
report which was the basis for the decision the applicant should be dismissed. Moreover, if
steps were taken in relation to, for example, dispute resolution in accordance with cl.15 of the
respondent’s Return to Work Program, there was no evidence as to that in either party’s case.
Any other matters the Commission considers relevant
[72] The applicant’s case was advanced, in part, on the basis the respondent had failed to
meet various statute-based workers’ compensation obligations concerning the applicant as an
injured employee, pertinently as those matters dovetailed with the dismissal. It would not,
however, be jurisdictionally-apposite for me to purport to determine whether the respondent
violated any NSW workers’ compensation legislation.
[73] This observation may, however, be made. Ms Pajmon was the decision-maker
concerning the applicant’s dismissal. Ms Pajmon’s evidence-in-chief outlined the matters she
considered in determining to effect the dismissal. It would seem reasonable to infer Ms
Pajmon’s evidence outlined those matters which were relevant in her decision-making. Ms
Pajmon’s evidence did not include anything to indicate consideration was given to matters
that may, for instance, have been relevant to the applicant’s status as an injured worker and
the rights and obligations that may, in those circumstances, have needed to have been
considered. In this respect, the respondent purported to require the applicant to attend the
appointment with Dr Walker pursuant to (the then) s.38A of the Workers Compensation Act.
[74] The respondent used Dr Walker’s report as the basis for the conclusion the applicant
should be dismissed. This notwithstanding, the respondent refused to provide a copy of the
report to the applicant or the solicitors dealing with her workers’ compensation matters and
also used the report as the basis for her dismissal. Ms Pajmon’s letter dismissing the applicant
noted the applicant had a current workers’ compensation claim, which was being managed on
an in-house basis and by Allianz. Ms Pajmon’s letter concluded by commenting on the
request that had been made by the applicant’s solicitors for Dr Walker’s report as follows:
“As the matters are separate, we are not prepared to provide you with a copy of the medical
information requested.” Contrary to these comments, matters concerning the work-related
injury and the dismissal were not separate; they were closely interwoven with Dr Walker’s
[2013] FWC 5840
18
medico/legal report obtained for workers’ compensation-related purposes being used as the
basis for the dismissal.
Harsh, unjust or unreasonable
[75] The dismissal was bereft of substantive and procedural fairness. So much was
effectively acknowledged by Ms Pajmon in cross-examination in evidence which, even
counsel for the respondent appropriately conceded in submissions, did not assist the
respondent’s case. It is not necessary for the purposes of this decision to recount that
evidence; the record speaks for itself. The respondent considers it had a valid reason to
dismiss the applicant, but it failed to discuss Dr Walker’s report with the applicant and
refused to provide a copy of the report to the applicant, her union and her solicitors.
[76] The only information the respondent provided to the applicant about Dr Walker’s
nine-page report was six short points in Ms Pajmon’s letter of 11 December 2012. Further, it
appears the applicant did not have any knowledge of Dr Walker’s supplementary report
dealing with discussions between Dr Walker and Dr Saunders. It is not clear, but it seems to
be that the applicant gained access to Dr Walker’s report only when a Notice to Produce was
issued as part of these proceedings.
[77] Ms Pajmon’s letter of 11 December 2012 also referred, in three short points, to
discussions between Dr Walker and Dr Saunders. As to that, however, it was common ground
Dr Walker made erroneous comments to Dr Saunders during that conversation about matters
concerning returning to work on a part-time basis. Further, Dr Saunders’ evidence in these
proceedings was that the content of the conversation was taken out of context - which I
accept.
[78] It cannot reasonably be contended, and nor would I accept in any event, that the letter
of 11 December 2012 was sufficient to give the applicant any fair or reasonable opportunity
to, using Ms Pajmon’s descriptor, “show cause” why she should not be dismissed. For
example, if the applicant did not know what was in the report, because the respondent refused
to provide it to her or hold a meeting to discuss it, she could hardly be in a position to assess it
let alone challenge it with any of her own reports from other health professionals (which is
just what has occurred in the evidence since adduced by the applicant in the proceedings). In
this regard, I also accept the submissions made for the applicant that it would have been be
unrealistic to have expected a detailed, evidenced reply to the respondent in answer to Dr
Walker’s assessment, the contents and premise of which medical report were unknown to the
applicant, in the timeframe that was provided for response.
[79] I am satisfied the dismissal of the applicant was harsh, unjust and unreasonable and
that the applicant should have an unfair dismissal remedy.
[80] The applicant sought the remedy of reinstatement, to which I will next turn
Remedy
[81] The respondent relied on Dr Walker’s report in justification that it had a valid reason
to dismiss the applicant, and its opposition to reinstatement effectively also rested on the
matters in that report and Dr Walker’s evidence in the proceedings. In the concluding
[2013] FWC 5840
19
summary and opinion in his report, Dr Walker wrote in relation to his assessment of the
applicant that she:
had symptoms and impairment greater than expected, in that she was not relaxing or
socialising and was having flashbacks and dreams of finding “an item” on a plane on
11 August 2011;
was angry and hostile towards the respondent;
reported being bullied and harassed from 2007 to 2010, and more recently;
claimed workers’ compensation for [conditions] in January 2010, and was off work
until May 2010;
worked four of her twenty day per month roster after she found “an item” on a plane
on 11 August 2011, until taking leave in late 2011;
gave evidence against the respondent in Senate inquiries in March and November
2011;
had her study scholarship from an airlines union cancelled on the basis she was “a
troublemaker”; and
assisted a colleague in unfair dismissal proceedings against the respondent in
September 2012.
[82] After identifying the matters listed above, Dr Walker wrote in his report the applicant
will remain angry with the respondent and continue to blame the respondent and its staff for
her “emotional problems”. Dr Walker also wrote the applicant had “little insight” in her own
role in her negative emotions. Dr Walker’s concluding remark was that psychological
treatment had been intermittent, and “will not make her fit for work as a flight attendant”.
[83] In this case, the preponderance of the evidence from the health professionals was to
the effect that, contrary to the conclusions of Dr Walker, the applicant could be reintegrated to
work as a flight attendant with the respondent and, indeed, that would be appropriate. I
strongly preferred the evidence adduced in the applicant’s case to that relied on by the
respondent as to both the question of whether the respondent had a valid reason to dismiss the
applicant and in relation to the question of returning the applicant to work with the
respondent.
[84] To the extent it is necessary to assess the competing evidence from the health
professionals, I would add that aspects of Dr Walker’s report were troubling in relation to his
approach to the question of the applicant’s fitness. The matters outlined I have outlined above
were contained in Dr Walker’s report under the heading of being the “summary and opinion”,
and thus may be considered to encapsulate the matters he considered pertinent to include
under that heading, albeit I have considered all aspects of his report. In this regard, I say the
following as to matters in the summary and opinion in Dr Walker’s report:
On the basis of the evidence in these proceedings, the applicant would have had not
unreasonable cause to feel angry or hostile and, as evidence from other health
[2013] FWC 5840
20
professionals in the proceedings noted, including the persuasive evidence of Dr
Ricardo Farago in particular, these reactions would not be unexpected or unusual in
all the circumstances.
The applicant’s earlier workers’ compensation claim concerning bullying and
harassment was initially declined, but her claim was later settled after proceedings
before the Workers Compensation Commission of NSW. The fact of an old workers’
compensation claim and any time off work associated with that claim was not, in any
event, relevant to the applicant’s state of fitness for work as a flight attendant when
she was examined by Dr Walker. There was nothing before Dr Walker that would
have contraindicated the applicant’s report to him there had been more recent
incidents of bullying or harassment.
The applicant took leave to which she was, presumably, entitled in the periods
identified in Dr Walker’s report after finding, as he put it, “an item on a plane”, i.e.,
the device that looked like a bomb. That is, there was nothing in the respondent’s
case to suggest there was any issue about leave taken by the applicant in the periods
in question.
Giving evidence before the Senate is not a matter of relevance to the applicant’s
fitness to work as a flight attendant and it is, in my view, particularly troubling that
this matter should have been noted in Dr Walker’s summary and opinion as relevant
to his opinion about the applicant’s fitness. The applicant was entitled to give her
evidence about the respondent before the Senate, a matter Dr Walker seemed
singularly to fail to appreciate in identifying this in relation to the applicant’s fitness
for work as a flight attendant.
That an airlines union with which the applicant was formerly associated withdrew a
study scholarship from the applicant, reportedly on the grounds the applicant was “a
troublemaker”, is not a matter of relevance to the applicant’s fitness.
Dr Walker noted in his summary and opinion that the applicant had provided
assistance to a colleague who had brought unfair dismissal proceedings against the
respondent. The provision of assistance to a party to proceedings before this Tribunal
has no relevance to the applicant’s fitness to work as a flight attendant with the
respondent and, given the oddity of providing assistance to a party to proceedings
being identified in a summary and opinion in a medico/legal report by a psychiatrist
as a matter relevant to an injured worker’s fitness to return to work, hardly needs
further comment in this decision.
[85] In opposing any order for the remedy of reinstatement, the respondent’s evidence and
submissions referred to matters concerning Aviation Security Identification Cards (“ASIC”),
which flight attendants must hold. The applicant’s former ASIC was cancelled in connection
with her termination of employment. Ms Pajmon’s evidence referred to other similar matters
such as criminal record checks, ASIO assessments and the like. In this regard, the respondent
submitted it may seek a separate hearing to lead further evidence from Qantas Security
regarding any reinstatement or reemployment of the applicant, including whether there are
security reasons why the applicant would not be provided with an ASIC.
[2013] FWC 5840
21
[86] The order for reinstatement will take effect in accordance with its terms. Matters
concerning ASIC checks, criminal checks, ASIO checks and the like have their own
processes. If there are any potential issues in this respect, I would consider them to be beyond
the purview of these proceedings; they will necessarily take their own course in relation to the
applicant, as they would in relation to any employee in the airline industry.
[87] As to the order for reinstatement, the applicant was dismissed at a time when she was
an injured worker who had been certified as being fit for a return to work only on a graduated
basis. There was nothing in the evidence before the Commission to suggest the applicant
would not now be fit for a return to full duties. It would seem prudent, nonetheless, for the
applicant to provide a WorkCover certificate indicating whether the applicant is fit to resume
full duties or, in the alternative, with any restrictions such as to hours and the like. I
emphasise strongly to the parties that my order for reinstatement is just that: an order
reinstating the applicant to her former position as a flight attendant. If there are any issues
about the contents of the WorkCover certificate’s full clearance for a return to work or,
alternatively, a return to work with any restrictions then, I also emphasise, these are matters
appropriately dealt with in accordance with the processes in the respondent’s workers’
compensation policy and program and, if dispute remains, in accordance with the processes
under NSW workers’ compensation legislation. In concluding, I note the following words,
taken from a judgment of the NSW Court of Appeal in State Rail Authority of New South
Wales v The Honourable Justice Bauer and Ors (1994) 55 IR 263 at 267:
“The aim of rehabilitation ... must surely be to integrate injured workers into the
workforce at a type of work that they can perform and to be useful that integration
requires the continuing provision of suitable employment. There is an obligation on the
employers to assist and co-operate in such a purpose, an obligation contained not only
in legislation but imposed on the employer by its position as a corporate citizen.”
[88] The respondent is to effect the applicant’s return to work as a flight attendant no later
than 21 days from today’s date unless the parties agree in writing to a later, alternative date. If
there is agreement between the parties to the reinstatement being deferred to a later date, I
direct that the parties file and serve a draft consent order within 21 days of today’s date and I
will make a substitute order reflecting the agreed date. In conjunction with the order for
reinstatement, I consider it appropriate to order that the applicant’s continuity of service be
maintained.
[89] Lastly, there was insufficient evidence in the proceedings upon which I could assess
the basis for an order, if any, for lost pay. With a view to attempting to minimise the parties’
further legal costs of proceedings, I direct the parties to confer to see if agreement can be
reached in relation to financial matters. In the event agreement cannot be reached, the parties
have liberty to seek a relisting of the matter for the discrete purpose of giving directions to
determine matters relevant to any order for lost pay. Any such relisting application should be
directed to my Associate no later than 21 days from today’s date and is to provide a range of
times and dates that are mutually convenient to the parties.
[2013] FWC 5840
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[90] Orders to give effect to the forgoing conclusions have been issued in conjunction with
this decision.
COMMISSIONER
Appearances:
D. Galbally of Queen’s Counsel for the applicant.
J. Darams of Counsel for the respondent.
Hearing details:
2013.
Sydney:
May 9.
July 29 to 31.
Printed by authority of the Commonwealth Government Printer
Price code C, PR540392
