Thacker v Airservices Australia

Thacker v Airservices Australia - [2024] FCA 1507 - FCA 2024 case summary — Zoe

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CHRONOLOGY of events and circumstances 13 Save where a disagreement is identified, I make the following findings on the relevant events and circumstances surrounding Mr Thacker's termination. 14 Mr Thacker is 28 years old. On or around 9 August 2023, he applied for the ARFFS training program and for employment with Airservices. 15 On or around 26 September 2023, Mr Thacker was provided with an Invitation to Physical Aptitude Testing from Airservices. 16 On or around 10 October 2023, Mr Thacker was assessed as fit to undertake the ARFFS Physical Aptitude Testing by a qualified doctor. 17 On or around 1 November 2023, Mr Thacker participated in Airservices' Physical Aptitude Testing at Proserpine Airport. On that day Mr Thacker disclosed his type 1 diabetes to Airservices employees. 18 On 23 November 2023, Mr Thacker received an email from Airservices informing him they had filled all the positions on the next Recruit Course but that he was on a reserve list. Airservices said that they had "deemed his application successful" and they were finalising what locations they could offer Mr Thacker in the future. 19 In February 2024, Mr Thacker and his fiancé bought a home near Geelong, Victoria. 20 In early March, Airservices called Mr Thacker offering him a place in the Recruit Course commencing in September 2024 in Melbourne. They also told him, if he successfully completed the course, he would be employed in Melbourne at Tullamarine Airport. 21 In March 2024, Mr Thacker received a conditional offer of employment as an Aviation Rescue and Fire Fighter Recruit with Airservices for the 15-week Recruit Course. The offer was conditional on Mr Thacker satisfying pre-employment conditions. One pre-employment condition was undergoing a "medical examination based on a CASA Class 2 Examination" with a Designated Aviation Medical Examiners (DAME). 22 On 15 April 2024, Mr Thacker and his fiancé moved from Cairns to Melbourne. 23 On 1 May 2024, Mr Thacker attended a medical examination with DAME Dr Ki Yu Lam. Mr Thacker disclosed his type 1 diabetes. Dr Lam completed the "Pre-employment Medical Questionnaire and Examination Aviation Rescue Fire Fighting Service" form prepared by Airservices. Dr Lam stated that Mr Thacker "passed the medical standard required…". 24 In August 2024, Mr Thacker resigned his employment with his previous employer in order to commence the Recruit Course. 25 On 2 September 2024, Mr Thacker commenced his employment with Airservices. He commenced the Recruit Course on the same day. 26 On 13 September 2024, Mr Thacker was asked to attend a meeting with James Harington, Airservices Recruit Training Delivery Lead, and Josh Barker, Airservices, Head Instructor where they informed him that Airservices was terminating his contract. There is a dispute about whether the reason given for the termination was Mr Thacker's need for "an external source of insulin and this may affect your ability to help others in an emergency situation…" or because Airservices' view was that Mr Thacker was unable to pass the minimum standard of CASA's class 2 medical certificate due to his reliance on insulin. 27 During September and October 2024 there was correspondence exchanged between Mr Thacker (and his solicitors) and Airservices. That correspondence included a preliminary report of Professor Geoffrey Nicholson, an endocrinologist, containing his opinion that if an appropriate protocol was developed for Mr Thacker, he would not be likely to endanger the safety of air navigation. 28 On 25 October 2024 Mr Harington emailed Mr Thacker advising that he was reviewing the material that Mr Thacker had provided and would "provide [him] with Airservices response as soon as practicable." 29 On 2 December 2024, Dr Murray Gee, a DAME, provided a report to Airservices advising that "a candidate who suffers from diabetes treated from insulin does not meet the standards for a CASA class 2 certificate". He also said: "if there are allowances that allow restrictions to occur in your organisation, then a similar process as CASA's complex case committee, that is a more detailed medical analysis of the candidate along with a critical analysis of the job tasks required of the candidate would need to be done." This report was provided to Mr Thacker on 11 December 2024, after his termination. 30 After Mr Harington's email of 25 October 2024 (above at [28]) Mr Thacker did not hear from Airservices until 10 December 2024. On that date, and without notice, Airservices wrote to Mr Thacker informing him that his employment was terminated with immediate effect. 31 Between 13 September 2024 and 12 December 2024, Prof Nicholson, an endocrinologist, Jessica O'Shannassy, a Diabetes Educator, and Mr Thacker developed a protocol which they say, ensures that Mr Thacker is not likely to endanger air safety, his colleagues or himself, as a result of his diabetes while working (and training) as a fire fighter. Whilst Mr Thacker advised Airservices that the protocol was being prepared by Prof Nicholson on 3 October 2024, the protocol was not provided to Airservices until 12 December 2024. 32 On 13 December 2024, Mr Thacker made this interlocutory application. On 16 December 2024, I made timetabling orders for the filing of material and submissions. I heard the application on 19 December 2024. At the conclusion of the hearing I advised the parties that judgment would be delivered on 20 December 2024.

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REGULATIONS, MANUALS, HANDBOOKS, guidelines and delegations 33 Airservices is regulated by regulations including the Civil Aviation Safety Regulations 1988 (Cth) (CASA Regulations). The CASA Regulations include processes by which persons working in the aviation industry are to meet certain medical standards and hold certain medical certificates: see relevantly CASA Regulations, Part 67. 34 The CASA Regulations also provide for the "Medical Standard of Firefighters" to be set out in a Manual of Standards: see reg 139.840. That Manual of Standards includes the Medical Standards for Aviation Rescue Fire Fighter Service (ARFFS) Recruitment at section 21.1. 35 The CASA Regulations and the Manual are considered in detail below. 36 The medical standards and certification provided for in the CASA Regulations and the Manual are designed to be assessed by a Designated Aviation Medical Examiner: CASA Regulations at 67.180(4)(a). Airservices tendered and relied upon a document titled the Designated Aviation Medical Examiners Handbook. That Handbook describes itself as "developed by CASA to provide to DAMEs guidance or impose requirements in performing their role." 37 Airservices contends that the following documents are also relevant: (a) The CASA Clinical Practice Guidelines. Those guidelines include the practice guidelines titled "Type 1 Diabetes - insulin dependent - high-risk of hypoglycaemia" and last updated on 20 October 2021. (b) The CASA Delegations. Those delegations include "CASA 26/18 - Issue of Class 2 Medical Certificates (Designated Aviation Medical Examiners) Delegation 2018" dated 3 April 2018. 38 Mr Thacker also draws attention to the CASA "Medical Assessment for Aviation Guidelines" dated January 2024. Those guidelines describe themselves as providing "application pilots, air traffic controllers and medical practitioners with comprehensive guidance on the principles of aeromedical risk assessment and medical conditions that may inform decisions about medical fitness for aviation duties." 39 I have had regard to all of that material.

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Regulatory Scheme 40 CASA Regulation 139.840(1) provides that people employed as firefighters must meet the medical standard for firefighters set out in the Manual of Standards. Regulation 139.840(2) provides that there must be a system of continuing medical checks for the people employed as firefighters that ensures that the ARFFS provider knows whether or not those people continue to meet that standard. 41 Clause 21.1.1.1 of the Manual provides: Before beginning initial training, prospective candidates must pass a medical examination. CASA's Aviation Medical Certificate Class 2 is the minimum standard. 42 Part 67 of the CASA Regulations provides for three kinds of medical certificates; class 1, 2 and 3 medical certificates. That part also provides who meets the medical standard 1, 2 and 3. 43 Airservices directs attention to CASA reg. 67.155 which is headed "who meets medical standard 2". That regulation provides that a person meets medical standard 2 if they satisfy the criteria in table 67.155. That table provides at 2.15: If suffering from diabetes mellitus: (a) the condition is satisfactorily controlled without the use of any anti-diabetic drug; or (b) if an oral anti-diabetic drug is used to control the condition: (i) the condition is under on-going medical supervision and control; and (ii) the oral drug is approved by CASA. 44 Airservices says Mr Thacker's diabetes is not satisfactorily controlled without the use of any anti-diabetic drug (where it is agreed that insulin is an anti-diabetic drug). Airservices says that Mr Thacker does not use an oral anti-diabetic drug to control his diabetes and so 2.15(b) does not apply. Accordingly it says he does not meet that standard. 45 Mr Thacker directs attention to CASA reg 67.180 which is headed "medical certificates-issue and refusal." That regulation provides at 67.180(1) that CASA must issue a medical certificate to an applicant if the application meets the requirements of 67.180(2). Regulation 67.180(2)(e) provides: (e) either: (i) the applicant meets the relevant medical standard; or (ii) if the applicant does not meet that medical standard - the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation… Mr Thacker says that he meets the requirements of 67.180(2)(e). 46 There are two disputes between the parties arising from the provisions of cl 21.1.1.1 of the manual. First, whether the report prepared by Dr Lam (see [23] above) meant that Mr Thacker had passed a medical examination for the purposes of that clause. Second, how to construe the words "CASA's Aviation Medical Certificate Class 2 is the minimum standard". Airservices says that directs attention to the medical standard in reg. 67.155. It says that Mr Thacker does not meet that standard because he does not come within the terms of item 2.15. Mr Thacker contends that the use of the word "certificate" in cl 21.1.1.1 is important. He says that directs attention to the "medical certificate" standard in reg. 67.180. That means that Mr Thacker can "either" meet the relevant standard or if he does not meet the standard "the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation." He says the protocol established by Prof Nicholson means he does not endanger the safety of air navigation. Those two disputes form the basis of the first and second serious question as submitted by Mr Thacker.

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First serious question - Mr Thacker has passed a medical examination 47 As set out above, Dr Lam completed the "Pre-employment Medical Questionnaire and Examination Aviation Rescue Fire Fighting Service" form prepared by Airservices. Dr Lam stated that Mr Thacker "passed the medical standard required." 48 There was no dispute that Dr Lam is a DAME. Mr Thacker informed Dr Lam of his diabetes. When Airservices made inquiries of Dr Lam he responded: Thank you for your letter in regards to the above named candidate with type I diabetes mellitus (DM) and his fitness for a CASA Class 2 medical. Mr. Thacker is known to have Type I DM and is on insulin. According to the CASA Class 2 standards, a candidate is fit even if he is on insulin provide that he is stable in his disease control and absent of side effect. Mr. Thacker has a continuous glucose monitor which showed that his glucose level is within normal range and he does not have any side effect such as hypoglycemia. … From a CASA Class 2 medical point of view, he is physically and medically fit to have a Class 2 medical certificate. However, for him to operate an aircraft, he will need to have a safety pilot to fly with at first, after demonstrating that he is safe and meets the requirement for inflight monitoring, he can have the safety pilot restriction lifted. In Mr. Thacker's case, it is slightly complicated as he will not be flying an aircraft hence I cannot put a restriction with safety pilot as he requires a fitness to pass a class 2 medical but yet not actually flying an aircraft with a CASA class 2 medical certificate. I took into consideration about his insulin needs; Mr. Thacker adjust his own insulin depending on the food he eat and his insulin does not need to be refrigerated. Discussion Taking all the above in consideration, Mr. Thacker is physically and medically fit to pass the CASA class 2 medical standards, bearing in mind that for him to operate an aircraft, he will need to undergo further test and will have a restriction until futher [sic] notice. But as per you [sic] letter dated on 15/10/2024, " There is no such protocol for Aviation Resuce [sic] Fire Fighter Applicant". If there isn't such protocol then the safety pilot rule cannot be applied… 49 Mr Thacker says that there is no basis to go behind Dr Lam's report and that accordingly, he has passed a medical examination where CASA's Aviation Medical Certificate Class 2 is the minimum standard and meets the medical standard for firefighters. 50 Airservices makes two principal complaints about Dr Lam's report. First, it says the report does not properly refer to the regulations that were considered by Dr Lam. It suggests he improperly considered the regulations for pilots instead of considering the regulations that specifically deal with diabetes. Second, it says a file note of a conversation between Dr Lam and Mr Harrington gives rise to the inference that Dr Lam did not consider all of the relevant regulations. The part of the file note relied upon says "Dr Lam suggested we improve our form to clearly articulate that diabetes and firefighting are not compatible." Airservices says as a result of those two matters the report is effectively not valid. 51 Mr Thacker says the report prepared by Dr Lam was prepared on Airservices own form. He says if Dr Lam's report is invalid, then so must all the other reports prepared on that form. 52 I am satisfied that there is a serious question that the result of Dr Lam's report is that Mr Thacker has passed a medical examination where CASA's Aviation Medical Certificate Class 2 is the minimum standard and meets the medical standard for firefighters. That is because, for the purposes of a serious question, I do not accept that there is a proper basis to undermine Dr Lam's report and the conclusions that he reached. I do not presently accept that the file note gives rise to an inference that Dr Lam did not consider all of the relevant regulations.

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Second serious question - Mr Thacker met the standard for an Aviation Medical Certificate Class 2 53 As described above the second serious question turns on how to construe "CASA's Aviation Medical Certificate Class 2 is the minimum standard" in cl 21.1.1.1 of the Manual. Airservices says that directs attention to the "medical standard" in reg. 67.155. Mr Thacker says that directs attention to the "medical certificate" standard in reg. 67.180. If Mr Thacker is correct, he can "either" meet the relevant standard or if he does not meet the standard "the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation." 54 Airservices accepted that that constructional choice gave rise to a serious question to be tried. However, it said that the serious question was weak and when considered with the balance of convenience means that the interlocutory orders should not be made. 55 I accept that there is a serious question to be tried on that constructional choice. There is a serious question to be tried that there was a deliberate decision for cl 21.1.1.1 to reference the minimum standard as the "Aviation Medical Certificate Class 2" rather than the "medical standard class 2." That would mean that cl 21.1.1.1 intends to reference the medical certificate provisions of reg 67.180 rather than the medical standards of reg. 67.155. 56 Airservices submits that the reference to the "certificate" in 21.1.1.1 is infelicitous drafting. Even, accepting that possibility, I am satisfied, as conceded by Airservices, that there is a serious question to be tried. 57 Mr Thacker says that the question as to whether his diabetes is likely to endanger the safety of air navigation is directly answered by Prof Nicholson's protocol and report. Mr Thacker's solicitors asked Prof Nicholson "Is Mr Thacker's employment as an aviation rescue firefighter likely to endanger the safety of air navigation?". Prof Nicholson's answer was "No - provided an workplace appropriate safety protocol was established and Mr Thacker demonstrated that he was able to comply with that protocol." 58 Prof Nicholson then prepared such a protocol. That protocol involves the use of a "continuous subcutaneous insulin infusion (CSII "insulin pump")". The protocol provides: One hour before the start of an ARFF shift activate Temp Target and do not return to usual autobasal target glucose until after the shift In the event of an ARFF emergency consume 10-20g complex carbohydrate, do not deliver bolus insulin for this carbohydrate. Ensure that smart phone is wirelessly connected to the pump Set low alert on smartphone to 5.0 mmol with maximum sound and vibration activated Carry glucose tablets or gel and smart phone in an external pocket of fire-suit. Store a prefilled multidose short-acting insulin pen and a back-up glucometer in the firetruck to be used as an emergency back-up in the event of a pump/insulin line/cannular malfunction. Note: Nick has undertaken prolonged extensive exercise since commencing insulin pump therapy. He has undertaken mixed and endurance exercise including a 3 hour run in the sun and maintained target glycaemic control. No hypoglycaemic events were experienced. 59 There was no meaningful attack on the protocol itself or Prof Nicholson's assessment that the protocol means that Mr Thacker's employment as an aviation rescue firefighter is not likely to endanger the safety of air navigation.

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Reason for the conduct 60 Airservices contended that the reason for the termination was the inability for Mr Thacker to comply with the CASA Regulations rather than his physical disability. Mr Thacker complained that it was not possible for Airservices to "disaggregate" the obligations of the CASA Regulations and Mr Thacker's physical disability. 61 The evidence relied upon by Airservices provides that when Mr Harington and Mr Barker met with Mr Thacker to advise him that he was not permitted to continue in the Recruit Course they were both "concerned about the safety implications of Mr Thacker continuing to participate in the Recruit Course." For the purposes of a serious question, and in the circumstances set out above, I accept that Mr Harington (as ARFFS Training Delivery Lead) materially influenced the decision to dismiss Mr Thacker: see Wong v National Australia Bank [2022] FCAFC 155; 318 IR 148 at per Katzmann, Charlesworth and O'Sullivan JJ at [18]-[37]. Indeed, it was Mr Harington that communicated to Mr Thacker Airservices decision that Mr Thacker was not permitted to continue in the Recruit Course. 62 It is not necessary for me to finally determine the reason for Mr Thacker's termination. That is to be assessed against all of the circumstances at the final hearing. For the purposes of a serious question I reject any distinction between the "safety concerns" and Mr Thacker's diabetes. Insofar as it is contended in the interlocutory application that the manifestations of Mr Thacker's diabetes can be distinguished from the diabetes, I reject that contention: see Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 at [119] per Katzmann J; cf. Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547 at per O'Callaghan and Thawley JJ [138]. 63 I am satisfied, for the purposes of a serious question, that the reasons for Airservices conduct included Mr Thacker's physical disability. I come to that view without having regard to the potential role of the operation of s 361(1) and (2). I do not need to resolve the dispute between the parties about the application of that section.

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Balance in favour of Mr Thacker 65 In support of his balance considerations Mr Thacker gives the usual undertakings as to damages. He also agrees to comply with the terms of Prof Nicholson's protocol (see [57] above) as a condition of his employment. He says that he has a strong serious question. 66 Mr Thacker relies upon evidence that: (a) he and his fiancé moved from Cairns to Melbourne so that he could participate in the Recruit Course and have purchased a home in Geelong; (b) Mr Thacker's fiancé resigned her employment in Cairns in order to move to Melbourne and that he resigned his employment prior to commencing the Recruit Course; (c) That the consequence for Mr Thacker and his fiancé of Mr Thacker being unemployed are "immense." He says that they will not be able to pay their mortgage. He says his fiancé is pregnant and will not be able to work in the near future. He says his termination has "affected his mental health"; and (d) Mr Thacker has dreamt of being a firefighter since he was a child and has dedicated many years to achieving that goal. 67 I accept those matters weigh in Mr Thacker's favour, save what I say below about Mr Thacker's decision to move to Melbourne. 68 Mr Thacker further submits that a balance consideration in his favour is the important role that work plays in people's lives. He relies upon Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [78] where Mortimer J stated: I consider I can take judicial notice of the role that work plays in the lives of members of any community. It is a source of self-respect, of purpose, of a sense that one is contributing to one's family's wellbeing and to the community. Working hard in a way that is meaningful and productive brings a sense of satisfaction that is important to a person's wellbeing. A workplace can be a tangible and critical source of social support for an individual, as some of Mr Trego's evidence demonstrates. Unemployment is destructive in a myriad of ways. It can have a particularly destructive effect on families. 69 I accept the submission of Mr Thacker that the value and role of work is a matter that weighs in his favour. 70 Airservices says that Mr Thacker's decision to move to Melbourne was a decision made prior to the confirmation of his participation in the Melbourne Recruit Course and should either not be weighed or be afforded less weight. Relatedly, it says that there was no obligation to relocate because Airservices had agreed to provide return flights and accommodation for participation in the Melbourne Recruit Course. On the evidence before me there was some uncertainty about why Mr Thacker decided to move at the time that he did. I afford this consideration some weight but discount it as the result of that uncertainty.

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Balance in favour of Airservices 71 Airservices contends that there is no serious question in respect of whether Mr Thacker has passed a medical examination. Airservices accepts that there is a serious question in respect of whether Mr Thacker met the standard for an Aviation Medical Certificate Class 2, however, it says that serious question is weak. 72 Airservices submits that three matters weigh heavily in its favour on balance. First, it says that it is not entitled to employ Mr Thacker under the CASA Regulations. It says reinstatement risks its non-compliance with those regulations. That argument of course depends on it being correct in its construction of cl 21.1.1.1 of the Manual. Second it says that the important safety considerations of employing Mr Thacker weigh the balance conclusively in its favour. Third, Airservices says further that damages would be an adequate alternative remedy. 73 Mr Thacker says that his construction of the CASA Regulations is correct and that it is not correct that Airservices will be in breach of those regulations. 74 As to the risks to safety, Mr Thacker says that he will comply with the terms of Prof Nicholson's protocol and that accordingly, Prof Nicholson has said he will not "endanger the safety of air navigation." There was no evidence undermining Prof Nicholson's assessment. Further, Airservices properly accepts that the safety risks are reduced during the period of Mr Thacker's training. That is because of the expectation that the training is performed in a controlled environment. I accept that both of those matters mean that the weight of the safety concerns raised by Airservices is significantly reduced. 75 As to damages as an alternative remedy, Mr Thacker again emphasises the evidence that he "will be unable to pay their mortgage" and that his pregnant fiancé will not be able to work in the near future. He repeats also that the value and importance of being in work for the period between now and the final determination mean that damages are not an adequate alternative remedy. I accept those matters mean damage will not be an adequate remedy.

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Disposition and Relief 77 Mr Thacker sought the following interlocutory relief: 1. An order pursuant to section 545(1) of the FW Act for reinstatement of the Applicant to his employment with the Respondent until the final determination of this proceeding or further order of the Court. 2. An order pursuant to section 545(1) of the FW Act that the Applicant be permitted to undertake the ARFF Services Training Recruit Course RC102 commencing in or about January 2025 in Melbourne, until the final determination of this proceeding or further order of the Court. 78 As to the first order, for the reasons set out above I am satisfied that it is appropriate to make an interlocutory order that Mr Thacker be reinstated to his employment with Airservices pending the hearing and final determination of this proceeding or further order. 79 As to the second order, the evidence before me was that the next Recruit Course is due to commence in Melbourne in mid-January 2025. There was also evidence that Airservices utilise a reserve list. Once a Recruit Course is full, people on the reserve list are called if a position becomes available. 80 Counsel for Airservices submitted that the January 2025 Recruit Course is full. However, Counsel for Airservices properly accepted that there was no evidence before me that Mr Thacker was unable to participate in the January 2025 Recruit Course. There was no evidence: (1) that the January Recruit Course is full; (2) of the ability of Airservices to add a participant; and (3) of the ability of Airservices to replace someone in the Recruit Course. On the evidence before the Court, I am not satisfied that Mr Thacker is unable to participate in the Recruit Course commencing in January 2025. For the reasons set out above I am satisfied that it is appropriate to make an interlocutory order that Mr Thacker be permitted to undertake the Recruit Course commencing in January 2025. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.

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