PR931652 PR931652 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Andre Peter Meyer and Qantas Airways Ltd (U2002/6530) COMMISSIONER RICHARDS BRISBANE, 30 JUNE 2003 Termination of employment. DECISION [1] This is an application by Mr Meyer (the Applicant) under section 170CE (1) of the Workplace Relations Act 1996 (the Act) following the termination of his employment by Qantas Airways Limited (the Respondent) on the ground that the termination was harsh, unjust, or unreasonable. The Applicant was employed by the Respondent for some nine years, and at the time of termination was employed as a Ramp Services Officer based at the Brisbane domestic airport. [2] The matter was the subject of a conciliation conference in December 2002 but was unable to be settled. Accordingly, a certificate was issued on 6 January 2003 under section 170CF(2) of the Act. The Applicant elected to proceed to arbitration. The matter was heard in Brisbane. STATUTORY PROVISIONS [3] In applying the Act to determine whether the termination was harsh, unjust or unreasonable, the following provisions of the Act relevantly apply: 170CG Arbitration ... (3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust, or unreasonable, the Commission must have regard to: (a) Whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) Whether the employee was notified of that reason; and (c) Whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) If the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and (ad) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) Any other matters that the Commission considers relevant. SUMMARY OF PARTIES' KEY CONTENTIONS The Applicant's submissions [4] For the purposes of these arbitration proceedings, the following summary applies in respect of the Applicant's written submissions in relation to section 170CG(3) of the Act. Section 170CG(3)(a) Whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service [5] The Applicant submitted that the Respondent did not have a valid reason for terminating the Applicant's employment. It was claimed in the Applicant's written submissions that the Applicant had an injury, which was sustained whilst unloading an aircraft at the Qantas terminal on Friday, 13 September 2002. Section 170CG(3)(b) Whether the Respondent failed to notify the Applicant of the reason [6] The Applicant contended that the Applicant was not notified of the reason for his dismissal at the time of the termination of his employment. However, it was conceded that such notice was provided to the Applicant's solicitors, who were retained regarding the Applicant's potential personal injury action and also to protect his interests in relation to allegations of fraud raised by QCOMP, and who represented him for purposes of this application before the Commission. Section 170CG(3)(c) Whether there was a failure to afford an opportunity to respond to any reason allegedly related to performance, or the capacity or conduct of the Applicant [7] The Applicant submitted that he did not receive any warnings or counselling from the Respondent prior to his dismissal for alleged misconduct. Section 170CG(3)(d) If the termination related to alleged unsatisfactory performance, whether the Applicant was given any warnings [8] It was submitted that, to the knowledge of the Applicant, the termination related to allegations of misconduct and issues of performance, but no prior warnings were provided. Section170CG(3)(da) The degree to which the size of the undertaking, establishment or service in which the Applicant worked impacted on the procedures followed in the carrying out of the termination [9] The Applicant submitted that he worked for a large establishment and it was not apparent that its size impacted in any way on the procedures followed in carrying out the termination. Section 170CG(3)(db) The degree to which the absence of dedicated human resource management specialists in the workplace impacted on the procedures followed in carrying out the termination [10] The Applicant submitted that, to his knowledge, the Respondent has a dedicated human resource management team. Section 170CG(e) Any claim in relation to other matters that are considered relevant [11] The Applicant submitted that the Respondent delayed for a considerable period before providing the Applicant with a separation certificate. It was submitted that payment to the Applicant by Centrelink was further delayed because the reason for termination stated on the separation certificate was "misconduct". As a result the Applicant suffered a further penalty imposed by Centrelink. The Respondent's submissions [12] For purposes of these arbitration proceedings, the following summary applies in respect of the Respondent's written submissions in relation to section 170CG(3) of the Act. Section 170CG(3)(a) Whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service [13] Contrary to the Applicant's allegation that the Respondent ignored or otherwise disregarded the Applicant's alleged injury, the Respondent contended that at no time did it form the view that the Applicant did not have an injury. Indeed, on or about 25 September 2002, the Respondent submitted that the Applicant presented a medical certificate to the Respondent's workers compensation department indicating that he was "totally incapacitated" for work during the period from 18 September 2002 to 18 October 2002. [14] The Respondent submitted that it formed the view that the Applicant was not "totally incapacitated" for work as stated in his workers' compensation medical certificate, and as represented by the Applicant. As a consequence, the Respondent formed the view that the Applicant had misrepresented the nature of his medical condition and his capacity to perform work. [15] Between 24 September 2002 and 6 October 2002, the Respondent alleged that the Applicant was observed engaging in a range of physical activities including bending, twisting, lifting, pulling, squatting, carrying and running. Examples of those activities were provided in written allegations to the Applicant and the Applicant was shown a copy of surveillance videotape clearly showing the Applicant engaging in those activities. [16] The Respondent submitted that the activities engaged in by the Applicant on the surveillance video were inconsistent with the statement in the Applicant's medical certificate that the Applicant was totally incapacitated. The Respondent further submitted that the Applicant: · falsely claimed sick leave benefits on the basis of alleged total incapacity; · knowingly misrepresented the degree of his incapacity to the Respondent for at least the period 24 September 2002 to 3 October 2002; and · failed to comply with his obligation to make reasonable efforts to return to work. [17] The Respondent formed the view that this constituted misconduct sufficient to justify termination of employment. Section170CG(3)(b) Whether the Respondent failed to notify the Applicant of the reason [18] The Respondent submitted that the Applicant was notified of the reasons for the termination of his employment prior to termination and was afforded a fair and reasonable opportunity to respond to the allegations put to him in writing before a decision was made. [19] The Respondent claimed that: · the Applicant was stood down with full pay on a without prejudice basis while an investigation into his alleged misconduct was carried out; · written allegations were provided to the Applicant on 31 October 2002 before any decision to terminate the Applicant's employment was made. It was also claimed that the Applicant was advised that the allegations were extremely serious and, if substantiated, may result in disciplinary action including termination of employment; · the Applicant engaged solicitors to represent him in relation to the allegations; · the Applicant's solicitors responded on his behalf to the allegations on 12 November 2002, after Qantas granted an extension of time for the response to be provided; and · by letter dated 15 November 2002, the Applicant was advised of the termination of his employment on the ground of serious misconduct. The particulars of the misconduct were set out in that letter. Section 170CG(3)(c) Whether there was a failure to afford an opportunity to respond to any reason allegedly related to performance, or the capacity or conduct of the Applicant [20] The Respondent, in response to the Applicant's submissions on this point, submitted that the Applicant's serious misconduct had not been the subject of previous warnings or counselling. The Respondent claimed it formed the view that the serious misconduct justified termination of employment. Section 170CG(3)(d) If the termination related to alleged unsatisfactory performance, whether the Applicant was given any warnings [21] The Applicant's employment, according to the Respondent, was terminated on the ground of serious misconduct and did not relate to the Applicant's work performance. Section 170CG(3)(da) The degree to which the size of the undertaking, establishment or service in which the Applicant worked impacted on the procedures followed in the carrying out of the termination [22] The Respondent concurred with the Applicant's submissions at paragraph [9] above. Section 170CG(3)(db) The degree to which the absence of dedicated human resource management specialists in the workplace impacted on the procedures followed in carrying out the termination [23] The Respondent concurred with the Applicant's submissions at paragraph [10] above. Section 170CG(e) Any claim in relation to other matters that are considered relevant [24] In response to the Applicant's claim at paragraph [11] above, the Respondent submitted that the Applicant's employment with the Respondent was terminated by letter dated 15 November 2002. The letter was couriered to the Applicant on that day. The Applicant received 4 weeks' pay in lieu of notice. [25] The Respondent submitted that its usual practice is not to release final monies or provide an employment separation certificate until an employee has completed a clearance procedure which includes the return of the employee's identification card. The Respondent submitted that the Applicant did not return his Qantas identification card until 23 December 2002, at which time clearance procedures were complete and the Respondent completed an employment separation certificate. [26] The Respondent further submitted that the employment separation certificate dated 23 December 2002 was sent to Centrelink by letter dated 15 January 2003 and correctly noted that the Applicant's employment was terminated for the reason of serious misconduct. [27] The Respondent also submitted that, in the event that the Commission found that the dismissal was harsh, unjust or unreasonable, the Applicant should not be reinstated and that reinstatement would be inappropriate. [28] In accordance with the Directions, the Respondent submitted that the following claims made by the Applicant required proof: 1. That the Applicant was totally incapacitated for work during the period 24 September 2002 to 6 October 2002; 2. That the Applicant was not notified of the reason for the termination of his employment; and 3. That the Applicant was not given an opportunity to respond to the reasons given for the termination of the Applicant's employment. THE COMMISSION'S FINDINGS [29] The Commission is satisfied that the Applicant falls within the ambit of section 170CB(1)(c) of the Act. That is, that while employed by Qantas, he was a federal award employee consistent with the definition contained in section 170CD(1) of the Act, who was employed by a constitutional corporation. This was uncontested by the parties. [30] In correspondence dated 15 November 2002, the Applicant's employment with the Respondent was terminated at the initiative of the employer, effective from that date. The Applicant was paid four weeks' pay in lieu of notice. [31] In applying section 170CG of the Act, the Commission makes the following findings by way of establishing the context in which the termination was given effect. [32] The Applicant claimed to have injured himself whilst unloading an aircraft hold on Friday, 13 September 2002. On his evidence, he felt a `twinge', a `spasm for a few seconds' and then `no pain' 1 . Whilst he made mention of back pain to his supervisors that shift, the Applicant provided no formal indication to his employer of having sustained a back injury 2 . [33] On his own evidence, the Applicant then worked a further three days over Saturday, 14 September 2002, Sunday, 15 September 2002 and Monday, 16 September 2003. These shifts included a twelve hour shift, with a four hour overtime component and a four hour voluntary shift. Two of these shifts involved driving and the shorter shift on the Sunday related to baggage handling, although not in the confined space of the hold. [34] On Tuesday, 17 April 2003 while off work, the Applicant attended the airport and, by chance, met a member of Qantas management in the car park. He was observed at this time moving freely, lifting his two year old son and carrying him on his hip. [35] On Wednesday, 18 September 2003 the Applicant presented at the surgery of Dr Roudenko in severe pain 3 . [36] The Applicant could not recall whether he informed Dr Roudenko that he had worked for three days following the alleged injury 4 . [37] A CT scan was carried out on Friday 20 September 2003, revealing bulging of a specified disk "with some compression of the L4 Nerve roots bilaterally" 5 . [38] Dr Roudenko issued a medical certificate on that day (20 September, 2002) which indicated under the heading `Injury Management' that the Applicant was ` totally incapacitated for work ' from 18 September until 18 October 2002 6 . [39] The Applicant stated to Dr Roudenko that "the shit will really hit the fan" over the terms of the medical certificate 7 . [40] The pro forma medical certificate contained categories under the heading of "Injury Management" which could be ticked by a treating doctor to indicate that the patient was fit to return to pre-injury duties, or fit for return to work for suitable duties\restricted days or hours, or for a restricted return to work on the basis of certain proscribed activities (for example, no lifting or bending etc). Dr Roudenko did not tick these. [41] Dr Roudenko did tick the box on the medical certificate that indicated the "injury [...] is consistent with worker description of cause." [42] On 23 September 2002 the Applicant telephoned Mr Alan Burke, the Respondent's Human Resources Manager, Queensland, informed him of the back injury and stated the terms of the medical certificate. Other than this, the precise content of the conversation was disputed 8 . [43] Qantas instigated video surveillance of the Applicant on 24 September 2002 on the basis of the perceived inconsistency between the medical certificate and the observed physical condition of the Applicant. [44] On 25 September 2002, the Applicant personally made the medical certificate dated 20 September 2002 available to Qantas' workers compensation arm. There was an exchange with Mr Cameron Urquhart to the effect that alternative duties may be available. There is doubt whether this was in relation to the availability of a permanent or a temporary position. Mr Urquhart recalled stating that the injury as presented could be career threatening 9 . Further telephone conversations took place with Mr Urquhart at the Applicant's instigation on 14 and 15 October 2002. [45] On or about September 25 , Mr Urquhart instigated a telephone conversation with Dr Roudenko during which he asked why the medical certificate had been backdated. Dr Roudenko provided an explanation on grounds that the medical certificate was not completed until the results of the CT Scan were made available to him. Mr Urquhart stated in evidence that he did not recall raising with Dr Roudenko, at that time, the terms of the medical certificate or the alleged inconsistency between that certificate and the Applicant's apparent capacity to move freely 10 . [46] The Commission accepts unchallenged evidence that on 19 September 2002 the Applicant raised with a supervisor during a telephone conversation the prospect of working as a driver 11 . [47] On Monday, 23 September 2002, the Commission accepts that the Applicant spoke with Mr Alan Burke, Human Resources Manager for Qantas. The parties dispute the content of this conversation. The Respondent contended that the Applicant said, "I have been told to lie flat on my back." The Applicant claimed, and stated under cross-examination, that he said "Alan, "It's worse when I am lying around on my back"" 12 . The Commission prefers the Respondent's evidence in respect of this particular conversation. [48] On 27 September 2002 Qantas rehabilitation personnel forwarded a capability sheet to Dr Roudenko for completion in the event that he amended his medical certificate. Further contact with Dr Roudenko in this regard occurred on 1 October 2002. Dr Roudenko did not respond until 18 October 2002. [49] On 30 September 2002, the Applicant contacted Mr Burke and relayed to him several of Mr Urquhart's observations of their conversation of 25 September 2002. Mr Burke recalled that the Applicant said words to the effect that "Cam just told me this [the Applicant's injury] could be career ending" 13 . [50] On that same day, the Commission accepts that the Applicant's physiotherapist, Ms Kelly Mitchell, discussed with Mr Burke the prospect of alternative duties at Qantas, whether for the long or short term. Under cross-examination, the Applicant stated in relation to this development: " Ms McKenzie: Let me ask the questions, Mr Meyer. You were happy to go back doing anything that would have been within your capability of performing?---Yeah, I just didn't want to hurt my back any more. "And you felt that you could - yes, but on 30 September you felt able to go back and do some work, is that right?---Yeah, I actually felt like that a week earlier... "And you say that Kelly Mitchell rang someone at Qantas, and you think Allan Burke?---Mm " 14 [51] Both the Applicant and Ms Mitchell had clear recollections of this conversation, which focused on the prospect of the Applicant's return to work on alternative duties. Ms Mitchell gave further evidence that she left messages with Mr Burke on three further occasions, and when they were returned, again on 17 October 2002 15 . [52] On Dr Roudenko's evidence, he submitted a report to Qantas on 16 October 2002 proposing that the Applicant return to "more suitable duties, which are much kinder to his back" 16 . [53] The Applicant was advised by QCOMP on 15 October 2002 that he was under investigation for fraudulent workers compensation claims. That morning, before being so informed by QCOMP, the Applicant telephoned Mr Burke and left a message with Mr Burke's Secretary regarding his circumstances. Following that, the Applicant's telephone records sustain the claim that he rang Mr Urquhart. On Mr Urquhart's evidence, the Applicant had also telephoned him on 14 October 2002 17 . The conversations with Mr Urquhart over these two days appear on the phone records as totalling approximately 18 minutes. [54] On 18 October 2002 the Applicant was informed by a telephone call from Qantas that he was being stood down with pay pending an investigation into his workers compensation claim 18 . [55] Mr Alan Burke gave evidence that on 18 October 2002 the Applicant left a message through his Personal Assistant to the effect that he was capable of returning to work on light duties 19 . [56] On 28 October 2002, the Applicant became aware of the video surveillance that Qantas initiated on 24 September 2002. [57] On 23 October 2002, Qantas confirmed in writing the telephone call of 18 October 2002. The Applicant was told he was stood down, effective from 21 October 2002 to 30 October 2002, on the basis that Qantas was conducting an investigation into the issues surrounding the Applicant's workers compensation claim. By its letter to the Applicant dated 30 October 2002, Qantas stood the Applicant down for a further period until 8 November 2003. On 31 October 2002, Qantas despatched correspondence headed "Re: Allegations of Misconduct", in which it detailed the surveillance observations 20 , made between 24 September 2002 and 6 October 2002, which in its view were clearly inconsistent with the medical certificate of 20 September 2002 that stated that the Applicant was `totally incapacitated'. On this basis, Qantas alleged the following: "[...] · The activities set out in Allegation 1 above are inconsistent with your Medical Certificate you provided for your incapacity from work for the period 18 September 2002 to 18 October 2002, which states that you were completely unfit for work. · You knowingly misrepresented the degree of your incapacity to Qantas for at least the period 24 September 2002 to 3 October 2002. · You have failed to inform Qantas that you engaged in activities such as those set out in Allegation 1 above and that you could perform such activities. You deliberately withheld information about your capabilities from Qantas. · The activities set out in Allegation 1 indicate a work capacity which exceeds the degree of impairment you have presented to Qantas. You have knowingly misled Qantas as to the degree of your impairment and the level of your work capacity. · By misrepresenting the degree of your impairment and the level of your work capacity, you have deceptively gained benefits, including sick leave pay, which you would not otherwise be entitled to. · Your misrepresentation means that you have not made reasonable efforts to return to your employment. · Your actions are in breach of Qantas Policy and Procedures, specifically Policy 1.1 Standards of Personal Behaviour and your contract of employment and as such constitute serious misconduct. [...]" 21 [58] The Respondent requested that the Applicant attend a meeting of 6 November 2002 to respond to the allegations. By way of correspondence to the Respondent dated 4 November 2002, the Applicant's solicitors indicated that he would not attend the meeting to respond to the allegations, offering instead to respond in writing "upon receipt of questions you wish to have answered." The Respondent replied in writing on 6 November 2002 that the issues it raised in its previous correspondence were employment related issues and not to be confused with the QCOMP investigation, and that it required a written response to the allegations specified in its correspondence of 31 October 2002 by 8 November 2002. At the request of the Applicant's solicitors, the Respondent permitted a further delay for the receipt of written responses to 12 November 2002. [59] On 12 December 2002, the Applicant replied through his solicitors to the detailed allegations in the following terms: "[...] · [The Applicant] is incapacitated to work as an Airport Services Officer which includes the requirement of heavy, manual lifting and working in confined spaces. · He is so deemed incapacitated by his medical practitioner. · None of the activities he was observed engaging in are inconsistent with the injury he has sustained. [...]" 22 [60] On 15 November 2002, the Respondent despatched correspondence to the Applicant advising him of his termination for the following reasons: "[...] As previously stated in our correspondence to you and your legal representative, I now make a decision based upon the information before me which includes:- · A surveillance video of you engaging in various activities from the period from 24 September 2002 to 6 October 2002; · The investigators' reports of the surveillance; · Medical certificates and reports provided to Qantas regarding your absences; · All correspondence relating to this matter; · Your written response to the allegations as provided by your legal representative . Giving due consideration to all the information, I am satisfied that the allegations are substantiated. The allegations put to you represent allegations of serious misconduct. Accordingly, your employment with Qantas is terminated with notice effective from today. You will be paid 4 weeks' pay in lieu of notice. [...]" 23 [61] The Respondent's allegation of serious misconduct arose, in the first instance, from the apparent inconsistency between the medical certificate of 20 September 2002, which stated that the Applicant was `totally incapacitated', and the observations, made directly by Qantas staff in addition to the video surveillance evidence, that the Applicant enjoyed a degree of freedom of movement at odds with that medical certificate. The inconsistency between the medical certificate and the observed behaviour was made clear in Mr Urquhart's testimony: THE COMMISSIONER: Mr Urquhart, in your role, do you see very many medical certificates?---Just about everyone that comes in the door, Commissioner. Quite a number. Do you recall, or do you have available to you, but I suspect do you recall, the medical certificate issued by Dr Roudenko of 20 September last year?---I recall. I don't have it in front of me, but I recall the certificate. Do you recall that it ticked the "totally incapacitated" box?---Yes. Now, in your role in respect of worker's compensation, what does it mean to tick that box?---It means that the doctor believes the person can't come back to work in any way, shape or form in anything. So no light duties, no nothing?---No nothing. Are you aware of any doctors who have previously ticked boxes for totally incapacitated but indicated that it only meant in relation to the work they were doing at the time of their injury?---No, Commissioner. None at all?---None at all, no." 24 [62] The Respondent was also aware that the Applicant continued working for three days after the alleged injury was sustained 25 , and seemed to be moving freely on the fourth day 26 . By the fifth day he was `totally incapacitated', according to his medical certificate. [63] In addition to this, no formal injury report or workers compensation claim had been received in the period immediately following the alleged injury on 13 September 2002. That is, the relevant documentation for this allegedly serious back injury was not received from the Applicant until 25 September 2002, almost two weeks later, during which time it would appear the Respondent's suspicions firmed. [64] The Respondent did not deny that the Applicant had sustained an injury. The Respondent alleged that the injury, on the observations to which it was privy, was not such that the normal graduated return to work procedures, about which the Applicant was demonstrably aware, should have been avoided, or evaded. Section 170CG(3)(a) Whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service [65] The issue for the Commission to determine is where, if anywhere, resides the `serious misconduct', that, in the Respondent's view, affords it the valid reason for dismissing the Applicant. This is not to say that the Respondent had reasonable grounds for reaching the conclusions it did about the Applicant, but that the misconduct occurred, as a matter of fact. [66] In the Full Bench decision King v Freshmore (Vic) Pty Ltd 27 the Bench stated: "When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved. The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination." [67] On the face of it, it is understandable that information from the Applicant that he had a serious back injury that would incapacitate him for at least one month, followed by observation of the Applicant moving freely and without distress, provides fertile ground for suspicion to take root. [68] The Applicant made nine workers compensation claims between 1999 and 2002 and had earlier that year been involved in the graduated return to work program conducted by the Respondent's workplace rehabilitation advisers after he had sustained an upper back injury. In short, the Applicant seemed capable to the Respondent of carrying out duties, even if not original duties in their full intensity and range. Additionally, by dint of his very recent personal experience, the Applicant was unambiguously aware of the Qantas Return to Work program. [69] The Applicant compounded the Respondent's suspicions by not notifying them of his injury quickly and formally and to the appropriate persons in the company. On the Applicant's own admissions, he evaded Mr Urquhart - the workers compensation manger to whom he should have reported at first instance - for personal reasons and went, instead, to Mr Alan Burke, who worked not in the Workers Compensation area but in the Human Resources area. [70] The Commission also accepts that in his conversation with Mr Alan Burke on 25 September 2002, the Applicant is likely to have used words to the effect that Dr Roudenko told him "to lie flat on my back". [71] While these suppositions as to the intent and purpose of the Applicant's conduct may have been reasonably held in the circumstances, they do not adduce evidence in their own right that an intentional act of serious misconduct followed. [72] On 20 September 2002, Dr Roudenko, as the Applicant's treating medical practitioner, viewed the results of a CT Scan carried out on the Applicant and which revealed he had lower back disc damage. He consequently provided the Applicant with a medical certificate that stated he was `totally incapacitated' for one month. [73] The Commission considers that Dr Roudenko's evidence did not demonstrate mindfulness of the graduated return to work programmes available in industry and the role of in-house and external rehabilitation experts there-in. For example, Dr Roudenko assumed, in filling in the medical certificate, that if the Applicant was returned to work he would be reassigned before long to his assumed normal duties and would not be given any opportunity for physiotherapy. The following exchange took place between the Commission and Dr Roudenko in this regard: " Now, could I just stop you there. Could I just ask you - and you're talking to someone who doesn't know what goes through a doctor's mind when he fills in these forms, so that's what I'm really looking at. When you ticked the box, you were given some options there about restricted duties, partial return and so forth. What was in your mind? Why didn't you tick one of the other options then? Why did you tick "totally incapacitated"?---Mainly to allow the disc injury - he'd suffered a disc injury, a disruption to his disc; it was bulging. The bulging disc was now pressing bilaterally on the nerve roots. I saw here a time bomb ready to explode. I just felt that he needed a month with relatively little exercise, just stuff that he could do at home with variation, if he needed rest, etcetera, not to expose him to anything that would basically explode that time bomb and end up with a disc disruption or a disc prolapse, which would then have to go on to surgery and far more heavy treatment. So basically I was thinking of the severity of his job. I was thinking of the particular diagnosis with the disruption to his disc, the pressure that was already being exerted on his nerve endings, or the roots, and that was sort of beginning to spay a bit of pain down his left side towards his knee. I saw a potential that things could get worse if he continued doing repetitive bending and lifting. And also it was felt, I think, in discussion with the patient, that Qantas performances were such that they tended on past history - this is relating from the patient - that they would - - - No, I think we're heading into hearsay?---Yes, unnecessary, okay. We're heading into some hearsay here?---He was afraid that he would end up shortly or too soon back in his own job. That was the fear from his point of view, and I concurred that a month off with physio and mild exercises guided by professionals and graduated would be a reasonable course of action. So are you saying that wouldn't fit any of the boxes that deal with ticking the box, for example, in respect of, "Fit for suitable duties on a restricted return basis," and ticking the box regarding restricted duties, no lifting, no bending, and so forth? You didn't find ticking those boxes relevant?---At the time I didn't, no. I just wanted to give him the month off so that he could undergo physiotherapy. You know, in retrospect, it's possible that, you know, with another course of action that we could have done that and allowed him to do that. I was afraid that then he wouldn't have enough time to visit physiotherapy and just have enough time for healing. Have you been involved in very many worker's compensation matters and graduated return-to-work programs?---We do get our fair share, yes. I have been involved " 28 . [74] On this basis, Dr Roudenko provided a `totally incapacitated' medical certificate to the Applicant. [75] In his witness statement, Dr Roudenko further deposed: " During the first and second consultations the nature of his work duties emerged. I gathered that his job entailed loading and unloading aeroplane baggage with fast turnarounds, which required extensive manual handling. My thinking at the time was to get him out of the job or he was going to end up in a much worse condition, and he would then possibly be looking at surgery. As part of my clinical practice, it has been my experience that when patients present with acute spinal pain and there are signs of nerve root impingement that time off is required. I determined that he ought to have a month off. Uppermost in my mind were the sorts of duties that he had been doing. In my years of practice once or twice patients have insisted on going back to work and they end up coming back with worse symptoms. I wanted to avoid this for Mr Meyer. Absolute rest is not part of the treatment picture these days. In the last 4-5 years we have moved away from inactive rehabilitation to active rehabilitation. I discussed these matters with him. In the course of such discussion I would have warned him of the worsening of his condition if he maintained his trajectory of profession. Rest and light movement and exercise was counselled. " 29 [76] Later in his witness statement, Dr Roudenko recounted the following: " On my first compensation certificate of 20/09/02, I gave him one month "total incapacity" to allow for settling of the L4/5 Disc injury which was radiating discogenic pain down to his left knee. What I was saying in effect was that he was totally incapacitated from doing his gruelling fast turn around aeroplane baggage job for approximately 8 hours a day, which involved heavy lifting, bending, twisting and throwing baggage often in difficult and confined spaces. I thought that he could perform load-carrying tasks individually, but my concern was to ensure that he did not need to perform such duties for long periods. The shearing forces on the low back associated with protracted episodes of bending, lifting and twisting were to be avoided, due to the prospect of re-injury. He needed time for his back to settle and to get involved in a back-strengthening programme by a Physiotherapist, which I referred him to. It was my view that based on the CT Scan report and his initial symptoms and the rate at which they began to abate with relative rest and mild exercise that there was no need at this juncture to involve an Orthopaedic Specialist, nor was he a candidate for surgery but rather he would settle with conservative measures like analgesics, rest, variation of posture and mild exercise. When I gave him the initial certificate for one month off, Mr Meyer made a comment to me based on his knowledge of internal Qantas politics that "the shit will really hit the fan" and it turns out his prophetic utterance has in fact come true. I had explained to him that even at the end of his period of recuperation and Physiotherapy he really will never be able to go back to his heavy baggage handling job and that he needs to consider a career change to lighter work forever, otherwise he is only inviting more serious complications to his back. " 30 [77] Under cross-examination by Counsel for the Respondent, Dr Roudenko stated: " Now, you've provided a medical certificate for Mr Meyer on 20 September and that document is the one that Mr Franco has taken you to a moment ago attached to your statement. And in that certificate, the one dated the 20th of the 9th, you have certified that Mr Meyer is totally incapacitated for work from 18 September to 18 October?---Yes. Do I take it from your previous answer that when you certified total incapacity you meant from his job as a baggage handler?---That is correct. Does that mean, Dr Roudenko, that you did not have in mind that Mr Meyer should not perform any work at all during that one-month period?---That is correct, yes ." 31 [78] Dr Roudenko's evidence is not without ambiguity. Despite this, it is not evident to the Commission that the Applicant misconducted himself in misrepresenting the intention of Dr Roudenko's medical assessment or the terms of the medical certificate as supplied. That is, on the evidence before it 32 , the Commission can only infer that Dr Roudenko reached his own conclusion, for better or worse, and left the Applicant with the very real impression that he was to have a month off work: "Thank you, doctor. When you provided the certificate certifying Mr Meyer was totally incapacitated from 18 September to 18 October, was it your intention that he have a month off work?---It was basically, yes. Was that what you conveyed to Mr Meyer?---Yes. He - of course, to have physiotherapy to replace that time." 33 [79] Having found that the Applicant properly believed himself to have been advised by his treating medical practitioner not to attend work for one month, what course of action should he have taken? The answer to this resides in Qantas' own policy regarding employees who hold medical certificates indicating that they are totally incapacitated, which was expressed by Mr Urquhart under cross examination: " But while you're aware that an employee is certified as being totally incapacitated, you would not allow him to return to work?---No, not on the premises, no. " 34 [80] Can it be found that the Applicant misconducted himself by providing intentionally misleading information to his treating medical practitioner as to his normal duties, which led to him being issued by contrivance a medical certificate in which the breath of terms was not warranted? [81] On the basis of his evidence, it can be reasonably inferred that Dr Roudenko assumed that the Applicant's duties consisted of a level of intensity, duration and type that may not have accurately reflected reality 35 . [82] Dr Roudenko submitted under cross-examination that the Applicant was his sole source of information regarding the job duties and responsibilities at Qantas. However, elsewhere in his evidence, Dr Roudenko evinced a predetermined view about Qantas and its alleged `background politics' that affects its return to work practices 36 . [83] At another point in his evidence, Dr Roudenko simply asserts that on the basis of his medical assessment, he intended to provide the Applicant with a month off work, seemingly irrespective of what his normal duties may have entailed, and subject only to the requirement to undertake physiotherapy. [84] In all, there are no grounds on which it can be claimed that the Applicant set out to misinform his treating medical practitioner about what his normal duties may have entailed. [85] On the basis of the evidence before the Commission, the related question must be asked as to whether there is a basis on which to conclude that the Applicant misled his treating medical practitioner and physiotherapist about the extent of the injury he had sustained on 13 September 2002. That is, did the Applicant mislead his treating medical practitioner and /or his physiotherapist as to the scope of his physical capacities following his injury? [86] There was no evidence led over the course of the proceedings that this was the case. Dr Roudenko determined the Applicant's injuries to be genuine, and his treating physiotherapist concurred: "This is not one of those cases where the patient's movement improved with distraction. There were no signs of that on any testing, nor have there ever been." 37 [87] Dr Roudenko also affirmed under cross-examination that none of the movements that were exhibited in the video surveillance had been inconsistent with original diagnosis 38 . [88] Nor can it be contended that the Applicant misled either or both his treating medical practitioner and his physiotherapist as to his capabilities. From 20 September 2002, the Applicant presented to Dr Roudenko with an undisguised and observably improved condition from that of the 18 September 2002 39 . Nor did he conceal from his treating medical practitioner that he had worked after the 13 September 2002, the date on which the injury had been sustained. [89] Notwithstanding the terms of the medical certificate with which he was provided on 20 September 2002, did the Applicant have an obligation to report his personally perceived capabilities at or after 20 September 2002 to Qantas, and seek to participate in the return to work programme? [90] In the Commission's view, there was no formal obligation on the Applicant to effectively second-guess or challenge his treating medical practitioner. The Applicant did not conceal his improved condition and it was unlikely, given his evidence, that Dr Roudenko would have reviewed his original diagnosis until the 18 October 2002 in any event. [91] The Commission cannot identify in the Applicant's conduct an intention to mislead his employer. The Applicant did not conceal his condition on 17 September 2002 or 25 September 2002 when he returned to his work premises. He did not evade the option of returning to work, albeit on alternative, lighter duties, from an early point after his treatment had commenced. He spoke relatively often to various persons at the workplace in positions of authority about his circumstances and did not reveal any systematic intention to misrepresent himself over the course of so doing. In the Commission's view, the Applicant's behaviour simply conformed with that of a person who believed he had no obligation to work for reason of the stark terms of the medical certificate that had been issued to him. [92] The Commission accepts that the Applicant is likely to have said to Mr Alan Burke on 23 September 2002 that Dr Roudenko had told him to "lie flat on has back". But on its own, this evidence does not sway the Commission from its view, and, in any event, may have been used as a simile, perhaps even as an hyperbole, or in some other loose way in a textured and informal discussion. [93] In view of these considerations, the Commission is not of the view that the allegations against the Applicant, that he had seriously misconducted himself, have been made out. For this reason, the Commission does not find that the Respondent had a valid reason for terminating the Applicant's employment. Section170CG(3)(b) Whether the employee was notified of that reason [94] The Commission considers that the Applicant was provided notice by the Respondent in a manner that satisfies the Act's requirements. In the Commission's view, it is not relevant that the notice was provided to the Applicant's solicitors 40 . Section 170CG(3)(c) Whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee [95] The Commission is of the view that the Applicant was provided a more than reasonable opportunity to respond to the allegations that were put to him, through his solicitors. Section 170CG(3)(d) If the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination [96] This provision does not have relevance in relation to a termination for reason of serious misconduct. Section 170CG(3)(da) The degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination [97] There was no contest between the parties in relation to this ground, and the Commission's finding in relation to this provision is in neutral terms. Section 170CG(3)(db) The degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination [98] There was no contest between the parties in relation to this ground, and the Commission's finding in relation to this provision is in neutral terms. Section 170CG(e) Any other matters that the Commission considers relevant [99] The Applicant submitted, as outlined above, that the Respondent delayed for a considerable period before providing the Applicant with a separation certificate, which is a prescribed document to be provided to a ceased employee to enable the claim and collection of a Centrelink benefit. [100] The Commission is satisfied that these delays were based on grounds of express company policy in relation to the return of company property. The Applicant did not challenge this reply provided by the Respondent. [101] The Commission also considers that the Applicant's conduct in not reporting directly to Mr Urquhart upon receipt of his medical certificate, if not earlier, gave rise to a suspicion as to his conduct. The Applicant was demonstrably aware of the Qantas return to work and rehabilitation programme. The Commission is left in no doubt that the Applicant viewed Mr Urquhart in an unfavourable light and sought to avoid contact with him, until he presented his medical certificate on 25 September 2002. [102] The Commission is also conscious that Mr Urquhart, as Qantas' workers compensation manager for Queensland, telephoned Dr Roudenko on 25 September 2002 or thereabouts to inquire into the Applicant's medical certificate. However, on his own evidence, Mr Urquhart did not use this opportunity to seek to question the doctor as to the meaning of `totally incapacitated', even although the very issue was challenged within Qantas at that time. [103] In a common sense world, the Commission would have assumed Mr Urquhart may have probed Dr Roudenko about the terms of the medical certificate and perhaps even have had the Applicant referred to its own medical practitioner for re-assessment. If these steps had been taken, the matter may have taken a different course. Conclusion [104] In Windsor Smith v Liu and others, a Full Bench of the Commission said: "Under the Workplace Relations Act 1996 the principal question is whether the termination was harsh, unjust or unreasonable. In considering that question the Commission is to ensure that a " fair go all round" is accorded to both the employer and the employee concerned." [105] The expression `a fair go all round' appears in section 170CA(2). Section 170CA(2) provides: "The procedures and remedies referred to in paragraphs (1)(a) and (b), and in the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a `fair go all round' is accorded to both the employer and employee concerned." [106] Having regard to such an approach, the Commission determines that the Applicant's termination by the Respondent was harsh, unjust or unreasonable, in that there was no valid reason for the termination. [107] The Commission will shortly issue Directions seeking submissions form the parties as to remedy, pursuant to section 170CH of the Workplace Relations Act 1996 (Cth). [108] The parties are invited, at first instance, to effect a settlement at their own initiative in relation to remedy. The parties are asked to inform the Commission as soon as is possible that any such discussions are in train, and how much time they may require. BY THE COMMISSION: COMMISSIONER Appearances: Franco P of Counsel appeared for the Applicant, instructed by Carter Capner Solicitors; McKenzie H, Solicitor, of Blake Dawson Waldron appeared for the Respondent. Date and place of hearing: Brisbane; 12, 13, and 14 May 2003 Printed by authority of the Commonwealth Government Printer <Price code F> 1 See Exhibit A1 in these proceedings, witness statement of A Meyer at PN 90 2 See Exhibit A1 in these proceedings, witness statement of A Meyer at PN 91 3 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 6 4 See Transcript of these proceedings at PN 348 to 349 5 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 7 6 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 9 and 10, and attachments. 7 See Exhibit A1 in these proceedings, witness statement of A Meyer at PN 103 and witness statement of Dr A Roudenko at PN 15 8 See Exhibit A1 in these proceedings, witness statement of A Meyer at PN 105 and Exhibit R3 in these proceedings, witness statement of A Burke at PN 6 9 See Exhibit R3 in these proceedings, witness statement in reply of C Urquhart at PN 5 10 See Exhibit R3 in these proceedings, witness statement in reply of C Urquhart at PN 4 11 See Exhibit A1 in these proceedings, witness statement of A Meyer at PN 100, which was unchallenged 12 See Transcript of these proceedings at PN 468 13 See Exhibit R3 in these proceedings, witness statement in reply of A Burke at PN 6 14 See Transcript of these proceedings at PN 592 to 594; see also Exhibit A1 in these proceedings, witness statement of K Mitchell at PN 5 and 10; and, for comparison, Exhibit R3 in these proceedings, witness statement in reply of A Burke at PN 6 15 See Exhibit R3 in these proceedings, witness statement in reply of A Burke at PN 6 16 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at page 11, letter dated 16 October 2002 17 See Exhibit R3 in these proceedings, witness statement in reply of C Urquhart at PN 7 18 See Transcript of these proceedings at PN 186 19 See Exhibit R3 in these proceedings, witness statement of A Burke at PN 13 20 Exhibit R2 in these proceedings 21 See Exhibit R3 in these proceedings, witness statement of S Woodroffe, attachment C. See also Exhibit A1 in these proceedings, witness statement of A Meyer, attachment APM3 22 See Exhibit A1 in these proceedings, witness statement of A Meyer, attachment APM8 23 See Exhibit A1 in these proceedings, witness statement of A Meyer, attachment APM8. See also Exhibit R3 in these proceedings, witness statement of D Politis, attachment APM 24 See Transcript of these proceedings at PN 1645 - 1651 25 See Exhibit R3 in these proceedings, witness statement of D Politis, attachment C 26 See Exhibit R3 in these proceedings, witness statement of S Woodroffe at PN 4 - 6 27 Print S4213 28 See Transcript of these proceedings at PN 1953 - 1957 29 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 7 - 9 30 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 12 - 16 31 See Transcript of these proceedings at PN 880 - 882 32 See PN 80 - 89 of this Decision, below 33 See Transcript of these proceedings at PN 975 - 976 34 See Transcript of these proceedings at PN 1060 35 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 12. Compare with the unchallenged evidence of Exhibit R3, witness statement in reply of D Politis at PN 3 - 13 36 See Transcript of these proceedings at PN 870; see also Exhibit A1, witness statement of Dr A Roudenko at PN 5 37 See Exhibit A1 in these proceedings, witness statement of K Mitchell at PN 9; see also Transcript of these proceedings at PN 1184 - 1190 38 See Transcript of these proceedings at PN 905 and 909; see also Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 20. See also PN 6 at page 11 of the same witness statement 39 See Exhibit A1 in these proceedings, witness statement of Dr A Roudenko at PN 8. 40 See PN 6 of this Decision, above