s.394 - Application for unfair dismissal remedy

Airservices Australia Trading as Aviation Rescue Fire Fighting Service

Application for an unfair dismissal remedy - unable to perform inherent requirements - application dismissed

• [1] Mr Wayne Buckley (Applicant) was employed by Airservices Australia (Respondent) from September 2005 as a Lead Aviation Firefighter. He was dismissed on 5 December 2024, having been unfit to work from November 2019.

• [2] The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed. The Respondent says the dismissal was not unfair because he was unable to perform the inherent requirements of his role.

• [1] At the hearing of the application, the Applicant appeared on his own behalf and Mr Norrey appeared for the Respondent.

• [2] For the reasons set out below, I am not satisfied that the Applicant's dismissal was unfair and so his application will be dismissed.

• [3] The background facts are largely not in dispute.

• [4] As noted earlier, the Applicant was employed as a Lead Aviation Firefighter at Coffs Harbour aerodrome.

• [5] In February 2019 he sustained an injury to his right hand which was the subject of an accepted workers compensation claim.

• [6] He subsequently sustained a psychological injury in 2020 following a code of conduct investigation that was undertaken by the Respondent.

• [7] The Applicant has not performed any work since November 2019.

• [8] There is no dispute that the Applicant remains in receipt of workers compensation payments of 75% of his normal weekly earnings in respect of both claims.

• [9] In May 2023 the Applicant attended a psychological assessment. The report from the psychologist that followed this assessment stated that the Applicant did not have the capacity to undertake any work at the time of the assessment or for the foreseeable future.

• [10] In October 2024 the Applicant attended a Designated Aviation Medical Examiner (DAME) for the purpose of a fitness for duty assessment. The medical practitioners report states that the Applicant would not be able to return to his role, and that there would be significant safety issues if he were to return.

• [11] On 23 October 2024 the Respondent wrote to the Applicant outlining the findings made in the DAME report. The letter went on to say that "based on all the available information, and given the medical advice and findings of [the DAME], as well as your ongoing incapacity to perform the requirements of your role, Airservices is proposing that the most appropriate action in relation to your employment is termination of your employment". The Applicant was invited to provide a response within 14 days.

• [12] On 6 November 2024 the Applicant's lawyer responded on the Applicant's behalf and made various requests including that the Respondent hold off on terminating the Applicant's employment and that the Respondent provide certain information to the Applicant.

• [13] The Respondent wrote to the Applicant and his lawyer on 5 December 2024 in which a response was provided, and the Respondent's decision to terminate the employment of the Applicant was communicated.

• [14] The Applicant provided a witness statement and an outline of submissions which I have carefully considered. He says the impact of the injury and the code of conduct investigation has had an extremely detrimental impact on him and had destroyed his life. He also says the Respondent had disregarded his mental health, and the doctor who had undertaken the DAME was unqualified to make the diagnosis he made. He sought $2.2 million in compensation from the Respondent.

• [15] The Respondent says the dismissal was not unfair as the Applicant could not perform the inherent requirements of the role which was supported by medical evidence.

• [16] There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act.

• [17] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

• [18] There is no dispute that the Applicant was dismissed and that subsection (c) and (d) do not apply. The question, therefore, is whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

• [19] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

• [20] I am required to consider each of these criteria in reaching my conclusion[1], to the extent they are relevant to the factual circumstances of this case.

• [21] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[2] as follows:

"... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

• [22] There must be a valid reason for the Applicant's dismissal, although it need not be the reason given to him at the time of the dismissal.[3] The reason(s) should be 'sound, defensible and well founded'[4] or justifiable on an objective analysis of the relevant facts, and should not be 'capricious, fanciful, spiteful or prejudiced'.[5]

• [23] There is no mandate for giving the 'valid reason' criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to 'have regard to' or 'take into account' requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

• [24] Having considered the evidence, I find that there was a valid reason for the Applicant's dismissal.

• [25] I am satisfied on the evidence that the Applicant was not capable of performing the inherent requirements of his role at the time his employment was terminated. At the time of his dismissal, he had been unable to perform any work for approximately 5 years. The medical evidence is clear that the Applicant was unfit and would not be fit to return to his pre-injury role in the foreseeable future.

• [26] I am therefore satisfied that the Respondent had a valid reason to dismiss the Applicant related to his capacity.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

• [27] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[6] in explicit terms[7] and in plain and clear terms.[8] In Crozier v Palazzo Corporation Pty Ltd[9] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[10]

• [28] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern.[11] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[12]

• [29] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected.

• [30] On the evidence before me, I am satisfied that the Applicant was notified of the reason for his dismissal given the correspondence outlined above. There seems to be no dispute that notification of the reason was given.

• [31] Further, I am satisfied he was given an opportunity to respond to the reason. The Applicant was provided the opportunity to show why his employment should not be terminated. His lawyer provided a response on his behalf which was considered and responded to by the Respondent.

Unreasonable refusal by the employer to allow a support person - s.387(d)

• [32] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

• [33] There is no suggestion that the Applicant was denied the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

• [34] The Applicant was not dismissed for unsatisfactory performance and so this factor is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

• [35] I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

• [36] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [37] I have considered the Applicant's circumstances as outlined in his application, witness statement and submissions. Clearly the impact of his injuries has had a significantly detrimental impact on him.

• [38] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am not satisfied that the dismissal was harsh, unjust or unreasonable. As a result, the application is dismissed.

Mr M. Norrey, Head of Employee Relations of Airservices Australia, for the Respondent

[1] Sayer v Melsteel [2011] FWAFB 7498.

[2] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

[3] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

[4] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[8] Previsic v Australian Quarantine Inspection Services Print Q3730.

[9] (2000) 98 IR 137.

[11] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[12] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

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