Mr David McInnes v Royal Flying Doctor Service of Australia Central Operations

[2013] FWC 657

[2013] FWC 657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr David McInnes
v
Royal Flying Doctor Service of Australia Central Operations
(U2012/9832)

COMMISSIONER HAMPTON ADELAIDE, 22 MARCH 2013

Termination of employment - whether dismissal unfair - alleged misconduct and breakdown of relationship - allegations made by applicant against management and Board of organisation - allegations eventually withdrawn and apologies given as part of mediation process and return to work process - whether genuine - context of inflammatory allegations and apparent withdrawal considered - whether breakdown in working relationships - whether valid reason for dismissal - whether harsh, unjust or unreasonable - valid reason but dismissal harsh in the circumstances - reinstatement not appropriate given present circumstances - compensation appropriate but insufficient material to permit assessment to be made - parties directed to agree or supply further material.

1. Introduction and Background

[1] Mr David McInnes (the applicant) was a very long standing pilot with the Royal Flying Doctor Service of Australia Central Operations (the RFDS or the respondent) at the time of his dismissal, which became effective in September 2012.

[2] There was a long and complex chain of events leading to that point including the following:

• A compensable injury which impacted upon Mr McInnes’s capacity to undertake the loading and unloading of patients on aircraft;



• the making of a number of serious and inflammatory allegations about the conduct of certain members of management, the safety approach of the RFDS and the attitude of members of the RFDS Board;



• a disciplinary process concerning the allegations and attempts to have the allegations either withdrawn with apologies, or justified;



• the offering of an external investigation and requirements to attend meetings which were effectively ignored;



• the provision of an apparent medical clearance with some work limitations;



• a mediation process arising from the fallout of the applicant’s allegations initiated by WorkCover SA; and



• an apparent withdrawal of the allegations and the giving of apologies by the applicant amid a difference of view about elements of the outcome of the mediation process and a decision by WorkCover “facilitating” the dismissal of the applicant.

[3] There is a dispute about the status, conduct and import of many of these elements.

[4] The various allegations made by the applicant form an important part of the context of this matter. I will deal with the substance and standing of those allegations in due course however for immediate purposes they included that some members of management had lied and been deceptive, and possibly attempted to pervert the course of justice; that the Chief Executive Officer had laughed about a serious safety incident involving the applicant, did not respect small fundraisers and did not follow the true RFDS vision; the RFDS management was scandalous and operated contrary to its public image; Board members were only on the board for kudos; and the RFDS had been putting patients lives at risk and had clearly breached their duty of care to staff.

[5] As it also sets part of the context for the determination of the matter, I also note that during proceedings, Mr McInnes confirmed and extended an earlier allegation concerning a document said to be part of an Operations Manual of the respondent dealing with the handing and loading of patients using a stretcher system utilised by the RFDS (the OPS25 document).

[6] On 13 August 2012, the RFDS dismissed the applicant ostensibly on the basis that he had “engaged in gross misconduct and in a manner that has irreparably damaged (his) relationship with the RFDS”. 1

[7] Mr McInnes has made application pursuant to s.394 of the Fair Work Act 2009 (the Act) and claims that his dismissal was unfair and that he should be reinstated to his position as a line pilot with associated orders.

[8] The application has been through the voluntary conciliation process provided by the Fair Work Commission 2 but was not resolved and has now been subject to a hearing.

2. The cases presented by the parties

[9] I have considered the detailed written and verbal submission of the parties including the various authorities cited. The following summaries describe the substance of their respective cases.

The applicant

[10] Mr McInnes was represented by Mr Molnar from the Australian Federation of Air Pilots (the AFAP). The applicant provided a comprehensive witness statement and gave evidence in this matter.

[11] Mr Laurie Cox, Manager of Industrial Relations for the AFAP, who assisted the applicant during the course of the mediation process and subsequent dealings with the RFDS and other bodies, also provided a witness statement and gave evidence.

[12] The applicant also called Dr Geoffrey Graham, who provided medical reports in 2010 and 2011 at the request of the WorkCover claims agent (EML) concerning Mr McInnes, and who regularly acted as his Designated Aviation Medical Examiner.

[13] The applicant contends that there was no valid reason for the dismissal. In particular, he contends that:

• The allegations should not be viewed as a basis for what was in effect a summary dismissal nor justification for the view that the employment relationship had broken down;



• The contention that the relationship had broken down was only raised after a full medical clearance had been provided;



• The RFDS sought a withdrawal of the allegations and an apology and this was provided by the applicant through the mediation process and subsequently;



• There was no basis to doubt the sincerity of the apologies and the withdrawal of the allegations;



• He was now embarrassed about the allegations and accepted that they may have been offensive; and



• There was no rational or reasonable basis for the respondent to maintain that Mr McInnes could not return to full duties as a pilot.

[14] Mr McInnes contends in effect that some of the allegations made could not be considered to be serious given they were merely opinions held on a genuine basis. Further, whilst some allegations were potentially significant and involved “strong” language, these were made in the context of frustration about the workers compensation matter and what he considered to be attempts by the RFDS to hinder his return to work.

[15] In particular, it was submitted on his behalf that the applicant was “industrially naïve and unfamiliar with the procedures being adopted”. 3 In that context, it was contended that the applicant had been a pilot with the RFDS for 32 years and found the process very confusing and frustrating, a situation which was exacerbated by the lack of information he was given as to the process.

[16] It was also submitted that the wider industrial context ought to be given due consideration in such instances as this. The industrial environment is by nature robust and at times inflammatory. That is, issues relating to one’s employment often elicit an emotional response, and such was the situation in the present case.

[17] Further, the applicant advised the Commission as to the name of the other employee who had informed him about the alleged statements of Mr Lynch and others on the safety incident. In relation to the OPS 25 document, the applicant asserted that the respondent had not produced any evidence of its introduction as an operational manual through the “NOTOC” system or its approval by the Civil Aviation Safety Authority.

[18] The applicant further contends that any continuing ill feelings between Mr Lynch and Ms Hall and himself, were not reasonable given the earlier withdrawal and apology. In addition, it was suggested that these feelings were not significant given that he worked as pilot and did not deal directly with, or report to, these people.

[19] In the alternative, the applicant contends that even if there was a valid reason for dismissal, the termination was disproportionate given all of the circumstances including his length of service and the impact upon him given his age and vocation as a Pilot.

[20] Mr McInnes is seeking reinstatement to his position as a Pilot with the RFDS. He contends that the medical evidence before the Commission confirms that he would be returned to full duties on a full time basis in approximately 4 weeks from reinstatement. He is also seeking the maintenance of his continuity of service and lost wages.

[21] In the alternative, Mr McInnes seeks the full extent of compensation available under the Act.

The respondent

[22] The RFDS was represented, with permission, by Mr Smith of Normal Waterhouse solicitors.

[23] The RFDS led evidence from Ms Robynne Hall, General Manager, Human Resources for the RFDS and Mr John Lynch, its Chief Executive Officer. Each provided a comprehensive witness statement and was cross-examined at some length.

[24] The RFDS contends that the applicant’s conduct represented gross misconduct and had irreparably damaged the employment relationship to the point that there was a valid reason for dismissal.

[25] The basis for that contention included the following:

• The making of the allegations, the failure to justify or properly withdraw the allegations over a long period of time, and the unwillingness to resolve the issues with all relevant members of management represented a flagrant campaign to disparage senior management to serve his own self interests and was contumacious of the senior managers of his employer;



• This conduct fundamentally damaged the employment relationship;



• The mediation process, which was central to any possibility of return to work, was not completed by the applicant;



• The applicant provided a written withdrawal of the allegations and an apology only after it had become clear that WorkCover was about to issue an “exemption” on the obligation for the RFDS to provide work to the applicant, and was not genuine;



• The RFDS had acted reasonably in not accepting the applicant’s belated withdrawal and apology in all of the circumstances; and



• The applicant misled his treating and other Doctors about the extent of his incapacity when it earlier became clear that WorkCover was considering an “exemption” for the RFDS based upon his continuing medical issues and prognosis.

[26] The RFDS further contended that the evidence of the applicant during these proceedings, in which he maintained the truth and validity of all of the allegations and made a further allegation against the CEO, supported its view that the earlier withdrawals and apologies had not been genuine and in any event, meant that a workable employment relationship could not be resumed.

[27] In that context, the RFDS submitted that despite the applicant claiming that he made the allegations out of frustration due to the failed return to work process, he had, under oath, repeated all of these serious and defamatory allegations. This it suggested, is not a case where the employee has apologised after making allegations in the heat of the moment. Maintaining these allegations is entirely inconsistent with there being a relationship which could be restored.

[28] Further, the respondent noted that the allegations could not be related to the conjecture about the medical clearances because the allegations were made before they were provided.

[29] The RFDS submitted that there were no procedural fairness complaints made on behalf of the applicant and that unfair dismissal application itself should be dismissed.

[30] In the event that a remedy was considered by the Commission, the RFDS strongly opposed reinstatement and contended that in addition to the damaged relationship, reinstatement was not appropriate as it was unclear whether the applicant was presently fit to return to his pre-injury duties and whether the Respondent could even accommodate his restrictions.

[31] In terms of any compensation order, the RFDS submitted that any compensation order should have regard to the fact that the applicant was currently receiving weekly payments for the workers compensation claim, the fact that he was paid five weeks' notice at full pay, and the nature and extent of the applicant's conduct and how it contributed to the termination of his employment.

3. Observations on the evidence

[32] I found the applicant to be a forthright witness who attempted to genuinely present his recollections of events. His recall of events was however somewhat selective and influenced by his strongly held subjective views of matters particularly in relation to the nature of the allegations and the intended apologies.

[33] I found Dr Graham to be an impressive and reliable witness.

[34] Mr Cox was a passionate advocate for his member and his recollections of events were genuinely expressed.

[35] Ms Hall was somewhat defensive in her evidence and had a tendency to advocate the respondent’s position.

[36] There were also strong opinions provided by Mr Cox and Ms Hall, and some of these relate to issues that are properly matters for the Commission to determine.

[37] Mr Lynch was an impressive and reliable witness. I accept his evidence on the facts where it conflicts with any other witness.

[38] The observations about the applicant, Mr Cox and Ms Hall do not mean that their evidence as to the facts is inherently unreliable, but rather, I treat it with a degree of caution.

[39] The applicant’s representative attempted to contact the applicant’s treating practitioner, Dr Notley, in order to have him give evidence however he was on leave at the time of the initial hearing of this matter. Neither party subsequently sought to have him give evidence at a later time.

[40] Mr Hocking, one of the management employees who were subject to certain of the allegations, no longer works for the RFDS and did not give evidence in this matter.

[41] There is little or no evidence before the Commission about some of the various allegations made by the applicant. There is however some material concerning the status of the OPS25 document however there is little direct evidence that would assist the Commission to determine the precise status of the OPS25 document at various times. There is evidence however about the existence of a document largely in the same terms as the present OPS25 document and the circumstances surrounding the amendment to that document in relation to patient loading arrangements.

4. Broad factual findings

[42] It is appropriate to deal with the events leading the applicant’s dismissal in three contexts.

The general context and the events leading to the applicant’s attempts to return to work

[43] Mr McInnes is presently 59 years of age and commenced employment as a Pilot with the RFDS on 1 July 1990. He had previously worked in that capacity with the St Johns Air Ambulance from May 1980 and his service has been considered for all relevant purposes to be continuous since that time.

[44] It is common knowledge that the RFDS is part of the broader Royal Flying Doctor Service of Australia. The RFDS is an aeromedical organisation providing primary health care and 24-hour emergency service throughout the central region of Australia, and in particular, to outback and regional communities. It operates three aeromedical bases in Adelaide, Port Augusta and Alice Springs.

[45] The RFDS is a not-for-profit organisation and operates with a Board of volunteer community members and a local management structure. While supported by the Commonwealth, State and Territory Governments, the RFDS also significantly relies on fundraising and donations from the community to underpin its operations. 4

[46] There is no evidence of any performance management or disciplinary matters concerning the applicant prior to the events leading to his dismissal.

[47] In October 2009, the applicant suffered an injury to his shoulder associated with assisting to load patients onto RFDS aircraft. This is a regular task performed by pilots of the RFDS and generally involves the pilot being at the foot end of the stretcher when it is being loaded up into the aircraft. I also note that in 2005 and 2006 the applicant suffered a similar injury and following two months off work, some medical treatment and a further period of leave, the symptoms apparently resolved at that time.

[48] In October 2009 Mr McInnes lodged a “WorkCover” 5 claim relating to his injury and he has been in receipt of workers compensation benefits since that time.

[49] Sometime before February 2010, Mr McInnes apparently lodged a complaint with SafeWork SA 6 about the patient handing and loading systems used by the RFDS. A report was prepared for SafeWork SA by Mr Karilis, then General Manager of Safety Quality and Risk Management for the RFDS, on the matter.7

[50] There have been a number of attempts to have Mr McInnes rejoin the operations of the RFDS since that time. Although there is a dispute about the status of the applicant’s medical condition and the medical clearances provided to him, it is sufficient for immediate purposes to note that during 2010, the applicant had clearance to return to work on the basis that this would involve, at least for a period, limited patient loading work.

[51] Two concepts were explored. Firstly, to have Mr McInnes operate on a part-time basis from the Pt Augusta base undertaking partially modified duties. This could not be accommodated due to the fact that it created operational consequences for the RFDS and the pilots working from that base, and would have required those pilots to agree to modify the rosters. The pilots at Pt Augusta did not support the proposal and it could not proceed.

[52] The applicant also raised a proposal whereby he would assist the loading of patients by reversing the normal lifting arrangements. That is, the pilot would take the head end and the nurse the foot end (with the additional weight when being lifted up into the aircraft). The RFDS considered that this arrangement was not appropriate on risk management grounds. Mr McInnes did not accept the basis of the respondent’s position and in April 2011 an assessment was organised by WorkCover and undertaken by an officer from SA Health.

[53] The SA Health assessment concluded that it “does not seem reasonable or practicable for the Pilot (David) to swap the inside/unloading role”. 8 It is evident that the primary consideration in the views of SA Health was the fact that the nurse would not be in the aircraft in the event of a clinical event requiring immediate medical attention.

[54] Mr McInnes also sought a review of the findings when he learnt that some modifications had been made to the stretchers being used by the RFDS. When the respondent explained that these changes did not impact upon the ease of handling the stretchers and this was contested by the applicant, WorkCover arranged for an assessment of the push/pull forces of the new dolly wheels being trialled. The assessment was undertaken in September 2011 by an Occupational Therapist who concluded that there was no appreciable difference for relevant purposes. 9

[55] The applicant became frustrated about what he saw as the obstruction from the RFDS. I also note that he took issue with the independence of the various reports. I find that Mr McInnes’s perspective, although being perhaps understandable, was not reflective of the actual conduct of the RFDS at that time. That is, the approach adopted in relation to potential redeployment to Port Augusta and the actions surrounding the loading and unloading of patients and associated reports were in my view objectively justified in the circumstances prevailing at that time.

[56] It is against the background of these events that the various allegations that are central to this matter were made by the applicant. It is also important to understand the actual context in which the various allegations were made.

The allegations made by the applicant and the events leading to the mediations

[57] On 15 July 2010 in a telephone conversation 10 with the then Acting Chief Executive Officer (Mr Setchell) the applicant stated that:

• He was fighting for his job, that the issue would become political and that he would go to the media, and that Mr Hocking had given him permission to do so;



• Senior management had lied, later said to be Mr Barrie Hocking (then General Manager Aviation/Operations), and that he and Ms Robynne Hall, General Manager, Human Resources of the RFDS, had been deceptive; and



• Mr George Karlis, then General Manager, Safety, Quality and Risk, had lied in a document given to “WorkSafe SA” in relation to a compliant made by the applicant.

[58] The applicant also apparently referred in that conversation to the backing he had from the AFAP, that he had taken legal advice and that he been advised (by the AFAP) that he should approach his General Practitioner to gain a clearance to work without loading and unloading patients given he had some medical advice that this work was not possible given his medical constraints.

[59] Mr Setchell also apparently agreed to contact Mr McInnes once he had obtained further information. Mr Setchell contacted the applicant on Friday 16 July 2010.

[60] On 19 July 2010, the applicant wrote to Mr Setchell and indicated that “I do not intend to go to the media or seek political assistance at this stage. My main objective is to be able to return to work as soon as possible”.

[61] On 27 July 2010, Mr Setchell wrote to the applicant 11 in reference to the allegations made during the 15 July discussion. That letter confirmed that the RFDS considered the allegations to be serious and that they must be investigated. The letter also referred to an earlier request that Mr McInnes submit a “written complaint detailing the allegations, together with evidence etc” by Thursday 22 July 2010. The letter concluded as follows:

“...

Your correspondence dated 19 July 2010 does not provide any details relating to your allegations. I therefore again request that you provide this information to me, in writing, as previously agreed. In the event you wish to withdraw your allegations, I request written advice to this effect and you are also instructed to advise both Mr Marshall and Ms Cowan of this action.

I request your written response by close of business, Tuesday, 3 August 2010.

...”

[62] In August 2010, the applicant advised Mr Setchell that he had no intention of withdrawing the allegations.

[63] On 24 September 2010, Mr Lynch wrote to the applicant 12 and contended that despite repeated requests, no details or evidence in relation to the allegations had been forthcoming. The letter also stated that:

“...

As you have declined to provide this information the RFDS has concluded you do not wish to take the allegations any further and now considers the matter closed.

It is important to remind you that your allegations should not be discussed with any other parties as the repudiation and character of the General Managers (and indeed, all RFDS personnel) should not be subject to unfounded accusations of misconduct if they cannot be investigated and/or refuted.

Should you wish to discuss this matter further, please contact me direct.

...”

[64] On 30 September 2010, Mr McInnes wrote to Mr Lynch 13 and confirmed his earlier advice that he was not withdrawing the allegations. He also stated that it was his objective to resolve the return to work issue with WorkCover and when he was confident that a truly independent and external person would consider the matter, he would submit his allegations in writing and name witnesses. The applicant also raised concerns about Mr Lynch acting as a “kangaroo court” and the importance of trust, particular amongst pilots.

[65] On 15 October 2010, Mr Lynch wrote 14 to the applicant about his concerns and proposed an approach to one of two external dispute resolution services to conduct an investigation with a view to achieving a resolution for all parties.

[66] Mr McInnes on 25 October 2010 wrote to Mr Lynch stating that in a meeting on 12 July at EML (the claims agent for WorkCover) he had referred to going to the media and seeking political help, and that Mr Hocking had stated that “if it will help you feel any better, go ahead”. The applicant invited the RFDS to discuss the matter with those personnel from WorkCover and EML who were at the meeting and indicated that the other allegations “were matters with WorkCover and it is up to those authorities whether they act upon them”. 15

[67] In April 2011, Mr McInnes was referred to Dr Graham by EML. Dr Graham reported that given the applicant’s history and condition, his symptoms would reoccur in the event that he was to resume patient lifting and that he was not fit to resume those duties and that this would be the case into the future.

[68] On 10 May 2011 in an email to Mr Lynch 16, the applicant alleged that:

• A senior staff member had recently informed him that Mr Lynch had laughed about safety matters, being a report of smoke in the cockpit of an RFDS plane being piloted by the applicant and that Mr Hocking had made an inappropriate remark about passengers smoking;



• A check and training pilot from Port Augusta had recently “been broadcasting openly why he had failed a pilot’s check ride”;



• The behaviour of RFDS management was “scandalous and contrary to the public’s image” and that he (Mr McInnes) “could not believe that an organisation that promotes its image on trust can function on deception”;



• He was “well aware” that Mr Lynch had a lack of respect for small fundraisers (contributors to the RFDS) and desired to promote (Mr Lynch’s or RFDS’s) image with corporate donors and that one day Mr Lynch would “regret not following the true vision of the RFDS”; and



• It was obvious to Mr McInnes that “some of the RFDS Board members were only on the board for kudos”.

[69] On 11 May 2011 in a further email to Mr Lynch, the applicant stated that:

• He was very perturbed to learn that the RFDS had “for many years been putting patients’ lives at risk” and that “operational staff had no idea that this had occurred however management had clearly breached their duty of care by knowingly not stating the case to operational staff” and that “the public should be aware that their lives are being put at risk when being transported by the RFDS”.

[70] Mr Lynch wrote 17 to the applicant on 13 May 2011 raising his concerns about the allegations, inviting him to include in any incident report to be filed, details of the alleged breaches of safety and other allegations, seeking details of the date that the comments about the smoke in the cabin incident occurred, raising his surprise and offence about that allegation, and if the applicant was unable to provide verification, an insistence that he provide an immediate retraction and apology.

[71] Mr Lynch also reminded Mr McInnes of the requirements of the RFDS Code of Conduct, referred to a number of allegations for which no details had been forthcoming and again suggested the appointment of an external mediator.

[72] On 1 July 2010, Mr Lynch wrote 18 again to the applicant noting that there had been no reply or response from him, repeating concerns about the applicant’s conduct, setting out the allegations made by Mr McInnes to that point, indicating that he may be in breach of the RFDS Code of Conduct and that disciplinary action may be taken, including termination of employment. Mr Lynch also encouraged the applicant to provide details (or retractions and apologies) by 11 July 2011 and confirmed that the offer of an independent consultant or mediator had been extended on two occasions and no response had been given.

[73] On 8 July 2011, Mr McInnes responded 19 by indicating that “if there was another side to the issues raised, I would like to hear from you.” The applicant did not provided further details of the allegations or respond to the other options raised by the RFDS in the earlier correspondence.

[74] On 14 July 2011, Mr Lynch wrote 20 to the applicant with a requirement that he attend a meeting on 15 July 2011 and noted that he could bring a support person. The applicant did not attend the meeting or respond to the letter.

[75] The applicant went on a period of Long Service Leave and upon his return, Mr Lynch again wrote to the applicant and proposed a rescheduled meeting in the week commencing 5 September 2011. The letter also again sought further details of the allegations and indicated that if the applicant chose “not to meet with me and you do not provide further details or your allegations in writing I will need to consider your allegations in light of the information available to me and whether your behaviour warrants any disciplinary action.” 21

[76] On 9 September 2011 in an extensive email 22 to Mr Lynch, the applicant stated that it was with regret that after a period of 12 months the RFDS had been unable to progress his allegation about Mr Hocking, that he stood firmly by the allegation and that he had advised Mr Lynch to contact the WorkCover and EML officers to confirm the truth. He also stated as follows:

“...

In relation to Mr. Barry Hocking lying, the conduct of Ms. Robynne Hall has been deceptive. Whether conspiring or not to pervert the course of justice with Mr. Barry Hocking, Ms. Robynne Hall contacted Mr. Philip Marshall at WorkCover S.A. over my allegation, and as he stated to me, “she tried to put words in my mouth.” I find this desperate attempt by Ms. Robynne Hall, General Manager, Human Resources, to interfere with a witness, simply inexcusable. This clearly demonstrates that Management will use “any” means to deny me natural justice.

Captain Richard Higgins, whilst President of the Australian Federation of Air Pilots, witnessed firsthand the intimidatory and threatening conduct of Mr. Barry Hocking, and Ms. Robynne Hall when he came as support when I was called to defend a frivolous allegation.

In a work site visit by Mr. Philip Marshall, WorkCover S.A., and Dr. Michael Notley, Mr. Barry Hocking stated that OPS25 was the salient document in specifying the patient loading and unloading procedures in reference to the Pilot and Nurses roles. John, for your information other RFDS manuals which support the Flying Operation Manuals are; OPS22, OPS24, OPS28, OPS41 & OPS42. There is no such manual as an OPS25 Manual, it just does not exist! I have discussed this with many Operational Staff and they are unaware of the existence of OPS25!

When at the worksite visit Mr. Philip Marshall, WorkCover S.A. requested a copy of OPS25, On the 16th March 2011 Ms Robynne Hall states, “With regards to the provision of the OPS25 manual whilst discussed briefly during the worksite visit, there was no commitment to provide this manual.” In a response on the 24th. March 2011, Ms. Robynne Hall states “the question of who takes which position is not specifically referred to in OPS 22 or 25.” John, I request that you forward to me a copy of OPS25 which Mr. Barry Hocking claims specifically defined the patient loading and unloading procedures, as proof that it actually does exist? I definitely do not want you to believe that the FW2650 Stretcher System Operating Instructions & Safe Work Procedures manual can be sent to me in lieu of OPS25. The manual must be clearly identified as OPS25, with labelling identifying it as such, leaving no ambiguity.

As previously I have made clear to you on the 15th July 20111, I am not prepared to name colleagues and potentially expose them to the same duress as recently experienced by Captain ............ (name provided in the original document).

Dr. Michael Notley has commented that he has felt uncomfortable by the tactics employed by the RFDS Management and Mr. Philip Marshall, WorkCover S.A., has commented on the intimidatory methods adopted by Management.

I stand also by my allegation the unprofessional conduct of a Check Pilot from Port Augusta, and I know of witnesses who were prepared to swear affidavits to that effect. I am aware that the Pilot the Check Pilot was referring to has now not had his contract renewed, it is my belief that Nurses have a right not to fly with pilots with whom they feel unsafe, just as a passenger in a motor vehicle should not go with a driver they feel is unsafe!

During an EBA meeting I was quite shocked to learn that Mr. Barry Hocking had reputedly stated that he actually wasn’t worried about the pay increase the Pilots got as it didn’t come out of his pocket! Again many Pilots were witness to this comment, true or not?

As you would be well aware I have accessed FOI and have evidence to support my claims regarding the number of employees injured operating the stretcher loading device, and numbers injured since SafeWork S.A. “approved” the procedures.

The other matters raised are in relation to the ongoing WorkCover process and they are in possession of the relevant evidence.

I have met all my WorkCover obligations, and I look forward to my Return to Work very soon.

...”

[77] In relation to the allegation made by the applicant concerning the OPS25 document I note that Mr McInnes claimed in these proceedings that the RFDS and in particular, Mr Lynch had fabricated, or caused to be fabricated, the document. In particular, he asserted that the document was not part of the formal Operations Manual and Mr Lynch was lying about its status, and further, that an earlier administrative version of the document had been changed with the specific purpose of frustrating his impending return to work.

[78] On 14 September 2011, the applicant attended Dr Gunn and received a prescribed medical certificate (PMC) stating in part that the applicant could return to pilot duties but should avoid reaching and lifting away from his body and that the duties at Port Augusta (as previously outlined) were suitable.

[79] On 15 September 2011, Mr Marshall, the WorkCover s.58B investigation officer 23 advised the respondent that he had investigated and exhausted all return to work options and that he would be contacting the applicant to advise him of this before finalising the matter.

[80] Mr Lynch responded 24 to the applicant on 20 September 2011 and attached a copy of what was said to be the front page of the OPS25 document and stated that it had been and continues to be on the RFDS internet, outlined the history of events surrounding the allegations made by the applicant and advised:

“...

Therefore, I have formed the preliminary view that, by intentionally failing to report alleged safety breaches and workplace hazards to which you, your colleagues or the RFDS’ patrons may be exposed, you are in breach of your obligations under the Occupational Health, Safety and Welfare Act 1986 (SA), the Policy and the RFDS Code of Conduct. Such a failure may result in disciplinary action being taken against you.

I have formed a further preliminary view that, by providing broad and unsubstantiated allegations about your colleagues and the RFDS Board Members, and intentionally failing to provide further information upon request, you are in breach of the RFDS’ Code of Conduct. Such a failure may result in disciplinary action being taken against you. I also confirm the Board’s capacity to commence defamation proceedings against you for the comments made in your emails to me dated 10 and 11 May 2011.

I would like to extend an opportunity to you to respond to my preliminary findings. You are requested to do so by no later than close of business on Monday, 26 September 2011.

If you do not respond within the required timeframe, or choose not to respond at all, I will consider the information available to me and determine whether your behaviour warrants any disciplinary action. If I form the view that your behaviour is sufficiently serious, such disciplinary action may include the termination of your employment.

...”

[81] The applicant attended Dr Notley on 21 September 2011 and obtained a further PMC which stated that he could return to pilot duties as a line pilot in Adelaide with some restrictions as to shifts and consecutive days, or work in the (modified) Port Augusta pilot role.

[82] In early October 2011, the applicant was again referred by EML to Dr Graham to review the applicant’s medical status. Dr Graham concluded that Mr McInnes had a significantly improved capacity for work, that he now did have the capacity to undertake his full pilot duties including assisting and lifting patients and recommended that he commence on the basis of two days per week but was confident that after three to four weeks, he could return to full duties. In evidence, Dr Graham confirmed that whilst he was influenced by the positive reports given to him by the applicant at the time, it was his opinion that the applicant’s capacity had improved.

The mediations and the immediate events leading to the applicant’s dismissal

[83] In late September 2011, WorkCover agreed to initiate mediation between the applicant and the relevant RFDS managers. It did so in the context of the RFDS’s ongoing concerns with Mr McInnes’s conduct.

[84] The RFDS had raised the issues arising from the applicant’s allegations with WorkCover for the first time, after the provision of the conditional medical clearance. Although the applicant perceived this as a further attempt to frustrate the process, objectively, the RFDS had been attempting to deal with the issues over many months and it became a more significant issue at the point that the applicant might be considered for an actual return to work.

[85] WorkCover arranged for a mediator to conduct a separate mediation process involving the applicant and Mr Lynch, Ms Hall and Mr Hocking respectively.

[86] In the lead up to the mediations, the mediator spoke separately to each party and although the parties may have had different expectations, I consider that they were advised to concentrate upon how relationships would be repaired with a view to facilitating a successful return to work. Ms Hall prepared a detailed list of the allegations and the surrounding events and forwarded this to the mediator (and the applicant) ahead of the scheduled mediation.

[87] Mr Cox accompanied the applicant at each of the mediations conducted.

[88] Two mediation sessions were conducted between Mr McInnes and Mr Lynch in December 2011. The applicant retracted the comments made about Mr Lynch and the RFDS Board and verbally apologised to each.

[89] A number of strategies were agreed as follows:

• Mr Lynch would obtain clarification re comments made by the applicant, Mr Hocking and Ms Hall during a case conference held on 12 July 2012.



• The applicant apologised and withdrew any allegations directed towards Mr Lynch in terms of his attitude towards safety or small donors to the RFDS.



• The Applicant withdrew allegations directed towards the Board of the RFDS and in particular, the Board's integrity.



• The applicant agreed to separate mediation meetings with Mr Hocking and Ms Hall.



• Mr Lynch indicated that he was satisfied with the applicant's response to the allegations made in reference to him and the Board.



• The Applicant indicated that his work behaviour and work conversations with RFDS staff would be professional and respectful on his return to work.



• Future conflict and differences would be resolved according to current policy and procedure etc and that performance management had been discussed during recent EBA negotiations and all employees were bound to participate as required.



• It was anticipated that the applicant would commence the return to work process after his return from long service leave and satisfactory resolution of all mediation meetings.



• Confidentiality would be maintained regarding the mediation document.



• The mediator would organise for the applicant and Mr Lynch to sign the mediation agreement. 25

[90] The mediator prepared a mediation outcome document on the basis that this was to be signed by both parties to complete the mediation however the applicant did not sign the document. I will return to the applicant’s reasons for refusing to sign this and the other mediation outcome documents as part of the consideration of this matter.

[91] Separate mediation sessions were conducted between the applicant and Ms Hall and the applicant and Mr Hocking in March 2012.

[92] There is significant dispute about the conduct of the parties in the lead up to and during the mediation involving Ms Hall. There is also a dispute about the agreed outcomes. I have resolved these having regard to the totality of the evidence and my findings as to credit.

[93] I find that during the mediation, Ms Hall emphasised the damaging nature of the applicant’s remarks and sought a retraction and a personal apology. I also find that the applicant was initially reluctant to give the apology to Ms Hall but ultimately did do so during the mediation. It is also evident to me that Ms Hall did not consider that the retraction and apology were genuine and I will also return to this aspect as part of the consideration of this matter.

[94] It is also evident to me that Ms Hall was expecting a personally directed written apology.

[95] As with the earlier mediation, the mediator prepared a mediation outcomes document. Ms Hall sought to make changes to the document and the applicant considered that both the original and the amended document did not reflect the agreed outcomes.

[96] On the day of the final mediation (16 March 2012), Mr McInnes sent a letter addressed to the Board of the RFDS, with a copy to each to Mr Lynch, Ms Hall and Mr Hocking. It read:

“16 March 2012

Dear

Ref: Employment Captain David McInnes

I am writing to you as someone who has been involved in matters concerning my employment at RFDS Central Operations.

I wish to advise that whilst I have been away from employment due to a work related injury there has been significant concerns raised by both the management and myself regarding my return to work.

Unfortunately this has been a very adversarial process and one that I certainly am not used to. This has at times caused me significant personal frustration due to my desire to return to duty as quickly as possible. In the process I have made a number of allegations and aspersions verbally and in writing.

I am formally advising that I wish to withdraw and apologise to the Board, CEO, Manager of HR and Manager of Aviation/Ops for any personal detriment I may have caused to their character and professional responsibilities. It was never my intent to harm or cause damage to the individuals from the actions.

I would hope to put this unfortunate episode behind me quickly and return to duty at the earliest opportunity.

Yours sincerely,

Captain David McInnes

cc: Mr John Lynch (CEO), Mr Barrie Hocking, (GM AV/Ops) Ms Robynne Hall (GM HR)”

[97] A version of this letter was also sent to WorkCover and EML.

[98] Ms Hall did not accept that this letter met the agreed mediation outcome as it was not addressed to her and was not in her view a genuine retraction.

[99] On 11 May 2012, the respondent was advised by the mediator that the applicant did not accept the draft mediation documents, that Mr McInnes had concerns about the withdrawal of the allegations due in part to his concerns about the potential consequences for the disciplinary process being conducted by the RFDS. The respondent confirmed to the mediator that if the applicant signed and complied with the mediation documents it would not take disciplinary action regarding those matters.

[100] On 13 May 2012, Mr McInnes sent a written note to Ms Hall stating that he wished “to apologise for your hurt feelings. I do hope you can understand that I have similar feelings.”

[101] On 13 June 2012, Mr Marshall raised concerns with the applicant about his written communications, set out the issues that should be addressed, and suggested that he deal with these appropriately. The particular focus of this letter was the intended apology to Ms Hall. Mr Marshall also inferred that he was considering making a determination pursuant to s.58B of the WR&C Act to the effect that the RFDS was not obliged to continue to attempt to find suitable work for Mr McInnes. This was confirmed in writing on 25 June 2012 following a request from the AFAP for clarification as to precisely what was being sought by the RFDS.

[102] Mr McInnes on 28 June 2012 wrote to Ms Hall and referred to the WorkCover officer’s correspondence and indicated as follows:

“...

I wish to formally advise you that I withdraw the Allegations.

Further, I apologise for any personal detriment I may have caused to your character and professional responsibilities. It has never been my intent to harm or cause damage to you as a result of the Allegations.

It is my sincere hope that the RFDS and I can move on from these events, and that I can return to work as quickly as possible.

...”

[103] In early July, Mr Marshall indicated to the applicant that he should sign the mediation documents and the AFAP responded noting that Ms Hall had sought to amend the mediation document prepared by the mediator, that the changes were unreasonable, and disputing the foreshadowed s.58B exemption.

[104] On 13 July 2012, the RFDS wrote 26 to Mr McInnes and amongst other matters, questioned the sincerity of the apology to Ms Hall, summarised its views on the history of the allegations and subsequent actions by both parties, and indicated that it had formed the preliminary view that it was appropriate to terminate his employment on the basis that “your actions have irreparably damaged the working relationship between you and the RFDS” and that “your actions constitute gross misconduct.” The RFDS however invited further information from the applicant prior to making any final decision.

[105] Mr McInnes on 16 July 2012 provided a comprehensive written response to the RFDS and amongst other matters stated that it was his “greatest wish to return to work as soon as possible”, he had over 20 years of service that he was very proud of, that his apologies had been sincere and that the issues had been raised by him were “borne out of good faith and were never intended to cause harm or damage to the people involved”. 27 Mr McInnes made a further apology and indicated that he considered that a good working relationship in the future was both possible and likely.

[106] WorkCover advised the applicant, via the AFAP on 9 August 2012, that it had exempted the RFDS from the obligation under s.58B of the WR& C Act to provide suitable work to Mr McInnes. It apparently did so on the basis of an irreconcilable breakdown in the employment relationship.

[107] On 13 August 2012, the RFDS dismissed the applicant largely on the basis of its preliminary views as advised to him on 13 July 2012. The letter of dismissal indicated in part that:

“After extensive consideration of all the information you have provided to date, I have decided that you have engaged in gross misconduct and in a manner that has irreparably damaged your relationship with the RFDS.

Disciplinary action is warranted. I have determined that the appropriate disciplinary action is summary termination. However, in light of your years of service to the RFDS, I have decided to terminate your employment on five weeks’ notice.

This correspondence is confirmation that your employment with RFDS will terminate with effect from close of business on 17 September 2012.”

[108] During the course of the hearing of this matter, Mr McInnes confirmed that he had made each of the major allegations relied upon by the RFDS. Having also confirmed his position on one matter involving Mr Hocking, Mr McInnes was asked in cross-examination by Mr Smith about his intentions when apparently withdrawing the allegations during the mediation process and he indicated as follows:

“PN165........... I was prepared to withdraw all my allegations during the mediation process because the allegations I made were made out of frustration, and I'm pretty embarrassed about making them, but I was prepared to withdraw them. But obviously

PN166  But you still maintain the truth of many of those allegations?---Well I've got - well, that's what it's all about, the truth.

PN167  So you maintain that the allegations you raised were true?---I don't make false allegations.

PN168  Okay, so all of those allegations which we just went through in paragraph 7, you're saying you still maintain that they were true and correct?---I maintain they're true and correct and I was completely comfortable withdrawing them because under normal circumstances I wouldn't make those allegations.

PN169  Right. But to this day you still maintain they are accurate, true allegations you made against those various people?---Well, I feel under a bit of pressure with this because they didn't accept - down the road didn't accept the

PN170  Well it's a simple yes or no answer. Do you maintain the accuracy or ?---Yes.

PN171  You do. So you're saying that effectively none of those allegations were false?---Correct.”

[109] I referred earlier to certain allegations made the Mr McInnes about the status and changes made to what is described by the RFDS as the OPS25 document. The applicant has expressed these allegations variously to include that the document was not a formal part of the operations manual, that it had been brought into place to prevent his return to work, that its contents had been altered to frustrate his return to work, and in these proceedings to the effect that Mr Lynch had concocted a false document and was lying about it. 28

[110] There is little evidence about the status of the document at various times. The RFDS was in a position to lead evidence to confirm that it was part of the formal operations manual and did not do so. The applicant was also in a position to lead evidence from fellow pilots to confirm his contentions. Mr Lynch was not in a position to directly confirm the formal status of the document but did deal directly with the allegation that he had concocted the document.

[111] The evidence does reveal that there has been a written procedure in place for some time dealing with the safe handling of patient loading and the use of the stretcher system. Further, the applicant attended training in relation to what at the time was at least an administration instruction and manual. It is also evident to me that whilst the document was amended to confirm that the pilot should be at the foot end during loading, this was the general practice prior to that time 29 and was added to the document not to frustrate the applicant’s return to work but rather to reflect the objective professional advice provided to the RFDS about the matter.

[112] Further, there is no evidence to suggest that Mr Lynch concocted any document or attempted to mislead the applicant about what he considered to be the status of the OPS25 document.

5. Consideration

Was the dismissal of the applicant unfair?

[113] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

(1) 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.”

[114] There is no dispute that the applicant was dismissed by the respondent, the employer is not a small business within the meaning of the Act and this is not a matter involving a redundancy. As a result, I must consider whether the dismissal was harsh, unjust or unreasonable.

[115] The Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[116] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Fair Work Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality. 30

[117] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[118] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied 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. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 31

[119] In a case such as this, consideration of the conduct as the Commission finds it to be, based upon the evidence before it, must be made. 32 Further, a finding of serious misconduct is a sufficient, but not necessary, condition to establishing a valid reason within the meaning of s.387(a) of the Act.33

[120] Part of the obligations upon employees in an employment relationship is that they comply with reasonable directions from their employer and conduct themselves in a manner consistent with that relationship. The RFDS Code of Conduct 34 confirmed relevant and reasonable employee responsibilities including compliance with reasonable and lawful directions, subject to certain caveats; respect for fellow employee’s dignities, freedoms and individual rights; the need for honesty and integrity; and the obligation to treat others fairly and with respect.

[121] The nature of the RFDS is also reflected into the Code of Conduct in terms of the obligation to act as an ambassador of the respondent at all times and to act so as to ensure public trust in the service. Further, there are constraints on employees making contact with, and providing statements to, the media.

[122] In Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66, Dixon and McTiernan JJ said:

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." 35

[123] I have earlier set out the detail of the allegations and the context in which they were made. Some of the allegations are more serious than others and in some cases the basis of the allegations was identified by the applicant at the time.

[124] Without detracting from the context in which they occurred, it is appropriate to group and consider the allegations and alleged misconduct for present purposes as follows.

That senior management had lied and been deceptive

[125] These allegations were first raised by the applicant in July 2010 and the RFDS almost immediately sought further details or, in effect, a retraction. The RFDS also subsequently proposed having an independent mediator or facilitator to investigate the matters when Mr McInnes raised concerns about the internal process suggested by management.

[126] The RFDS at one point sought to treat the allegations as being closed however the applicant subsequently confirmed that he maintained the allegations. It was not until 9 September 2011 that he provided sufficient details of these matters to enable the respondent to properly understand and investigate most elements of these allegations.

[127] These allegations concern the alleged interaction between management and WorkCover and EML officers. In addition, the applicant’s views about the non-existence of an OPS25 document and suggestions that the contents of the administrative instructions were misrepresented all lie at the heart of these matters.

[128] I observe that the more latter allegation that management may have sought to interfere with a witness (9 September 2011) was a gross and inflammatory exaggeration even of the alleged conduct actually suggested by the applicant as leading to that allegation.

The applicant indicated that he would go to the media

[129] This matter was also raised by the applicant in July 2010 at which time he indicated that Mr Hocking had in effect given him permission to do so. Shortly afterwards, Mr McInnes indicated that he did not intend to do so “at this stage”.

[130] The circumstances of the alleged permission were identified by the applicant at the time and the RFDS could have investigated that matter if it wished to. An approach to the media would have been inconsistent with the Code of Conduct however the applicant did not do so at any time.

The allegations about the conduct and attitude of Mr Lynch

[131] The allegations regarding Mr Lynch were contained in the email of 10 May 2011 as set out earlier in this decision. They include an allegation that Mr Lynch had laughed about what was a serious safety incident. I note that Mr McInnes reported the smoke in the cabin incident through the proper internal and external channels and quite reasonably considered the issue to be serious.

[132] The applicant did not hear Mr Lynch make the alleged statement and relied upon what he had been told by others. To justify the allegation, Mr McInnes would have needed to identify the source of the information.

[133] The reluctance of the applicant to identify others who had informed him of certain matters was perhaps understandable. However, to make an allegation of that nature without being willing to justify it was at best, naive and unhelpful. It is also the case that the RFDS proposed that an independent resource be engaged to advance the allegations if sought by Mr McInnes.

[134] The statements about the attitude of Mr Lynch to small fundraisers and not following the true vision of the RFDS were personal and damaging to their relationship. The applicant made no attempt during the various exchanges whilst employed, or during these proceedings, to justify that position.

[135] I also note what amounts to an additional allegation made by the applicant during these proceedings; namely, that Mr Lynch had personally fabricated, or caused to be fabricated, the OPS25 document and that he was lying about its status. This is a very personal and direct allegation that was not supported by the evidence and not even put to Mr Lynch in cross-examination. This aspect is however not directly relevant to the existence of a valid reason for dismissal as this conduct arises after the dismissal. 36 It is however a useful insight into the applicant’s approach to such matters and is relevant for other purposes.

The Check Pilot

[136] The applicant’s allegation about the Port Augusta based check pilot was a matter that the RFDS rightly sought further details about. This was on face value unprofessional conduct with the potential to impact upon the respondent and the absence of any details from Mr McInnes about that allegation until some months later was not appropriate.

Board Members

[137] The statements about the motivation of the Board members were largely a statement of opinion. The applicant made no attempt during the various exchanges whilst employed, or during these proceedings, to justify that position.

[138] These statements were inflammatory and unhelpful and I find made in the context of the applicant’s frustration at the time. The fact that he evidently still holds these views is also relevant for certain purposes.

Comments about RFDS more generally

[139] The remaining matters arise from two communications from the applicant. On 10 May 2011, the applicant stated that the behaviour of RFDS management was “scandalous and contrary to the public’s image” and that he “could not believe that an organisation that promotes its image on trust can function on deception”. Those comments were apparently related to the earlier allegations of lies and deception by management.

[140] In addition, the applicant claimed on 11 May 2011 that the RFDS had “for many years been putting patients’ lives at risk” and that “operational staff had no idea that this had occurred however management had clearly breached their duty of care by knowingly not stating the case to operational staff” and that “the public should be aware that their lives are being put at risk when being transported by the RFDS.”

[141] The precise basis for these allegations was not identified by the applicant at the time or subsequently. It is a reasonable inference that this was either a somewhat sarcastic response to the external advice provided to the RFDS that led to the clarification of patient loading and unloading requirements, or alternatively, a genuine reference to some other concerns.

[142] Either way, the requirement by the RFDS that the applicant provide further details and incident reports, or an immediate retraction and apology, was very reasonable in the circumstances. The response by the applicant eventually provided on 9 September 2011 referred only to the smoke in the cabin incident, the Check Pilot and his view about claims that the employees were being injured operating the stretcher device.

The applicant’s approach to his Doctors

[143] There is in my view no evidentiary basis for any contention that Mr McInnes’s presentation to the Doctors represented misconduct.

[144] I turn now to consider the overall circumstances including the impact of the ultimate apologies and apparent withdrawal of the allegations.

[145] In assessing the seriousness and consequences of all of the above I accept that there must be room in a workplace like the RFDS for different views about matters that might well be robustly expressed. It is also the case that particular care should be exercised when considering the circumstances in which an employee could have been said to have been exercising their right to raise legitimate safety concerns.

[146] Some of the allegations made by Mr McInnes were general opinions consistent with a person becoming frustrated with the process. It is also relevant that these allegations were not widely distributed by the applicant, and although they were communicated to others outside of the employment relationship, in the case of EML and WorkCover, these individuals had a direct “interest” in these matters. The involvement of the AFAP in the process was entirely appropriate.

[147] However, some of the allegations were very personal, quite inflammatory and lacked sufficient foundation. These should have either been retracted or justified at the earliest stages of this process. There is also no evidence to suggest that exchanges in this workplace of the kind evident here have been condoned.

[148] As alluded to earlier, I accept that the applicant was frustrated by what he saw as the attempts by the RFDS to hinder his return to work. This would explain why some of the allegations were made at the time and the manner in which they were made. However, the seriousness of the matters was identified by the RFDS and ample opportunity was given to either substantiate or genuinely retract the allegations. Further, despite having been dismissed and presumably understanding the significance of them, Mr McInnes in effect maintains all of the allegations and has added a further personal aspect to the allegation in relation to Mr Lynch and the OPS25 document.

[149] At the time of the dismissal, the applicant had not signed the mediation agreements and in the case of Mr Lynch no proper explanation for not doing so was provided by the applicant. In terms of Mr Lynch (and the Board) he had accepted the apologies and withdrawals on face value and subject to completion of the other mediations, a return to work was contemplated.

[150] The apology and withdrawal in the case of Ms Hall had been more problematic and Ms Hall had sought the inclusion of a range of additional matters in the draft mediation agreement. Whilst this arose from Ms Hall’s, perhaps understandable, scepticism about the applicant’s motives, the applicant’s refusal to sign the modified mediation agreement in that context was more explicable. It is not necessary to further deal with the status of the mediation involving Mr Hocking given the state of the evidence.

[151] Given the timing, manner and context in which the ultimate withdrawals and apologies were given, the RFDS had good reason to doubt the sincerity of those statements. Based upon the evidence before the Commission, it is evident that the applicant withdrew the allegations and apologised largely in an attempt to retain his position.

[152] Accordingly, on a superficial level the applicant ultimately met the respondent’s requirements for a withdrawal and an apology. However, given the circumstances applying at the time, including the legitimate questions as to the sincerity of the apologies and the history leading to that point, much of the damage to the working relationships had already been done.

[153] That damage arises from the inflammatory nature of some of the allegations, the lack of a timely response to the requirement to provide further details and to attend meetings to discuss them, and the evident reluctance to either genuinely withdraw and apologise, or to substantiate.

[154] I accept that the fact that some of the allegations were made about managers not in an immediate reporting relationship is relevant. However, the making of allegations against the Chief Executive Officer and the General Managers in the manner that this was done remains a significant matter and the overall conduct of all parties is relevant to the extent that it bears upon whether there was a breakdown in the necessary foundations for the working relationship.

[155] That is, whilst the immediate reporting relationships are the most important, the capacity for the necessary trust and confidence to exist with the organisation as a whole remains an important consideration.

[156] The nature of the RFDS, given the subject of some of the allegations is also a relevant consideration.

[157] I add that I have considered the role played by the WorkCover s.58B Investigation Officer in this matter as part of the factual context. The RFDS, appropriately, did not seek to directly rely upon his conclusions in support of its position. The assessment was made on behalf of WorkCover in a different statutory context and for a different purpose. I have not taken that conclusion into account in determining this matter. I observe however that the “green light” from WorkCover was in all probability of some significance in the decision of the RFDS to proceed with the dismissal at that point.

[158] I am satisfied that elements of the applicant’s conduct represented misconduct, albeit not serious misconduct in its own right. I am however, objectively satisfied that there was a breakdown in the employment relationship caused in large part by the applicant’s conduct to the extent that there was a valid reason for dismissal.

Section 387(b) – whether the applicant was notified of the reasons for dismissal.

[159] The applicant was advised by the respondent on a number of occasions of the reasons ultimately relied upon for the dismissal.

Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to her capacity or conduct.

[160] The applicant was given various reasonable opportunities to respond to the reasons relied upon by the respondent related to his capacity or conduct.

Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal.

[161] The applicant was assisted throughout the latter stages of the disciplinary process and mediation exercise by the AFAP. There was no meeting following the mediation process and positions were exchanged via letters. To the extent relevant, any request by the applicant for a support person, was in any event accommodated by the respondent.

Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether she has been warned about that unsatisfactory performance before the dismissal.

[162] It is not clear that the dismissal is related to unsatisfactory performance in the sense contemplated by s.378(e) of the Act. In any event, the applicant was warned on a number of occasions about the view that the RFDS was taking about his conduct and responses were sought.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[163] The respondent is a large organisation and has dedicated human resources specialists.

Section 387(h) – any other matters that the FWC considers relevant.

[164] The length of the applicant’s employment is an important consideration in this case. The consequences of the dismissal, given the applicant’s age and long career as a pilot are also important further considerations. This includes the absence of disciplinary issues prior to the events leading to the dismissal.

[165] The conclusion reached by the RFDS was that the applicant’s conduct was such that summary dismissal was appropriate however it provided Mr McInnes with five weeks notice.

[166] The AFAP contended that the fairness of the dismissal should be assessed in the context that it was in fact a summary termination. 37 Given my findings, dismissal without reasonable notice would have been harsh. However, I also need to consider the fact that in effect, some pay in lieu of notice was provided to the applicant; albeit at a level which recognised the statutory and contractual notice period, but which did not sufficiently recognise the applicant’s circumstances and the basis upon which I have ultimately found a valid reason.

6. Conclusions on the nature of the dismissal

[167] As required by the Act, I have had regard to all of the considerations raised by s.387.

[168] I have found that elements of the applicant’s conduct represented misconduct and that there was a valid reason for dismissal within the meaning of the authorities based upon the breakdown of the employment relationship.

[169] At the point of dismissal, the applicant had not signed the mediation agreements but had eventually apologised for and withdrawn the allegations largely as required by the employer. Mr Lynch had indicated in effect that subject to completing the other mediations, the applicant could be considered for a return to work. The RFDS position as communicated to WorkCover was that no disciplinary action would be taken if he completed and complied with the mediation agreements.

[170] The subsequent failure to sign the mediation agreements and the questions about the sincerity of the final withdrawal and apologies and the evident damage to the relationships at that point are also important considerations in the present context.

[171] The other circumstances arising from s.387(h) as discussed above are also important considerations.

[172] On balance, I find that the dismissal of the applicant was harsh in all of the circumstances applying at that time. As a result, the dismissal of Mr McInnes was unfair within the meaning of the Act. The precise basis of that finding must however be considered as part of any consideration of the remedy in this matter.

7. Remedy

[173] Division 4 of Part 3-2 of the Act provides as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[174] The prerequisites of ss.390(1) and (2) have been met.

[175] Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is inappropriate.

[176] I note that there are in effect, two alternative forms of “reinstatement” under the Act. Reinstatement to the former position (s.391(1)(a)) or appointing the employee to another position on terms and conditions no less favourable than those on which they were employed immediately before the dismissal (s.391(1)(b)). The latter option has not been advanced and does not properly arise here given the circumstances.

[177] In McLauchlan and Australia Meat Holdings Pty Ltd 38a Full Bench of the AIRC, having considered the language of the Act, which is comparable to the present provision, said:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.

... ...

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:

"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits."

While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.”

[178] I have carefully weighed the various considerations relevant to this assessment. These include the applicant’s conduct and the circumstances applying at the time of the dismissal including the factors leading to the existence of a valid reason, but a harsh dismissal.

[179] The applicant’s long work history, and the evident remedial benefit of a reinstatement order given his occupation and personal circumstances, are also very important considerations here given the policy of the Act.

[180] In terms of the applicant’s medical status and the absence of current flying clearances, these are issues to be considered but are not matters that necessarily militate against a reinstatement order in this case.

[181] I have carefully considered the basis upon which it is suggested that the loss of trust and confidence has occurred in this matter and the impact upon the re-establishment of proper working relationships as required by the authorities. These authorities include The Australasian Meat Industry Employees Union v G& K O’Connor Pty Ltd [2000] FCA 627 and Quinn v Overland [2010] FCA 799 as cited by the AFAP.

[182] I have earlier dealt with the fact that the allegations and fractured relationships are primarily with Managers and others that are not directly involved in the supervision of the pilots. The findings as to the relevance of the broader relationships remain apposite here.

[183] I have carefully considered what I have seen and heard from the witnesses about issues touching upon this consideration. In particular, the genuine and measured, but strong response by Mr Lynch to learning that during these proceedings Mr McInnes had maintained the allegations, is indicative of the difficulties in now attempting to re-establish the employment relationship.

[184] Notwithstanding expressions of embarrassment and apology about the allegations by Mr McInnes, he has maintained the allegations and in effect added to them. This, in my view, adds to the breakdown in relevant relationships and makes reinstatement more problematic.

[185] Despite the nature of the working relationships concerned, the nature of the workplace and the role played by the Chief Executive Officer in particular, mean that these findings also indicate that the conduct of operations in the workplace is sufficiently impacted. That is, in the circumstances I do not consider that a sufficient level of cooperation and mutual trust exists, or is likely to now be feasible, for a proper working relationship to resume between the applicant and the RFDS.

[186] It is unfortunate that the career of a person of Mr McInnes’s age and service has ended in this manner, however those considerations supporting an order for reinstatement are not sufficient to counterbalance the strong competing considerations given the particular circumstances of this case.

[187] In all of the circumstances I find that reinstatement of the applicant is not an appropriate remedy in this matter.

[188] I turn now to consider compensation in lieu of reinstatement.

[189] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). These factors include in ss.(g) any other relevant considerations. Without detracting from the overall assessment required by the Act, it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer’s enterprise

[190] The respondent does not contend that the nature of the compensation sought by the applicant would impact upon the viability of the business.

The length of the person’s service with the employer

[191] The applicant was employed with the respondent for many years and this is a consideration consistent with a significant compensation order being made.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[192] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal.

[193] In part, this needs to be considered in the light of the findings I have made regarding the actual circumstances of the dismissal.

[194] There is also insufficient material before the Commission to permit me to determine the applicant’s anticipated gross remuneration for present purposes.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[195] There is little material presently before the Commission on this aspect. It is clear that prior to the dismissal, the applicant had been undertaking various forms of work hardening and I am unclear as to the extent that such work or other efforts might have been undertaken more recently within the context of his ongoing workers compensation claim.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[196] The applicant was paid five weeks in lieu of notice upon his dismissal. This must be taken into account and should be deducted from the projected remuneration amount when assessed.

[197] The applicant has apparently been in receipt of continuing workers compensation payments since his dismissal, albeit at a rate less than his normal earnings as a Pilot. I have not been given the details of those payments.

[198] Although such payments may not be remuneration earned from employment or work, they have been taken into account by the Commission and its predecessors as a relevant consideration. 39 Such is relevant in light of s.392(2)(g) of the Act.

[199] I am not aware as to whether any income from other employment has been received, or is likely to be gained, by the applicant.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[200] I will need to consider contingencies when a final order is determined. 40

[201] There is relevant misconduct that would need to be taken into account as provided by s.392(3) of the Act.

[202] In accordance with s.392(4) of the Act, I would make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[203] The amount of compensation that is ultimately assessed as appropriate will of course need to be subject to the maximum prescribed by s.392(5) of the Act as applied in this matter.

8. Conclusions

[204] I find that the dismissal of Mr McInnes by the RFDS was unfair within the meaning of the Act.

[205] I find that reinstatement is not an appropriate remedy in this case.

[206] I find that compensation would be appropriate. However, there is an absence of certain relevant material to permit an assessment as to the level of compensation to be determined.

[207] In the circumstances, I will provide an opportunity for the parties to attempt to agree a compensation amount. In the absence of agreement, the following will apply:

1. The applicant is by 5 April 2013 to file and serve a proposed compensation order and supporting materials including an affidavit from the applicant confirming the relevant facts.

2. The respondent is by 12 April 2013 to file and serve its response to the applicant’s proposals and materials, supported by an affidavit to the extent that facts are in issue.

3. In the absence of a request for a further hearing from the parties, I will determine the compensation matter based upon written submissions and supporting material, having regard to the findings already made.

[208] Liberty to apply is granted.

COMMISSIONER

Appearances:

A Molnar, of the Australian Federation of Air Pilots for Mr McInnes.

L Smith, from Normal Waterhouse (with permission) for the Royal Flying Doctor Service of Australia Central Operations.

Hearing details:

2013

Adelaide

January 29, 30, 31

February 12.

 1   Letter of dismissal, 13 August 2012 (Attachment 24 to exhibit A1).

 2   Fair Work Australia became the Fair Work Commission on 1 January 2013.

 3   Applicant’s final written submissions.

 4   Hall - transcript PN 1519.

 5   Reference to WorkCover is to the body charged with the administration of the Workers Rehabilitation and Compensation Act 1986 (SA).

 6   SafeWork SA is the South Australian Work Health and Safety regulator.

 7   Exhibit R3.

 8   Attachment 22 to the statement of Ms Hall - exhibit R4.

 9   Attachment 23 to the statement of Ms Hall - exhibit R4.

 10   Court Book at 95.

 11   Ibid at 98.

 12   Ibid at 99.

 13   Ibid at 100.

 14   Ibid at 102.

 15   Ibid at 103.

 16   Ibid at 104.

 17   Ibid at 106.

 18   Ibid at 109.

 19   Ibid at 112.

 20   Ibid at 113.

 21   Ibid at 115.

 22   Ibid at 116.

 23 Section 58B of the Workers Rehabilitation and Compensation Act 1986 (SA) provides that, subject to tests of reasonableness and certain other limitations, if a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity). Mr Marshall has a role of investigating alleged breaches of that provision and apparently providing “exemptions” to employers who are considering dismissing a worker.

 24   Court Book at 118.

 25   Ibid at 252 - Lynch witness statement.

 26   Ibid at 202.

 27   Ibid at 61.

 28   Including transcript at PN680 to PN687, PN1254 to 1284 and PN1317 to PN1348.

 29   Applicant’s witness statement - Exhibit A1 at pars 7 and 10.

 30   Explanatory Memorandum Fair Work Bill 2008 para 1541.

 31   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C PR948009, 15 June 2004 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

 32   Edwards v Giudice [1999] FCA 1836; King v Freshmore (Vic) Pty Ltd, AIRC Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.

 33   See RMIT v Asher[2010] FWAFB 1200, 3 March 2010 per Watson VP, Acton SDP and Williams C.

 34   Exhibit R1.

 35   At 81-82, with supporting citations not replicated.

 36   See the discussion of ‘after acquired facts’ in Australia Meat Holdings Pty Ltd v I.W. McLauchlan Print Q1625.

 37   The AFAP made reference to the decision of Roe C in Colson v Barwan Health - Geelong Hospital[2013] FWC 766.

 38   AIRC Print Q1625, 5 June 1998, per Ross VP, Polites SDP and Hoffman C.

 39   See Read v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre[2013] FWCFB 762 at par [75].

 40   See the discussion of contingencies in Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.

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