[2018] FWC 4363

FAIR WORK COMMISSION

DECISION

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

Mr Ralf Rodl
v
Qantas Airways Pty Ltd
(U2018/193)

DEPUTY PRESIDENT SAMS

SYDNEY, 13 AUGUST 2018

Termination of employment – long serving Qantas Flight Attendant – employee unable to fulfil inherent requirements of the job – application for an unfair dismissal remedy – non work related injury – applicant off work for over two years – all leave entitlements exhausted – consistent medical evidence of unfitness for flight attendant duties – full medical report sought – offers of voluntary redundancy not taken up – show cause letter inviting further information, including medical evidence – further evidence discloses unfitness for work and no prognosis or timeframe for likely Return to Work (RTW) – applicant’s ‘personal goal’ of RTW in January 2018 – no guarantee job would remain open in the absence of any medical evidence – offers of redeployment refused – primary focus on ‘goal’ of RTW in January 2018 – declaration of fitness five months after dismissal irrelevant – whether the applicant’s dismissal ‘harsh, unjust or unreasonable’ – valid reason at the time of dismissal – opportunities to respond taken up by applicant – ‘harshness’ factors taken into account – dismissal not ‘harsh, unjust or unreasonable’ – ‘fair go all round’ – application for unfair dismissal remedy dismissed.

BACKGROUND

[1] Mr Ralf Rodl commenced employment as an International Flight Attendant with Qantas Airways Pty Ltd (‘Qantas’ or the ‘respondent’) on 10 April 1995. At the time of dismissal, he was employed under the terms and conditions of the Flight Attendants Association of Australia – International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Ltd Enterprise Agreement 2017 (EBA10) on a base salary of $67,466.56. Mr Rodl suffered a severe ankle injury on 28 September 2015, while he was in Germany on annual leave. He has not returned to work since that time and has undergone surgery and rehabilitation over an extended period. He had exhausted all his leave accruals and had been on unpaid leave since 17 October 2016. Following Mr Rodl’s last surgery in early 2017, Qantas met with him on 26 May 2017 to discuss his injury and the prognosis for his Return to Work (‘RTW’). Qantas sought a medical report seeking further information and clarification of his likely RTW. On 6 July 2017, Dr Katrina Wong, Mr Rodl’s General Practitioner, provided a report which stated:

‘As requested is a medical report for the above regarding left ankle fracture sustainedby [sic] the above in Sept 2015 while overseas.

1) the diagnosis of injury was that of an ankle fracture that required open reduction and internal fixation. The surgery was performed overseas in Oct 2015. A further operation was performed to remove one of the screws soon after. Additional surgery to remove the rest of the hardware was performed in early 2016 while again overseas.
2) Mr Rodl is currently not taking any prescribed medication and has been doing his own regular exercises for his ankle after seeing a physiotherapist in the past.
3) while his current situation it would be difficult for him to perform the work duties as described in the Position Description and Work Task Analysis
4) As he has not been working since September 2015 and due to ongoing pain with his ankle it would be difficult to state prognosis or a timeframe when he is able to return to work full-time duties’. He further stated ‘if work restrictions were imposed, it is difficult to state how likely resolve or whether they will remain long-term’.
5) Mr Rodl states that he continues to suffer from pain and swelling after prolonged standing or walking for more than 30 minutes.

Due to these symptoms it would be difficult for him to safely perform his role as a international Flight Attendant with the hours and duties stated. The task that involves the need for constantstanding and dynamic walking would also be difficult for him.

If work restrictions were imposed, it is difficult to state how likely the symptoms would resolve or whether they will remain long term. The option of a trial of shorter or light duties would allow the opportunity to assess his work capacity/symptoms.

Yours sincerely

Dr Katrina Wong’

[2] On 26 October 2017, Qantas met with Mr Rodl to discuss his health and prospects for returning to work. Discussion was had as to his redeployment to an alternative role, given his inability to return to his position as an International Flight Attendant. No specific options were proposed or discussed as Qantas had understood he was not interested in redeployment. Rather, Mr Rodl’s primary focus was on a full recovery to enable him to resume his flight attendant duties.

[3] During Mr Rodl’s absence, invitations for expressions of interest in voluntary redundancy (VR) for Qantas’ Long Haul Cabin Crew had been sought on 9 November 2015 and on 14 June 2017. Mr Rodl was advised of the offer of voluntary redundancy, but did not express an interest in taking up the offer on either occasion.

[4] On 15 November 2017, Qantas wrote to Mr Rodl (the ‘show cause letter’) advising him that based on the medical evidence to date (Dr Wong’s 6 July 2017 report), Qantas was considering terminating his employment, based on medical grounds. He was invited to provide any further information by 29 November 2017, including medical evidence, before any final decision was made. Under the heading ‘next steps’ the letter read:

‘Next Steps

Ralf, we take our commitment to the health and safety of our employees very seriously, and we are under an obligation to ensure that you are not placed at an increased risk of injury. As outlined above, the medical evidence obtained by the Company confirms that you are unable to return to your substantive role as an International Flight Attendant now, or in the foreseeable future. As such, we are considering terminating your employment on medical grounds.

However, prior to making a decision in relation to the status of your employment with the Company, we would like to give you the opportunity to provide us with any further or additional information as to why your employment should not be terminated.

• Identifying normal work, which the Company can reasonably provide that is within your work capability (with supporting medical evidence);

• Identifying whether there are any services or facilities that the Company can provide to enable you to return to your pre-injury role; and/or

• Providing satisfactory medical evidence which confirms that you can safely perform your pre injury role without risk of harm or aggravation to your condition.

We require that you provide this information to us in writing, including any necessary supporting evidence, by no later than 29 November 2017.

If you do not respond by 29 November 2017, or are unable to provide a response which includes sufficient information (including supporting medical evidence), the Company will make a decision about your employment based on the information currently available.

We note that you may be eligible to apply for a benefit under the Qantas Staff Superannuation Plan. Information and application forms can be obtained by contacting Qantas Superannuation directly on [number removed] or if you are a Qantas Super Gateway member on [number removed]. Please advise me if we can provide any assistance in relation to any application you may choose to make.

Ralf, we recognise that this may be a difficult time for you. May I remind you, Qantas provides all employees access to counselling and employee assistance. This is available to you by contacting the Company's external provider on [number removed] or via [email removed].’

[5] Mr Rodl responded in writing on 28 November 2017 and stated:

‘At this stage, I cannot provide any medical evidence, confirming that it would be safe for me to safely perform my preinjury role is without risk of harm and/or aggravation of my condition. I feel that I am continuing to make progress. This is however not a strict linear basis, with some days being more challenging than others’.

‘I mentioned during our ‘face-to-face’ meeting on 26 October 2017, that based on interactions with other patients, my doctor & your consent, I would like to give myself until the beginning of next year (2018) to reflect on and consider my progress and ultimately, my ability to return to work.’

[6] Dr Wong’s most recent medical certificate records: ‘In my opinion the patient is suffering from medical illness/chronic ankle pain and is therefore unfit to work from 29 September 2017 to 27 October 2017’.

[7] Mr Rodl’s employment was terminated on 15 December 2017. In a letter confirming his termination, Ms Jorgensen wrote:

‘Dear Ralf,

Termination of your employment on medical grounds

I refer to our meeting on 26 October 2017, my letter dated 15 November 2017 (Show Cause Request) regarding your ongoing inability to perform the inherent requirements of your position as an International Flight Attendant and your response letter dated 28 November 2017 (Show Cause Response).

Background

As you are aware, you have not been fully fit to perform your role as an International Flight Attendant in Sydney since November 2015. In my letter dated 15 November 2017, we advised you that the Company was considering terminating your employment on medical grounds, and offered you the opportunity to provide us with any additional information you would like us to consider prior to the Company making a decision. This included: suggesting normal work, which the Company can reasonably provide, that is within your current medical restrictions (with supporting medical evidence); advising of any services or facilities that could be provided that would enable you to return to your pre-injury role; or providing medical evidence to indicate that you can perform your pre-injury duties without risk of harm or aggravation to your condition.

Your Response

In your Show Cause Response, you wrote:

'Thank you very much for your correspondence, dated 15 November 2017 and for your ongoing support and empathy.'

'At this stage, I cannot provide any medical evidence, confirming that it would be safe for me to safely perform my pre-injury roles without risk of harm and/or aggravation of my condition. I feel that I am continuing to make progress. This is however not on a strict linear basis, with some days being more challenging than others' .

In you Show Cause Response, you also stated:

'I would like to give myself until the beginning of next year (2018) to reflect on and consider my progress and ultimately, my ability to return to work.'

In reviewing your ongoing employment and your request for more time to reflect on your progress, the Company has considered the available information regarding your injury and your ability to return to your pre-injury duties. This includes both your personal assessment of your conditions but relevantly also the medical report provided from Dr Wong dated 6 July 2017 and received by the Company on 31 August 2017. Relevantly, Dr Wong states that it would be:

'difficult for him to perform the work duties as described in the Position Description and Work Task Anaylsis.'

Dr Wong further stats that:

'As he has not been working since Sept 2015 and due to ongoing pain with his ankle it would be difficult to state a prognosis or a time frame of which he is able to return to work for full time duties.'

Additionally, the most recent medical certificate from Dr Wong dated 27 November 2017 confirms that you are still suffering from chronic ankle pain and remain unfit to return to work.

Given the medical evidence available to the Company (and discussed with you in previous meetings and correspondence), it appears that it is unlikely that you will recover from your injury and medical condition to the extent that you will be able to safely return to performing your normal pre-injury duties in the foreseeable future.

In our meeting on 26 October 2017, we discussed the possibility of redeployment to an alternative position in Qantas. You indicated it was your view that returning to work would impact your treatment plan, and your rest and pain management. You identified that you were excused from jury service for Downing Centre Court on 10 October 2017 for similar reasons. For those reasons, you confirmed that you have not taken steps and were not interested in pursuing redeployment within the Qantas Group.

Outcome

Ralf, in these circumstances, I regret to advise you that the Company has no alternative other than to terminate your employment as an International Flight Attendant in Sydney on medical grounds, effective today. You will be paid any accrued but untaken annual and long service leave (if any). You will also be paid 5 weeks' salary in lieu of notice of termination of employment.

To enable the processing of your final Payroll payments, you are required to complete a Company Property Checklist form with me and return any items of Company property you currently hold.

In addition, we have previously discussed benefits you may be entitled to through Qantas Superannuation. Please contact Qantas Superannuation directly on [number removed] or if you are a Qantas Super Gateway member on [number removed].

Finally, I would like to take this opportunity to thank you for your contribution to International Customer Operations over the past 22 years of service and wish you well for the future. If you have any questions about the above, please feel free to contact me on [number removed].

Yours sincerely,

TeresaJorgensen

Service and Performance Manager’

[8] On 5 January 2018, Mr Rodl (hereafter ‘the applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he sought reinstatement to his substantive position, based on his belief that he would have been ‘fit for work’ on 3 January 2018 and that he could have continued on unpaid or outstanding annual leave until that time.

[9] The application was subject to a telephone conciliation on 6 March 2018, but was not able to be resolved at that time. Accordingly, the file was allocated to Commissioner Riordan for hearing. The Commissioner also attempted to settle the matter which was unsuccessful and he heard the substantive case on 2 May 2018. At the hearing, the applicant represented himself and Ms J Farah, assisted by Ms A Linton appeared for Qantas (the Commissioner had earlier (on 5 April 2018) refused permission for Qantas to be represented by a lawyer, pursuant to s 596 of the Act). On that day evidence was taken from:

• the applicant;

• Ms Jacqueline Jenkins, the applicant’s partner;

• Ms Claire Elliot, Performance and Customer Delivery Manager, Qantas; and

• Ms Theresa Jorgensen, Service and Performance Manage, Qantas.

[10] The hearing did not conclude on 2 May 2018 as documents sought by the applicant under a Notice to Produce were not produced until 12:30pm that day. Ms Farah explained that as she had not conducted an arbitration before, she was unsure if she was to produce the documents, or wait to be asked to. In any event, the Commissioner agreed to the applicant’s request to recall Ms Elliot and Ms Jorgensen in light of the short time he had had to review the documents. Ms Farah did not object and the matter was adjourned for further evidence on the recall of Ms Elliot and Ms Jorgensen and final submissions on 7 May 2018. Due to urgent circumstances, the Commissioner was unable to complete the matter that day and the file was reallocated to me for the purposes just mentioned. I did so on 21 May 2018.

[11] On that day, I explored with the parties whether settlement of the matter might still be possible. The applicant maintained his wish to be reinstated. Ms Farah referred to the applicant’s recent email of 7 May 2018 to Commissioner Riordan, in which he said:

‘On 14 June 2017, Mr. O’Connor (Head of International Cabin Crew & Lounges) invited cabin crew to express their interest in voluntary redundancies. Just as in previous years and out of interest, I responded with an estimate request. This request for detailed information was sent by me on 14 June 2017 and I received the redundancy estimate from QANTAS on 21 June 2017.

As I had a goal to return to work, I did not act on this offer and proceeded with my rehabilitation plan, eventually leading to a full recovery and readiness to return to work on 3 January 2018.

QANTAS Airways was approached on 2 occasions:

Fair Work Conciliation on 23 February 18 with Conciliator Ms. Watt

Fair Work Conciliation on 6 March 2018 with Commissioner Mr. Riordan

QANTAS was asked on each occasion, if a VR package would be available for me as a conceivable outcome to these proceedings. QANTAS rejection this option on both occasions and in the full knowledge that a total 63 cabin crew had either left the company in 2017, or were still in the process of exiting QANTAS with VR packages, 4 of which as late as February 2018.

I am not seeking voluntary redundancy, but sanctioned clarification about the legitimacy of my termination. I am asking for reinstatement to my former position, should it be established by the Commissioner with all of the evidence available, that my termination was illegitimate.

With new material only now come to hand, due to the failure of QANTAS to lodge Fair Work ordered documents on time, I am looking forward to the opportunity to continue to put my case on 16 May 2018.’

[12] In these circumstances, settlement was not possible and the hearing resumed.

THE EVIDENCE

Case for Mr Rodl

[13] The applicant said that since his injury he had exhausted three months of accrued long service leave, three months of accrued annual leave and eight months of accumulated paid sick leave. When all these accruals expired he remained on unpaid sick leave. The applicant claimed that throughout this period he maintained regular contact with Qantas, including two ‘face to face’ meetings and numerous email exchanges with his Managers. He said that in a meeting with Ms Elliot on 26 May 2017, they had discussed a staged RTW. He had resolved to RTW in 2018 and expressed this to management on four occasions, including during his meeting with Ms Jorgensen on 27 October 2017. He believed Qantas had ‘implicitly agreed’ to his RTW in early 2018.

[14] The applicant referred to his current personal circumstances which included:

• his age (60);

• the loss of his life savings of $1.24 million on a failed investment while he was on leave; and

• his reliance on his partner’s income, although she is only employed on a three month casual contract.

[15] The applicant claimed that Ms Jorgensen’s ‘show cause’ letter of 15 November 2017, was ‘unreasonable, unfair and unrealistic,’ given that:

a) he did not open the email until 17 November 2017, leaving him only seven business days to respond;
b) it would have taken several days to obtain an appointment with Dr Wong;
c) it would then take 16-20 days to secure an appointment with an ankle specialist, who would then require further scans and x-rays and then provide a written report;
d) he had no insight into what internal vacancies might be available at Qantas;
e) he could not identify what services or facilities might be available to enable him to return to his pre-injury role;
f) Ms Jorgensen had encouraged him to focus on his recovery and rehabilitation; and
g) he was in a desperate financial position (Ms Jorgensen suggested he use further accrued leave of 24.28 hours. This was agreed).

[16] The applicant said that during his absence he had interacted with four Service and Performance Managers (SPMs) – Ms Elliot, Ms Miller, Ms Watson and Ms Jorgensen. None of these Managers ever raised any objection to his proposed RTW date of early 2018. Had they done so, he would have either modified his rehabilitation plan to obtain suitable temporary redeployment or aim to resume his full Flight Attendant duties.

[17] The applicant criticised at least four emails from Ms Jorgensen (8, 11, 14 and 16 December 2017), as not explicitly articulating his possible dismissal. He maintained that on the day of his summary dismissal (15 December 2017), there was no discussion of his fitness to RTW, his early 2018 RTW target, any earlier RTW date, or any temporary redeployment options. He was simply told his dismissal was justified due to his inability to provide sufficient evidence regarding his fitness to RTW to his pre-injury duties. He left the meeting without any offers of support, and was instructed to return all Qantas property. He noted that he was dismissed nine days before Christmas, without notice, after 22 years’ service. Qantas had only agreed to convert his dismissal on medical grounds to a voluntary resignation; however, he believed this would be misleading to future employers. He claimed he did not receive all his outstanding entitlements until one month later. The applicant was also critical of Ms Jorgensen for not attending the Commission’s Conciliation on 6 March 2018 and in her place Qantas was represented by Mr Robert Chaseling (a person who had a ‘special motive’) and a lawyer, Ms Linton.

[18] During the applicant’s oral evidence, (which I have reviewed from the transcript of the proceedings before the Commissioner) large amounts of material provided by him was accepted into evidence. While much of this material was not in proper form, I accept the applicant has provided to the Commission all the documents he wishes to have taken into account in determination of his case. In addition, he provided dozens of historic complimentary letters from passengers and Qantas’ acknowledgement of his customer service. I accept Ms Farah’s objection that as this matter is not a case of dismissal for poor performance, evidence of his good customer service is not relevant.

[19] In cross examination, the applicant acknowledged that the role of a Flight Attendant is a safety critical role and that as a Long Haul Flight Attendant, his shifts required him to work on a variety of international trips, over multiple time zones and covering a minimum of three days and up to eight days at a time. The applicant could not recall a letter sent to Dr Wong by Qantas (Ms Elliot) on 26 June 2017, setting out his Task Analysis and Position Description and asking her to comment on his role in the context of his injury. There is no dispute that he gave consent for Qantas to seek a report from Dr Wong. He recalled receiving an email from Ms Elliot about a meeting on 26 May 2017, but not the particular letter sent to Dr Wong. Nevertheless, he agreed Dr Wong had discussed Ms Elliot’s letter with him.

[20] The applicant said that in the 26 May 2017 meeting, he had told Ms Elliot that recovery varies due to age and type of injury. He claims to have said:

‘I am at this stage unable to participate in my full recovery’.

‘Given that I am now also scheduled for another unrelated operation would you be able to hold my position until the beginning of calendar year 2018.’

The applicant now conceded that this was his goal, based on talking to his doctor and other runners, but no doctor could predict his circumstances six months into the future. He claimed Ms Elliot gave her ‘implied consent’ to his RTW proposal. However, he now acknowledged there was no commitment to hold his position open until January 2018.

[21] As to the meeting with Ms Jorgensen on 27 October 2017, the applicant accepted he had received Dr Wong’s report, but he insisted they did not discuss it. Ms Jorgensen’s letter had said, inter alia:

‘I would like to meet with you to discuss your recovery to date and expectations from this point forward, including the option of seeking redeployment to an alternative position in Qantas.

Your doctor identified it would be difficult to state a prognosis or timeframe of when you are able to return to work for full-time duties.

This is an opportunity for us to discuss any further support, information relevant to your recovery and the option of seeking redeployment to an alternative position in Qantas.’

[22] In a letter from her after the meeting she had said:

‘I did acknowledge Dr Wong's report dated 6 July and understood that you do not expect to be able to return to your pre-injury duties as a long-haul flight attendant in the future.

We discussed the option of seeking redeployment to an alternative position in Qantas. However it was apparent that your primary focus is recovery and successful redeployment to an alternative position does not appear likely.’

[23] The applicant rejected Ms Jorgensen’s evidence that they had discussed Dr Wong’s 6 July 2017 report. The applicant agreed that Dr Wong’s medical certificates throughout his absence were in the same form; see para [6] above. He agreed he produced no medical evidence in this meeting that he would be fit to RTW in a few months and he acknowledged Ms Jorgensen did not commit to keeping his role open until January 2018. He denied they discussed options for redeployment; rather, they had agreed he should concentrate on a full recovery, rather than taking on a redeployment role, so he could come back in January 2018. He conceded he had no medical evidence to support this, because his doctor would not ‘sign off’ two months ahead.

[24] After receiving the ‘show cause’ letter of 15 November 2017, the applicant attended an appointment with Dr Wong on 27 November. She gave him a Medical Certificate (in the same form as all the others), for the period 27 November to 2 January 2018. She obviously could not predict if he would be fully fit in six weeks’ time. He conceded she did not even open that possibility. Dr Wong expressly said she was not in a position ‘to certify my ability to safely descend from a Boeing 747’. The applicant acknowledged that he had never consulted an Australian based specialist in respect to his injury and since his return to Australia in 2015 he had only relied on his GP.

[25] In his reply to the ‘show cause’ letter, the applicant agreed:

• he did not mention he was confident to RTW to his pre-injury role in January 2018;

• he did not provide any medical evidence he would be fit to RTW in January 2018, and

• he did not assert any commitment by Ms Elliot or Ms Jorgensen of keeping his role open until January 2018.

[26] In answer to questions from Commissioner Riordan, the applicant agreed he did not comment in his reply to the following proposition in the ‘show cause’ letter:

In these circumstances successful redeployment to an alternative position does not appear likely.

He had merely responded:

Interactions with other patients, my doctor, and your consent, I would like to give myself until the beginning of next year to reflect on and consider and ultimately determine whether or not I'm going to go back to work.

[27] While critical of the short time to reply to the ‘show cause’ letter, he agreed he did not ask Qantas for more time. This was because he believed the 29 November 2017 was a deadline. He conceded he did not ask Dr Wong to advise his condition was improving. The applicant claimed he was ‘perfect’ on 2 January 2018, although he did experience occasional pain. At the time, he was walking four-five hours a night and he was confident he could do so on a long haul flight. He denied he ‘picked’ the date (2 January 2018) - he had only ‘suggested’ it. He believed he had ‘implied consent’ to this date and had been told so by Qantas Management as early as May 2017.

[28] In further cross examination, the applicant rationalised that he was not absent from work for more than two years, due to an injury; rather, he explained that he had taken long service leave and annual leave during this period. However, he then agreed he had been unfit for pre injury duties for in excess of two years and any RTW would be conditional upon him providing medical evidence of his fitness, not just his personal view. His GP was not prepared to provide that clearance then, or at some point in the future.

[29] The applicant agreed that in the five months since his dismissal, he has not sought or provided any medical evidence to confirm that he was fit to RTW in January 2018, or at any time subsequently. He had applied for two jobs since his dismissal, but was unsuccessful. He was hoping to return to Qantas.

Ms Jacqueline Jenkins

[30] I note Ms Farah objected to Ms Jenkin’s statement in which she purports to give evidence about a meeting she was not present at (27 October 2017) and an historical issue, dating back to 2015, which had been resolved.

[31] Ms Jenkins, the applicant’s partner attended the meeting with him and Ms Elliot on 26 May 2017. She said she took notes during the meeting (these notes were not attached to her statement or otherwise provided).

[32] It was Ms Jenkins’ recollection that Ms Elliot had discussed a staged RTW and her partner had raised a RTW in early 2018. Ms Jenkins did not attend the 27 October meeting with Ms Jorgensen. However, she claimed her partner told her he found Ms Jorgensen to be supportive and it was refreshing to have a reasonable, non-combative Manager. He had mentioned to Ms Jorgensen a RTW in early 2018, and Ms Jorgensen had agreed. Ms Jorgensen said her partner was shocked and upset when he was terminated, as he believed the earlier ‘show cause’ letter did not reflect what he and Ms Jorgensen had discussed previously.

[33] Ms Jenkins referred to an issue her partner had with his previous Manager, Mr Chaseling in 2015. There had been an allegation raised by her partner against Mr Chaseling. A meeting was organised to discuss it with Mr Chaseling. She had also attended. When her partner refused to answer a question, Mr Chaseling was furious and raised his voice. Mr Chaseling’s pursuit of her partner resulted in an escalation of the conflict to HR and several more meetings were held. Ms Jenkins had raised this matter now to highlight Mr Chaseling held a long standing grudge against her partner and as Mr Chaseling was now Ms Jorgensen’s Manager, it was reasonable to conclude he was using the situation as an opportunity to terminate his employment.

[34] In further oral evidence, Ms Jenkins confirmed she was present in the meeting with Ms Elliot on 26 May 2017 and had been the only one taking notes. She insisted that her partner had suggested January 2018 as RTW date. No one objected to his suggestion. Ms Elliot had mentioned a staged RTW.

Case for Qantas

Ms Claire Elliot

[35] Ms Elliot’s responsibilities in 2015 included managing employees who were absent from work due to illness or injury. In November 2015, Ms Elliot advised the applicant she was his new Service and Performance Manager (SPM). She maintained contact with him from that time until early 2017 in order to understand his injury and progress for a RTW. She received a series of medical certificates from Dr Wong certifying him unfit for work.

[36] Ms Elliot met with the applicant and his partner on 26 May 2017. The meeting was to obtain further information about his condition and arrange for a report as to his prognosis. Ms Elliot took notes at the meeting and attached them to her statement. Ms Elliot could not recall the applicant mentioning at any stage, that he had a goal or expectation of a RTW in January 2018, (although her notes disclose that he had said he hoped to RTW in early 2018). She certainly made no commitment that Qantas would hold his position open until January 2018. At that point, Ms Elliot had no medical information about the applicant’s capacity (or otherwise) to RTW as a Flight Attendant. She had explained that if he became fit to RTW, a graduated RTW program would be considered. The applicant gave Ms Elliot permission to write to Dr Wong requesting information about his medical condition and capacity to return to his pre injury duties. Ms Elliot ceased her SPM role on 3 July 2017. Dr Wong sent her report (dated 6 July 2017) to Qantas on 31 August 2017 after it became clear that the medical practice had mistyped Ms Elliot’s email address and her report had been misdirected.

[37] Ms Elliot said that Qantas sought expressions of interest (EOIs) from all Cabin Crew, including the applicant, for voluntary redundancy on 14 June 2017. The applicant did not submit an EOI and had never asked her about voluntary redundancy. She was not aware of voluntary redundancies offered to Cabin Crew outside the EOI acceptance period (6 – 13 July 2017). Ms Elliot explained that the 14 June 2017 offer of VR to all Cabin Crew opened on 6 July 2017 and lapsed on 13 July 2017 - a time when she was no longer the applicant’s Manager. However, between 14 June and early July, the applicant had never raised any interest in VR with her.

[38] In a reply statement, the applicant said that neither he nor his partner observed Ms Elliot taking notes during the meeting on 26 May 2017. This meeting was the first time he suggested his goal of a RTW in January 2018. His goal was based on ‘consulting with fellow patients and recreational runners to provide Qantas with [an] unambiguous timeframe’.

[39] In oral evidence, Ms Elliot reiterated that she had taken notes at the meeting on 26 May 2017. Ms Elliot agreed that when the applicant mentioned his aspiration of a RTW in January 2018, she did not suggest any other date, because at that time Qantas had no medical information to indicate any RTW timeframe. During the meeting, they had not pursued any phased RTW program, because there was no medical evidence to commence discussion as to what a RTW might look like. Ms Elliot could not make any further decisions as she ended her role as managing the applicant on 3 July 2017.

[40] In answer to questions from Commissioner Riordan, Ms Elliot believed that Qantas did not seek any independent medical report because at that time (26 May 2017) she had sought a report from his treating doctor, Dr Wong. She understood that whether an independent medical report was sought by Qantas, was a matter dealt with on a ‘case by case’ basis. Ms Elliot said she did not have a conversation with the applicant, at the time, about the shortly to be announced VR programme, because the offer was sent to all Cabin Crew, including the applicant. She did not consider it was appropriate to encourage him to take or not take VR. It was entirely up to him.

[41] In re-examination, Ms Elliot said, in her experience, not all employees who are dismissed for medical reasons for non-work related injuries, are sent for an independent medical examination. This would only occur if the nominated treating doctor’s information was unclear or confusing. It would not have been appropriate to proceed to an independent medical examination, as Qantas had not received Dr Wong’s report at that point. The first step is to gain an understanding from his treating doctor, who knew his history as to his treatment, how he was progressing and whether there were anticipated timeframes for a RTW. Ms Elliot confirmed that before an employee is dismissed in these circumstances, a ‘show cause’ letter is issued and the employee is provided with an opportunity to provide any additional information, including further medical evidence, as to why dismissal should not take place.

Ms Teresa Jorgensen

[42] Ms Jorgensen has been employed by Qantas since 7 August 2017. As Service and Performance Manager (SPM), Ms Jorgensen is responsible for the management of around 250-300 Flight Attendants. She reports to Mr Robert Chaseling, Manager Customer Experience, International Cabin Crew and Lounges. There are 10 SPMs responsible for International Cabin Crew in Sydney.

[43] Ms Jorgensen took over management of the applicant in October 2017 and was made aware of his medical issue. She acquainted herself with all of the relevant information and documentation concerning to the applicant’s recent employment history. Ms Jorgensen met with the applicant on 27 October 2017. She set out part of their conversation as follows:

Mr Rodl: My body is not responding as quickly as I would like. Some days are better than others, but it is not a linear process and I am not seeing the recovery I had hoped for.

Mr Rodl: I am frustrated as I used to run marathons and now I am barely functioning outside of the house. I've removed myself socially from a lot of situations.

Mr Rodl: I have a treatment plan that I have developed. In particular, I use an icing technique that requires frequent icing of my ankle.

Mr Rodl: I have challenges with pain management.

Mr Rodl: My partner is an excellent support. We have had some financial challenges because we have moved from two incomes to one income. I have difficulties affording ice cubes for my treatment.

[44] After referring to Dr Wong’s 6 July 2017 report they had the following exchange:

Ms Jorgensen: The report from Dr Wong says that you ‘continue to suffer from pain and swelling after prolonged standing or walking for more than 30 minutes’. It also says that ‘it would be difficult to state a prognosis or a time frame of which he is able to return to work for full time duties’. Do you have any comments to make?

Mr Rodl: I am making progress with my treatment plan and I have a goal of January 2018.

Ms Jorgensen: We need you to be fully fit for your duties before you can return to work as a flight attendant. The medical report from Dr Wong does not suggest that you are going to be able to return to work in the near future.’

[45] Ms Jorgensen understood that while the applicant had a personal goal of a RTW in January 2018, he did not say he would be better by then, nor did Dr Wong’s report suggest, that in her opinion, he was likely to RTW in January 2018. Ms Jorgensen stressed she made no commitment about keeping the applicant’s job open until January 2018.

[46] Ms Jorgensen then set out their conversation about redeployment as follows:

Ms Jorgensen: Do you have an interest in working in the Terminal in a customer facing role?

Mr Rodl: I couldn't face the public and those challenges in my current condition.

Ms Jorgensen: What about something at the Mascot Campus that would not be customer facing?

Mr Rodl: I would face the same pressure. I have specific times for my icing technique and performing duties wouldn't support my treatment plan. My pain keeps me up often throughout the night so I am not getting much sleep. My recovery is my priority, so coming back and performing work would impede my recovery.

Ms Jorgensen: So am I hearing that you feel that redeployment would not be an option?

Mr Rodl: Yes, redeployment would not be an option.

At one point in the meeting we had an exchange in words to the following effect:

Ms Jorgensen: If returning to Qantas is not an option, do you have an aspiration of where you see yourself?

Mr Rodl: I was thinking about a sea change to Hobart actually, that is something I would look at.

Towards the end of the meeting, Mr Rodl and I had a discussion about next steps. During our conversation, Mr Rodl and I exchanged words to the following effect:

Mr Rodl: I understand that the Company needs to make a decision at a point in time which may lead to termination.

Ms Jorgensen: Yes, the Company will be considering that. I will consult with the leadership team to determine next steps for review of your employment based on the available medical evidence. We will send you further correspondence in the near future about next steps.

[47] Ms Jorgensen wrote to the applicant on 2 November 2017 confirming the outcome of the meeting and her understanding that the applicant was not expecting to return to his pre-injury duties in the foreseeable future. The applicant responded on 6 November 2017.

[48] Ms Jorgensen referred to the contents of the 15 November 2017 ‘show cause’ letter; see para [4] above. It was Ms Jorgensen’s evidence that, at no stage, did the applicant ask for more time to respond to the ‘show cause’ letter. Ms Jorgensen had indicated that she was available at any time to meet him and discuss the details. The applicant’s response letter of 28 November 2017 said:

• Due my ongoing treatment regime (e.g. RICE, physiotherapy) and your own in-house assessment, you stated that it would be difficult for me to conduct alternative work. For the same reasons I also had to excuse myself from compulsory juror duties (see attachment)

• At this stage, I cannot provide any medical evidence, confirming that it would be safe for me to safely perform my pre-injury roles without risk of harm and/or aggravation of my condition

• I feel that I am continuing to make progress. This however not on a strict linear basis, with some days being more challenging than others mentioned during our 'face to face' meeting on 26 October 2017, that based on interactions with other patients, my doctor & your consent, I would like to give myself until the beginning of next year (2018) to reflect on and consider my progress and ultimately, my ability to return to work.

[49] Ms Jorgensen noted that the applicant had provided her with details of being excused from jury duty on 15 November 2017 due to his injury. He also provided an updated medical certificate from Dr Wong indicating he remained unfit for work due to chronic ankle pain. Ms Jorgensen set out the reasons why she decided to terminate the applicant’s employment as follows:

(a) The medical report provided by Dr Wong dated 6 July 2017, including, in particular, the comments made in the medical report which stated, ‘it would be difficult to state a prognosis or a time frame of which he is able to RTW for full time duties.’

(b) The further medical certificate provided by Mr Rodl dated 27 November 2017, which stated that Mr Rodl was suffering from ‘medical illness/chronic ankle pain’, and remained unfit to work from 27 November 2017 to 2 January 2018.

(c) In response to the ‘show cause’ process Mr Rodl had not provided any medical evidence which suggested that he would be fit to RTW in the near future or provided an expected RTW date.

(d) Mr Rodl's comments that: ‘I would like to give myself until the beginning of next year (2018) to reflect on and consider my progress and ultimately, my ability to return to work’ did not go so far as to say that he was confident that he would in fact be able to return to his substantive role in January 2018 and were not supported by any medical evidence to this effect. Based on what Mr Rodl had told me about his recovery, I understood that his recovery to date had not progressed as he had expected it to.

(e) As at November 2017, Mr Rodl had been absent from the workplace for a period of over two years. Mr Rodl had exhausted his entitlements to paid sick leave post-12 November 2017. I did coordinate 24.28 hours paid sick leave for pay period 12 November 2017.

(f) Mr Rodl had confirmed in the meeting of 27 October 2017 that he did not want to consider redeployment to an alternative role within Qantas because this would impact his treatment plan. The information provided in his ‘show cause’ response in relation to him being excused from jury duty confirmed this position.

[50] Ms Jorgensen said she was confident with Dr Wong’s regular assessment of the applicant’s condition and capacity which had remained the same, confirmed as recently as 27 November 2017.

[51] Ms Jorgensen described the meeting she had with the applicant on 15 December 2017. Mr Robert Stanley Jones, another SPM, attended and took notes. Ms Jorgensen set out some of their conversation as follows:

Ms Jorgensen: Hi Ralf, how are you today, as you are aware I have Robert in the room with me to take notes, but to be clear, the conversation will be just between us. Would you like to come in and take a seat? How are you feeling this morning?

Mr Rodl: I got up and had a very brief walk today, but overall I haven't seen any significant change in my condition.

Ms Jorgensen: Ok, thank you for the update.

Ralf, I understand we have met previously and I have followed up with you with your show cause response. I now need to discuss the Company's decision. Here is a copy of the letter I would like to give you.

Mr Rodl: I will read this on the weekend.

Ms Jorgensen: I understand that, but during our meeting now I need to take you through what this letter means from the Company perspective.

[I then read through my letter dated 15 December 2017].

Ms Jorgensen: The Company recognises your service with Qantas. We are not denying the performance you did achieve. This decision is completely due to medical reasons. You are not fit to perform your role.

[52] Arrangements were made for the return of all company property and the applicant was paid five weeks’ notice and outstanding entitlements on 3 June 2018.

[53] Ms Jorgensen understood the applicant had been invited to submit an EOI for VR in July 2017. He did not apply at the time, nor did he request to be considered for VR outside the acceptance time period for the EOI process.

[54] In a reply statement, the applicant observed that Ms Jorgensen reports to Mr Chaseling; a Manager he had lodged a bullying claim against in June 2014. He now believed Mr Chaseling may have had a direct involvement in his case. His dismissal may be related to a ‘residual grievance’ Mr Chaseling had against him.

[55] The applicant criticised Ms Jorgensen for raising private matters in their meeting on 27 October 2017, which he believed was a relaxed and informal meeting in which he had described his personal feelings in an open and frank manner (presumably, he would criticise her if she had been cold or hostile).

[56] The applicant emphasised that Dr Wong was not prepared to forecast his fitness six months in advance. Ms Jorgensen did not object to his goal of January 2018 to RTW or make any suggestions for an alternative return date. The applicant denied that specific redeployment options were discussed. He had not said ‘redeployment was not an option’. He claimed Ms Jorgensen had agreed it was better to focus on his full recovery for a RTW in January 2018. He denied making any comment about resigning and moving to Tasmania. He claimed that he repeatedly indicated he was making progress. He said his follow up letter made no mention of him being doubtful of a full recovery.

[57] The applicant continued to maintain he had insufficient time to properly respond to the ‘show cause’ letter. His focus, in any event, was on a full recovery. The applicant said he was recently summonsed for jury duty and attended a trial in February 2018.

[58] In further oral evidence, Ms Jorgensen said that Mr Chaseling did not give her any directions in relation to terminating the applicant’s employment. She was not even aware there had been an issue between them. Ms Jorgensen said that at present she is managing about 10 employees who are on extended sick leave. She insisted that she had no authority to keep a job open to a date nominated by the employee.

[59] In cross examination, Ms Jorgensen said that it was her decision to terminate the applicant’s employment after consultation with Industrial Relations and the Performance, Culture and Customer Operations leadership. She did not involve Qantas Medical, as she had relied on the extensive history, involving Dr Wong’s treatment of the applicant. It was Dr Wong’s consistent opinion that he was unfit for work due to his chronic ankle pain. Ms Jorgensen was confident with her recollection of their two meetings, as she had fully prepared for both meetings, after consideration of the extensive history of the matter.

[60] Ms Jorgensen accepted the applicant had raised his goal of RTW in January 2018 in their meeting on 27 October 2017 and in his reply to the ‘show cause’ letter. She noted she did not mention this date in any correspondence to him because it was his goal. It was not based on any relevant medical evidence of his treatment, his recovery or his prognosis.

[61] Ms Jorgensen agreed she did not offer the applicant further leave accruals after 15 December 2017, because the ‘show cause’ process had commenced on 15 November 2017. She noted the applicant did not request more time to provide further information. In fact, he submitted a further medical certificate from Dr Wong, dated 27 November 2017. Ms Jorgensen said the applicant would not have been unaware of what Qantas required in respect to his RTW because Dr Wong had previously been asked about the Flight Attendants’ Task Analysis and Position Description. He had been treated by the same doctor throughout the process. Dr Wong had received Qantas’ requirements and was well aware of what was expected. Ms Jorgensen said she would have anticipated Dr Wong to give an expected RTW date and a timeframe. Had there been some indication of alternative duties, it would have been considered; but Dr Wong’s reports were consistent and unequivocal, that the applicant was unfit for any work. Ms Jorgensen said she was not qualified to know how long it would take to get a specialist opinion, or time frames which might be predicted by a medical practitioner into the future.

[62] Ms Jorgensen confirmed that she had discussed redeployment options with the applicant, but his primary focus was on a full recovery. In any event, there is no redeployment policy for employees not under Workcover, as is the case here. She reiterated he raised moving to Hobart as a ‘sea change’. Ms Jorgensen denied it was ‘harsh’ that the applicant was dismissed after indicating on three occasions in 2017 he expected to come back in January 2018. He had been off work for over two years and with no medical evidence indicating any likely return, the ‘show cause’ process was undertaken. Of course, it was not ideal timing (just before Christmas), but no time is ever ideal.

[63] In re-examination, Ms Jorgensen said that after the 27 October 2017 meeting she made further inquiries and established the applicant had 24.28 hours of accrued sick leave and this was paid to him. Ms Jorgensen agreed that had the applicant provided medical evidence in November or December 2017, of him being fit for pre-injury duties, or any duties, there would have been an opportunity for Qantas to reconsider the decision.

[64] Ms Jorgensen confirmed that there is no obligation on Qantas to redeploy an employee who has a non-work related injury. If such an employee expresses an interest in redeployment they must still undergo a recruitment process. Moreover, Qantas cannot force such an employee to undertake redeployment. The applicant had a clear and unambiguous view that he was not interested in redeployment. His focus was on a full recovery. Ms Jorgensen confirmed that Qantas does not return injured employees to work, based simply on when the employee thinks they are ready - relevant medical evidence must be provided.

Witness recall

[65] Ms Elliot and Ms Jorgensen were recalled to give evidence on the documents produced by Qantas, under a Notice to Produce dated 16 March 2018, which included:

• Management of Ill and Injured Employees – Guiding Principles;

• Qantas Group Guidelines – Fitness for Work 26 October 2017; and

• List of Flight Attendants who accepted VR, including four who were outside the EOI period.

[66] Ms Elliot was asked about the matrix in the Guiding Principles document which identifies one of the ‘Aims of Discussion’ in ‘Review Meetings’ to:

● Discuss medical certificates with employee upon receipt. As a guide, the Manager should ask their employee:

- How they are feeling
- how long they expect to be away from work
- any support the manager can provide
- sick leave and other leave balances
- when manager should contact employee again

● If unable to discuss with employee confirm this in an email

[67] Ms Elliot said the purpose of their meeting on 26 May 2017 was to obtain a written report from the applicant’s doctor, so Qantas could understand his diagnosis, long term prognosis and RTW. Ms Elliot said she also summarised their meeting in an email, sought his authorisation to contact his GP and provided him a copy of her letter to Dr Wong. She would not have directed him to the National Injury Management Program, because that relates to work related injury. It was not necessary to have a HR person present at the meeting. In any event, Ms Elliot said this document is not a policy document; but identifies ‘guiding principles’ to be applicable depending on the individual circumstances of each case.

[68] Ms Jorgensen said that the meeting on 27 October 2017 was the initial fitness for work meeting in order for her to understand the applicant’s position, discuss redeployment and gauge the next steps in the process. She emphasised the document outlined guiding, not prescriptive, principles. The ‘show cause’ letter was part of a step by step procedure, in which at all times, the applicant was found unfit for a RTW by Dr Wong. Ms Jorgensen said that of course, the 6 July 2017 medical report was 6 months old, but all subsequent certificates, even the last one of 27 November 2017, all said the same thing. Ms Jorgensen agreed the applicant had a certificate up to 3 January 2018, but there was nothing to suggest he would be returning to pre-injury duties in January 2018.

[69] Ms Jorgensen was referred to cl 12 of the Fitness for Work Guidelines which said at ss (d):

‘If the Manager still does not have sufficient information to address the fitness for work concern, consult with Qantas Group Medical Services about whether the employee should be required to attend a fitness for work assessment in accordance with section 13 below.’

[70] Ms Jorgensen said that referral to Qantas Medical is not prescriptive. Given Dr Wong had provided consistent medical advice based on a Flight Attendant’s Task Analysis and Job Description, she believed that obtaining further advice from Qantas Medical was unnecessary. Ms Jorgensen observed that referral to Qantas Medical might only occur if there was insufficient or inconsistent information as to medical fitness, neither of which applied in this case. In re-examination, Ms Jorgensen said it was unnecessary to have a meeting with the applicant after receiving his ‘show cause’ response, because there was no new medical evidence to follow up with him and he continued to express his recovery was not going according to his expectation, including his inability to participate in jury duty on 15 November 2017.

SUBMISSIONS

[71] Both parties filed detailed written submissions which were largely repetitive of their statement evidence and cross examination. The applicant and Ms Farah summarised their respective positions orally. I set out the relevant transcript extracts in full below:

For the applicant

Thank you. Deputy President, thank you very much for allowing me to bring my unfair dismissal case to the Fair Work Commission. After sustaining a complicated ankle fracture I had to undergo three operations including the insertion and subsequent removal of eight screws and a titanium plate. I took all of my considerable accumulated annual leave and long service leave before transitioning into paid and unpaid leave.

I first met Qantas Manager, Ms Elliott on May 2017. I suggested at January 2018 return to work during this meeting. The metalware in my left ankle had only just been removed and eight holes in my fibula needed to be filled again. I based this return to work date on the advice of my orthopaedic surgeons, my treating doctor, other patients and members of my local sports fraternity. Not receiving any objections from Ms Elliott, I started to work on my detailed rehabilitation program.

I wanted to be confident of being able to do all of my flight attendant duties including a safe decent from a 10 metre emergency escape slide, without the danger of refracturing my left ankle. I repeated this return to work date on at least three more occasions with two different managers and never received any objections or suggestions for an alternative date.

Ms Jorgensen, my latest manager was appointed to Qantas in August 2017. We met on a single occasion on 27 October 2017 and she subsequently dismissed me on 15 December 2017 on the grounds of a historical medical report. With her lack of medical qualifications, she clearly misinterpreted it. Ms Jorgensen did also not consult with the Qantas Medical department, order an independent medical exam, seek an external medical opinion or speak directly with my GP despite being in possession of a signed authority from me to access all information from my treating doctor.

There were no discussions about my show cause letter on the day of my dismissal. Next steps or agreement on a termination date were also not discussed as outlined in the Qantas Injury Management Guidelines. It was only on the day of my dismissal, that I learned that I still had 26 days of leave owing, which I could have used to reach my January 2018 return to work date. This was noted as an attachment on my termination letter.

During these hearings, Commissioner Riordan repeatedly asked Qantas if a VR payout could be made available to me and he was repeatedly informed that the offer was off the table for me. A total of 63 cabin crew were still in the process of leaving Qantas through an orderly VR process, some as late as February 2018, more than two months after my dismissal.

Based on documents provided by Qantas to the Fair Work Commission, it has now become, in my opinion, evident that my termination was rushed and highly improvised by a newly appointed manager. This, just days from Christmas and a couple of weeks from my repeatedly stated return to work date. Mr Jorgensen has stated that there were no other alternatives than to terminate my employment which I think is incorrect.

My own preparation for the last hearing was also hampered by the failure of Qantas to produce the ordered information on time, an order which originally dismissed by Ms Farah as a fishing expedition. An (indistinct) lawyer, seconded to Qantas around the time of my dismissal, continued assisting Qantas throughout these hearings, despite Qantas being denied permission for legal representation. Ms Linde was also present during all phone and face to face consultations, and once accompanied by Mr Chaseling, a Qantas Manager, whom I once reported in a bullying and harassment claim which was resolved in my favour.

My family and I have been deeply impacted by this dismissal. When making a decision, I would ask the Commission to consider my 22 years of service despite an application by Qantas at the last hearing to have this evidence dismissed. I have often gone above and beyond my duties at Qantas, including regular applications of my paramedical skills to passenger and crew and just prior to my injury, restraining a violent passenger who had physically assaulted a colleague during a flight.

In my time of need with my injury, I would have expected better than the treatment that I received from the Qantas management team. The outcome that I'm seeking is reinstatement from the date of my termination to my former role as a long-haul economy class flight attendant.

For Qantas

[72] Ms Farah submitted that:

The key factual matters in this case are not in issue. Mr Rodl suffered a non-work related injury to his ankle, as you know, in September 2015 when he was holidaying in Germany. From that time onwards, he was not fit to return to work as a long-haul flight attendant at Qantas. During his absence, Mr Rodl provided regularly medical certificates to Qantas, always from his treating doctor, Dr Katrina Wong, which certified him as totally unfit to return to work.

Dr Wong, as you may know was his treating doctor throughout the entire relevant period. During his absence, of over two years, Mr Rodl exhausted all his paid leave entitlement, annual, long service and personal which amounted to approximately 13 months of paid leave. Thereafter, although it was not obliged to - and you will note that even from the guidelines that were tendered today, Qantas allowed Mr Rodl to take unpaid leave from October 2016 to December 2017, resulting in him being absent for work for more than two years.

In May 2017 he met with his service and performance manager, Claire Elliott, prior to which Mr Elliott had asked Mr Rodl to provide updated medical information from his treating doctor. Mr Rodl did not bring a report from his treating doctor to that meeting, however it was clear from his own information that he disclosed during that meeting, that he had a long way to go in his recovery.

Following the meeting, Ms Elliott wrote to Dr Wong and obtained a medical report from her in relation to Mr Rodl's fitness for work. Mr Rodl was aware of this and was provided with a copy of Qantas' letter to Dr Wong and the attached task analysis form.

Dr Wong responded and expressed the opinion that MR Rodl was not fit to work as a flight attendant and that she was unable to say when he would be fit. The Commission should find that at no time was Mr Rodl told his employment would remain open until January 2018. Further and importantly, there is no medical evidence to support even a likelihood that Mr Rodl would be fit to resume work in January 2018. The evidence supports only that Mr Rodl hoped or had a personal goal of returning to work by January 2018.

The notes taken by Mr Rodl's support person and partner, Jackie Jenkins, in the meeting with Ms Elliott on 26 May 2017 states:

R said he hopes things go well and returns to work early 2018.

Similarly, in Mr Rodl's own response to the show cause process, Mr Rodl only stated:

I would like to give myself until the beginning of next year to reflect on and consider my progress and ultimately my ability to return to work.

At no stage, did Mr Rodl say that he was confident that he would be fit to return to work in January 2018 and he provided absolutely zero medical evidence to the effect that he would be fit to return to work in January 2018.

As you've noted, Deputy President, even now, in May 2018, in the plethora of material that has been provided by Mr Rodl in the course of these proceedings, there is no medical evidence as his fitness to return to work as international flight attendant either in January 2018 or even today.

Ms Jorgensen met with Mr Rodl on 27 October 2017. The outcome of that meeting was summarised in correspondence from Ms Jorgensen to Mr Rodl dated 2 November 2017. Mr Rodl did not disagree with Ms Jorgensen's summary of that meeting in his subsequent email to her on 6 November 2017.

In respect of the issues regarding redeployment, during a meeting - the meeting that I've just referenced on 27 October 2017, Ms Jorgensen sought to explore whether the applicant would like to be considered for redeployment in the respondent's business. The applicant stated that coming back and performing work would impeded his recovery and therefore he did not feel that redeployment would be an option for him.

In his written response dated 28 November 2017, the applicant stated:

Due to my ongoing treatment regime, e.g. RICE, physiotherapy and your own in-house assessment, you stated that it would be difficult for me to conduct alternate work. For the same reasons I also had to excuse myself from compulsory jury duties.

The applicant attached to his response confirmation that he had been excused from jury duty commencing 15 November 2017. Apology - on 15 November 2017 Ms Jorgensen sent a show-cause letter to Mr Rodl. The letter clearly put Mr Rodl on notice that the company was considering terminating his employment on medical grounds. The letter invited Mr Rodl to provide any further or additional information as to why your employment should not be terminated. Mr Rodl was given until 29 November 2017 to respond to the letter, that is 14 days.

He did not ask for more time to respond and he did not seek to clarify what was required in his response. The letter is very clear. Mr Rodl visited his treating doctor, Dr Wong on 27 November 2017. She gave him another medical certificate stating that he was unfit for work until 2 January 2018.

This medical certificate was consistent in form and format to every medical certificate Dr Wong had provided, being his treating doctor for the entire period of this process and that it was her clear and unwavering view that he remained completely unfit for duties. She did not provide any further assessment or prognosis in relation to Mr Rodl's fitness for work and in fact, during cross-examination Mr Rodl admitted that Dr Wong was not willing to certify that Mr Rodl would be fit in January 2018.

Mr Rodl responded to the show-cause request one day earlier than required on 28 November 2017. In his response he confirmed that he:

Could not provide any medical evidence confirming it would be safe to perform his pre-injury role without risk of harm or aggravation of his condition.

Thereafter, Qantas decided to terminate Mr Rodl's employment on medical grounds.

In respect of the issue regarding voluntary redundancy, on 14 June 2017, at some point when the applicant had been totally unfit for almost two years, he was invited to express an interest in voluntary redundancy. Expressions of interest closed on 13 July 2017. The applicant accepts that he did not complete an expression of interest in voluntary redundancy. The applicant did not subsequently ask the respondent to afford him the opportunity to apply for a voluntary redundancy outside of the voluntary redundancy process.

In respect of the assertion made in his closing submission today, that it is clear from the data produced by Qantas under the order to produce, that employees did take a voluntary redundancy outside of the VR process, I offer you this information. The three employees that were provided a VR outside of the stipulated period provided an expression of interest within weeks of the VR process closing. They related to the fact that one had a cancer diagnosis that had just been obtained; one had just been the victim of domestic violence and one had also had the death of an immediate family member.

Given those circumstances, they were allowed the opportunity, given they had submitted an expression of interest in a VR, being something that Mr Rodl had never done and has never done to exist the business in accordance with that VR process and on the date as prescribed by that VR process. I hope that gives both Mr Rodl yourself some context to the information that has been provided.

There's two other issues that were raised by Mr Rodl in his closing submissions that I'd like to respond to. The first one was his dissatisfaction at the presence of Ms Linton with me at the hearing and allegations that I was being instructed by her. Those allegations are vehemently rejected by Ms Linton and myself and I take such allegations very seriously.

The other issue is in respect of the documents under the Order to Produce which he has criticised myself for not producing. That conversation was traversed in much detail on 2 May. Notwithstanding that, my suggestion Mr Rodl had the time to go and review the documents so that there could be no criticism implied or expressed that he hadn't had adequate time to review the documents. He has now had over two weeks to review those documents.

In summary, Qantas submits that the termination of Mr Rodl's employment was not harsh, unjust or unreasonable in all the circumstances. Further, Qantas submits that if the Commission finds contrary to our submissions that the dismissal was unfair, it is clear that reinstatement is not practicable in circumstances where Mr Rodl has not adduced any medical evidence that he is fit to return to work.

[73] Postscript: In the applicant’s written reply submissions of 27 April 2018, he advised that he had lodged an enquiry with the Human Rights Commission (HRC) to establish if Qantas is discriminating against him because of its submission in this case that his ‘reinstatement would impose an unreasonable burden on other employees’,given the ‘burden’ his dismissal has had on him and his spouse. At this point, I understand that the HRC has only requested further information.

[74] Further postscript: Two days after the Commission reserved its decision in the matter, the applicant, on 23 May 2018, sent my Chambers a Doctor’s Certificate from Dr Victor Yan, Birkenhead Medical Centre, which stated:

‘I saw Mr Ralph Rodl today after he had an extended period of time off work from his L ankle fracture and I believe he will be fit for Work after I conducted a physical examination on him from 22/05/2018 onwards.’

He also sent the Commission a document certifying his participation and completion of the Sydney Half Marathon on 20 May 2018.

CONSIDERATION

Statutory provisions

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

385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

396 Initial matters to be considered before merits

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

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

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

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

[76] Specifically, I find as follows:

(a) the applicant was dismissed at the initiative of the employer on 15 December 2017;

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

(d) the applicant’s employment was covered by an enterprise agreement; see paragraph [2] above (s 382(b)(ii).

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

Meaning of ‘harsh, unjust and unreasonable’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[80] There are a number of Full Bench decisions which have considered whether an employee’s dismissal, within the meaning of s 387 of the Act, based on an inability to perform the inherent requirements of the job, due to a medical condition or injury, constitutes a valid reason for dismissal; see: Ermilov v Qantas Flight Catering Pty Ltd PR956925; J Boag & Sons Brewing Pty Ltd v Button 2010 IR 292 (‘Boag’); Ambulance Victoria v Ms V[2012] FWAFB 1616 (‘Boag’); Birdi v Rail Corporation of New South Wales[2012] FWAFB 1404; Jetstar Airways Pty Limited v Neetson-Lemkes[2013] FWCFB 9075 (‘Jetstar’); Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218 (‘Lion Dairy’); TNT Australia Pty Ltd v Martin[2017] FWCFB 1510; and CSL Limited t/a CSL Behring v Papaioannou[2018] FWCFB 1005 (‘CSL Behring’). The decision in Boag is the one most frequently cited and I also intend to do so. At paras [21] to [27], the Full Bench said:

‘[21] The appellant further argued that the Commissioner placed particular reliance upon the view of Dr McDonough that “a slow, partial return to some duties may be possible”, and the view of Associate Professor Mendelson that she should “resume duties on a gradual basis following an appropriate period of training and under a period of supervision”. It argued that the Commissioner’s reasoning was essentially that the medical assessments provided optimism that the respondent may be capable of working in a modified position, rather than the actual job which she had previously held.
[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.
[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992(Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

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

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

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

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

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

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

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

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

[81] Invariably, the argument about whether an employee is fit to perform the inherent requirements of the job, comes down to competing medical evidence. Until more recently, and with the decision of the Full Bench in CSL Behring (of which I was a member), there was a ‘tension’ between the approaches adopted by two earlier Full Benches (Lion Diary, by majority and Jetstar) as to whether the Commission is required to resolve the conflict in medical evidence for itself (‘Jetstar’) or the resolution of such evidence is usually the preserve of the employer (‘Lion Diary’). This tension was resolved unequivocally when the Full Bench said in CSL Behring at paragraphs [75] to [77]:

‘[75] The approach advanced by the majority in Lion Dairy is inconsistent with the weight of authority and the proper construction of s.387(a). It is, with respect, plainly wrong.

[76] Contrary to the proposition in Lion Dairy, there is no basis to leave the resolution of any conflict in medical opinion to the employer. The Commission is frequently called upon to resolve evidentiary conflict, including the assessment of expert evidence.

[77] The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.’

[82] Of course, this case can be distinguished from CSL Behring (and Jetstar) in that not only was there no competing medical evidence available to Qantas at the time of the applicant’s dismissal, but the only medical evidence it had was the applicant’s GP’s/Dr Wong’s consistent medical certification over two years, and 14 certificates, that the applicant was unfit for work due to his ankle injury. Importantly, there was no indication or prognosis of when he might be fit to resume his pre injury duties. The highest the applicant’s evidence reached was his ‘goal’ or ‘hope’ that he would be able to resume pre injury duties in January 2018. This was based on his own self-diagnosis ‘after consulting with fellow patients and recreational runners’. I do not accept the applicant’s oral submission that this ‘goal’ had been discussed with ‘my orthopaedic surgeons and my treating doctor’. There is simply no evidence that any medical practitioner was aware of the applicant’s goal of a RTW in January 2018; let alone, had expressly agreed it was likely. It hardly needs to be said that this aspiration (and I will say something shortly about the applicant’s claim he had ‘implied consent’ to his January 2018 RTW) could give Qantas no comfort that he could safely RTW. This is particularly so, given the applicant was given every opportunity to provide any further verifiable information as to when he was likely to RTW. Either he failed to do so, or no medical practitioner was prepared (including his own GP) to give a prospective RTW date, which frequently is sought and given in such cases. For example, in Papaioannou, Commissioner Platt was faced with this very dilemma. He said at paragraphs [54] to [55]:

‘[54] There is no dispute that Mr Papaioannou was unable to fulfil the duties of his role at the time he was dismissed, the key difference between the parties is when Mr Papaioannou would have been fit to return to work. Dr Congiu suggested that Mr Papaioannou could have returned to work in six months (give or take) and Mr Bloom suggested that period would be somewhere between 12-24 months.

[55] At the time of the dismissal on 6 July 2017, Mr Papaioannou had been off work for about 10 months. Mr Papaioannou’s medical condition was not a temporary absence as defined by s.352 of the Act. Even if I accept Dr Congiu’s prognosis at the time of the dismissal Mr Papaioannou was incapable of performing his role and at best he was approximately 6 months away from returning to work. I find that he was unable to meet the requirements of his contract of employment due to his lack of capacity and CSL had a valid reason to dismiss him.’

[83] With nothing more than the applicant’s self-diagnosed goal, Qantas was left with no option. The applicant was running out of excuses. He held grimly on to an expectation which had no sound or logical basis; let alone a professional medical foundation.

[84] What I find even more extraordinary was that the applicant did not take any steps, to satisfy Qantas of his complete fitness in January 2018 - his own expected RTW. The applicant was dismissed on 15 December 2017. He lodged an unfair dismissal application on 5 January 2018. This case was not programmed for hearing until 6 March 2018 and not heard by Commissioner Riordan until 22 May 2018. Bearing in mind his claim for reinstatement rests primarily on his goal of being fit to RTW in January 2018, he took no steps until 22 May 2018 to seek medical confirmation of his fitness to RTW. In short, the applicant did not, or would not take any steps, to convince Qantas his goal or aspiration of RTW in January 2018 had been realised. In other words, for five months, when he was preparing for this case, he did nothing to demonstrate he was fit to RTW and only then after my decision was reserved. Unfortunately, by then it was simply too late.

[85] I have earlier referred to the Full Bench decisions in Jetstar and CSL Behring, and while not directly on point, what these authorities make perfectly clear, is that the decision of the employer to dismiss an employee on capacity grounds, is to be assessed on the material available to the employer ‘at the time of dismissal’. So much so is clear from the following passage in Jetstar at para [55]:

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

Mr Ralf Rodl v Qantas Airways Pty Ltd

[2018] FWC 4363

13 AUGUST 2018

DECISION

SUBMISSIONS