| [2015] FWC 6456 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Lawless
v
Qantas Airways Limited
(U2013/10899)
David Lawless
v
Qantas Airways Limited
(U2013/11982)
DEPUTY PRESIDENT BARTEL |
ADELAIDE, 24 SEPTEMBER 2015 |
Termination of Employment.
[1] Mr David Lawless (the applicant) was dismissed by Qantas Airways Limited (Qantas or the respondent) on medical grounds. He has filed two applications for an unfair dismissal remedy. The first application, filed on 26 June 2013, alleged that he had been dismissed on 11 June 2013. Qantas denied that it had dismissed the applicant on that date, but on 11 July 2013 sent the applicant a letter terminating his employment effective that day. The applicant then filed a second application for an unfair dismissal remedy on 26 July 2013.
[2] Qantas objected to the first and second applications being joined. I determined that the interests of efficiency would be served by hearing both the first and second applications concurrently and that the parties could address the date of dismissal in the course of the proceedings.
[3] There has been a significant amount of litigation in respect to the first and second applications and in respect of applications made pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act), 1 which are based on the same or similar facts. For the purposes of the present decision it is unnecessary to traverse these applications in any detail. Suffice to say that the hearing of the first and second applications took place some two years after the dismissal but I am satisfied that the cases presented were not the prejudiced or compromised despite the significant delay.
[4] The applicant is a person protected from unfair dismissal. 2 The issues that fall for determination are: the date of the dismissal; whether the dismissal was harsh, unjust or unreasonable; and if so, the appropriate remedy.
[5] The primary argument in the case for the applicant is that Qantas failed to provide suitable employment consistent with its obligations under s.58B of the WRC Act, and consequently the applicant was denied the statutory protection afforded to injured workers with compensable injuries. It is contended that in these circumstances there can be no valid reason for dismissal.
[6] In order to provide the context for the applicant’s case, the relevant provisions of s.58B state:
“58B—Employer’s duty to provide work or pay wages
(1) If a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).
Maximum penalty: $25 000.
(2) Subsection (1) does not apply if –
(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or
….
(e)
(3) If a worker who has been incapacitated for work in consequence of a compensable injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker’s contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.”
[7] Qantas contends that it supported the worker with suitable duties under Rehabilitation and Return to Work (RRTW) Plans for many years, but ultimately the applicant was unable to fulfil the inherent requirements of his substantive position or any other position. It was not reasonably practicable to continue to provide suitable employment, but in any event, the Commission should not rule upon whether the employer has breached s.58B of the WRC Act and should confine its consideration to those matters that properly fall within s.387 of the Fair Work Act 2009 (the Act).
[8] The applicant gave evidence. There was a lack of clarity in some of his answers, at times he lacked focus in answering the questions put to him and, as the cross-examination continued, there was a level of frustration evident in his responses. That said, there is only a limited amount of dispute in relation to the matters traversed in his evidence and these are dealt with below. It was apparent that the applicant was experiencing some physical discomfort while giving his evidence due to the injuries that he has sustained and this may have affected his demeanour. Overall I found the applicant to be a credible witness.
[9] The respondent called two witnesses. Mr Sean Ellis was the Manager of Ramp Services, Adelaide Airport between May 2012 and September 2013. It was part of Mr Ellis’ responsibility to manage injured employees within Ramp Services, including the applicant. Generally I found Mr Ellis to be a credible witness however there are some aspects of his evidence which are in dispute and these are discussed below.
[10] The other witness for the respondent was Mr Mark Hamilton, who commenced as Manager of Ramp Services at Adelaide Airport in January 2015. He gave evidence in relation to the current allocation of the duties that were identified by the applicant as suitable for him to perform. His evidence was uncontroversial and is accepted.
[11] The applicant commenced employment with the respondent in 1989. In 1990 or 1991 he was appointed as a Baggage Handler (Airline Service Operator or ASO) on a full-time basis. The applicant maintained the substantive position of ASO until his employment was terminated.
[12] In the course of his employment the applicant suffered work-related injuries to his left elbow (January 1997); neck and right shoulder (June 2001); left and right ulnar nerve (June 2001); and lower back (2005). The applicant was unable to carry out all the duties of an ASO on an unrestricted basis from 2001 and, apart from certain periods off work entirely, performed modified duties.
[13] The new terminal at Adelaide Airport opened in 2006 and some of the duties performed by the applicant were no longer required. During the period 2007 to mid-late 2012 the applicant performed a range of duties as follows:
[14] When the above duties were withdrawn, Mr Ellis indicated to the applicant that he was required to perform other tasks on the ramp. 4 It was Mr Ellis’ experience that placing injured workers back into their work environment was an important part of the rehabilitation process and achieving a return to full duties, and this was his focus for the applicant.
[15] In this context Mr Ellis stated that three tasks were allocated to the applicant by the Ramp Supervisor: collecting baggage data, which involves recording the times of the first and last baggage arrival for each Qantas flight (the data collection task); scanning bags using a scanner (the scanning task); and counting bags on the barrows (the counting task). He stated that the applicant subsequently ceased the scanning and counting tasks as they aggravated his condition. Mr Ellis was unable to provide specifics of any other duties performed by the applicant from mid-late 2012, but stated that Qantas followed the work identified in the applicant’s RRTW Plans.
[16] The applicant was adamant that the only work he performed was the data collection task. Both the applicant and Mr Ellis estimated that this task would take about one to one and a half hours per day in total.
[17] While the scanning and counting tasks are recorded in a RRTW Plan covering the period 19 March 2013 to 19 May 2013. Mr Ellis was vague on any details regarding the applicant’s performance of these tasks. 5 I prefer the applicant’s evidence on the work he undertook from mid-late 2012.
[18] From late 2012 there was a change in the focus of the applicant’s rehabilitation, away from a return to work with Qantas and toward suitable employment with a different employer. Employers Mutual SA Pty Ltd (EML), the Claims Agent for the WorkCover Corporation (the Corporation) advised the applicant that his ability to return to suitable employment with Qantas had been reviewed and that:
“Where the return to work focus changes to obtaining suitable employment with a new employer, most workers have their employment with the pre-injury employer terminated.” 6
[19] Correspondence from EML to Ms Zileski of Qantas Workers Compensation dated 14 March 2013, states:
“I refer to our conversation on 14/01/2013, where we discussed that you are currently unable to provide suitable employment for Mr Lawless.
A decision has been made to approve Mr Lawless seeking suitable employment with a different employer.
….
Based on the medical evidence, Mr Lawless is unable to return to his pre-injury role as a baggage handler and there are on (sic) appropriate roles at Qantas within Mr Lawless’s physical or vocational capabilities.” 7
[20] EML’s decision was advised to the applicant on the same date. 8
[21] Mr Ellis stated that he was aware of EML’s letter of 14 March 2013 but did not share the view apparently expressed by Ms Zileski in relation to the provision of suitable employment. He maintained that Qantas Workers Compensation was separate from and ran “parallel” to his human resources role of managing injured workers in Ramp Services. He said that even as late as May 2014 he was open to suggestions concerning duties that the applicant could undertake. 9
[22] Mr Ellis’ evidence of two parallel processes is troubling. On the evidence, Qantas Workers Compensation advised EML it could no longer provide suitable employment at the same time Mr Ellis was exploring the applicant’s return to suitable duties in Ramp Services. Either the Workers Compensation section was premature in its decision concerning the availability of suitable employment or Mr Ellis was on a frolic of his own. Any perception of a separation of workers compensation and human resources processes could not, on any reasonable view, extend to the provision of duties to the applicant or his continued employment. Nonetheless this was the effect of Mr Ellis’ evidence and may explain the subsequent confusion surrounding a meeting held on 14 May 2013 and the dispute over the date of the applicant’s dismissal. I will return to these matters shortly.
[23] On 20 March 2013, the applicant attended an appointment with Dr Tschirn, Consultant Occupational Physician as arranged by Mr Ellis. The main issue that Dr Tschirn was requested to address in his report to Qantas was the applicant’s ability to return to full pre-injury duties, and a job description for the ASO position was attached to the request. Dr Tschirn’s report 10 concluded that the applicant has capacity for restricted duties only. The applicant’s current weight restriction of 10 kg was considered appropriate and he should avoid overhead reaching or lifting or repetitive forward reaching and lifting. The applicant’s physical injuries and consequent reported pain levels and perceived tolerance for physical activity were identified as the principal barriers affecting his return to work.
[24] Dr Tschirn saw no significant change in the applicant’s situation in the future. The applicant’s tolerance for activity could be improved with physical therapy and psychological assistance, however “… he will still fall well short of being able to meet the inherent requirements of the [pre-injury] role …” 11
[25] Mr Ellis stated that the point of obtaining the report was to ascertain whether the applicant could return to his pre-injury role. He was adamant that until he received the report it was his focus to achieve a return to full duties for the applicant and did not contemplate otherwise. 12 This evidence does not sit comfortably with the change in the applicant’s rehabilitation focus to employment away from Qantas or the extensive history of the applicant’s restrictions.
[26] The applicant attended a meeting on 14 May 2013 with Mr Ellis and Ms Swanson, an employee of Qantas within the HR Department. The applicant was presented with two letters from Qantas. The first was dated 14 May 2013 13 (“the show cause letter”), headed “Review of your employment”. It included reference to Dr Tschirn’s opinion that the applicant was unable to return to his pre-injury role and advised that reasonable accommodations could not be made to the ASO position to enable the applicant to perform that role. It noted that Qantas had accommodated the applicant’s medical restrictions since 2001 but that suitable duties were an interim measure only and Qantas was unable to offer these modified duties on an indefinite basis. It advised the applicant that Qantas was considering terminating his employment on medical grounds.
[27] The letter provided a period of seven days within which the applicant could provide further information for Qantas to consider in reaching a final decision on his continued employment. It was suggested that this information could include:
[28] The second letter presented to the applicant was dated 10 May 2013 14 and was signed by Ms Jodie Singarella, Workers’ Compensation Claims Manager for Qantas, and advised that the purpose of the letter “… is to advise you of our intention to terminate your employment. Section 58C of the [WRC Act] requires the employer to provide an injured worker with at least 28 days’ notice of the proposed termination of a workers’ employment.” The letter went on to note that the applicant had not worked in his pre-injury employment since 2001 and concluded:
“Accordingly in light of your ongoing restrictions, your inability to return to your pre injury role and our inability to identify alternative roles for you within Qantas, it is our intention to terminate your employment after the expiry of the 28 day notice period.”
[29] The applicant’s evidence in relation to the meeting and the correspondence presented to him was that he understood by the show cause letter that Qantas was considering terminating his employment. His understanding of the letter dated 10 May was that his employment would be terminated in 28 days. It is common ground that the applicant was told by Mr Ellis that he was not required to attend work but that he was still employed by Qantas and would continue to be paid. 15
[30] Mr Ellis stated that the purpose of the meeting on 14 May and the show cause letter was to understand whether Mr Lawless had the ability to recover and perform his pre-injury role and whether there was anything Qantas could to do assist in this regard. He stated that the workers compensation process was separate, and the letter dated 10 May referred only to a “proposed” termination of employment. If the applicant could satisfy Qantas that he could return to his pre-injury role or another suitable role, Mr Ellis stated that he would have undertaken steps to continue the applicant’s employment. 16
[31] Mr Ellis struggled to explain why Qantas withdrew the applicant’s duties on 14 May. He initially stated that:
“Because we had exhausted all avenues for David. He could not return to his substantive role as ramp services ASO3 or four, whatever it was at the time. We put him through the process of customer service, like everyone else. Unfortunately he wasn’t able to carry out that role. We - prior to that we looked at our catering division. Prior to that we looked at our engineering division. We looked at every role in South Australia. So by the 14th of May that really was - we had nowhere to go with this. So the best thing for David was to seek vocational training and get him into gainful employment.” 17
[32] Later in his evidence Mr Ellis stated that standing down the applicant would give him time to prepare his response and gather information to present to Qantas. 18
[33] In relation to the 10 May letter, Mr Ellis referred again to the separate processes of workers compensation and human resources and explained that the 10 May letter did not diminish the purpose of the show cause letter or indicate that Qantas had made a decision to terminate the applicant’s employment. Mr Ellis denied that by 14 May he had formed a view that the applicant’s employment should be terminated. 19
[34] I do not find this evidence credible in view of his earlier evidence set out in [31] above; the fact that the applicant had been on modified duties for some 12 years at the time of the meeting; Qantas was in receipt of several medical reports and assessments as to the applicant’s inability to return to his pre-injury duties; and was in receipt of a vocational assessment that concluded that the applicant was not suited to a CSO position. Mr Ellis would have been well aware that the applicant could not provide the information he identified in the show cause letter, such as medical reports, within seven days. At best, Mr Ellis was going through the motions of implementing a policy driven process.
[35] The applicant consulted his solicitor, Mr Milsom of Moloney & Partners, concerning the developments of 14 May 2013. Thereafter Mr Milson wrote to Mr Ellis on 15 May 2013 contending that the employer’s conduct in standing down the applicant for the period of 28 days specified in the letter of 10 May 2013 constituted a repudiation of the contract of employment. Qantas was requested to contact the applicant to arrange his return to work. Mr Milson requested a copy of Dr Tschirn’s report and other documentation. 20
[36] Receiving no response, Mr Milsom again wrote to Mr Ellis on 20 May 2013. 21 He noted that Dr Tschirn’s report had not been provided and referred to the apparent inconsistency between the show cause letter and the 10 May 2013 letter. Mr Milsom requested that Mr Ellis withdraw the 10 May letter, which he categorised as a notice of termination that would take effect 28 days from the date it was received.
[37] In relation to the 14 May letter, Mr Milsom stated, among other things,
[38] Mr Ellis responded to Mr Milsom on 29 May 2013 22, attaching a copy of Dr Tschirn’s report. Mr Ellis traversed the history of the applicant’s employment since 2001, particularly the provision of suitable employment under s.58B of the WRC Act and then EML’s determination of 14 March 2013 that it was no longer reasonably practicable for Qantas to do so.
[39] Mr Milsom responded on 7 June 2013 and advised that the applicant was ready willing and able to carry out suitable duties and that he would attend for work on 11 June 2013.
[40] The applicant attended at work on 11 June but was sent away after being told that he was not in the system. The applicant took this as a sign that he had been terminated consistent with the expiry of the 28 day notice period contained in the 10 May letter and as per his solicitor’s advice. Qantas said that the applicant was still employed, but was sent away because he was not rostered to work and it was against policy to allow any such employee to perform duties for security reasons. The first application was then filed.
[41] It is common ground that in early July 2013 Mr Ellis called the applicant to arrange a meeting, although there is some divergence in the evidence as to the date of the phone call and the date the meeting was scheduled. Nothing turns on this. The applicant did not attend any meeting. There was a phone call between Mr Ellis and the applicant where Mr Ellis queried why the applicant was not at the meeting. The applicant indicated that it was a waste of time because Qantas was going to terminate his employment anyway. 23 This evidence is different to that contained in the applicant’s witness statement where he said that he was “surprised” at the approach for a meeting because he believed he had already been terminated and that when he received the termination letter he was “confused” for the same reason.24
[42] A letter of termination was sent by courier to the applicant on 11 July 2013. 25 It stated that the applicant was terminated on medical grounds effective from that date and that he would be paid four weeks’ pay in lieu of notice plus accrued entitlements. The letter set out the applicant’s inability to perform the inherent requirements of the ASO position; the advice given to Qantas by EML that it had “exhausted its return to work efforts”; the advice given to the applicant that EML would be transitioning him to the “New Employer Program”; that Qantas has made efforts to obtain suitable alternative employment for the applicant; and that the applicant had failed to express any interest in an alternative position in the four months since the EML advice was issued in March 2013. The second application was then filed.
[43] Since his employment was terminated EML has discontinued the applicant’s weekly payments and the applicant’s vocational rehabilitation program has been closed. The decision to cease weekly payments is the subject of a dispute application under the WRC Act.
[44] The applicant’s evidence on this point is inconsistent. He accepts that he was told that he was not dismissed at the 14 May meeting and believed he had not been dismissed up to early July. However he also maintains that he understood he had been dismissed with 28 days’ notice by the letter of 10 May 2013. There is no warrant to criticise the applicant for being confused given the two apparently contradictory letters provided to him on 14 May and the legal advice he subsequently received.
[45] The letter of 10 May 2013 is headed “notice of proposed termination under section 58C …” and advises the applicant that “… it is [Qantas’] intention to terminate the employment after the expiry of the 28 day notice period” (emphasis added). The letter does not state that the employment will terminate on the expiry of the notice period. The giving of a valid notice of termination constitutes the termination of employment at the conclusion of the notice period. If the notice does not specify an end date then the termination cannot take effect and the notice of termination is not valid.
[46] Section 58C(1) of the WRC Act relevantly provides as follows:
“58C—Notice of termination of employment to be given in certain cases
(1) If a worker has suffered a compensable injury, the employer from whose employment the injury arose must not terminate the worker’s employment without first giving the Corporation and the worker at least 28 days notice of the proposed termination.
Maximum penalty: $15 000.”
[47] The reference to the giving of “at least 28 days notice” is a requirement that the notice which is given must not be less than 28 days, not that the notice given by the employer is to be expressed as “at least 28 days” or words of similar effect. The latter is not a valid notice of termination for the reasons set out above. Whether the 10 May letter complies with the requirements of section 58C of the WRC Act as it purports to do, is a matter I do not need to determine, but it is apparent that the applicant’s solicitors deemed that it was a valid notice under this section. 26 In my view the letter of 10 May was not a valid notice of termination of employment.
[48] In relation to the events of 11 June 2013 when the applicant attended for work, I find that he was told words to the effect that he was not in the system, meaning that he was not rostered to work. Given the view taken by Mr Milsom of the 10 May letter it is not surprising that the first application was filed when the applicant was sent away from the Airport on 11 June 2013.
[49] In determining the date of dismissal I have also taken into account that the applicant continued to receive weekly payments and payslips from Qantas until 11 July 2013, and that the 11 July letter was unequivocal in its terms. I conclude that the applicant was dismissed on 11 July 2013. Accordingly, I will issue an order with this decision dismissing the first application on the grounds that the applicant had not been dismissed, nor was he under notice of dismissal, when it was filed on 26 June 2013.
[50] The confusion over the termination date could have been avoided if Qantas’ intention behind the letter of 10 May was expressed to the applicant in clear language. The confusion could have been avoided if Mr Ellis had responded in a timely manner to the points raised by Mr Milsom in his letters to Mr Ellis after the 14 May meeting.
[51] Mr Warren, of counsel for the applicant, submitted that the Commission can, in appropriate circumstances, take into account whether the employer has complied with s.58B of the WRC Act in considering whether the dismissal was harsh, unjust or unreasonable (Arrowcrest Group Pty Ltd v Gill (Arrowcrest)) 27 He noted that the work of s.58B is to ensure that benevolent consideration is given to returning injured workers by the provision of suitable employment where reasonably practicable and that this section serves the object of the WRC Act to rehabilitate injured workers. The operation s.58B is based on on-going employment and it was argued that this section should not be able to be defeated by a decision to terminate employment based on the worker’s inability to perform the inherent requirements of their position.
[52] It was reasonably practicable for Qantas to provide suitable employment for the applicant as there were a range of tasks that he could perform. The fact that these tasks may be currently performed by other employees does not mean that it is not reasonably practicable to provide such duties to the applicant and Qantas could have reduced his hours of work in the event that the applicant could not be gainfully employed in a full-time capacity (Longyear Australia Pty Ltd v Workers Rehabilitation and Compensation Corporation (Longyear)). 28 Qantas is a large organisation and while the provision of light duties to the applicant may have detracted from its operational efficiency and productivity, it was not significant and not sufficient to render the provision of duties to the applicant as impracticable on economic grounds.
[53] Section 58B(2)(a) provides that the onus is on the employer to establish that suitable employment is not reasonably practicable. There is no reason to narrowly construe this requirement as only applying to proceedings under the WRC Act in circumstances where compliance with s.58B is a primary consideration in unfair dismissal proceedings. The view of the compensating authority as to whether it was reasonably practicable for Qantas to provide suitable employment cannot usurp the Commission’s role to form a view on the evidence as to whether this was the case.
[54] Instead of exploring suitable duties for the applicant, Qantas embarked on a process to separate him from employment, commencing with the removal of nearly all his duties by Mr Ellis. The focus shifted to the applicant’s inability to perform the inherent requirements of the ASO position or other identified position, as evidenced by the report of Dr Tschirn. This report was procured to shore up the employer’s position rather than focus on what the applicant was able to do. Similarly, the show cause letter focussed on the applicant’s ability to fulfil the ASO position or other identified position with Qantas. It erroneously stated that suitable duties were provided as an interim measure.
[55] The employer has failed to provide evidence of negative health and safety implications for other ASO’s if the applicant maintained the light duties he was undertaking in early 2012. Thirty ASO’s work on any given shift and there is no evidence that the applicant’s light duties could not be accommodated.
[56] Mr Warren acknowledged that where the termination is based on a worker’s inability to fulfil the inherent requirements of the position this will generally be a valid reason, but not in all cases. The failure of the employer to comply with its statutory obligations under the WRC Act concerning the provision of suitable employment means that the termination of the applicant was not for a valid reason (J Boag and Son Brewing Pty Ltd v Button (Boag). 29
[57] The criteria in s.387(b) of the Act relating to notification of the reason for termination relates to the valid reason for termination and refers to a period before any decision is taken to terminate the employment (Crozier v Palazzo Corporation Pty Ltd (Crozier)). 30 At the time the applicant was given the show cause letter the respondent had already made up its mind to terminate his employment as evidenced by the letter of 10 May 2013.
[58] The applicant was denied an opportunity to respond to any reasons relied upon by the employer in considering his dismissal. The seven day period provided to the applicant for his response to the show cause letter was unrealistic given the nature of information requested, including the provision of medical evidence. The show cause letter did not suggest that suitable duties were not available but relied on the applicant’s inability to perform the ASO or other position.
[59] In relation s.387(h) of the Act, a matter relevant to the dismissal is that the applicant was not provided with five weeks’ notice or payment in lieu of notice as required under the relevant industrial instrument and the National Employment Standards relating to notice of termination. 31 He was provided with four weeks’ pay in lieu of notice on termination and the additional weeks’ notice owing to him was not paid until June 2015, even though the deficiency in the notice period or in the pay in lieu of notice was raised in both the first and second applications.
[60] In addition, the personal circumstances of the applicant, being his age (56 years old), long period of service with Qantas (over 23 years) and injuries and physical limitations, severely restrict his capacity to secure employment in the open market and render the dismissal harsh.
[61] The applicant seeks reinstatement to his substantive ASO position. Reinstatement is the primary remedy under the Act and there is no evidence of any performance concerns or issues with the applicant’s conduct. The effect of such an order will be to place the applicant in the situation that he was in immediately prior to dismissal with the respondent, that is, holding the substantive ASO position but performing work within his capacity. Reinstatement is the only way that the applicant can obtain the protection afforded by s.58B of the WRC Act.
[62] The applicant also seeks an order for continuity of service and payment of an amount for lost remuneration as a result of his dismissal. Mr Warren submitted that assessing the remuneration lost as a result of the dismissal is complicated and is impacted by the outcome of the dispute lodged by the applicant in relation to the cessation of his weekly payments. Accordingly, if the Commission determines that the dismissal is harsh, unjust or unreasonable there should be an opportunity for the parties to try and agree relevant facts for the purposes of submissions on remedy. Qantas agreed with this approach. 32
[63] Mr Colgrave, of counsel for Qantas, highlighted that as at the date of termination the applicant was performing one or more tasks contained in a RRTW Plan which is given statutory force under the WRC Act. These tasks did not constitute a “position” established within Qantas to meet its operational needs nor were the tasks performed pursuant to a new or varied contract of employment (State of South Australia v Day). 33
[64] The applicant’s substantive position was ASO 4 and there is no dispute that he was unable to perform this position or any other defined position within Qantas at Adelaide Airport. There is no role available for the applicant as the duties he previously performed have ceased to exist or have been reallocated to other employees under the regular restructuring processes undertaken by Qantas.
[65] It is important that ASO employees have the opportunity to rotate through the lighter ASO duties to provide relief from the heavy lifting associated with baggage handling. The applicant’s performance of these lighter duties meant that they were not available to ASO employees. The effect of the applicant’s incapacity on the health and welfare of other employees is to be considered in determining whether there was a valid reason for dismissal (Boag).
[66] Qantas accommodated the applicant’s restrictions over a long period of time and explored a range of alternative roles for the applicant. It became clear that the applicant would not be able to return to the ASO position or any other position in the future and there was no prospect of a lessening of the restrictions under which he could perform work. The work undertaken by the applicant over a number of years was a collection of disparate duties providing assistance to others and which were supernumerary to Qantas’ operational requirements. To the extent that Qantas is required to establish that it was not reasonably practicable to provide suitable duties to the applicant, it has done so.
[67] The circumstances of the present case are similar to those considered by Commissioner Whelan in Walker v SPI Electricity Pty Ltd. 34 Mr Walker had commenced with the respondent’s predecessor in 1968. He suffered a work related injury in March 1993 and had been unable to perform the full duties of his position as an A-Grade Linesman since that time. He was dismissed on 29 May 2006 on the basis that he was unable to perform the inherent requirements of his position. Whelan C held that there was a valid reason for termination as the applicant had been unable to perform the inherent requirements of his position for a considerable period of time and there was no suitable alternative position in which could be employed.
[68] Boag is relied upon by the applicant in support of the proposition that a dismissal in breach of workers compensation legislation would not be a valid reason. However in the present case there is no evidence of any breach of the relevant legislation and the termination of the applicant’s employment was expressly permitted by EML. Further, the applicant has misconceived the onus upon the employer in legal proceedings stipulated in s.58B(2)(a) of the WRC Act. This provision has to be read in the context of the legislation and clearly refers to the onus upon the employer in proceedings brought to establish a breach of s.58B(1).
[69] The Commission can acknowledge that there is a dispute between the parties on whether the employer complied with s.58B, but it not the Commission’s role to rule on this issue.
[70] The applicant was notified of the reason for dismissal in advance of the dismissal by way of the 10 May 2013 letter, the show cause letter and the meeting on 14 May 2013. To the extent that the show cause letter didn’t cite the impracticability of providing suitable duties, this was a matter of form rather than substance. The Commission should have regard to the whole of the evidence concerning the lack of suitable duties and the information provided to the applicant, including the decision to change the rehabilitation objective to obtaining suitable employment with a different employer.
[71] The applicant had the opportunity to respond to the reasons for dismissal and did so through his lawyers but they failed to provide any constructive feedback in relation to Dr Tschirn’s report. The response of the applicant’s solicitor was to continue to focus on s.58B of the WRC Act.
[72] Mr Colgrave conceded that there was legitimate criticism of Mr Ellis in relation to the delay in providing Dr Tschirn’s report to the applicant and in responding to the applicant’s lawyers after the meeting on 14 May 2013. However he submitted that given the attitude taken by the applicant through his lawyers, the failure to provide the report or respond in a timely manner made no real difference to the outcome (UES (Int’l) Pty Ltd v Harvey (Harvey). 35
[73] In relation to the matters raised by the applicant under s.387(h) of the Act, the deficiency in the notice has been rectified. The cessation of weekly payments and the closure of the applicant’s rehabilitation process were matters beyond the control of the employer and should not be taken into account in considering the consequences of the dismissal on the applicant.
[74] The Commission is not empowered to make a general order for re-employment. The Act empowers the Commission to make an order of reinstatement, where appropriate, by appointing the person to the “position” in which the person was employed immediately prior to the dismissal or another “position”. “Position” has a clear meaning and reinstatement to a position requires that the contractual nexus between the parties is re-established. Reinstatement must be “real and practical” not “illusory and theoretical” (Blackadder v Ramsay Butchering Services Pty Ltd). 36 The work performed by the applicant prior to dismissal was not undertaken pursuant to a contract of employment; he is unable to fulfil the requirements of his contracted position; and there are no duties available for the applicant to perform.
[75] Paragraphs (a) to (h) of s.387 of the Act set out the matters that the Commission must take into account in determining whether a dismissal was harsh, unjust or unreasonable, as follows:
“(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.”
[76] For a reason to be valid it must relate to the capacity or conduct of the person, including the effect of the person’s capacity or conduct on the safety and welfare of other employees. The conduct of the applicant is not in issue here. Capacity relates to an employee’s ability to do the work he or she was employed to undertake.
[77] Whether there was a valid reason to dismiss is a matter not only to be considered but to be accorded some significance in determining if the dismissal is harsh, unjust or unreasonable. 37 The Commission is required to conduct an objective analysis of all relevant facts in determining whether there was a valid or sound or defensible reason to dismiss.38
[78] The applicant was dismissed on the basis that he could not perform the inherent requirements of his position or another identified position within Qantas and because he would be unable to do so in the future. I find that Qantas took a number of separate decisions over the period mid-late 2012 which removed most of the duties which it had been providing to the applicant up to this time. As noted earlier, in the period leading up to 14 May 2013 the applicant was undertaking only one to one and a half hours of work per day on baggage data collection.
[79] In circumstances where the applicant has an accepted workers’ compensation claim and his medical restrictions and capacity to perform the role are central to the decision to dismiss, I consider that Qantas’ obligation to provide suitable employment to the applicant under s.58B(1) of the WRC Act is relevant to the determination of whether the dismissal was harsh, unjust or unreasonable. 39 The more complex issue, in my view, is whether this is a matter to be taken into account in determining whether there was a valid reason for dismissal.
[80] There is some support for doing so. In Ermilov v Qantas Flight Catering Limited 40 Mr Ermilov was dismissed on the basis that he was unable to perform his contracted position of an Airline Services Officer Level 2. He had physical limitations that arose from a work related back injury, but as he had previously settled in relation to past and future entitlements relating to the injury he was not entitled to workers compensation when a further aggravation of his injury occurred in 2003. Senior Deputy President Cartwright concluded that there was a valid reason for the termination related to the capacity of the Mr Ermilov, but stated that:
“Under the NSW Workplace Injury Management and Workers Compensation Act 1998, an employer liable to pay compensation to an injured worker is obliged to provide “suitable employment”, unless it “is not reasonably practicable.” “Suitable employment” is defined as “work for which the worker is suited, having regard to...” a number of factors, including (among others) the nature of the worker’s incapacity and pre-injury employment, and the details in the medical certificate supplied by the worker. When Allianz denied workers compensation liability in respect of the Applicant’s third injury (which the Applicant did not contest), the Respondent was no longer obliged to provide the Applicant “suitable duties”. It applied a policy that ASO Level 2 employees are required to perform all the duties of the role and that the Applicant was to be capable to rotate through the various tasks within all sections of the Wash Department …” 41 (footnotes omitted)
[81] In Boag it was held that “the inherent requirements of the position” refers to the worker’s substantive position and not to any modified or alternative duties that may be being performed at the time of dismissal. The Full Bench stated that:
“An inability to perform the inherent requirements of the position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event.” 42 (footnotes omitted)
[82] In the present matter there is no determination that Qantas has breached workers’ compensation legislation or that it has otherwise acted unlawfully. However I consider that the Commission can have regard to the obligations on an employer pursuant to workers compensation law and that in some cases this may be relevant to whether there is a valid reason for dismissal. I do not take Boag to exclude this approach. The example in the passage above of a dismissal in breach of workers compensation law or that is otherwise unlawful, is not exhaustive of the matters which might enable a finding that there was no valid reason for dismissal even though the worker is unable to fulfil the inherent requirements of his or her position.
[83] There is no dispute that the applicant was unable to fulfil the inherent requirements of his position. Unfortunately his narrow skills base, work history, physical capacity and other matters limited his ability to perform another identified role in Qantas. While not conceded by the applicant, I doubt that modifications could have been made to his substantive position which would enable him to undertake his substantive ASO position. The primary purpose of his position was to handle baggage. The applicant’s lifting and other restrictions would make it impossible for him to undertake this core function.
[84] Qantas provided suitable employment to the applicant over a period of many years. Had this not been the case my conclusion as to a valid reason may have been different, but in the circumstances of this matter I conclude that there was a valid reason for the dismissal. The decision by Qantas to cease the provision of suitable duties is dealt with later in the decision.
[85] The notification provision of s.387(b) of the Act requires that the applicant be notified of the valid reason for dismissal in advance of the termination of employment. 43 In this case the applicant was provided with the ‘show cause’ letter on 14 May 2013 which put him on notice that Qantas was considering terminating his employment and the reasons why. The applicant challenges these reasons, particularly the assertion that suitable employment is provided on an interim basis. Nonetheless, in light of my conclusions as to the valid reason for termination I am satisfied that the applicant was notified of the reason for dismissal.
[86] The show cause letter gave the applicant until 21 May 2013 to provide information in support of his continued employment, including the provision of medical evidence. Clearly this was an unrealistic time frame within which to provide medical evidence. He was not provided with a copy of Dr Tschirn’s report even though this was the most recent report upon which Qantas relied in reaching its decision to terminate the applicant’s employment. In addition, there was confusion as to the applicant’s employment status as a result of Qantas issuing the letter of 10 May 2013 at the same time as the show cause letter and its failure to respond to queries raised by Mr Milsom.
[87] A copy of Dr Tschirn’s report was belatedly provided on 29 May 2013. Mr Milsom’s request for documentation from Qantas regarding its inability to modify the applicant’s substantive position and his request for clarification of the term “normal duties” were left unanswered. The concerns expressed over the applicant’s current employment status were not addressed.
[88] The confusion surrounding the effect of the 10 May letter and Qantas’ failure to explain the purpose of this letter in the face of clear concern from the applicant’s solicitor as to his employment status, combined to deprive the applicant of a fair opportunity to respond to the decision to dismiss. Even assuming the seven day response period in the show cause letter was implicitly extended by Qantas, the confusion over the applicant’s employment status meant that he had no real opportunity to present his case for continued employment.
[89] There are a range of authorities in relation to providing an employee with the opportunity to respond, generally in the context of concerns related to the employee’s performance or conduct. In Nicholson v Heaven & Earth Gallery, 44 Wilcox CJ referred to the principle of natural justice or procedural fairness that:
“… a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.”
[90] I see no reason why this reasoning is not equally applicable to a dismissal based on an employee’s capacity to perform their role. I am not persuaded that the failings in the process leading to termination were of no consequence because the outcome would have been the same. 45 There are some situations in which this may be the case but I do not consider that the present matter falls into this category. While Qantas’ position as to its right to terminate may not have changed, alternative arrangements regarding the applicant’s continued employment may have found some favour, such as a reduction in his hours of work.
[91] In relation to the argument that Qantas had already determined that it would dismiss the applicant when it issued the show cause letter, there is evidence to support this view as set out earlier in the decision. In this situation the opportunity to respond after the show cause letter was issued did not constitute a real opportunity for the applicant to put a case in support of his on-going employment. 46
[92] I consider that these matters are neutral in determining whether the dismissal was harsh, unjust or unreasonable. The applicant had access to legal advice and representation (s.387(d)); the dismissal was not related to unsatisfactory performance (s.387(e)); and Qantas is a large organisation with access to dedicated human resource specialists, such that the size and capability of the organisation was not a reason which compromised its ability to implement proper procedures (ss.387(f) and (g)).
[93] In relation to the obligation upon Qantas to provide suitable duties, it is appropriate to consider the operation of s.58B(1) of the WRC Act. This was a matter considered by His Honour Deputy President Judge Hannon in a decision of the Workers Compensation Tribunal in relation to an application filed by the applicant under the WRC Act (the WCT decision). 47 The application challenged the RRTW Plan which had the objective of returning the applicant to work with a new employer. This decision was subsequently overturned on appeal on jurisdictional grounds, but there was no challenge to the approach of His Honour in relation to the matters which are relied upon here.
[94] His Honour noted that s.58B(1) imposes a duty upon the employer to provide suitable employment and specifies a monetary penalty in the event of a breach of the provision. EML’s determination of 14 March 2013 was not a decision under s.58B(1), rather it approved the proposal of Qantas that it no longer be obliged to provide suitable employment to the worker on the ground that it was not reasonably practicable to do so. The effect of this advice was to provide comfort to Qantas that it would not be exposed to any action instigated by the compensating authority involving a prosecution for breach of s.58B(1) or to the imposition of supplementary levies under s.72C of the WRC Act. 48
[95] Other than the information provided to EML by Qantas, the additional matters, if any, taken into account when EML gave the ‘green light’ to Qantas to separate the applicant from his employment, are not apparent. That is, there is no evidence that EML conducted an investigation which involved seeking the views of the applicant or his solicitor. Dr Tschirn’s report had not been received as at the date of EML’s advice.
[96] The issue however is not whether Qantas could continue to provide suitable employment for the applicant, which in my view, having regard to the discussion of suitable employment in Longyear 49 it could. Rather, the issue is whether in all the circumstances it was open to Qantas to cease the provision of suitable employment having regard to the scheme of rehabilitation of injured workers under the WRC Act. The scheme of the WRC Act in relation to this matter was addressed by Hannon DPJ as follows:
“The relevant provisions must be considered on the basis that effective rehabilitation is one of the fundamental planks on which the Act is based …
Section 26 of the Act provides that the Corporation shall establish or approve rehabilitation programmes with the object of ensuring that workers suffering from compensable injuries achieve the best practicable levels of physical and mental recovery and are, where possible, restored to the workforce and the community. The purposes of rehabilitation programmes are wide-ranging, and with respect to a particular worker, may include assistance in seeking, obtaining or retaining employment and in training and retraining, and everything else that may assist in rehabilitation. In seeking to achieve these objectives, a rehabilitation programme must specify actions to be taken, and must evaluate employment that will be “suitable employment” for a worker given that worker’s physical and mental condition as a consequence of the injury, or alternatively, specify that these matters will be evaluated and reported to the Corporation as soon as it becomes practicable to do so.
…
Under s 28A of the Act, the Corporation is required to establish a RRTW Plan for a worker who is both receiving compensation by way of income maintenance and who is incapacitated for work by a compensable injury for more than thirteen weeks but has some prospect of returning to work. The obligation with respect to the worker is ongoing in this case.
Under reg 23 of the Workers Rehabilitation and Compensation Regulations 2010 (“the Regulations”), such a Plan must have the objective of returning the worker at the earliest practicable time to suitable employment at a level of remuneration which, as near as practicable, is not less than the worker’s notional weekly earnings. The Plan also must have at least one of four other specific objectives appropriate to the circumstances. These are, in the order set out in the regulation, the worker’s return to the pre-injury employment with the pre-injury employer; the worker’s return to different employment by the pre-injury employer; the worker’s return to the pre-injury employment but with a different employer; and the worker’s return to different employment with a different employer.” 50 (footnotes omitted)
[97] Having regard to the return to work objectives and the applicant’s inability to perform his pre-injury employment or another position within Qantas after a period of 12 years on modified duties, I consider that it was open to the employer to cease the provision of duties to the applicant. This situation can be distinguished from the decision in Jetstar Airways Pty Ltd v Neetson-Lemkes (Jetstar) 51 where the Full Bench determined that there was a valid reason for dismissal based on the worker’s incapacity to perform her pre-injury role. However the Bench held that, but for the dismissal, there was a likelihood that the worker could have returned to full duties and that this was a relevant matter under s.387(h) of the Act.
[98] A further matter raised by the applicant was the failure of Qantas to provide the required payment in lieu of notice on termination, which is accepted to be five weeks. Only four weeks’ pay in lieu of notice was provided on termination. The shortfall in the notice would have been apparent to Qantas when the first and second applications were filed, but the one week deficit was not rectified until nearly two years later. This is a relevant matter but of limited weight in all the circumstances.
[99] I have determined that there was a valid reason for the dismissal, but that the applicant was denied procedural fairness.
[100] The applicant had 23 years’ service with Qantas. He has suffered multiple injuries in the course of his employment which have left him with significant physical impairment. There is no evidence of performance or conduct issues and he demonstrated a continuing commitment to his employment with Qantas when he rejected an earlier offer of a voluntary redundancy. The consequences of the dismissal upon the applicant are significant given his age, medical history and physical limitations. His chances of securing employment are minimal.
[101] I determine that the dismissal of the applicant was harsh.
[102] The decisions taken to cease the applicant’s weekly payments and to abandon the rehabilitation process have not been taken into account as they are not decisions taken by or within the control of Qantas.
[103] Reinstatement is not appropriate in circumstances where the applicant was performing limited work under a RRTW Plan and there was a valid reason for dismissal. However, and subject to the following, I consider that an award of compensation is appropriate. The determination of the appropriate quantum of compensation is dependent, in part, on the income received by the applicant since termination. As this matter is the subject of other proceedings it is not able to be calculated at this time. In accordance with the views of the parties, this matter will be held in abeyance until the dispute proceedings have been finalised.
DEPUTY PRESIDENT
Appearances:
Mr J Warren for the applicant
Mr I Colgrave with Ms M-Y Ma for the respondent
Hearing details:
2015:
Adelaide,
28, 29 July.
1 The WRC Act has since been repealed and replaced with the Return to Work Act 2014 (SA).
2 In accordance with s.382 of the Act.
3 Ex R1 Attach SE-9 and SE-2, respectively.
4 At PN426.
5 At PN1382 – 1385.
6 Ex A2 Attach DJL-8, correspondence dated 5 December 2012.
7 Ex R1 Attach SE-6.
8 Ex A2 Attach DJL-11.
9 At PN1422, 1425-6, 1401-8.
10 Ex R1 Attach SE-8, dated 20 March 2013.
11 Ibid at p 7.
12 At PN1284-8, 1298-1300.
13 Ex R1 Attach SE-10.
14 Ex R1 Attach SE-11.
15 Ex A2 at paras 79-01; PN764-772 and PN815-818.
16 Ex R1 at para 62.
17 At PN1336.
18 At PN1349-1351.
19 PN1587-1601.
20 Ex R1 Attach SE-12.
21 Ex R1 Attach SE-13.
22 Ex R1 Attach SE-15.
23 PN829-838.
24 Ex A2 at para 90.
25 Ex A2, Attach DJL 25.
26 At PN58, 59.
27 (1993) 46 FCR 90.
28 [1995] SASC 4951, 7 February 1995.
29 (2010) 195 IR 292 at 299.
30 (2000) 98 IR 137.
31 Qantas Airways Limited and Q-Catering Limited – Transport Workers Workplace Determination 2012, PR527506, at cl 16 and s.117 of the Act, respectively.
32 At PN114.
33 (2000) 78 SASR 270 at 276.
34 PR974502, 21 December 2006.
35 [2012] FWAFB 5241 at [74] per Kaufman SDP.
36 (2005) 221 CLR 539.
37 Edwards v Guidice [1999] FCA 1836 at [5] per Moore J.
38 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Rode v Burwood Mitsubishi, Print R4471, 11 May 1999.
39 Arrowcrest, supra, at p 103.
40 PR953449, 18 November 2004. This decision was upheld on appeal, see PR956925, 4 April 2005.
41 Ibid, at [30].
42 Supra, at 296 and 299.
43 Crozier, supra at pp 150-1.
44 (1994) 57 IR 50 at 60.
45 Qantas’ final submissions at PN1952.
46 Wadey v YMCA Canberra, IRCA, unreported judgement per Moore J, 12 November 1996, at p 10.
47 Lawless v Qantas Airways Limited and Anor [2013] SAWCT 40 at paras 71, 72.
48 Section 72C enables the Corporation to impose a supplementary payment on an employer having regard to a number of specified matters, including any failure to provide employment to a worker who has suffered a compensable injury.
49 Supra, at paras 10 and 14.
50 The WCT decision at paras 56-57, 59-60.
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