[2014] FWC 4030 [Note: An appeal pursuant to s.604 (C2014/5455) was lodged against this decision - refer to Full Bench decision dated 30 October 2014 [[2014] FWCFB 7813] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronaldo Salazar
v
John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd
(U2014/3774)

COMMISSIONER RYAN

MELBOURNE, 26 JUNE 2014

Application for relief from unfair dismissal - valid reason - mental health issues.

[1] This decision concerns an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Salazar (the Applicant) for a remedy in relation to the termination of his employment by John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd (the Respondent).

[2] A decision in relation to each of the matters identified in s.396 of the Act was given on transcript in this matter.

When did the employment relationship come to an end?

[3] Both the Applicant and the Respondent contend that the employment relationship ended on 23 December 2013 when the Respondent issued the formal letter of termination to the Applicant.

[4] I have no doubt that the employment contract of the Applicant ended on 23 December 2013.

[5] The application in this matter related to a dismissal from employment. The meaning of “dismissed” is set out in s.386 of the Act as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[6] For the purposes of s.386(1)(a) and of Part 3-2 of the Act “the statutory tests relate to the termination of the employment relationship, not termination of the contract of employment.” (Searle v Moly Mines Limited 1)

[7] In the present matter the Respondent has alleged that the Applicant engaged in conduct which led the Respondent to conclude that the Respondent “has serious concerns about your recent conduct which has led to a fundamental breach in the Company's trust and confidence in your ability to perform your role safely or at all.”

[8] It is apparent from this statement in the letter of 5 August 2013 that the Respondent had come to the conclusion that there was, as at 5 August 2013, “a fundamental breach in the Company's trust and confidence” in the Applicant’s ability to perform his role safely or at all.

[9] The conclusion of the Respondent goes to the very essence of the employment relationship.

[10] The employment relationship is effectively ended when the employer loses trust and confidence in the employee.

[11] The Respondent’s letter of 5 August 2013 also contained the following statement:

“In light of your repeated refusal to follow lawful and reasonable directions to work in accordance with the requirements of the Company, and the alarming, incorrect and threatening statements you have made publicly about the business and its managers, John Holland has arrived at the view that it is entitled to terminate your employment due to serious misconduct.”

[12] Whilst the statement of the Respondent is expressed as arriving at a view that the Respondent is entitled to terminate the employment of the Applicant the entitlement only arises because the Respondent concluded that the Applicant had engaged in conduct which was incompatible with a continuing employment relationship.

[13] Although the letter of 5August 2013 contains a requirement that the Applicant respond to the allegations it appears that the purpose of the letter is to create the appearance of procedural fairness being accorded to the Applicant. The Respondent made it clear that in the absence of a response from the Applicant that “if you fail to provide your written response or attend this meeting, John Holland may proceed to make a decision in relation to your employment based on the information currently available, which will likely involve the termination of your employment.”

[14] Whilst the Respondent used the word “likely” this is a term which reflects probability and in the context of the letter the probability of the Applicant’s employment contract being terminated was certain!

[15] The very language of the letter of 5 August 2013 discloses that the Respondent had concluded that the Applicant had engaged in serious misconduct and that effectively the employment relationship ended with that conclusion having been made.

Was the Dismissal Unfair?

[16] This part of the decisions deals with the issues raised by s.387 which is as follows:

“387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

Section 387(a) - valid reason

[17] The Applicant was employed by the Respondent as a Licensed Aircraft Mechanical Engineer (LAME) in the maintenance of commercial jet aircraft at Tullamarine Airport.

[18] The Applicant was covered by the JHAS Enterprise Agreement.

[19] The reasons for the termination of the Applicant’s employment were stated in a letter of termination on 23 December 2013 as:

“I confirm that your employment with John Holland Ply Ltd has been terminated as a result of conduct and the subsequent breach of the following:

Your employment obligations;

The John Holland People Policy; and

The John Holland Values of Care and Accountability.”

[20] The reasons for termination equated with three allegations of serious misconduct 2 put to the Applicant by letter dated 5 August 2013 as follows:

“John Holland has serious concerns about your recent conduct which has led to a fundamental breach in· the Company's trust and confidence in your ability to perform your role safely orat all. These matters of concern are:

(a) Your refusal to change work group as directed;
(b) Your email of 18 July 2013 to Glenn Palin; and
(c) Your claims in respect of your lack of certification to perform work on the Rolls Royce Trent 700 engine.”

[21] Each of these three reasons will be examined separately using the identification that appeared in both the letter of 5 August 2013 and the letter of termination of 23 December 2013.

1. Your refusal to change work group as directed - breach of your employment obligations

[22] The alleged misconduct was described in the letter of 5 August 2013 as follows:

“A. Refusal to change work group as directed

Recently, because of the operational requirements of the business, you were requested to change your work group from Crew A to Crew B. This was because the Company had a clearly demonstrated need for skilled engineers to work in Crew B. We have explained this to you at length including explaining that you would be working the same roster (4 on 4 off night) as you currently work and receive the same pay. You have refused to accept this change. You have been given extensive opportunity to explain your refusal to change work group and have failed to provide a cogent or valid explanation for your refusal. We have the right under the terms of your employment to direct you to change work groups to meet the needs of the business but you have refused. Such refusal makes it very difficult to conduct the business, particularly in the context of the ongoing losses suffered by the business and the extensive redundancies that we have been forced to recently make.

Your refusal to change work groups followson from your refusal in January 2013 to follow a direction from your supervisor to undertake a task on the A330 for which you are trained and certified. At that time you were stood down on pay because of your refusal to follow a lawful and reasonable direction. I discuss this issue further below.

Your contract of employment includes the following provision:

‘3) DUTIES AND RESPONSIBILITIES

You will carry out all lawful orders and discharge such duties and functions as may be delegated or assigned to you including work for any related, associated or subsidiary companies of John Holland, and any joint venture partners with which John Holland may be associated. You are expected, to the utmost of your ability, to promote the interests of and protect the property of John Holland. A position description detailing your responsibilities will be jointly developed with you and finalised shortly after the commencement of your employment. These duties and responsibilities may be added to or amended by John Holland in consultation with you.

During your employment, you must not use your position for an improper purpose or for private benefit; faithfully and diligently perform all your duties; comply with all reasonable directions; not, without John Holland's prior written consent, act in conflict with John Holland's interests; disclose to John Holland at the earliest opportunity, all potential or actual conflict of interest, and other matters likely to impact on the performance of your duties;· on discovery, not allow a potential or actual conflict of interest to continue.

If you are unsure whether there is a potential or actual conflict of interest, you are to raise this with your manager.’

Your refusal to change work groups constitutes a breach of your contractual obligations by refusing to follow a lawful and reasonable directive. I discuss below your further breaches of your contract.”

[23] In the ordinary course of employment where an employer has a right under an enterprise agreement to change the roster of an employee after having given the appropriate notice and the employee refuses to comply with the changed roster then the employer would most likely have a valid reason to take disciplinary action against the employee.

[24] In the present matter I note the contention of the Respondent as stated in the letter of 5 August 2013:

“You have been given extensive opportunity to explain your refusal to change work group and have failed to provide a cogent or valid explanation for your refusal.”

[25] Whilst on the surface this contention appears to have some substance it is necessary to examine all of the circumstances of this matter to assess the validity of the contention.

[26] I note that the Applicant’s treating doctor considered that the Applicant should only work his original roster and not the roster to which the Applicant had been directed to work.

[27] The certificate of capacity provided by the Applicant for his non attendance at work on Sunday 21 April 2013 had a “description of injury/disease” as “stress from problems at work”. The Diagnosis was “acute stress reaction”, the Treatment/medication was “Psychologist” and the Work restrictions were identified as “fit to do A crew duties”. The doctor added a comment as follows: “Ronaldo has no practical experience in A330 EGR Virgin Australia (Crew B duties). He needs to practice within his limit.” Given that the same work is done on A crew and B crew with both crews working a 4 on 4 off roster there appears to be no reason why the doctor would specifically mention that the Applicant was fit for A crew duties.

[28] The allegation of serious misconduct in relation to the Applicant’s refusal to change rosters relates to a direction first given to the Applicant in May 2013, although the issue of roster change appears to have been raised earlier.

[29] The witness statement of Mr Peter Luthaus, Base Maintenance Manager, contains the following:

“19. A fourth meeting was held on 9 May 2013. This meeting was attended by Mr Salazar, Melissa Edwards, Human Resources Co-ordinator, Mehdi Fayyazi, JHAS Quality Assurance Manager, and me.

20. At this meeting it was determined that Mr Salazar would:
(a) Return to night shift work as of 15 May 2013 on Crew A;
(b) Commence work on Crew B on 13 June 2013; and
(c) Send an email to me confirming his ability to complete any certifying tasks as a LAME.

21. When asked to move to Crew B, Mr Salazar refused. Operationally, I needed Mr Salazar on Crew B. His refusal to move meant that there was ongoing pressure on Crew B. I had asked another LAME to move to Crew B, and that LAME moved, which reduced some of the pressure. However, there continued to be an operational need. Mr Salazar was given notice in accordance with clause 13.5 of the John Holland Aviation Services [Victoria] Enterprise Agreement 2012 that he was required to change crews.” 3

[30] On 6 June 2013 the Applicant notified the Respondent that he was in dispute over the proposed roster change.

[31] On 10 June 2013 the shift supervisor of Crew A sent the following email to Mr Peter Luthaus:

“Peter,
On our first nite on shift this rotation and also tonite, I've had to deal with Ronaldo who has been in quite a bit of stressed state of mind. Quite visibly.
On our first nite, Ronaldo elected to head home, and last nite he acted as an AME for the full shift.
On discussion with Ronaldo I have discovered that he is being moved to the other nightshift crew as of this week.

I'd just like to say I have had no problems with Ronaldo on this crew since I have been acting in a lead role and even before, when acting as an LAME. When I have assigned Ronaldo his tasks for each nite he has acted exactly as I expected him to do so, with no fuss.
I do not know the reasons behind Ronaldo being moved from this crew, I am not involved in that process.
What I am concerned about is the loss of another LAME from this crew. Ronaldo has A330 and A320, which are two ratings that we need.

Each nite on shift it seems to get harder and harder to assign work to the crew due to constantly less qualified and experienced people on shift.

I just want to make you aware.

Jason Clement
PNS LAME”

[32] A meeting to deal with the notified dispute was held on 11 June 2013 and the Respondent was represented by Mr Luthaus, Base Maintenance Manager, Ms Cheryl Smith, HR Manager and Mr Brad Stewart, National Organiser of the Australian Licenced Aircraft Engineers Association represented the Applicant who was also in attendance.

[33] Following the meeting Mr Luthaus sent an email to Ms Smith and Mr Keech, Manager Aircraft Maintenance which contained the following:

“FYI Ronaldo has just approached me and requested that I approve the first 3 days of his shift with Crew B as JHD's as he would like time to discuss the shift change with his family. I stated that if he needs the time off I will look at the operational impact however it should be okay.”

[34] The Applicant confirmed his request for leave in an email to Mr Luthaus sent on 12 June 2013 at 2.05am as follows:

“As per conversation with you today, 11th June 2013 - I am applying for my John Holland Day starting 13th to 15th June 2013, to have a discussion and to fix all my family obligation issues before complying with the new shift roster PNS B which is not beneficial for me and my wife to meet in attending to our family responsibilities and present difficulties. I'll be sending my leave application through my private email and make you aware that I have a current internal email issue with IT department which I cannot get access into it since the first night of my shift. Once I come back to work on the 20th June on the other shift, I will try to update my leave application once it get fix.

Please acknowledge upon approval through my personal email.

Hoping for your kind consideration in this matter with your most valued approval as I just want to relieve my stress caused by bad experiences.”

[35] On 13 June 2013 Ms Smith wrote to the Applicant concerning the meeting on 11 June 2013. Ms Smith repeated the explanation given at the meeting as to the operational requirements behind the requirement that the Applicant change from Crew A to Crew B. The letter resolved the dispute in the following terms:

“3 Response to your request to not to be moved to Crew B
We have considered your request not to be moved to Crew B due to family reasons. We reconfirmed that “Crew A” and “Crew B” work identical shift patterns ie - “four on, four off, rotating night shift”. At this stage we are unable to meet your request to remain on Crew A due to family reasons. As discussed, for operational reasons we need you licence type to perform work on Crew B.

4 Request for annual leave
Site management have approved your request to take three days annual leave.
As discussed with Peter Luthaus, when you return from leave on 20 June you will commence work at 8pm on Crew B.

We value your contribution to our team, and you are a vital part of the team’s success. If you do not understand the content of this letter, please contact me immediately.”

[36] On 15 June 2013 the Applicant sent a brief email to Mr Fayyazzi, Quality Assurance Manager in the following terms:

“I would like to withdraw my A330 approval on Virgin Australia immediately.”

[37] In response Mr Young, Quality Safety Manager sought to have a meeting with the Applicant and with Ms Smith at 8pm on 17 June 2013 when the Applicant was due to commence work.

[38] The Applicant sent a further email on the morning of 18 June 2013 to Mr Young and copied to others including his union, in which he repeated his intention to withdraw his A330 coverage:

“I would like to withdraw my A330 coverage immediately due to Human Factor issues which is being ignored by JHAS HR management as per my employment contract.”

[39] The Applicant did not return to work on 20 June 2013 as the Applicant produced medical certificates in relation to the incapacity of his wife and the Applicant took carers leave for the period 20 June 2013 to 23 June 2013.

[40] There were a number of emails exchanged between the Applicant and the Respondent between the 21 June 2013 and early July 2013.

[41] A meeting was sought to be arranged between the Applicant and the Respondent for 24 June 2013. The Applicant sought to have as his support person a representative from CASA, however that person declined to attend the meeting on the basis that it was inappropriate for CASA to act as support person in relation to an internal issue at the Respondent’s business. The meeting was rearranged for 28 June 2013 and it was agreed that Ms Smith would not attend and that Mr Joyce, Employee Relations Manager would attend. The Applicant was able to arrange for Mr Brad Stewart from ALAEA to represent him.

[42] Mr Stewart sent an email to the Applicant on 27 June 2013 confirming his attendance at the meeting proposed for 28 June 2013. In that email Mr Stewart gave a blunt message to the Applicant:

“I believe the meeting relates to shift and roster change. Please do not be under any illusion that because you have raised human factors issues that you will not be required to change shifts.”

[43] After the meeting on 28 June 2013 Mr Young, at the request of the Applicant, forwarded to the Applicant an email recounting the details of the meeting which included the following comments:

“After the adjournment Mr Joyce enquired whether you wanted to provide me with additional information that specifically addressed your ‘human factors’ in this matter
You said that you would email me additional information regarding your ‘human factors’ in this matter.
You said that you were not trained to perform Engine Ground Running upon a Trent 700.
I said I would check our training records.
You said to Mr Joyce, subject to talking with you wife, you would perform the full duties of a LAME on Crew B, excluding Engine Ground Running upon a Trent 700 until trained.
Mr Joyce suggested a further meeting at 9am on Tuesday 2 July 2013.
The parties agreed to a further meeting at 9am on Tuesday 2 July 2013.
You said that you would email me before 9am on Monday 1 July 2013 any additional information that you wanted me to consider regarding your ‘human factors’ in this matter.
I said I would need to check our training records, review the document you had just given me and then read any additional information you were going to email to me.”

[44] The Applicant emailed Mr Young on 1 July 2013 with a further submission as to the ‘human factors’ relied upon by the Applicant. The essence of the Applicant’s position was that a significant reason for the transfer from Crew A to Crew B was that the Applicant could do all necessary work on an A330 aircraft including an Engine Ground Run on either a GE engine or a Rolls Royce Trent 700 engine. However the Applicant strenuously denied that he had been appropriately trained to do an Engine Ground Run on a RR Trent 700 engine.

[45] The Applicant’s email said in part:

“I was forced to signed my company approval certification upon participating on my RTW program and signing this is in violation CASA rules, saying that I am the only qualified having the most suited skill and changed my employment duties, as such I am not adequately trained and qualified to ground run an engine. (Why HR management is forcing me to be transferred to crew B, which I have not undergone training on simulator EGR TRENT 700 engine and my approval was changed so quick, is this that mean they admitted and considered that management HR violates CASA rules and regulations. COERCION and not properly undertake the appropriate training.

I was instructed to be transfer to PNS crew B, not doing so, a disciplinary action will be place on me not complying with management HR Cheryl Smith. Am I the most qualified individual in my crew? having the EGR for RR TRENT 700 engine. Now, is there any reason for me to be move to PNS Crew B or 1 need to be retained to my original Crew A. When I asked you all if I am the chosen one, am I Jesus Christ?
Yourself, Robert Joyce and Brad Stewart only laugh on me, that was really an insult to me and my dignity. 'Discriminated' me all over again. You turned everything upside down. Refer attached letter from Cheryl dated 14 May 2013 for you to review mailed to my home address.”

[46] The Applicant then went on in his email to request that a Virgin representative attend the next meeting and have a representative of Virgin “decide whether I am qualified or I am fit to certify their A330 aircraft.”

[47] On 2 July 2013 The Applicant’s wife sent a detailed email to Mr Young complaining about the Respondent’s treatment of the Applicant and indicating that if the matter could not be resolved within 24 hours then the Applicant and his wife could go to CASA or FWC to have the matter dealt with. 4

[48] It appears that the Applicant also wrote a letter or email on or about 2 July 2013 to Mr Young 5 which contained the following:

“HR management intentionally coerced me to certify aircraft and give me an approval which is against my will as such my approval on A330 dated 18 January 2013 and by this date 10 May 2013 have changed ultimately. Accordingly, I do not qualify as the most suited skill as per letter dated 13 June 2013 from HR. Now you can see this is a discrimination issue. Not following the proper review of my qualification and training and suddenly forcing me to go to crew B as an excuse that I am the most qualified person and not the other engineers in crew A which are fully qualified and one of them should have been chosen to be transferred to the other shift for operational requirements.

Please show me the training I have received for A330 TRENT 700 Engine Ground Run as per CASA AC 66-3(1) MAY 2013 which was ignored and issuing me EGR Approval as such I am the LAME to be chosen for crew B, but I am being sent to their shift as a punishment. Please return me back to my original crew A1 as I am an honest and dedicated LAME individual fulfilling all my duties with JHAS since the start of my employment from 03 May 2010.

Please refer to training department that I was adequately trained and satisfactorily completed training in Simulator for A330 GE CF&-80 Engine Type Training (A330-JESTAR Fleet). A330 TRENT 700 EGR not provided to me by JHAS training department to date.

I also proud to uphold my profession as a Licensed Aircraft Maintenance Engineer (LAME) with the rigor of releasing Aircraft to be airworthy and Public Safety is my top priority as per CASA LAME privileged issued to my CASA License.”

[49] To put this letter or email into proper perspective the reference by the Applicant to “CASA AC 66-3(1) May 2013” is a reference to an Advisory Circular issued by CASA which was titled “Engine Ground Run Training and Assessment”. At the bottom of the first page of the Advisory Circular is the following text:

“Advisory Circulars (ACs) are intended to provide advice and guidance to illustrate a means, but not necessarily the only means, of complying with the Regulations, or to explain certain regulatory requirements by providing informative, interpretative and explanatory material.
Where an AC is referred to in a ‘Note’ below the regulation, the AC remains as guidance material.
ACs should always be read in conjunction with the referenced regulations.
This AC has been approved for release by the Executive Manager, Standards Division.” 6

[50] The Respondent stood down the Applicant (with his agreement) with pay from 2 July 2013 to 3 July 2013. The Respondent invited the Applicant to make a formal complaint to the Respondent in accordance with the formal “Workplace Behaviour Complaints Procedure” of the Respondent. Instead of filling in this form the Applicant wrote two emails to Mr Glenn Palin, Managing Director of the John Holland Group pleading with him to resolve the matter by allowing the Applicant to return to work on Crew A.

[51] On 3 July 2013 Mr Luthaus wrote to the Applicant in the following terms:

“This letter confirms the phone message and text message that I sent you this afternoon.

Site management have arranged for Robert Joyce, Employee Relations Manager with responsibility for JHAS, supported by Melissa Edwards, Human Resources Co-ordinator with JHAS, to conduct an investigation into the comments made by yourself in various emails regarding site management’s decision to transfer you to Crew B.

The meeting is scheduled to commence at 9am at JHAS on Friday, 5 July. Please note, we have allocated up to 3 hours for this meeting. As before, you can arrange for a support person to attend this meeting with you.

As discussed and agreed you are currently stood down with pay. You are now instructed to attend this meeting.”

[52] The meeting took place on 5 July 2013 and a summary of the meeting was produced by Mr Joyce and contained the following:

“Mr Salazar made an opening comment summarising his position regarding him comments regarding site management's decision to transfer him to Crew B.

Mr Joyce suggested the meeting be adjourned in response to Mr Salazar's comment that he would commence work on Crew B to perform all of the duties of a LAME- including certifying A330's for Virgin Australia, if site management could confirm that he was trained and assessed as competent to perform EGR upon Trent 700 engines.

The meeting was adjourned at 9.30am to arrange for both Mr Keech and Mr Young to speak directly with Mr Salazar regarding this comment.

The meeting resumed at 10.05am.

Mr Salazar's reconfirmed his comments that he would commence work on Crew B to perform all of the duties of a LAME - including certifying A330's for Virgin Australia, if site management could confirm that he was trained and assessed as competent to certify EGR upon Trent 700 engines.

Mr Young considered that Mr Salazar was competent to certify EGR upon Trent 700 engines.

Mr Young also said he would review the training records to establish whether Mr Salazar had completed both the theoretical and practical components of the training as well as being assessed to be competent to certify EGR upon Trent 700 engines.

Mr Keech confirmed that Mr Salazar could now commence work on Crew B performing all of the duties of a LAME - excluding EGR upon Trent 700 engines.

Mr Keech also said, in the event Mr Salazar had not completed the practical components of the training, it would be arranged as soon as practical.

Both Mr Keech and Mr Young left the meeting at 10.40am.”

[53] On 5 July 2013 Mr Keech wrote to the Applicant in the following terms:

“The purpose of this letter is to confirm the details of your return to work on Crew B to perform the duties of Licensed Aircraft Maintenance Engineer ('LAME').

This morning we discussed your return to work during a meeting attended by Brad Stewart, ALAEA, Richard Young, Safety & Quality Manager, Melissa Edwards, HR Advisor, and Robert Joyce, Employee Relations Manager. Our aim is that you perform the full duties of a LAME including certifying A330 aircraft for Virgin Australia as soon as practicable. We also note that you will not be asked to certifying the EGR upon the Trent 700 engine until we can confirm you have been assessed as competent to perform this task.

Please note, we have reviewed your most recent Certificate of Capacity dated 28 March 2013.This Certificate states that you were cleared to return to work from 8 April 2013 on 5 hours a day on day shift for the two first weeks with the expectation that you will be.fit for full duty thereafter. There has been no subsequent Certificate of Capacity from your medical practitioner to declare you fully fit for duty.

It is for this reason that we now request you supply John Holland Aviation Services with a further Certificate from your doctor confirming you are fit to return to work on Crew B- ie '4 on, 4 off' rotating night shift to perform the full duties of a LAME in line with the LAME Position Description (attached) before you commence work on Crew B.

As we have requested this further Certificate Capacity before you commence work on Crew B, we acknowledge that your treating doctor may not be able to issue this Certificate before 8.00pm, Saturday, 6 July 2013. We confirm that you are not required to commence work on Crew B until your doctor provides you with this Certificate prior to 12 July 2013. If you are unable to provide this Certificate to myself prior to this date, please make alternative arrangements with me as soon as practicable.”

[54] On 10 July 2013 Mr Young initiated a process to withdraw the Respondent’s authorisations for the Applicant to perform A330 Rolls Royce Trent EGR’s. This withdrawal of the authorisation to perform Engine Ground Runs on an A330 aircraft with RR Trent 700 engines was notified to the Applicant on 11 July 2013.

[55] On 10 July 2013 the Applicant responded to Mr Keech by providing a certificate of capacity issued by his doctor on 17 April 2013 which certified the Applicant fit for duties on Crew A.

[56] In his covering email to Mr Keech the Applicant asked:

“Tonight is the first start of Crew A, do you want me to report for duty tonight as per my medical certificate or wait for further instruction from yourself.”

[57] Not surprisingly, Mr Keech responded to the Applicant on 10 July 2013 with the following:

“The purpose of this letter is to reconfirm my request that you supply John Holland Aviation Services with a further Certificate of Capacity from your doctor confirming you are fit to return to work on Crew B- ie '4 on, 4 off rotating night shift, to perform the full duties of a LAME in line with the LAME Position Description (previously provided) before you resume work.

Please note that the Certificate of Capacity you have sent me this afternoon is dated 17 April 2013, and is not what I requested.

I reconfirm that you are not required to resume work on Crew B until your doctor provides you with a Certificate of Capacity prior to 12 July 2013. If you are unable to provide this Certificate to myself prior to this date, please make alternative arrangements with me as soon as practicable.”

[58] On 11 July 2013 the Applicant replied to Mr Keech and attached a certificate of capacity which the Applicant advised was issued on 10 July 2013 when in fact the certificate was the one issued on 17 April 2013. Mr Keech wrote to the Applicant on 11 July 2013 repeating the contents of his letter of 10 July 2013.

[59] On 12 July 2013 the Applicant provided to Mr Luthaus a certificate of capacity issued by his doctor on 11 July 2013. That Certificate of Capacity certified that the Applicant was “Expected to be fit for normal duties” from 11 July 2013 but the certificate also noted a Diagnosis of “acute stress reaction” with the Treatment/medication identified as “psychologist”. The certificate of capacity contained no restrictions on the work that the Applicant could perform.

[60] The Applicant sent two emails on 11 July 2013 at 11.51am to Mr Keech and Mr Luthaus and at 3.08pm to Mr Luthaushis.

[61] In the first email the Applicant asks:

“Please advise me when I can return to work and this matter can be resolve, that way everybody will be happy, receive without charge, give without charge and it’s not all that hard the way life is meant to be live.”

[62] In the second email the Applicant asks:

“Do I need to return to work tonight or I wait for you further instructions.”

[63] The questions raised by the Applicant appear both reasonable and expected given that the Applicant had, as required by the Respondent, provided a Certificate of Capacity which certified the Applicant as fit for normal duties.

[64] The Applicant’s capacity to return to work and perform normal duties was short lived. Medical Certificates were issued by the Applicant’s treating doctor declaring him not fit for work for the period 15 to 17 July 2013.

[65] There is nothing before the Commission which suggests that there were any communication between the Respondent and the Applicant between 12 July 2013 and 18 July 2013 when the Applicant sent his email to Mr Palin. This email is the subject of the second allegation of serious misconduct against the Applicant which is dealt with later in this decision.

[66] The email of the 18 July 2013 was copied to CASA and a representative of CASA spoke to Mr Young on 18 July 2013 in relation to the Applicant.

[67] Mr Young sent a detailed email to CASA at 8.47pm on 18 July 2013. Relevantly the email concludes with the following paragraphs:

“16. It is my opinion that this matter is based on an industrial dispute between Ronaldo and JHAS regarding shift roster, and is not related to his training or experience claims. This is evidenced by Ronaldo’s refusal to accept JHAS management’s decision to change Ronaldo’s shift based on operational requirements which have been clearly and repeatedly explained to him even with the EGR authorisations removed. On all three occasions that I have met with Ronaldo, his concern quickly changes from “Human Factors” to the industrial issue shift change.

17. There is a history of disturbing threats, unsubstantiated claims and accusations in the form of email over this entire period that has been distributed to an ever increasing range of people by Ronaldo including reference to the recent Asiania B777 crash in San Francisco. Therefore, due to significant and growing concerns regarding the risk to aviation safety created by this unreasonable behaviour, I have determined that Ronaldo is not a fit and proper person to perform and certify for and on behalf of JHAS, and therefore, with the support of the Accountable Manager, and other JHAS responsible managers, I have exercised my authority to revoke all certification authorisations indefinitely until this matter is thoroughly resolved to my satisfaction. This revocation was initiated this morning my myself.”

[68] On 19 July 2013 Mr Keech wrote to the Applicant drawing attention to the letter of 5 July 2013 in which the Applicant was directed to supply a certificate of capacity to work on Crew B. The letter concluded with:

“Can you please contact me as soon as practicable to advise me when you will be able to send me a Certificate of Capacity confirming you are fit to return to work on Crew B?”

[69] The Applicant responded on 19 July 2013 as follows:

“Hi Byron

As you requested regarding my medical certificate of capacity, I am submitting as per legal advise from Maurice Blackburn Lawyers today, 19 July 2013. This will be more sufficient for me to submit for my normal return to work on normal duties. You’re very much welcome to discuss this matter with MBL Lawyers Ms Jenica Lim-Young, and my treating doctor shouldn’t be dictated as per legal advice.

Regards
Ronaldo”

[70] The attachment to the email was a copy of the Certificate of Capacity dated 11 July 2013.

[71] Further Certificates of Capacity were issued by the Applicant’s treating doctor declaring him unfit for work for the periods 22 to 25 July 2013, 30 July to 2 August 2013.

[72] On 5 August 2013 Mr Keech wrote to the Applicant in relation to “Serious Disciplinary Matter” which included the alleged serious misconduct identified in [22] above.

[73] A careful consideration of the history of this issue, as set out above, discloses that the last declared position of the Applicant was that at a meeting on 5 July 2013 the Applicant agreed “that he would commence work on Crew B to perform all of the duties of a LAME - including certifying A330’s for Virgin Australia, if site management could confirm that he was trained and assessed as competent to certify EGR upon Trent 700 engines.” 7

[74] The Respondent’s confirmed position as at 5 July 2013 was that before the Applicant was permitted to return to work the Applicant had to produce a “Certificate from your doctor confirming you are fit to return to work on Crew B - ie ‘4 on, 4 off’ rotating night shift to perform the full duties of a LAME in line with the LAME Position Description”. 8

[75] The Respondent amended its position on 10 July 2013 when it withdrew the Applicant’s authorisation to do EGR on Trent 700 engines.

[76] The Applicant appears to have met the requirement of the Respondent in producing an unrestricted certificate of capacity to resume work as from 11 July 2013.

[77] The failure of the Applicant to attend for work on or after 11 July 2013 and the failure of the Respondent to permit the Applicant to work on or after the 11 July 2013 do not appear to be as a result of any refusal by the Applicant to work on Crew B. Rather the failure of the Applicant return to work on or after 11 July 2013 reflects the fact that the Applicant was not fit for work from 15 July 2013 and the Respondent’s reaction to the email sent by the Applicant on 18 July 2013 and the Respondent’s insistence that the Applicant could not return to work until such time as the Applicant produced a “Certificate from your doctor confirming you are fit to return to work on Crew B - ie ‘4 on, 4 off’ rotating night shift to perform the full duties of a LAME in line with the LAME Position Description”. 9

[78] It is clear that after 5 July 2013 the Applicant took the opportunity to resist accepting the change of roster to Crew B including by pleading with the most senior management of the John Holland Group, however this does not constitute a refusal to change to Crew B. As noted above the Applicant did produce an unrestricted certificate of capacity to resume work as from 11 July 2013.

[79] The allegation put to the Applicant on 5 August that he had recently before 5 August refused to accept a change of roster from Crew A to Crew B was simply unsustainable by the Respondent.

[80] The conclusion effectively drawn on 5 August 2013 and confirmed in writing on 23 December 2013 that the alleged misconduct occurred is unsound, indefensible and not well founded.

[81] It is relevant to note two matters in relation to this issue that occurred after the allegations were put to the Applicant in the letter of 5 August 2013.

[82] Firstly the Respondent advised the Applicant on 15 August 2013 that it would address the concerns raised in the letter of 5 August 2013 in due course given that the Applicant was unfit for duties at that time.

[83] Secondly, the Applicant appears to have only been in a position to comply with the request from Mr Keech on 5 July 2013 in early December 2013. On 5 December 2013 Mr Keech wrote to the Applicant and the letter commenced with the following:

“The purpose of this letter is twofold. The first purpose is to acknowledge receipt of your unrestricted medical certificate to return to perform normal duties. The second purpose is to reconfirm that we request your written response to serious matters in relation to your conduct and performance that may affect your employment- refer to our earlier letter to you dated 5 August 2013 [copy attached].”

[84] Whilst the Applicant technically complied with the requirement made by Mr Keech in his letter of 5 July 2013 when he produced a certificate of capacity as from 11 July 2013 it is very clear that the Applicant met all of the requirements of Mr Keech’s letter of 5 July 2013 when he produced an unrestricted medical certificate to return to perform normal duties in December 2013.

[85] Both the undertaking given by the Applicant at the meeting on 5 July 2013 that he would move to Crew B and the requirement of the Respondent that he would start work on Crew B only when the Applicant produced an unrestricted certificate of capacity meant that the effective outcome of events on 5 July 2013 was finalised when the Applicant produced his unrestricted certificate of capacity in early December 2013.

[86] That the Applicant did not resume work after having produced an unrestricted certificate of capacity was not because of any refusal by the Applicant to work on Crew B but was solely because the Respondent stood the Applicant down until the Respondent dismissed the Applicant.

2. Your email of 18 July 2013 to Glenn Palin - breach of the John Holland People Policy

[87] The alleged misconduct was described in the letter of 5 August 2013 as follows:

“B. Your email of 18 July 2013

Further, your email of 18 July 2013 to Glenn Palin and a broad range of other people has caused serious concern to John Holland in relation to your ongoing employment. In particular in that email you:
a) alleged that JHAS, Ross Alexander and his team are incompetent and trying to "kill" you and your family;
b) alleged that you are being denied your legal rights asa LAME;
c) suggested that unless you are listened to there may be a repeat of the Asiana Airlines Boeing 777 crash in San Francisco;
d) threatened to take your complaints to "Today Tonight" or "60 minutes" or the Prime Minister.

Your statements are incorrect, without any valid justification, and extremely serious. They appear to be designed to cause the maximum damage to the business and to be threats made to achieve a particular industrial objective of yours. Your statement in relation to the Asiana Airlines crash is alarming and gives rise to a serious concern about you continuing in your role as a person entrusted to certify whether work done on a plane has been correctly completed.

Since you made these statements JHAS has withdrawn all your authorisations indefinitely and promptly advised CASA of that position.”

[88] The email referred to was sent by the Applicant at 4.57am on 18 July 2013 and was the third email in a chain which commenced with an email from CASA’s Industry Complaints Commissioner to the Applicant advising the Applicant of CASA’s response to a matter raised by the Applicant. The second email in the chain was from the Applicant to CASA in reply to the email from CASA. This second email was copied to a number of persons including the Applicant’s treating medical practitioner, the Applicant’s treating psychologist, the Applicant’s union, the Union’s legal representative and to the office of a Government Minister. The third email, which was the subject t of the allegation of serious misconduct was also copied to the Applicant’s treating medical practitioner, the Applicant’s union, the Union’s legal representative and to the office of a Government Minister. The text of the email was as follows:

“Dear Glenn Palin,

If you have the courtesy and dignity and you believe JH Group will survive, why are you ignoring me, why do you want me to go in public, why do you want me to go CASA?
This clearly shows JHAS, Ross Alexander and his team is incompetent and trying to kill me and my family, denying my legal rights as a Licence Aircraft Maintenance Engineer issued to me by CASA.
I think it's high time for you to get involve with it. If you have read the the news, how come Asiana Airlines Boeing 777 crashed in SFO. So you have to listen to your employees like me not your manager who doesn't have experience in aircraft maintenance, please wake up and don't punish me.
My last choice is to report this issues to Today Tonight or 60 minutes. I need to resolve this matter, I cannot be bullied myself and my family, being harrased and discriminated. I had enough and somebody needs to listen to us or I send this to the Prime Minister of Australia Mr Kevin Rudd.

Sincerely,
Ronaldo”

[89] At the time the Applicant sent both his response email to CASA and his email to the CEO of the Respondent the Applicant was not fit to work and had produced medical certificates to that effect although without identifying any details as to the medical condition of the Applicant.

[90] On 19 December 2013 the Applicant gave a written response to the allegation in relation to the email. The Applicant said:

“Whatever I wrote was due to my medical, psychological condition at the time and that is currently under review with the Administrative Appeal Tribunal, where there is liability. I did it and it was not intentional because I am under tremendous stress and I am not well at that time. As such, with what I wrote I didn’t mean any harm to JHAS organisation or anybody and now I am being certified to go back to normal work.”

[91] As the termination letter makes clear the Respondent did not consider that the Applicant’s explanation justified or excused the Applicant’s conduct. In submissions to the Commission at the hearing of this matter the Commission sought to clarify this issue with the Respondent:

“PN1260. THE COMMISSIONER: Well, let me ask you a couple of questions. You rely upon the email of 18 July to Mr Palin and in the letter of termination, the third paragraph of the letter of termination says:

PN1261. John Holland Pty Ltd has carefully considered your response to the issues and does not find that your response justifies or excuses your failure to meet the required level of conduct as required by your contract of employment.

PN1262. I note that in the response provided on 19 December by Mr Salazar - and this is at page 481 - he says:

PN1263. This is in reply to your recent letter of the confirmation for me to comply, and I am providing you with honest answers and attending the meeting as per your letter. Whatever I wrote was due to my medical, psychological condition at that time, and that is currently under review with the Administrative Appeals Tribunal and whether there is liability. I did it and it was not intentional, because I am under tremendous stress and I am not well at that time. As such, with what I wrote I didn't mean any harm to JHAS organisation or anybody, and now I am being certified to go back to normal work.

PN1264. It appears that the decision to terminate takes that into account and dismisses it.

PN1265. MR JOYCE: Yes.

PN1266. THE COMMISSIONER: The applicant provided to the respondent at the time, or shortly after the time of that letter, or around the time of that letter, with medical certificates to say that he was suffering from depression and acute stress.

PN1267. MR JOYCE: I acknowledge that. Yes, Commissioner.

PN1268. THE COMMISSIONER: So even though he was suffering from depression and acute stress at the time of sending the email, the employer still comes to the view that sending that email constitutes a valid reason for termination?

PN1269. MR JOYCE: Commissioner, if I could? These points are specifically addressed by Mr Keech in his witness statement.

PN1270. THE COMMISSIONER: Yes.

PN1271. MR JOYCE: He was - - -

PN1272. THE COMMISSIONER: Then you just rely upon that then?

PN1273. MR JOYCE: Correctly, because you'll actually see Mr Keech's train of thought, that we did actually consider what was being said but ultimately the decision was made. But that was - Mr Keech was available for both Mr Salazar and for yourself to specifically ask him questions with respect to that.

PN1274. THE COMMISSIONER: Yes. No, but I'm just trying to clarify the nature of the submission.

PN1275. MR JOYCE: Yes.

PN1276. THE COMMISSIONER: That it was taken into account and it was - - -

PN1277. MR JOYCE: Yes.

PN1278. THE COMMISSIONER: - - - discounted in terms of the decision-making process?

PN1279. MR JOYCE: I think you'll find that, if my memory serves me - - -

PN1280. THE COMMISSIONER: No, I'm not - discount is probably the wrong word. It didn't sway the decision maker - - -

PN1281. MR JOYCE: No.

PN1282. THE COMMISSIONER: - - - to make a decision other than come to the conclusion that the conduct warranted termination.

PN1283. MR JOYCE: No, Mr Keech - yes, that's correct.”

[92] The “train of thought” of Mr Keech that Mr Joyce was referring to appears to be reference to that part of Mr Keech’s witness statement, Exhibit R1, which details the end of the meeting held on 23 December 2013:

“Overall response to the allegations

69. After discussing the three matters of concern, I asked Mr Salazar tell me why his employment should not be terminated.

70. Mr Salazar said that he had been under duress, and blamed his actions on the medication he had been taking. Mr Salazar said that he understood his actions had caused damage at CASA, and he was worried about the consequences of that. Mr Salazar provided copies of empty packets, which he said had contained sleeping medication, he had brought in with him.

71. Mr Salazar agreed that the empty packets could be photocopied. In the past Mr Salazar has said that various managers, myself included, had forgotten/misrepresented things he said. The purpose of taking a photocopy of the empty packets was to make a record of the item to which Mr Salazar attributed his unacceptable behaviour. A copy would have been made of any document/item relied upon by Mr Salazar. A copy of the photocopied packets appears at pages 483-484 of the Court Book.

72. Mr Joyce and I then stepped out of the meeting, to consider Mr Salazar's response. I asked Mr Salazar to wait until we returned. He agreed to do so.

73. I did not think that Mr Salazar had offered a sufficient explanation for his conduct. He blamed other people, or the medication, for his actions. He did not seem to take responsibility for what he had done, and did not express any contrition.

74. While Mr Salazar said that he should have changed shifts as directed, he gave no indication that he would now do so. He blamed a "miscommunication" rather than accepting that he had deliberately sought to mislead JHAS about his training. I felt that there was a real risk that if Mr Salazar came back to work, there would be no change in his conduct.

75. Mr Salazar accepted that his conduct might have caused damage for him with CASA. He did not seem to appreciate that his conduct also affected JHAS.

76. Mr Salazar's conduct had caused me to lose trust in him. Nothing he said on 23 December 2013 restored that trust. After listening to Mr Salazar I decided that I could not have him working on aircraft. I decided to terminate Mr Salazar's employment.”

[93] It does not appear that Mr Keech gave sufficient if any weight to the obvious mental health problems that the Applicant had at the relevant time.

[94] As at 18 July 2013, the date the email was written the Applicant was unfit for work on workdays both before and after 18 July 2013. Medical certificates were issued by the Applicant’s treating doctor certifying the unfitness of the Applicant to attend to his usual occupation on 15 July 2013, 16 and 17 July 2013, 22 and 23 July 2013, 24 and 25 July 2013, 30 and 31 July 2013 and 1 and 2 August 2013. A certificate of capacity was issued by the Applicant’s treating doctor on 14 August 2013 identifying that the Applicant would be unfit for any duties for the period 12 August 2013 to 25 August 2013. The certificate identified a diagnosis of “depression and stress reaction” with treatment being identified as “Psychologist” A further certificate of capacity issued on 20 August 2013 declaring the Applicant unfit for work for the period 26 August 2013 to 9 September 2013 had a diagnosis of “acute stress reaction” with treatment as “psychological counselling” and with a comment of “on-going depression and stress from problems arising at work”. A further certificate of capacity issued on 5 September 2013 declared the Applicant unfit for work for the period 10 September 2013 to 24 September 2013 had a diagnosis of “adjustment disorder with depression and anxiety” with treatment as “psychological counselling” and with a comment of “on-going stress at work”. The final certificate of capacity declaring the Applicant fit for work from 7 December 2013 had a diagnosis of “anxiety and depression” with treatment a “psychiatrist/psychologist”.

[95] On 17 April 2013 the Applicant provided a certificate of capacity to commence work from 21 April 2013 and which had a diagnosis of “acute stress reaction” and a treatment of “psychologist”. On 11 July 2013 the Applicant provided a certificate of capacity which had a diagnosis of “acute stress reaction” and a treatment of “psychologist” but which indicated that the Applicant was fit for work as from 11 July 2013.

[96] The medical certificates which have been supplied to the Commission as part of the Respondent’s material are consistent with the explanation given by the Applicant in relation to the email of 18 July 2013 that “(w)hatever I wrote was due to my medical, psychological condition at the time” and that “I did it and it was not intentional because I am under tremendous stress and I am not well at that time.”

[97] In light of the medical certificates received by the Respondent it appears totally unreasonable for the Respondent to come to the conclusion that the Applicant engaged in serious misconduct in sending the email on 18 July 2013. It is neither sound nor defensible to rely upon the conduct of an employee with an obvious mental health problem in drawing a conclusion that the conduct of the employee amounts to serious misconduct. The conclusion drawn by the Respondent that the conduct of the Applicant in sending the email on 18 July 2013 constituted serious misconduct is simply not well founded. The defence given by the Applicant for his actions, namely his mental health state and the medication he was taking for his mental health problems, provides a strong reason for excusing the conduct of the Applicant.

[98] In all of the circumstances of this matter I find that the sending by the Applicant of the email on 18 July 2013 does not provide a valid reason for the dismissal of the Applicant in that the reason relied upon by the Respondent is neither sound nor defensible nor well founded.

3. Your claims in respect of your lack of certification to perform work on the Rolls Royce Trent 700 engine - breach of the John Holland Values of Care and Accountability

[99] The alleged misconduct was described in the letter of 5 August 2013 as follows:

“C. Your claims in respect of your lack of certification: A330/Rolls Royce Trent 700 engine

Finally, I note that you have claimed on a number of recent occasions that you are not trained or certified to undertake work on the Rolls Royce Trent 700 engine on the A330. Enclosed with this letter are copies of your training records from SR Technics from 2011 which demonstrate that you did complete the necessary training to undertake work on the Trent 700 and contradict the claims which you have recently made to the company in this regard.

Your denial to our Quality and Safety staff that you were trained to undertake this type of work is a very serious matter which appears, once again, to be designed to support claims made by you against the Company. It is fundamental to our ongoing management of quality and safety issues that our employees are honest and trustworthy in their dealings with our Quality and Safety staff. You have behaved in a manner which is in serious breach of those obligations and as a consequence the Company has withdrawn all of your authorisations while your conduct is being considered. This is a further serious breach of your duty of good faith owed to the Company, and puts your employment in serious jeopardy.”

[100] The evidentiary support for the allegation appears in the witness statements of Mr Young, Exhibit R2.

[101] In his witness statement Mr Young describes a meeting held with the Applicant on 28 June 2013.

“22. The meeting took place as scheduled on 28 June 2013. It was attended by Mr Joyce, Mr Salazar, Mr Stewart, and me. During this meeting:
(a) Mr Salazar was questioned about his reference to human factors and why that affected his ability to hold company authorisations for certifying Virgin Australia A330. Mr Salazar did not provide a clear answer when asked to identify the specific human factors of concern to him;
(b) Mr Salazar did state that he had not been trained for Rolls Royce Trent 700. This was the first I had heard about any concern regarding Mr Salazar’s training. I stated that I would research his records and advise;
(c) Mr Salazar also expressed his desire to stay on Crew A and not shift to Crew B. I stated that his shift working requirements were a matter for his operations manager and not a Quality & Safety issue as both shifts were identical; and
(d) Mr Joyce suggested that Mr Salazar move to Crew B to perform the full LAME duties excluding engine ground run. Mr Salazar said that he would need to discuss this with his wife.”

[102] Mr Young also introduced into evidence a summary of the meeting which he had produced on 29 June 2013.

“24. Mr Salazar requested a copy of the minutes of the meeting, which Mr Joyce provided on my behalf by email at 12:33 pm on 30 June 2013. Mr Salazar replied to me at 6:34 am on 1 July 2013, copying his response to CASA, ALAEA and other members of the JHAS management team. A copy of the email chain appears at pages 229-232 of the Court Book.”

[103] The summary of the meeting produced by Mr Young on 29 June 2013 contains the following:

“2 Discussion points
I advised you that the purpose of the meeting was to discuss any 'human factors' that you consider prevents you from performing the full duties of a LAME, including certifying A330's for Virgin Australia, on Shift B.
The parties discussed the concept of 'human factors'.
You provided Mr Stewart, Robert Joyce and myself with a folder containing various documents.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 23

[174] In the present matter two issues arise.

[175] Firstly, the nature of the work of a LAME falls directly within the first of the two narrow special cases referred to in Perkins where any ripple on the surface of the relationship may destroy its viability. The life of airline crew and passengers depends upon the reliability of a LAME to do his or her work properly and the employer must be able to rely upon a LAME doing their work to the required standard. However merely because the work of a LAME falls within the special cases mentioned in Perkins does not of itself mean that the employers assertions as to loss of trust and confidence must be accepted. Even in the special case referred to in Perkins the Full Court went on to point out that the employer should have “a reasonable doubt about that reliability”.

[176] Secondly, the basis for each of Mr Keech and Mr Young concluding that they had lost trust and confidence in the Applicant needs to be tested as to whether it is reasonable or is soundly and rationally based.

[177] As to Mr Keech’s evidence certain observations need to be made.

“I do not see him as having made any genuine attempt to rebuild my trust.”

[178] It would appear that the only opportunity given to the Applicant to make any attempt to rebuild Mr Keech’s trust in the Applicant was in the period between 5 December 2013 when the Applicant was stood down from work after having presented an unrestricted certificate of capacity and 23 December 2013 when the Respondent met with the Applicant and then dismissed the Applicant.

[179] The fact that the Applicant had been unfit to work for six months due to an ongoing mental health issue would have prevented the Applicant from doing anything to rebuild Mr Keech’s loss of trust since the issue of the letter of 5 August 2013.

“Nothing he has done suggests that he accepts that he is required to work as directed, or that he is willing to do so.”

[180] There were two specific instances where the Applicant had agreed to move from Crew A to Crew B and constant references from the Applicant to doing work that he was trained to do.

[181] The position adopted by Mr Keech is not soundly or rationally based. The Applicant would not perform Engine Ground Run on a RR Trent 700 engine until he was properly trained. The proper training from the Applicant’s perspective was to undergo Engine Ground Run training in a cockpit simulator. This position accorded with what CASA advised should be done and what the Respondent agreed would be done after the Applicant had raised the issue with CASA and the Respondent.

“Further, he has not shown that he understands the need to be accountable for the consequences of his actions. Mr Salazar continues to blame others for what he has done.”

[182] In the meeting on 23 December 2013 the Applicant blamed most of his conduct on his mental health issues and his medication. In the circumstances where the Applicant had been suffering from a mental health issue since January 2013 and where the Applicant had been off work due to mental health issue for over six months in 2013 the Applicant’s position in laying the blame with his mental health issues was entirely reasonable. The position adopted by Mr Keech is unreasonable. The Commission is no expert in mental issues but the contention of Mr Keech that an employee with significant mental health issues should be held accountable for his actions whilst suffering from a mental health issue which keeps him away from work for over six months in 2013 is unreasonable.

[183] As to Mr Young’s evidence certain observations need to be made.

“I am not satisfied that he appreciates the significance of his actions in stating that he had not been trained when he had”

The position adopted by Mr Young is not soundly based. The premise behind the statement is unsound having regard to the discussion earlier in this decision as to the first and third allegations of serious misconduct. Certainly by no later than early July 2013 Mr Young knew that the Applicant was relying on the CASA Advisory Circular AC 66-3(1) with its emphasis on either cockpit or simulator training for engine ground run competency. Equally Mr Young clearly knew and understood that the Respondent had made a decision not to follow the CASA Advisory Circular AC 66-3(1) on the basis that the Respondent believed that it could meet its legal obligations by relying on training given to the Applicant which did not contain specific engine ground run training in a cockpit or simulator.

“I am not satisfied that he appreciates the significance of his actions in stating ... that he was coerced/forced into accepting approvals for which he was not qualified.”

The position of Mr Young is not reasonable. The position adopted by Mr Young ignores the fact that the Applicant was suffering from mental health issues throughout 2013 and that at the meeting in December 2013 the Applicant clearly recognised that his mental health issues and his medication had led him to initiate communications which were not appropriate.

“I believe Mr Salazar showed a lack of judgement in the content and distribution of his emails........ I am of the view that some issues are not appropriate for publication in “broadcast” emails. Mr Salazar does not appear to have sought, or obtained, permission from the authors of emails before disclosing (forwarding) those emails to others.”

[184] It may very well be that the Applicant showed a lack of judgement in the content and distribution of his emails and it may very well be the case that some issues are not appropriate for publication in “broadcast” emails and it may be true that the Applicant does not appear to have sought, or obtained, permission from the authors of emails before disclosing (forwarding) those emails to others. However, even if Mr Young is correct on each point, the three combined issues would not appear to be sufficient to give rise to a complete breakdown in the trust and confidence between Mr Young and the Applicant.

[185] It is directly relevant to note that most of the emails which the Applicant sent to key persons at the Respondent were copied to CASA, the Minister and to the Applicant’s doctor and psychologist and psychiatrist.

[186] Importantly however the position adopted by Mr Young does not give proper regard to the fact that at the time the Applicant was sending emails which Mr Young is concerned about the Applicant was suffering from a mental health issue which had been ongoing since January 2013 and which appears to have ended in early December 2013 after the Applicant had received appropriate treatment from a psychologist and psychiatrist. The position adopted by Mr Young is not soundly or rationally based.

“I have not seen anything from Mr Salazar that leads me to believe that he understands the seriousness of his actions.”

[187] It is clear from the position adopted by the Applicant at the meeting on 23 December 2013 that the Applicant understood that most of his actions were influenced by his mental health issues during 2013. Mr Young, like Mr Keech, appears to have treated the Applicant as if all of his actions at all times during 2013 were the actions of a person in full command of his mental health and therefore clearly accountable for all his actions. The position adopted by Mr Young is not soundly or rationally based.

“I consider there is a risk that Mr Salazar would engage in the same, or similar, conduct in the future if he thought it would be to his advantage.”

[188] There is very clear element of offensiveness in this comment. Implicit in Mr Young’s statement is that he does not accept that the actions of the Applicant were influenced by his mental health issues or alternatively that the Applicant’s mental health issues are feigned.

[189] There is nothing in the material before the Commission which supports the contention that the Applicant having recovered from his mental health issues would act in the same way he did whilst suffering from a mental health issue. The position adopted by Mr Young is not soundly or rationally based.

[190] In the present matter where the Respondent as a supplier of aircraft maintenance services must have complete trust and confidence in its LAME employees any ripple on the surface of the employment relationship may destroy its viability. The mental health issues of the Applicant were more than a ripple on the surface of the employment relationship with the Respondent. They were significant waves!

[191] The Respondent’s appropriate response was to suspend all authorisations of the Applicant and to require the Applicant to produce an unrestricted certificate of capacity before allowing the Applicant to perform any LAME function. It was also appropriate for CASA and the Respondent to require the Applicant to undergo appropriate training before being given any authorisations to undertake LAME work.

[192] Whilst there were waves on the surface of the employment relationship they were being addressed by the Applicant’s mental health practitioners. The waves were short lived and by early December 2013 there was not even a ripple on the surface of the employment relationship that could be attributed to the Applicant.

[193] The position of the Respondent as to trust and confidence is not soundly or rationally based and reinstatement can be considered.

[194] The occupation of LAME is integral to having a safe air transport system just as are the occupations of pilot and air traffic control. Dismissal of a LAME may lead to loss of employment in the industry, where trust and confidence in the ability of LAME to do his or her job correctly is absolutely essential. Where, as in the present matter, I have determined that not only is the dismissal unfair but that the loss of trust and confidence identified by the Respondent’s Manager Aircraft Maintenance and the Respondent’s Quality and Safety Manager is not soundly or rationally based I am of the strong view that, ordinarily, reinstatement would be the appropriate remedy.

[195] In the present matter there is an added factor which impacts on the outcome of a remedy of reinstatement and that is that since early June 2014 the Respondent does not carry out any aircraft maintenance work and no longer employs LAMEs.

[196] An order for reinstatement would put the Applicant back into the position he was in early December 2013 when he presented an unrestricted certificate of capacity to perform work as a LAME on any shift allocated by the Respondent. However the order for reinstatement would not require the Respondent to keep the Applicant employed any longer than the time at which the other LAMEs employed on either Crew A or Crew B were made redundant.

[197] Effectively an order for reinstatement would not lead to re-engagement of the Applicant as a LAME in any aircraft maintenance business of the Respondent but would lead to a payment of monies to the Applicant and a termination of the employment relationship based upon a situation of redundancy.

[198] In all of the circumstances of the present matter I do not consider that reinstatement is the appropriate remedy.

Is Compensation appropriate or inappropriate?

Amount of Compensation

[199] Having decided that a remedy is appropriate but that reinstatement is inappropriate I do consider that the remedy of compensation is appropriate.

[200] Compensation is dealt with in s.392 of the Act which is as follows:

“392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

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

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

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

(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

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

(a) the total amount of remuneration:

(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

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

[201] It is trite to say that, in a case such as the present, where on a scale of unfairness from minor to major, the unfairness of the dismissal of the Applicant is clearly well past the mid point and is towards the major end of the scale that compensation cannot be used to punish the Respondent and that the level of unfairness can play no role in the calculation of the amount of compensation. 24 In calculating an amount of compensation under s.392(2) each relevant criterion must be taken into account.

Viability (s.392(2)(a))

[202] In the present matter the Respondent made no submission and led no evidence to suggest that an order for compensation would have any effect on the viability of the Respondent’s enterprise. In the circumstances of the present matter I do not consider s.392(2)(a) to be a relevant criterion.

[203] In approaching the calculation of an amount of compensation I will follow the approach of the Full Bench in Tabro Meat Pty Ltd v Heffernan 25.

[204] In the present matter I am of the view that neither the Applicant nor the Respondent has provided the Commission with information which is necessary to calculate an amount of compensation. I alluded to this at the end of the proceedings on 2 June 2014. 26

Remuneration that would have been received (s.392(2)(c))

[205] In order to calculate an amount for the purposes of s.392(c) the Commission needs to know the rate of pay of the Applicant as at the termination date. The Commission also needs to know the date upon which the Applicant would have been made redundant along with other LAME’s on Crew B in line with the Respondent’s decision to cease operating an aircraft services business at Tullamarine. The Commission also needs to know the amount of remuneration that would have been paid to the Applicant had he not been dismissed in December 2013 but had worked through to the date of redundancy of LAME’s on Crew B. The Commission also needs to know the amount of redundancy payment that would have been made to the Applicant had he not been dismissed in December 2013 but had worked through to the date of redundancy of LAME’s on Crew B.

Remuneration earned (s.392(2)(e)) and Income reasonably likely to be earned (s.392(2)(f))

[206] The Applicant needs to provide to the Commission details of the amount of any remuneration received by the Applicant since the date of dismissal and the amount of remuneration that the Applicant is likely to receive up to the end of July 2014.

Mitigation efforts (s.392(2)(d))

[207] The Applicant needs to provide the Commission with information as to what efforts the Applicant has made to mitigate the loss suffered by the Applicant because of the dismissal.

[208] I do not intend to conduct any further proceedings in relation to this matter unless either party challenges any material filed by the other.

[209] I will issue Directions to the parties to file and serve the material referred to above. Once that material is received then, if no further proceedings are required, I will determine an amount of compensation and issue further reasons and orders as appropriate.

COMMISSIONER

Appearances:

R. Salazar on his own behalf.

R. Joyce for the Respondent.

Hearing details:

2014.

Melbourne:

June 2.

1 [2008] AIRCFB 1088 at pn 22.

2 Transcript at PN1236 to PN1247.

3 Exhibit R5

4 Court Book at 254 - 255.

5 Ibid at 262 - 263

6 Ibid at 293.

8 Letter of 5 July 2013 from Keech to Applicant CB280.

9 Ibid.

10 Exhibit R2 at para 25.

11 Exhibit R1 at para 67.

12 Transcript at PN604.

13 Court Book at 318.

14 PR949780.

15 House v R. (1936) 55 CLR 499, at 404 - 405.

16 (2000) 203 CLR 194.

17 (2000) 203 CLF 194 at 205.

18 Holcim (Australia) P/L v Serafini [2011]FWAFB at pn [24].

19 [1994] IRCA 43.

20 (1998) 84IR 1 at 17.

21 Transcript at PR942856.

22 (1997) 72 IR 186.

23 Ibid at 191 - 192.

24 Bean v Milstern Retirement Services Pty Ltd [1995] IRCA 274, Moore J, Perrin v Des Taylor Pty Ltd(1995) 58 IR 254, Moore J, PrintLinx Pty Ltd v Hughes PR910359.

25 Tabro Meat Pty Ltd v Heffernan, [2011] FWAFB 1080.

26 Transcript at PN1335.

Printed by authority of the Commonwealth Government Printer

Ronaldo Salazar v John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd

[2014] FWC 4030

26 JUNE 2014

DECISION

When did the employment relationship come to an end?

Was the Dismissal Unfair?

Is Compensation appropriate or inappropriate?