Ronald MacDonald v Jetstar Airways Pty Limited T/A Jetstar
[2014] FWC 488
•31 JANUARY 2014
[2014] FWC 488 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ronald MacDonald
v
Jetstar Airways Pty Limited T/A Jetstar
(U2013/6713)
COMMISSIONER BULL | SYDNEY, 31 JANUARY 2014 |
Application for unfair dismissal.
[1] In this matter filed under s.394 of the Fair Work Act2009 (the Act), Mr Ronald MacDonald (MacDonald) alleges that his previous employer, Jetstar Airways Pty Limited T/A Jetstar (Jetstar) terminated his employment unfairly as the dismissal was harsh, unjust or unreasonable pursuant s.385(b) of the Act.
[2] On the commencement of the hearing the applicant’s counsel Mr Saunders and the respondent’s counsel Mr Darams, sought and were granted leave to appear as per s.596(2)(a) of the Act. There is no dispute the applicant is a person protected from unfair dismissal pursuant to the Act.
[3] Mr MacDonald was terminated on 14 February 2013. His termination letter was signed by the Manager Crew Base - SEQ / NTL, Mr Stephen Payne. The correspondence 1 read in part:
“On 14 January 2013 I wrote to you notifying you of Jetstar’s request that you show cause as to why your employment with Jetstar should not be terminated following the receipt of a medical report from Dr Bloom. The medical report indicated that you were not fit to perform the inherent requirements of your position. You were requested to provide a response by 4 February 2013.
In response to correspondence from your solicitor, I replied to him on 25 January 2013, providing a copy of that report. Jetstar has not received the courtesy of a response to the show cause request, nor have we received any medical reports from your treating doctor to date. Follow-up correspondence was also sent to your solicitor, Mr Stuart Gray, on 7 February 2013 by email. Jetstar has a read receipt of this correspondence, but has not received a reply. I also note you did not take us up on our offer to meet with you on 11 February 2013.
Accordingly, having considered all the information available to Jetstar and for the reasons set out in my letter dated 14 January 2013, Jetstar has decided to terminate your employment.
Your termination will take effect today and you will be paid in lieu of notice of termination in accordance with Clause 23(a) of the Jetstar Airways and FAAA Enterprise Agreement 2011, this equates to 5 weeks notice.
...
Although your employment with Jetstar has ended, this is separate from your workers’ compensation claim. You will continue to receive communication from Ginette Aruliah in relation to this claim.”
[4] The correspondence of 14 January 2013 2, referred to above, was in the following terms:
“YOUR EMPLOYMENT WITH JETSTAR
You would be aware that you have not performed work as a Flight Attendant for Jetstar since July 2012, as a result of being Subject to Operational Clearance (SOC). As we advised you by letter dated 17th August 2012, Jetstar needed to make an assessment regarding your future capacity to undertake the duties of a Flight Attendant with Jetstar. To ensure we had the most up to date medical information when making any decisions we made an appointment for you with a medical specialist by Dr Michael Bloom on 27 November 2012. Dr Bloom is an Occupational & Environmental Physician.
Jetstar has now had the benefit of Dr Bloom’s report on his assessment of your ability to perform the inherent requirements of your position with Jetstar.
The report by Dr Bloom advises Jetstar of his expert opinion, including that:
1. You suffer from chronic pain syndrome
2. You are not fully fit to return to work as a flight attendant with Jetstar.
3. You do not have capacity to perform unrestricted duties.
4. You are unlikely to become fully fit to return to work in a flight attendant role at Jetstar in the foreseeable future.
5. You are not fit to deal with emergency procedures on-board aircraft, an inherent (sic) in your role as flight attendant.
6. You should avoid performing repetitive reaching and elevation.
7. You should avoid performing lifting more than 3-5kg.
On the basis of the expert medical information presently available to Jetstar, we are now considering terminating your employment on the basis that you are unable to perform the inherent requirements of your role with Jetstar now or in the future and there are no reasonable adjustments that could be made such as to allow you to perform your safety-critical role.
You are now invited to provide to Jetstar any additional material that you would like Jetstar to consider before the company makes a decision in relation to your employment.
Any such material must be provided to me in writing (email address) by no later than 5pm Monday, 21 January 2013.
In additional to this, I am also offering you the opportunity to attend a meeting with me at 1000 hrs on Wednesday 23 January 2013 at NTL airport.
You are welcome to bring a support person to this meeting.
Yours sincerely
Stephen Payne
Manager Crew Base - SEQ & NTL
Jetstar Airways ”
Applicant’s Submissions and Witnesses
Ronald MacDonald
[5] Mr MacDonald commenced employment with Jetstar as a Flight Attendant in October 2006. During his employment with Jetstar, Mr MacDonald had a history of various work related injuries. A brief summary of those injuries is outlined below:
● October 2008 - Sustained right shoulder and arm injury. Reported burning pain whilst pulling a service cart out of stowage.
● August 2009 - Sustained a further injury to right shoulder and arm. This occurred pushing an empty tray with some force into a galley. The cart suddenly stopped due to a blockage causing immediate pain to right arm and shoulder.
● February 2010 3 - Arm gave way while he was shaking the hand of a passenger, causing immediate pain.
● June 2010 - Injury to left arm and shoulder. Occurred while checking the point of sale drawer which is at head height or above, received a sharp pain in left arm. While pouring a cup of tea for a passenger, left arm gave way. Mr MacDonald had begun to have twinges in his left arm prior to this incident. 4
[6] Jetstar’s workers compensation insurer Allianz accepted liability for an injured shoulder in May 2011, and the other injured shoulder in January 2013.
[7] On 8 May 2012, Mr MacDonald successfully undertook the Jetstar emergency procedures training.
[8] In respect of Mr MacDonald’s capacity to work as a result of his injuries, he has had intermittent periods of time off and last worked at Jetstar at the end of July 2012. A summary as best as can be ascertained is provided below:
● October 2008 - took several days off and then returned to work for a brief period 5
● October 2008 to May 2009 - leave without pay unrelated to his injuries - 7 months 6
● May 2009 - returned to duties part time 7
● August 2009 - took “some time off” 8 and returned to duties full time
● June 2010 - deemed fit for “suitable duties” (no suitable duties available) 9
● On and off work for the next 12 months 10
● 6 October 2011 - resumed work on suitable ground based duties 11
● 29 February 2012 - cleared for pre-injury duties and undertook administrative duties until he completed emergency procedures and other training in May 2012
● June 2012 - returned to pre-injury duties as a flight attendant with a reduced number of flying hours as part of return to pre-injury duties. Operational crew member 2 days per week and a supernumery 2 days per week. 12
● 25 July 2012 - unfit to work
● 31 July to 2 August 2012 - unfit to work
● 3 August 2012 to 18 February 2013 - fit for suitable duties, being Mondays, Tuesdays and 3 out of 4 Wednesdays being live days as cabin crew in position R1 and L2. 13
[9] Mr MacDonald told the Commission that he had obtained other employment on 12 January 2013, as it was a requirement of Jetstar’s workers compensation insurer Allianz that he search for other suitable employment. 14 Dr John Prickett a pain specialist had recommended he visit Mr Phil Rees a physiologist about designing and implementing a strengthening program.15
[10] Mr MacDonald stated he disagreed with Dr Bloom’s opinion and was able to perform the inherent requirements of his position at the time of his medical assessment by Dr Bloom.
Mr Rees
[11] Mr Rees, an Exercise Physiologist (not a medical doctor) gave evidence on behalf of the Applicant. Mr Rees prepared a report on Mr MacDonald on 29 October 2012, 16 which he stated was standard protocol after a block of eight sessions. His report was sent to the insurer Allianz and Mr MacDonald’s two treating doctors. A copy of the report was not sent direct to Jetstar.
[12] In cross examination Mr Rees advised that he was unable to sign WorkCover medical certificates. 17 Mr Rees’ report stated that he was optimistic that Mr MacDonald would “continue to regain function though he is likely to have some ongoing symptoms regardless” which he explained as meaning future shoulder pain, which would be unpredictable.18 Mr Rees evidence was that in gym work Mr MacDonald was able to exercise on a pin based pulley system with 10-15kgs of weight.19 Having now viewed Dr Bloom’s report, Mr Rees acknowledged in his evidence that their conclusions varied.20
Dr Dias
[13] Dr Uthum Dias gave evidence on behalf of the Applicant via telephone. Dr Dias who is a Consultant Occupational Physician examined Mr MacDonald on 26 June 2013, and completed his report on the same day. Mr MacDonald provided Dr Dias with a history of his injuries, pain and time off work. Mr MacDonald advised Dr Dias that:
“... his chronic pain symptoms have been associated with lowered mood and depression for several years, for which he takes medication ... pain affects his sleep and he only sleeps approximately three to four hours per night.
...
He reports he has difficulty with gardening and pool cleaning due to pain with his shoulders and elbows, and he employs people to do this.” 21
[14] In compiling his report, Dr Dias reviewed the report of Dr Bloom, 22 and in response to the improvement in Mr MacDonald’s functional ability Dr Dias advised:
“Yes?---Like, when I - before I made my report I read through Dr Bloom's report extensively.
Yes, and it would appear, reading your report and Dr Bloom's, that Mr MacDonald has made a fairly significant improvement in his functional ability?---Sorry? Sorry, I missed that.
Would you agree that Mr MacDonald has made a significant improvement in his demonstrated functional ability between the two referrals?---I didn't - I mean, I basically - you know, I can't - I mean, I didn't examine Mr MacDonald before the - before June 2013 so, you know, I'm not - you know, I can't really comment on what he might have been like in February 2013. But, yes, based on what I - his history and my examination as a - it's - for the functional testing I did with him, you know, I believe that, yes, basically he - you know, when I saw him I believed him capable of doing the role as a flight attendant on a part-time basis.
Yes, I know that but if you - maybe you can't recall, but Dr Bloom reported that Mr MacDonald couldn't lift 15 kilos above shoulder height, couldn't extend past 90 degrees flexion. Do you recall that?---Okay. So I actually - I tested him with 15 kilogram weights and so basically I got him to lift 15 kilogram weights from waist height to above shoulder height three successive times. I got him to simulate the motion of opening an aircraft window by using - when he was sitting down, using 15 kilogram weights with both his hands and then (indistinct) in the same action as opening an aircraft window. And I got him to lift 10 kilograms from above his head height from the cupboard and tested him and he could perform all of these tasks in a pain free - on a pain free basis.
Yes. No I - ?---And then all of the motions that I did with - like, all of the raising motions I documented on the - his examination as well. So, yes, I didn't - again, I haven't got Dr Bloom's report with me at the moment so I can't sort of comment on what he's written, but if that's - if there is a difference then - between Dr Bloom's report and my report, then it would appear that he would've improved from his examination with Dr Bloom to his examination with me.” 23
[15] Dr Dias’s report concluded that:
“Based on today’s assessment and given the available evidence, I would state that in my opinion Mr MacDonald is fit for the role of a flight attendant with Jetstar Airways on a part time basis. Given his long history, Mr MacDonald will have a moderate risk of recurrence/aggravation of the symptoms relating to his injury. However the risk can be minimised by a continued commitment to Thera-Band based conditioning exercises which Mr MacDonald can perform at home on a daily basis.” 24
Stuart Gray
[16] Mr Gray was the applicant’s solicitor in these proceedings. Mr Gray gave evidence that in April 2013, he contacted a medico-legal report company to ascertain the availability of doctors to examine Mr MacDonald. He did this in April 2013, and was told the earliest availability for an appointment was 26 June 2013. Mr Gray stated that he waited until April 2013, to make this enquiry as he still had hopes the matter would settle in conciliation prior to having to require Mr MacDonald to incur the expense of obtaining a medico-legal report. 25
[17] The applicant argues that the factual basis upon which Dr Bloom’s report is written is flawed in that he was not provided with a proper up to date history of Mr MacDonald’s circumstances. Further, that there was an inadequate period of time for Mr MacDonald to obtain a second opinion being given only four business days from the date of receipt of Dr Bloom’s report to do so.
[18] The applicant points to having passed the emergency procedures training in May 2012, and being able to perform part time flight attendant duties in June and July 2013 as indicative of being able to return to work undertaking all the inherent requirements of a flight attendant in the foreseeable future. The opinion of Mr Rees is said to also provide evidence that Mr MacDonald would be able to undertake the inherent requirements of his job in the foreseeable future.
[19] It is argued that Mr MacDonald should have been provided with the opportunity to continue working on a part time basis after July 2012, to prove he was capable of carrying out the inherent requirements of his job. It was put that the only medical evidence Jetstar had in relation to Mr MacDonald’s capacity to work was that he was fit for “suitable duties” and that Jetstar ignored that advice and failed to provide any duties to Mr MacDonald.
[20] It is also put that Jetstar did not, contrary to its own policies give Mr MacDonald assistance in seeking alternate permanent employment.
Jetstar’s Submissions and Witnesses
[21] Jetstar made submissions and called two witnesses Mr Stephen Payne the Manager Crew Base for South East Queensland and Newcastle and Dr Bloom an Occupational and Environmental Physician.
Stephen Payne
[22] Mr Payne stated that Regulation 253 of the Civil Aviation Regulations 1988 (Cth) 26 requires Jetstar not to assign a person to act as a crew member of an aircraft unless the person is competent in the use of the emergency and life-saving equipment. The emergency duties include the ability to lift a 15kg aircraft window exit. Mr Payne’s evidence was that due to the safety-related aspects of the role of a flight attendant and Regulation 253 all crew must be free from any restrictions which would make them incompetent to undertake the emergency procedures or use the emergency equipment before returning to operational flying duties.27 All crew members must be fit to operate at any location in the aircraft and assume the duties of another crew member in the case of an emergency.
[23] Mr Payne advised the Commission that in the June 2012 roster, Mr MacDonald was allocated limited flying hours to assist him in returning to work. During this period Mr MacDonald was allocated additional days off to transition back to his regular shift work roster. On 20 July 2012, Mr Payne was forwarded a copy of an email Mr MacDonald had sent a Senior Advisor in Jetstar’s Rehabilitation and Return to Work Team the previous day. 28 Mr MacDonald had stated in his email:
“My injury has not gone away, I have been learning techniques of how to manage it and put up with the constant pain.”
(My emphasis)
[24] This comment caused Mr Payne concern as Mr MacDonald while working reduced hours had recently been certified fit for pre-injury duties.
[25] Mr Payne then wrote to Mr MacDonald via email on 20 July 2012, and in respect of the reduced working roster advised:
“This roster was for a strictly limited period of time as indicated by the specific dates outlined in the email correspondence sent to you on 18th June 2012.
Unfortunately I must advise that Jetstar has provided these duties for some time now and will no longer be able to support you by providing these duties on an ongoing basis with your pre-injury duties medical certificate.
...
At the end of week 12th August 2012, you will be rostered for a 100% operational roster. If you feel you are unable to continue to perform your pre injury role, you will need to provide medical information to support this in the means of a Workcover Medical Certificate. If received Jetstar will review duties available within the business to determine if suitable duties can be provided.” 29
[26] On the same day and again on 25 July 2012, Mr Payne spoke to Mr MacDonald who said he was having real trouble sleeping and was not able to work morning shifts and was still feeling a lot of pain and was not sure he could do the role full time. 30
[27] On 25 July 2012, Mr Payne sent Mr MacDonald another email following their phone conversation. In part, the email stated:
“Ron, you made mention to me during our discussion on Friday and today that your (sic) were struggling to meet the inherent requirements of your role as a result of your injury and it is more than likely that additional surgery will be required, if the circumstances have now changed you will need to provide supporting medical documentation in the means of a work cover certificate.” 31
[28] Three WorkCover medical certificates written by two doctors were subsequently received certifying Mr MacDonald:
● 25/07/12 - unfit to work (Dr Paul Innis, dated 25/06/ 2012) 32;
● 31/07/12 to 2/08/12 - unfit to work (Dr Sophi Roy, dated 1/08/13); and
● 03/08/12 to 03/10/12 - fit for limited duties, working Mondays and Tuesdays and working Wednesday as a “live day” three or four times a month, duties limited Mr MacDonald working as a cabin crew member only in the positions of R2 and L2. (Dr Sophi Roy, also dated 1/08/13) 33.
[29] On 1 August 2012, Mr Payne stated he was in a room when Mr MacDonald was on the telephone to Ms Hansford, Senior Advisor QLD/DRW/NTL/WA - Occupational Health, Safety, Rehabilitation and Return to Work. Mr Payne could hear Ms Hansford’s conversation but not Mr MacDonald, as such he requested Ms Hansford prepare a file note of the conversation. A copy of the file note was attached to Mr Payne’s witness statement at attachment SP12 and reads as follows:
“Hi All
Please find below the dot points from a conversation with Ronald this morning.
Please be advised that Steve and i are getting regular (daily) emails and phone calls from Ron.
Conversation with Ronald MacDonald Wednesday 02/08/12 34 @1100
Steve Payne was listening in on this conversation
Ron stated to me:
● Very agitated
● Disillusioned with advice from Jetstar
● At the doctor to get a new WCMC as my arm/shoulder is very sore, can’t use it, virtually frozen
● Seen pain physiologist, stress doesn’t help arm, makes it worse
● Going back on a WC certificate
● Roster is now not what is supposed to be and what was promised, should be the same as what it was.
● Look back and use last months roster.
● Everything is pissing me off
● Lots of pain
● Don’t need the extreme stress
● At the surgery now, my normal doctor has left and i am waiting to see another doctor, as they have my files here.
● Fell angry with Jetstar and betrayed
● Tried to do what Jetstar wanted, now going to do what is best for me.
● I won’t be ready to go back to full duties in Sept, even though that is what the emails are saying.
● I can’t do full duties, i am in pain after a couple of days.
● I can do 2 flying/week days followed by 1 live day/week.
● Part time: my doctor advised i shouldn’t do this while with (sic) a work injury, if anything it should only be medical part-time.
I advised Ron:
● If he cannot perform pre injury duties to work his normal roster then yes he needs to go back to his doctor
● Advise the doctor your medical concerns and the doctor will write a WCMC based on his/her medical opinion.
● No i will not tell you what to say at the doctor and how long to get the certificate for, only you know how you feel and if you are up to performing your normal duties and hours in the air.
● Please fax me the new WCMC once you get it and i will put it through the WC system.
● From the email i have seen the roster will have you back on full duties in Sept, will you be able to do this?
Thanks
Janie
Janie Hansford
Senior Advisor QLD\DRW\NTL\WA
Occupational Health, Safety, Rehabilitation and Return to Work”
[30] Mr Payne’s evidence was that on receiving the medical certificates dated 1 August 2012 (see paragraph [27] above) certifying suitable duties in certain positions, alerted Mr Payne to Jetstar’s obligations to only allow flight attendants to resume full duties where they are competent, fit and able to undertake the emergency procedure.
[31] The requirement to only work certain positions on an aircraft meant Mr MacDonald was still not fit for full duties. 35
[32] As a result of a “complex case” meeting held by teleconference on 2 August 2012, 36 it was determined that Mr MacDonald should undergo a medical assessment with an independent medical examiner in order to obtain a full report on his condition and prognosis for recovery. An email attaching a letter37 dated 2 August 2012, was sent to Mr MacDonald advising that Jetstar was unable to provide the suitable duties as described in the medical certificate dated 1 August 2012, and that he was not required to attend the workplace, but would still receive his workers compensation entitlements. The email also advised Mr MacDonald that he would shortly be contacted in regards to attending an assessment with an independent medical examiner.
[33] On 17 August 2012, details of the medical appointment with Dr Bloom on 11 September 2012, were sent to Mr MacDonald by Mr Payne. 38
[34] The correspondence also requested a written report from Mr MacDonald’s treating doctor and stated amongst other things:
“I wish to stress to you the importance of such information in determining your capacity to return to pre-injury duties. Without such information from your treating doctor Jetstar can only assess your medical condition from the information provided by Dr Andrew Beavon and the details contained in your medical certificates.
We would like to meet with you on Wednesday 26 September 2012, at Newcastle Domestic Airport to discuss the information contained in the reports from Dr Bloom and your treating doctor.”
[35] On 30 August 2012, Mr Payne received a letter from Mr MacDonald’s solicitors, Harris Wheeler Lawyers, advising amongst other things, that due to Mr MacDonald being on annual leave he would not be able to attend the arranged appointment on 11 September 2012. A request was made for the appointment to be rescheduled in early October during working hours. Mr Payne provided a response on 10 September 2012, advising that Mr MacDonald would not be on annual leave until 11 September 2012, and therefore he was required to attend the medical appointment particularly as the appointment had already been confirmed along with the travel details on 23 August 2012. 39
[36] The arranged appointment on 11 September 2012, did not proceed due to Jetstar logistical issues and a further appointment was made for 9 October 2012. 40 Mr MacDonald was unable to attend this appointment due to a severe ear infection. Jetstar also requested Mr MacDonald supply the name and contact details of his treating doctor who would be able to supply Dr Bloom with details of Mr MacDonald’s injury. No reply to this request was received.41
[37] A further WorkCover medical certificate dated 11 October 2012 completed by a Dr Ardavan Hamidi certified Mr MacDonald as fit for suitable duties between 3 October 2012 and 10 October 2012, the suitable duties being those listed by Dr Sophi Roy on 1 August 2012. 42
[38] On 29 October 2012, Mr MacDonald was advised that a new appointment with Dr Bloom had been made for 5 November 2012, if suitable to Mr MacDonald. This date was not suitable and another appointment for 27 November 2012 was booked which Mr MacDonald attended.
[39] On receipt of Dr Bloom’s report dated 27 November 2012, Mr Payne met with Chris Best, Jetstar’s Employee Relations Advisor and Michael Coffey, Jetstar’s Occupational Health and Safety Manager on 7 December 2012, to discuss the contents of the report. On the basis that the report indicated that Mr MacDonald did not have full capacity to perform unrestricted duties as a flight attendant and was unlikely to ever be able to do so, it was decided to ask Mr MacDonald why his employment should not be terminated. A letter to that effect was sent to Mr MacDonald dated on 14 January 2013, inviting Mr MacDonald to respond by close of business 21 January 2013. The text of this letter is expressed at paragraph [4] of this decision. Mr Payne also offered Mr MacDonald the opportunity to meet with him on Wednesday 23 January 2013. 43
[40] On 21 January 2013, Mr Gray sent Mr Payne an email requesting a copy of Dr Bloom’s report and requesting 21 days to obtain a second opinion. 44
[41] On the same day Mr Payne received two emails from Ginette Aruliah a Jetstar Workers Compensation Advisor stating that Mr MacDonald had obtained a full time role as a Business Development Manager with another employer but would not resign from Jetstar as he would like a permanent part time role on weekends only. 45
[42] On the basis of this information Mr Payne wrote to Mr Gray that day advising him of this update, stating that obtaining employment with another employer would be in conflict with Mr MacDonald’s employment contract and asking when his resignation from Jetstar would be forthcoming. 46
[43] On 25 January 2013, Mr Payne sent Mr Gray a copy of Dr Bloom’s report and extended the required response to his 14 January 2013 letter, to close of business 4 February 2013. 47
[44] On 31 January 2013, Mr Payne met with the Head of People Jetstar, Head of Customer Service Jetstar, the Employee Relations Manager and Mr Best. It was decided that as no response had been received to the email of 25 January 2013, to re-send the email with a read receipt.
[45] By 7 February 2013, no response had been received so Mr Payne sent a further email to Mr Gray requesting acknowledgement of the 25 January 2013 correspondence and reattached the original email. Mr Payne stated that a read receipt email was received within around an hour. 48
[46] On 14 February 2013, having not received any response to his correspondence of 25 January and 7 February 2013, and with Mr MacDonald not taking the opportunity to meet on 23 January 2013, as offered in Mr Payne’s 14 January 2013 letter, Mr Payne wrote to Mr MacDonald advising of his termination effective immediately with pay in lieu of notice. The text of the termination letter is set out at paragraph [3] of this decision.
[47] Mr Payne who was the final decision maker 49 stated that Jetstar relied upon the report of Dr Bloom and had provided Mr MacDonald with every opportunity to provide additional information.50 Mr Payne stated that he had not previously seen the Progress Report of Mr Rees.51
[48] A WorkCover medical certificate was subsequently received dated 18 February 2013, four days after the termination made out by Dr Hamidi stating that Mr MacDonald was fit for suitable duties from 18 February 2013 to 18 March 2013 with a limitation on lifting in excess of 10kg. 52 Unlike the previous medical certificates dating back to 3 August 2012 completed by Dr Hamidi and Dr Roy prior to Mr MacDonald’s termination, the limitations of working Mondays and Tuesdays and working Wednesday as a “live day” three or four times a month, with duties limited to working as a cabin crew member only in the positions of R2 and L2 were removed. None of the WorkCover medical certificates received since 25 July 2012, indicated Mr MacDonald was fit for “pre-injury duties”.53
Dr Bloom
[49] Dr Bloom prepared two witness statements and gave evidence. Dr Bloom described himself as “an independent consulting specialist Occupational and Environmental Physician” who has worked in occupational medicine since 1985. Dr Bloom is also an Independent Medical Examiner and Impairment Assessor for the Victorian WorkCover Authority and ComCare.
[50] Dr Bloom stated he was familiar with the duties of flight attendants and their requirements to perform emergency procedures having previously conducted site inspections of flight attendants’ duties for Qantas, including lifting the 15kg emergency exit.
[51] Dr Bloom confirmed that he had reviewed Mr MacDonald on 27 November 2012, and prepared a report. Mr MacDonald presented with identical symptoms in both arms and shoulders suggesting they were not wholly injury induced as it would be highly unlikely and unusual for a person to experience an identical injury in both shoulders. 54
[52] Mr MacDonald was unable to lift his arms above 90 degrees without reporting pain. Dr Bloom could not find a focal or discrete physical injury that would cause this range of restricted movement. Mr MacDonald presented without a physical explanation for his pain and perceived level of disability. Dr Bloom explained this as:
“In my opinion, Mr MacDonald was experiencing pain disproportionate to his injury, which is indicative of psychological response. That is not to say that Mr MacDonald was not actually experiencing a high level of pain, but rather that the level of pain he experienced could not be explained on a purely physical injury basis.” 55
[53] Dr Bloom stated that as indicated in his report, based on his assessment of Mr MacDonald he did not have the capacity to perform full flight attendant duties nor was he likely to improve where he would be able to perform the required duties in the foreseeable future.
[54] Subsequent to his initial report Dr Bloom was advised that Mr MacDonald’s role was as a permanent part time flight attendant. 56 Dr Bloom stated as Mr MacDonald had demonstrated at the medical assessment he could not elevate or abduct his arms beyond 90 degrees this would make it impossible for him to fulfil his normal duties irrespective of how many days a week were worked.57 Dr Bloom in cross examination did agree that someone with an injury is more likely to be able to work part time than full time.58
[55] Dr Bloom was unaware during his consultation with Mr MacDonald on 27 November 2012, that in May 2012, Mr MacDonald had successfully undertaken the Jetstar emergency procedures training. However, Dr Bloom’s opinion would not have altered had he been informed of this. 59
[56] During Dr Bloom’s cross examination he was given a copy of Mr Rees’ report, which he had not seen before nor had Mr MacDonald raised the report at the consultation. 60 Dr Bloom stated that had he been aware of the report of Mr Rees he would not have altered his conclusions on 27 November 2012.61 However, Dr Bloom did acknowledge that Mr Rees observation of an improvement in mood and motivation would have had an impact on his prognosis, but would not have been evidence of a long term sustainable outcome, nor altered his view that Mr MacDonald was not fit to undertake all the inherent tasks of his normal job.62
[57] In Dr Bloom’s supplementary witness statement 63 he deals with the examination report of Dr Dias of 26 June 2013, stating that the manner in which Mr MacDonald presented to Dr Dias was considerably different to the way he presented to himself on 27 November 2012. In respect of Mr MacDonald having successfully completed the emergency procedure training including lifting a 15kg weight in May 2012, Dr Bloom stated that this was not consistent with his level of severe dysfunction and disability demonstrated on 27 November 2012. At paragraph 11 of his supplementary witness statement Dr Bloom states:
“I do not suggest that Mr MacDonald is malingering, rather I think the history of fluctuations in relatively short periods of time confirms my view that his perceived level of disability is highly variable and is affected predominately by psychological factors (as opposed to physical ones).”
[58] Jetstar submit that as at 14 February 2013, the Applicant could not perform the inherent requirements of his position as a flight attendant and was unlikely to be able to do so in the foreseeable future, justifying his termination.
Findings and Conclusions
[59] In making a conclusion under the Act, the Commission is bound to follow the criteria listed in s.387 of the Act. The first criterion at s.387(a) is that a valid reason for dismissal relating to the person’s capacity exists in considering whether the termination has been harsh, unjust or unreasonable. The Commission is confined to only considering the facts that existed at the time of the dismissal, including those that existed at the time of the dismissal but only came to light subsequently 64. As the Full Bench held in Department of Social Security v Uink65:
“In our view the question of whether or not a termination was “harsh, unjust or unreasonable” within the meaning of s.170CG is to be determined on the basis of the circumstances in existence when the decision to terminate the employment was made.”
[60] In this case Mr MacDonald relies heavily on the opinion of Dr Dias given on 26 June 2013, in excess of four months after his dismissal. This cannot be a relevant factor in considering whether at the time of dismissal a valid reason existed.
[61] The applicant submitted that in establishing whether there was a valid reason for the dismissal the onus rests with the employer 66 and referred to Button v J Boag & Son Brewing Pty Ltd.67 I am unable to see where this decision makes such a point, and prefer to adopt the approach of the Full Bench in David Miller v University of New South Wales68which stated:
“[80] The onus is generally on the applicant to establish the case for relief and this will include putting evidence relevant to the consideration of whether there was a valid reason for the termination”
[62] In examining whether a valid reason for termination exists the Commission must be confident that a sound, defensible or well founded reason exists such as to constitute a valid reason.
[63] The term “valid reason” was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd (Selvachandran) 69, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, Northrop J comments remain 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 well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[64] The holding of the term “valid reason”, as meaning sound, defensible or well founded as per the definition in the Shorter Oxford Dictionary has been adopted in many cases before this Commission.
[65] In Smith and Kimball v Moore Paragon Australia Ltd 70 a Full Bench of the Australian Industrial Relations Commission said:
“[44] The present case provides an illustration. As the First Full Bench found, where the reason for termination is that an employee has a WorkCover history, that reason without more will not be a valid reason for termination. It would not of itself provide any basis for opposing an order for reinstatement. However, under the general law an employer may lawfully terminate, or perhaps treat as frustrated, the contract of employment of an employee who, by reason of illness or injury, does not have an ongoing capacity to perform the duties of the position in which he or she is employed. Hence the need for provisions in workers' compensation legislation protecting an injured employee for a period following the injury and a provision such as s.170CK(2) in the Workplace Relations Act 1996. However, ongoing incapacity arising from illness or injury can certainly be a valid reason for termination of employment within the meaning of s.170CG(3)(a).”
(My emphasis)
[66] It is generally the case that a valid reason for dismissal will exist where an employee is unable to perform the inherent requirements of their position. 71 Vice President Lawler in Michael Smith v Capral Aluminium72 cited a number of authorities and summarised these in the following manner:
[17] “Thus, subject to an obligation to provide continued employment arising under state legislation, incapacity arising from a work-related injury provides a valid reason for termination of the employment of an incapacitated employee where:
(a) further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment; or
(b) continued employment would involve imposing a material productivity burden or some other unreasonable burden on the employer; or
(c) continued employment would impose an unreasonable burden on other employees.”
[67] Based on the evidence which is before the Commission, I conclude that a valid reason did exist for the termination. Jetstar had in its possession a specialist medical opinion stating that Mr MacDonald was unfit to perform the inherent duties of a flight attendant and was not likely to be able to do so in the foreseeable future. As Dr Bloom had stated in his report:
“However, I do not think that he has the capacity for unrestricted duties, and based upon the task analysis of a flight attendant, particularly the emergency procedures requirement, in my view, Mr MacDonald does not have the capacity to resume such work.” 73
[68] Dr Bloom’s opinion was not sought for an improper purpose but on the basis of statements made by Mr MacDonald to Jetstar. On 19 July 2012, despite having a medical clearance to undertake “pre-injury duties” he advised Jetstar by email that “my injury has not gone away, I have been learning techniques of how to manage it and put up with the constant pain.” 74On 20 July 2012, he advised Jetstar that he was having real trouble sleeping and could not work morning shifts and was still feeling a lot of pain.75 On the 1st August 2012, he advised Jetstar that he could not use his shoulder as it was virtually frozen.76
[69] I find that as a result of feedback from Mr MacDonald, Jetstar took steps to obtain the relevant and necessary information regarding Mr MacDonald’s fitness for work by obtaining a specialist medical opinion.
[70] While the report of Dr Bloom was in the hands of Jetstar for in excess of two months, there was no reason for Jetstar on 14 February 2013 to consider that Dr Bloom’s opinion or the condition of Mr MacDonald had altered. In any event, the WorkCover medical certificate completed four days after Mr MacDonald’s dismissal stated he had a weight restriction of 10kgs, which does not met the inherent requirements of his role as a flight attendant.
[71] In Airflite Pty Ltd v Goyal 77 an appeal before the Western Australian Supreme Court dealing with s.66Q(1) of the Equal Opportunity Act 1984 (WA)Pullin J observed at paragraph 15:
“An employer is not expected to gather facts and evidence as though it was to engage in a lengthy tribunal hearing. In this case, the employer had taken steps to employ a medical practitioner to become familiar with the work performed on site, and reliance was placed on the opinion expressed by the doctor. The doctor was highly regarded, and the employer acted on his advice. The employer took care to have potential employees fill out a questionnaire, and required the medical practitioner to certify in writing whether the potential employee was not able to perform the work required of him. ... It is strongly arguable that the weight of evidence favoured a finding of fact that the employer properly concluded that the respondent would be unable to carry out the work.”
[72] In my view, Dr Bloom was able to effectively defend his conclusions of 27 November 2012, while under cross examination including where his opinion was inconsistent with those of Mr Rees and Dr Dias. As such, the grounds relied on by Jetstar to conclude that a dismissal was justified were valid. It was not argued that the decision to terminate was based on reasons that were ‘capricious’, ‘fanciful’, ‘spiteful’ or ‘prejudiced’ as described in Selvachandran.
[73] The Applicant argues that if Mr MacDonald was unable to lift a 15kg weight (weight of aircraft window exit) that task could be assigned to another flight attendant. 78 This argument appears to ignore the requirements of Regulation 253 of the Civil Aviation Regulations 1988 (Cth) which requires Jetstar not assign a person to act as a crew member of an aircraft unless the person is competent in the use of the emergency and life-saving equipment. This Regulation applies to each and every crew member. There is no scope to be deficient in one area by relying on the ability of another crew member. I note also, that while Dr Hamidi a general practitioner, certified Mr MacDonald fit to work return to “suitable duties” shortly after his termination, the restriction of not lifting in excess of 10kgs meant that Mr MacDonald could not perform the inherent requirements of his position in relation to safety procedures.
Notification of the reason for termination of employment s.387(b)
[74] Under s.387 of the Act I am bound to consider whether Mr MacDonald was notified of the reason for his termination. I do not consider there was any doubt that Mr MacDonald was informed of the reason for his termination, nor is this a contested matter. 79 Mr MacDonald was written to on 14 January 2013, advising that Jetstar were considering terminating his employment based on an inability to perform the inherent requirements of his position.
Opportunity to respond s.387(c)
[75] Mr MacDonald argues that he was not given a realistic opportunity to respond to the reasons given for his dismissal. Jetstar submit that the letter of 14 January 2013, which contained a précis of Dr Bloom’s report and an invitation for Mr MacDonald to respond with any additional material within seven days, being 21 January 2013, which was later extended to 4 February 2013, with the termination occurring on the 14 February 2013 was sufficient.
[76] An opportunity to respond was provided. The question is whether it was a genuine opportunity in view of the time frame provided.
[77] Jetstar argue that during the one month period of 14 January 2013 to 14 February 2013, Mr MacDonald and his representative took no real action to obtain any contradictory medical reports. Mr MacDonald’s evidence in cross examination on this was as follows:
“I want to suggest to you that at no stage during the period of 14 January 2013 and 14 February 2013 did Mr Gray tell you to go and arrange a meeting with your treating doctor to discuss Mr. Bloom's report; you agree with that proposition?
---To the best of my knowledge I don't recollect any of that, no.
Yes, because if you had of, if Mr Gray had told you to do that you would have done that?---What? Go and see my doctor?
Yes?---Obviously I would listen to my solicitor.” 80
[78] Mr MacDonald and his representatives were not provided with the medical opinion of Dr Bloom until 25 January 2013, and then given until 2 February 2013 to respond which equated to four business days. The decision to dismiss Mr MacDonald was not taken until 14 February 2013, approximately a month after he was put on notice of his potential dismissal.
[79] While the full medical report was not provided until 25 January 2013, there could be little doubt from the contents of the 14 January 2013 correspondence of the conclusions of Dr Bloom’s examination.
[80] Mr MacDonald’s solicitor requested a 21 day period from receipt of Dr Bloom’s report to obtain a second opinion, in the end a period of 20 days elapsed from provision of the report until the decision to terminate was taken.
[81] During this period no action was taken by Mr MacDonald or his representatives to obtain the second opinion as to Dr Bloom’s conclusions. It was not until April 2013, that a second opinion was sought, Mr Gray gave evidence as to the reasons for this delay 81, but none related to an inability to commence to seek a further medical opinion during this period.
[82] While a progress worker’s compensation medical report was received on 18 January 2013, 82 it did not certify Mr MacDonald fit for pre-injury duties. In any event, a contradictory second opinion was not obtained until 26 June 2013, severely impacting on its relevance to a decision taken four months earlier. In Sasalili Fia v Corinthian Industries (Australia) Pty Ltd83Deputy President Sams observed:
“I think the better view is that, at the time of the dismissal and in light of the absence of the applicant, the respondent did not know, and could not be assured of, when the applicant might be able to return to his pre-injury duties. The fact that he was cleared for pre-injury duties just two weeks later is really not the point.”
(My emphasis)
[83] In the correspondence to Mr MacDonald of 14 January 2013, and to his solicitor of 25 January 2013, of which he received a copy, 84 he was invited to meet with Mr Payne to discuss his situation. Neither of these opportunities was taken up. Mr MacDonald was vague as to why and proffered that it may have been because he was working for another company.85
[84] In view of the above, I do not accept that there was no reasonable opportunity to respond to the reasons given for the termination and while the time frame was limited, some immediate action could have been taken by Mr MacDonald to obtain his own medical report if he saw fit.
Support person s.387(d)
[85] I am also required to have regard to whether there was any unreasonable refusal by the respondent to allow a support person to provide assistance to the applicant. This was not an issue raised by the applicant and is not a matter in dispute. I need not consider this issue further.
Previous warnings for unsatisfactory performance s.387(e)
[86] There was no issue raised by Jetstar about Mr MacDonald’s performance, and as far as the Commission is concerned, the applicant’s performance was not in question.
Size of the enterprise and impact on dismissal procedures s.387(f)
[87] Jetstar as a large employer, with adequate resources to ensure that any dismissal process is carried out lawfully. There was no reason for it not to follow fair procedures in considering whether Mr MacDonald’s employment should be terminated. However, the applicant in my view correctly identified a number of deficiencies in the process of terminating Mr MacDonald which were not reflective of a large employer with its concomitant resources. These deficiencies are discussed below.
Absence of dedicated human resources s.387(g)
[88] Jetstar did not submit that a lack of human resource expertise led to any failings on its behalf. Meetings with staff from human resources, employee relations, safety and injury management were conducted within Jetstar regarding Mr MacDonald.
Other matters s.387(h)
[89] Having found a valid reason exists under s.387(a) of the Act for the dismissal does not alleviate the necessity to complete the exercise the Commission is required to undertake in determining whether a dismissal is harsh, unjust or unreasonable. A failure to consider the balance of the criteria in s.387 or to concentrate solely on whether a valid reason exists would be an erroneous application of s.387 as described by Cowdroy J in Coal and Allied Mining Services Pty Ltd v Lawler. 86
[90] The Full Bench in Woolworths Limited (t/as Safeway) and Cameron Brown 87 having held a valid reason for termination existed, stated that the dismissal may still be harsh, unjust or unreasonable.
[32] ...” Mitigating circumstances are then relevant (pursuant to s.170CG(3)(b) to (e)) to a determination of whether the termination of employment is harsh, unjust or unreasonable notwithstanding the existence of that valid reason.
(My emphasis)
[91] The Full Bench in Atfield v Jupiters Ltd (t/as Conrad Jupiters Gold Coast) 88 similarly in holding that there was a valid reason for dismissal, stated that in each case all the circumstances must be taken into account in determining whether a dismissal is harsh, unjust or unreasonable:
[13] Furthermore, it is well established that the mere fact that there is a valid reason for termination does not mean that termination cannot be harsh, unjust or unreasonable within the meaning of s.170CE.
[92] The applicant argues that in effecting the termination Jetstar did not apply procedural fairness. In the High Court decision of Byrne and Frew v Australian Airlines Pty Ltd 89 at page 468 McHugh and Gummow JJ state:
“Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable.”
[93] In addition to submitting that an inadequate period to respond to the reasons for termination was provided, the applicant in closing submissions stated that Jetstar did not contrary to its own policies give Mr MacDonald any assistance in seeking alternative employment both internally with Jetstar and externally. 90
[94] Jetstar did provide periods of alternate duties for Mr MacDonald. On return to work in March 2012, Mr MacDonald was initially assigned administrative duties. 91 After passing the emergency procedures training in May 2012 he was included in the June 2012 roster on restricted duties working as a supernumery two days per week. During this roster he was allocated limited flying hours and additional days off to assist in his return to his pre-injury role.92 In respect of external employment, Jetstar was aware Mr MacDonald had obtained other employment93.
[95] As the applicant’s oral closing submissions acknowledged an obligation to provide suitable alternate duties must have limitations. 94 With the 27 November 2012 opinion of Dr Bloom declaring that Mr MacDonald was unlikely to ever resume full flight attendant duties any obligation on Jetstar to provide ongoing suitable alternate duties to assist in a return to full duties becomes academic.
[96] As held by the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button 95:
[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.
[97] The Commission was not made aware of any action taken by Mr MacDonald outside his unfair dismissal claim alleging that Jetstar had breached its statutory obligations under the WorkplaceInjury Management and Workers Compensation Act 1998 (NSW).
[98] As stated above a number of deficiencies in the process of terminating Mr MacDonald were not reflective of a large employer. Mr Payne who ultimately determined the fate of Mr MacDonald was basically unfamiliar with his employer’s policies relating to workplace injuries. Three policies were tendered and marked Exhibit A7:
● National Injury Management Program
● Jetstar Injury Management Policy
● WorkCover and Rehabilitation at Jetstar Airways
[99] Mr Payne’s knowledge of these policies was scant. 96 Mr Payne had never seen the document National Injury Management Program, but stated he was aware of the return to work process contained in the document. He had never previously seen the document WorkCover and Rehabilitation at Jetstar Airways.97
[100] Further Mr MacDonald should have been given a copy of Dr Bloom’s report when he was advised on 14 January 2013, that it was the basis for considering terminating his employment. As the Full Bench stated in Ambulance Victoria v Ms V 98:
“Without those reports, upon which the appellant’s decision was based, the respondent had no informed basis upon which she could have contested the decision.”
[101] Even when the report was later provided on 25 January 2013, Jetstar still maintained that it had no obligation to provide a copy. Such an approach is inimical to providing and ensuring a transparent and fair process.
[102] Prior to Dr Bloom’s examination, Jetstar should have ensured that Dr Bloom had at his disposal all relevant documentation and facts. Dr Bloom was not provided with the report of Mr Rees (nor was Mr Payne) or advised of Mr MacDonald’s change of employment status from full time to part time on 1 November 2012, nor was he advised that Mr MacDonald had successfully passed the emergency procedures training in May 2012. Had Dr Bloom’s evidence not been that having these matters brought to his attention prior to the examination of Mr MacDonald his opinion would have still remained the same in respect of Mr MacDonald’s fitness for work, the outcome of this decision may have been different.
[103] It is not unusual that in a tribunal hearing issues which could have been dealt with better by an employer will be identified. In particular, the Act requires the Commission at sub-ss. 387(f) and (g) to consider such deficiencies based on the size of the employer’s enterprise and absence of human resource specialists. Jetstar is not a small employer devoid of human resource specialists. It should have done better in respect of the matters discussed above but in my view this has not resulted in a conclusion that the process was unfair, unjust or unreasonable.
[104] Having regard to the objects of Part 3-2 Unfair Dismissal of the Act at s.381(2) requiring a “fair go all round” is accorded to both the employer and the employee in deciding on unfair dismissal remedies, I do not consider that the threshold of unfairness has been met by the procedural deficiencies.
[105] As the Western Australian Industrial Appeal Court in the Shire of Esperance v Mouritz stated in regard to the procedural fairness of a dismissal: 99
“The unfairness of the dismissal cannot therefore be determined by the procedural unfairness alone.”
[106] In terms of the harshness of Mr MacDonald’s termination, he has to his credit obtained alternative employment 100 which he wishes to continue with101. Mr MacDonald commenced his alternative employment as a Business Development Manager in January 2013, and stated he earns around $2,500 per fortnight gross.102 As this work is flexible and home based his preference is to work part time on weekends for Jetstar although he is available to work part time on weekdays.103
[107] A number of other matters were raised by Mr MacDonald all of which I have considered in arriving at this decision. Having regard to all the relevant criteria under the Act and applying the relevant tests I am unable to find that Mr MacDonald’s dismissal was ‘harsh, unjust or unreasonable’.
[108] The application is accordingly dismissed.
COMMISSIONER
Appearances:
T Saunders of Counsel for the Applicant.
J Darams Solicitor for the Respondent.
Hearing details:
2013.
Newcastle:
23 October.
Sydney:
13 November.
1 Witness Statement of S Payne Exhibit R3 Attachment SP36
2 Witness Statement of S Payne Exhibit R3 Attachment SP29
3 Witness statement of R MacDonald Exhibit A1 at (34)
4 Witness statement of R MacDonald Exhibit A1
5 Witness Statement of R MacDonald Exhibit A1 at 15
6 Witness Statement of R MacDonald Exhibit A1 at 16
7 Witness Statement of R MacDonald Exhibit A1 at 17
8 Witness Statement of R MacDonald Exhibit A1 at 28
9 Witness Statement of R MacDonald Exhibit A1 at 49
10 Witness Statement of Dr Bloom Exhibit R1 Attachment MB2 at page 2
11 Witness Statement of Dr Bloom Exhibit R1 Attachment MB2 at page 2
12 A supernumery is an additional crew member who assists with passenger service queries but does not sit in the crew seats and is not required to serve food and drinks.
13 R1 being right door and L2 being left door, L1 is the cabin manager’s position, R2 is the galley operator position PN1701-PN1716
14 Witness Statement of R MacDonald Exhibit A2 at 25
15 Witness Statement of R MacDonald Exhibit A2 at 10
16 Report of P Rees dated 29 October 2012 Exhibit A4
17 Transcript PN660
18 Transcript PN677-PN682
19 Transcript PN701
20 Transcript PN754
21 Report of Dr Dias dated 29 October 2012 Exhibit A5 Page 3
22 Report of Dr Dias dated 29 October 2012 Exhibit A5 Page 5
23 Transcript PN875-879
24 Report of Dr Dias dated 29 October 2012 Exhibit A5 Page 8
25 Transcript PN981
26 Regulation 253(1) states: “An operator shall not assign a person to act as a crew member of an aircraft, and a person shall not act as a crew member of an aircraft, unless the person is competent in the use of the emergency and life-saving equipment carried in the aircraft.”
27 Witness Statement of S Payne Exhibit R3 at 12
28 Witness Statement of S Payne Exhibit R3 Attachment SP7
29 Witness Statement of S Payne Exhibit R3 Attachment SP8
30 Witness Statement of S Payne Exhibit R3 at 22
31 Witness Statement of S Payne Exhibit R3, Attachment SP9
32 Witness Statement of S Payne Exhibit R3 Attachment SP13, Note: the date of the medical certificate appears incorrect
33 Witness Statement of S Payne Exhibit R3 Attachment SP13
34 This date was clarified as being the 1st not the 2nd of August
35 Witness Statement of S Payne Exhibit R3 at 28
36 Witness Statement of S Payne Exhibit R3 at 27
37 Witness Statement of S Payne Exhibit R3 Attachment SP15
38 Witness Statement of S Payne Exhibit R3 Attachment SP16
39 Witness Statement of S Payne Exhibit R3 Attachment SP19
40 Witness Statement of S Payne Exhibit R3 Attachment SP20, Note: letter appears to refer to incorrect date of 4/9/2012 as opposed to 11/9/2012
41 Transcript PN2542
42 Witness Statement of S Payne Exhibit R3 Attachment SP22
43 Witness Statement of S Payne Exhibit R3 Attachment SP29
44 Witness Statement of S Payne Exhibit R3 Attachment SP30
45 Witness Statement of S Payne Exhibit R3 Attachment SP31
46 Witness Statement of S Payne Exhibit R3 Attachment SP32
47 Witness Statement of S Payne Exhibit R3 Attachment SP33
48 Witness Statement of S Payne Exhibit R3 at 55 and Attachment SP35
49 Transcript PN1341
50 Witness Statement of S Payne Exhibit R3 at 61 and transcript PN1346
51 Transcript PN1320
52 Witness Statement of S Payne Exhibit R3 Attachment SP37
53 The WorkCover medical certificates contain boxes marked “is fit for pre-injury duties”, “is unfit to work” or “is fit for suitable duties”
54 Witness Statement of Dr Bloom Exhibit R1 at 22
55 Witness Statement of Dr Bloom Exhibit R1 at 24
56 Mr MacDonald was offered a part time role on 10 July 2012 which he accepted on 21 October 2012 see Attachment SP23 of Exhibit R3 and paragraph 21 of Exhibit A1 Witness Statement of Mr MacDonald
57 Witness Statement of Dr Bloom Exhibit R1 at 31
58 Transcript PN1210 and PN1254
59 Transcript PN1095 and PN1111
60 Transcript PN1142
61 Transcript PN1145-PN1157, PN1256-PN1257
62 Transcript PN1185
63 Witness Statement of Dr Bloom Exhibit R2
64 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 13-14
65 (1997) 77 IR 244 at 256 see also comments of the Full Bench in J.P. Dundovich v P&O Ports [2002] PR923358 at 75 and Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes[2013] FWCFB 9075 at 55
66 Applicant’s Outline of Submissions Exhibit A10
67 [2010] FWA 148
68 PR910187
69 (1995) 62 IR 371 at 373
70 PR942856
71 J Boag and Sons Brewing v Button 195 IR 292 at 299
72 PR944238
73 Report of Dr Bloom Attachment MB 2 to Exhibit R1 at page 6
74 Witness Statement of R MacDonald Exhibit R3 Attachment SP7
75 Witness Statement of S Payne Exhibit R3 at 22
76 Attachment SP12 to Exhibit R3
77 [2003] WASCA 45
78 Applicant’s Outline of Final Submissions Exhibit A9 at 37
79 Applicant’s Outline of Final Submissions Exhibit A9 at 22
80 Transcript PN563-PN565
81 See paragraph 15 of this decision
82 Witness Statement of S Payne Exhibit R3 Attachment SP13
83 [2013] FWC 2694 at [35]
84 Witness Statement of R MacDonald’s Exhibit A2 at 3
85 Transcript PN451
86 [2011] FCAFC 54 at 5 -7
87 PR963023
88 (2003) 124 IR 217
89 (1995)185 CLR 411
90 Transcript PN2172
91 Witness Statement of S Payne Exhibit R3 at 15. Mr MacDonald also advised Dr Bloom he was given ground based duties in October 2011, see Witness Statement of Dr Bloom Exhibit R1 Attachment MB2 at page 2
92 Witness Statement of S Payne Exhibit R3 at 16-17
93 Witness Statement of S Payne Exhibit R3 at SP32.
94 Transcript PN2178
95 [2010] FWAFB 4022
96 Transcript PN1629 and PN1632
97 Transcript PN1668
98 [2012] FWAFB 1616
99 71 WAIG 899
100 Report of Dr Dias dated 29 October 2012 Exhibit A5 Page 3
101 Witness Statement of R MacDonald’s Exhibit A2 at 29
102 Transcript PN572-PN582. Note also that Dr Dias’s report of 26 June 2013, states at page 3 that Mr MacDonald works full time whereas the Applicant’s Outline of Final Submissions Exhibit A9 states at 42(b) that his new job is part time. See also Transcript at PN2113 and Witness Statement of S Payne Ex R3 Attachment SP31 referring to a full time role
103 Witness Statement of R MacDonald’s Exhibit A2 at 25-30
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