Uijland v Airservices Australia

[2020] FWC 3613

[2020] FWC 3613

FAIR WORK COMMISSION

DECISION

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

Stefanus Uijland
v
Airservices Australia
(U2020/1256)

DEPUTY PRESIDENT SAMS SYDNEY, 14 JULY 2020

Application for an unfair dismissal remedy – Air Traffic Controller – fitness for duty – interlocutory decision – order for a person to attend and give evidence in Commission proceedings – former HR Manager – attendance at meetings – probative value of evidence – limited order for a person to attend and give evidence.

[1] This is an expanded Reasons for Decision in respect to an interlocutory application which was emailed to the parties on 12 June 2020.

[2] On 19 June 2020, the Fair Work Commission (the ‘Commission’) began hearing an application filed by Mr Stefanus Uijland, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which Mr Uijland seeks a remedy for his alleged unfair dismissal as an Air Traffic Controller employed by Airservices Australia (the ‘respondent’ or ‘Airservices’). Shortly stated, Mr Uijland (hereafter referred to as the ‘applicant’) was dismissed on 30 January 2020, having been unable to renew a mandatory Class III Medical Certificate, as a result of an assessment by a Designated Aviation Medical Examiner (‘DAME’) on 24 April 2019 and after he was given an opportunity, over four months, of obtaining suitable redeployment within Airservices by 17 January 2020. At this juncture, it is unnecessary to set out the details surrounding the applicant’s dismissal and the voluminous amount of documentation which has been filed in preparation for the hearing of the applicant’s claim.

[3] The present matter before the Commission for determination relates to an interlocutory application, filed by the applicant, for an order to attend the Commission to give evidence, pursuant to s 590(2)(a) of the Act. The order sought is directed to Ms Ginette Aruliah, a former HR manager of Airservices. Airservices objects to the order requiring Ms Aruliah to attend the Commission to give evidence and seeks to have the order revoked (‘set aside’) pursuant to s 603 of the Act on the following grounds:

‘1. There is no dispute that Airservices requested that Mr Uijland attend a functional capacity assessment, that he injured his back during the functional capacity assessment, and that as a result of his back injury he did not obtain a new class 3 medical certificate. The question is whether it was harsh, unjust or unreasonable to dismiss Mr Uijland in circumstances including those. The reasons why Mr Uijland was asked to attend the functional capacity assessment are irrelevant. This line of inquiry is based on the misconceived proposition that if the reasons for the functional capacity assessment were unsound, the reasons for Mr Uijland’s dismissal must also have been unsound.

2. In any event, there is sufficient evidence before the Commission about that matter. This includes, in Attachment G to Mr Uijland’s submissions, a contemporaneous email from Ms Aruliah herself setting out what she understood to be the reasons for him undertaking the assessment, and in Attachment I, a letter from Ms Aruliah’s manager (Sean Butler) reiterating the same. The Commission also has before it the Airservices policies and procedures pursuant to which Airservices contends the assessment was requested: see Mackee, 37. The evidence shows that Mr Uijland has frequently challenged Airservices about this issue and Airservices has consistently responded in the same way. The Commission would not be assisted by Mr Uijland having a further opportunity to agitate the issue.

3. Other Airservices witnesses give direct evidence about the process followed in relation to Mr Uijland’s dismissal, including in relation to the meetings attended by Ms Aruliah. The Commission would not be assisted by cross-examination of Ms Aruliah about these matters.

4. An application to require a witness to attend should be dismissed where there are other witnesses who can give sufficient evidence on the proposed topics of cross-examination: see, eg, Kennedy v Qantas Ground Services Pty Ltd[2019] FWC 4819, [17] (Kovacic DP).’

[4] The parties were directed to file short submissions on the issue and a hearing was conducted by telephone on 21 May 2020. The applicant appeared for himself and Mr D Fuller of Counsel, with Ms K Easdale, MinterEllison, appeared for Airservices, with permission having been earlier granted for the respondent to be legally represented, pursuant to s 596 of the Act.

The applicant’s case

[5] In claiming his matter is a unique case, the applicant submitted that in proving Airservices had been negligent and had failed in its duty of care and lack of support, it was necessary for Ms Aruliah to give evidence as she was the cause of his dismissal and had attended two crucial meetings in which she made vital comments, and had declined to explain the respondent’s decisions.

[6] The applicant claimed Ms Aruliah’s evidence will establish that Airservices’ managers were ‘unprofessional’, ‘incompetent’ and were ‘fabricating information’. The respondent had a moral obligation to look for another role for him, yet in a meeting on 26 September 2019, Ms Aruliah made it perfectly clear she was not going to support him and appeared happy to get rid of an employee who she perceived as ‘difficult’. He was only difficult because he could not get any explanation for Airservices’ actions.

[7] The applicant claimed Ms Aruliah was involved in his workers’ compensation claim and his treatment, but did nothing to assist him. If the Commission decides that her evidence is not necessary, then her manager, Mr Sean Butler, should give evidence as he gave false statements in his letter of 15 January 2020, on Ms Aruliah’s behalf.

Further submissions

For Airservices

[8] At the hearing on 21 May 2020, Mr Fuller submitted that the central premise of the applicant’s argument is whether Airservices acted negligently or unlawfully in referring him to a functional capacity assessment in September 2019, which ended in the applicant’s unfair dismissal two years later. Mr Fuller said this premise is wrong. An employer is not required to forever keep an injured employee employed, or be faced with an unfair dismissal. These circumstances are what the workers’ compensation system is intended to address, which is how the applicant has been treated since his injury.

[9] Mr Fuller said that this is not a unique case – it is a straightforward loss of capacity case and there appears to be no dispute that the applicant could no longer perform his role as an Air Traffic Controller because he no longer held the required Class III Medical Certificate. The focus in such cases is on whether the reason for the applicant’s dismissal was sound, defensible and well-founded, and whether the employer engaged in a fair process when dismissing the applicant. The Commission’s role is not to make findings about how the applicant was injured or the processes undertaken in dealing with his injury and return to work. He said that even if there was some relevance to the circumstances leading to the applicant’s loss of capacity, there is an abundance of evidence already filed and Ms Aruliah’s evidence would not add anything.

[10] Mr Fuller observed that Airservices does not dispute much of what occurred in the lead up to the applicant’s loss of capacity; the applicant was required to undertake a functional capacity assessment and had suffered a back injury, which meant he could not renew his Class III Medical Certificate. Mr Fuller put that there was no authority for the Commission to take into account the reasons for an employee’s incapacity as this is dealt with through the workers’ compensation system. The applicant’s submission as to Airservices being at fault (for the injury) or otherwise, is entirely irrelevant, not only for workers’ compensation purposes, but for unfair dismissal purposes.

[11] Mr Fuller submitted that, in any event, Ms Aruliah was not the decision maker concerning the applicant’s functional capacity. The relevant documents (in evidence) were from Ms Karen Altpere of Airservices. A second document is a letter from the DAME, Dr Michael Thomas, the authorised CASA medical practitioner, which says:

‘I understand that the applicant has a workplace occupational therapist appointment coming up soon and I recommend that he has this appointment.’

[12] Ms Aruliah is not mentioned at all and to the extent she was later mentioned, she was simply passing on information. She was not the decision maker. To the extent the applicant wants to ask her about the legality or negligence of her decisions, Ms Aruliah simply cannot give evidence about such matters. Her opinions, about legality or otherwise, are irrelevant.

[13] Mr Fuller addressed other of the applicant’s claims. Firstly, it is said that in a meeting on 26 September 2019, Ms Aruliah had said:

‘I think we have given you enough support with your shoulder injury.’

Four people attended that meeting – the applicant and his support person and Mr Chris Wallace (the applicant’s direct supervisor at the time) and Ms Aruliah. Mr Wallace will be giving evidence and the applicant can cross examine him. In addition, the applicant and his support person can give their own evidence about what was said in this meeting. Mr Fuller observed that it was unnecessary, in any event, for the Commission to make findings about whether this comment was made, or what might be inferred about it. This is because it refers to a shoulder injury, not the back injury; the former was the injury the applicant had before suffering the back injury as a result of the functional capacity assessment. Further, Ms Aruliah’s opinion is irrelevant, as it does not reflect the reality of what was done in supporting the applicant with his back injury (being on workers’ compensation payments).

[14] Secondly, the applicant continues to allege management’s unprofessional behaviour, incompetence or negligence. This is basically a submission against reinstatement; it is not a submission on any finding that the applicant’s complaints are well-founded.

[15] Thirdly, the applicant claims Ms Aruliah had some involvement in the loss of essential qualifications process. Ms Aruliah was not involved. It was Mr Wallace, his manager Mr Blair Henderson, and the applicant’s manager after Mr Wallace, Mr Adrian Turner, who will all be giving evidence and will be available for cross examination.

[16] Fourthly, the applicant seeks to ask Ms Aruliah about her own resignation. It was not explained how this was relevant and appears to be little more than a ‘fishing expedition’ to see if some adverse inference can be drawn against Airservices.

[17] Lastly, Mr Fuller referred to the Commission’s functions to be exercised efficiently and quickly both generally and under s 381 of the Act. Unnecessary or irrelevant evidence would simply prolong what is already a two-day scheduled hearing and is not conducive to the efficient conduct of proceedings. Further, in the alternative, Mr Butler’s evidence is unnecessary; he is a senior HR person who wrote the letter to explain why the functional capacity assessment was undertaken.

The applicant’s oral submissions

[18] The applicant claimed that everything (about his case) is interlinked. Mr Chris Bren-Clarke did not approve the functional assessment. He received all his advice from HR and each time, had said:

‘I'm talking with Ms Aruliah. I have to wait for what she says we have to do.’

[19] The applicant said that Airservices ‘broke their own rules’ and failed in their duty of care towards him. They were negligent and then did not offer him any support. These matters are interlinked. The applicant put that three of Airservices’ witnesses, Mr Simon Thomas, Ms Fiona McKee and Mr Adrian Turner, had little or no involvement in his dismissal. Ms Aruliah was actually at the dismissal meeting. Further, she was his Case Manager, had approved his therapy and assessment and had been involved in the functional capacity assessment. Ms Aruliah never defended him and had smirked in the dismissal meeting when she told him he was not going to get any further support.

[20] The applicant said that Ms McKee had nothing to do with anything about his case. In fact, she was in a different region to Ms Aruliah. It was vital for Ms Aruliah to attend because she had the most involvement in his case.

In reply

[21] Mr Fuller said that Ms Aruliah had attended the applicant’s dismissal meeting in her capacity as an HR representative. She was not the decision maker. To the extent the reasons for functional assessment are relevant (which they are not), Mr Bren-Clarke’s name appears on all the relevant documents, not Ms Aruliah. As to Mr McKee, it was appropriate for her, as a senior HR Manager, to provide relevant business records relating to the applicant, and his work history.

CONSIDERATION

[22] Having considered the parties written and oral submissions on 21 May 2020, I have determined the applicant’s application for an order to have Ms Ginette Aruliah attend and give evidence in matter U2020/1256 as follows:

Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

[23] The Commission’s powers under s 590(2) are in expressed in broad terms, and the making of any consequent order involves the Commission’s exercise of discretion. It may be generally observed that the approach to the issuance of a notice requiring a person to attend and give evidence in a proceeding, relies on many of the same considerations as those applying to the making of orders for the production of documents; primarily whether the evidence of the person is likely to be of sufficient probative value in determining relevant factual disputes apposite to the matter before the Commission. Other specific considerations may include:

1. Whether the person’s evidence is likely to be the same or corroborative of other persons who give evidence about the same matters and will add nothing to that evidence; see: Kennedy v Qantas Ground Services Pty Ltd[2019] FWC 4819;

2. Whether the evidence of the person concerns agreed or uncontested facts;

3. Whether the person’s evidence is otherwise obtainable from relevant documents, CCTV footage or business records:

4. Whether the person’s evidence has ‘apparent’, not necessarily direct relevance; see: Hu v Shanghai Garden Chinese Restaurant [2020] FWC 1308;

5. Whether there is an unwarranted or disproportionate inconvenience on an unwilling person being required to attend the Commission; or

6. Whether there is probative value in a person’s recollection of long passed historic events.

[24] All of these considerations are informed by the objects of the Act in s 3 and the objects of Part 3-2 set out in s 381 which provides as follows:

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

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(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 in re LotyandHolloway v Australian Workers' Union [1971] AR (NSW) 95.

[25] It is important, I think, at this point, and particularly given the applicant is unrepresented, that he understands the case he must advance if he has any chance of convincing the Commission that his dismissal was unfair, or in the words of the statute, was ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act. This case is not an opportunity for the applicant to seek redress for any perceived grievances he has with the workers’ compensation system, administered by Comcare, which he strongly believes has let him down. The fact that process may have produced an outcome which he does not agree with and does not accept, is not the point. It must be stressed that any recourse he may have for his grievances must be addressed through Comcare, not Airservices.

[26] It hardly needs stating that workers’ compensation legislation was introduced for the beneficial purpose of ensuring workers injured in the workplace are properly supported and their injury is treated and managed with the aim of having the worker return to full duties, sometimes with a transition phase of light or alternative duties. As to the latter point, this is recognised by the express provisions of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 at cl 56 which states:

‘56.9 Procedures

…

(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.’

[27] When viewed in this way, the fact the injury is work related does not mean the employer is held responsible for any failings in the very system which was created for the purpose of supporting the injured worker and hopefully managing his or her eventual return to preinjury duties. Regrettably, however, it appears that the theme of the applicant’s submissions to date, is that because the injury occurred at work, it follows the employer caused the injury and therefore was entirely responsible for everything that flowed as a consequence and has an obligation to provide him indefinite support, including creating a role for him, no matter whether such a role exists or not. If this submission was accepted, one might wonder what role there would be for any worker’s compensation system. In my view, while I accept the applicant has a deep and genuine sense of grievance, his energies to date, in seeking redress are misdirected.

[28] In response, Mr Fuller argued that an employer is not forever required to keep an injured employee employed, or be faced with an unfair dismissal claim. This submission must be accepted. Moreover, I know of no authority of the Commission which has endorsed such an approach. Further, I agree with Mr Fuller that the Commission’s role is not to make findings about how the applicant was injured, attribute blame or criticise the legitimacy or fairness of Comcare’s processes. I would add that this must be particularly so given Comcare is not a party to these proceedings and has no opportunity to defend its processes under relevant legislation.

[29] Obviously, the Commission cannot advise the applicant how to run his case. That said, he would be well advised to focus on the relevant statutory provisions under Part 3-2 of the Act and not on alleged noncompliance or irregularities under a different statutory regime. This begins with Airservices’ stated reason for the applicant’s dismissal; namely, his inability to perform the inherent requirements of his role as an Air Traffic Controller because of a failure to retain a mandatory Class III Medical Certificate. The reason must be a valid reason (s387(a)), in the sense of it being ‘sound, defensible and well founded’ and not ‘capricious, fanciful, spiteful or prejudiced’; see: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. A secondary, but no less important consideration is whether in effecting the dismissal, the applicant was afforded procedural fairness, or in other words, natural justice (sub-ss 387(b)-(e)).

[30] I will not labour these matters any further, suffice to note that it is from this perspective that the present question of whether Ms Aruliah should be served with a notice to attend the Commission and give evidence, naturally arises.

[31] There is much force to Mr Fuller’s submission that as Ms Aruliah was not the decision maker; her opinions or comments are irrelevant. Further, I consider there is logic in the proposition that the crucial meeting on 26 September 2019, which the applicant particularly relies on, was attended by four persons, three of whom will be giving evidence in the case and presumably can attest to their recollections of what Ms Aruliah said. Two of those persons are the applicant and his support person. The applicant will have the opportunity to cross examine the other person, Mr Wallace. In any event, it appears to me to be at least doubtful whether Ms Aruliah’s evidence as to the efforts of Airservices to find an alternative and suitable role for the applicant, is relevant, necessary or would add anything material to the evidence of the other management witnesses who can be cross examined by the applicant. If their evidence is limited, unresponsive or unpersuasive for the purposes of the statutory provisions, this may ultimately work in the applicant’s favour.

[32] In my assessment, the Commission will not be assisted in determining the relevant issues in this case by trawling through Ms Aruliah’s role or otherwise in the workers’ compensation process. On the other hand, in most unfair dismissal cases, it is usual for management persons who participate in an employee’s disciplinary or dismissal meetings, particularly senior HR persons, to give evidence in the proceedings. I note Mr Fuller described Ms Aruliah as a senior HR representative at these meetings.

[33] Accordingly, albeit on a fine balance having regard to apparent relevance, I am prepared to issue an order for Ms Aruliah to attend the hearing and give evidence in the proceedings on 19 June 2020. However, such evidence will be limited only to:

(a) The meeting on the 26 September 2019 and any subsequent meetings in which Ms Aruliah and the applicant were involved; and

(b) Any steps Ms Aruliah took, or had knowledge of, in respect to suitable alternative roles for the applicant and for which he was competent and qualified at the relevant time, that is, from 26 September 2019 to his dismissal.

I so order.

[34] Postscript: Ms Aruliah complied with the order and gave evidence in the proceedings on 19 June 2020.

DEPUTY PRESIDENT

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