Off work for two years: Qantas axes flight attendant

Off work for two years: Qantas axes flight attendant

By John Golden on 11 September 2018 A long-serving Qantas flight attendant who couldn't fulfil the inherent requirements of his job because of injury was not unfairly dismissed, a tribunal has ruled.

Background


The flight attendant suffered a non-work related injury and had been off work for more than two years. He was 60 years old and had exhausted all leave entitlements.

There was sound medical evidence of his unfitness for flight attendant duties. He had sustained a complicated ankle fracture and had to undergo three operations including the insertion and subsequent removal of eight screws and a titanium plate. He had 22 years of service.

The employee could not provide any medical evidence confirming that it would be safe to perform his pre-injury role without risk of harm or aggravation of his condition.

There had been offers of voluntary redundancy by Qantas that were not taken up by the employee.

Reasoning

 
Deputy president Sams noted that when an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it was 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.

The phrase 'inherent requirements' has been judicially considered to mean something that is essential to the position. To determine what were the inherent requirements of a particular position usually required an examination of the tasks performed, because it was the capacity to perform those tasks which was an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J]

Conflict of medical opinion


The commission noted that contrary to the proposition in Lion Dairy, there was no basis to leave the resolution of any conflict in medical opinion to an employer. The commission was frequently called upon to resolve evidentiary conflict, including the assessment of expert evidence, and the tension between Lion Dairy and Jetstar was to be resolved by the adoption of the approach in Jetstar: In a dismissal related to the person’s capacity, s387(a) requires the commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the commission.

Time of dismissal is relevant time


The deputy president also noted 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.

Implied consent?


The deputy president rejected the flight attendant's argument that there was ‘implied consent’ from Qantas to return to work, saying ‘it is utterly implausible that [named managers] would have had the authority, let alone any inclination to agree to a future RTW date'.

Conclusion


The commission found in favour of the employer’s case, stating:

‘… the applicant had 22 years’ service with Qantas as a long haul flight attendant during which there were no issues of unsatisfactory performance or conduct. By any measure, this is a considerable period of excellent service. He is now 60 years of age. Both these matters have weighed heavily on my mind when determining this matter.

'... the applicant complained that no serious options were considered for his redeployment. This was incorrect... the applicant proverbially put "all his eggs in the one strategy basket" – a perceived return to pre-injury duties in January 2018. He was so confident he would achieve this goal, that any consideration of alternative duties was never "on his radar". This was a regrettable and ultimately foolish strategy for which Qantas cannot be held responsible.

'... I note the applicant has retained all of the benefits of post-employment which all other long standing employees of Qantas have available to them when they resign or leave Qantas. These include: eligibility to use staff travel as a "former employee" until 22 August 2040...
 
'After carefully balancing of all the matters I am required to take into account under s387 of the Act, I am satisfied, (albeit, not without some hesitation, given his long and exemplary service), that the applicant’s dismissal by Qantas on 15 December 2017 was not ‘harsh, unjust or unreasonable’.

The bottom line: Dismissal of injured workers can be problematic for employers. The law requires employers to go to considerable lengths to give an injured employee time to recover and return to work, as well as attempting to provide a gradual path back to work, if that is feasible. However, if an employee is unable to return to work in the foreseeable future then an employer is entitled to act to dismiss.

Read the judgment


Ralf Rodl v Qantas Airways Pty Ltd [2018] FWC 4363 (13 August 2018)
 

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