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…

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 3613
Decision Date: 14 JULY 2020

CaseChat Overview and Summary

In the Fair Work Commission, Uijland sought an unfair dismissal remedy against Airservices Australia. Uijland, an air traffic controller, was dismissed for being unfit for duty. He challenged the decision, arguing that the dismissal was unfair and that there were procedural flaws in the process. The Commission was tasked with determining whether the dismissal was justified and whether Uijland's procedural rights were upheld. The key legal issues before the Commission were the validity of the dismissal decision and whether Uijland's procedural rights were properly observed.

The Commission examined whether Airservices Australia had just cause to dismiss Uijland and whether the procedures followed were appropriate. It considered the evidence provided by Uijland and Airservices Australia, including the fitness assessments and the communications between the parties. The probative value of the evidence, particularly the role of the former HR Manager who attended meetings regarding Uijland's fitness, was critically assessed. The Commission also looked into whether the Commission's order for the former HR Manager to attend and give evidence was necessary and proportionate.

The Commission concluded that the dismissal was justified as Uijland was unfit for duty. However, it found that there were procedural deficiencies in how the dismissal was carried out. The evidence from the former HR Manager was deemed valuable but not essential for the final decision. The Commission issued a limited order for the former HR Manager to attend and give evidence, recognising the importance of the evidence but also the need to balance the procedural fairness with the practicalities of the proceedings. The Commission ultimately dismissed Uijland's application for an unfair dismissal remedy but noted the procedural issues for future reference.

Orders