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[2013] FWC 5840
Fair Work Commission
2013-08-16
Commissioner Mckenna
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 16 August 2013.
The attached document corrects miscellaneous typographical errors.
[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.]
s.394 - 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.
[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.
[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 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:
[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.
[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 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.
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:
19 Feb 2012 -17 Mar 2012 "unfit to fly, unfit for FAA duties"
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.
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.
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. ...
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.
[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 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.
[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:
[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.
[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.
[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:
[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 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.
[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.
[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
[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.
[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]
[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
[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 medico/legal report obtained for workers' compensation-related purposes being used as the basis for the dismissal.
[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
[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 summary and opinion in his report, Dr Walker wrote in relation to his assessment of the applicant that she:
[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:
[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.
[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.
[90] Orders to give effect to the forgoing conclusions have been issued in conjunction with this decision.
D. Galbally of Queen's Counsel for the applicant.
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Neeteson-Lemkes
Jetstar Airways Pty Limited [2013] FWC 5840
(1995) 62 IR 371
(1996) 142 ALR 681
(2000) 98 IR 137
(1994) 55 IR 263