Stefanus Uijland v Airservices Australia [2020] FWC 4809

Stefanus Uijland v Airservices Australia [2020] FWC 4809 | Case summary | Zoe

[12]

[26] In a curiously drafted statement originally filed by the applicant's support person, Ms Evans confirmed she had attended the two meetings on 26 September and 10 October 2019. Each of Ms Evans' comments begin with 'she heard' or 'she observed'. The statements were not in the first person. A second statement in exactly the same terms, but this time expressed in the first person, was tendered in evidence. Both statements corroborate exactly what the applicant said was discussed (or refused to be discussed) in these meetings. To that extent, it is unnecessary to repeat it.

[27] In cross examination, Ms Evans acknowledged the original statement had not been prepared by her. She claimed that she had not discussed the contents of the second statement with the applicant after the first had been filed. However, she conceded she had discussed the meetings' conversations with the applicant, because they had both been there. When pressed, Ms Evans agreed she had read the first statement before preparing her own statement.

[28] As to the 26 September 2019 meeting, Ms Evans recalled Mr Wallace had said the letter he gave to the applicant; see: [3] above, was not negotiable. She accepted that Mr Wallace had invited the applicant to respond before any final decision was made. She could not recall if Mr Wallace had said he could be flexible if the applicant needed more time. She recalled Mr Wallace had said Airservices would not help or assist the applicant in finding a new position. However, she believed Mr Wallace mentioned a list of advertised internal jobs that would be provided to him. He also mentioned that Comcare's rehabilitation process may be able to provide vocational assistance.

[29] Ms Evans agreed the applicant's focus in the meeting was on who was responsible for the functional capacity assessment for his shoulder injury in 2017. As to the 10 October 2019 meeting, Ms Evans could not say if Mr Turner had said that the applicant would be provided with as much support as possible during the LOEQ process. Further, she could not recall Mr Turner saying that the applicant was welcome to contact the CEO. She accepted that the applicant was again seeking answers to historical events about his shoulder functional capacity assessment in 2017. Mr Turner had declined to answer any questions.

[68]

[46] In responding to Ms Mackee's statement, the applicant pointed out that unlimited sick leave is standard for all ATCs. He claimed that two other employees at Albury had used more sick leave than him and had been allowed to start and finish their treatment and had returned to work more than once after long absences. He claimed that neither of them were told their injury was more serious than his, and given no guarantees their treatment would be successful.

[47] The applicant claimed Ms Mackee used wording which was not accurately reflected in the relevant documentation. He said that she made no mention of the terms of the Agreement.

[48] The applicant believed that the Injury Management Guide was selectively used by Airservices and it had acted negligently in respect to his shoulder injury. Strangely, he said he had legal advice that Airservices is not obliged to assist his rehabilitation for a new work-related injury. He believed Airservices' demand he return from overseas to less support and inferior medical services was in breach of Cl 55.1 of the Agreement, as it was not taking positive and appropriate action. Nor was Airservices requiring him to undertake a functional capacity assessment. Further, Airservices was negligent in not obtaining expert advice. They should have returned him to a specialist surgeon for a report to his DAME, who would then report to Airservices.

[49] In respect to his back injury the applicant said Airservices failed to:

provide support and encouragement for employees to remain at work following an injury;

foster a work environment that is supportive of injured employees;

actively contribute to and participate in the return to work process;

provide encouragement and assistance to motivate the employee to return to work quickly;

ensure that the employee gets appropriate medical assistance; and

communicate attendance matters with an employee with empathy, respect and fairness.

[50] The applicant believed the work he did perform in 2019 was not meaningful and Ms Aruliah failed to contact him in breach of the Rehabilitation Agreement. No one showed empathy or compassion for his circumstances, in particular the applicant believed that:

the respondent's citation of various cases was to avoid their negligence and failure in its duty of care. Other cases are not relevant because his case is unique;

even though he had been shortlisted for a new role, he was never told why he was unsuccessful or did not get an interview and

the onus was on Airservices to advise him of the requirements to seek the loss of license insurance payment. He had to follow this up himself.

[51] The applicant set out the circumstances surrounding Ms Waddell's position at Albury Tower, even knowing her personal family circumstances. He believed Airservices did her and her family a 'massive favour'.

[52] As to Mr Wallace's complaint about his conduct, the applicant said there was no investigation, and nothing had been proven. On the contrary, over 18 years he could have made many complaints about breaches of the Code by several individuals, and there is proof of others breaching the Code in respect to this matter. He noted again that he had only complained about Mr Valkenburg after giving him four chances to cease his verbal abuse. This demonstrated the poor communication and unhealthy culture in Airservices.

[73]

[55] Mr Wallace first met the applicant on 18 April 2019 and told him he wanted to get to know him and get a better understanding of his Return to Work ('RTW') plan, and what could be done to support him. The applicant detailed the history of his shoulder and back injuries and mentioned he was on a 'waiting list' for a treatment called scrambler therapy, although it was difficult to obtain an appointment and uncertainty as to when it might happen.

[56] Mr Wallace had the impression the applicant did not know much about the treatment and had some fears about it. He had also mentioned spending 4-5 months on paid sick leave in Europe visiting family and seeking treatment for his shoulder injury. It was Mr Wallace's evidence that he had said 'I would not have approved that', meaning the extended sick leave. It was not a comment about the scrambler therapy, as this was not a decision he could approve or not approve; it was a decision for the Comcare case manager.

[57] Mr Wallace said the applicant told him he was on a day on/day off routine, had difficulty sleeping, needed frequent breaks from computer work to stretch on the floor and he routinely went to the Murray River to lie in the water to rest. He felt the best thing was to rest, but he complained about not having enough meaningful work to do. He asked about spending time in the Tower with operational ATCs, but Mr Wallace was concerned that this would be distracting to the other ATCs. Mr Wallace said the Albury Tower has a large office area, which in other locations, is used for updating training and general administration.

[58] Mr Wallace agreed he had mentioned that the applicant could take annual leave on the days he was meant to be working, as he had told him he needed to rest and there was no work for him to do. He insisted he did not direct him to take annual leave. The applicant said he preferred to take his annual leave in blocks to visit family in Europe and he believed taking annual leave on workdays would be detrimental to his state of mind.

[59] When Mr Wallace asked him about any CASA paperwork he had, the applicant showed him the letter of 13 September 2018; see: [35] above. Mr Wallace said he was surprised by this, as he understood the applicant had been working until January 2019. When he asked why he had not renewed his Class 3 MC, the applicant responded there was no point, as he would not pass and his DAME told him that 'until there was a change in his status, he would not be able to renew his medical'. Mr Wallace explained it was the applicant's responsibility to renew his medical with his DAME prior to its expiry. He had never seen an ATC not attempt to do so, even where they had existing medical conditions. At this time, Airservices only had medical certificates from the applicant's GP, and there was nothing about the views of CASA and a DAME about his then status.

[60] Upon review, Mr Wallace believed that as the applicant had worked as an ATC between 13 September 2018 and 7 January 2019, there was a requirement for Airservices to report to CASA of any breach of its regulatory requirements. Mr Wallace was concerned the applicant had been of breach of his license for around four months. After the applicant made an appointment with a DAME for early May 2019, Mr Wallace explained his concerns and the applicant told him he found the letter confusing because it referred to 'flight crew license', and Dr Thomas had agreed. Mr Wallace counselled the applicant that if he had any doubts, it was his responsibility to seek clarification from CASA. He told him that he would be discussing the issue with the Acting Service Manager, Mr Henderson, and that the issue would be taken very seriously. Mr Wallace emailed the applicant, summarising the meeting outcome and the applicant replied that he was upset that he felt no empathy, support, understanding or compassion from him.

[61] Mr Wallace and the applicant had a phone conversation on 16 April 2019. Mr Wallace confirmed their conversation as follows:

[77]

[62] Mr Wallace denied saying 'I agree that it was all really confusing and not clear and we will leave it at that'. Mr Wallace said the applicant sent emails to Ms Aruliah complaining about his management skills and Mr Henderson not responding to him. Mr Wallace told him his qualifications 'are not your concern'; further, criticising his management skills was inappropriate. Having left the workplace without permission, Mr Wallace also told the applicant that if he was leaving the Tower, to attend a medical appointment, he must inform his manager. Any absence must be approved and entered into the rostering system.

[63] At the beginning of May 2019, Mr Wallace suggested that the applicant could perform Remotely Piloted Aircraft Systems ('RPAS') (Drones) work. This involves assessing applications by RPAS users to operate in controlled airspaces, after referral from CASA. Another ATC in Rockhampton, with medical restrictions, was performing this time-consuming work. Mr Wallace also suggested that the applicant could do National Request for Change ('NRFC') work. This involves amendments to operational documents or procedures through a number of approval checks.

[64] On 8 May 2019, the applicant suggested he give presentations to school children about Airservices and ATC duties. Although having concerns about the applicant's negative comments about Airservices, he asked him to prepare a presentation of what he intended to say. No copy of such presentation was ever provided. Mr Wallace asked the applicant about RPAS and NRFC work. He refused these duties, as they both involved computer work. This was frustrating as there was no medical restriction on computer work.

[65] Mr Wallace said that the applicant was certified unfit for any work from 13 May 2019 - 12 August 2019. His GP, Dr Evans, advised that he could not perform RPAS work because errors might be made due to a lack of concentration. Mr Wallace did not agree, and in any event, the work was to be reviewed by himself or the Rockhampton ATC. The applicant did not raise the matter again. On 31 May 2019, the applicant was certified for administration only, but not in areas where mistakes would be dangerous and a only for maximum of three hours a day.

[66] On 3 June 2019, Mr Wallace gave the applicant a task to prepare a discussion paper about the ability for en route ATCs to use radar identification procedures currently used by radar approach control ATCs. Mr Wallace commended his work.

[67] Mr Wallace asked the applicant to prepare a running sheet for presentation to pilot students about the role of ATCs and Airservices. The applicant was not interested, as it was 'too routine'. The applicant provided 'continuing medical certificates' from 17 August to 4 October 2019.

[68] On 30 April 2019, Mr Wallace asked the applicant how he intended to reduce his excessive leave balance. He put a number of options and took leave in June and August 2019. The applicant responded on 24 April 2019 as follows:

[99]

[75] Mr Wallace commenced the LOEQ process of Mr Henderson's request on 17 September 2019. Mr Wallace gave his version of events as to the controversial meeting of 26 September 2019, involving himself, the applicant, his support person and Ms Aruliah. Mr Wallace read the letter of 23 September 2019; see: [3] above.

[76] When the applicant asked why this decision had been made before his scrambler therapy, Mr Wallace replied that he had not made the decision and could not answer. The decision was one determined by senior ANS managers based on all the available information. Mr Wallace said he did not say 'I can't tell you, they won't discuss it with you'. Rather, he told him this was a process which he could respond to within seven days as to why the LOEQ process should not go ahead and provide any information to be taken into account.

[77] Mr Wallace handed over to Ms Aruliah who explained that the applicant would need to apply for a new position within Airservices. Comcare's rehabilitation provider would provide support in writing resumes, interview skills, and identifying new roles. Ms Aruliah said she would provide him with meeting lists of job vacancies. The applicant asked why relocation expenses were not covered. Ms Aruliah replied that this was at the discretion of the relevant manager. When the applicant asked whether Airservices would provide him support in finding a new role, Ms Aruliah repeated what she just said and added 'we have given you a lot of support over the years, including the 4-5 months of paid leave for your shoulder'.

[78] Mr Wallace said the applicant then 'let fly' and became rude, aggressive and demanding, firing off questions to Ms Aruliah about his injury on 18 September 2017. Ms Aruliah replied that all these questions had been addressed earlier, but Comcare may be able to answer some of them. As the applicant became visibly upset, the meeting was adjourned for 5-10 minutes.

[79] Mr Wallace said that when the meeting resumed, the applicant started asking the same questions. At no time, did Ms Aruliah say Comcare will help you find a job somewhere else. Mr Wallace believed that the applicant was not interested in what Ms Aruliah was saying about redeployment and support; rather, he focused on the vocational assessment on 18 September 2017 (which caused him further injury).

[80] The applicant then asked why he was not just given a role in Airservices, as others had been given in the past. He did not provide details and management had previously explained the merit selection requirements. They had no authority just to create a new role.

[81] The applicant emailed his response on 1 October 2019, CC'ed to Ms Aruliah, the CEO of Airservices and Mr Peter Curran, Executive General Manager of ANS; see: [4] above. That same day, Mr Wallace moved to a new Line Leader role (Northern ANS) and Mr Turner replaced him in the South East. Mr Wallace asked the applicant on two subsequent occasions, if he had any further information he wanted him to consider. He responded that he did not. Mr Wallace considered the applicant's earlier response and confirmed on 4 October 2019, the LOEQ process would continue. Mr Turner gave the letter of advice to the applicant. The applicant responded on 8 October 2019 as follows:

[102]

[82] Mr Wallace explained the LOLI scheme for ATCs which ended in 2017/2018 and which requires ATCs to opt in and have subsided premiums deducted from their salary. The applicant had participated in the scheme. Mr Wallace said that in April 2019, the applicant had inquired about making a claim. He told him to download the claim and sent it to him with the supporting documentation. Rather than doing his, the applicant contacted the insurer directly to make the claim, but was told it needed to be submitted through Airservices. Mr Wallace had exchanges of correspondence with the applicant about the matter between 9 October and 4 November 2019.

[83] On 18 November 2019, the applicant requested his cessation date be moved from 17 January 2020 to 20 January 2020, as it assisted with superannuation calculations. Mr Wallace replied by agreeing to do so.

[84] Mr Wallace said that in response to the applicant's disrespectful emails, including to the CEO between 30 October and 4 November 2019, he requested a Code assessment of the applicant be undertaken, as he had never experienced such conduct in 38 years with Airservices. Ultimately, the complaint did not progress, as the applicant was on sick leave.

[85] In reply, the applicant claimed Mr Wallace insisted that he put everything in writing, but refused to do so himself, and then denied what he had said in conversations, or on the phone. The applicant said he explained in some detail how the scrambler therapy worked, expectations for improvements and arrangements for appointments. He claimed Mr Wallace had said he never would have approved the treatment.

[86] The applicant said he explained to Mr Wallace that the work he was doing in early 2019 was not very meaningful, despite him asking for it. He told Mr Wallace his psychologist had recommended meaningful work and not isolate him in the workplace. He said that no one in the Tower ever told him he was not wanted there. He even helped an inexperienced ATC several times and avoided an accident. He believed he was doing excellent work in the Tower. He had also told Mr Wallace that it was against Comcare's advice that he take one day of annual leave day, but Mr Wallace's tone was 'quite serious' about him taking the leave.

[87] The applicant claimed that when he showed Mr Wallace the CASA letter of 13 September 2018, he went on a tirade about his serious breach and had a 'really sarcastic tone'. He believed Mr Wallace also accepted the letter was confusing and he had acted in good faith. In the end, there were no serious consequences for Airservices, and no action was taken against him. He had wanted a discussion about Mr Wallace's inappropriate behaviour, as Mr Wallace could not handle constructive criticism of his behaviour.

[88] The applicant said that he had not rejected the new pilot presentations. He had told Mr Wallace he did not want to 'reinvent the wheel', but he was happy to show the pilots around. However, Mr Wallace did not want him in the Tower, because if he prevented accidents (as a non-operational ATC), it would not look good for the Company.

[89] The applicant stated that Mr Wallace had only ever wanted one thing - working on preparing a case so he could start the LOEQ process and ultimately have him dismissed. The applicant claimed Mr Wallace made a number of false statements because he had incorrect dates for certain events. The applicant said that all CASA wanted was to have his pain reduced to a level that it did not cause distraction. Mr Wallace knew scrambler therapy was recommended by his pain specialist and 'agreed by all parties', including the DAME, Dr Peerzada, and his GP, Dr Evans. He said Mr Wallace did not act on this advice and failed to contact the DAME or his treating specialist. He rejected Mr Wallace's 'alleged' phone call to CASA on 1 July 2019. Even if it did occur, Mr Wallace should have given him all the details of this alleged conversation before the meeting on 26 September 2019. Further, he did not believe the unnamed person Mr Wallace spoke to at CASA, would be aware of his treatment and circumstances.

[90] The applicant strongly denied Mr Wallace's statement about him not actioning the scrambler therapy. He had tried to 'jump the queue' and had been in regular contact with Dr Todhunter's office. He said Mr Wallace's 'words and actions do not make sense'.

[91] The applicant said that Mr Wallace had never advised him the basis of his decision to start the LOEQ process. This was contrary to the enterprise agreement and managers higher up had failed in their duty of care towards him.

[92] The applicant rejected Mr Wallace's version of events in the meeting on 26 September 2019, and in particular claimed the reason for the break in the meeting was not that he was upset or aggressive, but rather Mr Wallace did not want to answer any of his questions. Neither Mr Wallace nor Ms Aruliah would answer any of his questions which were put slowly and calmly. He was not rude, aggressive or had 'let fly'.

[93] The applicant claimed he did not provide any further information (until now), to Mr Wallace at the time, because he would not answer any questions and had made up his mind to get rid of him. Neither he nor Ms Aruliah showed any compassion, concern, or empathy in the meeting. They appeared confident that there was a way to dismiss him.

[94] The applicant believed it was Mr Wallace who had made the final decision and sent Mr Turner to give him the letter. This demonstrated a 'failure in leadership'. The applicant denied that Mr Wallace explained anything about his LOLI.

[95] The applicant stated that Mr Wallace did not even have the courtesy to inform him of his Code complaint and failed to discuss it with him; whereas he had integrity and had tried to solve any issues he had with him. Mr Wallace went 'behind his back' to raise a complaint just before he himself was made redundant.

[103]

[96] Mr Henderson has been employed by Airservices in various roles since October 1994. He is a qualified ATC. As Acting Service Manager, he has eight ATC Line Managers reporting to him, including Mr Wallace. Mr Henderson described the staffing at Albury with five ATCs based in Albury. There is mostly two ATCs on duty during the week, and one on Saturday. Whilst on shift, ATCs work for 2 hours then take a 30-minute break, and the ATCs can choose to sit or stand during those 2 hours.

[97] Mr Henderson said that 10-15 years ago, Airservices may have filled roles without a competitive process, but all roles are now filled on merit in accordance with the Agreement. This improves fairness, transparency and ensures the best person is selected. The ANS Workforce Deployment team manages the process and approves all position vacancies. This means a new position cannot be created for a particular individual.

[98] By reference to Airservices' payroll system, Quintiq, which records operational and non-operational duties, Mr Henderson noted that between 1 November 2016 and 6 January 2019, the applicant was:

fit for pre-injury duties on 191 days;

on sick leave for 318 days;

fit to perform non-operational days on 6 days; and

last performed operational duties on 6 January 2019.

[99] Mr Henderson recalled Mr Wallace informing him on 8 April 2019 about CASA's 13 September 2018 letter and he was concerned that the applicant was in breach of his license conditions by working as an ATC, without his Class 3 MC. He also informed him about the confusion in the letter by its reference to a 'flight crew license'. Mr Henderson established that the applicant had performed operational duties on 36 shifts between 13 September 2018 and 7 January 2019. Mr Henderson immediately reported a potential breach to Airservices' risk management system, CIRRIS. He said that although the letter incorrectly referred to the wrong license, it was the applicant's responsibility to contact CASA to clarify the letter, as it was also the applicant's responsibility to ensure compliance with CASA's requirements, including to hold a Class 3 MC.

[100] Mr Henderson referred to his first visit to Albury (2-3 May 2019) to meet with the local ATCs. He met the applicant for two hours. Mr Henderson said the applicant complained about how he had been wronged by Airservices and that Airservices' management was poor. He questioned his and Mr Wallace's management qualifications (as distinct to his own in the Netherlands). The applicant believed Mr Wallace was a poor manager who lacked empathy. Mr Henderson said that as a new manager, he and Mr Wallace should become adjusted to work together. Mr Henderson said that during this meeting, the applicant sat on a large inflatable ball, moved around a lot, stretched and could not sit longer than five minutes. He appeared 'constantly distracted'.

[101] On 16 September 2019, Mr Henderson asked Mr Wallace to update him on the applicant's case. He referred to Mr Wallace's summary and recommendations; see: [74] above, and considered that the only option was to proceed to the LOEQ process. In determining this, Mr Henderson considered the following factors:

(a) Albury was already understaffed and waiting for the applicant to be fit would increase risk due to the workload on the remaining ATCs and meant additional costs for Airservices.

(b) As Airservices would be required to report and publish reduced operating hours at Albury, thereby not meeting its service requirements, Airservices would have a reputational detriment.

(c) Given the majority of ATCs do not want to move to regional towers, and a fully trained new recruit requires 8-12 months of training and 106 'endorsement' shifts at Albury (taking 6 months), it was not feasible to replace an ATC on a short term basis.

(d) Each Tower has its own budget for staffing, travel and development. It was not economically feasible for Albury Tower to continue to pay over $250,000 for a non-operational ATC when scrambler therapy was uncertain as to how long it would take, how successful it would be and whether it would result in a meaningful reduction in the applicant's symptoms.

(e) Mr Henderson understood Mr Wallace had tried to secure meaningful work for the applicant. However, he refused to perform computer work or safety critical work, and would not use Microsoft Word. When he asked to do school presentations, he failed to produce a presentation or script. This situation could not continue.

[102] Mr Henderson said that while he had sympathy for how the applicant had injured his back in 2017, the decision to commence the LOEQ process was based on his inability to hold an essential qualification and its impact on the business, with uncertainty as to the effectiveness of the scrambler treatment. He noted CASA required the applicant to demonstrate his pain no longer caused him any distraction, and neither his GP, nor his DAME could be definitive as to how long this might take. Given the time already passed, Mr Henderson did not believe the applicant could renew his Class 3 MC within a reasonable time, or at all. Mr Henderson also considered that:

Mr Wallace had offered a number of redeployment options to the applicant but he either turned it down or he was not able to perform it;

a transfer 'at level' was not possible as a Class 3 MC was still necessary; and

a reduction in classification was not available in Albury and the applicant had not expressed any willingness to move from Albury.

[103] Mr Henderson had wanted the applicant to identify a new role within Airservices and extended the normal time for him to do so. If he could not secure a new role by 17 January 2020, his employment would be terminated. Mr Henderson's supervisor, Mr Bren-Clarke, agreed with the decision.

[104] Mr Henderson understood that Mr Wallace and Ms Aruliah met the applicant on 26 September 2019 to advise of the LOEQ process commencing. He was unaware if the applicant had offered any responses, and would have expected Mr Wallace to inform if he had. Mr Henderson changed roles on 1 October 2019 and had no further involvement in the applicant's employment. However, Mr Henderson had considerable misgivings about the applicant re-joining Airservices because:

(a) he understood the applicant still does not have a renewed Class 3 MC; and

(b) the applicant had expressed strong criticisms of the organisation and disrespectfully criticised his managers and supervisors.

[105]

[105] In reply, in each of his responses, the applicant raised all of his grievances and complaints about Airservices not supporting him, not demonstrating empathy and compassion for his circumstances and criticising management for false statements and a lack of duty of care. To avoid unnecessary repetition with his reply to Mr Wallace's statement, I will not set out all these arguments again; rather, I will set out below specific responses to Mr Henderson's statement.

[106] The applicant claimed that anything Mr Henderson said was doubtful because of his reference to their first meeting and him sitting on a large inflatable ball. He said there was no inflatable ball in the office, and never had been. This evidence is false or he is referring to someone else. He agreed he had questioned the qualifications of Airservices' managers in this meeting.

[107] The applicant said that if Mr Henderson really wanted the truth, he should have called for a full investigation of his circumstances. He claimed Mr Henderson relied on false information from Mr Wallace about the effectiveness of scrambler therapy. In addition, and his reasons for waiting for the outcome of the therapy were not valid. There was no impact on other ATCs. Rather than Airservices' reputation being damaged by reduced service delivery, its reputation was damaged by its lack of compassion for him. He also claimed two experienced recruits had already been assigned to Albury. He reiterated that Ms Waddell's position was given as a 'favour', and was not based on merit.

[108] The applicant believed Mr Henderson would have known how long the scrambler treatment would take and its effectiveness, if he had only spoken to him, Ms Wallder or Dr Todhunter's office. He failed in his duty of care by not doing so.

[109] The applicant repeated his explanations about not having been given meaningful work. He had not refused to do computer work; rather, his medical certificates limited it. He believed the alleged meaningful work was him being alone and isolated. This was not recommended by his psychologist. He claimed he had offered to permanently relocate. In any event, offering redeployment was not the best option, as Airservices should have awaited the outcome of his scrambler therapy. The applicant believed Mr Henderson failed to meet the requirements of his job as Service Manager. This justified his overall complaint of management's incompetence.

[106]

[110] Mr Thomas became Albury Tower Supervisor in January 2016. He considered the applicant was a very competent ATC when he was working full time, but has an abrupt and gruff manner.

[111] Mr Thomas said the applicant briefly showed him the CASA letter of 13 September 2018 at the time, but did not provide a copy to him. He agreed the letter was confusing in that it referred to a 'flight crew license'. He told the applicant to call CASA for clarification, which he agreed to. Within a week or two, the applicant informed him his DAME was 'taking care of it', and his Class 3 MC had not been withdrawn. Therefore, he continued on operational duties from 8 January 2019 to September 2019 working 2 hours a day every other day, due to his pain levels. Mr Thomas observed the applicant's difficulties in sitting or standing for long periods. He would do stretching exercises for his back pain. As the only work at Albury was as an ATC, there was limited work to perform. Mr Thomas gave him administrative work and Mr Wallace assigned him other non-operational tasks, including by using Microsoft Word.

[112] Mr Thomas said that around October 2019, the applicant asked him to attend a meeting with him and Mr Turner, as his witness on 10 October 2019. He did not feel comfortable attending as the applicant's supervisor and as Mr Turner was his boss. However, when he attended the meeting, the applicant attended with his own support person, Ms Evans, who he believed the applicant was in a relationship with. Had he known, he would not have agreed to attend, as it put him in an uncomfortable position.

[113] Mr Thomas said that when Mr Turner handed the applicant the letter, the applicant asked a number of questions. Mr Turner told him that Airservices would assist him in finding a new position by providing position vacancies. The applicant said, 'that's no help anyway, I can get that online'.

[114] Mr Thomas disagreed that Mr Turner declined to answer as many times as contended by the applicant and Ms Evans. He only refused to do so when the applicant asked about his personal opinions. He believed Mr Turner answered as best he could in circumstances where he appeared to have limited information. Mr Thomas said the applicant's tone and questioning was 'quite forthright' which was consistent with his experience of meetings with him.

[115] On 2 March 2020, the applicant called Mr Thomas to ask him to prepare a statement in relation to his 'case against Airservices'. Mr Thomas said he would consider doing so. The applicant sent him an email setting out the topics he wanted Mr Thomas to cover. Mr Thomas made internal inquiries if there were any implications if he did so. Airservices' Senior Legal Counsel responded on 14 April 2020 as follows:

[126]

[136] In cross examination, the applicant agreed that the last time he performed operational ATC duties was on 6 January 2019. The applicant was asked about his meeting with Mr Wallace on 8 April 2019 when they discussed the effectiveness and timeframe of scrambler therapy. He told Mr Wallace it either works or it does not work, and there was at least a six-month waiting period. If it works, most people get booked in for two to three weeks. He denied expressing some uncertainties about the therapy in an email to Mr Bren-Clarke on 10 January 2019, in which he had said 'nobody knows if the condition will ever improve', the condition being 'lumbar spondylosis' - a deterioration of the spine.

[137] The applicant had also said in the email '[s]crambler therapy does not cure any condition, but it might reduce symptoms'. He described two examples, of which he was aware, had resulted in good results. He also agreed he had said he might still not get fit for duty as the condition will remain. Nevertheless, he believed Dr Todhunter had an 80% success rate with the treatment.

[138] Further in the applicant's meeting with Mr Wallace on 8 April 2019, he told him there was no point in trying to renew the Class 3 MC because he knew he would not pass the medical. Nevertheless, Mr Wallace ordered him to get an assessment by his DAME, which he did on 24 April 2019. His Class 3 MC was not removed, and he has not held a Class 3 MC since 20 February 2019.

[139] The applicant denied that he was offered any meaningful work between January and April 2019. It was boring work, such as uploading refresher training documents. He accepted Mr Wallace had suggested he could assess applications for RPAS and amending Airservices' operational documents. This was not meaningful work either, as described by his psychologist, as it would aggravate his condition because it involved isolated computer work and would affect his concentration. It did not matter if he stood or sat - it would still cause pain.

[140] As to his proposal for school presentations, he agreed Mr Wallace had asked for a draft presentation, but he already had a plan. He denied he was not interested in preparing presentation material for student pilots as it was already there in existing presentations. He had proposed tours of the Tower, but Mr Wallace did not want him in the Tower. He ultimately agreed he did not do what Mr Wallace asked him to in this regard.

[141] In respect to the meeting on 26 September 2019, the applicant insisted Mr Wallace told him the letter and actions proposed were not negotiable. This was notwithstanding Mr Wallace had read out that he had seven days to respond with any information he wished Airservices to take into account, before a decision was made on commencing the LOEQ process. He claimed he did not know what information Mr Wallace was looking for and had refused to answer any of his many questions.

[142] The applicant reaffirmed his comments made in an email of 1 October 2019; see: [4] above. He agreed that much of the email focused on his functional assessment in 2017. He wanted to be given until 1 July 2020 to try and secure a new position. Attached to the email was a letter from Dr Todhunter's office dated 30 September 2019. The applicant accepted the letter did not mention anything about the prospects of success of the scrambler therapy. However, he had discussed this with Ms Aruliah. He had also given Mr Wallace authority to speak to his DAME.

[143] The applicant conceded that Mr Wallace gave him a further opportunity to respond on 3 October 2019; but he had nothing further to add. By this date he had started three or four days of the scrambler therapy, but had no update to provide at this early stage. The applicant accepted he had not provided any information or material from his usual DAME, his GP or his rehabilitation manager, Ms Wallder, and he had not requested additional time to respond. This was because the stress he was under would adversely impact on the success of the scrambler treatment.

[144] The applicant acknowledged that a noticeable improvement would be evident from the treatment within 2-3 weeks. He had noticed no change at all and had his last session on Friday 4 October 2019. It had been stopped by the nurses, because it had not been working, due to the stress he was under. Dr Todhunter later told him not to attempt scrambler therapy again. He accepted Dr Todhunter's most recent opinion was that there is no medical treatment that can cure or improve him to the extent that he could function as an ATC.

[145] As to the meeting with Mr Turner on 10 October 2019, the applicant claimed Mr Turner had said the only support he was willing to offer was to send him Airservices' vacancy lists. The applicant went into the office thereafter once a week or once a fortnight to check on any vacancies. Mr Turner sent him lists on 9 occasions between 18 October 2019 and 17 January 2020. He had refused to apply for any of these vacancies. At one point he told Mr Turner it was offensive, insensitive and harassment to send him vacancies for which his Class 3 MC was required. He reversed this request around 18 December 2019. The applicant agreed he had not applied for an Instructor's role, although it did not require a Class 3 MC.

[146] The applicant was questioned as to Ms Mackee's evidence concerning a Comcare vocational assessment which he first saw on 5 December 2019. This had identified three suitable options:

ATC instructor;

Bank consultant; and

Sales representative,

[160]

[162] In cross examination, Mr Wallace reaffirmed that it was fair and reasonable to deem the applicant's LOEQ permanent and to effectively terminate his employment. He stated that it was appropriate to make this decision before waiting for the scrambler therapy outcome. He had access to all the available information and made a business decision, within a reasonable time and with consideration of all the available evidence, including advice from a DAME. The DAME did not comment on the scrambler therapy, but rather was asked to give an opinion of the applicant's ability to have his Class 3 MC renewed.

[163] Mr Wallace reiterated that he had advice from the DAME, the applicant's GP, from CASA and the applicant's own information in recommending to Mr Henderson that there was a significant risk that the scrambler therapy would not be successful. He did not consider that Cl 55.8 of the Agreement was applicable to the circumstances, and specifically did not ask the medical experts for a medical examination. He stated again that the direct question asked was the applicant's ability to resume ATC duties and have his Class 3 MC renewed. The applicant had a direct input into this process.

[164] Mr Wallace confirmed he had not said he would not have paid for the scrambler therapy; rather, he had no authority to do so. Mr Wallace said he had not spoken to Mr Butler about the applicant's case. The decision considering the LOEQ had been made long before 23 September 2019. Mr Wallace said the applicant had all the information he had relied on in making his recommendation to Mr Henderson.

[165] Mr Wallace disputed that the applicant had advised of an 80% success rate of scrambler therapy. Even if he had told Ms Aruliah, she was not the decision maker. Mr Wallace did not speak to Dr Todhunter because he had sufficient information to make an informed decision. But in any event, the scrambler therapy was not the issue in question.

[166] Mr Wallace was asked what a reasonable timeframe was for the applicant to regain his essential qualifications. He said a significant period had passed - some six months - with no evidence the applicant was following up scrambler therapy appointments. Mr Wallace had been asked by Mr Henderson to undertake a review in September 2019 and provide him with recommendations. He gave him three options. In any event, the scrambler therapy formed a small part of the overall decision.

[167] Mr Wallace believed the applicant was well aware of the process. There had been ongoing discussions since April 2019 about his condition and the likelihood of improvement. There was plenty of time for comments and feedback. The ultimate decision was a collaborative one, involving many people in ANS. Ultimately, the applicant's responses did not change the decision.

[168] Mr Wallace was asked how he could claim that the applicant had operated without a Class 3 MC. Mr Wallace stated that there was no need to investigate what was the fact - a clear breach of the applicant's ATC license. There was no evidence that the DAME had cleared the applicant to work. The evidence had to be in writing. Mr Wallace agreed that in the meeting on 26 September 2019, Ms Aruliah had said words to the effect of 'I think we've helped you enough with your shoulder injury'. However, Mr Wallace could not recall saying that it was likely the applicant would be able to obtain another position with Airservices.

[169] Mr Wallace explained that it was open for the applicant to apply for any position at Airservices. It would then require full disclosure of his work capability before any application was determined on a merits-based selection. As to Ms Waddell's position, Mr Wallace said her position was not redeployment, but secondment. Ms Waddell had never resigned from her substantive position at Albury.

[162]

[173] In cross examination, Mr Henderson recalled the applicant sitting on a large inflatable blue ball during their first meeting. He did not know where the ball came from.

[174] Mr Henderson confirmed he had made the decision to ask People Services to start the LOEQ process in consultation with Mr Wallace. He agreed it was an important decision and he based his final decision on all the information presented to him over a six-month period. He was not a medical practitioner, so he could not comment on scrambler therapy. Mr Henderson was taken to various information in Mr Wallace's report and recommendations. Mr Henderson accepted that Mr Wallace had said that scrambler therapy was 'a long and difficult process'. However, that was only part of the decision. The therapy would only address the symptoms of pain which would remain as a distraction and in any event, the likelihood of success was unknown, nor was it known how long it would take.

[175] CASA had stated on 19 June 2019, that the applicant had to present with no distraction from pain. Mr Henderson could not say if stress had a negative effect on the scrambler therapy. Mr Wallace had advised that the applicant's response on 1 October 2019 had not included any new information. The applicant claimed he attached a letter from Dr Todhunter, dated 30 September 2019, to his reply to Mr Wallace. Mr Henderson did not agree with the suggestion that Mr Wallace failed to give him new information. Further, he could not comment on the extent of Mr Wallace's research.

[176] Mr Henderson was asked to explain his reasons for not accepting one of Mr Wallace's options, being to wait for the scrambler therapy to conclude. Despite two new ATCs commencing in August and October 2019 respectively, there would still be an operational impact for them to cover shifts unable to be covered by the applicant, and would take some time for the new ATCs to achieve a rating standard. Mr Henderson alluded to the Tower's hour reductions due to staffing issues as impacting on Airservices' reputation. Mr Henderson confirmed that the Albury Tower roster runs with five ATCs, and there was no certainty, at the point the decision was made, as to whether replacements would be appointed.

[177] Mr Henderson believed there was no definitive time frame for an improvement in the applicant's condition to a level that would mean he could maintain a Class 3 MC. Mr Henderson said he had never stopped the applicant doing the scrambler therapy; rather, he had a number of reasons as to making a reasonable decision on what process he would follow. He disagreed that these reasons should have been provided to the applicant, as he could have offered any argument as to why the LOEQ process did not apply.

[178] Mr Henderson did not consider that Cls 55.8 and 55.9 of the Agreement were relevant, as they related to fitness for continued duty. The process undertaken here was the LOEQ process under the Agreement. Mr Henderson rejected the applicant's belief that Airservices' decision makers failed to obtain the information they needed before the decision was made.

[179] Mr Henderson explained that if CASA directs a person not to operate as an ATC, then the onus is on that person to obtain a medical clearance. Dr Thomas, his DAME, had not given that clearance.

[180] As to the vacancy lists, Mr Henderson said he could only advise which positions the applicant could have applied for, but could not comment on whether he would be successful in a merit selection process.

[181] In re-examination, Mr Henderson described four of these vacancies as being Operations Manager Brisbane or Sydney, System Support Officer and Training Instructor. He believed an ATC has a unique skillset in high demand in other areas of the organisation. Mr Henderson said he had not been aware that the applicant had said 'I would like Airservices to find me a meaningful job in Sydney, Melbourne, Brisbane, Perth or Canberra'. Mr Henderson said that none of the documents the applicant asked him about would have changed his decision to commence the LOEQ process.

[163]

[182] Mr Turner said he was not aware of the reasons that Mr Henderson had relied on for commencing the LOEQ process before the scrambler treatment. Mr Turner agreed he handed the letter, commencing the LOEQ process, to the applicant on 10 October 2019 (dated 4 October 2019). Mr Turner could not recall what was discussed in this meeting, although the applicant had asked him to answer questions that had been put to Mr Wallace on 26 September 2019, in writing. Mr Butler eventually answered the applicant's questions on 16 January 2020 - a few days before his dismissal. Mr Turner could not say if this was reasonable, or whether the applicant had been given different answers by different managers, because he was not privy to all the responses.

[183] Mr Turner confirmed that the only support he personally provided to the applicant was sending him the list of weekly job vacancies. He accepted that Ms Wallder's vocational support officer came two days after he was dismissed. Mr Turner said he could not give any advice of what positions the applicant could not have applied for, because he did not know the applicant's skills, qualifications or experience and, in any event, these were merit based vacancies. The assurance given was to provide all of Airservices' vacancies to the applicant, and this was done. There was nothing said in the meeting on 10 October 2019 to suggest some particular vacancies would be left out. When the applicant told him not to send the lists anymore, he complied.

[184] Mr Turner was asked if he knew the applicant had been shortlisted for the Administrative Support Officer role in January 2020. Mr Turner understood the applicant's departure date was changed because of this selection process. He later became aware he was unsuccessful in the selection process.

[185] Mr Turner was shown the applicant's past performance reviews which were favourable and complimentary. Without asking a specific question, the applicant wanted to make the point that these contrasted with Mr Fuller's submissions that he was a 'difficult employee'. Mr Turner later agreed that the applicant's performance review of 6 October 2009, did not disclose any negative behaviour.

[186] In reply, Mr Turner could not recall if the role the applicant was referring to (Administrative Support Officer) was the same role the applicant applied for before his dismissal, given the emails he was taken to related to April 2020. However, in the only role the applicant had applied for before dismissal, he had been unsuccessful.

[164]

[187] Mr Thomas agreed he and the applicant had discussions about scrambler therapy, and that had he undertaken the treatment in October 2019. This would not have impacted adversely on other ATCs. Mr Thomas said he had seen a big inflatable ball in the office, but could not recall if he had observed the applicant sitting on it, or where the ball is now.

[188] Mr Thomas was taken to the emails he and the applicant had exchanged when the applicant had asked him to provide a statement for these proceedings. Mr Thomas acknowledged that the internal advice he received about not being subject to any disciplinary or other adverse actions, and he did not need to liaise with Airservices as what he put in any statement, was different to what he had been told in earlier emails about any involvement in the applicant's case.

[189] Mr Thomas said that it was the applicant's responsibility to stand himself down, if he was unfit to work as an ATC. He recalled telling the applicant to seek clarification from Dr Thomas and CASA about his license. Mr Thomas said he recalled discussing communications from Dr Thomas, Comcare and Ms Aruliah. Mr Thomas acknowledged that perhaps a better decision would have been made at the 10 October 2019 meeting, if there was 'a little bit of knowledge in the case'. Mr Thomas agreed he had not been involved in the decision-making process. However, the LOEQ had commenced while he was on leave and the timeline was followed.

[190] Mr Thomas said it was not a criticism when he said in his statement that the applicant had been forthright in the meeting. Mr Thomas said that his recollection was the applicant only worked two hours a day from January to September 2019. Mr Thomas did not know the circumstances surrounding Ms Waddell's transfer to the Training Academy. He could not say if this was a favour or not. The fact was Albury Tower was short staffed at the time.

[191] Mr Thomas was not aware of the circumstances around Mr Bradley Dare's training at the Albury Tower. Mr Thomas agreed Mr Dare did not come close to achieving competency. Mr Thomas also agreed that he was aware Mr Wallace had offered the applicant two jobs. Mr Thomas knew the applicant would go to the Tower between January - April 2019 to assist a less qualified ATC who had not achieved a '7' rating. By doing so, the applicant's support might have been beneficial. However, he understood that the applicant going to the Tower was a concern of Mr Wallace, as he would be a distraction. He accepted no one had complaints about the applicant in the Tower.

[165]

[192] The applicant's material are a potpourri of evidence, submissions, opinion, commentary and unsupported gratuitous allegations, much of which were focused on historic grievances he has with Airservices' alleged failure to provide the support and assistance he believed he was entitled to arising from his non-work related injury in 2016 and the work related injury in 2017. Given the applicant was unrepresented, it was perhaps understandable that he was unable to disaggregate his materials into evidence and submissions. Doing the best I can from the plethora of documents, it can be said that the applicant's submissions were, in substance, a repetition of his statement evidence, both in chief and in reply.

[193] Nevertheless, I am satisfied the applicant put before the Commission, and I have taken into account, whatever he believed was relevant to his case, although this did not necessarily accord with the essential question I have implored the applicant to focus on; namely, whether he was able at the time, to demonstrate he could perform the inherent requirements of an operational ATC. Further latitude was offered at the close of the evidence for the applicant to reflect on the transcript to file final written submissions. He declined this offer and indicated his preparedness to summarise his case as follows:

[194] Firstly, the applicant explained that Ms Evans' statement were her words and were written in the third person because the Commission's website showed that this was how a statement was prepared. When he realised the statement should be in the first person, Ms Evans wrote the statement again.

[195] The applicant submitted that his dismissal was unfair and unreasonable because at the time Airservices decided he would be terminated, the evidence did not support two conclusions:

(a) that his LOEQ was permanent; and

(b) that it was fair not to await the outcome of his scrambler therapy.

[196] The applicant claimed that in deciding the reason for dismissal, Airservices did so contrary to the advice from his GP, his DAME and from scrambler treatment results. Further, Airservices failed to obtain information from his medical specialist as to his condition prognosis and time to get any favourable outcome. As a result, Dr Todhunter decided not to proceed with the treatment. When he asked in meetings with Airservices' managers why they acted as they did, no one would give him any answers. As a result, he suffered severe stress leading to the withdrawal of his treatment and the removal of any chance to get his Class 3 Medical Certificate back.

[197] It was the applicant's opinion that the respondent had breached several clauses of the Agreement and by doing so, had been negligent and had failed in their duty of care. The applicant said that when his license was suspended in January 2019, all parties agreed scrambler therapy was the best course of action to return him to pre-injury duties. While there was a long waiting list, Airservices decided at the last minute not to await the outcome of the treatment and ended his employment. He claimed this was unjustified and unfair, when Airservices had agreed to the therapy. It would take 4 weeks to see if it worked, in circumstances where 80% of persons who had undertaken the therapy had been successful.

[198] The applicant submitted that the second reason for his dismissal was his inability to obtain an alternative position. He stated firstly, there was no need to apply as 'we were all waiting' for the scrambler therapy, and secondly, Airservices gave him very little support or assistance in obtaining other positions. They sent him lists of vacancies they knew he could not apply for and refused to pay for relocation. He claimed that he was treated differently to other employees who did not have to apply through the formal merit selection procedure, and he should have been found a position and paid a relocation allowance, if necessary.

[199] The applicant said that a direct result of Airservices' actions, he not only lost his job, but has sustained permanent physical injury and has to undergo treatment for psychological injuries Airservices caused. He was now in a very difficult position of not being able to obtain any form of employment in a different industry with a new employer. Moreover, he had been shortlisted for an Airservices position in January 2020 but was unsuccessful; proving that there were positions for him to perform. He believed that Comcare could still pay him until a suitable position was found.

[200] In his written submissions, the applicant had firstly sought reinstatement 'to a suitable position'. If compensation was the option, he sought 'the maximum penalty ($74,350.00) with relocation costs taken into account'. He stated that he was presently receiving workers' compensation of $4,976.10 a fortnight, but no superannuation ($129,378.60).

[166]

[201] Mr Fuller relied on Airservices' written submissions filed on 5 May 2020, which I have taken into account. In oral submissions and by reference to s 387 of the Act as to whether the applicant's dismissal was 'harsh, unjust or unreasonable', Mr Fuller said that the dismissal was neither substantively, nor procedurally unfair. He submitted that this was a straightforward loss of capacity case. In assessing whether this was a valid reason, it is necessary to look at the substantive position of the employee; not some modified or restricted version of the role, or some temporary position created for the employee. The question is whether the employee is able to perform the inherent requirements of the position or role; see: J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022; (2010) 195 IR 292 ('Boag') at 22-28.

[202] Mr Fuller put that there can be no doubt that holding a Class 3 MC is an inherent requirement for an ATC. This requirement flows from the Civil Aviation Safety Regulations 65.035. To obtain the Class 3 MC a person must undergo a medical examination, by an examiner (a DAME), who is a specialised medical examiner for the purposes of the Regulations. Provision is made for the expiry of a medical class certificate, generally two years after it comes into force. This is relevant to demonstrate the difference between a so-called cancellation of a Class 3 MC and whether the certificate is in force: Mr Fuller put that it is either in force, or it is not. Confusion arose here with the cancellation of the ATC's license. The applicant has not had his ATC license cancelled, but he cannot perform ATC functions if his Class 3 MC is not in force. In the applicant's case, he has not held such a certification since 20 February 2019, when it expired.

[203] Mr Fuller referred to another CASA regulation which states that if a person has a significant injury or illness, the person must advise CASA or a DAME, and if it continues longer than 30 days, the person is unable to continue to exercise the functions of their ATC license, unless cleared by a DAME. Mr Fuller emphasised that it is the responsibility of the person to ensure they are fit for duty and advise CASA or a DAME if they are not.

[204] Mr Fuller submitted the evidence was clear that the applicant was unfit to perform operational duties from at least 13 January 2019, as confirmed by a medical certificate at the time. The applicant failed to renew his Class 3 MC on 20 February 2019, and it was not renewed by a DAME on 24 April 2019, when Mr Wallace asked him to renew it. Accordingly, the applicant was incapable to perform his job for over a year before his employment ended on 30 January 2020. Mr Fuller opined that one could not get much more incapacitated than that.

[205] Mr Fuller submitted that this was a sound, defensible and well-founded reason for dismissal. However, he acknowledged that the authorities make plain that such a dismissal might not be valid if the employer did not do enough to assist the employee to return to work. Mr Fuller submitted that this factor needs to be understood in light of the poor prognosis for recovery at the time the LOEQ commenced at the end of September 2019. At best, the applicant's prognosis was very uncertain at that time. His recovery was unclear and also uncertain. There was no evidence before Mr Wallace or Mr Henderson that the applicant would be fit to regain his Class 3 MC, or the return to operational duties in the foreseeable future.

[206] Mr Fuller referred to the advice Mr Wallace required from the DAME who examined the applicant on 24 April 2019. Dr Peerzada had said that scrambler therapy was a new treatment, relatively untried, which would not cure the applicant, but might reduce his pain to a degree. Dr Peerzada could not say what the outcome or timeframe would be, as it varies from patient to patient. However, the applicant would need to demonstrate a significant change in his present circumstances to a point where the pain did not cause distraction; that is, being pain-free and psychologically sound. Mr Wallace had followed this up, by speaking to CASA. He was told there needed to be a measurable, clear improvement in the condition causing the pain, before a Class 3 MC would be renewed.

[207] Mr Fuller referred to what the applicant himself said about the effectiveness of scrambler therapy; see: email from the applicant to Mr Bren-Clarke in January 2019. He had said:

no one knows if the condition improves;

there was a lengthy waiting list;

the treatment does not cure any condition, it might only reduce symptoms;

in the long term, he might have to see what work would be most suitable; and

he hoped the therapy would reduce his symptoms, but it might still not get him fit for duty, as the condition will remain.

[168]

[208] Mr Fuller accepted that the applicant had told Mr Wallace on 21 August 2019 that his scrambler therapy had been booked for 30 September and it would be confirmed later to the date. There was no evidence of any confirmation, and it was almost nine months since the scrambler therapy had been approved. Mr Fuller accepted that the applicant's GP, Dr Evans, said in August 2019 that he believed it would be advantageous for scrambler therapy to be conducted as soon as practicable, with a view to effective treatment of symptoms and return to pre-injury duties. However, importantly, Dr Evans expressed no opinion as to the timetable or success of the treatment.

[209] Mr Fuller submitted that on the objective evidence at the time (the LOEQ process start), the scrambler therapy was uncertain as to its success and timeframes, including in the applicant's own mind. In fact, the prospects of a RTW actually diminished after this point to October 2019, when after 5 of 10-15 sessions, no improvement was evident and the applicant's psychological condition and his stress, meant the scrambler therapy was stopped by Dr Todhunter.

[210] Mr Fuller referred to Dr Todhunter's 4 May 2020 letter, well after the applicant's dismissal, in which the Doctor said: 'Unfortunately, no treatment including scrambler therapy has reduced Mr Uijland's pain to a level he can function as required to fulfil his job description as an ATC. In my opinion the pain will continue indefinitely as there can be no expectation of any spontaneous improvement as any healing process occurs within the first four months following the onset of pain and we are now well past that time period'. This was a poor prognosis and confirmed what Airservices needed to do and how long it had needed to wait.

[211] Mr Fuller then dealt with the efforts of Airservices to provide alternative non-operational work for applicant. He observed the applicant rejected three of the four jobs Mr Wallace proposed, and declined to provide a draft presentation for school students which the applicant had himself proposed. This has to be seen in the context of a small airport, with only five ATCs and a limited budget.

[212] Mr Fuller rejected the applicant's claim of receiving no support or assistance to RTW. The applicant had four months after the commencement of the LOEQ process (and already had nine months of being non-operational) to find alternative employment. For his sending of weekly vacancy lists, Mr Turner was accused of harassment and of not being fit to be a manager. Airservices had arranged for a vocational assessment and access to the EAP for job seeking advice and psychological counselling (which the applicant took up). Further, throughout this period, the applicant was either on paid sick leave or receiving workers' compensation.

[213] Mr Fuller added that the applicant had made a claim for LOLI which requires CASA to actually cancel the applicant's ATC license, as distinct to him being unable to work as an ATC because of his failure to renew his Class 3 MC. Assuming the applicant is eligible, he would be entitled to a lump sum payout of $74,346.72.

[214] Mr Fuller submitted that despite only making an application for a vacant position on 12 January 2020, from November 2019, the applicant appeared resigned to his employment ending and was speaking to lawyers about it. Rather than seeking alternative employment, the applicant was escalating his aggressive correspondence to Airservices.

[215] Mr Fuller put that the applicant's position seems to be that it was Airservices' responsibility to find him a new position and place him in it. This is not what is required to establish a valid reason for dismissal. It was incumbent on Airservices to provide him an opportunity to find alternative employment, which had been done. But to suggest he could be just placed into a position or have a position created for him, was contrary to the terms of the Agreement in respect to merit selection. The applicant's claims that others had been appointed to positions without merit selection was incorrect. Both employees he had named, had been seconded, not appointed, and had retained their substantive positions.

[216] Mr Fuller linked the procedural fairness issues under s 387 of the Act, with the actual process undertaken under the Agreement in Cl 56 of the LOEQ process; see: [10] above. LOEQ means a temporary and/or permanent loss, and permanent does not mean 'never', but unlikely to be obtained within a reasonable time. There was no doubt that this was the position in the applicant's case. Further, sub-Cl 56.9 of the Agreement provides the procedure to be undertaken before redeployment or termination of employment. Ultimately, if it is not appropriate to transfer the employee to another position, then it is open to terminate the employee's employment in accordance with the Agreement.

[217] Mr Fuller drew a distinction to Cl 55 which the applicant relied on. This was not relevant here; it is a separate process for dealing with a situation where an employee may be unfit for duty. While Cl 55 might have provided an alternative process, it too (Cl 55.10) envisages termination of employment.

[218] By reference to the evidence, including the cross examination of Airservices' witnesses, Mr Fuller submitted that the LOEQ was followed and complied with, ensuring the applicant had every opportunity to respond to the steps in the process and understand what was being proposed and what he was expected to respond to. Even when the applicant was undergoing the scrambler therapy, he offered no further information or sought an extension to do so, 'perhaps' confirming that the therapy was not working. Mr Fuller submitted that it was not up to Airservices to seek out information - procedural fairness only requires the opportunity for the employee to respond. More than that, Airservices provided the applicant with four months to seek redeployment. This was entirely reasonable and satisfies both the terms of the Agreement and the requirements of s 387 of the Act.

[219] Mr Fuller raised four other matters under s 387(h) of the Act. Firstly, there was no evidence of any 'conspiracy' over the timing of the commencement of the LOEQ process and the scheduled scrambler treatment. The therapy was uncertain at best and there was no evidence that Airservices' actions may have an adverse impact on the therapy.

[220] Secondly, the applicant has, and continues to receive workers' compensation for his back injury and psychological injury. Mr Fuller advised that there may have been a short period where Airservices was reimbursed for the applicant's paid sick leave.

[221] Thirdly, while Airservices acknowledges the applicant's long service and good work performance, the fact is that he has lost the capacity to perform his role as an ATC. All of the circumstances earlier referred to, are not outweighed by the applicant's service or work performance.

[222] Fourthly, in respect to reinstatement, the evidence of Dr Peerzada and Dr Todhunter's letter of 6 May 2020 demonstrates there is simply no prospect of the applicant being able to perform his role as an ATC at any time in the foreseeable future; see: Smith v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 where the Full Bench said at [51]:

[218]

[236] It seems to me that the applicant's case and ultimately the determination of whether there was a valid reason for his dismissal, can be encapsulated in the following questions:

Should Airservices have waited for the outcome of the applicant's scrambler therapy before commencing the LOEQ process?

Did Airservices provide the appropriate level of support to the applicant in obtaining an alternative position consistent with his medical restrictions?

[237] In respect to the first question, there was no medical evidence, at the time, as to the effectiveness of the scrambler therapy or what timeframe it would take to complete the treatment. The applicant claimed that his GP, his DAME and Dr Todhunter all considered that he might benefit from the therapy. This was the highest the evidence reached and must be seen in the context of a number of relevant considerations:

(a) The approval for the scrambler therapy was given some 9 months before the applicant actually commenced treatment in October 2019.

(b) There was a lengthy wait list for the treatment.

(c) All the medical advice, research and CASA's understanding was that the therapy might only alleviate the symptoms of pain, not the root cause of the pain (the injury) itself.

(d) The applicant himself had doubts about the effectiveness of the scrambler therapy and whether he would see a noticeable improvement in his condition. In short, the therapy was new, untried, and its success was uncertain.

(e) The applicant's claim of an 80% success rate for scrambler therapy patients, does not appear in any of the reports of Dr Evans, Dr Peerzada or Dr Todhunter. It would seem this figure came from someone in Dr Todhunter's office, who it might be presumed had an interest in 'talking up' its effectiveness.

(f) More significantly, at the point the applicant undertook the therapy, the applicant noticed no improvement in his condition after five sessions, and ultimately Dr Todhunter discontinued the treatment from the usual treatment period involving 10-15 sessions.

(g) It was Dr Todhunter's opinion that the applicant's psychological condition would adversely impact on the success of the therapy. The applicant accepted this conclusion.

(h) In other words, given the applicant's psychological state, for which there was no prognosis or timetable for recovery, the timing of the resumption of the scrambler therapy was even more uncertain and its success more problematic, than before he underwent the 5 sessions in October 2019.

[238] In fact, Dr Todhunter's letter of 4 May 2020, 3 months after the applicant's dismissal, stated under 'Progress', 'Unfortunately, no treatment including scrambler therapy has reduced Mr Uijland's pain to a level he can function as required to fulfil his job description as an ATC'. That the applicant's confidence in the treatment and Dr Todhunter's success rate were dashed by the Doctor three months after his dismissal, not only corroborated Airservices' decision of dismissal, but this should have been the end of the matter. Not only was there no point in waiting for the outcome of the scrambler therapy that would result in no success, but Dr Todhunter believed no treatment would do so. Unfortunately, this was the grim reality which the applicant is unable to confront or accept.

[239] As to the second question, in my view, the applicant's claim that Airservices failed to provide the support he needed to obtain an alternative position, is really 'code' for the applicant's view that Airservices had to create a position acceptable to him which he should be appointed to, by ignoring the Agreement's requirement for merit selection. This is not the test as confirmed by the authorities of the Commission. The employer is not required to provide a modified or restricted position or just create a position which would not otherwise be required; see: Boag at [22]. Moreover, accepting the applicant seeks to be reinstated, the Commission can only reinstate an unfairly dismissed employee to the position the employee had previously held. The applicant misunderstands the Commission's powers of reinstatement. Assuming I was minded to reinstate the applicant to the position he held at the time of dismissal, it was no position at all, as the applicant was unfit for any duties, as he was on workers' compensation at the time, and remains so. Moreover, the Commission could not possibly reinstate the applicant to an ATC position, which would be statutorily barred by the Civil Aviation Safety Regulations.

[240] Putting these considerations aside, I do not accept that Airservices' attempts to provide meaningful alternative work for the applicant was unsatisfactory or unacceptable. It is just that the applicant was selective about what he would accept and ultimately, despite having four months to do so, waited until the last minute (when he realised the crunch was coming), to apply for one position on 12 January 2020, for which he was unsuccessful. Further, it cannot be ignored that the applicant:

had already been unable to perform any operational duties for a year, at a small airport with a small staff and limited budget;

rejected three of the four jobs Mr Wallace had suggested;

when asked to provide a presentation of the applicant's suggestion to visit schools to inform students of Airservices' work and functions and the role of an ATC, he declined to do so. As an aside, given the applicant's stated disdain for Airservices and its managers, it was understandable that Mr Wallace was concerned as to what 'message' the applicant would convey to school students;

had been provided with weekly vacancy lists by Mr Turner and expected Mr Turner to only send him vacancies for which he was qualified or experienced. Given that Mr Turner was new to Albury and unfamiliar with the applicant's skills and experience, for the applicant to claim Mr Turner was harassing him by sending all vacancies, was patently ridiculous. In any event, it was up to the applicant to apply for positions which he knew he might be eligible for;

had been referred to a vocational assessment conducted by the rehabilitation provider;

had referred to the EAP and he had taken up this offer; and

throughout this period, had been either on paid sick leave or workers' compensation. I note that ATCs are entitled to uncapped paid sick leave and over about a two-year period, the applicant had taken over 300 days of paid sick leave until he ceased to perform operational ATC duties on 6 January 2019.

[241] It cannot go unattended that the applicant's claim that he should have been appointed to a new position, without a merit selection process, because two others he named had been, is simply wrong. Putting aside that the applicant's inquiries about other persons' circumstances were based on hearsay and an unhealthy intrusion into their personal circumstances, the two persons named had not been appointed to a position; rather, they were selected for a secondment. They retained their substantive appointment - a material difference the applicant chose to ignore. It takes his case nowhere.

[242] In my view, at the time of the applicant's dismissal, Airservices firstly, had no cogent evidence for it to be satisfied he would be fit to return to his pre-injury duties, or to any duties at any time in the foreseeable future. Indeed, the medical evidence confirmed by Dr Todhunter, three months after his dismissal, was that no treatment had reduced the applicant's pain to a level he could function as required to fulfil his job description as an ATC.

[243] Secondly, Airservices had fulfilled its obligation to support the applicant and provide him the opportunity to obtain alternative employment with Airservices.

[244] Accordingly, pursuant to s 387(a) of the Act, I am satisfied that Airservices had a valid reason for the applicant's dismissal related to his incapacity to perform the inherent requirements of his position as an ATC. The decision was sound, defensible and well founded; see: Selvachandran.

[231]

[253] To give clarity, I am bound to state what this case is not about. Despite the applicant's dogged determination to treat these proceedings as some sort of roving inquiry into the perceived failure of Airservices to take full responsibility for his injury in 2017 (which it had anyway), and that Airservices had an absolute responsibility and duty of care to provide him with any and every support he considered appropriate, and had to find him a suitable alternative position, or create one where none existed, this is not what this case is about. Putting aside that the treatment and rehabilitation of the applicant was a matter largely for Comcare and for which he received and continues to receive payments, simply, the issue is whether Airservices' decision to dismiss him for his failure to be able to perform the inherent requirements of his job, was a valid reason for dismissal. This decision, according to the authorities, is to be based on the medical evidence available to Airservices at the time, and not on some indeterminate speculation by the applicant of whether the scrambler therapy would work, or when he would be fit to RTW.

[254] The lengths to which the applicant sought to avoid this critical issue were curious and unfathomable, including by comparing his situation by reference to a report by former Justice North in which it was said the former Judge had identified a culture of bullying in Airservices. There was no evidence of the applicant being bullied by anyone in management and in fact, as I will come to shortly, the evidence is to the contrary. To make some implausible link between his circumstances and an alleged broader cultural problem at Airservices, is to draw 'a very long bow' indeed.

[255] Also of concern was that the applicant would seize on minor matters of detail in an endeavour to demonstrate a generalised notion of widespread impropriety and negligence by individual managers. Most worrying of all, which I will also come to, was the wide ranging and exponential disrespect and disdain for his managers and for anyone who he perceived were not focussed on his historic grievances, but correctly on the matter at hand; namely, his failure to retain his Class 3 MC.

[256] In my estimation, the applicant displayed an unhealthy and obsessive focus on the alleged failings of almost everyone around him, including fellow ATCs, who he believed were not as experienced or as well qualified as himself. He displayed a massive, disproportionately high opinion of himself and expected everyone in management to conform to his hounding historic demands for Airservices to be ultimately responsible for addressing issues with his shoulder injury in 2016 and back injury in 2017. He insisted that Airservices owed him for its alleged errors and negligence and failed in its duty of care. He accused managers of lying, incompetence and negligence.

[257] In my opinion, to reinstate an employee with this level of disrespect and contempt for his managers, including up to the CEO, would be utterly unthinkable. He displayed little contrition and gave no guarantees that this kind of behaviour would not be repeated. Indeed, his submissions seem to suggest that he will persist in seeking answers for his historic grievances and expect action be taken against people he believed have wronged him. To my mind, this was a classic, irretrievable breakdown in the employer/employee relationship.

[258] The applicant's demands were essentially that Airservices must find him a job or create an acceptable position (to him) and continue to employ him indefinitely, when he was unfit for work. Pinning his future RTW on therapy which had no guarantees of success or how long it might take, in the face of having not worked operationally for almost 12 months over a 3 year period, was his 'last throw of the dice', to avoid the inevitability of his inability to fulfil the inherent requirements of his job. In any event, the applicant conveniently avoided his own medical advice that scrambler therapy was unlikely to be successful when the patient is in a state of emotional or psychological distress. This meant that his continued refrain that Airservices should have waited for the outcome of this therapy was unrealistic and cannot be sustained, when he was not even a clinical candidate for the treatment.

[259] What is even more troubling was the increasing vitriol of his language and highly disrespectful accusations about his managers and their competence. It could not seriously be suggested that a former employee with this level of antagonism and contempt for the employer and his managers, even the CEO, could be restored to the employment relationship with any semblance of normality and dignity, including to a role other than an ATC.

[260] The applicant argued that his increasingly direct language and aggressive tone was a product of what Airservices had done, or not done, to support him and his heightened stress levels. While I am prepared to accept that the applicant was stressed, as it became obvious his future employment was not looking particularly bright, and he was in the LOEQ process, such behaviour was hardly going to engender any compassion or empathy from those he was hoping to garner support and empathy from.

[261] The applicant also claimed that in his country of origin, it is normal to speak directly to your employer. Putting aside this euphemistic brushing aside of his disrespectful language, he was not working in his country of origin and had worked for Airservices for almost 19 years. He would have well known the behavioural expectation of Airservices through its Code. It behoved him to behave and conduct himself appropriately regardless of any stress he was under, or who he worked for. I consider his offer of an apology was belated and disingenuous.

[262] It is also relevant that he simply shrugged off any attempts by Mr Wallace to redeploy him to other work; see: [81] above. He was only interested in work he believed he could perform, or was willing to perform. He had four months' warning that unless he secured another position within Airservices, he would likely be dismissed. Rather than cooperating in that effort, he put 'all his eggs' into the scrambler therapy 'saviour' and expected Airservices to comply with his demands of unknown success and timing, that no medical practitioner was prepared to speculate on.

[263] Knowing full well that he was on a warning, it was not for Airservices to demonstrate his capacity to RTW by contacting persons who would support his claim of deferment until the outcome of the therapy. Airservices only had the current medical advice that he was unfit for duty, with no foreseeable RTW of any kind. This is why the applicant is wrong to assert that his is a unique case. It is an unremarkable dismissal where the employee is unable to comply with the inherent requirements of the job.

[264] I accept, of course, as did Mr Fuller on behalf of Airservices, that the applicant had a long period of service and his work performance was good. This is neither to the point, nor do those factors outweigh the finding I have made as to a valid reason for dismissal. I note that the applicant sought to rely on a performance review of 6 October 2009 (11 years ago) which Mr Thomas agreed contained no negative comments. This historic record is irrelevant to the issues in this case.

[265] These other factors tell against a finding of unfairness.

[266] For all the aforementioned reasons, I am satisfied there was a valid reason for the applicant's dismissal, and there are no procedural unfairness issues which would otherwise outweigh this reason. There would be no basis to reinstate the applicant (although it is no longer pressed), even assuming I was to find some reason to justify a finding of unfairness. It would be impractical and inappropriate.

[267] That said, I also must observe that the calculation of compensation in lieu of reinstatement, would need to take into account the cap on maximum compensation of 26 weeks, and then deduct any workers' compensation from that amount, and possibly, any LOLI payment; see Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21 at p 29. The result would most likely be nil.

At a glance

Court

Decision date

Source

Judgment (242 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (9)

Stefanus Uijland v Airservices Australia [2020] FWC 4809 (30 September 2020)