[2020] FWC 4809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Stefanus Uijland
v
Airservices Australia
(U2020/1256)

DEPUTY PRESIDENT SAMS

SYDNEY, 30 SEPTEMBER 2020

Termination of employment – application for an unfair dismissal remedy – Air Traffic Controller (‘ATC’) employed by Airservices Australia at Albury Airport – non-work-related and work-related injuries in 2016 and 2017 respectively – applicant required to retain a Class 3 Medical Certificate – applicant unfit for operational ATC duties over a significant period – applicant on workers’ compensation – whether applicant unable to fulfil the inherent requirements of his role – allegations of unhealthy workplace culture – allegations of managers failing to answer questions and communications – proposal for ‘scrambler therapy’ for pain relief – alternative work offered, but declined – disrespectful complaints about supervisors, managers and the CEO – relevant principles to be applied – decision to dismiss based on the evidence available to the employer at the time and not a speculative and uncertain time in the future – medical evidence does not deal with the prospects of success with treatment or when it might be concluded – scrambler therapy abandoned without favourable outcome – poor prognosis corroborated three months after the applicant’s dismissal – applicant unable to fulfil the inherent requirements of his job with no prospect of him being able to do so in the foreseeable future – decision to dismiss reasonably based on the evidence available to the employer ‘at the time’ – employer met its obligations to assist the applicant to find alternative employment – valid reason for dismissal – employment relationship inherently broken down - reinstatement would not be appropriate - no issues of procedural unfairness – other matters do not outweigh factors justifying dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] Mr Stefanus Uijland commenced employment with Airservices Australia (‘Airservices’), as a trainee Air Traffic Controller (‘ATC’) on 20 August 2001. He qualified as an operational ATC on 23 September 2002. It is common ground that as an operational ATC, Mr Uijland was required to obtain and retain a Class 3 Medical Certificate (‘Class 3 MC’), as a mandatory requirement of Australia’s air safety regulator, the Civil Aviation Safety Authority (‘CASA’). Mr Uijland was employed at Albury Airport under the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 (the ‘Agreement’) on a salary of $192,527.00.

[2] Mr Uijland suffered a non-work-related shoulder injury in late 2016 for which he took extended paid leave – from 3 November 2016 to 18 September 2017 (including an extended period in Europe). On 18 September 2017, he suffered a back injury while undergoing a functional assessment of his earlier shoulder injury. Liability was accepted by Airservices and Mr Uijland became covered by Comcare and its rehabilitation process in order to secure his return to work as an operational ATC.

[3] On 13 September 2018, Mr Uijland received a letter from CASA advising of its requirements for him to seek medical clearance for renewal of his Class 3 MC. There was some confusion about this letter, which I will come to later. On 23 September 2019, Mr Uijland was advised of Airservices’ proposal to take action in respect to the Loss of Essential Qualification (‘LOEQ’) under Cl 56 of the Agreement. The letter reads as follows:

‘Dear Stephanus (sic),

Loss of Essential Qualification

The purpose of this letter is to advise you of the action Airservices Australia (Airservices) is proposing in relation to your potential Loss of Essential Qualifications (LOEQ) due to the failed renewal of your Class 3 medical.

Background

You are a Tower controller having held ratings and endorsements at Albury Tower.

Due to a medical condition experienced on 6 October 2017, and subsequent treatment, you have been unable to renew the Class 3 medical.

It is acknowledge (sic)that this decision would potentially result in LOEQ action under Clause 56 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017- 2020 (ATC EA).

Proposed Action

Under the LOEQ provisions this loss may be of a temporary or permanent nature. In this case it is considered to be permanent, however, you continue to have the right to appeal the CASA decision for reinstatement of your Class 3 medical should you wish to do so. Such action would be conducted at your own cost. Airservices would provide such support as deemed reasonable in terms of approved absence from the workplace.

Under Clause 56.9 (d (i)) of the ATC EA, Airservices has determined that it is unlikely you will regain your ATC qualifications within a reasonable timeframe and, as such, has considered whether you can be transferred to other duties or to proceed with potential termination of employment (Clause 56.9 (d) (ii)).

Your previous discussions with me have indicated:

• Your class 3 medical expired on 20 February 2019, you unsuccessfully attempted to renew the class 3 on 24 April 2019. As such you do not have a current Class 3 medical certificate, confirmed by CASA in a letter dated 19 June 2019;

• Your current medical status precludes you from conducting safety critical work;

• You are awaiting "scrambler therapy" which may or may not resolve the pain issues precluding you from holding a class 3 medical certificate;

• That your current medical status only allows you to undertake light duties 3 hours per day (certificated by GP);

• That the scrambler therapy is not a cure for your medical condition but it may alleviate the symptoms. In addition there is no certainty of success of the program to the extent that you will be able to return to full time duties as an Air Traffic Controller at Albury Tower upon completion of the sessions.

Based on the information available to us, Airservices is considering the following action:

• Redeployment/termination of your employment.

In the event you are unable to secure a redeployment opportunity by 17 January 2020, Airservices may consider terminating your employment.

Further, any redeployment opportunities you are successful for, you will be responsible for the payment of any relocation costs, if required.

Opportunity to respond

Prior to any final decision, you are invited to formally provide any further and final comments or explanation about your situation that you wish to be considered. Your submission should be made in writing and must be submitted to me by no later than close of business on 3 October 2019.

Upon receipt of your submission a final decision will be made and you will be notified of this outcome in writing. Please note if you do not respond to this letter, or if you choose not to provide any additional information during this period, Airservices will make a determination on the basis of the information on hand.

Airservices understands that you may require additional support and remind you of your ability to access free confidential counselling through the Employee Assistance Program, as provided by Converge International, on [phone number provided]. If there is additional support that we are able to provide, we welcome any suggestions for consideration.

Yours sincerely,

Chris Wallace’

[4] A meeting was held to discuss the matter on 26 September 2019, and Mr Uijland responded in writing on 1 October 2019 as follows:

‘Dear Jason and Peter,

I have included you in my formal reply, because recently I shared information with you about how the company could improve. This reply is regarding Airservices' decision to start proceedings to create an opportunity to terminate my employment. We ended up in this situation, because of Airservices' decision to subject me to a physical assessment. I do not expect you to interfere in the process, but I do think you will find several issues within my reply where the company could improve, e.g. people skills, the right people in the right job, compassion, true support, taking responsibility for once's actions, duty of care, communication skills and inconsistency to name a few. Ginette and Chris have already indicated that they are only messengers of bad news and are hiding behind ANS who they say make all the decisions.

Ginette/Chris and to whom this may concern,

Hereby I'd like to formally provide further and final comments and explanation about my situation as per your invitation in your letter dated 23/09/2019 and handed to me on 26/09/2019. It is astonishing to me that you state in your letter that my Loss of Essential Qualification is considered permanent even before I start my scrambler therapy, and you are trying to create an opportunity for dismissal and make me feel distraught. However, since you only gave me one week to reply I will have to try and gather my thoughts, base my reply on my current condition, your assumption and proposal, and I will reconsider my situation again at the appropriate time.

There are several moral and possibly legal issues that need to be looked into, at least from my point of view. I will start with the timing of this letter and meeting on 26/09/2019. I had advised you that after 8 months of waiting (beyond my and Airservices' control) I could finally start my scrambler therapy on 30/09/2019. Clare already made a very valid point of the inappropriate timing of that and the question I would like to raise is whether Airservices failed in it's duty of care regarding my well being by having this meeting at this crucial time? Would a reasonable person have shared the information in this letter at this time or a month later, awaiting the results of the scrambler therapy first and therefore also making sure not to give me extra stress and pressure just before the treatment? Having the information relayed at this time, it created a lot of extra stress, extra pressure and sleepless nights which is still ongoing, just before my treatment. Is this undermining a possible positive outcome of the scrambler therapy and therefore my chances of getting my medical class three reinstated? As mentioned above you consider my LOEQ permanent but then go on to write that the scrambler therapy might or might not alleviate the symptoms and therefore I might or might not be able to get my class 3 medical back. Those two statements contradict each other and indicates the ill-timing of this letter as the decision to deem my LOEQ permanent or not should have been deferred to a later date when it is clear. The content of this letter made me feel way worse than I already felt and I think that is not very beneficial for my treatment and me overall and therefore I consider that unsupportive of Airservices. Meanwhile I have spoken to four different professionals in three different areas and they are all puzzled (to say it nicely) as to why I received this letter now and the content of it. The people providing scrambler therapy confirmed that the more relaxed you are the better it will work and they have had some good results in the past. I have attached a letter from Dr Todhunter's office for some extra information regarding the therapy. Did you contact them before drafting your letter to me?

I think Clare has said enough in her feedback about the letter and meeting and I will suffice by stating that I agree with her and will now get on with all the other issues I'd like to be included in your final decision.

Let's start with the following fact: Due to Airservices approving and arranging a physical assessment on 18/09/2017 I am now in a position where I am not fit for duty due to an injury sustained during the physical testing. As a consequence I now have constant discomfort/pain, cognitive issues, insomnia, severe stress, loss of quality of life, loss of my medical class 3 licence, loss of my ATC position (at this time), loss of possible payment from LOLI due to not being able to cover this pre existing condition with a new insurer after Airservices stopped offering LOLI, loss of income, possible financial hardship in the future, and no meaningful work at this time. I might have forgotten some things due to my memory not being optimal right now. So Airservices initiated my physical testing that led to my injury and now led to Airservices initiating an opportunity to dismiss me and refuse the support I need from them at this time. At the least this shows no compassion from Airservices seeing that they were the instigator of my demise.

The following questions arise from this: How come Airservices singled me out to do physical testing? I can not recall one Air Traffic Controller, that had been off for an extended period due to injury, to be physically tested this way. And I know for sure that when I was off for an extended period of time in 2003 due to injury that I was not required to do any physical testing (luckily). Did Airservices fail in it's duty of care by organising a physical testing day and risking injury knowing that I barely do any physical work at all as an Air Traffic Controller and I was still in the latter stages of recovery of my shoulder injury? Did the Airservices' employee who organised and or approved this testing communicate clearly to the Rehab company to only test the functionality of my shoulder as that was the only reason I was absent from work for an extended time? Did that employee(s) have the required knowledge and/or should have known what he or she was signing me up for? Was it necessary in the first place to do any physical testing at all given that my treating shoulder specialist had already confirmed that my shoulder had healed enough to do my work? Is it not the job of the DAME, a medical professional, to decide whether I needed further testing to see if I was fit for duty, could go back to work and for how long to start with? Isn't it my responsibility to make sure I become and are fit for duty? If Airservices deemed it necessary to physically test me wouldn't it be essential and in my and their best interest to organise an appointment with a shoulder specialist first and rely on their medical advice? The irony is that I worked so hard to recover from my shoulder injury (normally takes 1-3 years) as quick as I good for the benefit of myself (and in the process for the benefit of Airservices) and then because of a decision of Airservices I get a new injury, and instead of helping me they were the catalyst for the worst possible scenario for me.

I have spoken to Ginette on several occasions since the injury and she has already confirmed that she did not clearly communicate to only test me for my shoulder functionality regarding the duties of my job and she has also confirmed that the physical tests that I was subjected to had no purpose whatsoever in relation to my work as an Air Traffic Controller. Does that mean she failed in her duty of care? It's interesting to note that the (medical) professionals that I have encountered so far since my back injury, have all questioned why I was subjected to those tests in the first place.

It's also interesting to note that Ginette has refused to answer any of my questions on paper and in above mentioned meeting refused to answer any relevant questions at all.

Now let's get on to the subject of support since Ginette and Chris both claimed that Airservices is doing all they can to support me, which I think they have a moral obligation to since my back injury started with them organising the test day.

Recently it was "Are you OK day". Would it be reasonable to expect that my rehab case manager and line manager would ask me if I am ok on that day, especially since Airservices spend a lot of time and effort to highlight that day? Not one person asked me if I was ok on that day and I think that shows the level of compassion and support that I felt from these two individuals. As a matter of fact I don't think Ginette has initiated contact once in the last 15 months and asked me if I was ok. Isn't that part of her role?

Regarding Chris: He only took over the job as line manager for Albury in March this year I believe. In the first meeting that he had with me in April 2019 I felt he came underprepared, was unsupportive, was unpleasant in the communication and bordered on harassment and bullying. There is an email trail about this meeting and my observation that he lacks people skills, so I won't go into that, but one of the things that I wrote after that meeting is that I do not feel welcome at work anymore and that Chris lacks empathy and compassion. I felt that he just came to try and get rid of me as soon as possible and now receiving this letter dated 23/09/2019 even before I started my treatment, only confirms that feeling. Also the main support that I needed from Airservices at that time to not mentally deteriorate any further, was to get meaningful work, but I hardly got any. I even requested to do some meaningful work and promote Airservices to year 11 and 12 high school students, but he didn't want me to do that, meanwhile not coming up with anything else meaningful to do. The psychologist and my rehabilitation officer also confirmed that that is what I most need(ed) in support from my employer. I also discussed my LOLI insurance with Chris last April and brought that issue up once again this meeting, since he still hadn't come back to me with the answers and still hasn't. As for Airservices' support at this time? Clare worded that already, it is basically non existent in the area where I really need it and they are in a position to possibly facilitate it. I know of several people in the past that got jobs offered by Airservices that they didn't apply for and therefore were given preferential treatment. So why give some people preferential treatment and others not? In that regards Airservices has been very inconsistent for a very long time. I do not know what position I will be in after my scrambler therapy, but Airservices has already made it clear not to expect any help from them regarding work, which makes me feel not valued after 18 years of service whereas some people already got preferential treatment after not even having contributed yet and were in a difficult position due to their own doing, whereas I am in this situation due to no fault of my own.

So due to a decision made by Airservices Australia, I am now at a severe disadvantage, but still Airservices wants me to apply for jobs and compete with other applicants and only give me till 17/01/2020 to be successful. That gives me very limited time to acquire resume writing skills and other necessary job skills especially since I am not fit to do any work at all at the moment. Also during the meeting you mentioned that Comcare will help me to try and secure a job with another company. Do you think a new employer would take the risk and hire an employee in my current condition?

In light of all the information present at this time and not knowing what will happen, I request the following in reply to your letter: I would like Airservices to find me a meaningful job in Sydney, Melbourne, Brisbane, Perth or Canberra and Airservices will be responsible for relocation costs including financial assistance I would be entitled to as if I was transferred as an Air Traffic Controller. Otherwise I would like to be given till 01/07/2020 to try and secure a position and if successful Airservices still be responsible for any relocation costs plus assistance. I cannot predict the future, your decisions, including your answers to this letter etc, so further requests I can only base on when new information comes at hand.

And last but not least: Thank you for letting me know I have the right to appeal the CASA decision for reinstatement of my Class 3 medical at my own cost. Since you consider the loss permanent and don't consider me an Air Traffic Controller anymore, could you please advise what your intentions are regarding my employment in case the scrambler therapy is successful and CASA reinstates my Class 3 medical?

I assume I can expect an answer from you by no later than close of business day 9 October 2019. If you need an extension then please advise the reason and by what date you will reply.

Kind Regards

Stefanus Uijland’

On 10 October 2019, Airservices met again with Mr Uijland to advise of the commencement of the LOEQ process. He was advised that unless he obtained an alternative position with Airservices by 27 January 2020 (later extended to 30 January 2020), or he was involved in a recruitment process at that time, his employment would be terminated. Mr Uijland applied for a position on 12 January 2020, but was unsuccessful. On 15 January 2020, Airservices responded to 12 questions posed by Mr Uijland in a 6-page letter. Mr Uijland’s employment ceased on 30 January 2020.

[5] On 6 February 2020, Mr Uijland (hereafter referred to as the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks orders from the Fair Work Commission (the ‘Commission’) for reinstatement and ‘lost remuneration’ (later changed to compensation).

[6] In accordance with my usual practice, I convened a telephone conference with the parties on 3 April 2020, but the matter was not able to be resolved. I issued directions for a hearing on 19 June and 25 June 2020. The hearing was conducted by phone, given the restrictions on ‘in person’ proceedings caused by the COVID-19 pandemic.

[7] At the hearing, the applicant represented himself and Mr D Fuller of Counsel, instructed by Ms K Easdale and Ms C Paton, Solicitors, MinterEllison, appeared for Airservices, with permission being granted for the respondent to be represented by a lawyer pursuant to s 596 of the Act; noting the applicant did not object.

[8] I observe that before the hearing, Airservices had filed applications in respect to Notices to Produce on Comcare and CASA, and Mr Uijland filed a Notice to Attend on a former manager of Airservices, Ms Ginette Aruliah. An order was made by the Commission on the Notice to Attend; but on a limited basis after a short hearing on 21 May 2020; see: Uijland v Airservices Australia [2020] FWC 3613.

THE EVIDENCE

[9] The following persons, with their respective positions, gave evidence in the proceedings:

• Mr Uijland – the applicant;

• Ms Clare Evans – support person of the applicant;

• Ms Fiona Mackee – People Services Specialist for Airservices’ Air Navigation Services (‘ANS’) operations;

• Mr Chris Wallace – former ATC Line Management for Airservices’ ANS;

• Mr Blair Henderson – Acting Director of Operations for Terminal Services Melbourne for Airservices’ ANS;

• Mr Adrian Turner – Line Leader for Airservices’ ANS;

• Mr Simon Thomas – ATC of Airservices.

[10] A number of clauses in the Agreement were relied on by both parties. These were as follows:

55. FITNESS FOR CONTINUED DUTY

55.1. Early intervention is important if an employee is absent from work and an employee’s health may be impaired. Should an employee experience a health problem that may impair an employee’s capacity to perform an employee’s duties in the long term, Airservices’ objective will be to take positive and appropriate action.

55.2. Both medical and non-medical factors may contribute to absences from work for extended periods of time.

55.3. Should an employee be absent for health reasons, Airservices will explore with an employee possible non-medical outcomes. These may include, but are not limited to:

(a) The provision of appropriate training;

(b) Modification of an employee’s duties;

(d) An employee’s temporary transfer to different duties;

(e) An employee’s permanent transfer to another position at the same level; or

(f) The counselling of an employee’s supervisor.

55.4. Where an employee’s absence appears directly related to medical factors, any action Airservices takes will be based on the expert advice of a DAME.

55.5. Referral to a DAME

(a) Airservices may refer an employee to a DAME where there appear to be health issues which may substantially impair, other than temporarily, an employee’s ability to perform their duties. This power of reference is only to be made by a Service Delivery Line Manager, with the approval of the Executive General Manager, ATC.

(b) Where the manager has concerns about an employee’s attendance record which do not relate to the health issues referred to in clause 55.5(a) the manager will utilise the provisions of clause 37 of this Agreement relating to the management of Personal leave, or Airservices’ Attendance Management system, as appropriate.

55.6. Airservices will arrange for an employee to be examined by a DAME in circumstances where:

(a) An employee have been absent from duty on account of illness for a continuous period of 4 weeks and an employee could be substantially impaired, other than temporarily, in the ability to perform an employee’s duties;

(b) An employee have been absent on account of illness for 13 weeks continuously;

(d) An employee presents a report from a registered medical practitioner indicating that an employee is unfit for duty and the prognosis is unfavourable.

55.7. Should an employee be required to consult a DAME, at a reasonable time before the appointment, Airservices will inform an employee in writing of:

(a) The time and place of the examination;

(b) The purpose of the examination, and the reason Airservices arranged it;

(d) An employee’s right to submit supporting material for consideration by the DAME; and

(e) If an employee has been a superannuation contributor for less than 20 years - the need to bring to the medical examination any Benefit Classification Certificate issued to an employee.

55.8. Where an employee has been referred to and attends a DAME, Airservices will provide an employee with written details of the findings of the medical examination, any recommendations provided by the DAME, and advice of any action Airservices propose as a result.

55.9. An employee will be given the opportunity to respond to any action proposed to be taken and may provide a written response to Airservices within 14 days.

55.10. Airservices may take action that includes, in descending order, but is not limited to the following:

(a) Return an employee to an employee’s current position and duties;

(b) Redeploy an employee at the same level in a different position;

(d) Redeploy an employee to a lower level position without an employee’s consent; or

(e) Terminate an employee’s employment with Airservices.

56. LOSS OF ESSENTIAL QUALIFICATION (LOEQ)

56.1. If an employee is required to hold an essential qualification to undertake or continue employment with Airservices, the retention of that essential qualification remains a condition of an employee’s employment.

56.2. An employee is not qualified to perform an employee’s duties if:

(a) An employee ceases to hold, or becomes unable or ineligible to hold or to use and enjoy, an essential qualification; or

(b) A court, person, authority or body that is competent to do so suspends, cancels, revokes, rescinds or otherwise withdraws an essential qualification that an employee holds.

56.3. An essential qualification is defined as:

"any statutory, professional, academic, commercial, technical, trade, health or other qualification the holding of which is a prerequisite to the practice of a profession, trade or occupation, the exercise of a right or the performance of a function or duty, being a profession, trade, occupation, right, function or duty that is necessary for that employee to practice, exercise or perform in the course of his or her employment".

56.4. In general terms, an essential qualification can be described as a licence, rating or membership of an official body overseeing standards of conduct or performance in a profession, trade or occupation. Specifically, it is any qualification required for the satisfactory performance of duty at the classification level for which the qualification is prescribed.

56.5. Although Airservices would normally determine the necessity of a qualification, industry or professional qualifications may also apply.

56.6. Loss of essential qualification means temporary loss and/or permanent loss.

56.7. Loss of an essential qualification will result in internal review and assessment as to possible alternate placement options. Permanent loss of an essential qualification may result in redeployment or termination of employment.

56.8. Interaction between performance, discipline and medical fitness provisions

Where the principal reasons giving rise to the loss of the essential qualification are directly attributable to circumstances and outcomes covered by Airservices’ performance and discipline procedures or Airservices’ fitness for duty procedures, then the matter will be addressed in accordance with those procedures.

56.9. Procedures

Where an essential qualification has been lost under circumstances which do not warrant action under other provisions, the following instructions apply:

(a) Initial action

(i) Should Airservices become aware that an employee no longer possesses an essential qualification, the Manager will discuss the matter with an employee and an employee’s nominated representative and advise the employee if it is proposed to inquire into the matter.

(ii) An employee will be allowed the opportunity to provide explanation or comment within seven (7) days. If an employee has already been allowed an opportunity to provide explanation or comment by way of disciplinary action or fitness for duty procedures, they will be allowed to provide further explanation during that seven (7) day period.

(b) Further inquiry

At the close of the initial seven (7) day period allowed for explanation or comment, Airservices may make any inquiries considered necessary and in the manner Airservices think fit. In doing so, Airservices will ensure that the following matters are considered:

(i) The circumstances leading to the loss of the qualification;

(ii) The steps necessary to regain the qualification;

(iii) Whether the employee is likely to regain the qualification within a reasonable time, if at all;

(iv) Any explanation or comments the employee provides;

(v) The potential benefits and cost to Airservices of providing appropriate retraining for the employee; and

(vi) Any special agreements with industrial organisations concerning the procedures to be adopted when qualifications are to be suspended or cancelled.

(i) When the inquiry is completed and results in additional findings, Airservices will allow an employee a further seven (7) days to comment on the findings from the time an employee is advised of the findings.

(ii) If Airservices consider the employee is likely to regain the qualification within a reasonable time given the circumstances which apply, the employee will be provided with suitable duties during the intervening period.

(d) Decisions on redeployment or termination of employment

(i) If Airservices consider that the employee is not likely to regain the qualification within a reasonable time, and the employee should be transferred to other duties, Airservices will first consider whether it would be in the interest of efficient administration to transfer this employee to a position at the same level.

(ii) If Airservices conclude that transfer at the same level is not appropriate, Airservices may then, by notice in writing, reduce the employee’s classification or terminate the employee’s employment.

(iii) If Airservices do not transfer the employee at the same level and Airservices are satisfied that it would be in the interests of efficient administration to reduce the employee’s classification and a suitable position is available, the employee may be redeployed to a lower level classification, rather than have their employment terminated.

(iv) Any reduction in classification must be to duties for which an employee is qualified and which an employee could perform efficiently either immediately or within a reasonable period, and which the employee could reasonably be required to perform.

(e) Notice of reduction or termination of employment

(i) If Airservices give notice of reduction of classification or termination of employment, the notice must include or be accompanied by the reasons for the decision and, unless the employee has given prior written consent to the action being taken, advice of any right of appeal.

(ii) Appeal provisions in relation to reduction of classification are available through Airservices internal processes.

(iii) The sole right of review in relation to termination of employment would be through the Act.

(f) Superannuation and other entitlements

(i) Contributors to the Commonwealth Superannuation Scheme with at least one year's contributory service are entitled to involuntary retirement benefits under the Superannuation Act 1976 if retired because of the loss of an essential qualification.

(ii) If an employee’s employment ceases because they have lost an essential qualification, this employee is entitled to payment in lieu of long service leave and recreation leave credits.

(g) Consultation

If the employee concerned requests it, the employee’s representative will be notified in writing when an employee has lost, or is about to lose an essential qualification. The notification will include details of when discussions with the employee are to be held regarding the consequences of the loss.

Evidence of Mr Uijland

[11] The applicant provided two closely typed detailed statements with over 50 attachments. Much of this material traversed matters not relevant to the reasons for his dismissal on 30 January 2020. Nevertheless, I shall attempt to summarise the applicant’s evidence in deference to his efforts in putting everything he wishes to say in respect to his case.

[12] The applicant commenced employment with Airservices as a trainee ATC on 20 August 2001. He first gained a Class 3 MC on 12 July 2001. This is a mandatory requirement of his position and must be current at all times. He qualified as an ATC on 23 September 2002. In 2005, he transferred to Albury Airport. As a regional airport, Albury has five ATCs employed by Airservices, and no other work is performed by Airservices at Albury.

[13] The applicant contends that there is a longstanding unhealthy culture at Airservices, including bullying, to which he has been subject to since at least 2005, when he unsuccessfully applied for an ATC position at Bankstown Airport. He believed he was unsuccessful because of a separate matter involving an incident investigation of another employee. He had also questioned why another ATC had secured the vacancy over him, when he was more experienced. He received no explanation.

[14] The applicant recalled another incident in March 2013 when there was an argument with his then supervisor, Mr Valkenburg, about the renewal of his license. He claimed the supervisor yelled at him, called him a moron and could not explain why his license renewal was wrong. The applicant said that in the next four years, he had experienced four other occasions when the supervisor abused him during disagreements they had about work. The supervisor later put in a complaint about him, but nothing was resolved. A conciliation meeting was held when the supervisor told him ‘it is not what you say, it is how you say it and your gestures’. After this, the supervisor never spoke to him and gave him the ‘cold shoulder’. The applicant emailed him and said ‘you realise you were basically saying that I have the power to make you lose your temper at will. Do you want me to have that power over you?’. When the supervisor replied, ‘that is an interesting way of looking at it’, the applicant took this to mean that the supervisor was responsible for his own behaviours. The applicant said he was very disappointed by the lack of action taken by management over this and other incidents.

[15] The applicant referred to a said ‘promised’ transfer to the Gold Coast in January 2015. When he did not achieve the transfer and was told it was appointed on a merit-based selection, he pressed a grievance with Airservices’ Employee Grievance Board. He believed the selection process was discriminatory, but Airservices would not explain why they considered it was not. He claimed that having been told the selection system was dropped a year later, he found out that an ATC from New Zealand was hired for the Gold Coast position, but had made no formal application for the position, and had ‘failed’ in the job anyway. There was another position at the Gold Coast. However, when he applied and requested relocation costs, Airservices refused and gave the job to another Brisbane ATC, who agreed to pay his own relocation costs.

[16] Turning to more recent events (2017-2019), the applicant detailed his recollection of a number of conversations with various management representatives. Between November 2016 and April 2017, the applicant had a number of conversations with Mr Chris Bren-Clarke, ATC Line Manager, about his shoulder injury; including discussions about treatment and prognosis and approval for him to go to the Netherlands for medical and personal support.

[17] On 18 September 2017, the applicant was requested by Airservices to undergo a functional assessment for his shoulder injury. He claimed that despite seeking answers as to why this was necessary, no one responded, except to say it was all organised by HR. He claimed that on 6 October 2017, his Dedicated Aviation Medical Examiner (‘DAME’), Dr Thomas, said he did not understand why such an assessment was necessary as heavy lifting was not a feature of his ATC role. In that month, he queried why a certain ATC had been appointed to Albury, as he did not consider him suitable for the position and had ‘definitely not won the position on merit’.

[18] During 2018, the applicant was never told to stop working by management or Dr Thomas. However, on 8 April 2018, when his new manager, Mr Wallace, queried why he was working, he told him he was waiting for ‘scrambler therapy’ paid for by Airservices, and that there would be a six-month waiting period. He claimed Mr Wallace said he never would have approved the therapy and queried why he had not renewed his Class 3 MC. He told Mr Wallace that his DAME and CASA had told him not to renew it until his back injury was resolved and will do so after the scrambler therapy. Mr Wallace told him to take holidays and he questioned why he could not do some other meaningful work. He later found a document which he showed to Mr Wallace, which stated that he was required to obtain a CASA clearance from his DAME in September 2018 and he was therefore working without informing Airservices he was not permitted to. This had serious consequences. He told Mr Wallace that his DAME had seen the letter and it was agreed it was confusing. In the days after this, he claimed there was miscommunication between CASA and his DAME as to whether he was required to stop working, but it was never resolved.

[19] The applicant said he had a meeting with another DAME, Dr Manzoor Peerzada, who had two patients who had undergone scrambler therapy and the results were very encouraging. One patient had no pain at all after treatment.

[20] The applicant claimed that in early September 2019, Mr Wallace’s manager, Mr Blair Henderson, told him that he would not interfere in Mr Wallace’s decisions and if he did not like the way he did things, he could take it further.

[21] Turning then to the said crucial meeting of 26 September 2019 with Mr Wallace and Ms Aruliah, in which the applicant received the letter of 23 September 2019; see: [3] above. He said he questioned why this decision had been made, when he had not had the scrambler therapy treatment and it was assumed it would not work. He claimed Mr Wallace would not answer any of his questions as to why Airservices had not consulted his specialist, whether the matter was negotiable and what happens if the therapy worked. Mr Wallace kept saying it was a decision of ANS. As the applicant placed much reliance on the telling exchange with Ms Aruliah, I set it out in full below:

‘On 26/09/2019 Chris Wallace had organised a meeting with me. On the day I found out that Ginette Aruliah was there too and I had taken my support person Clare Evans. Chris handed me the letter dated 23/09/2019 and explained the letter to me including that I had the opportunity to apply for vacancies, but that that was done on merit and I would get no help from Airservices in obtaining another position with them.

I asked: "why are you making this decision now, before I had my treatment"?

Chris answered: " I don't make the decisions, ANS (Air Navigation Services) made that decision, I can't say anything about that". I then asked: why does Airservices make a decision based on the assumption that my scrambler therapy is not going to work? Chris answered: "I can't answer that either, that is up to ANS". I then asked: who made the decision in ANS, who can I talk to to discuss this? Chris said: "I can't tell you that, they won't discuss it with you". I also asked if Airservices were medical experts now and if they had consulted my specialist. Chris did not have a reply to that. I then asked: "is there anything negotiable?" Chris said: "NO". I then asked: "What if Airservices is wrong and I will get my licence back after my treatment, what are your intentions with me then?" Chris did not (want to) answer that question and hid behind ANS again.

I then said: "Let's assume that Airservices is right and my scrambler therapy is not successful, are you going to give me any support in trying to get another job within Airservices? Ginette answered: "I think we have given you enough support with your shoulder injury". I then said:" Airservices has not given me any support at all for my shoulder, I organised and paid for everything myself regarding my shoulder injury and rehabilitation and in the process even did Airservices a favour too by fixing my shoulder way quicker than normally would have been the case. All Airservices did is organise a physical assessment that resulted in my back injury. Now that you mentioned my shoulder injury anyway, can you now answer me why you organised that assessment?" Ginette then answered: "I am not answering any of your questions regarding that, you can go to Comcare with your questions". I then said: Comcare had nothing to do with that whole appointment, you were the one who organised all that and have never explained anything so far ,so why don't you want to answer my questions? Ginette said: "I told you, you have to go to Comcare with all your queries". I then asked: "why doesn't Airservices want to help me in finding a different position for me to do within the company?" Ginette answered: "Comcare will help you find a job somewhere else". I then said: "How is Comcare going to help me get a job somewhere else when all I have done the last twenty years is Air Traffic Control and Airservices has a monopoly?" Ginette then said: They have vocational services and help you find a job somewhere else" I then asked:" How am I going to compete for vacancies on merits within Airservices when I am at a clear disadvantage because of my injury and I can't apply for jobs that I am qualified for, because you just decided that my LOEQ was permanent?" Ginette answered: "Comcare will support you". I then said: "How is Comcare going to help me secure a job with Airservices if you don't even want to help me? And almost all vacancies are full time, so how am I even going to compete for those jobs?" Ginette then said: "Just apply for full time jobs and mention you can only work part time. We are an all inclusive company". I then said: "it doesn't sound like Airservices is willing to support me at all, it sounds like they have made their decision and nothing is negotiable. I then finally asked why others within the company were offered positions without applying for it and I was not. Neither of them wanted to answer that question. Chris then reiterated what it said in the letter that I had the opportunity to raise issues with Airservices in writing that I wanted to be considered, and wrapped the meeting up.’

The applicant said he received a text message on 3 October 2019 from Mr Wallace asking if he had anything further to put before he made a decision. He queried why Mr Wallace made the decision as he had been made redundant and left soon after.

[22] The applicant then set out in detail the meeting on 10 October 2019 with Mr Adrian Turner, at which he had two support persons, Ms Clare Evans and Mr Simon Thomas. He continued to ask questions about the therapy and assumptions as to its effectiveness, and query his unfair treatment. Mr Turner declined to answer any questions. Discussion then turned to vacancies in the Company. When Mr Turner said he would send him the list, he queried how this would assist, as he could look them up himself. The applicant said no one would explain themselves and offer him any assistance. They refused to answer questions and Mr Wallace had lied to him (about who made the decision).

[23] After the meeting, the applicant asked if he could take the matter further and why would he (Mr Turner) take it ‘up the chain’ when he was obliged to do what is right and not just follow Company orders. Mr Turner declined to respond to any of his protests. The applicant claimed that in early 2020, he asked three people if they would provide statements in support of his unfair dismissal application. They declined and said it was too risky to do so. He had also sought and been refused access to all his work emails.

[24] The applicant referred to a letter from his GP, Dr Evans (not a DAME) of 11 September 2019, which he claimed Airservices had relied on for their decision, yet the letter reads:

‘As regular general practitioner for the above-named, I offer the following report.

Mr. Uijland’s diagnosis is ‘persisting lumbar dysfunction’ as confirmed by Mr. Peter Dohrmann (neurosurgeon) in May 2018.

His clinical status is that he currently experiences paraesthesiae (sic) (sometimes described as pain or discomfort affecting both legs. This symptom is particularly obvious after maintaining a sitting position for extended periods of time, or physical activity, and at night. Nocturnal symptoms affect his sleep with Stefan describing reduction in both sleep duration and quality. This then has affected his daytime function including his alertness and concentration.

Progress has been somewhat limited with persistence of symptoms over many months. Symptoms were still present in mid August 2019 when he last consulted me.

Investigations to date including MRI lumbar spine (attached) and blood tests which have were

performed to exclude a connective tissue disorder.

Management has including (sic) the following measures: Exercise physiology. Bowen therapy, osteopathy, acupuncture, CBT/counselling, Yoga and Mindfulness. Medications used assist sleep include restavit and melatonin. Stefan is not keen on medications, particularly as they can have a residual affect (sic)the following day affecting his mental alertness.

His prognosis, when assessed by an independent neurosurgeon in May 2018 was considered good. This was on the basis of his previous lumbar injury (sustained in 2003) taking 3 years to settle down.

Mr. Uijland has been approved (by comcare) for 1O sessions of ‘scrambler therapy’ wiith local pain management specialist Dr. Brett Todhunter. I think that it would be advantageous for this to be conducted as soon as practicable with view to effective treatment of his symptoms and return to pre-injury duties.’

[25] The applicant claimed he had spoken to Dr Evans on several occasions to confirm his opinion on scrambler therapy. He understood Dr Evans considered it was an effective evidence-based treatment for neuropathic pain. The doctor would have told Airservices if he had been asked and strongly advised them to contact the scrambler specialist, Dr Brett Todhunter. He said the respondent never contacted his DAME, Dr Thomas, or Dr Todhunter.

Statement of Ms Clare Evans

[26] In a curiously drafted statement originally filed by the applicant’s support person, Ms Evans confirmed she had attended the two meetings on 26 September and 10 October 2019. Each of Ms Evans’ comments begin with ‘she heard’ or ‘she observed’. The statements were not in the first person. A second statement in exactly the same terms, but this time expressed in the first person, was tendered in evidence. Both statements corroborate exactly what the applicant said was discussed (or refused to be discussed) in these meetings. To that extent, it is unnecessary to repeat it.

[27] In cross examination, Ms Evans acknowledged the original statement had not been prepared by her. She claimed that she had not discussed the contents of the second statement with the applicant after the first had been filed. However, she conceded she had discussed the meetings’ conversations with the applicant, because they had both been there. When pressed, Ms Evans agreed she had read the first statement before preparing her own statement.

[28] As to the 26 September 2019 meeting, Ms Evans recalled Mr Wallace had said the letter he gave to the applicant; see: [3] above, was not negotiable. She accepted that Mr Wallace had invited the applicant to respond before any final decision was made. She could not recall if Mr Wallace had said he could be flexible if the applicant needed more time. She recalled Mr Wallace had said Airservices would not help or assist the applicant in finding a new position. However, she believed Mr Wallace mentioned a list of advertised internal jobs that would be provided to him. He also mentioned that Comcare’s rehabilitation process may be able to provide vocational assistance.

[29] Ms Evans agreed the applicant’s focus in the meeting was on who was responsible for the functional capacity assessment for his shoulder injury in 2017. As to the 10 October 2019 meeting, Ms Evans could not say if Mr Turner had said that the applicant would be provided with as much support as possible during the LOEQ process. Further, she could not recall Mr Turner saying that the applicant was welcome to contact the CEO. She accepted that the applicant was again seeking answers to historical events about his shoulder functional capacity assessment in 2017. Mr Turner had declined to answer any questions.

Airservices’ statement evidence

Statement of Ms Fiona Mackee

[30] Ms Mackee’s statement dealt largely with the records of Airservices and documentation relevant to the applicant’s employment, his personnel file, leave history and other relevant records held by Airservices. Ms Mackee described the organisational structure of the respondent. Ms Mackee is the Northern Operations People Services Specialist. Her equivalent in the Southern region was Ms Aruliah, who has now left Airservices.

[31] In respect to the applicant’s non-work-related injury sustained in 2016, Ms Mackee observed he was absent on paid sick leave from 3 November 2016 – 18 September 2017. On 26 May 2017, when the applicant was in the Netherlands, Mr Bren-Clarke emailed the applicant seeking his return to Australia for medical treatment. In an email response of 26 May 2017 about how Airservices was intending to assist his rehabilitation, the applicant said, inter alia:

‘Hi Chris,

No worries, I will see when I can return the earliest seeing I have an additional medical emergency. I saw the dentist this week and I need to go to the dental Hospital this Tuesday to figure out what is exactly going on. Depending on the outcome of that I will let you know when I can return. If it is what I think it is I will have to fix that asap before flying.

Regarding the shoulder: I know I will be better off here for treatment and support but I am in pain, even waking up from the pain, and not enjoying myself in rehab, so I am not using up all my holidays when I am not on holidays. So I will return as soon as possible, since Airservices wants to assist me in rehabilitation in Australia. I hope they will assist me in the same way I have the support here, otherwise I will just continue to inflame my shoulder like I did in the last 4 months and it might take a long time to get the arm functional again. And the three physiotherapists I have seen in Albury definitely don't have the professional set up and the expertise that I have here, so I will have to try and find the best possible. Hopefully there is one in Albury too that works together with the physician but I doubt it. Here the physician actually had his own physiotherapist at the appointment but I did not have that in Albury nor Melbourne. However, in Albury there is a risk I keep on inflaming the shoulder due to my workload and lack of support, and physiotherapy is not going to do much at all if that happens. Hopefully it won't happen, but a frozen shoulder should heal by itself regardless between one and three years so at least it will come good in the end.

Just out of interest: Could you please advise what assistance Airservices can give in rehabilitation? I have never been in this situation, so I have no idea what they are able to assist with.

I doubt I will be able to return within two weeks, but I will let you know the outcome of the appointment and go from there. Meanwhile I will continue my rehab and learn more myself.

Kind Regards

Steven

ps I don't have a treating physician here or in Albury or Melbourne. I have seen them all once for a diagnosis, treatment is done by the physiotherapist. I will make sure my Dame and the Physician in Albury will get the notes. But it is way more important my new physiotherapist (that I will have to find) in Albury gets the notes from my physiotherapist here and hopefully the new physio has the expertise and the equipment to continue the same treatment.’

[32] On 26 July 2017, Airservices referred the applicant for a functional capacity assessment to determine his then physical abilities and any limitations. As the applicant remained overseas at the time, the assessment was not conducted until 18 September 2017. The Report found the applicant’s work suitability and recommended as follows:

‘WORK SUITABILITY

Based upon the medical advice and his performance during the assessment Mr Uijland would be suited to work of a moderately physical nature.

Mr Uijland also demonstrated ability to complete work within this capacity for 2 hours per day, 3 days per week.

Mr Uijland demonstrated that he is capable of performing work with the following physical demands:

• Unlimited tolerance for sitting, standing, walking and stair climbing

• Unlimited tolerance for squatting

• Occasional bilateral lifting from floor to waist height up to 15.84 kilograms

• Frequent (20 repetitions per hour) bilateral lifting from floor to waist height up to 11.88 kilograms

• Occasional bilateral lifting between waist and waist height up to 15.84 kilograms

• Frequent (20 repetitions per hour) bilateral lifting between waist and waist height up to 11.88 kilograms

• Occasional bilateral carrying up to 14 kilograms

• Occasional unilateral carrying up to 12 kilograms in the right hand

• Occasional unilateral carrying up to 10.4 kilograms in the left hand

• Unlimited keying and computer tasks.

RECOMMENDATIONS

I suggest the following recommendations to address functional deficits and barriers to function:

• Graduated return to work program – starting at two hours per day, three days per week with a second staff member present. Progressing by one hour per day each week before introducing additional days.’

[33] On 23 September 2017, the applicant reported a back injury and pain in his legs which he believed was caused by the tasks he performed during the functional capacity assessment on 18 September 2017 (carrying a weighted bucket up and down numerous times). The applicant subsequently made a Comcare claim in respect to his back injury on 22 February 2018. The claim was accepted on 15 May 2018. He received normal weekly earnings of $3,690.61.

[34] On 4 January 2019, Comcare approved 10 standard consultations with Dr Brett Todhunter for scrambler treatment. On 29 October 2019, the applicant lodged a further Comcare claim for psychological injury; namely, Major Depressive Disorder. Comcare referred him to an IME with Dr Nicholas Ingram on 27 November 2019. On 13 January 2020, Comcare accepted the claim.

[35] In the meantime, on 13 September 2018, Dr David Fitzgerald wrote to the applicant as follows:

‘Dear Mr UIJLAND

Further Clearance Required

CASA has been notified by your DAME that you have been diagnosed with a low back condition.

In view of your medically significant condition the purpose of this letter it to remind you of your obligation not to do any act otherwise authorised by your flight crew licence while your medical condition impairs your ability to do so. Please also note that this is an objective rather than subjective assessment.

We also specifically draw to your attention regulation 67.270 of the Civil Aviation Safety Regulations 1998 (CASR) which makes it an offence to do any act under your flight crew licence while impaired due to a medically significant condition.

In the case of a Class 3 medical certificate holder who has a medically significant condition which impairs the holder’s ability to exercise the privileges of a flight crew licence for more than 30 days, it is necessary before resuming flying activities for the holder to obtain a certificate from a DAME confirming that the holder's normal ability is no longer impaired. (see CASR 67.270(4))

Accordingly, CASA expects that you will not exercise the privileges of your licence until you obtain a clearance certificate from your DAME or CASA. You should also provide copies of. all relevant reports to your DAME in order to assess your fitness to return to flying.

Please have your DAME supply a copy of your clearance certificate once your condition resolves, detailing:

• current status including frequency and severity of pain

• treatment in particular any analgesic requirements

• functional effect of condition e.g. sitting, standing tolerance and mobility

Show this letter to your doctor to ensure the required information is provided. Please be aware that additional requests for information may arise based on the information that you provide.

Please arrange for all reports to be emailed to [email address provided] to avoid postal delays. Unfortunately CASA is unable to cover any costs that you may incur while accessing and providing this information.

For further information on AvMed's approach to medical certification of specific conditions (clinical practice guidelines), fact sheets, case studies and aeromedical guidance, please refer to the Aviation Medicine section of the CASA website [website address provided].

If you have any questions regarding your fitness to fly, please consult with your DAME or contact Aviation Medicine (email [email address provided] or phone [phone number provided]).

Wishing you a speedy recovery.

Yours sincerely,

Dr David Fitzgerald’

[36] On 23 September 2019, Airservices wrote to the applicant to advise of the proposed LOEQ; see: [3] above. The applicant responded on 1 and 4 October 2019. Airservices replied to the applicant as follows:

‘Dear Steven,

Loss of Essential Qualification

Airservices wrote to you on 23 September 2019 indicating a Loss of Essential Qualification initial action was taken, upon becoming aware the Civil Aviation Safety Authority (CASA) had notified you of the cancellation of your Class 3 Medical Certificate.

In this letter you were given the opportunity to provide any comments or explanation that you wished to be considered. I acknowledge receipt of your response dated 1 October 2019.

I have considered your response, together with the other information and evidence available.

Airservices has made a determination based on that information and evidence and advise that you are considered to have lost an essential qualification and are therefore ineligible to continue your duties as an operational Air Traffic Controller (ATC).

As previously advised in the letter dated 23 September 2019, you have the opportunity to seek suitable redeployment either within Airservices or externally by 17 January 2020. Should you not find suitable redeployment by that date, Airservices has determined that the most appropriate decision will be to terminate your employment in accordance with clause 56.9 (d) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017 - 2020 (the Enterprise Agreement).

Should your employment with Airservices Australia be terminated, as per clause 52 of the Enterprise Agreement, you will be paid in lieu of salary for the unexpired portion of any notice period. Additionally you will be paid your accrued and payable entitlements and any other outstanding remuneration up to and including your last day of employment.

Airservices understands that this may be a difficult time for you and as a consequence we would like to offer access to our Employee Assistance Program. Should you need any additional support you are able to access the free staff counselling service by calling [phone number provided]. During our previous meeting you were also advised on additional support available through the EAP provider and Work Cover.

Yours sincerely

Chris Wallace’

[37] Various medical reports were tendered including:

(a) Report dated 11 May 2018 by Dr Peter Dorhmann, Neurosurgeon;

(b) Report dated 18 September 2018 by Dr Graeme Doig, Orthopaedic Surgeon;

(d) Report dated 5 December 2019 by Dr Nichols Ingram, Psychiatrist.

[38] Ms Mackee provided a table of the applicant’s fitness for work periods, absences and associated medical certificates from 23 September 2017 – 30 January 2020 which are set out in full below:

Period	Capacity	Fitness	Duration
14 September 2017	2 hours per day 3 days per week	Fit to perform reduced operational duties	424 days
6 October 2017 onwards	Fit to progress to unsupervised work in accordance with Return to Work Plan	Fit to perform reduced operational duties
19 February 2018 – 30 April 2017	Half days or on day/off day	Fit to perform reduced operational duties
12 March 2018 – 12 May 2018	Day on/day off roster	Fit to perform reduced operational duties
15 May 2018 – 12 July 2018	Day on/day off roster	Fit to perform reduced operational duties
13 June 2018 – 12 July 2018	Day on/day off roster	Fit to perform reduced operational duties
13 July 2018 – 12 August 2018	Day on/day off roster	Fit to perform reduced operational duties
13 August 2018 – 12 September 2018	Day on/day off roster	Fit to perform reduced operational duties
13 September 2018 – 12 October 2018	Day on/day off roster	Fit to perform reduced operational duties
13 October 2018 – 12 November 2018	Day on/day off roster	Fit to perform reduced operational duties
13 January 2019 – 12 February 2019	Day on/day off roster and limit sitting to 45 mins and standing to 60 mins	Fit to perform reduced non-operational duties	119 days
13 February 2019 – 12 May 2019	Day on/day off roster and limit sitting to 45 mins and standing to 60 mins	Fit to perform reduced non-operational duties	119 days
13 May 2019 – 12 August 2019	None	Unfit for work	91 days
17 August 2019 – 16 November 2019	Fit to perform admin duties (not in areas where mistakes would be dangerous) at a maximum of 3 hours per day	Fit to perform reduced non-operational duties	92 days
30 August 2019 – 4 October 2019	None	Unfit for work	27 days
7 October 2019 – 16 November 2019	Fit to perform admin duties (not in areas where mistakes would be dangerous) at a maximum of 4 hours per day	Fit to perform reduced non-operational duties	40 days
16 October 2019 – 16 February 2020	None	Unfit for work	106 days (calculated to 30 January 2020)

[39] In respect to redeployment opportunities, Ms Mackee provided Airservices’ recruitment and selection process based on merit selection. As a result of a Rehabilitation Management Report of 12 November 2019, three positions were identified which the applicant could perform based on his education, employment, experience and current medical advice:

(a) ATC Instructor;

(b) Bank Consultant; and

[40] Ms Mackee identified 46 vacancies which did not require a Class 3 MC during the period between 10 October 2019 to 18 January 2020. Airservices’ records disclose that the applicant applied for 3 positions from 10 October 2019:

‘(a) Rostering Officer

The application was submitted on 12 January 2020 and assessed by Sacha Bouma as unsuccessful on 28 January 2020 and as Mr Uijland did not meet the role competencies. A copy of the application submitted by Mr Uijland is attached and marked 'FM-29.'

(b) Movement Monitor and Administrative Support Officer

The application was submitted on 29 March 2020, after Mr Uijland's dismissal. This application was assessed by Katrina Kent and Mr Uijland was shortlisted for this role on 2 April 2020. A copy of this application is attached and marked 'FM-30.'

This application was withdrawn on 27 March 2020.’

[41] Following the applicant’s termination on 30 January 2020, Airservices paid for and arranged for assistance in identifying a new role for him. Ms Mackee noted that as a participant in a Loss of License Insurance (‘LOLI’) Scheme, the applicant made a claim and was advised that the insurer required a letter from CASA, either cancelling his ATC license or providing a lapsing notice to the effect that if he did reapply, it would not be reissued. If he did so, he would be eligible to a payout of $74,346.50 (it is unclear if he has sought or provided this information from CASA).

[42] Ms Mackee included four complaints made by the applicant; two concerning Mr Sean Butler (People and Leadership Strategy Manager) on 17 and 18 January 2020. His email of 18 January 2020 reads:

‘Dear Sean,

As advised, Airservices has ignored to answer me for up to two years, meanwhile pressuring me instead of supporting me. Included in the answers they provided to me (dated 15/01/2020 and signed by you) is more harassment in the form of false fabrications, incorrect facts including about me. Therefore I feel I have been subject to bullying and harassment. Partly as a result of that I have been diagnosed with a major depressive disorder.

Kind Regards

Steven Uijland’

[43] Also included was a Code of Conduct (the ‘Code’) complaint made by Mr Wallace arising from the above communications. It records as follows:

‘The tone, language and content of emails and personal conversations is deemed inappropriate, elements of Code of Conduct considered:

1. Treat everybody with dignity, respect and courtesy

2. Comply with all policies and procedures relevant to your work, and with any lawful and reasonable direction given by an Airservices employee who has authority to give that direction

3. Behave in a way that upholds Airservices’ vision, mission and values and does not negatively impact the reputation of Airservices.

Language in emails and personal interaction is inappropriate, lacks respect and courtesy. There were also inappropriate language and implied threats to another Airservices employee.’

[44] Ms Mackee responded to the applicant’s claim that another employee, Ms Maranda Waddell, had quit and was ‘offered’ a job at the Airservices training college. In fact, Ms Waddell had been seconded to the College from 1 April 2019 to 31 March 2021. Her substantive role remains as an ATC in Albury. She has never resigned.

[45] It was Ms Mackee’s understanding that the applicant remains under a Comcare recovery plan, and is being paid at 75% of his normal weekly earnings. The Plan records at Claim Milestones:

‘Engagement in scrambler therapy which is the only treatment being recommended by his treater. Mr Uijland is currently not fit to participate in this treatment due to decline in mental health. Anticipating scrambler therapy will improve functional capacity sufficiently whereby they are able to commence increase in hours. However, there is no date provided by the clinic for the treatment

Treating doctor recommended remedial massage – At this stage it would be helpful to Mr Uijland to relieve pain and improve psychologically. Hence approved treatment until 16 February 2020.

Mr Uijland need (sic)psychological support to manage his current work adjustment and for pain management. Mr Uijland is due to be terminated from employment with Airservices by 29 January 2020. This is to be confirmed.

Mr Uijland currently suffering from psychological injury as a result of multiple factor related to his compensable injury and workplace stressor. EE currently waiting for appointment with psychologist to address these issues.

Mr Uijland’s reply to Ms Mackee

[46] In responding to Ms Mackee’s statement, the applicant pointed out that unlimited sick leave is standard for all ATCs. He claimed that two other employees at Albury had used more sick leave than him and had been allowed to start and finish their treatment and had returned to work more than once after long absences. He claimed that neither of them were told their injury was more serious than his, and given no guarantees their treatment would be successful.

[47] The applicant claimed Ms Mackee used wording which was not accurately reflected in the relevant documentation. He said that she made no mention of the terms of the Agreement.

[48] The applicant believed that the Injury Management Guide was selectively used by Airservices and it had acted negligently in respect to his shoulder injury. Strangely, he said he had legal advice that Airservices is not obliged to assist his rehabilitation for a new work-related injury. He believed Airservices’ demand he return from overseas to less support and inferior medical services was in breach of Cl 55.1 of the Agreement, as it was not taking positive and appropriate action. Nor was Airservices requiring him to undertake a functional capacity assessment. Further, Airservices was negligent in not obtaining expert advice. They should have returned him to a specialist surgeon for a report to his DAME, who would then report to Airservices.

[49] In respect to his back injury the applicant said Airservices failed to:

• provide support and encouragement for employees to remain at work following an injury;

• foster a work environment that is supportive of injured employees;

• actively contribute to and participate in the return to work process;

• provide encouragement and assistance to motivate the employee to return to work quickly;

• ensure that the employee gets appropriate medical assistance; and

• communicate attendance matters with an employee with empathy, respect and fairness.

[50] The applicant believed the work he did perform in 2019 was not meaningful and Ms Aruliah failed to contact him in breach of the Rehabilitation Agreement. No one showed empathy or compassion for his circumstances, in particular the applicant believed that:

• the respondent’s citation of various cases was to avoid their negligence and failure in its duty of care. Other cases are not relevant because his case is unique;

• even though he had been shortlisted for a new role, he was never told why he was unsuccessful or did not get an interview and

• the onus was on Airservices to advise him of the requirements to seek the loss of license insurance payment. He had to follow this up himself.

[51] The applicant set out the circumstances surrounding Ms Waddell’s position at Albury Tower, even knowing her personal family circumstances. He believed Airservices did her and her family a ‘massive favour’.

[52] As to Mr Wallace’s complaint about his conduct, the applicant said there was no investigation, and nothing had been proven. On the contrary, over 18 years he could have made many complaints about breaches of the Code by several individuals, and there is proof of others breaching the Code in respect to this matter. He noted again that he had only complained about Mr Valkenburg after giving him four chances to cease his verbal abuse. This demonstrated the poor communication and unhealthy culture in Airservices.

Statement of Mr Chris Wallace

[53] Mr Wallace has been employed by Airservices since 1981. He is a qualified and licensed ATC. He described Airservices’ operations around Australia, including 28 control towers at regional and international airports. In March 2019, Mr Wallace’s supervising responsibility extended to Albury Tower. Although a reasonably busy tower, when he took over the Albury tower, he was forced to reduce hours due to insufficient staff to fill roster requirements. There were four active staff and the applicant was non-operational. He said there were difficulties in recruiting the ATCs willing to transfer to Albury, and significant lead in time to train new recruits.

[54] Mr Wallace said that in March 2019, the applicant had been certified unfit to perform ATC duties since January 2019. Between 13 February and 12 May 2019, the applicant had been certified to work in blocks of 45 minutes sitting and 60 minutes standing with a maximum of 180 minutes daily. On 10 January 2019, the applicant had emailed Mr Wallace’s predecessor, Mr Bren-Clarke, which reads inter alia:

‘Nobody knows if the condition will ever improve. I am in talks with Comcare about scrambler treatment and have to discuss it with the pain specialist practice, but they only open again next week. Scrambler treatment does not cure any condition, but it might reduce symptoms. I will have to do 10 treatments (in Wodonga). So in the short term I will have to be here in Albury (also have my daughter still here). In the longer term I have to see what work will be most suitable. First I have to see what the results of the scrambler treatment are and then have to see how Jong I can sit/stand for as that aggravates it due to the pressure on the back. Ideally right now would be something where I don't have to sit/stand for long periods and have the flexibility to get up at regular intervals, be able to stretch, lay down and/or exercise. At the moment I am working on the floor checking references.

I have not heard back from Ginette nor Chloe (rehabilitation officer) to see how best to

move forward.

For now I don't think you can do much more for me than you are already doing (which I appreciate). Hopefully the scrambler therapy will reduce symptoms, so I can get more quality of life back, but might still not get me fit for duty as the condition will remain.’

[55] Mr Wallace first met the applicant on 18 April 2019 and told him he wanted to get to know him and get a better understanding of his Return to Work (‘RTW’) plan, and what could be done to support him. The applicant detailed the history of his shoulder and back injuries and mentioned he was on a ‘waiting list’ for a treatment called scrambler therapy, although it was difficult to obtain an appointment and uncertainty as to when it might happen.

[56] Mr Wallace had the impression the applicant did not know much about the treatment and had some fears about it. He had also mentioned spending 4-5 months on paid sick leave in Europe visiting family and seeking treatment for his shoulder injury. It was Mr Wallace’s evidence that he had said ‘I would not have approved that’, meaning the extended sick leave. It was not a comment about the scrambler therapy, as this was not a decision he could approve or not approve; it was a decision for the Comcare case manager.

[57] Mr Wallace said the applicant told him he was on a day on/day off routine, had difficulty sleeping, needed frequent breaks from computer work to stretch on the floor and he routinely went to the Murray River to lie in the water to rest. He felt the best thing was to rest, but he complained about not having enough meaningful work to do. He asked about spending time in the Tower with operational ATCs, but Mr Wallace was concerned that this would be distracting to the other ATCs. Mr Wallace said the Albury Tower has a large office area, which in other locations, is used for updating training and general administration.

[58] Mr Wallace agreed he had mentioned that the applicant could take annual leave on the days he was meant to be working, as he had told him he needed to rest and there was no work for him to do. He insisted he did not direct him to take annual leave. The applicant said he preferred to take his annual leave in blocks to visit family in Europe and he believed taking annual leave on workdays would be detrimental to his state of mind.

[59] When Mr Wallace asked him about any CASA paperwork he had, the applicant showed him the letter of 13 September 2018; see: [35] above. Mr Wallace said he was surprised by this, as he understood the applicant had been working until January 2019. When he asked why he had not renewed his Class 3 MC, the applicant responded there was no point, as he would not pass and his DAME told him that ‘until there was a change in his status, he would not be able to renew his medical’. Mr Wallace explained it was the applicant’s responsibility to renew his medical with his DAME prior to its expiry. He had never seen an ATC not attempt to do so, even where they had existing medical conditions. At this time, Airservices only had medical certificates from the applicant’s GP, and there was nothing about the views of CASA and a DAME about his then status.

[60] Upon review, Mr Wallace believed that as the applicant had worked as an ATC between 13 September 2018 and 7 January 2019, there was a requirement for Airservices to report to CASA of any breach of its regulatory requirements. Mr Wallace was concerned the applicant had been of breach of his license for around four months. After the applicant made an appointment with a DAME for early May 2019, Mr Wallace explained his concerns and the applicant told him he found the letter confusing because it referred to ‘flight crew license’, and Dr Thomas had agreed. Mr Wallace counselled the applicant that if he had any doubts, it was his responsibility to seek clarification from CASA. He told him that he would be discussing the issue with the Acting Service Manager, Mr Henderson, and that the issue would be taken very seriously. Mr Wallace emailed the applicant, summarising the meeting outcome and the applicant replied that he was upset that he felt no empathy, support, understanding or compassion from him.

[61] Mr Wallace and the applicant had a phone conversation on 16 April 2019. Mr Wallace confirmed their conversation as follows:

‘Hi Steven,

Thank you for meeting with me via phone today. To summarise:

• I acknowledged there had been potential for confusion over wording in CASA letters and advice or lack thereof from DAME, including miscommunication or breakdown of communication between all partiers with regard to fitness for duty resulting ultimately in your operating without a valid class 3 medical. I also offered advice on how to ensure your operational status by making a phone call to Avmed if any doubt exists and requiring follow-up documentation from them to confirm any verbal assurances before commencing operational work.

• Discussed Airservices communications protocols and Management structure and requested you cc me into any future discussions with People Services otherwise send all communications through me.

• Discussed appropriate feedback

• Thank you for the information regarding treatment timelines, my understanding now is that you are waitlisted for the treatment and a likely (not definite) commencement time was July 2019.

• Confirmed you had spoken to CASA DAME to organise documentation regarding current medical status, you will follow up with DAME if not received in a timely manner.

• Agreed that next step was the 2 May appointment with DAME to renew class 3 medical

• Discussions around meaningful non-operational duties regarding presentations and tower tours for small school and/or pilot groups – to be discussed with UTS and Corporate Security (Chris)

• Agreed I could contact Chloe Wallder to discuss your situation and to gain understanding from her perspective.

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

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

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

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

‘[21] The appellant further argued that the Commissioner placed particular reliance upon the view of Dr McDonough that “a slow, partial return to some duties may be possible”, and the view of Associate Professor Mendelson that she should “resume duties on a gradual basis following an appropriate period of training and under a period of supervision”. It argued that the Commissioner’s reasoning was essentially that the medical assessments provided optimism that the respondent may be capable of working in a modified position, rather than the actual job which she had previously held.

[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.
[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992(Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

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

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

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

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

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

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

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

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

[235] Importantly, the Full Bench decision in Jetstar makes clear that the decision of the employer to dismiss an employee on capacity grounds, is to be assessed on the material available to the employer ‘at the time of dismissal’ and not some uncertain, indefinite, speculative time in the future. So much so is clear from the following passage in Jetstar at [55]:

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

Whether the employee was notified of the reason for his dismissal – s 387(b)

[245] The applicant was notified on 26 September 2019 that Airservices was considering whether to commence the LOEQ process and that one of the consequences of doing so, could be termination of employment. On 10 October 2019, the applicant was advised that he had lost an essential qualification, and therefore unable to continue as an operational ATC. He was advised he had until 17 January 2020 (later revised to 29 January 2020) to obtain an alternative position or his employment may be terminated. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[246] On 26 September 2019, the applicant was advised that his employment was at risk and he was given an opportunity to respond, which he did in two emails. Mr Wallace gave him a further opportunity to respond by 3 October 2019, which he declined. For the next few months, the applicant made frequent submissions and requests about the redeployment process. In effect, the applicant could have put any response he wished (which he did) at any time over the four-month period.

[247] Lest there be any doubt, it must be stressed that the obligation on an employer is to provide an employee with an opportunity to respond to a proposed termination of employment and genuinely consider the employee’s response. To be clear, the employer’s obligation does not require agreeing to what the employee says in any response. Given the applicant’s responses and the time he had to do so, I accept that this criterion was more than satisfied. This factor tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[248] At the two relevant meetings with management – 26 September 2019 and 10 October 2019 – the applicant attended with his support person, Ms Evans. This is a neutral factor in this case.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[249] This criterion is not relevant in this case.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and 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 – s 387(g)

[250] Airservices is a relatively large employer with specialist HR resources. I am satisfied that the applicant was afforded procedural fairness, as reflected in a suite of relevant and detailed policies and procedures, including under the terms of the Agreement. The applicant maintains the respondent had been in breach of the Agreement, by not following Cl 55. Putting aside that the Commission has no power to determine claims of breaches of an enterprise agreement (this being a matter for the Courts), it seems inescapable that the crux of the applicant’s circumstances, being the loss of an essential qualification as an ATC, was entirely intended and comprehended by Cl 56 – Loss of Essential Qualification.

[251] In any event, it is somewhat late in the day to claim breaches of the Agreement when the applicant was well aware from 26 September 2019 that this was the Clause and its process Airservices was intending to follow. This was confirmed on numerous subsequent occasions. Moreover, the applicant participated in the process, albeit reluctantly and haphazardly, including by requesting extensions of time for four months, without taking any steps to challenge the validity of Airservices’ approach, particularly when it seems after 10 October 2019, he was ‘speaking to lawyers’.

[252] Lastly, as both Cls 55 and 56 can result in an employee’s termination of employment, it seems a reasonable assumption that even if Cl 55 had been used, and its processes followed, that the outcome for the applicant would not have been any different.

Any other matters the Commission considers relevant – s 387(h)

[253] To give clarity, I am bound to state what this case is not about. Despite the applicant’s dogged determination to treat these proceedings as some sort of roving inquiry into the perceived failure of Airservices to take full responsibility for his injury in 2017 (which it had anyway), and that Airservices had an absolute responsibility and duty of care to provide him with any and every support he considered appropriate, and had to find him a suitable alternative position, or create one where none existed, this is not what this case is about. Putting aside that the treatment and rehabilitation of the applicant was a matter largely for Comcare and for which he received and continues to receive payments, simply, the issue is whether Airservices’ decision to dismiss him for his failure to be able to perform the inherent requirements of his job, was a valid reason for dismissal. This decision, according to the authorities, is to be based on the medical evidence available to Airservices at the time, and not on some indeterminate speculation by the applicant of whether the scrambler therapy would work, or when he would be fit to RTW.

[254] The lengths to which the applicant sought to avoid this critical issue were curious and unfathomable, including by comparing his situation by reference to a report by former Justice North in which it was said the former Judge had identified a culture of bullying in Airservices. There was no evidence of the applicant being bullied by anyone in management and in fact, as I will come to shortly, the evidence is to the contrary. To make some implausible link between his circumstances and an alleged broader cultural problem at Airservices, is to draw ‘a very long bow’ indeed.

[255] Also of concern was that the applicant would seize on minor matters of detail in an endeavour to demonstrate a generalised notion of widespread impropriety and negligence by individual managers. Most worrying of all, which I will also come to, was the wide ranging and exponential disrespect and disdain for his managers and for anyone who he perceived were not focussed on his historic grievances, but correctly on the matter at hand; namely, his failure to retain his Class 3 MC.

[256] In my estimation, the applicant displayed an unhealthy and obsessive focus on the alleged failings of almost everyone around him, including fellow ATCs, who he believed were not as experienced or as well qualified as himself. He displayed a massive, disproportionately high opinion of himself and expected everyone in management to conform to his hounding historic demands for Airservices to be ultimately responsible for addressing issues with his shoulder injury in 2016 and back injury in 2017. He insisted that Airservices owed him for its alleged errors and negligence and failed in its duty of care. He accused managers of lying, incompetence and negligence.

[257] In my opinion, to reinstate an employee with this level of disrespect and contempt for his managers, including up to the CEO, would be utterly unthinkable. He displayed little contrition and gave no guarantees that this kind of behaviour would not be repeated. Indeed, his submissions seem to suggest that he will persist in seeking answers for his historic grievances and expect action be taken against people he believed have wronged him. To my mind, this was a classic, irretrievable breakdown in the employer/employee relationship.

[258] The applicant’s demands were essentially that Airservices must find him a job or create an acceptable position (to him) and continue to employ him indefinitely, when he was unfit for work. Pinning his future RTW on therapy which had no guarantees of success or how long it might take, in the face of having not worked operationally for almost 12 months over a 3 year period, was his ‘last throw of the dice’, to avoid the inevitability of his inability to fulfil the inherent requirements of his job. In any event, the applicant conveniently avoided his own medical advice that scrambler therapy was unlikely to be successful when the patient is in a state of emotional or psychological distress. This meant that his continued refrain that Airservices should have waited for the outcome of this therapy was unrealistic and cannot be sustained, when he was not even a clinical candidate for the treatment.

[259] What is even more troubling was the increasing vitriol of his language and highly disrespectful accusations about his managers and their competence. It could not seriously be suggested that a former employee with this level of antagonism and contempt for the employer and his managers, even the CEO, could be restored to the employment relationship with any semblance of normality and dignity, including to a role other than an ATC.

[260] The applicant argued that his increasingly direct language and aggressive tone was a product of what Airservices had done, or not done, to support him and his heightened stress levels. While I am prepared to accept that the applicant was stressed, as it became obvious his future employment was not looking particularly bright, and he was in the LOEQ process, such behaviour was hardly going to engender any compassion or empathy from those he was hoping to garner support and empathy from.

[261] The applicant also claimed that in his country of origin, it is normal to speak directly to your employer. Putting aside this euphemistic brushing aside of his disrespectful language, he was not working in his country of origin and had worked for Airservices for almost 19 years. He would have well known the behavioural expectation of Airservices through its Code. It behoved him to behave and conduct himself appropriately regardless of any stress he was under, or who he worked for. I consider his offer of an apology was belated and disingenuous.

[262] It is also relevant that he simply shrugged off any attempts by Mr Wallace to redeploy him to other work; see: [81] above. He was only interested in work he believed he could perform, or was willing to perform. He had four months’ warning that unless he secured another position within Airservices, he would likely be dismissed. Rather than cooperating in that effort, he put ‘all his eggs’ into the scrambler therapy ‘saviour’ and expected Airservices to comply with his demands of unknown success and timing, that no medical practitioner was prepared to speculate on.

[263] Knowing full well that he was on a warning, it was not for Airservices to demonstrate his capacity to RTW by contacting persons who would support his claim of deferment until the outcome of the therapy. Airservices only had the current medical advice that he was unfit for duty, with no foreseeable RTW of any kind. This is why the applicant is wrong to assert that his is a unique case. It is an unremarkable dismissal where the employee is unable to comply with the inherent requirements of the job.

[264] I accept, of course, as did Mr Fuller on behalf of Airservices, that the applicant had a long period of service and his work performance was good. This is neither to the point, nor do those factors outweigh the finding I have made as to a valid reason for dismissal. I note that the applicant sought to rely on a performance review of 6 October 2009 (11 years ago) which Mr Thomas agreed contained no negative comments. This historic record is irrelevant to the issues in this case.

[265] These other factors tell against a finding of unfairness.

[266] For all the aforementioned reasons, I am satisfied there was a valid reason for the applicant’s dismissal, and there are no procedural unfairness issues which would otherwise outweigh this reason. There would be no basis to reinstate the applicant (although it is no longer pressed), even assuming I was to find some reason to justify a finding of unfairness. It would be impractical and inappropriate.

[267] That said, I also must observe that the calculation of compensation in lieu of reinstatement, would need to take into account the cap on maximum compensation of 26 weeks, and then deduct any workers’ compensation from that amount, and possibly, any LOLI payment; see Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21 at p 29. The result would most likely be nil.

CONCLUSION

[268] For the abovementioned reasons and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied that the applicant’s dismissal on 30 January 2020, was not ‘harsh, unjust or unreasonable’. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[269] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[270] Accordingly, application U2020/1256 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself.

Mr D Fuller of Counsel, instructed by Ms K Easdale and Ms C Paton, Solicitors, MinterEllison, and Ms J Motbey, General Counsel, for the respondent.

Hearing details:

2020.

Sydney (via Telephone):

19 June

25 June.

Printed by authority of the Commonwealth Government Printer

Stefanus Uijland v Airservices Australia

[2020] FWC 4809

30 SEPTEMBER 2020

DECISION

Whether the employee was notified of the reason for his dismissal – s 387(b)

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)