Ronald MacDonald v Jetstar Airways Pty Ltd

Industrial Relations Commission (NSW)|2018-12-04

These proceedings

In her statement, Barbara Thompson summarised the history of these proceedings as follows: "10. On 28 February 2014, Mr MacDonald made an Application for Reinstatement of Injured Worker under section 242 of the Act. This was served on Jetstar's representatives on 5 March 2014. 11. On 25 March 2014 a conciliation conference was held before the Industrial Relations Commission in Newcastle. The matter did not settle and was adjourned for the parties to agree on a referral to an appropriate independent medical practitioner to assess whether Mr MacDonald was fit to be reinstated. 12. After considerable delay the parties agreed that Dr Marsh would assess Mr MacDonald. 13. On 17 February 2015 a Medical Assessment Certificate was received from Dr Marsh which confirmed that Mr MacDonald was fit for his previous employment as a part time flight attendant. This report had been prepared on request of the Workers Compensation Commission. 14. On 6 March 2015 the parties attended a mention hearing at the Industrial Relations Commission in Newcastle. During the mention, Mr MacDonald sought the matter be set down for hearing. Jetstar outlined its concerns regarding the reliability of Dr Marsh's medical assessment due to the potential workers' compensation claims which had been made by Mr MacDonald after the termination of his employment with Jetstar, whilst he was employed by a different employer on a full-time basis as a sales representative. These claims had not been considered in Dr Marsh's report. Deputy President Harrison issued directions which required Jetstar to file a position paper outlining its objections to reinstatement by 2 April 2015. 15. On 11 March 2015 Jetstar served a Notice to Produce on Mr MacDonald to obtain further information about the workers' compensation claims. Due to the delay in Jetstar receiving this information from Mr MacDonald, the time for filing Jetstar's position paper was extended to 26 June 2015. 16. The materials provided by Mr MacDonald in response to the Notice to Produce disclosed that: a. Mr MacDonald secured full time employment with Harrier - National (Sales) Pty Ltd in a vehicle finance role, commencing on or around 13 January 2013, shortly before his employment with Jetstar was terminated; b. Mr MacDonald continued in his role with Harrier - National (Sales) Pty Ltd until apparently suffering an ankle injury in mid-2014, for which he subsequently lodged a workers' compensation claim; c. Mr MacDonald's recovery from that injury was poor, and required both rehabilitative surgery and ongoing restrictions on his movement and lifting/pushing ability; and d. those restrictions remained in place at the time he met with Dr Marsh for the purposes of preparing the medical assessment (and that injury and related restrictions were not disclosed to Dr Marsh for the purposes of preparing his report). … 18. On 29 June 2015 the parties attended a further mentions hearing before Deputy President Harrison in Newcastle. At that hearing, Deputy President Harrison accepted Jetstar's submissions regarding the unreliability of Dr Marsh's report on the basis that Mr MacDonald had not disclosed a recent workers' compensation claim relating to an ankle injury to Dr Marsh at the time of assessment. Deputy President Harrison indicated that he intended to refer Mr MacDonald back to an independent medical expert (or experts, if required) to prepare a report on Mr MacDonald's broader fitness for work. The matter was adjourned while the parties prepared agreed terms of reference for a subsequent examination by Dr Marsh. … 21. On 26 July 2016 Mr MacDonald was issued a Workers' Compensation Commission Medical Assessment Certificate from Dr Marsh, indicating that he was fit for work. … 22. Having received this certificate, Jetstar's Customer Experience team started considering options available for returning Mr MacDonald to work, as at this time there was no appropriate position available in Newcastle. … 24. On 28 September 2016 Jetstar wrote to Mr MacDonald offering to reinstate him to his previous position (or other alternative roles which were available at the time). The letter explained that, due to the time that had passed since Mr MacDonald had last worked as a flight attendant, it was a CASA (Civil Aviation Safety Authority) requirement that he complete a number of regulatory requirements regarding security and medical clearance, and complete ground school training. As Jetstar only runs ground school training based on requirements and number of attendees, the next available sessions were scheduled for 6 or 27 February 2017. … 25. On 29 September 2016, Mr MacDonald's representative advised that his client wanted to be reinstated to his previous position and do the first ground school available. He also queried in his email when Mr MacDonald would be reinstated, noting that 'We presume that they would reinstate it [sic] him from some nominal date in the near future but not task him to any shifts until he has completed the ground school, CASA medical etc.'"

Mr MacDonald's recommencement with Jetstar

In her statement, Katherine Hoar deposed as follows: "38. By reason of CASA requirements, Jetstar is not able to reinstate any employee who has been absent from duty for more than 36 months to flying duties until they have satisfied various preconditions including security screening and ground school training. 39. There were a number of ground school dates scheduled for 2017, in February, May, June, August and October. 40. Mr MacDonald did not attend ground school until October 2017 for the reasons explained below, namely: a. he did not submit the required paperwork in time to complete the February ground school; b. he had an ear operation in April and was still recovering from surgery in late July 2017, making him unable to complete the May and June ground schools; c. Mr MacDonald requested not to complete the August ground school as it [was] scheduled to take place in Cairns. … 55. Given the various delays in obtaining all information required to confirm Mr MacDonald's medical clearance to commence duties and other preemployment documentation, a new contract was issued to him on 7 September 2017 at his lawyer's request. The contract reflected his revised start date of 2 October 2017, being the date of the ground school he ultimately completed. 56. Mr MacDonald signed and returned this contract to Jetstar on 8 September 2017. 57. Mr MacDonald was reinstated to employment with Jetstar as a permanent part time flight attendant, effective 2 October 2017."
Mr MacDonald tendered into evidence a bundle of emails, which evidenced that he had been absent from work on both annual leave and personal leave from 15 June 2018 until 1 November 2018. Medical certificates tendered by Jetstar evidenced that Mr MacDonald had been certified unfit for work from 1 September 2018 until 30 November 2018 inclusive.

Mr McDonald's case

Mr MacDonald's case rests on the assertion that while he may have re-commenced employment with Jetstar on 2 October 2017, he has not been reinstated within the meaning of s 241 of the Workers Compensation Act.
In his statement Mr MacDonald deposed as follows: "5. My original staff number, prior to my termination on 14 February 2013, was 114043. 6. My staff number is now 607659. 7. Prior to my termination in 2013 I had applied for the position of Cabin Manager. This is a promotion from Flight Attendant. The application involved completing: a. A written examination; b. A response to a scenario (practical); and, c. An interview with two members of Jetstar management. 8. I completed my application in or about mid 2012. I was informed at that time by Ms Michelle Cohen, Regional Base Manager for Newcastle and Brisbane Bases, that my application had been successful along with four other flight attendants from Newcastle who had also applied. 9. Following the application Ms Cohen informed me that I had topped the scenario in the examination and the written examination. She further informed me that three of the candidates would be promoted first to cabin manager and that I would, along with the other candidate, Ms Leah Torning, would [sic] be promoted in the future. 10. I am aware that Ms Leah Torning was promoted some months after the examination. 11. Despite being informed, following completion of my application that I would be promoted, I was not and have not been. 12. Following my reinstatement I undertook the usual duties of a Flight Attendant. … 14. Whilst I have not asked to be promoted to Cabin Manager, I assumed that upon being reinstated I would go back to the position that I was in before being terminated, that is, waiting for the next available Cabin Manager's position. 15. Since being reinstated Cabin Manager positions have come up twice and I have been overlooked twice, on each occasion, by a Flight Attendant junior to me. 16. Prior to being terminated I was regularly upgraded to acting Cabin Manager due to my experience and seniority. Since being reinstated, I have not been upgraded on any occasion. Others flying out of Newcastle Base have been upgraded to Cabin Manager. Those people are junior to me. … 20. I have not made complaint to Management as I did not want to upset Jetstar following my return, however, I also thought that being reinstated meant that I would be picking up from where I left in 2013. 21. Following my reinstatement I noticed that my staff travel start date had been changed from 16 October 2006 to May [2017]. I do not know why this occurred but it impacts on me in that every 10 years of service Jetstar employees are entitled to a business class trip for two. That repeats every five years after the first ten year anniversary. 22. I have made complaint about this to QANTAS and staff travel at Jetstar and Jetstar Management. To date, none of those departments have remedied the date on my staff travel. 23. Whilst my 10 year trip has become visible on QANTAS staff travel I have no long service credits and they do not appear on my wage statements. It appears, from my payslips that any long service leave that I accrued prior to 2013 has been deleted or forgotten about. 24. My pay slips and wage statements show that any sick leave I had previously accrued has been either forgotten about or deleted. My payslips show that my sick leave seems to have only begun accruing since October 2017 and that I have lost all my previously accrued sick leave. 25. I do not feel that, even though Jetstar said they would reinstate me, that I have actually been reinstated. I feel as if I am a new employee. I understood that being reinstated meant that I would be picking up where I left off in February 2013."
Mr MacDonald submitted on the basis of these facts that he had been re-employed by Jetstar , rather than reinstated.
In his outline of submissions, Mr MacDonald requested that the Commission make the following orders: "A. The Commission orders that the Respondent reinstate the Applicant [to] his former position of permanent part time flight attendant employed pursuant to the Jetstar Airways and FAAA Enterprise Agreement 2011, with a commencement date of 16 October 2006, from * October 2017. B. The Commission orders that the Respondent pay to the worker an amount that does not exceed the remuneration the Applicant would, but for being dismissed, would [sic] have received from 5 March 2014 to * October 2017. C. The Commission orders that the parties are to confer and attempt to agree on a monetary figure for the purposes of order B. D. In the event that the parties are unable to agree on a monetary figure with regards to order B, leave is given for the parties [to] approach the Commission for the purpose of relisting the matter on 7 days notice. (*Respondent to confirm exact date the Applicant commenced duties)"
In relation to proposed orders A and B, it is not in dispute that Mr MacDonald recommenced employment with Jetstar on 2 October 2017. That is presumably the date from which he seeks to be reinstated.
Mr Weightman acknowledged that the case "came down to" the question of back pay, with "the subsidiary issue of the cabin manager type upgrade sort of position as it were": Tcpt, pp 37 (49) - 38 (2).

Jetstar's case

In its outline of submissions, Jetstar summarised its position as follows: "1. Jetstar opposes Mr MacDonald's application and orders for reinstatement and compensation under sections 242 and 243 of the Workers Compensation Act NSW ('the Act') on the following bases: a. the Commission's jurisdiction is not enlivened because Mr MacDonald is not able to make an application under section 243 for the following reasons: (i) Mr MacDonald was not 'dismissed' as a result of an 'injury' within the meaning of the Act. Mr MacDonald was dismissed because he was unable to meet the inherent requirements of the position because of 'chronic pain syndrome' not as a result of the soft tissue injury to his right shoulder (being the relevant compensable injury) within the meaning of section 241 of the Act; and (ii) Mr MacDonald can only make application to Commission under section 243 if he has first met the relevant preconditions under section 241, including producing to his employer a certificate that he 'is fit for employment'. At the time of making the application, Mr MacDonald had not produced to Jetstar a certificate that he was fit for employment; rather he provided a report from a doctor the year before and no certificate as to current fitness. Accordingly the application did not satisfy the requirement under section 241(3) such that he was then not able to bring an application under section 243; b. further and in the alternative, Mr MacDonald is not able to seek the relief claimed by reason of the fact that he was reinstated to his position by Jetstar on 2 October 2017 - the Commission does not have power to reinstate a person already reinstated. The Commission does not have power to award back pay without a reinstatement order; and c. further and in the alternative, the Commission would not grant the relief claimed, even if there were power (which is disputed) on discretionary grounds."
On the ground summarised at [1(a)(i)] in its submissions, Jetstar contended that the termination of Mr MacDonald's employment on 14 February 2013 was unrelated to any injury which he suffered in the course of his employment with Jetstar. Rather, he was dismissed because of his inability to perform the inherent requirements of his position by reason of the findings in the Bloom Report. Jetstar asserted that Dr Bloom held the view that Mr MacDonald's inability to perform the inherent requirements of the position was by reason of by reason of chronic pain syndrome and not the compensable injury (the soft tissue injury to his right shoulder).
It follows, it was submitted, that Mr MacDonald cannot be an "injured worker", and Jetstar cannot be his "employer", for the purposes of Part 8 of the Workers Compensation Act. As a consequence, Mr MacDonald cannot be reinstated under section 243.
The ground at [1(a)(ii)] of Jetstar's submissions largely reflects the position contained in the letter from Herbert Smith Freehills to Harris Wheeler referred to at [18] above. It is not necessary to further amplify those submissions.
There are three contentions arising from the ground at [1(b)] of Jetstar's submissions. Firstly, to the extent that the Application seeks an order that Mr MacDonald be reinstated retrospectively, the Commission has no power to make such an order.
Secondly, Mr MacDonald has already been reinstated and the Commission "cannot order Jetstar to do something it has already done". The Commission should not make an order that would be devoid of practical consequences or which would serve no real purpose.
On this ground, and in response to the issues raised by Mr MacDonald in his statement, Ms Hoar deposed as follows: 1. Mr MacDonald was reinstated to the position he held as at 14 February 2013, namely a Flight Attendant employed on a permanent part time basis. He was reinstated to an equivalent salary to that he had at the time of dismissal. He remains employed under the terms of the Jetstar Airways and FAAA Enterprise Agreement 2011 which applied to him at the time of his termination. 2. Jetstar recognised Mr MacDonald's service and leave entitlements accrued at the time of termination. 3. All Jetstar employees have a unique staff number. Once an employee ceases employment with Jetstar their staff number cannot be re-used. While Mr MacDonald has been reinstated to employment, Jetstar's systems do not allow an old staff number to be re-assigned. This was explained to Mr MacDonald shortly after he was reinstated. 4. Jetstar was not aware of concerns held by Mr MacDonald regarding his accrued leave balances until receiving his statement filed in this matter. He had not alerted Jetstar to any issues. The issues raised by Mr MacDonald were an "inadvertence". As at the time she was preparing her statement a request has been made to the payroll department to reinstate Mr MacDonald's sick and long service leave balances. 5. The incorrect staff travel recommencement date was input into the system. Jetstar was not been aware of this until it was brought to its attention in Mr MacDonald's statement. This was rectified on 26 July 2018, with Mr MacDonald's date in staff travel being amended to 16 October 2006. 6. Prior to his dismissal on 14 February 2013, Mr MacDonald had not been offered a role as a Cabin Manager, and nor had his status changed in the rostering system to reflect Cabin Manager. Since then Jetstar has introduced a new process for Cabin Manager Upgrades and promotions, called "Altitude". Generally, permanent Cabin Manager positions are offered based on availability to team members who have successfully completed the Altitude program. Due to the time that has elapsed since February 2013, staff who had previously been more junior to Mr MacDonald may have been upgraded to permanent Cabin Manager positons. Jetstar had, and has, no obligation to provide Mr MacDonald with a Cabin Manager upgrade.
Thirdly, rather than applying for reinstatement, Mr MacDonald seeks elevation to a different position, namely, Cabin Manager. There is said to be no power under the Workers Compensation Act for such an order to be made.
The ground at [1(c)] of Jetstar's submissions rests on the fact that any order for reinstatement or back pay is at the discretion of the Commission. Jetstar pointed to a number of factors as weighing against the exercise of discretion in favour of Mr MacDonald, including: 1. the lack of evidence that Mr MacDonald is currently fit for work (noting the evidence referred to at [22] above); 2. any order for reinstatement, which is only sought for the purposes of obtaining compensation, would not effect reinstatement in any real or practical way; 3. Mr MacDonald's delays in undertaking the training necessary for him to be reinstated (as deposed to by Ms Hoar); 4. the evidence of significant periods after 2014 when Mr MacDonald was unable to work; 5. the evidence that Mr MacDonald's earnings in the period after the termination of his employment at Jetstar were significantly higher than they had been when he was working with Jetstar; 6. on a related point, the lack of any evidence of loss suffered by Mr MacDonald between the time of making the Application and his reinstatement; and 7. his alleged lack of candour in not disclosing to Dr Nigel Marsh the fact of his ankle injury, at the time of his appointment on 20 July 2016 (as deposed to by Ms Thompson).

The Legislation

Part 8 of the Workers Compensation Act relevantly provides as follows: Part 8 Protection of injured workers from dismissal 240 Definitions (cf IR Act, s 91) (1) In this Part: Commonwealth industrial instrument means any award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) the Workplace Relations Act 1996 of the Commonwealth. industrial organisation of employees has the same meaning as it has in the Industrial Relations Act 1996. reinstatement includes re-employment. State industrial instrument has the same meaning as industrial instrument has in the Industrial Relations Act 1996. (2) For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. (3) For the purposes of this Part, a person is the employer of an injured worker only if the injury arose (either wholly or partly) out of or in the course of employment with that person. Note. For the purposes of comparison, a number of provisions of this Part contain bracketed notes in headings drawing attention ("cf IR Act") to equivalent or comparable (though not necessarily identical) provisions of the Industrial Relations Act 1996 (as in force immediately before the commencement of this Part). 241 Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2) The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3) The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94) (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 244 Presumption as to reason for dismissal (cf IR Act, s 95) (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. 245 Disputes as to fitness-medical assessment (cf IR Act, s 96) (1) The Industrial Relations Commission may refer to an approved medical specialist any dispute as to the worker's condition or fitness for employment to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act. (2) The approved medical specialist is to submit a report to the Industrial Relations Commission in accordance with the terms of the reference. 246 Continuity of service of reinstated worker (cf IR Act, s 97) (1) If a worker is reinstated under this Part, the Industrial Relations Commission may order that the period of employment of the worker with the employer is taken not to have been broken by the dismissal. (2) However if the Industrial Relations Commission does so, the period between dismissal and the date of the application by the worker to the employer for reinstatement is not to be taken into account in calculating for any purpose the period of service of the worker with the employer.
Part 8 was inserted into the Workers Compensation Act by the Industrial Relations Further Amendment Act 2006 (NSW), which commenced on 1 December 2006. Immediately prior to that commencement, relevantly identical provisions to those in Pt 8 were contained in Ch 2 Pt 7 (ss 91-100) of the Industrial Relations Act 1996 (NSW) as then in force. That Chapter of the Industrial Relations Act was repealed by the amending legislation.
The history of the provisions is set out in Cansino v South Western Sydney Area Health Service [1999] NSWIRComm 355; 130 IR 1. In that case, in the context of what was then Ch 2 Pt 7 of the Industrial Relations Act, the Full Bench summarised (at 130 IR 1, 11-14) the operation of the provisions. I will not reproduce the entire passage. It is relevant in the present case to note only the following observations of the Full Bench (adding in square parentheses and italics references to the equivalent provisions in the Workers Compensation Act): "(2) The employment of such a person must have been terminated by the employer 'because' (that is, for the reason that) the person was not fit for employment and such unfitness for employment must in turn have resulted from the relevant injury: s 92(1) [s 241(1)]. A person is the 'employer', and hence liable to meet an order for reinstatement, only if the injury arose (either wholly or partly) out of or in the course of employment with that person: s 91(2) [s 240(3)]. … (5) Prima facie, the word 'reinstatement' imports a notion of becoming re-employed in the work which the person was undertaking at the time of termination of employment: see the discussion of the concept in Deltec International Courier Pty Limited v. Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR341 at 350-354; in any event, s 91(3) [s. 240(1)] defines 'reinstatement' to include 're-employment'. But, such a notion is displaced because the reinstatement is said to be available to employment of a kind specified in the application which, necessarily, imports the possibility of employment to something other than the precise pre-dismissal employment. … (7) It is necessary for the person to 'produce' (that is, show) to the former employer a certificate from a medical practitioner. The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement: s 92(3) [s 241(3)]. … (12) Whether and to what extent any such order is made under s 94 [s 243] is discretionary and the section should not be construed as imposing a mandatory requirement upon the Commission to make such an order, subject, of course, to the discretion being exercised in a proper manner. So much is clear from the repeated use in the section of the word 'may'. (13) If the Commission is satisfied it is appropriate to make an order under s 94(2) [s 243(2)], the discretion reposes in the Commission as to which of the alternative courses it should adopt. In exercising discretion it would be necessary to do so on the evidence put before the Commission by the parties. … (16) A determination of fitness for employment as referred to in s 94(2) [s 243(2)] must necessarily be made on the basis of medical evidence. … (19) Section 94(3) [s 243(3)] creates two further alternative bases for the exercise of discretion, but in either case the Commission is required to find that the employee is fit for the alternative employment which is the subject of the order. Again, fitness would appropriately be determined by reference to relevant medical evidence."
Cansino was cited with approval by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108.

Consideration

I turn now to consider the submissions that have been made by the parties.

Basis for Mr MacDonald's dismissal

Jetstar contends that it dismissed Mr MacDonald because he was unable to meet the inherent requirements of his position because of "chronic pain syndrome", not as a result of the soft tissue injury.
Whether or not this is the case (to which I will return), this only goes to whether s 241(1) of the Workers Compensation Act is enlivened. It does not determine whether or not Mr MacDonald was an "injured worker", or Jetstar the "employer", for the purposes of s 240. To the extent that Jetstar submitted otherwise, I disagree.
There is no dispute that Mr MacDonald suffered an injury for which he was entitled to receive compensation under the Workers Compensation Act, namely a soft tissue injury to his right shoulder.
Notwithstanding the use of the present tense in s 240(2) of the Workers Compensation Act, he is to be regarded as an "injured worker" under that section: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386 per Emmett AJA at [55] and [56]. See also ASMOF (NSW) v CSAHS [2005] NSWIRComm 339 at [69] - [78].
It follows that Jetstar is Mr MacDonald's "employer" as defined in s 240(3).
This leads to the more substantive submission made by Jetstar, namely that as Mr MacDonald was not dismissed "because he … [was] not fit for employment as a result of the injury received", namely the soft tissue injury, he is not able to make an application under s 241(1) of the Workers Compensation Act.
Relevant to this submission is s 244 of the Workers Compensation Act. Under that section it will be presumed that Mr MacDonald was dismissed because he was not fit for employment as a result of the injury received (subs (1)), unless Jetstar satisfies the Commission that the injury "was not a substantial and operative cause of the dismissal of the worker" (subs (2)).
In Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 Bathurst CJ, with whom Beazley P agreed, made the following observations regarding s 244 at [52] and [53]: "52. The reason for the presumption [in s 244(1)], in my opinion, is to overcome the difficulty a worker might otherwise have in establishing that the cause of dismissal was unfitness for employment as a result of the injury. To avoid that difficulty the onus is on the employer to prove that the dismissal was not connected with the worker's injury in the sense described in s 244(2). In those circumstances, it would be a misconstruction of the Act to conclude that the actual reasons of the employer for dismissal of the worker should not be taken into account in determining whether or not the presumption is rebutted. The question in effect is why the employer dismissed the worker. That can only be considered in the context of the actual reasons for doing so. 53. Neither the words subjective nor objective are used in the section. As was stated by Gummow and Hayne JJ in Barclay supra at [121], to consider sections such as s 244(2) by reference to either a subjective or objective criteria is to 'adopt an illusory frame of reference'. The question of whether the injury was a substantial and operative cause of the worker's dismissal is a question of fact to be decided by reference to all the circumstances including the employer's evidence as to such cause." (Emphasis added)
In its outline of submissions Jetstar contended as follows: "12. Here, Mr McDonald's inability to perform his role was unrelated to any injury which he suffered in the course of his employment with Jetstar. In this regard, Jetstar repeats its earlier submission; namely Mr MacDonald was dismissed because of his inability to perform the inherent requirements of his position by reason of [the] report Jetstar had received from Dr Bloom dated 27 November 2012. … … 14. As referred to in the FWC Decision at [49]-[54], Dr Bloom did not hold the view that Mr MacDonald's inability to perform the inherent requirements of the position was by reason of the compensable injury (the soft tissue injury to his right shoulder) but by reason of chronic pain syndrome."
During the hearing, Ms Raper made the following submissions (Tcpt, p 57 (1-5)): "In relation to the evidence of Dr Bloom, I note, Commissioner, and no doubt you have and will read it carefully, that Dr Bloom makes very clear in his report and it is accepted those parts are accepted by the Fair Work Commission that he does not think that the chronic pain syndrome actually relates to the injury, the shoulder injury for which the applicant had received compensation."
Extracts from the Bloom Report are set out above at [9]. The following passages are worth highlighting in particular (emphasis added): 1. "I do not think that his current complaints and perceived level of disability are a direct result of strain injuries that should have resolved before now." 2. "Whether or not his chronic pain syndrome actually represents a chronic pain disorder, and whether or not this chronic pain syndrome continues to relate to the claimed injury dated 31 August 2009 would require the opinion of a specialist Psychiatrist, preferably one with a particular interest in Occupational Psychiatry." 3. "Thus, to sum up, I do not think I can identify any ongoing discrete physical injury that relates to the claimed injury dated 31 August 2009 or the claimed injury dated 8 June 2010." 4. "As suggested above, I am not at all sure that his perceived level of disability continues to relate to the original injury, although confirmation of this would require the opinion of a specialist Psychiatrist."
On any analysis, Dr Bloom stopped short of opining that there was no connection between the chronic pain syndrome and the compensable injury. There is no evidence that Jetstar sought the opinion of a specialist psychiatrist as suggested by Dr Bloom.
In addition, Commissioner Bull of the FWC did not make a finding in his judgment of 31 January 2014 to the effect that the chronic pain syndrome diagnosed by Dr Bloom did not relate to the soft tissue injury for which Mr MacDonald received compensation. Rather, the Commissioner found at [67] that it was a "specialist medical opinion stating that Mr MacDonald was unfit to perform the inherent duties of a flight attendant and was not likely to be able to do so in the foreseeable future".
Further in relation to the FWC proceedings, there is nothing in the transcripts of the proceedings before Commissioner Bull on 23 October and 13 November 2013 to suggest the construction of Dr Bloom's report now being pressed by Jetstar. Rather, in the course of making submissions on 13 November 2013, Mr Darams of counsel, who appeared for Jetstar, made submissions (which need not be reproduced) to the effect that the soft tissue injury to Mr MacDonald's shoulder was the reason for the termination of his employment. There were no submissions made seeking to draw the distinction between that injury and the chronic pain syndrome diagnosed by Dr Bloom.
It is also of note that in its initial correspondence with Harris Wheeler, Herbert Smith Freehills challenged only the adequacy of the Dias Report (in the context of s 241(3) of the Workers Compensation Act). It did not object to the application for reinstatement on the basis now contended.
I recognise that the FWC had to consider different issues in an application under s 394 of the Fair Work Act than the Commission is required to consider under Pt 8 of the Workers Compensation Act. I am also mindful that Jetstar's letter to Mr MacDonald of 14 January 2013 (see [10] above), referred only to him suffering from chronic pain syndrome. Even so, it is difficult to be confident that the position now being advanced by Jetstar properly reflects the state of mind of the relevant decision makers in January and February 2013.
Other than the letters of 14 January and 14 February 2013, the only evidence as to the reasoning behind the termination of Mr MacDonald's employment is to be derived from the transcript of the proceedings before the FWC and Commissioner Bull's decision. As stated, that evidence does not support the case now being advanced by Jetstar. Jetstar did not call evidence in these proceedings from the person who made the decision to terminate Mr MacDonald's employment.
On balance, I am not satisfied that Jetstar has discharged its onus under s 244(2) of the Workers Compensation Act to rebut the presumption in s 244(1). It follows that I do not accept the first ground of objection raised by Jetstar. It is necessary, therefore, to proceed on the basis that Mr MacDonald, being an injured worker, was dismissed because he was not fit for employment as a result of the injury received.
For completeness, I note that during the hearing Mr Weightman tendered a letter from a Dr John Prickett to Harris Wheeler dated 6 March 2013. I admitted it over the strong objections of Ms Raper on the basis that I would consider what weight, if any, the letter should be given. The letter has had little bearing on my decision in this matter.

Adequacy of Dias Report

To be entitled to make an application to the Commission for reinstatement pursuant to s 242(1) of the Workers Compensation Act, the worker must first have applied to the employer for reinstatement, and must have produced to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which he or she applies for reinstatement: s 241(1) and (3).
Section 241(3) is drafted in mandatory terms. It also has a temporal element, in that the medical certificate must be to the effect that the worker is fit for employment. As stated by the Full Bench in Cansino (at p 12): "The effect of the certificate, that is its general thrust, must be that the employee is fit to undertake the work as described by the employee when making application for reinstatement." (Emphasis added)
That the medical certificate must demonstrate that the worker is currently fit for employment might be regarded as axiomatic in the context of the legislation. In any event, such a requirement is consistent with ss 243(2) and (3) of the Workers Compensation Act, which permit the Commission to reinstate a worker, but only if "the worker is fit" for the employment to which he or she is to be reinstated.
Jetstar contends that the Dias Report did not satisfy the requirements of s 241(3), with the result that Mr MacDonald was not able to invoke s 242 of the Workers Compensation Act notwithstanding Jetstar's failure to reinstate him.
The Dias Report is dated 26 June 2013. The application for reinstatement was made on 3 February 2014. In the interim the FWC proceedings had been conducted. As stated at [15] above, there was apparent conflict in the evidence of Dr Bloom and Dr Dias in the FWC proceedings.
In light of those proceedings, it was at least misguided for Mr MacDonald to seek to rely on the Dias Report in support of his application for reinstatement. The position taken by Jetstar in the FWC proceedings, which had concluded in a decision handed down only three days previously, made it entirely unlikely that Jetstar would accept the Dias Report to reinstate him.
More particularly, as the FWC proceedings had demonstrated conflict in the medical evidence regarding Mr MacDonald's fitness for work, there was nothing unreasonable in Jetstar insisting on more current medical evidence.
It should also be noted that Jetstar did not "point blank" refuse to reinstate Mr MacDonald. The letter from Herbert Smith Freehills to Harris Wheeler dated 20 February 2014, referred to at [18] above, stated that Jetstar would consider Mr MacDonald's application for reinstatement once it had a current medical certificate confirming his fitness for work. There was no reason for Mr MacDonald to doubt the genuineness of Jetstar's position or to see the request for more up-to-date medical evidence as an attempt to avoid reinstating him. (For the reasons stated at [84] below, the position taken by Jetstar in February 2014 seems to have been entirely genuine.)
In the circumstances of this case, I find that it was not sufficient for the purposes of s 241(3) of the Workers Compensation Act for Mr MacDonald to rely on the Dias Report. It was necessary for him to produce a more current medical certificate to support his application for reinstatement.
In failing to meet the requirements of s 241(3) of the Workers Compensation Act, Mr MacDonald was not entitled to commence proceedings under s 242(1).

Other grounds of challenge

While this finding is sufficient to dispose of the proceedings, I make the following short observations on the remaining contentions put forward by the parties.
I am satisfied on the evidence that Mr MacDonald's position prior to his dismissal on 14 February 2013 was as a part-time flight attendant. His terms of employment were at that time set out in an employment agreement dated 3 October 2006, a letter of variation dated 10 July 2012 and the Jetstar Airways and FAAA Enterprise Agreement 2011. I do not accept that Mr MacDonald's terms of employment included any guarantee of promotion to a cabin manager position or assurances of upgrades to a cabin manager role.
It follows that it would not be possible, even were I inclined to do so, to reinstate Mr MacDonald to the "cabin manager type upgrade sort of position" to which Mr Weightman referred (see [28] above). Mr Weightman's submissions provided little assistance to the Commission as to the precise reinstatement order that Mr MacDonald sought in relation to that "position". However, assuming the position could be identified with precision, it would be more advantageous to Mr MacDonald than the one he held prior to dismissal. This would be contrary to s 241(2) of the Workers Compensation Act.
I am further satisfied that Mr MacDonald was reinstated to his pre-dismissal position on 2 October 2017. There is no doubt that there were a number of errors made, or matters overlooked, in effecting that reinstatement, as identified by Mr MacDonald and acknowledged by Ms Hoar. However, Ms Hoar gave uncontroverted evidence to the effect that these were simply oversights which had been corrected, or were in the process of being corrected, at the time she prepared her statement. However unfortunate the oversights may have been, I do not accept that they had the effect of rendering the situation one of re-employment as opposed to reinstatement, as submitted by Mr MacDonald.
In these circumstances, and once again having regard to the submissions of Mr Weightman referred to at [28] above, any order of reinstatement would serve only to allow for an order for back pay to be made pursuant to s 243(4) of the Workers Compensation Act. The opening words of that subsection make it clear that back pay can be awarded only where the Commission orders the worker to be reinstated.
Jetstar submitted that the Commission cannot order it to do something that it has already done, namely reinstate Mr MacDonald. It drew the analogy with discretionary relief in other jurisdictions, noting observations that a court should not grant an injunction devoid of consequences (Optus Networks Pty Ltd v City of Booroondara [1997] 2 VR 318 at 338) or make a declaration that would make no contribution to resolving the dispute and would therefore be futile (Hall v Sherman [2001] NSWSC 810; 40 ACSR 40 at [63]).
Jetstar further submitted that an order for reinstatement, sought only for the purpose of obtaining compensation, would not effect a reinstatement in any real or practical way.
The logical extension of Jetstar's argument is that in proceedings under Pt 8 of the Workers Compensation Act an employer could wait until late in the day before offering an employee reinstatement to the position for which he or she had applied. If the employee accepted that offer, he or she would have no basis on which to claim back pay. To protect that claim they would have to reject the offer, taking the risk that such rejection would be used against them by the employer to resist an order for reinstatement on discretionary grounds.
In light of my findings in this matter, it is not necessary to determine whether the Commission in exercising its discretion could make an order under s 243(1), even where the employee has already been reinstated, if the purpose is to enliven the Commission's jurisdiction under s 243(4). In light of the beneficial nature of the legislation and the discretionary nature of the Commission's jurisdiction I would not rule out the possibility. However, that is a question for another day and another case.
Jetstar further submitted that the Commission cannot make an order for reinstatement with retrospective effect. In its outline of submissions Jetstar made reference to the request in the Application for an order that Mr MacDonald be reinstated on 3 February 2014. From his submissions, however, it is clear that Mr MacDonald was seeking reinstatement from 2 October 2017, being the date on which he recommenced employment with Jetstar. Even so, the order sought would necessarily operate retrospectively.
Consistent with the observations of the Full Bench in Retail Traders Association of NSW v Shop, Distributive & Allied Employees Association of NSW (1990) 36 IR 38 at 50-51 (per Cahill VP) and 55 (per Maidment J) I agree with the submissions made by Jetstar that the Commission cannot make a retrospective reinstatement order.
In all of the circumstances of this case, even had the proceedings been properly commenced, I would decline to exercise my discretion under s 243(4) to award back pay. This is for a number of reasons, including the following: 1. Mr MacDonald has not demonstrated that he suffered any loss between his dismissal on 14 February 2013 and his reinstatement on 2 October 2017. His tax returns suggest, to the contrary, that he was able to secure more remunerative, full-time work with another employer; 2. the period in which this was not the case was between July 2016 and June 2017. Mr MacDonald had been offered reinstatement in September 2016 but, for reasons of his own, he did not complete the training necessary to return to work until 2 October 2017 (see the evidence of Ms Hoar at [21] above). Mr MacDonald could not reasonably expect payment for this period; 3. from approximately late May 2014 until 20 March 2015 Mr MacDonald was unfit for work due to an ankle injury. Again, he could not reasonably expect payment for that period; 4. there is sufficient evidence to draw the inference that Mr MacDonald was not forthcoming with Dr Marsh regarding his ankle injury. This not only reflects poorly on him, but caused delays in effecting his reinstatement. In either case, this argues against the exercise of the Commission's discretion in his favour.
Against these factors, Jetstar has always adopted a consistent position. As I noted at [69] above, Jetstar always professed to be open to reinstating Mr MacDonald, subject to him producing medical evidence that he was fit to resume work. This remained Jetstar's position up to and including the point at which Dr Marsh confirmed on 26 July 2016 Mr MacDonald's fitness to return to work. Within a reasonable period after receiving that report, and in keeping with the position it had taken up to that point, Jetstar offered Mr MacDonald reinstatement. The fact that it subsequently took more than a year for the reinstatement to be effected is not something for which Jetstar can be held accountable.
As I would not exercise my discretion to award back pay to Mr MacDonald, I would not exercise my discretion to order reinstatement, to the extent it was available, if the only practical purpose in doing so would be to enliven the Commission's jurisdiction under s 243(4).

Order

I order that the proceedings be dismissed. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2019

Industrial Relations Further Amendment Act 2006(NSW)

History leading to proceedings

Mr MacDonald commenced employment with Jetstar as a flight attendant on 16 October 2006.
Mr MacDonald was initially employed by Jetstar on a full-time basis. In 2012 this was changed to part-time employment, apparently at Mr MacDonald's request. This variation to his conditions of employment was set out in a letter from Jetstar to Mr MacDonald dated 10 July 2012, which was signed by Mr MacDonald on 21 October 2012. The letter advised that the change would take effect on 1 November 2012.
At this time Mr MacDonald was absent from work for health-related reasons. He had not been at work since July 2012.
On 27 November 2012 Mr MacDonald was examined by Dr Michael Bloom. The examination had been arranged by Jetstar.
In a report to Jetstar dated 27 November 2012 ("Bloom Report"), Dr Bloom stated as follows: "The clinical presentation today is not one of discrete strain injury. This is because the symptoms and clinical signs are consistent with chronic pain syndrome rather than an acute discrete strain injury. That is, this man's symptoms and clinical signs cannot be explained in terms of a strain injury, and implies a very considerable psychosocial component. It must be noted that the claimed strain injuries have occurred in the context of a man who has suffered with severe depression for many years and who has also been suffering with insomnia. … In my opinion Mr Macdonald is suffering with a chronic pain syndrome. The reason for this diagnosis is that I am unable to explain his perceived level of pain and disability on a purely physical basis. His symptoms and clinical signs are not consistent with discrete strain injuries. I think it is possible, and indeed likely, that he did sustain a soft tissue strain injury to his right shoulder on 31 August 2009 in the manner described. It is also plausible that he sustained a soft tissue injury to his left shoulder in an incident in the course of his work on 8 June 2010, whilst reaching to lift an atlas box from a high shelf. However, such soft tissue injuries would normally be expected to resolve over period of days, weeks or months at most. I do not think that his current complaints and perceived level of disability are a direct result of strain injuries that should have resolved before now. I think that Mr Macdonald is experiencing a pain amplification syndrome that results predominantly from psychosocial issues. … Because one would normally expect soft tissue strain injuries to resolve within days, weeks or months at most, and because his current symptoms are so very widespread, diffuse and cannot be explained in terms of discrete physical injury, I cannot say that I am able to identify any ongoing physical injury that relates to his original claimed injury dated 31 August 2009. Whether or not his chronic pain syndrome actually represents a chronic pain disorder, and whether or not this chronic pain syndrome continues to relate to the claimed injury dated 31 August 2009 would require the opinion of a specialist Psychiatrist, preferably one with a particular interest in Occupational Psychiatry. Thus, to sum up, I do not think I can identify any ongoing discrete physical injury that relates to the claimed injury dated 31 August 2009 or the claimed injury dated 8 June 2010. … As suggested above, I am not at all sure that his perceived level of disability continues to relate to the original injury, although confirmation of this would require the opinion of a specialist Psychiatrist. … As suggested, I think that he is unlikely to resume full duties in the foreseeable future."
On 14 January 2013 Jetstar wrote to Mr MacDonald informing him that, on the basis of the Bloom Report, it was considering terminating his employment on the ground that he was unable to perform the inherent requirements of his role. He was invited to provide Jetstar with any additional material that he would like Jetstar to consider before a decision was made in relation to his employment.
Apart from a request by Mr MacDonald, through his lawyers, for a copy of the Bloom Report, he appears not to have made a substantive response to Jetstar's letter of 14 January 2013.
By letter dated 14 February 2013 Jetstar informed Mr MacDonald that the decision had been made to terminate his employment with effect from that day.
Mr MacDonald subsequently commenced proceedings in the Fair Work Commission ("FWC") pursuant to s 394 of the Fair Work Act 2009 (Cth). Those proceedings were heard by Commissioner Bull of the FWC on 23 October and 13 November 2013. On 31 January 2014 Commissioner Bull handed down his decision, dismissing the application: Ronald MacDonald v Jetstar Airways Pty Limited T/A Jetstar [2014] FWC 488.
On 3 February 2014 Harris Wheeler, then the solicitors for Mr MacDonald, wrote to Jetstar applying for his reinstatement pursuant to s 241 of the Workers Compensation Act. The letter enclosed a report of Dr Uthum Dias dated 26 June 2013 ("Dias Report"), on which Mr MacDonald relied in support of his application.
Mr MacDonald had also relied on the Dias Report in the FWC proceedings. From a reading of the transcript and the judgment in those proceedings, it is clear that there was some conflict between the opinions of Dr Bloom and Dr Dias regarding Mr MacDonald's fitness for work. The decision of Commissioner Bull makes reference to Dr Bloom having given evidence in those proceedings in direct, and in some respects contradictory, response to the Dias Report.
The Dias Report stated that Dr Dias had examined Mr MacDonald on 26 June 2013. It included the following findings: "Based on the abovementioned job task analysis penned by Carla Hewitt, and the history, examination and the available evidence, I believe that Mr MacDonald does have the functional capacity to be fit to perform flight attendant duties on a part-time basis, namely 23.5 hours per week. In addition, I specifically tested Mr MacDonald's ability to handle and manipulate a 15kg weight from a standing and seated position from above head height to waist, and he completed these tasks successfully. Based on this objective assessment as well as the history, examination and available evidence, Mr MacDonald would be able to handle the heaviest component of his work as a flight attendant and thus this will qualify him to be functionally capable of performing the role of a flight attendant on a part-time basis."
Subsequent to the letter of 3 February 2014, correspondence was exchanged between Herbert Smith Freehills, on behalf of Jetstar, and Harris Wheeler. Through that correspondence, Jetstar took issue with the adequacy of the Dias Report for the purposes of s 241(3) of the Workers Compensation Act.
In a letter to Harris Wheeler dated 20 February 2014, which effectively summarised Jetstar's position at the time, Herbert Smith Freehills wrote: "The report from Dr Dias that you refer to in your letter (June 2013 Report) has already been considered by our client. However it does not satisfy the requirements of the Workers Compensation Act 1987 (NSW) (Act). Our client requires a current certificate by a suitably qualified medical practitioner to the effect that Mr MacDonald is fit for employment as a flight attendant, pursuant to sub-section 241(3) of the Act, in order for Jetstar Airways to consider its position with respect to your demand to reinstate Mr MacDonald. We understand that Mr MacDonald has not been employed as a flight attendant since early 2013. Given his medical history as set out in the June 2013 Report, the fact that Mr MacDonald has not been certified as unfit does not establish that he is currently fit for employment as a flight attendant."
On 28 February 2014 the Application was filed on behalf of Mr MacDonald. It appears to have been served on Jetstar under cover of a letter dated 5 March 2014.

[1999] NSWIRComm 355

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)

Cited By (3)