Wayne Buckley v Airservices Australia Trading as Aviation Rescue Fire Fighting Service - [2025] FWC 1294

[2025] FWC 1294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Wayne Buckley
v

Airservices Australia Trading as Aviation Rescue Fire Fighting Service

(U2024/15527)

DEPUTY PRESIDENT DEAN

CANBERRA, 12 MAY 2025

Application for an unfair dismissal remedy – unable to perform inherent requirements – application dismissed

Mr Wayne Buckley (Applicant) was employed by Airservices Australia (Respondent) from September 2005 as a Lead Aviation Firefighter. He was dismissed on 5 December 2024, having been unfit to work from November 2019.

The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed. The Respondent says the dismissal was not unfair because he was unable to perform the inherent requirements of his role.

At the hearing of the application, the Applicant appeared on his own behalf and Mr Norrey appeared for the Respondent.

For the reasons set out below, I am not satisfied that the Applicant’s dismissal was unfair and so his application will be dismissed.

Background and key issues

The background facts are largely not in dispute.

As noted earlier, the Applicant was employed as a Lead Aviation Firefighter at Coffs Harbour aerodrome.
In February 2019 he sustained an injury to his right hand which was the subject of an accepted workers compensation claim.
He subsequently sustained a psychological injury in 2020 following a code of conduct investigation that was undertaken by the Respondent.
The Applicant has not performed any work since November 2019.

There is no dispute that the Applicant remains in receipt of workers compensation payments of 75% of his normal weekly earnings in respect of both claims.

In May 2023 the Applicant attended a psychological assessment. The report from the psychologist that followed this assessment stated that the Applicant did not have the capacity to undertake any work at the time of the assessment or for the foreseeable future.
In October 2024 the Applicant attended a Designated Aviation Medical Examiner (DAME) for the purpose of a fitness for duty assessment. The medical practitioners report states that the Applicant would not be able to return to his role, and that there would be significant safety issues if he were to return.
On 23 October 2024 the Respondent wrote to the Applicant outlining the findings made in the DAME report. The letter went on to say that “based on all the available information, and given the medical advice and findings of [the DAME], as well as your ongoing incapacity to perform the requirements of your role, Airservices is proposing that the most appropriate action in relation to your employment is termination of your employment”. The Applicant was invited to provide a response within 14 days.
On 6 November 2024 the Applicant’s lawyer responded on the Applicant's behalf and made various requests including that the Respondent hold off on terminating the Applicant’s employment and that the Respondent provide certain information to the Applicant.
The Respondent wrote to the Applicant and his lawyer on 5 December…

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

AGLC: Wayne Buckley v Airservices Australia Trading as Aviation Rescue Fire Fighting Service [2025] FWC 1294
Case: [2025] FWC 1294
Decision Date: 12 MAY 2025

CaseChat Overview and Summary

The case of Wayne Buckley v Airservices Australia Trading as Aviation Rescue Fire Fighting Service concerns an application for an unfair dismissal remedy. Mr Buckley, a Lead Aviation Firefighter for Airservices Australia, was dismissed after being unfit to work since November 2019. He lodged an application under section 394 of the Fair Work Act 2009, claiming that his dismissal was unfair. Airservices Australia contends that the dismissal was justified due to Mr Buckley's inability to perform the inherent requirements of his role. Deputy President Dean was tasked with determining whether Mr Buckley's dismissal was unfair.

The central legal issues were whether Mr Buckley's dismissal was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009. This assessment required consideration of various criteria set out in section 387 of the Act, including the validity of the reason for dismissal, whether Mr Buckley was notified of the reason and given an opportunity to respond, and whether any other relevant factors were present.

Deputy President Dean found that Mr Buckley's dismissal was not unfair. The decision was based on the clear medical evidence that Mr Buckley was unfit to perform his role and had been unable to work since November 2019. Despite the significant personal impact of his injuries, the Deputy President concluded that the dismissal was justified due to Mr Buckley's incapacity to perform his duties. The Respondent had notified Mr Buckley of the reason for his dismissal and provided him with an opportunity to respond. The other factors considered under section 387 did not alter the outcome.

In conclusion, the Deputy President dismissed Mr Buckley's application, finding that his dismissal was not harsh, unjust, or unreasonable.

Orders