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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 4809
Decision Date: 30 SEPTEMBER 2020

CaseChat Overview and Summary

Stefanus Uijland brought an application against Airservices Australia for an unfair dismissal remedy. The applicant was an Air Traffic Controller employed at Albury Airport. He suffered non-work-related and work-related injuries in 2016 and 2017, respectively. As a result, he was required to retain a Class 3 Medical Certificate, and he was unfit for operational duties over a significant period. The applicant was on workers’ compensation, and Airservices Australia offered alternative work, which the applicant declined. The applicant also made complaints about the workplace culture and alleged that managers failed to answer questions and communications.

The court had to determine whether the applicant was unable to fulfil the inherent requirements of his role, and whether the employer met its obligations to assist the applicant to find alternative employment. The court also had to consider whether the dismissal was harsh, unjust, or unreasonable. The court found that the decision to dismiss was based on the evidence available to the employer at the time and not a speculative and uncertain time in the future. The medical evidence did not deal with the prospects of success with treatment or when it might be concluded. The applicant abandoned scrambler therapy without a favourable outcome, and a poor prognosis was corroborated three months after the applicant’s dismissal. The court found that the applicant was unable to fulfil the inherent requirements of his job with no prospect of him being able to do so in the foreseeable future. The decision to dismiss was reasonably based on the evidence available to the employer at the time. The employer met its obligations to assist the applicant to find alternative employment, and the dismissal was not harsh, unjust, or unreasonable.

The court found that the dismissal was based on a valid reason and that the employment relationship was inherently broken down. Reinstatement would not be appropriate, and no issues of procedural unfairness were found. Other matters did not outweigh the factors justifying dismissal. The application for an unfair dismissal remedy was dismissed.

Orders