Marazzato, Nadia v Qantas Airways Ltd
[1997] FCA 974
•19 SEPTEMBER 1997
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VI 1174 of 1997 |
BETWEEN: | NADIA MARAZZATO | |
AND: | QANTAS AIRWAYS LIMITED | |
JUDGE: | RYAN J | |
DATE OF ORDER: | 19 SEPTEMBER 1997 | |
WHERE MADE: | MELBOURNE | |
MINUTES OF ORDER
THE COURT ORDERS:
That the orders made by Judicial Registrar Parkinson on 9 July 1997 be affirmed.
That the motion on notice dated 18 July 1997 be otherwise dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VI 1174 of 1997 |
BETWEEN: | NADIA MARAZZATO |
AND: | QANTAS AIRWAYS LIMITED |
JUDGE: | RYAN J |
DATE: | 19 SEPTEMBER 1997 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
This is an application for review of a decision of a Judicial Registrar on 9 July 1997 to order, amongst other things, the reinstatement of the applicant, Ms Marazzato, to the position of Fight Attendant in which she had been employed by the respondent (“Qantas”) immediately before the termination of her employment. The review was conducted by reference to the evidence before the Judicial Registrar as recorded in the transcript and contained in documentary exhibits and an affidavit by Susan Gabrielle Ruth Varley who has, since February 1996, been the Cabin Crew Manager - Melbourne for Qantas. That evidence was supplemented, for the purposes of the review, by affidavits, all sworn 15 August 1997, by Dermot John Moody, the Rehabilitation Co-ordinator for Qantas, by Julie Wills, a Cabin Crew Duty Manager for Qantas, who, between 1990 and 1993, had acted as Rehabilitation Case Manager for Cabin Crew and by Dr Eric Donaldson, the General Manager, Aviation Health Services for Qantas. As well, an affidavit by the applicant herself was sworn and filed on 18 August 1997. The latter affidavit was principally concerned with correspondence between solicitors for the parties and payments which Ms Marazzato claimed to be entitled to receive by way of giving effect to the Judicial Registrar’s order.
None of the deponents to the affidavits to which I have just referred was cross-examined on the hearing of the review. However, I am relieved from the need to evaluate the credit of any witness because the primary facts found by the Judicial Registrar or disclosed by the subsequent evidence are not significantly in dispute. The issues between the parties turn essentially on the inferences to be drawn from those primary facts and the application of the relevant statutory provisions to the facts, including the inferences which the Court is persuaded to draw.
The applicant commenced employment with Qantas as a Domestic Flight Attendant in April 1980. She was engaged in flying duties until October 1990 when she sustained a severe back injury in the course of a rough landing. She was incapacitated from work for more than three years. In April 1991 she was referred by Qantas to Occupational Rehabilitation Service Pty Ltd (“ORS”) which arranged successive pain management programs and, in November 1991, instituted a trial return to work under which Ms Marazzato was to work as a Flight Deck Lounge Attendant for two months. However, the applicant abandoned that work after less than two weeks, indicating that she was unwell and “not ready to return to work”. Thereafter, the applicant underwent physiotherapy and additional medical treatment under the auspices of ORS which, in April 1992, enrolled her in its back education program which extended to training in manual handling and techniques designed to prevent recurrences of back pain or reduce their severity.
Between July 1993 and February 1994, Ms Marazzato’s rehabilitation treatment was provided at the Austin and Repatriation Medical Centre. In January 1994, she was referred to Olympia Private Hospital for an intensive program of physiotherapy, hydrotherapy, occupational therapy, swimming, gymnasium work and a work-conditioning regime. In March 1994, a new rehabilitation provider, Work Solutions Group Pty Ltd, was engaged and undertook a work-site assessment in collaboration with Qantas to devise a basis on which the applicant could return to work for gradually increasing periods. She resumed work on that basis in April 1994, initially for a few hours a week which were built up to 24 hours a week. The work performed by the applicant was of a clerical and administrative nature. The arrangements under which it was performed have been described as follows by the learned Judicial Registrar:
It was part of the rehabilitation program and workers compensation obligation that the respondent provide alternative employment where available. The applicant, as a person rehabilitating from a compensable injury, was entitled to salary maintenance at the rate of a flight attendant and also maintenance of her substantive classification as a flight attendant.
Between May and August 1994, some three or four work status meetings were held to review Ms Marazzato’s progress under the arrangements just described. Those meetings were attended by the applicant, Mr Moody of Qantas and a representative of Work Solutions Group.
A further work status progress report was made by Work Solutions Group on 22 December 1994 at which time Ms Marazzato was working four hours a day on three days of each week and pursuing a weight program at Olympia Private Rehabilitation Hospital. That hospital itself conducted a physiotherapy and occupational therapy review of the applicant on 24 February 1995 and reported its results to Qantas recommending occupational rehabilitation and vocational counselling.
In a report dated 7 July 1995, Ms Robinson, an occupational therapist at Olympia Private Hospital, noted that Ms Marazzato “has now been able to resume working 3 days x 5 hours (including driving time) since her return from annual leave”. It was then proposed to increase her hours of work with a view to achieving five hours a day on four days each week by August 1995 in accordance with the following plan:
Week commencing:
3.7.1995 Current hours - 3 days x 5 hours
10.7.1995 Current hours - 3 days x 5 hours
17.7.1995 Monday, Thursday, Friday - 5 hours per day
Tuesday - 3 hours24.7.1995 Monday, Thursday, Friday - 5 hours per day
Tuesday - 4 hours31.7.1995 Monday, Tuesday, Thursday, Friday - 5 hours per day
7.8.1995 Monday, Tuesday, Thursday, Friday - 5 hours per day
Note: All hours include driving time.
The objective of five hours a day on four days a week was achieved by August 1995 and, when Ms Marazzato’s progress was reviewed in that month, it was proposed to increase her hours to six a day on four days a week by the end of August. Also in August 1995, the applicant was referred to Mr Fitzgerald, a principal consultant ergonomist for Risk and Injury Management Services Pty Ltd, who proposed to use Qantas training facilities to advance her rehabilitation. However, she continued her attendance at Olympia Private Hospital between September 1995 and May 1996. From 11 September 1995, two of Ms Marazzato’s four days a week were spent in the Property Department as a receptionist and clerical assistant. The remaining two days a week were spent in the Cabin Crew Department. On 24 October 1995, Ms Robinson of Olympia noted that on 29 September 1995 “Nadia was reporting a significant increase in back pain and an increased reliance on pain killers in order to complete her work.” Ms Robinson therefore recommended a reduction in working hours before attempting to work six hours a day (including driving time) on four days a week from 30 October 1995.
That objective was achieved and, on 20 December 1995, Olympia recommended that Ms Marazzato’s hours be increased to six hours a day on four days a week exclusive of driving time. In March 1996 Mr Fitzgerald proposed a two week program of simulated flight duties at the Flight Training Centre and suggested that:
As discussed, if the program is not successful then it will be deemed that Nadia is not a candidate for work as a flight attendant at this time. If she is progressing well by the end of this two week period then there may be an indication to continue the program to a level where she is able to recommence flight attendant duties. If this is the case then we will need to meet to determine the format of any ongoing work conditioning program.
However, in April 1996 a report furnished by Mr David Conroy, orthopaedic surgeon, at the request of the applicant’s solicitors, a copy of which was supplied to Qantas, contained these passages:
I anticipate as regard the prognosis that she will remain permanently unable to resume strenuous physical activities and any work that requires bending, lifting, straining or prolonged sitting or standing in the one position.
I anticipate that she will remain capable of sedentary work on a full time basis where prolonged sitting or standing or bending or lifting is not required. I think it is unlikely that any rehabilitative program will enable her to return to flight work on the presumption that such work involves standing on a moving aircraft and bending and lifting.
I consider the history and examination to be consistent with stabilisation, however it could not, in my opinion, be denied that in the long term an injury such as this can initiate, aggravate and deteriorate the normal ageing process that occurs in the spine and over many years there could be a slow deterioration with an increasing incapacity. This woman’s low back must be regarded as vulnerable to minor stresses and from time to time she could be subject to temporary exacerbations of her symptoms which may require treatment such as rest, medication, injection, physiotherapy and the use of a lumbar support.
In the meantime, on 15 February 1996, a decision had been made by Comcare that, with effect from 7 February 1996, it was no longer liable to pay compensation in respect of Ms Marazzato under any provisions of the Safety Rehabilitation and Compensation Act 1988 (“the Comcare Act”). At the request of Ms Marazzato’s solicitors, that decision was reconsidered and affirmed by a Review Officer who issued a reviewable decision on 5 July 1996.
On 25 October 1996, Ms Marazzato’s solicitors applied to the Administrative Appeals Tribunal (“the Tribunal”) for an urgent directions hearing in the course of her application for a review of the Comcare decision. On 11 and 15 November, the Tribunal heard an application on behalf of Ms Marazzato for an order directing Qantas to provide her with alternative employment while her application for review was pending. That application for interim relief was refused but the substantive application was listed for urgent hearing as soon as possible after 15 January 1997. On 10 February 1997, when her application was listed for hearing, the Tribunal, effectively by consent, made an order which included this paragraph:
5.The Tribunal therefore, pursuant to section 42C of the Administrative Appeals Tribunal Act 1975:
(i)sets aside the reviewable decision dated 5 July 1996; and
(ii)varies the determination dated 15 February 1996 to provide:
(a)The applicant continues to suffer from an injury namely “lower lumbar discogenic injury, right sacro-iliac joint strain, right gluteal myofascial lesion and secondary fibromyalgic, responses” (“the condition”).
(b)As a result of the condition, the applicant is entitled to receive compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.
In June 1996, Ms Marazzato contracted scarlet fever and was absent from work for about three months. As a result, in August she raised with Ms Newnham, the Flight Attendant Duty Manager and Rehabilitation Case Manager for Qantas, her concern that she might have exhausted her sick leave entitlements and canvassed the possibility of her taking recreation or long service leave. Ms Newnham’s file note of 19 August 1996 concludes with these paragraphs:
Enquiries with Ross Tellis at Payroll reveal Nadia’s sick leave ran out on 7 August 1996. He has not researched recreation leave but records show 80 days - but he said we could safely say that she has at least 30 days. (Recreation leave requires updating because Nadia would not have been accruing a full month’s rec. leave each 9 months as only working part hours).
This information was given to Nadia and she is to advise me later this afternoon what option she wishes to take. Also advised her that she has 104 days LSL which may be taken in either full month or 15 days block.
On 2 September 1996, Ms Marazzato advised Ms Newnham that she had returned to work in the Property Department and on the next day an appointment was made for her with Ms Newnham for 8 October. However, on 5 October 1996 Ms Newnham wrote to Ms Marazzato in these terms:
Following recent developments in the status of your worker’s compensation claim with Comcare, and your current medical restrictions, it is necessary to formalise your interim working arrangements.
The following duties are therefore offered to you on a temporary basis, subject to ongoing review pending a final outcome on your claim status.
DUTIES
As per your existing duties within the Property department, encompassing the following:
- Typing of memos and faxes;
- Processing of incoming and outgoing mail, faxes and telephone calls;
- Reception / front office duties;
- Maintaining Property filing register;
- Liaison with interdepartmental staff and contractors;
- Organising of FAC passes for contractors;
- Processing of leave applications;
SALARY AND CONDITIONS
The Airline Officers Award as in force from time to time will apply to your employment. The provisions of that award apply to your employment independently of and do not form part of the terms and conditions fixed by this letter or any other terms and conditions of employment agreed between Qantas and yourself.
The salary for this position will be at the rate of $28498 p.a.
Standard working hours for this position are 40 per week, with a rostered day off accruing every 4 weeks, however your doctors recommendations regarding maximum daily hours will also be observed. You will continue with your existing day shift, commencement and cessation times to correspond with existing Property Department practice.
Recreation leave and sick leave will accrue as per Qantas policy applying to clerical employees.
REPORTING STRUCTURE
Day to day supervision will be provided by the Property Manager Vic/Tas, with ultimate responsibility for your management resting with the Flight Attendant Department.
REVIEW
In light of the temporary nature of these duties, they will be subject to ongoing review, in conjunction with an update of your Comcare claim status.
COMMENCEMENT
These arrangements take effect from Monday 14 October 1996.
As evidence of your understanding and acceptance of this offer of temporary duties, you will be required to sign this letter, a copy of which will be placed on your rehabilitation file.
Please contact the undersigned on ext. 64758 should you require further information.
The endorsement on the letter which it was proposed Ms Marazzato should sign in the presence of a witness was:
I understand and accept this offer of temporary duties.
The offer embodied in that letter was described by Ms Varley as a “goodwill gesture to assist her financially” before the review of the Comcare decision was determined. That letter was apparently presented to Ms Marazzato at a meeting on 8 October 1996 with Ms Newnham and Mr Moody. Ms Newnham’s file note of that meeting records that it was “to discuss Nadia’s situation of reclassification due to her compensation claim being cancelled by Comcare”. The file note also records that, notwithstanding the terms of the letter, Ms Marazzato was told that she would have until 18 October to respond and the reclassification would take effect on 21 October. The note contains a summary of Ms Marazzato’s comments on the perceived “unfairness” of the proposal and records Ms Newnham’s observations to her about the level of fitness required to resume flying duties and her inability to approach anything like that level over the past years. It concludes with the notation:
Nothing in presentation suggests Nadia is able to or wants to return to flying.
On 22 October 1996, Ms Varley telephoned Ms Marazzato and told her that, as she had not accepted the offer of temporary employment, the offer would be withdrawn and she would not be required for work from close of business on that day. On the same day, Ms Varley wrote to Ms Marazzato:
I note that you have refused to accept the conditions offered, which were following advice from Workers Compensation that they no longer accept liability for your claim.
Accordingly, the offer of temporary placement is withdrawn. This issue is now for us to determine your fitness to return to flying duties. To enable us to do so, you are required to attend an appointment with Dr Morrison of Qantas Medical Services, Sydney, at 11.30am on Tuesday 29th October. Flights to and from Sydney will be arranged via Crewing.
You should bring with you any recent medical reports relating to your conditions and possible restrictions on your work.In the meantime, you may make arrangements with me to cover the intervening period between now and the results of your Qantas Medical assessment by way of sick leave, with appropriate medical certificate, or any other arrangement you may wish to utilise. I may be contacted on Ph (03) 9 280 4351.
Following the Qantas medical assessment, I will arrange a time to discuss your future options regarding employment.
After carrying out the proposed medical examination, Dr Morrison advised Ms Varley by memorandum dated 29 October 1996 that:
As requested, Ms Marazzato attended this afternoon for assessment of her ability to return to work as a flight attendant.
I can advise you that she is unable to perform the duties of a flight attendant now or in the foreseeable future, given the history of the condition, the examination findings, the lack of response to rehabilitation and the chronicity of the problem. I have told Ms Marazzato of my recommendation to you.
On 9 December 1996, at a meeting with Ms Newnham, Ms Varley and other representatives of Qantas, Ms Marazzato was advised that her employment by Qantas would be terminated on medical grounds. Ms Varley’s account of that meeting was to this effect:
I told the Applicant that the purpose of the meeting was to discuss the 2 options: medical resignation and medical termination. I repeated to the Applicant the difference between medical resignation and medical termination as per my letter dated 31 October 1996. The Applicant said that she was reluctant to give up her position as a Flight Attendant and was not prepared to take a medical resignation. I explained to the Applicant that she was employed as a Flight Attendant but she had not been able to provide any evidence over the last 6 years that she was able to return to work as a Flight Attendant or would be able to do so in the near future. I reiterated to the Applicant that she had been offered a temporary role in the Property Department which she rejected on the basis that she would not accept a reclassification. I also explained that some alternative positions had been investigated, such as a ground role but I had not been successful in finding anything. I asked the Applicant what she had to say about these matters. The Applicant continued to say that the company’s actions were extremely unfair and that it caused her considerable distress to lose her position as a Flight Attendant, a position which she had been working towards reclaiming for the last 6 years.
The advice given to Ms Marazzato at that meeting was confirmed by a letter to her of the same date from Ms Varley in these terms:
I am writing to confirm our discussion today that took place in the presence of Terry Baker (FAAA), Margaret Newnham and Peter Cappie-Wood.
As discussed, you had the option of a medical resignation or medical termination from your role of a Flight Attendant. You advised us that you did not wish to take the medical resignation option.
Accordingly, you were advised that your services as a Flight Attendant would be terminated on medical grounds. The reasons for this can be summarised as follows:
1.Comcare have ceased liability in relation to your claim.
2.For medical reasons you are unable to perform your duties as a Flight Attendant, hence cannot fulfil your contract of employment.
3.You chose to reject the offer of alternative employment that was recently made to you.
We shall be providing you with four weeks notice, hence your termination date shall be from close of business on the 6th January, 1997.
You are now requested to complete the Superannuation claim form as soon as possible and forward it to Qantas for assessment. In addition, I have attached a sheet explaining the retiree staff travel benefits. You shall be entitled to these benefits for a time period equal to half your total length of service.
Finally, we will need to complete the usual clearance formalities such as return of your ID card, uniforms etc. It would be appreciated if you could contact a Duty Manager on 9280 4003 in order to do this. This should be completed by the 6th January, 1997.
In the meantime Nadia, please do not hesitate to contact me should you have any queries.
As in the hearing before the Judicial Registrar, the parties were agreed that the primary issue for resolution is whether there was a valid reason for the termination of Ms Marazzato’s employment within the meaning of s 170DE(1) of the Industrial Relations Act 1988 (“the Act”) which provided:
An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
It is accepted by Counsel on both sides that the time when the valid reason or reasons must be found to exist is the date on which the employee’s employment was terminated; in this case 9 December 1996. (See Nettlefold v Kym Smoker Pty Ltd (1996) 69 I.R. 370 at 373.) Nor was there any dissent that the test to be applied when s 170DE(1) is invoked by an employer is that enunciated in these terms by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 I.R. 371 at 373:
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. 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 (1995) 60 IR 1, when considering the construction and application of s 170DC.
That passage was cited with approval by Lee J in Nettlefold v Kym Smoker (supra) at 372.
Counsel for Qantas submitted that in the present case there was but a single reason for the termination of Ms Marazzato’s employment which was that, as at 9 December 1996, she “could not do the job that she was employed to do”. However, the discussions and correspondence leading up to the termination disclose that at least two other factors, as well as the reason just identified, were operating on the minds of those who made the ultimate decision to dismiss. The first was the decision by Comcare to cease its assumption of liability under the Comcare Act in respect of Ms Marazzato. The second was Ms Marazzato’s refusal of the offer of alternative employment which had been conveyed to her by the letter of 5 October 1996 and discussed at the meeting three days later.
Whether those additional factors were “reasons” which actuated the termination is not critical because, at least, they form part of the “context” of Ms Marazzato’s capacity or conduct or the operational requirements of Qantas’ business against which, the passage from Selvachandran indicates, the Court is required to test the validity of the single reason identified by Mr Green for Qantas. The Court’s focus in an exercise of this kind is on the connection between the employer’s reason or reasons and the termination of the employment in the sense of the relationship between employer and employee. That is not necessarily co-extensive with a contract of employment or service; see e.g. Capay Holdings Pty Ltd v Slattery (unreported, Full Court of Industrial Relations Court of Australia, 11 December 1996, at pp 14-15), Strachanv Liquorland(Australia) Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1996) and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 456.
Accordingly, it is not sufficient for Qantas in the present case to point to the fact that Ms Marazzato’s contract of employment required her to perform the duties of a Flight Attendant and that she is no longer able to perform those duties. As Qantas has implicitly recognised since 1990, the relationship of employer and employee between it and Ms Marazzato has subsisted notwithstanding her incapacity. That is not to say that physical incapacity to perform the work contracted for may never constitute a valid reason within the meaning of s 170DE(1). The relevant context may be that the employee has no skills or aptitudes for the performance of other work or that the nature and scope of the employer’s operation is such that no alternative work can be provided.
However, a very different context surrounds the present relation of employer and employee. Qantas employs a large and diverse workforce and necessarily devotes significant financial and other resources to maintaining and rehabilitating incapacitated employees. The evidence indicates the number of such employees “subject to medical conditions” at present to be of the order of 97 or 98. As well, Qantas is subject to the obligation imposed by s 40(1) of the Comcare Act which provides:
Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.
It is to be borne in mind that the decision by Comcare to cease its assumption of liability to pay compensation in respect of Ms Marazzato was based on acceptance of certain medical evidence that any back or leg conditions from which she was suffering in 1996 could no longer be related to the incident in 1990. The rehabilitation program apparently instituted for Ms Marazzato under Part III of the Comcare Act was never brought to a conclusion. By its actions between October and December 1996 Qantas effectively curtailed that program which it had hitherto regarded as worthwhile. That occurred despite the acknowledgement by Dr Morrison that one of the purposes of the program was to assist with the psychological health of the employee. Moreover, the “final goal” of the program as formulated by Mr Fitzgerald was, in the event of a return to Flight Attendant duties proving impossible, to “consolidate longer term alternative work options”. The achievement of that alternative final goal was accepted by both Mr Moody and Ms Newnham as remaining open.
The aspects of Ms Marazzato’s history to which I have just drawn attention suggest that the decision to terminate her employment was dictated solely by the conclusion that she was, and would remain, physically incapable of returning to flying duties. No assessment seems to have been made of her capacity to undertake other duties as part of the ground staff either immediately or after further rehabilitation appropriately modified to take account of the conclusion that she was permanently incapacitated for work as a Flight Attendant. Nor does the evidence reveal any examination before 9 December 1996 of whether, or when, opportunities for permanently employing Ms Marazzato as part of the ground staff would arise.
It is true that it was proposed on 5 October 1996 to reclassify Ms Marazzato as an employee in the Property Department at a salary rate of $28,498 per annum. However, that proposal was clearly expressed to be by way of an interim or temporary arrangement pending the determination of Ms Marazzato’s application to the Tribunal for a review of her Comcare entitlement. It was said to be for her financial assistance. Although that review was known to be listed for an early hearing and was believed by both Mr Moody and Ms Newnham to have good prospects of success, no indication was given to Ms Marazzato of what, if any, employment would be offered to her after the Tribunal’s decision or what effect any decision would have on her rehabilitation program. Apparently no attention was paid to Ms Marazzato’s counter offer to take long service leave or accept salary at a rate lower than that prescribed for a Flight Attendant pending the determination of her application for review. In these circumstances, it was understandable that she rejected the offer of temporary reclassification. That rejection, I consider, was incapable, either of itself or in combination with the conclusion that she was permanently incapacitated for flying duties, of amounting to a valid reason for terminating her employment on 9 December 1996.
The offer of temporary or interim reclassification did reflect some acceptance by Qantas that Ms Marazzato could usefully perform other duties outside a rehabilitation program. However, there seems to have been no exploration by the relevant Qantas officers of the cost of employing her on those duties with or without reimbursement by Comcare of part of her salary. As well, there seems to have been an acceptance, at least by Ms Newnham, that Ms Marazzato had responded positively to her clerical and administrative duties under the rehabilitation program and was enthusiastic about the acquisition of new skills. She was never asked about her readiness to accept a permanent reclassification to a clerical or administrative position.
Accordingly, I am not persuaded that there was a valid reason or reasons of the requisite kind for the termination of Ms Marazzato’s employment. It therefore becomes necessary to consider the alternative submission advanced on behalf of Qantas that the reinstatement of Ms Marazzato is impracticable.
For the reasons explained above, what has to be examined is the practicability of reinstating the relationship of employer and employee, not of returning Ms Marazzato to her former duties as a Flight Attendant. The evidence of Dr Morrison on 26 May 1997 implying that nothing had happened since 29 October 1996 to cast doubt on his prognosis of that date went only to the latter issue. Further affidavits by Ms Varley and Mr Moody have been filed since the Judicial Registrar’s decision which tend to suggest that difficulties would be encountered in assigning Ms Marazzato in the long term to clerical or administrative duties as part of the ground staff. However, that evidence takes no account of the financial implications discussed above, including the entitlement of Qantas to continuing reimbursement from Comcare in respect of Ms Marazzato. Nor does the additional evidence canvass the utility of resuming, in some modified form, Ms Marazzato’s rehabilitation program.
Given the long history, including the program of rehabilitation and the provision of alternative work, recounted above, the learned Judicial Registrar’s order that “the Respondent on Monday 14 July 1997 re-appoint the applicant to the position of Flight Attendant in which she was employed immediately before the termination of the employment” is not to be taken as a direction to require Ms Marazzato forthwith to undertake flying duties. Rather, it is an order for reinstatement of the relationship of employer and employee which existed before 9 December 1996, one of the incidents of which was that Ms Marazzato held the designation or classification of Flight Attendant although she had not for a long time been required to perform the duties normally attaching to that classification. The order, understood in that way, does not require Qantas to maintain Ms Marazzato indefinitely in the classification of Flight Attendant. It is true that s 170EE(1)(a)(ii) of the Act affords a facility of requiring reinstatement by “appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.” However, resort to that facility is discretionary, not mandatory, in the event of the Court’s deciding that it is inappropriate to reappoint the employee to the position in which the employee was employed immediately before the termination. The presence of s 170EE(1)(a)(ii) of the Act does not detract from the general discretion to order reinstatement if the Court considers it appropriate or not impracticable; see s 170EE(2). This view of the nature of the discretion receives support, I consider, from the following observations of a Full Court of the Industrial Relations Court of Australia (Wilcox CJ, Moore and Marshall JJ) in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 at 244:
We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her “to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination”. This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the Court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court’s order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issue of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee’s employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made.
For reasons which I have endeavoured to explain, the orders made by the Judicial Registrar were a proper exercise of the discretion which I consider to be conferred by s 170EE(1) and recognized by sub-s (2) of that section and should be affirmed.
| I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. |
Associate:
Dated: 19 September 1997
| Counsel for the Applicant: | Ms M Young |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr N Green |
| Solicitors for the Respondent: | Blake Dawson Waldron |
| Date of Hearing: | 27 August 1997 |
| Date of Judgment: | 19 September 1997 |
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