DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Stefanus Uijland
v
Airservices Australia
(U2020/1256)

Termination of employment – application for an unfair dismissal remedy – Air Traffic Controller (‘ATC’) employed by Airservices Australia at Albury Airport – non-work-related and work-related injuries in 2016 and 2017 respectively – applicant required to retain a Class 3 Medical Certificate – applicant unfit for operational ATC duties over a significant period – applicant on workers’ compensation – whether applicant unable to fulfil the inherent requirements of his role – allegations of unhealthy workplace culture – allegations of managers failing to answer questions and communications – proposal for ‘scrambler therapy’ for pain relief – alternative work offered, but declined – disrespectful complaints about supervisors, managers and the CEO – relevant principles to be applied – decision to dismiss based on the evidence available to the employer at the time and not a speculative and uncertain time in the future – medical evidence does not deal with the prospects of success with treatment or when it might be concluded – scrambler therapy abandoned without favourable outcome – poor prognosis corroborated three months after the applicant’s dismissal – applicant unable to fulfil the inherent requirements of his job with no prospect of him being able to do so in the foreseeable future – decision to dismiss reasonably based on the evidence available to the employer ‘at the time’ – employer met its obligations to assist the applicant to find alternative employment – valid reason for dismissal – employment relationship inherently broken down - reinstatement would not be appropriate - no issues of procedural unfairness – other matters do not outweigh factors justifying dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] Mr Stefanus Uijland commenced employment with Airservices Australia (‘Airservices’), as a trainee Air Traffic Controller (‘ATC’) on 20 August 2001. He qualified as an operational ATC on 23 September 2002. It is common ground that as an operational ATC, Mr Uijland was required to obtain and retain a Class 3 Medical Certificate (‘Class 3 MC’), as a mandatory requirement of Australia’s air safety regulator, the Civil Aviation Safety Authority (‘CASA’). Mr Uijland was employed at Albury Airport under the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 (the ‘Agreement’) on a salary of $192,527.00.

[2] Mr Uijland suffered a non-work-related shoulder injury in late 2016 for which he took extended paid leave – from 3 November 2016 to 18 September 2017 (including an extended period in Europe). On 18 September 2017, he suffered a back injury while undergoing a functional assessment of his earlier shoulder injury. Liability was accepted by Airservices and Mr Uijland became covered by Comcare and its rehabilitation process in order to secure his return to work as an operational ATC.

[3] On 13 September 2018, Mr Uijland received a letter from CASA advising of its requirements for him to seek medical clearance for renewal of his Class 3 MC. There was some confusion about this letter, which I will come to later. On 23 September 2019, Mr Uijland was advised of Airservices’ proposal to take action in respect to the Loss of Essential Qualification (‘LOEQ’) under Cl 56 of the Agreement. The letter reads as follows:

‘Dear Stephanus (sic),

Loss of Essential Qualification

The purpose of this letter is to advise you of the action Airservices Australia (Airservices) is proposing in relation to your potential Loss of Essential Qualifications (LOEQ) due to the failed renewal of your Class 3 medical.

Background

You are a Tower controller having held ratings and endorsements at Albury Tower.

Due to a medical condition experienced on 6 October 2017, and subsequent treatment, you have been unable to renew the Class 3 medical.

It is acknowledge (sic) that this decision would potentially result in LOEQ action under Clause 56 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017- 2020 (ATC EA).

Proposed Action

Under the LOEQ provisions this loss may be of a temporary or permanent nature. In this case it is considered to be permanent, however, you continue to have the right to appeal the CASA decision for reinstatement of your Class 3 medical should you wish to do so. Such action would be conducted at your own cost. Airservices would provide such support as deemed reasonable in terms of approved absence from the workplace.

Under Clause 56.9 (d (i)) of the ATC EA, Airservices has determined that it is unlikely you will regain your ATC qualifications within a reasonable timeframe and, as such, has considered whether you can be transferred to other duties or to proceed with potential termination of employment (Clause 56.9 (d) (ii)).

Your previous discussions with me have indicated:

•  Your class 3 medical expired on 20 February 2019, you unsuccessfully attempted to renew the class 3 on 24 April 2019. As such you do not have a current Class 3 medical certificate, confirmed by CASA in a letter dated 19 June 2019;

•  Your current medical status precludes you from conducting safety critical work;

•  You are awaiting "scrambler therapy" which may or may not resolve the pain issues precluding you from holding a class 3 medical certificate;

•  That your current medical status only allows you to undertake light duties 3 hours per day (certificated by GP);

•  That the scrambler therapy is not a cure for your medical condition but it may alleviate the symptoms. In addition there is no certainty of success of the program to the extent that you will be able to return to full time duties as an Air Traffic Controller at Albury Tower upon completion of the sessions.

Based on the information available to us, Airservices is considering the following action:

•  Redeployment/termination of your employment.

In the event you are unable to secure a redeployment opportunity by 17 January 2020, Airservices may consider terminating your employment.

Further, any redeployment opportunities you are successful for, you will be responsible for the payment of any relocation costs, if required.

Opportunity to respond

Prior to any final decision, you are invited to formally provide any further and final comments or explanation about your situation that you wish to be considered. Your submission should be made in writing and must be submitted to me by no later than close of business on 3 October 2019.

Upon receipt of your submission a final decision will be made and you will be notified of this outcome in writing. Please note if you do not respond to this letter, or if you choose not to provide any additional information during this period, Airservices will make a determination on the basis of the information on hand.

Airservices understands that you may require additional support and remind you of your ability to access free confidential counselling through the Employee Assistance Program, as provided by Converge International, on [phone number provided]. If there is additional support that we are able to provide, we welcome any suggestions for consideration.

Yours sincerely,

Chris Wallace’

[4] A meeting was held to discuss the matter on 26 September 2019, and Mr Uijland responded in writing on 1 October 2019 as follows:

‘Dear Jason and Peter,

I have included you in my formal reply, because recently I shared information with you about how the company could improve. This reply is regarding Airservices' decision to start proceedings to create an opportunity to terminate my employment. We ended up in this situation, because of Airservices' decision to subject me to a physical assessment. I do not expect you to interfere in the process, but I do think you will find several issues within my reply where the company could improve, e.g. people skills, the right people in the right job, compassion, true support, taking responsibility for once's actions, duty of care, communication skills and inconsistency to name a few. Ginette and Chris have already indicated that they are only messengers of bad news and are hiding behind ANS who they say make all the decisions.

Ginette/Chris and to whom this may concern,

Hereby I'd like to formally provide further and final comments and explanation about my situation as per your invitation in your letter dated 23/09/2019 and handed to me on 26/09/2019. It is astonishing to me that you state in your letter that my Loss of Essential Qualification is considered permanent even before I start my scrambler therapy, and you are trying to create an opportunity for dismissal and make me feel distraught. However, since you only gave me one week to reply I will have to try and gather my thoughts, base my reply on my current condition, your assumption and proposal, and I will reconsider my situation again at the appropriate time.

There are several moral and possibly legal issues that need to be looked into, at least from my point of view. I will start with the timing of this letter and meeting on 26/09/2019. I had advised you that after 8 months of waiting (beyond my and Airservices' control) I could finally start my scrambler therapy on 30/09/2019. Clare already made a very valid point of the inappropriate timing of that and the question I would like to raise is whether Airservices failed in it's duty of care regarding my well being by having this meeting at this crucial time? Would a reasonable person have shared the information in this letter at this time or a month later, awaiting the results of the scrambler therapy first and therefore also making sure not to give me extra stress and pressure just before the treatment? Having the information relayed at this time, it created a lot of extra stress, extra pressure and sleepless nights which is still ongoing, just before my treatment. Is this undermining a possible positive outcome of the scrambler therapy and therefore my chances of getting my medical class three reinstated? As mentioned above you consider my LOEQ permanent but then go on to write that the scrambler therapy might or might not alleviate the symptoms and therefore I might or might not be able to get my class 3 medical back. Those two statements contradict each other and indicates the ill-timing of this letter as the decision to deem my LOEQ permanent or not should have been deferred to a later date when it is clear. The content of this letter made me feel way worse than I already felt and I think that is not very beneficial for my treatment and me overall and therefore I consider that unsupportive of Airservices. Meanwhile I have spoken to four different professionals in three different areas and they are all puzzled (to say it nicely) as to why I received this letter now and the content of it. The people providing scrambler therapy confirmed that the more relaxed you are the better it will work and they have had some good results in the past. I have attached a letter from Dr Todhunter's office for some extra information regarding the therapy. Did you contact them before drafting your letter to me?

I think Clare has said enough in her feedback about the letter and meeting and I will suffice by stating that I agree with her and will now get on with all the other issues I'd like to be included in your final decision.

Let's start with the following fact: Due to Airservices approving and arranging a physical assessment on 18/09/2017 I am now in a position where I am not fit for duty due to an injury sustained during the physical testing. As a consequence I now have constant discomfort/pain, cognitive issues, insomnia, severe stress, loss of quality of life, loss of my medical class 3 licence, loss of my ATC position (at this time), loss of possible payment from LOLI due to not being able to cover this pre existing condition with a new insurer after Airservices stopped offering LOLI, loss of income, possible financial hardship in the future, and no meaningful work at this time. I might have forgotten some things due to my memory not being optimal right now. So Airservices initiated my physical testing that led to my injury and now led to Airservices initiating an opportunity to dismiss me and refuse the support I need from them at this time. At the least this shows no compassion from Airservices seeing that they were the instigator of my demise.

The following questions arise from this: How come Airservices singled me out to do physical testing? I can not recall one Air Traffic Controller, that had been off for an extended period due to injury, to be physically tested this way. And I know for sure that when I was off for an extended period of time in 2003 due to injury that I was not required to do any physical testing (luckily). Did Airservices fail in it's duty of care by organising a physical testing day and risking injury knowing that I barely do any physical work at all as an Air Traffic Controller and I was still in the latter stages of recovery of my shoulder injury? Did the Airservices' employee who organised and or approved this testing communicate clearly to the Rehab company to only test the functionality of my shoulder as that was the only reason I was absent from work for an extended time? Did that employee(s) have the required knowledge and/or should have known what he or she was signing me up for? Was it necessary in the first place to do any physical testing at all given that my treating shoulder specialist had already confirmed that my shoulder had healed enough to do my work? Is it not the job of the DAME, a medical professional, to decide whether I needed further testing to see if I was fit for duty, could go back to work and for how long to start with? Isn't it my responsibility to make sure I become and are fit for duty? If Airservices deemed it necessary to physically test me wouldn't it be essential and in my and their best interest to organise an appointment with a shoulder specialist first and rely on their medical advice? The irony is that I worked so hard to recover from my shoulder injury (normally takes 1-3 years) as quick as I good for the benefit of myself (and in the process for the benefit of Airservices) and then because of a decision of Airservices I get a new injury, and instead of helping me they were the catalyst for the worst possible scenario for me.

I have spoken to Ginette on several occasions since the injury and she has already confirmed that she did not clearly communicate to only test me for my shoulder functionality regarding the duties of my job and she has also confirmed that the physical tests that I was subjected to had no purpose whatsoever in relation to my work as an Air Traffic Controller. Does that mean she failed in her duty of care? It's interesting to note that the (medical) professionals that I have encountered so far since my back injury, have all questioned why I was subjected to those tests in the first place.

It's also interesting to note that Ginette has refused to answer any of my questions on paper and in above mentioned meeting refused to answer any relevant questions at all.

Now let's get on to the subject of support since Ginette and Chris both claimed that Airservices is doing all they can to support me, which I think they have a moral obligation to since my back injury started with them organising the test day.

Recently it was "Are you OK day". Would it be reasonable to expect that my rehab case manager and line manager would ask me if I am ok on that day, especially since Airservices spend a lot of time and effort to highlight that day? Not one person asked me if I was ok on that day and I think that shows the level of compassion and support that I felt from these two individuals. As a matter of fact I don't think Ginette has initiated contact once in the last 15 months and asked me if I was ok. Isn't that part of her role?

Regarding Chris: He only took over the job as line manager for Albury in March this year I believe. In the first meeting that he had with me in April 2019 I felt he came underprepared, was unsupportive, was unpleasant in the communication and bordered on harassment and bullying. There is an email trail about this meeting and my observation that he lacks people skills, so I won't go into that, but one of the things that I wrote after that meeting is that I do not feel welcome at work anymore and that Chris lacks empathy and compassion. I felt that he just came to try and get rid of me as soon as possible and now receiving this letter dated 23/09/2019 even before I started my treatment, only confirms that feeling. Also the main support that I needed from Airservices at that time to not mentally deteriorate any further, was to get meaningful work, but I hardly got any. I even requested to do some meaningful work and promote Airservices to year 11 and 12 high school students, but he didn't want me to do that, meanwhile not coming up with anything else meaningful to do. The psychologist and my rehabilitation officer also confirmed that that is what I most need(ed) in support from my employer. I also discussed my LOLI insurance with Chris last April and brought that issue up once again this meeting, since he still hadn't come back to me with the answers and still hasn't. As for Airservices' support at this time? Clare worded that already, it is basically non existent in the area where I really need it and they are in a position to possibly facilitate it. I know of several people in the past that got jobs offered by Airservices that they didn't apply for and therefore were given preferential treatment. So why give some people preferential treatment and others not? In that regards Airservices has been very inconsistent for a very long time. I do not know what position I will be in after my scrambler therapy, but Airservices has already made it clear not to expect any help from them regarding work, which makes me feel not valued after 18 years of service whereas some people already got preferential treatment after not even having contributed yet and were in a difficult position due to their own doing, whereas I am in this situation due to no fault of my own.

So due to a decision made by Airservices Australia, I am now at a severe disadvantage, but still Airservices wants me to apply for jobs and compete with other applicants and only give me till 17/01/2020 to be successful. That gives me very limited time to acquire resume writing skills and other necessary job skills especially since I am not fit to do any work at all at the moment. Also during the meeting you mentioned that Comcare will help me to try and secure a job with another company. Do you think a new employer would take the risk and hire an employee in my current condition?

In light of all the information present at this time and not knowing what will happen, I request the following in reply to your letter: I would like Airservices to find me a meaningful job in Sydney, Melbourne, Brisbane, Perth or Canberra and Airservices will be responsible for relocation costs including financial assistance I would be entitled to as if I was transferred as an Air Traffic Controller. Otherwise I would like to be given till 01/07/2020 to try and secure a position and if successful Airservices still be responsible for any relocation costs plus assistance. I cannot predict the future, your decisions, including your answers to this letter etc, so further requests I can only base on when new information comes at hand.

And last but not least: Thank you for letting me know I have the right to appeal the CASA decision for reinstatement of my Class 3 medical at my own cost. Since you consider the loss permanent and don't consider me an Air Traffic Controller anymore, could you please advise what your intentions are regarding my employment in case the scrambler therapy is successful and CASA reinstates my Class 3 medical?

I assume I can expect an answer from you by no later than close of business day 9 October 2019. If you need an extension then please advise the reason and by what date you will reply.

Kind Regards

Stefanus Uijland’

On 10 October 2019, Airservices met again with Mr Uijland to advise of the commencement of the LOEQ process. He was advised that unless he obtained an alternative position with Airservices by 27 January 2020 (later extended to 30 January 2020), or he was involved in a recruitment process at that time, his employment would be terminated. Mr Uijland applied for a position on 12 January 2020, but was unsuccessful. On 15 January 2020, Airservices responded to 12 questions posed by Mr Uijland in a 6-page letter. Mr Uijland’s employment ceased on 30 January 2020.

[5] On 6 February 2020, Mr Uijland (hereafter referred to as the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks orders from the Fair Work Commission (the ‘Commission’) for reinstatement and ‘lost remuneration’ (later changed to compensation).

[6] In accordance with my usual practice, I convened a telephone conference with the parties on 3 April 2020, but the matter was not able to be resolved. I issued directions for a hearing on 19 June and 25 June 2020. The hearing was conducted by phone, given the restrictions on ‘in person’ proceedings caused by the COVID-19 pandemic.

[7] At the hearing, the applicant represented himself and Mr D Fuller of Counsel, instructed by Ms K Easdale and Ms C Paton, Solicitors, MinterEllison, appeared for Airservices, with permission being granted for the respondent to be represented by a lawyer pursuant to s 596 of the Act; noting the applicant did not object.

[8] I observe that before the hearing, Airservices had filed applications in respect to Notices to Produce on Comcare and CASA, and Mr Uijland filed a Notice to Attend on a former manager of Airservices, Ms Ginette Aruliah. An order was made by the Commission on the Notice to Attend; but on a limited basis after a short hearing on 21 May 2020; see: Uijland v Airservices Australia [2020] FWC 3613.

THE EVIDENCE

[9] The following persons, with their respective positions, gave evidence in the proceedings:

•  Mr Uijland – the applicant;

•  Ms Clare Evans – support person of the applicant;

•  Ms Fiona Mackee – People Services Specialist for Airservices’ Air Navigation Services (‘ANS’) operations;

•  Mr Chris Wallace – former ATC Line Management for Airservices’ ANS;

•  Mr Blair Henderson – Acting Director of Operations for Terminal Services Melbourne for Airservices’ ANS;

•  Mr Adrian Turner – Line Leader for Airservices’ ANS;

•  Mr Simon Thomas – ATC of Airservices.

[10] A number of clauses in the Agreement were relied on by both parties. These were as follows:

55. FITNESS FOR CONTINUED DUTY

55.1. Early intervention is important if an employee is absent from work and an employee’s health may be impaired. Should an employee experience a health problem that may impair an employee’s capacity to perform an employee’s duties in the long term, Airservices’ objective will be to take positive and appropriate action.

55.2. Both medical and non-medical factors may contribute to absences from work for extended periods of time.

55.3. Should an employee be absent for health reasons, Airservices will explore with an employee possible non-medical outcomes. These may include, but are not limited to:

(a) The provision of appropriate training;

(b) Modification of an employee’s duties;

(c) Arranging for specialised counselling;

(d) An employee’s temporary transfer to different duties;

(e) An employee’s permanent transfer to another position at the same level; or

(f) The counselling of an employee’s supervisor.

55.4. Where an employee’s absence appears directly related to medical factors, any action Airservices takes will be based on the expert advice of a DAME.

55.5. Referral to a DAME

(a) Airservices may refer an employee to a DAME where there appear to be health issues which may substantially impair, other than temporarily, an employee’s ability to perform their duties. This power of reference is only to be made by a Service Delivery Line Manager, with the approval of the Executive General Manager, ATC.

(b) Where the manager has concerns about an employee’s attendance record which do not relate to the health issues referred to in clause 55.5(a) the manager will utilise the provisions of clause 37 of this Agreement relating to the management of Personal leave, or Airservices’ Attendance Management system, as appropriate.

55.6. Airservices will arrange for an employee to be examined by a DAME in circumstances where:

(a) An employee have been absent from duty on account of illness for a continuous period of 4 weeks and an employee could be substantially impaired, other than temporarily, in the ability to perform an employee’s duties;

(b) An employee have been absent on account of illness for 13 weeks continuously;

(c) An employee have been absent on account of illness for a total of 13 weeks in any 26 week period;

(d) An employee presents a report from a registered medical practitioner indicating that an employee is unfit for duty and the prognosis is unfavourable.

55.7. Should an employee be required to consult a DAME, at a reasonable time before the appointment, Airservices will inform an employee in writing of:

(a) The time and place of the examination;

(b) The purpose of the examination, and the reason Airservices arranged it;

(c) An employee’s right to be provided on request with the information to be furnished to the DAME;

(d) An employee’s right to submit supporting material for consideration by the DAME; and

(e) If an employee has been a superannuation contributor for less than 20 years - the need to bring to the medical examination any Benefit Classification Certificate issued to an employee.

55.8. Where an employee has been referred to and attends a DAME, Airservices will provide an employee with written details of the findings of the medical examination, any recommendations provided by the DAME, and advice of any action Airservices propose as a result.

55.9. An employee will be given the opportunity to respond to any action proposed to be taken and may provide a written response to Airservices within 14 days.

55.10. Airservices may take action that includes, in descending order, but is not limited to the following:

(a) Return an employee to an employee’s current position and duties;

(b) Redeploy an employee at the same level in a different position;

(c) Redeploy an employee to a lower level position with an employee’s consent;

(d) Redeploy an employee to a lower level position without an employee’s consent; or

(e) Terminate an employee’s employment with Airservices.

56. LOSS OF ESSENTIAL QUALIFICATION (LOEQ)

56.1. If an employee is required to hold an essential qualification to undertake or continue employment with Airservices, the retention of that essential qualification remains a condition of an employee’s employment.

56.2. An employee is not qualified to perform an employee’s duties if:

(a) An employee ceases to hold, or becomes unable or ineligible to hold or to use and enjoy, an essential qualification; or

(b) A court, person, authority or body that is competent to do so suspends, cancels, revokes, rescinds or otherwise withdraws an essential qualification that an employee holds.

56.3. An essential qualification is defined as:

"any statutory, professional, academic, commercial, technical, trade, health or other qualification the holding of which is a prerequisite to the practice of a profession, trade or occupation, the exercise of a right or the performance of a function or duty, being a profession, trade, occupation, right, function or duty that is necessary for that employee to practice, exercise or perform in the course of his or her employment".

56.4. In general terms, an essential qualification can be described as a licence, rating or membership of an official body overseeing standards of conduct or performance in a profession, trade or occupation. Specifically, it is any qualification required for the satisfactory performance of duty at the classification level for which the qualification is prescribed.

56.5. Although Airservices would normally determine the necessity of a qualification, industry or professional qualifications may also apply.

56.6. Loss of essential qualification means temporary loss and/or permanent loss.

56.7. Loss of an essential qualification will result in internal review and assessment as to possible alternate placement options. Permanent loss of an essential qualification may result in redeployment or termination of employment.

56.8. Interaction between performance, discipline and medical fitness provisions

Where the principal reasons giving rise to the loss of the essential qualification are directly attributable to circumstances and outcomes covered by Airservices’ performance and discipline procedures or Airservices’ fitness for duty procedures, then the matter will be addressed in accordance with those procedures.

56.9. Procedures

Where an essential qualification has been lost under circumstances which do not warrant action under other provisions, the following instructions apply:

(a) Initial action

(i) Should Airservices become aware that an employee no longer possesses an essential qualification, the Manager will discuss the matter with an employee and an employee’s nominated representative and advise the employee if it is proposed to inquire into the matter.

(ii) An employee will be allowed the opportunity to provide explanation or comment within seven (7) days. If an employee has already been allowed an opportunity to provide explanation or comment by way of disciplinary action or fitness for duty procedures, they will be allowed to provide further explanation during that seven (7) day period.

(b) Further inquiry

At the close of the initial seven (7) day period allowed for explanation or comment, Airservices may make any inquiries considered necessary and in the manner Airservices think fit. In doing so, Airservices will ensure that the following matters are considered:

(i) The circumstances leading to the loss of the qualification;

(ii) The steps necessary to regain the qualification;

(iii) Whether the employee is likely to regain the qualification within a reasonable time, if at all;

(iv) Any explanation or comments the employee provides;

(v) The potential benefits and cost to Airservices of providing appropriate retraining for the employee; and

(vi) Any special agreements with industrial organisations concerning the procedures to be adopted when qualifications are to be suspended or cancelled.

(c) An employee’s comment

(i) When the inquiry is completed and results in additional findings, Airservices will allow an employee a further seven (7) days to comment on the findings from the time an employee is advised of the findings.

(ii) If Airservices consider the employee is likely to regain the qualification within a reasonable time given the circumstances which apply, the employee will be provided with suitable duties during the intervening period.

(d) Decisions on redeployment or termination of employment

(i) If Airservices consider that the employee is not likely to regain the qualification within a reasonable time, and the employee should be transferred to other duties, Airservices will first consider whether it would be in the interest of efficient administration to transfer this employee to a position at the same level.

(ii) If Airservices conclude that transfer at the same level is not appropriate, Airservices may then, by notice in writing, reduce the employee’s classification or terminate the employee’s employment.

(iii) If Airservices do not transfer the employee at the same level and Airservices are satisfied that it would be in the interests of efficient administration to reduce the employee’s classification and a suitable position is available, the employee may be redeployed to a lower level classification, rather than have their employment terminated.

(iv) Any reduction in classification must be to duties for which an employee is qualified and which an employee could perform efficiently either immediately or within a reasonable period, and which the employee could reasonably be required to perform.

(e) Notice of reduction or termination of employment

(i) If Airservices give notice of reduction of classification or termination of employment, the notice must include or be accompanied by the reasons for the decision and, unless the employee has given prior written consent to the action being taken, advice of any right of appeal.

(ii) Appeal provisions in relation to reduction of classification are available through Airservices internal processes.

(iii) The sole right of review in relation to termination of employment would be through the Act.

(f) Superannuation and other entitlements

(i) Contributors to the Commonwealth Superannuation Scheme with at least one year's contributory service are entitled to involuntary retirement benefits under the Superannuation Act 1976 if retired because of the loss of an essential qualification.

(ii) If an employee’s employment ceases because they have lost an essential qualification, this employee is entitled to payment in lieu of long service leave and recreation leave credits.

(g) Consultation

If the employee concerned requests it, the employee’s representative will be notified in writing when an employee has lost, or is about to lose an essential qualification. The notification will include details of when discussions with the employee are to be held regarding the consequences of the loss.

Evidence of Mr Uijland

[11] The applicant provided two closely typed detailed statements with over 50 attachments. Much of this material traversed matters not relevant to the reasons for his dismissal on 30 January 2020. Nevertheless, I shall attempt to summarise the applicant’s evidence in deference to his efforts in putting everything he wishes to say in respect to his case.

[12] The applicant commenced employment with Airservices as a trainee ATC on 20 August 2001. He first gained a Class 3 MC on 12 July 2001. This is a mandatory requirement of his position and must be current at all times. He qualified as an ATC on 23 September 2002. In 2005, he transferred to Albury Airport. As a regional airport, Albury has five ATCs employed by Airservices, and no other work is performed by Airservices at Albury.

[13] The applicant contends that there is a longstanding unhealthy culture at Airservices, including bullying, to which he has been subject to since at least 2005, when he unsuccessfully applied for an ATC position at Bankstown Airport. He believed he was unsuccessful because of a separate matter involving an incident investigation of another employee. He had also questioned why another ATC had secured the vacancy over him, when he was more experienced. He received no explanation.

[14] The applicant recalled another incident in March 2013 when there was an argument with his then supervisor, Mr Valkenburg, about the renewal of his license. He claimed the supervisor yelled at him, called him a moron and could not explain why his license renewal was wrong. The applicant said that in the next four years, he had experienced four other occasions when the supervisor abused him during disagreements they had about work. The supervisor later put in a complaint about him, but nothing was resolved. A conciliation meeting was held when the supervisor told him ‘it is not what you say, it is how you say it and your gestures’. After this, the supervisor never spoke to him and gave him the ‘cold shoulder’. The applicant emailed him and said ‘you realise you were basically saying that I have the power to make you lose your temper at will. Do you want me to have that power over you?’. When the supervisor replied, ‘that is an interesting way of looking at it’, the applicant took this to mean that the supervisor was responsible for his own behaviours. The applicant said he was very disappointed by the lack of action taken by management over this and other incidents.

[15] The applicant referred to a said ‘promised’ transfer to the Gold Coast in January 2015. When he did not achieve the transfer and was told it was appointed on a merit-based selection, he pressed a grievance with Airservices’ Employee Grievance Board. He believed the selection process was discriminatory, but Airservices would not explain why they considered it was not. He claimed that having been told the selection system was dropped a year later, he found out that an ATC from New Zealand was hired for the Gold Coast position, but had made no formal application for the position, and had ‘failed’ in the job anyway. There was another position at the Gold Coast. However, when he applied and requested relocation costs, Airservices refused and gave the job to another Brisbane ATC, who agreed to pay his own relocation costs.

[16] Turning to more recent events (2017-2019), the applicant detailed his recollection of a number of conversations with various management representatives. Between November 2016 and April 2017, the applicant had a number of conversations with Mr Chris Bren-Clarke, ATC Line Manager, about his shoulder injury; including discussions about treatment and prognosis and approval for him to go to the Netherlands for medical and personal support.

[17] On 18 September 2017, the applicant was requested by Airservices to undergo a functional assessment for his shoulder injury. He claimed that despite seeking answers as to why this was necessary, no one responded, except to say it was all organised by HR. He claimed that on 6 October 2017, his Dedicated Aviation Medical Examiner (‘DAME’), Dr Thomas, said he did not understand why such an assessment was necessary as heavy lifting was not a feature of his ATC role. In that month, he queried why a certain ATC had been appointed to Albury, as he did not consider him suitable for the position and had ‘definitely not won the position on merit’.

[18] During 2018, the applicant was never told to stop working by management or Dr Thomas. However, on 8 April 2018, when his new manager, Mr Wallace, queried why he was working, he told him he was waiting for ‘scrambler therapy’ paid for by Airservices, and that there would be a six-month waiting period. He claimed Mr Wallace said he never would have approved the therapy and queried why he had not renewed his Class 3 MC. He told Mr Wallace that his DAME and CASA had told him not to renew it until his back injury was resolved and will do so after the scrambler therapy. Mr Wallace told him to take holidays and he questioned why he could not do some other meaningful work. He later found a document which he showed to Mr Wallace, which stated that he was required to obtain a CASA clearance from his DAME in September 2018 and he was therefore working without informing Airservices he was not permitted to. This had serious consequences. He told Mr Wallace that his DAME had seen the letter and it was agreed it was confusing. In the days after this, he claimed there was miscommunication between CASA and his DAME as to whether he was required to stop working, but it was never resolved.

[19] The applicant said he had a meeting with another DAME, Dr Manzoor Peerzada, who had two patients who had undergone scrambler therapy and the results were very encouraging. One patient had no pain at all after treatment.

[20] The applicant claimed that in early September 2019, Mr Wallace’s manager, Mr Blair Henderson, told him that he would not interfere in Mr Wallace’s decisions and if he did not like the way he did things, he could take it further.

[21] Turning then to the said crucial meeting of 26 September 2019 with Mr Wallace and Ms Aruliah, in which the applicant received the letter of 23 September 2019; see: [3] above. He said he questioned why this decision had been made, when he had not had the scrambler therapy treatment and it was assumed it would not work. He claimed Mr Wallace would not answer any of his questions as to why Airservices had not consulted his specialist, whether the matter was negotiable and what happens if the therapy worked. Mr Wallace kept saying it was a decision of ANS. As the applicant placed much reliance on the telling exchange with Ms Aruliah, I set it out in full below:

‘On 26/09/2019 Chris Wallace had organised a meeting with me. On the day I found out that Ginette Aruliah was there too and I had taken my support person Clare Evans. Chris handed me the letter dated 23/09/2019 and explained the letter to me including that I had the opportunity to apply for vacancies, but that that was done on merit and I would get no help from Airservices in obtaining another position with them.

I asked: "why are you making this decision now, before I had my treatment"?

Chris answered: " I don't make the decisions, ANS (Air Navigation Services) made that decision, I can't say anything about that". I then asked: why does Airservices make a decision based on the assumption that my scrambler therapy is not going to work? Chris answered: "I can't answer that either, that is up to ANS". I then asked: who made the decision in ANS, who can I talk to to discuss this? Chris said: "I can't tell you that, they won't discuss it with you". I also asked if Airservices were medical experts now and if they had consulted my specialist. Chris did not have a reply to that. I then asked: "is there anything negotiable?" Chris said: "NO". I then asked: "What if Airservices is wrong and I will get my licence back after my treatment, what are your intentions with me then?" Chris did not (want to) answer that question and hid behind ANS again.

I then said: "Let's assume that Airservices is right and my scrambler therapy is not successful, are you going to give me any support in trying to get another job within Airservices? Ginette answered: "I think we have given you enough support with your shoulder injury". I then said:" Airservices has not given me any support at all for my shoulder, I organised and paid for everything myself regarding my shoulder injury and rehabilitation and in the process even did Airservices a favour too by fixing my shoulder way quicker than normally would have been the case. All Airservices did is organise a physical assessment that resulted in my back injury. Now that you mentioned my shoulder injury anyway, can you now answer me why you organised that assessment?" Ginette then answered: "I am not answering any of your questions regarding that, you can go to Comcare with your questions". I then said: Comcare had nothing to do with that whole appointment, you were the one who organised all that and have never explained anything so far ,so why don't you want to answer my questions? Ginette said: "I told you, you have to go to Comcare with all your queries". I then asked: "why doesn't Airservices want to help me in finding a different position for me to do within the company?" Ginette answered: "Comcare will help you find a job somewhere else". I then said: "How is Comcare going to help me get a job somewhere else when all I have done the last twenty years is Air Traffic Control and Airservices has a monopoly?" Ginette then said: They have vocational services and help you find a job somewhere else" I then asked:" How am I going to compete for vacancies on merits within Airservices when I am at a clear disadvantage because of my injury and I can't apply for jobs that I am qualified for, because you just decided that my LOEQ was permanent?" Ginette answered: "Comcare will support you". I then said: "How is Comcare going to help me secure a job with Airservices if you don't even want to help me? And almost all vacancies are full time, so how am I even going to compete for those jobs?" Ginette then said: "Just apply for full time jobs and mention you can only work part time. We are an all inclusive company". I then said: "it doesn't sound like Airservices is willing to support me at all, it sounds like they have made their decision and nothing is negotiable. I then finally asked why others within the company were offered positions without applying for it and I was not. Neither of them wanted to answer that question. Chris then reiterated what it said in the letter that I had the opportunity to raise issues with Airservices in writing that I wanted to be considered, and wrapped the meeting up.’

The applicant said he received a text message on 3 October 2019 from Mr Wallace asking if he had anything further to put before he made a decision. He queried why Mr Wallace made the decision as he had been made redundant and left soon after.

[22] The applicant then set out in detail the meeting on 10 October 2019 with Mr Adrian Turner, at which he had two support persons, Ms Clare Evans and Mr Simon Thomas. He continued to ask questions about the therapy and assumptions as to its effectiveness, and query his unfair treatment. Mr Turner declined to answer any questions. Discussion then turned to vacancies in the Company. When Mr Turner said he would send him the list, he queried how this would assist, as he could look them up himself. The applicant said no one would explain themselves and offer him any assistance. They refused to answer questions and Mr Wallace had lied to him (about who made the decision).

[23] After the meeting, the applicant asked if he could take the matter further and why would he (Mr Turner) take it ‘up the chain’ when he was obliged to do what is right and not just follow Company orders. Mr Turner declined to respond to any of his protests. The applicant claimed that in early 2020, he asked three people if they would provide statements in support of his unfair dismissal application. They declined and said it was too risky to do so. He had also sought and been refused access to all his work emails.

[24] The applicant referred to a letter from his GP, Dr Evans (not a DAME) of 11 September 2019, which he claimed Airservices had relied on for their decision, yet the letter reads:

‘As regular general practitioner for the above-named, I offer the following report.

Mr. Uijland’s diagnosis is ‘persisting lumbar dysfunction’ as confirmed by Mr. Peter Dohrmann (neurosurgeon) in May 2018.

His clinical status is that he currently experiences paraesthesiae (sic) (sometimes described as pain or discomfort affecting both legs. This symptom is particularly obvious after maintaining a sitting position for extended periods of time, or physical activity, and at night. Nocturnal symptoms affect his sleep with Stefan describing reduction in both sleep duration and quality. This then has affected his daytime function including his alertness and concentration.

Progress has been somewhat limited with persistence of symptoms over many months. Symptoms were still present in mid August 2019 when he last consulted me.

Investigations to date including MRI lumbar spine (attached) and blood tests which have were

performed to exclude a connective tissue disorder.

Management has including (sic) the following measures: Exercise physiology. Bowen therapy, osteopathy, acupuncture, CBT/counselling, Yoga and Mindfulness. Medications used assist sleep include restavit and melatonin. Stefan is not keen on medications, particularly as they can have a residual affect (sic) the following day affecting his mental alertness.

His prognosis, when assessed by an independent neurosurgeon in May 2018 was considered good. This was on the basis of his previous lumbar injury (sustained in 2003) taking 3 years to settle down.

Mr. Uijland has been approved (by comcare) for 1O sessions of ‘scrambler therapy’ wiith local pain management specialist Dr. Brett Todhunter. I think that it would be advantageous for this to be conducted as soon as practicable with view to effective treatment of his symptoms and return to pre-injury duties.’

[25] The applicant claimed he had spoken to Dr Evans on several occasions to confirm his opinion on scrambler therapy. He understood Dr Evans considered it was an effective evidence-based treatment for neuropathic pain. The doctor would have told Airservices if he had been asked and strongly advised them to contact the scrambler specialist, Dr Brett Todhunter. He said the respondent never contacted his DAME, Dr Thomas, or Dr Todhunter.

Statement of Ms Clare Evans

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

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

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

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

Airservices’ statement evidence

Statement of Ms Fiona Mackee

[30] Ms Mackee’s statement dealt largely with the records of Airservices and documentation relevant to the applicant’s employment, his personnel file, leave history and other relevant records held by Airservices. Ms Mackee described the organisational structure of the respondent. Ms Mackee is the Northern Operations People Services Specialist. Her equivalent in the Southern region was Ms Aruliah, who has now left Airservices.

[31] In respect to the applicant’s non-work-related injury sustained in 2016, Ms Mackee observed he was absent on paid sick leave from 3 November 2016 – 18 September 2017. On 26 May 2017, when the applicant was in the Netherlands, Mr Bren-Clarke emailed the applicant seeking his return to Australia for medical treatment. In an email response of 26 May 2017 about how Airservices was intending to assist his rehabilitation, the applicant said, inter alia:

‘Hi Chris,

No worries, I will see when I can return the earliest seeing I have an additional medical emergency. I saw the dentist this week and I need to go to the dental Hospital this Tuesday to figure out what is exactly going on. Depending on the outcome of that I will let you know when I can return. If it is what I think it is I will have to fix that asap before flying.

Regarding the shoulder: I know I will be better off here for treatment and support but I am in pain, even waking up from the pain, and not enjoying myself in rehab, so I am not using up all my holidays when I am not on holidays. So I will return as soon as possible, since Airservices wants to assist me in rehabilitation in Australia. I hope they will assist me in the same way I have the support here, otherwise I will just continue to inflame my shoulder like I did in the last 4 months and it might take a long time to get the arm functional again. And the three physiotherapists I have seen in Albury definitely don't have the professional set up and the expertise that I have here, so I will have to try and find the best possible. Hopefully there is one in Albury too that works together with the physician but I doubt it. Here the physician actually had his own physiotherapist at the appointment but I did not have that in Albury nor Melbourne. However, in Albury there is a risk I keep on inflaming the shoulder due to my workload and lack of support, and physiotherapy is not going to do much at all if that happens. Hopefully it won't happen, but a frozen shoulder should heal by itself regardless between one and three years so at least it will come good in the end.

Just out of interest: Could you please advise what assistance Airservices can give in rehabilitation? I have never been in this situation, so I have no idea what they are able to assist with.

I doubt I will be able to return within two weeks, but I will let you know the outcome of the appointment and go from there. Meanwhile I will continue my rehab and learn more myself.

Kind Regards

Steven

ps I don't have a treating physician here or in Albury or Melbourne. I have seen them all once for a diagnosis, treatment is done by the physiotherapist. I will make sure my Dame and the Physician in Albury will get the notes. But it is way more important my new physiotherapist (that I will have to find) in Albury gets the notes from my physiotherapist here and hopefully the new physio has the expertise and the equipment to continue the same treatment.’

[32] On 26 July 2017, Airservices referred the applicant for a functional capacity assessment to determine his then physical abilities and any limitations. As the applicant remained overseas at the time, the assessment was not conducted until 18 September 2017. The Report found the applicant’s work suitability and recommended as follows:

‘WORK SUITABILITY

Based upon the medical advice and his performance during the assessment Mr Uijland would be suited to work of a moderately physical nature.

Mr Uijland also demonstrated ability to complete work within this capacity for 2 hours per day, 3 days per week.

Mr Uijland demonstrated that he is capable of performing work with the following physical demands:

•  Unlimited tolerance for sitting, standing, walking and stair climbing

•  Unlimited tolerance for squatting

•  Occasional bilateral lifting from floor to waist height up to 15.84 kilograms

•  Frequent (20 repetitions per hour) bilateral lifting from floor to waist height up to 11.88 kilograms

•  Occasional bilateral lifting between waist and waist height up to 15.84 kilograms

•  Frequent (20 repetitions per hour) bilateral lifting between waist and waist height up to 11.88 kilograms

•  Occasional bilateral carrying up to 14 kilograms

•  Occasional unilateral carrying up to 12 kilograms in the right hand

•  Occasional unilateral carrying up to 10.4 kilograms in the left hand

•  Unlimited keying and computer tasks.

RECOMMENDATIONS

I suggest the following recommendations to address functional deficits and barriers to function:

•  Graduated return to work program – starting at two hours per day, three days per week with a second staff member present. Progressing by one hour per day each week before introducing additional days.’

[33] On 23 September 2017, the applicant reported a back injury and pain in his legs which he believed was caused by the tasks he performed during the functional capacity assessment on 18 September 2017 (carrying a weighted bucket up and down numerous times). The applicant subsequently made a Comcare claim in respect to his back injury on 22 February 2018. The claim was accepted on 15 May 2018. He received normal weekly earnings of $3,690.61.

[34] On 4 January 2019, Comcare approved 10 standard consultations with Dr Brett Todhunter for scrambler treatment. On 29 October 2019, the applicant lodged a further Comcare claim for psychological injury; namely, Major Depressive Disorder. Comcare referred him to an IME with Dr Nicholas Ingram on 27 November 2019. On 13 January 2020, Comcare accepted the claim.

[35] In the meantime, on 13 September 2018, Dr David Fitzgerald wrote to the applicant as follows:

‘Dear Mr UIJLAND

Further Clearance Required

CASA has been notified by your DAME that you have been diagnosed with a low back condition.

In view of your medically significant condition the purpose of this letter it to remind you of your obligation not to do any act otherwise authorised by your flight crew licence while your medical condition impairs your ability to do so. Please also note that this is an objective rather than subjective assessment.

We also specifically draw to your attention regulation 67.270 of the Civil Aviation Safety Regulations 1998 (CASR) which makes it an offence to do any act under your flight crew licence while impaired due to a medically significant condition.

In the case of a Class 3 medical certificate holder who has a medically significant condition which impairs the holder’s ability to exercise the privileges of a flight crew licence for more than 30 days, it is necessary before resuming flying activities for the holder to obtain a certificate from a DAME confirming that the holder's normal ability is no longer impaired. (see CASR 67.270(4))

Accordingly, CASA expects that you will not exercise the privileges of your licence until you obtain a clearance certificate from your DAME or CASA. You should also provide copies of. all relevant reports to your DAME in order to assess your fitness to return to flying.

Please have your DAME supply a copy of your clearance certificate once your condition resolves, detailing:

•  current status including frequency and severity of pain

•  treatment in particular any analgesic requirements

•  functional effect of condition e.g. sitting, standing tolerance and mobility

Show this letter to your doctor to ensure the required information is provided. Please be aware that additional requests for information may arise based on the information that you provide.

Please arrange for all reports to be emailed to [email address provided] to avoid postal delays. Unfortunately CASA is unable to cover any costs that you may incur while accessing and providing this information.

For further information on AvMed's approach to medical certification of specific conditions (clinical practice guidelines), fact sheets, case studies and aeromedical guidance, please refer to the Aviation Medicine section of the CASA website [website address provided].

If you have any questions regarding your fitness to fly, please consult with your DAME or contact Aviation Medicine (email [email address provided] or phone [phone number provided]).

Wishing you a speedy recovery.

Yours sincerely,

Dr David Fitzgerald’

[36] On 23 September 2019, Airservices wrote to the applicant to advise of the proposed LOEQ; see: [3] above. The applicant responded on 1 and 4 October 2019. Airservices replied to the applicant as follows:

‘Dear Steven,

Loss of Essential Qualification

Airservices wrote to you on 23 September 2019 indicating a Loss of Essential Qualification initial action was taken, upon becoming aware the Civil Aviation Safety Authority (CASA) had notified you of the cancellation of your Class 3 Medical Certificate.

In this letter you were given the opportunity to provide any comments or explanation that you wished to be considered. I acknowledge receipt of your response dated 1 October 2019.

I have considered your response, together with the other information and evidence available.

Airservices has made a determination based on that information and evidence and advise that you are considered to have lost an essential qualification and are therefore ineligible to continue your duties as an operational Air Traffic Controller (ATC).

As previously advised in the letter dated 23 September 2019, you have the opportunity to seek suitable redeployment either within Airservices or externally by 17 January 2020. Should you not find suitable redeployment by that date, Airservices has determined that the most appropriate decision will be to terminate your employment in accordance with clause 56.9 (d) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017 - 2020 (the Enterprise Agreement).

Should your employment with Airservices Australia be terminated, as per clause 52 of the Enterprise Agreement, you will be paid in lieu of salary for the unexpired portion of any notice period. Additionally you will be paid your accrued and payable entitlements and any other outstanding remuneration up to and including your last day of employment.

Airservices understands that this may be a difficult time for you and as a consequence we would like to offer access to our Employee Assistance Program. Should you need any additional support you are able to access the free staff counselling service by calling [phone number provided]. During our previous meeting you were also advised on additional support available through the EAP provider and Work Cover.

Yours sincerely

Chris Wallace’

[37] Various medical reports were tendered including:

(a) Report dated 11 May 2018 by Dr Peter Dorhmann, Neurosurgeon;

(b) Report dated 18 September 2018 by Dr Graeme Doig, Orthopaedic Surgeon;

(c) Report dated 18 September 2018 by Dr Graeme Doig, Orthopaedic Surgeon; and

(d) Report dated 5 December 2019 by Dr Nichols Ingram, Psychiatrist.

[38] Ms Mackee provided a table of the applicant’s fitness for work periods, absences and associated medical certificates from 23 September 2017 – 30 January 2020 which are set out in full below:

[39] In respect to redeployment opportunities, Ms Mackee provided Airservices’ recruitment and selection process based on merit selection. As a result of a Rehabilitation Management Report of 12 November 2019, three positions were identified which the applicant could perform based on his education, employment, experience and current medical advice:

(a) ATC Instructor;

(b) Bank Consultant; and

(c) Sales Representative Business Services.

[40] Ms Mackee identified 46 vacancies which did not require a Class 3 MC during the period between 10 October 2019 to 18 January 2020. Airservices’ records disclose that the applicant applied for 3 positions from 10 October 2019:

‘(a) Rostering Officer

The application was submitted on 12 January 2020 and assessed by Sacha Bouma as unsuccessful on 28 January 2020 and as Mr Uijland did not meet the role competencies. A copy of the application submitted by Mr Uijland is attached and marked 'FM-29.'

(b) Movement Monitor and Administrative Support Officer

The application was submitted on 29 March 2020, after Mr Uijland's dismissal. This application was assessed by Katrina Kent and Mr Uijland was shortlisted for this role on 2 April 2020. A copy of this application is attached and marked 'FM-30.'

(c) Expression of Interest for Western Sydney ARFFS

This application was withdrawn on 27 March 2020.’

[41] Following the applicant’s termination on 30 January 2020, Airservices paid for and arranged for assistance in identifying a new role for him. Ms Mackee noted that as a participant in a Loss of License Insurance (‘LOLI’) Scheme, the applicant made a claim and was advised that the insurer required a letter from CASA, either cancelling his ATC license or providing a lapsing notice to the effect that if he did reapply, it would not be reissued. If he did so, he would be eligible to a payout of $74,346.50 (it is unclear if he has sought or provided this information from CASA).

[42] Ms Mackee included four complaints made by the applicant; two concerning Mr Sean Butler (People and Leadership Strategy Manager) on 17 and 18 January 2020. His email of 18 January 2020 reads:

‘Dear Sean,

As advised, Airservices has ignored to answer me for up to two years, meanwhile pressuring me instead of supporting me. Included in the answers they provided to me (dated 15/01/2020 and signed by you) is more harassment in the form of false fabrications, incorrect facts including about me. Therefore I feel I have been subject to bullying and harassment. Partly as a result of that I have been diagnosed with a major depressive disorder.

Kind Regards

Steven Uijland’

[43] Also included was a Code of Conduct (the ‘Code’) complaint made by Mr Wallace arising from the above communications. It records as follows:

‘The tone, language and content of emails and personal conversations is deemed inappropriate, elements of Code of Conduct considered:

1. Treat everybody with dignity, respect and courtesy

2. Comply with all policies and procedures relevant to your work, and with any lawful and reasonable direction given by an Airservices employee who has authority to give that direction

3. Behave in a way that upholds Airservices’ vision, mission and values and does not negatively impact the reputation of Airservices.

Language in emails and personal interaction is inappropriate, lacks respect and courtesy. There were also inappropriate language and implied threats to another Airservices employee.’

[44] Ms Mackee responded to the applicant’s claim that another employee, Ms Maranda Waddell, had quit and was ‘offered’ a job at the Airservices training college. In fact, Ms Waddell had been seconded to the College from 1 April 2019 to 31 March 2021. Her substantive role remains as an ATC in Albury. She has never resigned.

[45] It was Ms Mackee’s understanding that the applicant remains under a Comcare recovery plan, and is being paid at 75% of his normal weekly earnings. The Plan records at Claim Milestones:

‘Engagement in scrambler therapy which is the only treatment being recommended by his treater. Mr Uijland is currently not fit to participate in this treatment due to decline in mental health. Anticipating scrambler therapy will improve functional capacity sufficiently whereby they are able to commence increase in hours. However, there is no date provided by the clinic for the treatment

Treating doctor recommended remedial massage – At this stage it would be helpful to Mr Uijland to relieve pain and improve psychologically. Hence approved treatment until 16 February 2020.

Mr Uijland need (sic) psychological support to manage his current work adjustment and for pain management. Mr Uijland is due to be terminated from employment with Airservices by 29 January 2020. This is to be confirmed.

Mr Uijland currently suffering from psychological injury as a result of multiple factor related to his compensable injury and workplace stressor. EE currently waiting for appointment with psychologist to address these issues.

Mr Uijland’s reply to Ms Mackee

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

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

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

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

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

• foster a work environment that is supportive of injured employees;

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

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

• ensure that the employee gets appropriate medical assistance; and

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

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

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

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

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

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

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

Statement of Mr Chris Wallace

[53] Mr Wallace has been employed by Airservices since 1981. He is a qualified and licensed ATC. He described Airservices’ operations around Australia, including 28 control towers at regional and international airports. In March 2019, Mr Wallace’s supervising responsibility extended to Albury Tower. Although a reasonably busy tower, when he took over the Albury tower, he was forced to reduce hours due to insufficient staff to fill roster requirements. There were four active staff and the applicant was non-operational. He said there were difficulties in recruiting the ATCs willing to transfer to Albury, and significant lead in time to train new recruits.

[54] Mr Wallace said that in March 2019, the applicant had been certified unfit to perform ATC duties since January 2019. Between 13 February and 12 May 2019, the applicant had been certified to work in blocks of 45 minutes sitting and 60 minutes standing with a maximum of 180 minutes daily. On 10 January 2019, the applicant had emailed Mr Wallace’s predecessor, Mr Bren-Clarke, which reads inter alia:

‘Nobody knows if the condition will ever improve. I am in talks with Comcare about scrambler treatment and have to discuss it with the pain specialist practice, but they only open again next week. Scrambler treatment does not cure any condition, but it might reduce symptoms. I will have to do 10 treatments (in Wodonga). So in the short term I will have to be here in Albury (also have my daughter still here). In the longer term I have to see what work will be most suitable. First I have to see what the results of the scrambler treatment are and then have to see how Jong I can sit/stand for as that aggravates it due to the pressure on the back. Ideally right now would be something where I don't have to sit/stand for long periods and have the flexibility to get up at regular intervals, be able to stretch, lay down and/or exercise. At the moment I am working on the floor checking references.

I have not heard back from Ginette nor Chloe (rehabilitation officer) to see how best to

move forward.

For now I don't think you can do much more for me than you are already doing (which I appreciate). Hopefully the scrambler therapy will reduce symptoms, so I can get more quality of life back, but might still not get me fit for duty as the condition will remain.’

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

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

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

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

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

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

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

‘Hi Steven,

Thank you for meeting with me via phone today. To summarise:

•  I acknowledged there had been potential for confusion over wording in CASA letters and advice or lack thereof from DAME, including miscommunication or breakdown of communication between all partiers with regard to fitness for duty resulting ultimately in your operating without a valid class 3 medical. I also offered advice on how to ensure your operational status by making a phone call to Avmed if any doubt exists and requiring follow-up documentation from them to confirm any verbal assurances before commencing operational work.

•  Discussed Airservices communications protocols and Management structure and requested you cc me into any future discussions with People Services otherwise send all communications through me.

•  Discussed appropriate feedback

•  Thank you for the information regarding treatment timelines, my understanding now is that you are waitlisted for the treatment and a likely (not definite) commencement time was July 2019.

•  Confirmed you had spoken to CASA DAME to organise documentation regarding current medical status, you will follow up with DAME if not received in a timely manner.

•  Agreed that next step was the 2 May appointment with DAME to renew class 3 medical

•  Discussions around meaningful non-operational duties regarding presentations and tower tours for small school and/or pilot groups – to be discussed with UTS and Corporate Security (Chris)

•  Agreed I could contact Chloe Wallder to discuss your situation and to gain understanding from her perspective.

•  Discussed need to provide early advice to UTS (Simon) if you have any appointments arranged during work hours, preference was for the appointments to be made on days where you were not attending work.

I am trying to gain a greater understanding of the issues so thank you for your time, please keep me informed of any new developments

Regards

Chris’

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

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

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

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

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

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

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

‘Steven,

As I said before, apologies if I upset you on the day. To acknowledge your query below Blair Henderson is my Manager so I guess if you are in doubt then that is where you take it. Happy to discuss this with you face-to-face when I see you next if that helps but I won’t be answering your questions via an email.

Regards,

Chris’

[69] On 30 April 2019, CASA wrote to the applicant as follows:

‘Your recent medical indicates that you contiue (sic) to suffer from back pain such that your (sic) are unable to exercise the privileges of your medical certificate.

In view of your medically significant condition the purpose of this letter it to remind you of your obligation not to do any act otherwise authorised by your air traffic control licence while your medical condition impairs your ability to do so. Please also note that this is an objective rather than subjective assessment.

We also specifically draw to your attention regulation 67.270 of the Civil Aviation Safety Regulations 1998 (CASR) which makes it an offence to do any act under your air traffic control licence while impaired due to a medically significant condition.

In the case of a Class 3 medical certificate holder who has a medically significant condition which impairs the holder’s ability to exercise the privileges of an air traffic control licence for more than 30 days, it is necessary before resuming active controlling duties for the holder to obtain a certificate from a DAME confirming that the holder’s normal ability is no longer impaired. (see CASR 67.270(4))

Accordingly, CASA expects that you will not exercise the privileges of your licence until you obtain a clearance certificate from CASA. You should also provide copies of all relevant reports to your DAME in order to assess your fitness to return to controlling.’

NB: The correct licence was now made clear.

[70] Mr Wallace believed that this CASA letter did not provide sufficient information about what steps the applicant needed to take to regain his Class 3 MC. After receiving approval from the applicant to seek this information from his treating doctor and CASA, Mr Wallace had a conversation with Dr Peerzada who had assessed him on 24 April 2019 and had not renewed his Class 3 MC. Mr Wallace described their conversation as follows:

‘74. Dr Peerzada called me at night at around 7pm. The conversation lasted for approximately 45 minutes. Dr Peerzada did most of the talking. He told me that he had reviewed Dr Thomas' files, and all medical information that CASA had pertaining to Mr Uijland. Dr Peerzada told me that Mr Uijland's condition was believable.'

75. I asked Dr Peerzada whether he believed that Mr Uijland would be able to renew his Class 3, and if so, when. Dr Peerzada said that he hadn't been familiar with Scrambler therapy, but had done research on the treatment, and asked other colleagues. He said that the treatment was a new process, and relatively untried. He emphasised that from his research, it would not cure Mr Uijland, but might reduce his pain to a degree.

76. I asked Dr Peerzada how likely it was that the Scrambler therapy would work, and how long it would take to work. Dr Peerzada told me that he could not tell me what a likely outcome or timeframe would be, as the results vary from patient to patient.

77. I asked Dr Peerzada what would need to change for Mr Uijland's Class 3 to be renewed. Dr Peerzada told me he would need to see a significant change in Mr Uijland's current circumstances to the point where his pain could not cause him distraction. Dr Peerzada said he would need to see a report from a GP or pain specialist confirming the change in these circumstances as well. Dr Peerzada would then need to be send a report to CASA Avmed for final review and assessment before the Class 3 would be renewed. Dr Peerzada told me that his report would have to include any ongoing treatment or medication needs.’

[71] On 1 July 2019, Mr Wallace spoke to a woman at CASA and was advised that CASA would not renew the Class 3 MC until the DAME confirmed there had been a significant change to the applicant’s circumstances. The person he spoke to said that pain relief was not enough; there needed to be a ‘measurable, clear’ improvement in the condition causing the pain. Mr Wallace conveyed this information to Mr Henderson and Ms Aruliah.

[72] After pressing the applicant for information about the scrambler therapy, on 21 August 2019, the applicant advised as follows:

‘The scrambler therapy has been tentatively booked in for 30/09/2019. This will be confirmed closer to the date to make sure they can do ten treatments in a row.

Regards

Steven’

[73] On 11 September 2019, Ms Aruliah provided Mr Wallace with a copy of a report from the applicant’s GP, Dr Evans; see: [24] above.

[74] On 16 September 2019, Mr Henderson asked Mr Wallace for a summary of the applicant’s fitness for duty and his recommendations. Mr Wallace proposed three options:

‘1. Do nothing and see if the issue correct to the point where pre-injury duties can be resumed;

Comment: Given the size of Albury as a unit this would not be sustainable to guarantee the service nor is it in the best interests of the employee (lack of non-operational activities and tasks/boredom. There is no evidence to suggest a successful outcome.

2. Await the outcome of the Scrambler Therapy (scheduled for October) to see if Steven’s GP will be in a position to write the required report to DAME/CASA for renewal of class 3 medical.

Comment: There is the possibility of a positive outcome but no surety. Even if there was some success it seems unlikely that CASA will support a return to ATC control activities in any reduced capacity. I would expect the process to be long and difficult even if they do open the door to a renewal. It seems clear from CASA’s correspondence that Steven’s obligation is to provide evidence as to what has changed to make the pain disappear however none of the medical practitioners were able to state likelihood of success of the therapy, nor is it clear how long any pain reduction would be expected to last. As such this direction is high risk with no assurance of success.

3. In line with fitness for duty policy, commence LOEQ.

Comment: Given the likelihood for success this would seem to be the logical outcome. Steven, through a number of work and non-work related injuries has not been able to contribute to Albury ATC for a significantly long period. Albury is a small single-person Tower and I have not seen any evidence that Steven will be able to make the contribution required in future.’

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

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

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

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

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

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

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

‘Hi Chris,

I am not sure that Adrian will open up the communication line with me this Thursday after receiving your decision, but I can only hope you haven’t told him to continue your proposed dismissal process and ignore my needs and request for support. If you did then this email will be considered even more insensitive and inappropriate than it already is and it would have been much better had you made the effort to not include me in this.

Anyway, enjoy your retirement and you never know you might have sent me into retirement too, even though that was not in my request to handover to Adrian.

Kind Regards

Steven’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statement of Blair Henderson

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

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

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

•  fit for pre-injury duties on 191 days;

•  on sick leave for 318 days;

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

•  last performed operational duties on 6 January 2019.

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

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

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

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

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

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

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

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

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

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

•  a transfer ‘at level’ was not possible as a Class 3 MC was still necessary; and

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

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

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

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

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

Mr Henderson could not see how the applicant would work constructively with ANS leadership if he was to return.

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

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

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

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

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

Statement of Mr Simon Thomas

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

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

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

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

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

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

‘Dear Simon

I am writing to you to clarify Airservices Australia’s position in relation to Steven Uijland’s unfair dismissal claim.

You may have been given the wrong impression about your involvement in the proceeding as a witness. It is entirely a matter for you as to whether you want to be a witness in the proceeding – Airservices Australia does not have any view or opinion about whether you should do so. If you choose to do so, Airservices Australia will not take any action, disciplinary or otherwise. You are not required to liaise with Airservices Australia about the contents of any statement that you may wish to make.

Kind regards

Jo Motbey’

In reply

[116] The applicant claimed that Mr Thomas had initially agreed to provide a witness statement, but retracted it after Airservices told him not to cooperate with him. Airservices then changed its mind when it received his outline of argument and felt it was in their best interests for Mr Thomas to provide a statement. However, the applicant wanted Mr Thomas to prove Airservices made a false statement in its F3, but wrote his statement to avoid confrontation.

[117] The applicant said it was Mr Thomas who had actually handed the CASA letter of 13 September 2018 back to him. He did not ask for a copy and could have easily photocopied it. The applicant stated Mr Thomas had never told him he felt uncomfortable in attending the interview on 10 October 2019, or that he would not attend if Ms Evans attended. Further, he was not in a relationship with Ms Evans. He had asked her to attend, given her background in counselling.

[118] The applicant claimed the respondent’s witnesses were instructed to comment on how long he could stand or sit. He could easily sit for 45-60 minutes but chose not to, as it would cause referred pain in his legs.

[119] The applicant believed Mr Thomas’ comment about his ‘abrupt and gruff manner’ with pilots, was offensive. He had never raised his manner with him, or in his performance reports. He conceded his tone and approach might be different if a pilot was doing ‘potentially dangerous things’.

Statement of Mr Adrian Turner

[120] Mr Turner has been employed in various roles with Airservices since January 1998. He commenced his role as Line Leader for ANS operations, Southern – Hobart, Launceston and Albury airports on 10 October 2019, following his predecessor, Mr Wallace.

[121] Mr Turner attended the meeting on 10 October 2019 and after reading the letter, he explained to the applicant that he would need to secure a new role within Airservices by 17 January 2020, or his employment would be terminated. Mr Turner recalled the applicant asking many questions related to historical events prior to the commencement of the LOEQ process.

[122] Mr Turner recalled the applicant was attempting to get him to express an opinion, a position or feeling, with ‘quite incendiary questions’. He declined to do so, as his opinions were not relevant and although having been briefed, he was not involved in any of these earlier events. After about 40 minutes of determined questioning, and with the applicant becoming quite upset and firing multiple questions without getting a response, Mr Turner closed the meeting and invited the applicant to discuss matters informally. For another 40 minutes, with Mr Thomas absent, the applicant continued to describe historic events at length, with little input from him.

[123] Mr Turner denied a number of comments attributed to him by the applicant as follows:

‘(a) say ‘[y]es, I take full responsibility in my new role as your manager.’ I told Mr Uijland that Mr Wallace was still acting as Mr Uijland's manager at that point in time, but in my new role I expected I would take greater responsibility as Mr Wallace's retirement date approached;

(b) decline to answer Mr Uijland's query ‘[d]id you or did you not make a decision based on the assumption that the scrambler therapy was not going to work.’ I answered this question with words to the effect that 'the decision to initiate the LOEQ process was based on CASA's advice that you class 3 medical had been cancelled’;

(c) decline to answer Mr Uijland's query ‘[d]id the company tell you not to say a word.’ I answered this question with words to the effect that ‘I was not instructed to refrain from answering your questions’;

(d) say ‘[e]veryone in ANS discussed it and all agreed on the decision together.’ I did say words to the effect that ‘the decision to initiate the LOEQ was a decision that involved multiple individuals from various sections of Airservices. The decision should be viewed as a decision made by Airservices and not one individual’;

(e) say that Mr Uijland was welcome to contact the CEO, Jason Harfield, if he wished to do so, or that any protocol against contacting the CEO ‘was not written anywhere’. When Mr Uijland asked about any protocol on contacting the CEO my only response was ‘I am not aware of a written protocol prohibiting correspondence with the CEO’;

(f) say that I didn't want to take Mr Uijland ‘plight higher up the chain.’ I recall Mr Uijland asking me, as his manager, to advocate on his behalf for more support, and that my response was 'the LOEQ process will provide you with appropriate support;

(g) say words to the effect that ‘the only support I am willing to give is to send job vacancies’. I emphasised that Mr Uijland would be provided with as much support as possible during the LOEQ process.’

[124] From 18 October 2019 – 17 January 2020, Mr Turner sent the applicant a list of vacancies on 9 occasions. For about a month (15 November – 18 December 2019), Mr Turner agreed to the applicant’s request not to do so, but then changed his mind.

[125] Mr Turner received the two medical certificates from the applicant’s GP, Dr Evans, stating he was unfit for work from 15 October 2019 – 16 February 2020. He had understood the applicant did not return to work after 10 October 2019. Mr Turner said that on 18 November 2019, the applicant requested his end date be extended to 20 January 2020 for superannuation purposes. This was agreed to on the same day. On 17 December 2019, the applicant asked to have his end date be moved to 20 March 2020. Mr Turner informed the applicant that unless he was able to find suitable employment or was participating in an internal recruitment process, his cessation date would remain (20 January 2020).

[126] Mr Turner was told by Ms Aruliah that the applicant had made an application for a position on 12 January 2020, which was currently under assessment. The applicant’s response on 16 January 2020 was as follows:

‘Hi Adrian,

It’s very disappointing (and sad) to see that you still have no understanding about the seriousness of this case. The one intelligent thing you said during our meeting is that you will try and improve to do better each and every day. I sincerely hope for you that you do have the ability and capacity to improve as so far you have shown no spine, no integrity, no courage and no understanding. You have absolutely done nothing for me, not stood up for me once and have done nothing to support me. Even this last email is very insensitive again, but I am sure you will fail to notice why. This might help you though: partly thanks to you too I have been diagnosed with a major depressive disorder, so I hope you are not very proud of that achievement and will be able to see how to be able to do better in the future. Probably all too late for me, but hopefully you are mature enough to reflect on your own functioning and become a manager who actually have the strength and the courage to speak up when warranted, instead of acting like a scared mouse like during our meeting back in October and not willing to answer any questions. When I asked you why you decline to answer my question(s), after a little pause and considering the consequences you even answered that with "I decline to answer that too". Do you realise that almost everyone bursts out laughing when I tell them that? And then they quickly apologise for laughing and say how sorry they feel for me and how frustrating, stressful and annoying that must be. The people laughing include most of the professionals I talk to! Perhaps that might put things into context for you, if not then I am afraid your intent to do better each day will just be that, an intent and nothing more.

When I have some more answers from different entities, including the EGB, fair work commission (sic), my lawyer and eventually from you, I might get back to you about this email. Ps I can't read the attachment, so can you forward that per post as agreed with Chris that you were cc in (see emails on 18 and 19/11/2019), but you probably couldn't care to take note of that too.

Regards

Steven’

[127] Mr Turner advised the applicant on 23 January 2020 that his proposed termination date would be postponed until the outcome of the recruitment process for the position he had applied for.

[128] Apparently, the applicant was mistakenly deleted from Airservices’ systems and after the applicant complained, Mr Turner explained that it was an error due to the changed departure dates. The applicant responded as follows:

‘Hi Adrian,

I see you didn't answer the most important question yet again. Can you please advise why you are so afraid to answer that question? And finally be a man and answer the question. It's already bad enough that you as a manager couldn't explain any of Airservices' decisions, but then not even have the decency and courage to explain why you decline to answer anything really shows that Airservices has an agenda they don't want to reveal. So just confirm for the record that you refuse to answer the question (why you decline to answer questions), so I can use that in my unfair dismissal case too. Non answering will mean refusal as well and this email will be the evidence. You do realise you are not fit to be a manager if you can't answer very reasonable questions that should be answered in these circumstances. Anyway, you have till the end of today to redeem yourself.

And as for forwarding vacancies, I didn't expect anything else as Airservices is not showing any support in any way and neither are you still. Don't worry about reactivating my account, it's not limited, it had been deleted. Too late now and just another frustration and annoyance on top of anything else. Just shows once again that Airservices really doesn't care at all and had only one thing in mind from the outset. My psychologist confirmed all that too and thinks it's absolutely appalling how all of you conduct yourself after reading the correspondence, including the lies.

Regards

Steven’

[129] That day, Ms Aruliah advised that the applicant’s application for the position was unsuccessful. Mr Turner then advised the applicant his employment would end on 30 January 2020. Mr Turner had received reports from Ms Chloe Wallder, Rehabilitation Manager, of assistance provided to the applicant in relation to seeking another job.

[130] Mr Turner set out 7 emails from the applicant from 18 December 2019 – 28 January 2020 in which he challenged his integrity and competence as a manager and those of other Airservices staff and he had inappropriately CC’ed the CEO. The tone and language of these emails is illustrated by the two emails above.

[131] Mr Turner found it difficult to address the applicant’s queries or respond objectively, when he would personally attack the recipients of his emails. This disrespectful conduct called into question the applicant’s professional capacity and his suitability for employment in Airservices. Mr Turner had never experienced communications of this kind at any time. Although he believed this breached the Code, he opted not to initiate disciplinary action, or counsel him, as he assumed it may have reflected the stress he was under in the LOEQ process.

[132] Nevertheless, Mr Turner’s evidence was that he would not be comfortable with the applicant working with other Airservices employees, unless these behaviours were addressed through a disciplinary process. The applicant’s conduct would mean he was unsuitable to work unsupervised with other staff and he would be an ‘organisational liability’, so no further measures were taken.

In reply

[133] The applicant said he felt sorry for Mr Turner to have come in as his Manager, when Mr Wallace had made no attempt to answer his queries. He claimed that he saw in Mr Turner’s face that he wanted to say more, but he was afraid to upset his employer. Mr Turner too, would not answer his questions. This demonstrated Airservices ‘had no idea’.

[134] The applicant’s recreation of events was that Mr Wallace and Mr Henderson rushed through his dismissal, refused to answer any questions and then appointed a new manager to deal with it. He claimed that Mr Turner did not have the courage to take his issues up to higher management.

[135] The applicant accepted his emails became more and more direct because of Airservices’ actions and non-actions and his raised stress levels. Airservices took away his livelihood through their error and negligence and then claim that they did everything to support him, when all Mr Turner did was send him vacancy lists. Airservices’ approach to his LOLI claim summed up management’s non-cooperation. He was again very critical of Mr Wallace. At least Mr Turner recognised his heightened stress levels.

Oral evidence of the applicant

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

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

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

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

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

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

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

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

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

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

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

•  ATC instructor;

•  Bank consultant; and

•  Sales representative,

of which the first option had been agreed to by Dr Evans. He claimed he could not apply for the Instructor position because it required an ATC license. The applicant agreed he did not apply for any role until 12 January 2020 – 8 days before his employment was due to end.

[147] The applicant denied that in an email to Mr Wallace on 18 November 2019, he was proceeding on the basis that it was a foregone conclusion that his employment would be terminated. Further, he denied not making any real effort to seek redeployment or that he had not put much effort into the only position he had applied for.

[148] The applicant accepted that Airservices arranged for him to meet with an employment consultant with the rehabilitation management service and he had a number of meetings with that person in January 2020. He had also contacted Airservices’ Employee Assistance Program (‘EAP’).

[149] The applicant denied he had a grudge against Airservices or that he spent a year disparaging Airservices and its managers. He believed, and continues to believe, that at least half the managers he had been involved with are incompetent, lack managerial and professional skills and do not care about their jobs (particularly Mr Wallace). He believed there was a toxic culture in ANS and he had made known his views on a number of occasions.

[150] When shown comments about Mr Turner such as:

‘The one intelligent thing that Adrian said during your meeting is that you’ll try to improve and do better each day.’

‘So far he’d shown no spine, no integrity, no courage and no understanding.’

‘He's done absolutely nothing for you, done nothing to support you.’

‘He's acting like a scared mouse during our meeting’,

the applicant firstly said he believed it was appropriate at the time because of his mental issues, but then acknowledged that if it happened again, he might have used ‘different’ words.

[151] Further, on 16 January 2020, he emailed Mr Turner and CC’ed Mr Butler, but his evidence disclosed he had deleted the first paragraph which read:

‘It’s very disappointing (and sad) to see that you still have no understanding about the seriousness of this case. The one intelligent thing you said during our meeting is that you will try and improve to do better each and every day. I sincerely hope for you that you do have the ability and capacity to improve as so far you have shown no spine, no integrity, no courage and no understanding. You have absolutely done nothing for me, not stood up for me once and have done nothing to support me. Even this last email is very insensitive again, but I am sure you will fail to notice why. This might help you though: partly thanks to you too I have been diagnosed with a major depressive disorder, so I hope you are not very proud of that achievement and will be able to see how to be able to do better in the future. Probably all too late for me, but hopefully you are mature enough to reflect on your own functioning and become a manager who actually have the strength and the courage to speak up when warranted, instead of acting like a scared mouse like during our meeting back in October and not willing to answer any questions. When I asked you why you decline to answer my question(s), after a little pause and considering the consequences you even answered that with "I decline to answer that too". Do you realise that almost everyone bursts out laughing when I tell them that? And then they quickly apologise for laughing and say how sorry they feel for me and how frustrating, stressful and annoying that must be. The people laughing include most of the professionals I talk to! Perhaps that might put things into context for you, if not then I am afraid your intent to do better each day will just be that, an intent and nothing more.’

He denied attempting to mislead the Commission by deleting this from his evidence.

[152] Again, in an email in a similar vein to Mr Turner, CC’ed to the CEO, he claimed he was agitated at the time, but has since ‘calmed down a bit now’.

[153] In a further email to Mr Turner; see: [128] above, he denied calling Mr Turner a liar but he did say he was not fit to be a manager. He later emailed the CEO to get him to intervene. He expected answers, an official apology and for the CEO to hold ‘persons responsible who feed you the wrong information’. He explained that he was very stressed and at the end of his tether. He added ‘in my culture, we write like that’. He sent another email to the CEO, accusing managers of incompetence and fabricating evidence. He claimed Mr Butler had admitted something was untrue and had apologised. He now claimed he never expected a formal apology from the CEO. The applicant believed that all of these communications were reasonable.

[154] The applicant was then asked about emails sent to Ms Easdale, Airservices’ solicitor, in which he had said:

‘I found out that you are trying to manipulate the truth and even hiding the truth. You say that I can't talk to Airservices witnesses. I've worked out that you're only showing the Commission part of the evidence, in the hope that the full truth doesn't come to light. You're being selective about the evidence … You have an issue by being caught out all the time.’

He denied accusing Ms Easdale of misleading the Commission. Rather, he said she kept changing her position in order to withhold information. He believed everyone involved in this matter were withholding information, but denied he believed this to be a conspiracy against him.

[155] The applicant was asked about another email to the CEO on 1 June 2020 (at a time he now says he was less agitated and had calmed down). He had said:

‘I’m sure they'll come up with some poor excuse for Blair in court. However the fact remains that he's either deliberately lying, he was using an illicit substance at the time, or he just clearly doesn't have the brain to process things very well.’

[156] The applicant denied saying again that Airservices’ lawyers were interfering with the evidence. When asked about the above quote, he said:

‘Mr Fuller: So if Mr Henderson has a different recollection from you, he’s either lying, on drugs or an idiot, is that what you're saying?

Mr Uijland: No, I didn't say he was an idiot. Where does it say that?

Mr Fuller: “He doesn’t have the brain to process things very well”, what does that mean?

Mr Uijland: That means that he - well, in my opinion, if you think there’s a big inflated ball somewhere that is nowhere to be seen, then obviously his brain is something not processing very well.’

The applicant believed if people are lying in documents for the court, he was obliged to point this out to the CEO. Two days later, he emailed the CEO again and had said:

‘So out of touch with the reality. Did you, the CEO, really have no clue why anyone hardly dared to say anything?’

‘Holding you accountable for the mismanagement and toxic culture as there was no leadership.’

‘In any other private company the CEO would be gone by now.’

[157] When asked if he had made an application for a Class 3 MC on 28 April 2020, the applicant denied he had done so, despite a letter from CASA of 6 May 2020 referring to its review of his application dated 28 April 2020. He claimed it was a reference to 28 April 2019. He explained that this was related to his LOLI claim in April 2019.

[158] Counsel for Airservices pointed out the recent dates of May and March 2020 as recent reports having been considered by CASA in May 2020. Dr Todhunter’s letter had said on 4 May 2020:

‘There's been no progress made with ongoing physiotherapy and scrambler therapy treatment for his lower back pain.’

‘Unfortunately no treatment, including physiotherapy, psychological counselling and scrambler therapy has reduced his pain to a level that he can function, as required, to fulfil his job description as an air traffic controller.’

‘In my opinion his pain will continue indefinitely as there can be no expectation of any spontaneous improvement as any healing process occurs within the first four months following the onset of pain and we're now well past that time period.’

‘No medical treatment that can cure him and I don't believe that there is any medical treatment that would improve him to the extent that he could function as an air traffic controller.’

‘At this stage there is no follow-up plan as there is no other treatment I can offer him in terms of treatment for his pain that is likely to improve the situation.’

This report and Dr Thomas’ report was what CASA was referring to. The applicant added that on 17 June 2020, CASA had said the same thing – it considered he had lost his license due to the failure to renew the Class 3 MC. To this day, he had not received his LOLI.

[159] The applicant agreed that based on the opinions of Dr Todhunter and Dr Thomas that nothing further can be done for him to return to work as an ATC so long as he has ‘a depressive disorder’. This has also prevented him from looking for alternative work. He has a further review in July 2020. The applicant believed that his psychological position would improve, if he was returned to work as a result of also going through these legal proceedings.

Oral evidence of Airservices’ witnesses

Ms Mackee

[160] In cross examination, Ms Mackee agreed she was familiar with the terms of the Agreement. She believed that Airservices looks after its employees as much as possible when dealing with an employee’s welfare, arising from either a non-work-related or work-related injury. However, she had not specifically been involved in managing the applicant’s case. She had merely reviewed his files in preparing her statement based on documents therein.

[161] Ms Mackee said she did not know why Airservices did not wait for the applicant’s scrambler therapy to be completed. Further, Ms Mackee did not have any information about Ms Waddell being allegedly not recruited on merit as an Instructor.

Mr Chris Wallace

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

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

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

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

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

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

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

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

Ms Ginette Aruliah (under summons to attend)

[170] Ms Aruliah said that her involvement as the applicant’s case manager was to provide all information to the applicant’s Line Managers. Her role at the meeting on 26 September 2019 was to support the Line Manager. As Ms Aruliah no longer has access to Airservices’ emails, she could not recall, and did not know, who had received information from Dr Todhunter’s office about the effectiveness of scrambler therapy. She did know that Mr Wallace was aware that the applicant was a participant in the scrambler therapy.

[171] Ms Aruliah had said that the rehabilitation vocational service would help the applicant find another job with a different employer. In addition, Airservices provided EAP assistance and internal vacancy lists were provided and outplacement services were offered through RiseSmart. In addition, the services of Rehabilitation Management provided a labour market analysis in addition to modules around JobSeeker.

[172] Ms Aruliah confirmed that Airservices’ roles must be available before a person can apply, and that selection is based on merit. Ms Aruliah could not recall saying in the meeting on 26 September 2019 that ‘I think we’ve helped enough with your shoulder’. She did recall the applicant applying for a Rostering Officer role on 12 January 2020.

Mr Blair Henderson

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

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

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

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

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

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

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

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

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

Mr Adrian Turner

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

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

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

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

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

Mr Simon Thomas

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

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

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

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

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

SUBMISSIONS

For the applicant

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

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

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

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

(a) that his LOEQ was permanent; and

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

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

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

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

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

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

For the respondent

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

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

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

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

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

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

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

•  no one knows if the condition improves;

•  there was a lengthy waiting list;

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

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

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

Mr Fuller observed that these views were consistent with all the evidence about scrambler therapy, as to its uncertainty. Moreover, Dr Peerzada had also stressed that the applicant should be pain free and ‘psychologically sound’.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘… generally reinstatement of a materially incapacitated employee will not be appropriate where:

•  further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;

•  reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or

•  reinstatement would impose an unreasonable burden on other employees’ (footnote omitted)

[223] Lastly, Mr Fuller submitted:

‘… I would just highlight again the disparaging correspondence that has continued since the dismissal, and that includes accusations against the CEO of Airservices, who continues to be the CEO; accusations that have continued even today against my instructing solicitors; accusations about Mr Henderson deliberately lying, or being on drugs if he’s not, because that's the only other way that he could disagree with Mr Uijland; and accusations of there being a toxic culture in the organisation to which Mr Uijland says he wants to be reinstated. In my submission, Airservices cannot have trust and confidence in Mr Uijland as someone capable of working as an effective member of a team that includes this management hierarchy, in circumstances where Mr Uijland appears to have no respect for these individuals or for the organisation generally …’

[224] In reply, the applicant insisted that Cl 55 does apply, and one only gets to Cl 56 after the process in Cl 55 is completed. He continued to maintain that his personal DAME (not Dr Peerzada), his GP and Dr Todhunter had all recommended scrambler therapy, in order for him to return to pre-injury duties.

[225] The applicant rejected Mr Wallace’s evidence about his contact with a woman at CASA (who he did not name) and he could not say if she was a medical specialist. In any event, he only needed to reduce his pain to acceptable levels, which would have happened after four weeks or it would not; there was no reason why Airservices could not have waited for just another month.

[226] The applicant claimed he did not know what further information he was required to provide to Mr Wallace and Mr Henderson, and they would not answer any of his questions. The applicant said that Dr Todhunter’s letter of 6 May 2020 was intended to satisfy CASA his license should be cancelled in order for him to receive the LOLI. He was put in this position because Airservices had caused both his back injury and psychological injury.

[227] The applicant denied saying he was a victim of a ‘conspiracy’. He believed the LOEQ process was rushed because both Mr Wallace and Mr Henderson were leaving in October 2019 and the whole process would have to have started again.

[228] In response to the disparaging communication to the CEO and other managers, the applicant denied he held a grudge – it was how his culture works in his home country of the Netherlands, where people are very direct, hold people to account and ask direct questions, expecting answers. He agreed ‘it was not the nicest language’, but he was so frustrated and stressed. In any event, he was happy to apologise. All he wanted was meaningful work and thought he had been close, when he was shortlisted for a role, but then given no feedback as to why he did not get in, or why he was not interviewed.

CONSIDERATION

Statutory provisions and relevant authorities

[229] An unfair dismissal is defined at s 385 of the Act. That section is to be read in conjunction with s 396. The sections read:

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(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.

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[230] Specifically, I find as follows:

(a) the applicant was dismissed at the initiative of the employer on 30 January 2020;

(b) the applicant’s unfair dismissal application was lodged within the 21-day time limit set out at s 394(b) of the Act;

(c) the applicant completed the minimum employment period set out at ss 382 and 383, being over 18 years; and

(d) the applicant’s employment was governed by an enterprise agreement; see: [1] above (s 382(b)(ii)).

[231] It follows that the only matter required to be determined in this case is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, pursuant to s 385(b) of the Act. It is to that question I now turn.

Meaning of ‘harsh, unjust and unreasonable’

[232] The matters required to be taken into account by the Commission, under s 387 of the Act are:

(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.

Whether there was a valid reason for the applicant’s dismissal (s 387 (a))

[233] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[234] There are a number of Full Bench decisions which have considered whether an employee’s dismissal, within the meaning of s 387 of the Act, based on an inability to perform the inherent requirements of the job, due to a medical condition or injury, constitutes a valid reason for dismissal; see: Ermilov v Qantas Flight Catering Pty Ltd PR956925; Boag; Ambulance Victoria v Ms V [2012] FWAFB 1616; Birdi v Rail Corporation New South Wales t/a RailCorp NSW [2012] FWAFB 1404; Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075 (‘Jetstar’); Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218; TNT Australia Pty Ltd t/a TNT v Martin [2017] FWCFB 1510; and CSL Limited t/a CSL Behring v Papaioannou [2018] FWCFB 1005 (‘CSL Behring’). The decision in Boag is the one most frequently cited, and I also intend to do so. At [21]-[27], the Full Bench said:

‘[21] The appellant further argued that the Commissioner placed particular reliance upon the view of Dr McDonough that “a slow, partial return to some duties may be possible”, and the view of Associate Professor Mendelson that she should “resume duties on a gradual basis following an appropriate period of training and under a period of supervision”. It argued that the Commissioner’s reasoning was essentially that the medical assessments provided optimism that the respondent may be capable of working in a modified position, rather than the actual job which she had previously held.

[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.
[23] In X v Commonwealth  the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU  a Full Bench noted:

“[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:

"A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with." [ibid. at 295]”

[25] In Qantas Airways Ltd v Christie  Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.” Her Honour noted:

“[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court, is to overlook its international character.
[34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.”

[26] Gaudron J also noted that the fact that a requirement is stipulated in an employment contract does not, of itself, direct an answer one way or another as to the question whether it is an inherent requirement of the particular position in question.
[27] McHugh J drew attention to the distinction between an employee’s job and their position: 

“[72] In my opinion, however, there is a distinction between a person's job and a person's position and that distinction may sometimes prevent the Convention jurisprudence on Art 1(2) from being applicable. The term "a particular job" in Art 1(2) of the Discrimination Convention has been construed by reference to the preparatory work and the text of the Convention to mean "a specific and definable job, function or task" and its "inherent requirements" those "required by the characteristics of the particular job"[66]. A person's job is therefore primarily concerned with the tasks that he or she is required to perform. No doubt the term "job" is often used to signify a paid position of employment. But in the context of determining the requirements of a job, it seems more natural to regard the term as referring to particular work or tasks that the person must perform. A person's position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status. What is required of a person's position, however, will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position.
[73] In most cases, the distinction between the requirements of a position and the requirements of a job will be of little significance. But it is a mistake to think that there is no distinction between "a particular position" and "a particular job". In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the "job" of President if that term refers to the work done by the President.”’

[235] Importantly, the Full Bench decision in Jetstar makes clear that the decision of the employer to dismiss an employee on capacity grounds, is to be assessed on the material available to the employer ‘at the time of dismissal’ and not some uncertain, indefinite, speculative time in the future. So much so is clear from the following passage in Jetstar at [55]:

‘However, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. Thus in Dundovich v P&O Ports - a case which concerned the dismissal of an injured employee who was dismissed because, for the foreseeable future, he would not be able to perform all the duties of his position - a Full Bench of the Commission found that it was necessary to take into account a court judgment that the employee’s injury was work related, even though that judgment post-dated the dismissal, because the judgment was declaratory of facts and legal rights in existence at the time of dismissal.’(my emphasis)

See also: CSL Behring at [50].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

•  rejected three of the four jobs Mr Wallace had suggested;

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

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

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

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

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

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

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

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

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

Further matters to be taken into account under s 387 of the Act

Whether the employee was notified of the reason for his dismissal – s 387(b)

[245] The applicant was notified on 26 September 2019 that Airservices was considering whether to commence the LOEQ process and that one of the consequences of doing so, could be termination of employment. On 10 October 2019, the applicant was advised that he had lost an essential qualification, and therefore unable to continue as an operational ATC. He was advised he had until 17 January 2020 (later revised to 29 January 2020) to obtain an alternative position or his employment may be terminated. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[246] On 26 September 2019, the applicant was advised that his employment was at risk and he was given an opportunity to respond, which he did in two emails. Mr Wallace gave him a further opportunity to respond by 3 October 2019, which he declined. For the next few months, the applicant made frequent submissions and requests about the redeployment process. In effect, the applicant could have put any response he wished (which he did) at any time over the four-month period.

[247] Lest there be any doubt, it must be stressed that the obligation on an employer is to provide an employee with an opportunity to respond to a proposed termination of employment and genuinely consider the employee’s response. To be clear, the employer’s obligation does not require agreeing to what the employee says in any response. Given the applicant’s responses and the time he had to do so, I accept that this criterion was more than satisfied. This factor tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[248] At the two relevant meetings with management – 26 September 2019 and 10 October 2019 – the applicant attended with his support person, Ms Evans. This is a neutral factor in this case.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[249] This criterion is not relevant in this case.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and 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 – s 387(g)

[250] Airservices is a relatively large employer with specialist HR resources. I am satisfied that the applicant was afforded procedural fairness, as reflected in a suite of relevant and detailed policies and procedures, including under the terms of the Agreement. The applicant maintains the respondent had been in breach of the Agreement, by not following Cl 55. Putting aside that the Commission has no power to determine claims of breaches of an enterprise agreement (this being a matter for the Courts), it seems inescapable that the crux of the applicant’s circumstances, being the loss of an essential qualification as an ATC, was entirely intended and comprehended by Cl 56 – Loss of Essential Qualification.

[251] In any event, it is somewhat late in the day to claim breaches of the Agreement when the applicant was well aware from 26 September 2019 that this was the Clause and its process Airservices was intending to follow. This was confirmed on numerous subsequent occasions. Moreover, the applicant participated in the process, albeit reluctantly and haphazardly, including by requesting extensions of time for four months, without taking any steps to challenge the validity of Airservices’ approach, particularly when it seems after 10 October 2019, he was ‘speaking to lawyers’.

[252] Lastly, as both Cls 55 and 56 can result in an employee’s termination of employment, it seems a reasonable assumption that even if Cl 55 had been used, and its processes followed, that the outcome for the applicant would not have been any different.

Any other matters the Commission considers relevant – s 387(h)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

[268] For the abovementioned reasons and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied that the applicant’s dismissal on 30 January 2020, was not ‘harsh, unjust or unreasonable’. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[269] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[270] Accordingly, application U2020/1256 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself.

Mr D Fuller of Counsel, instructed by Ms K Easdale and Ms C Paton, Solicitors, MinterEllison, and Ms J Motbey, General Counsel, for the respondent.

Hearing details:

2020.

Sydney (via Telephone):

19 June

25 June.

Printed by authority of the Commonwealth Government Printer

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