C2003/2498, Transcript of Proceedings [2003] AIRCTrans 5611 (15 December 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 1968

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT IVES
COMMISSIONER CRIBB

C2003/2498

APPEAL UNDER SECTION 45 OF THE ACT
BY QANTAS AIRWAYS LIMITED AGAINST
DECISIONS AND AN ORDER MADE BY
COMMISSIONER RICHARDS AT SYDNEY ON
30 JUNE 2003 (DECISION - PR931652) AND
24 SEPTEMBER 2003 (DECISION - PR938513
AND ORDER - PR938523) RE TERMINATION
OF EMPLOYMENT

BRISBANE

10.06 AM, WEDNESDAY, 3 DECEMBER 2003

PN1

SENIOR DEPUTY PRESIDENT HARRISON: May we have the appearances in this matter?

PN2

MR H. DIXON: I seek leave to appear for the appellant in this matter.

PN3

SENIOR DEPUTY PRESIDENT HARRISON: Mr Dixon.

PN4

MR L. DUFFIN: I appear on behalf of the respondent in this matter. With me is MR D. PRIOR.

PN5

SENIOR DEPUTY PRESIDENT HARRISON: Any difficulty with leave being granted to Mr Dixon?

PN6

MR DUFFIN: No, your Honour.

PN7

SENIOR DEPUTY PRESIDENT HARRISON: Yes, leave is granted. Mr Dixon?

PN8

MR DIXON: If the Commission pleases, this is an appeal against a decision and orders of the Commission of 30 June 2003 and 24 September 2003. The reasons for decision of Commissioner Richards of 30 June 2003 are to be found in appeal book 7 and following, that in that decision the Commissioner made findings of unfairness in respect of the dismissal of the respondent, Mr Meyer. There were then separate proceedings in respect of what was the appropriate remedy, and after a hearing, the Commission handed down the decision of 24 September 2003 concerning remedy, and that is to be found in volume 2 of the appeal book at page 510 and following.

PN9

The appeal book volumes, if I may briefly attend to a housekeeping matter, do contain references to material to be provided. I've had a very brief discussion with Mr Duffin about that this morning, given the way in which the appeal grounds are now being pressed, some of that material, at least in my submission, is not relevant and ought not to trouble the Full Bench, but for completeness, perhaps I should hand up a summary of arguments that was presented to the Commission which ought to be item 17 of the first appeal book. With the Commission's leave, may I hand up that document? It should form part of the first volume of the appeal book at page 384.

PN10

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN11

MR DIXON: Outline of submissions have been filed. I apologise for the Commission's timetabling not being met strictly, but there was, unfortunately, an administrative hiccup that caused that delay, and also in respect of our list of authorities - we hope in respect of the list of authorities that we can make up for the omission that occurred by providing relevant copies to the Commission and I will do so in a moment when I come to address the relevant cases to which we wish to refer.

PN12

May I, however, draw attention to our outline of submissions? The Commission will see that Qantas argues that the appeal concerns, essentially, the following two issues: firstly, the true nature of the remedy and power available under Section 170CH of the Act; and, then, secondly, whether the Commission at first instance erred in exercise of its power under Section 170CH(3) being the reinstatement power. It is my respectful submission that each of the issues are matters of importance, and do give rise to public interest considerations in circumstances where even the Commission at first instance expressed the approach adopted to be novel, and in those circumstances, and for the other reasons that we advance, and I will address this in more detail later, we respectfully submit that leave to appeal should be granted.

PN13

May I very briefly, before developing the argument, remind the Commission just what the issues were at first instance? In September 2000 the respondent - sorry, the respondent was employed as an airport services officer. His principal duties were, effectively, that of baggage handler at the Brisbane airport. He worked on a particular Friday and over the weekend; later he presented himself to a medical practitioner during the course of the following week with back pain and discomfort. On or about 25 September 2002, he presented Qantas with - I think I've got that date right, I'll double check it - he presented Qantas with a medical certificate; that is referred to in the Commission's first decision at appeal book 9, paragraphs 13 and following, and it was September 2002.

PN14

The respondent submitted that medical certificate. The medical certificate indicated that the respondent was totally incapacitated for work during the period from 18 September 2002 until 18 October 2002, as is recorded in the Commission's first decision at appeal book 9, paragraphs 13 and 14. The appellant, because of information received by it, was not accepting of the position that there was total incapacity, and that view was formed largely by reason of actual observations of the respondent shortly after he allegedly injured himself, and also from surveillance material that was gathered after those initial observations.

PN15

An investigation followed; Qantas formed the view that Mr Meyer had not complied with its policies to be followed in such circumstances, and that it had been misled in respect of the level of incapacity which the respondent was claiming. Those investigations led to the termination of his employment and contract for misconduct. The views in respect of the surveillance material were formed on a report obtained, which one would find at appeal book 2, page 398, a video recording and transcription of a range of activities undertaken by Mr Meyer during the period that he claimed that he was totally incapacitated. The Commissioner at first instance had some things to say about that to which I will return shortly.

PN16

There was an issue about the meaning of the medical certificate issued to Mr Meyer at the time. The doctor that he saw was a Dr Roudenko, R-o-u-d-e-n-k-o. It was he who certified total incapacity and Mr Meyer had also made certain representations, as found by the Commission, about his diagnosis to the effect that he had to be flat on his back. The Commission will see part of this history also at page 12 of the appeal book, from paragraph 29 and following, from the Commission's first decision. I do not need to deal with that in any significant detail, but may I just briefly touch on some of the paragraphs, because they may assist the Commission in understanding some of our later submissions.

PN17

Paragraph 34 on page 12 notes the events of the 17th - that should read September 2003. Then there was some medical testing undertaken. Paragraphs 47 and 48 deal with when Mr Meyer contacted Qantas. You will note that the Commission records what the respondent contended that the applicant had said, in paragraph 47. The applicant claimed that he had said something different but the Commission preferred the appellant's version, evidence in respect of a particular conversation.

PN18

Then at 57 and onwards, the Commission dealt with the investigation and termination. And at paragraph 65, the Commission went on to consider whether the conduct which the appellant complained of was serious misconduct as it alleged; and in 67 through to 71, made some observations. May I at this point just draw the Commission's attention to those passages. It might save time at a later stage. The Commission concluded that, on the face of it, it was understandable that information from the applicant - at present, respondent - that he had a serious back injury that would incapacitate him for at least one month, followed by observations, etcetera, provides fertile ground for suspicion to take root.

PN19

In paragraph 68, the Commission commented that the applicant was unambiguously aware of Qantas' return to work program. In 69, the applicant compounded the respondent's suspicion by not notifying them of his injury quickly and formally, as to the appropriate reasons. He evaded Mr Urquhart - the Workers Compensation manager to whom he should have reported at first instance, in accordance with the Qantas return to work program, of which he was unambiguously aware. And the Commission in 70 again says - accepts that in his conversation with Mr Burke on 25 September, the applicant is likely to have used the words to the effect that Dr Roudenko told him to, "lie flat on my back."

PN20

The Commission's conclusions start at paragraph 104. He made reference to Dr Roudenko's evidence at paragraph 78 that it was not without ambiguity, but the conclusions are at 104, and following, where the Commission concluded, having earlier made findings and drawn conclusions, that despite the uncertainties and the like, Qantas have not made out the requisite misconduct, either misconduct in misleading Qantas directly, or misleading Qantas through Dr Roudenko, in respect of representing to Dr Roudenko matters that were not sustainable. So as a result, the Commission found that the dismissal was contrary to the Act, and invited the parties to return to deal with the question of remedy.

PN21

At the hearing, the Commissioner asked the parties to defer submissions on the question of remedy, saying that he preferred a course which he would decide the principal issue, and then he would ask the parties, if necessary, to address the question of remedy. After the decision finding, that the dismissal was unfair, written submissions were then made, and on the question of remedy, those filed on behalf of the applicant at first instance, Mr Meyer, will be - are at appeal book 2, page 575, which is behind tab 34, if the appeal book, Commissioner, is also tabbed.

PN22

It is significant, in my submission, that the respondent did not seek reinstatement to his original position. And that is an important element, as we will seek to show in our argument. At appeal book 577, in paragraph 11, in the submissions the applicant said that he sought an order from the Commission for reinstatement to another position pursuant to Section 170CH(3)(b) of the Act on terms no less favourable than those on which he was employed immediately before the termination.

PN23

Paragraph 16 emphasised that the applicant was capable of returning to suitable duties as an ASO, but not the former duties associated with ASO that involved the physical act of stooping to load and unload aircraft, which is part of the job. And in 18 - sorry, in 22, it was submitted that the applicant did not believe that reinstatement to an alternative position would adversely affect the respondent's business - obviously with a view to some of the criteria which had to be addressed in the exercise of granting a remedy. And at 28, the applicant believes that an alternate position exists with the respondent.

PN24

Now, the appellant's response and submissions are found at page 596 and following; and I don't go to them now, other than to indicate to the Commission that they obviously were responding to the claim that the applicant should be reinstated into a different position on the same terms and conditions as he was previously employed. Before dealing with the Commission's decision on remedy, may I refer to and also highlight a number of matters: the first is that Qantas does not press its challenge - or pursue its challenge to the determination of unfairness, as we have outlined in - at paragraph 4 of our outline of submissions. The appeal thus raises, essentially, only the two issues outlined in paragraph 1 of our submissions.

PN25

However, the position as outlined in paragraph 5 of the appellant's submission is important in respect of an understanding of the position Qantas found itself in; and B, in respect of the determination of the appeal. Qantas submits that the respondent claimed and continued to claim that he was not capable of performing the duties and requirements of the position in which he was employed prior to his dismissal, as a result of injury. It is also important to note that Qantas did not dismiss the respondent because of that incapacity. As I have sought to outline briefly earlier, Qantas believed that it had been misled, and that there was misconduct, so it terminated the contract and employment by reason of misconduct.

PN26

So this is not a case where Qantas, by its conduct, was dismissing someone by reason of an injury. It is also important in that regard, in my respectful submission, to bear in mind that the incapacity which prevailed really only becomes apparent after the termination. The initial medical certificate had certified total incapacity for a month, and then after that period, there was a possibility of a return to work on more limited duties. But the total incapacity - which we say is evident on the evidence - of course, becomes apparent later: from Mr Meyer's own evidence that he eventually gives in his witness statement, and in cross-examination; secondly, from the evidence that he calls at first instance to support the position that he was totally incapacitated to perform the full duties of the original position; and thirdly, from the submissions that are put on his behalf.

PN27

So that the incapacity is a position that reveals itself at a later stage, and the incapacity was not the unfairness which deprived the applicant of his position. Those were separate issues, because the Commission made a determination that it was the dismissal for misconduct which was the relevant unfairness. The medical evidence and other evidence called by the respondent at the hearing was to the effect that he should never again perform the duties associated with his former position of Airport Services Officer. May I, as briefly as I can, just highlight some of the relevant evidence - or relevant evidence on that issue, as set out in subparagraph 5.3 of our outline.

PN28

The witness statement filed on behalf of the applicant, or by the applicant in the first instance, at 271 of Volume 1 of the Appeal Book, this was in April 2003 was to the effect as set out in paragraphs 57 to 62 that the applicant was only able to perform limited physical duties for a limited period of time. That is at page 271, your Honour. That was the initial written evidence put forward by Mr Meyer.

PN29

Then at page 312 is the statement provided by Dr Roudenko dated 10 April 2003, at 312, at paragraph 12. The Commissioner will see that Dr Roudenko said:

PN30

What I was saying in effect was that he was totally incapacitated from doing his gruelling fast turnaround aeroplane baggage job for approximately eight hours a day.

PN31

SENIOR DEPUTY PRESIDENT HARRISON: Where is this, Mr Dixon?

PN32

MR DIXON: It is at paragraph 12 at page 312, sorry.

PN33

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN34

MR DIXON: Dr Roudenko then went on to say:

PN35

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 of the low back associated with protracted episodes of bending, lifting and twisting were to be avoided due to the prospect of re-injury.

PN36

As I will show later, Mr Meyer had a history of, if I could put it as neutrally as I can, back problems or issues. At paragraph 16 on page 312, Dr Roudenko said:

PN37

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.

PN38

At paragraph 17 at Appeal Book 313 it was said:

PN39

He expressed his keenness for a lateral shift to permanently lighter work by discussing this with Qantas officials within days of my first seeing him, but there was no offer of a light job, as I understand it.

PN40

And then at 314, paragraph 25:

PN41

On 18 October I declared him fit to return to suitable duties, but no heavy lifting of baggage on a repetitive basis.

PN42

At 325 there was additional material put on from Dr Roudenko. This is a position in December 2002, and at 325 Dr Roudenko emphasised the position. He said:

PN43

My message was that he was never to return to his former gruelling job for fear of quick return of symptoms with a real danger of progression of damage ultimately for back injury.

PN44

Mr Meyer also had another treating doctor over a period of time, a Dr Kelly. His statement appears at page 358 and following, and one will note that going back to 1990 Dr Kelly set out consultation details, boat injury in 1992, and so on, digging in the garden. But I don't need to go into all of those at this point in time, other than to ask the Commission to turn to page 368. Having obviously a detailed knowledge of Mr Meyer's physical capacity, Dr Kelly, at 368 paragraph 13 and following, says:

PN45

I was informed that the 13 September 2002 injury involved the lower spine. My opinion as stated above was that further injury was inevitable should he continue in the heavier aspects of his job, including baggage-handling. This has now transpired.

PN46

And then in 15:

PN47

Generally it is unwise to return to heavy work because of a disc bulge injury might worsen -

PN48

etcetera. So it is our submission that Dr Kelly's evidence was entirely consistent with that of Dr Roudenko that Mr Meyer should never return to the original position because he was incapable of performing all the tasks associated with that position. If I may then turn to some of the oral evidence, again in Volume 1, the transcript appears after 3, starting at page 28, but I wish to turn first to page 66 of the Appeal Book, paragraph number - I am sorry - 67. I need to - I am sorry I need to go back one earlier, to paragraph number 387 which appears at the top of

PN49

page 63.

PN50

Mr Meyer has been cross-examined, At paragraph 387 and 388 Mr Meyer effective confirms the position that his advice was that he should not go back to loading planes on a permanent basis. Then at paragraph 435 and 437 at page 67 Mr Meyer says that he loved his job with Qantas but he had been told that he should - his doctor had said he did not want him there loading planes. At paragraph 569 to 570 at Appeal Book 79 where Mr Meyer testified about his desire to want to return to alternative duties, but there he was talking about another job, a job permanently of a different nature, and not ever going back - that is the inference we seek that was clearly open to the original position.

PN51

At paragraphs 795 to 796 - this is at Appeal Book 98 - which is material in re-examination, confirming that Mr Meyer had a desire to do other jobs, if he was trained, in everything bar getting in the 737s and crouch down, which he is obviously referring to the part of the job that he was previously employed in.

PN52

Then at paragraph 897 and 898, we have Dr Roudenko - this is page 108 of the appeal book. At paragraph 897 he confirms that he asked him not to go back to the work at all, to be looking for a career change, and he's asked whether that is his view now, is he permanently unable to do the work of a baggage handler, the full range of duties of his pre-injury job, and he says, "Yes." No qualification is put on that; no suggestion made that at some future point in time that would alter.

PN53

At 901 and 902, the evidence is to the same effect, and page 111, paragraphs 919 to 921, where Dr Roudenko re-emphasises that it was always his advice that he look for a permanent lateral shift in his career. 940 to 943, to the same effect, and then at appeal book 114, paragraphs 952 to 954, Dr Roudenko emphasises that he kept reiterating that his days of baggage handling were over, and it was in that context that he issued the certificate of total incapacity.

PN54

At paragraph 1000 - I think it's fair to say that Commissioner Richards had some difficulty in some aspects of Dr Roudenko's evidence about his initial statement of permanent incapacity, and so that one finds in the transcript the Commission asking Dr Roudenko to return some time by phone to come and answer some further questions to clarify matters. But at paragraph 1000, at page 118, in response to answers from the Commission, he again says, "I don't think he's suited to do heavy baggage handling", and that, of course, is consistent with the position that was put by - on behalf of Mr Meyer in the written submissions to which I referred to earlier at page 577 of the appeal book.

PN55

There is also, in this context, of course, the issue of an employer's overall responsibilities to the safety of employees. The Commission would be familiar with their statements to that effect. I've extracted from Macken's 5th Edition the Law of Employment, a summary of the relevant cases about the duty to ensure a safe working environment, and also not to expose an employee to risk. I've got a copy of that extract, pages 122 through to 123. I won't need to take the Commission to those passages at the moment, but may I emphasise this, in respect of the evidence to which I've just referred. This was evidence which the respondent sought to rely on at the hearing of the merits, and at the hearing concerning remedy.

PN56

At no stage did the respondent disavow the veracity of his evidence or suggest that it could or should not be relied upon. At no stage was it suggested that his incapacity to do the work, associated with his position, would or was likely to change, and in that regard, Qantas submits that he represented a very firm and clear position to the Commission and to Qantas. His incapacity justified his earlier conduct, so he argued, of staying away from work for a full month. His incapacity was permanent, so it was argued, and it was clearly put that he should never return to his original position.

PN57

That has obvious implications for any workers' compensation claim being pursued by the respondent, but it's in that context, and given the employer's obligations not to cause injury to an employee, that there seems to have been some shift, and Qantas admits that the respondent should not be permitted to depart from the position he relied upon, and put forward as he has sought to do, a position which is inconsistent with the very clear evidence led by him and on his behalf.

PN58

May I then return to the outline of submissions. In paragraph 6, there is set out the provisions of subsection (3) of Section 170CH. The Commission is familiar with that section. It distinguishes between reinstatement either by reappointment to the position, or reinstatement by appointing the employee to another position. It's submitted that the Commission does have a discretion to exercise the power to make an order but that discretion can only be exercised in favour of a reinstatement order if the Commission considers it appropriate.

PN59

The Commission must thus form the positive view or conclusion that in all that is appropriate, and unlike the situation which prevailed earlier, reinstatement is no longer the primary remedy, although it's obviously the remedy that must be looked at first, which is made clear in the decisions which I refer to in subparagraph 2, Australia Meat Holdings v McLaughlin, and Wark, W-a-r-k, v Melbourne City Toyota. The Commission is also familiar, no doubt, with the High Court's view about how a power of reinstatement should be exercised, namely, with caution, in Slonim v Fellows at 515, that was emphasised.

PN60

In returning to an analysis of the subsection, the position is thus, that the Commission can reinstate to the position, or to another position, and the hierarchy of those remedies are referred to in Henderson v Department of Defence, a Full Bench decision, which has been referred to in paragraph 8. It's respectfully submitted that the section recognises that it may not be appropriate to reappoint the employee to the position in which he or she was employed immediately before the termination. Thus, for example, if the employee is incapable of performing the duties associated with a position, or it is impossible to restore the employment, and/or contractual relationship, it would not be appropriate to reappoint the employee to that original position.

PN61

There have been various cases that have looked at what is meant by the term "reinstatement". Perhaps I can try and distil some of those comments by taking the Commission to some of the decisions which deal with the matter. May I first turn to the Retail Traders' Association decision which is in a volume of cases. These are the bundles of cases which I referred to earlier.

PN62

SENIOR DEPUTY PRESIDENT HARRISON: I won't mark these, Mr Dixon, but I might take the opportunity to mark your outline, which I omitted to do earlier. We'll make that Q1, and the extract from the Law of Employment, Q2.

EXHIBIT #Q1 APPLICANT'S OUTLINE OF SUBMISSIONS

EXHIBIT #Q2 EXTRACT FROM MACKEN'S 5TH EDITION OF LAW OF EMPLOYMENT

PN63

MR DIXON: Thank you, your Honour. The facts in the Retail Traders' Association were very unusual, but I don't want to take the case - the Commission to that case because of any similarity in the facts. It's reported at 36 IR, and in the judgment of Vice President Cahill of the New South Wales Commission, at page 44, his Honour refers to the submissions on behalf of the appellant as to what the meaning of reinstatement is. In the second paragraph he submitted that:

PN64

An application for reinstatement is to be determined based on the facts as they exist at the time -

PN65

etcetera. Then, at about point 7 on the page:

PN66

Reinstatement proceedings were concerned with the restoration of a contract for personal services. The impossibility of a person to perform such duties must surely be a bar to the successful reinstatement application.

PN67

etcetera. Those are the submissions that are being put, and his Honour then at 46.6 says:

PN68

My conclusion in this regard is based on my view of what is encompassed within the term "reinstatement" in an industrial sense. I consider that the term essentially and fundamentally requires that the employment relationship formerly existing between the employer and employee can, as a matter of reality, and not in some notional or fictional way, re-established.

PN69

May I pause there. His Honour was, of course, referring to a deceased employee there, but the concept of notional or fictional way finds support in other decisions in a more general sense which we seek to rely on. His Honour said:

PN70

If that result is not possible of achievement there can be no reinstatement because there can be resumption of the employer/employee relationship which was previously severed.

PN71

Then he goes on to refer to Sheraton and other cases. It's of course important to bear in mind the distinction between contractual relationship and the employment relationship. A relevant consideration, a relevant consideration, in my respectful submission, when one is looking at the concept of the statement. The distinction to which I've just referred is reaffirmed in the decision of the High Court in Byrne v Australian Airlines, which somehow has ended up in the same tab, I think, of your Honours' and Commissioner's bundle. It's the decision reported in volume 185 CLR 410.

PN72

And the question which Brennan, Dawson and Toohey JJ were addressing at 426, 427 is whether there was in fact a distinction between the contractual relationship and the employment relationship, a debate that had raged for some time because of the decision of Automatic Fire Sprinklers v Watson. So at 426 at point 5 their Honours refer to - - -

PN73

SENIOR DEPUTY PRESIDENT HARRISON: I don't have a 426.

PN74

MR DIXON: It doesn't appear to be in this - - -

PN75

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I do. I've just relied on the usual way I count, Mr Dixon.

PN76

MR DIXON: Your Honour, perhaps all I can say is that it was not I.

PN77

SENIOR DEPUTY PRESIDENT HARRISON: No.

PN78

MR DIXON: But that's not a reasonable defence, I know.

PN79

SENIOR DEPUTY PRESIDENT HARRISON: No, no.

PN80

MR DIXON: I'm sorry about that, your Honour.

PN81

SENIOR DEPUTY PRESIDENT HARRISON: No problems. Remind me again where I should be? 426?

PN82

MR DIXON: At 426.

PN83

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I have that.

PN84

MR DIXON: Automatic Fire Sprinklers v Watson. Their Honours refer to the appellant's final submission where they contended that:

PN85

Even if they had no claim for damages based on the breach of a term of their contract ...(reads)... the appellants referred to the decision of this Court in Automatic Fire Sprinklers v Watson.

PN86

At 427 after referring to a passage of Dixon J, as he then was, in that case, the three judges said:

PN87

In speaking of the relationship Dixon J had in mind, the relationship of employer and employee as distinct from a contract of employment, does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts and end to the contract.

PN88

That was accepted by both the majority and the minority in Automatic Fire Sprinklers, and it is our submission that the concept of reinstatement involves both not just a contractual restoration but it carries with it a restoration in a meaningful, practical way both the contract and the employment relationship, and to pick up the words of Cahill J, not so as just to be notional or fictional. The question of the term "reinstatement" was also considered as appears in the bundle from the decision of Blackadder v Ramsey Butchering Services Pty Limited. I think that is at 11.

PN89

We have made available in tab 11,at first instance, the decision of Madgwick J reported at 113 IR 461. We should have added the Full Court's decision, which is reported at 122 IR 21. We will during the course of the morning make sure that the Commission has that decision. It does not contradict what we say but supports the proposition which in my respectful submission flows from Madgwick Js decision. The decision in Blackadder concerned - and the question of what was required of an employer after the Commission had ordered reinstatement and the employer did not permit the particular employee to go and perform the duties which he claimed he should be entitled to perform.

PN90

Really the reverse position which we face here, but the reasoning should be sustainable both ways. What his Honour was confronted with was whether it was permissible in order to give effect to reinstatement for the employer simply to take the employee back - this was one element of the case - pay the wages, but not restore the full employment relationship over and above the contractual relationship. And at 469 Madgwick J at paragraph 41 deals with the question of the meaning of reinstatement and he says:

PN91

The applicant submits that reinstatement under Section 170CH of the Act and as required by Commissioner Redmond's order necessitated that the dismissal be treated as ineffective and that the employment relationship continue as before the termination. This required that all incidents of the employment relationship, including the undertaking of work, be restored.

PN92

The respondent however submits that what is to be reinstated is the employment contract, and at page 470 in paragraph 44 his Honour says:

PN93

The meaning of reinstatement has been considered in Australian cases but it would seem not in the context of a claim brought by an employee to be allowed to undertake his or her pre-termination work as well as to receive the contractual remuneration.

PN94

There's reference to the English decision of Jackson v Fisher's Foils:

PN95

...did not allow the appellant to return to work. The Court of Appeal held that reinstatement required more than the payment of wages. Reinstatement required the return to work, noting that this was not a case where there was no work available.

PN96

And then at 46 his Honour said:

PN97

Before reinstatement is ordered, the Commission is required to consider whether it is appropriate in all the circumstances to make the order.

PN98

He finds little help in decisions such as Perkins as appears from 48. And then in 49 he says:

PN99

I agree that reinstatement under Section 170CH of the Act does implicitly involve a return of the employee to the workplace.

PN100

And that's obviously so that the employee, if I may interpose, can go and perform the work.

PN101

The Act contemplates that it is only in circumstances where reinstatement is inappropriate that the suitable alternative is to award payment in lieu of reinstatement. Thus the apparent statutory purpose of the relief is to treat the dismissal as ineffective and restore the employment situation to its pre-termination status. If a direction to reinstate an employee required no more than that the employee be put back on the payroll, it is difficult to see why reinstatement would even be inappropriate.

PN102

And then the balance of that paragraph - and we would just add and of course performing the work referred to. And his Honour later on deals - - -

PN103

SENIOR DEPUTY PRESIDENT HARRISON: Is that "would ever be inappropriate?"

PN104

MR DIXON: I beg your pardon?

PN105

SENIOR DEPUTY PRESIDENT HARRISON: I'm just wondering if that should be "would ever be inappropriate" or is that correct, is it?

PN106

MR DIXON: I paused there as well, your Honour.

PN107

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN108

MR DIXON: I think that that's what it probably should be.

PN109

SENIOR DEPUTY PRESIDENT HARRISON: I'll read it more closely, but that might be right, yes.

PN110

MR DIXON: Yes.

PN111

SENIOR DEPUTY PRESIDENT HARRISON: Didn't the Full Bench in a majority decision - it mightn't be this case, but I thought there might have been an appeal against this and the Full Bench rather suggested something to the contrary and Moore J might have adopted the same approach as Madgwick J. But I might be thinking of the wrong appeal, Mr Dixon.

PN112

MR DIXON: There is reference to a decision of Moore J. I think our friends might rely on it.

PN113

SENIOR DEPUTY PRESIDENT HARRISON: Right.

PN114

MR DIXON: And there's some reference to it in the Full Court decision which I will have the copy available, but in the Full Court decision at 122 IR 22 - and I apologise if I may just read briefly this. At paragraph 74 that's where Moore J handed down a - if your Honour would just bear with me for a moment. It's in the Full Court decision, I think, that Moore J has done a separate decision; and then in the joint judgment of Tamberlin and Goldberg JJ, one gets a reinforcement of what was said at first instance. At paragraph 75, their Honours, in their joint decision, said:

PN115

As the authorities indicate, reinstatement is a broad term capable of different meaning according to context. The particular designated form of reinstatement provided for by Section 170CH(3) is the reappointment of Mr Blackadder to the position in which he was employed immediately before the termination or his appointment to another position on terms and conditions no less favourable. The section does not contemplate that Mr Blackadder will be better off than he was before the termination, nor does the section require that Mr Blackadder will be given the benefit of an additional obligation on the part of his employer which did not exist prior to the termination, carrying with it, of course, the fact that he must carry out all the relevant obligations.

PN116

But perhaps I should have had that case in my list of authorities, and I apologise for that. We will make sure that the Commission gets a copy at the earliest possible opportunity. May I just, in that context - I will come back to that, if I may, later. If I then return to our outline of submissions, we say that the Commission may consider - this is in paragraph 10 - as one of the other possible remedies available, whether it is appropriate to appoint the employee to another position. We say that because the power is not available simply to recreate the contractual as opposed to the employment relationship. We submit that the power is not available to put the employee simply back on the payroll where he cannot perform the relevant duties.

PN117

Whether it is reinstatement to the position or by appointment to another position, in my respectful submission, the power contemplates the performance of the reciprocal obligations of the relationship by the employee. The performance of work is, of course, fundamental to that relationship, and it is the performance of work which justifies the payment of wages, that being emphasised in the decision of Byrne v Australian Airlines at 428. I probably don't need to burden the Commission with going back to it, I can simply read the passage from the same judgment as I went to earlier, that of Brennan CJ and Dawson and Toohey JJ, where their Honours said:

PN118

Of course, even if an employee who was wrongfully dismissed chooses to keep the contract of employment on foot, he or she cannot claim remuneration in respect of any period after the wrongful dismissal because the right to receive remuneration for services is dependent upon the services having been rendered.

PN119

That's at 428. It is for that reason that Qantas submits that the two subsections demonstrate that the Parliament recognises that where it is not appropriate to re-appoint the employee to his former position, consideration may be given to the alternative reinstatement remedy. In paragraph 12 we say it's - it would be an unusual case where the Commission would, without more, in effect, look at an alternative position, simply embark on that course. It would naturally look at the first option, because there ought to be some element of certainty in that approach, provided the employee has the capacity to go and perform the duties associated with the role.

PN120

We do say, however, that in order to be reappointed to the position in which the employee was employed carries with it the express and implicit obligation of a capacity to perform the work; and of course, in order to earn wages, that the work must be performed. Now, the Commission dealt with these matters at Appeal Book 2 at 524. It is in the second decision, starting at paragraph 90. The reasons for decision address the various subparagraphs of subsection CH, which ought to be had regard for. And at paragraph 90, the Commissioner concluded that:

PN121

Having regard to all the circumstances of this application, and having heard all the evidence in relation to this matter, the Commission further considers that it is appropriate that it should reinstate Mr Meyer pursuant to subsection (3)(a).

PN122

So that is that Mr Meyer is reinstated to his former position only - I emphasise only, because from what appears later, Commissioner Richards expressly disavowed any appropriateness in appointing the respondent to a different position. In paragraph 91 and following, the Commissioner made reference to some of the submissions that were put, and then at 97, said:

PN123

The Commission appreciates the novelty of its decision and is concerned by the prospect that it may well be reinstating Mr Meyer to his former position, which his medical condition may not permit him to take up, subject to further medical and functional vocational assessment and the Qantas return to work program.

PN124

Perhaps I would be permitted to come back to what we have to say about these paragraphs, but just briefly indicate to the Commission how the reasoning went, at this point in time. In paragraph 98, the Commissioner made reference to the remedy being - or remedies being blunt:

PN125

The Commission cannot remake the employment relationship as it was prior to the alleged injury having been sustained by the applicant. It can only apply the tools at its disposal to the situation before it and after such time as the alleged injury was sustained. It may well be the case, therefore, that Mr Meyer is reinstated by virtue of the Commission's order to his former position but it is determined quite quickly and properly that he is incapable of fulfilling the requirements of that role. If this was to come about, then, on the submissions, Mr Meyer would be subject the very same process which he would have been entitled to but for the intervention of the termination.

PN126

In 99, the Commission makes reference to:

PN127

A medical assessment may continue to prevail, but there is no inherent certainty of this.

PN128

He makes reference to the Commission not being convinced beyond all doubt - I'll come back to that; that a different prognosis may emerge. In 100:

PN129

In such circumstances where it is of the view that an applicant should be reinstated, the Commission should not prejudice the applicant by reason of an injury or for reason of a medical process that may in the end determine Mr Meyer is unsuitable for further work.

PN130

In 102, he makes reference to reinstating Mr Meyer:

PN131

The Commission is conscious that he will no doubt be subject to the process that he should have undertaken. Time couldn't stand still -

PN132

etcetera. And then in 104, the Commission said:

PN133

Notwithstanding the applicant's written submissions, it was made clear to the applicant's oral submissions on remedy that he maintained a live interest in being reinstated to his former position.

PN134

And then there is a critical conclusion to that paragraph where the Commissioner said:

PN135

If this had not been the case, the Commission may not have entertained relief in relation to subsection (3)(a) of the Act.

PN136

That is, obviously, from what I have said before, an area which is subject to challenge, because it is Qantas' submission that the Commission erred there in not paying regard to the evidence as to what the true position was, and that the Commission ought to have relied on the evidence and not a shift which was occurring in what he described as "live" during the oral submissions. Then at 105 and 106 - - -

PN137

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, this shift is something that happens subsequent to the filing of those written submissions you took us to earlier, is there?

PN138

MR DIXON: Yes.

PN139

SENIOR DEPUTY PRESIDENT HARRISON: I see.

PN140

MR DIXON: Yes.

PN141

SENIOR DEPUTY PRESIDENT HARRISON: But you haven't taken us to that yet, have you?

PN142

MR DIXON: No, I haven't taken you to the oral submissions in that regard - - -

PN143

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN144

MR DIXON: - - - because it is my submission, your Honour, that even if that was said and there was some suggestion that, yes, Mr Meyer would be interested in his original position, that position was so contrary to the evidentiary position that had been presented for the purposes of the earlier determination, and against the medical evidence, that he was incapacitated, and that would never change, that there was error in the approach adopted by the Commission at first instance. Paragraphs 105 and 106 the Commission has said:

PN145

It has not accepted submissions in the alternative from the applicant to be reinstated to an alternative position pursuant to subsection (3)(b). to have done so in the circumstances would have required the Commission to have reached conclusions about Mr Meyer's physiological capacities now and into the future. The Commission is not at all well placed to do this and especially so given the limited detailed corroborated medical evidence and vocational assessments before it.

PN146

And then the Commission also accepted a further submission on behalf of Qantas that to reinstate Mr Meyer to a comparable position would have undermined the whole scheme it had whereby people return to work if they are capable, ultimately, of performing the roles - if there is a prospect that they are capable of performing their role in which they were employed, but if that doesn't occur there may be some option of applying equally with others for other positions as and when they became available.

PN147

This then leads me to the submission in paragraph 18 of our written submissions where we submit, with respect, that notwithstanding the expressed finding made - and I beg your pardon, the reference in paragraph 17 of the submission should be at paragraph 105 - notwithstanding the expressed finding to that effect the Commission nonetheless by its novel approach sought to overcome the barrier to reinstate them and ordered that he be reappointed to his original position with full knowledge that he would not be capable of performing the duties associated with that original position.

PN148

It's respectively submitted that the Commission was exercising the power under subsection (3)(a) for a purpose which was not permissible under subsection (3)(a). It was for a purpose to restore the contractual arrangement with no prospect of the applicant performing work in that position and with only a possibility, and could be no higher than a possibility, that there would be further assessments and that a different unknown position might become available to which the applicant might be capable of successfully applying for and being appointed to.

PN149

The issue of whether a power can be exercised to achieve a different purpose for that identified by statutory provisions is of course one that has been commented upon in the cases on a range of occasions in Brownells v Ironmongers' Wages Board which should be at 7 - tab 7. The relevant test is referred to at page 120. That was the case about setting wages, terms and conditions with the view to reducing trading hours, exercise of an improper purpose. And at 119 through to 120 Latham CJ said:

PN150

If a power is conferred by a statute of a body in such terms as it appears that the power was conferred for a particular purpose the power must be exercised only for that purpose -

PN151

etcetera, and there's the passage on page 120. So given the very clear position that was revealed in the evidence it is our respectful submission that the Commission erred in failing to have regard to that evidence, failing to identify the true nature of the power available under Section 3A and had regard for irrelevant material to which I will turn in a moment in making the orders that it did relying on Section 3A having expressly disavowed any order that should be made in respect of 3B.

PN152

May I just return briefly to the reasoning of the Commission in paragraphs 97 and following, page 526 of the Appeal Book? In paragraph 97 the Commission made reference to the possibility of further medical, vocational assessments. Now, it is the appellant's contention that on the evidence that was presented, and in the absence of any suggestion on the part of the respondent, that the clear position that was represented to the Commission would never change, that this reasoning was speculative and simply - and I say this with respect - a means by which the Commission could arrive at granting relief as the Commission saw it under 3A for a different purpose, when under 3B the Commission had concluded that that was inappropriate.

PN153

In paragraph 99 the Commission said there is no inherent certainty in this as to whether the position would prevail. In my respectful submission the evidence was very clear in that regard; that as far as the clear position put by Mr Meyer he should never have returned to that position, and where the Commission then goes on to say that there is no inherent certainty in this, the Commission is not convinced beyond all doubt.

PN154

With respect, the Commission was obliged to act on the evidence, was not required or permitted to go beyond the evidence, and the Commission was placing much too high a standard that there had to be beyond all doubt as to what the appropriate conclusion should be, bearing in mind that the Commission was considering whether it was appropriate to restore the employer/employee and contractual relationship in respect of the original position.

PN155

And to the extent that the Commission concluded that there was no inherent certainty or that he was not convinced beyond all doubt, we respectfully submit that the Commission fail to have regard or proper regard for the evidence and erred in that respect, because the evidence was overwhelmingly against what was put. In paragraph 100, the Commission at first instance said:

PN156

In such circumstances where it is of the view an applicant should be reinstated, the Commission should not prejudice the applicant for reason of an injury or for reason of a medical process that may in the end determine Mr Meyer is unsuitable for work or further work of a particular kind.

PN157

In my respectful submission, the Commission was in that approach adopting the wrong test. The question which the Commission was addressing was whether it was appropriate. If the respondent was incapable of doing so, then it could not, without producing an adverse result, the appropriate - the power was not available to compensate an employee because of an injury. That, in my respectful submission, is not open either under the provisions of Section 170CH or in any of the decisions that have commented on that particular provision.

PN158

Different remedies exist for that very purpose, and the Workplace Relations Act itself recognises that capacity and injury are relevant to whether, firstly, a dismissal is unfair, or of course, whether the remedy of reinstatement should be granted. Section 170CK deals with the prohibition on dismissal by reason of a range of grounds, including temporary absence from work because of illness or injury within the meaning of the regulations, but Section 170CK(3) provides that that section does not prevent a matter referred to in 2(f) from being a reason for terminating employment if the reason is based on the inherent requirements of a particular position, the physical - that goes to physical disability.

PN159

So in our respectful submission, the Commission was seeking to achieve a different result in that passage. In paragraph 101 the Commissioner referred to the consequences of termination, and said:

PN160

But for that mistaken characterisation of his conduct and intentions Mr Meyer would have remained in the employment of Qantas and would have been subject to the normal Workers Compensation return to work and redeployment regime, and accessed his otherwise accrued sick-leave.

PN161

Those remarks should, in my respectful submission, be judged by what in fact occurred. The events occurred in November 2002. That was before Mr Meyer's very firm medical evidence came to light and his position was provided that incapacity later would be permanent and ongoing. In May 2003 the respondent produced evidence that he should never return to that work, that is when his written statements are filed. The position was the same at the time that the Commission considered the remedy in September 2003.

PN162

In the face of the respondent's claims that he was incapable of doing the work, backed up by his doctor's and his obligations of employee, events had overtaken the regime. And that then leads me to just one further comment in relation to paragraph 184. As I submitted earlier, that if the Commission's characterisation of a live interest that is shown by the respondent during the oral submissions flew in the face of the evidence as we have outlined it, then the Commission's conclusions ought to have been different as he himself recognised in the last sentence of paragraph 104.

PN163

The submission on behalf of Qantas is accordingly, if the Commission pleases, that the Commission having determined that it was not appropriate to order reinstatement by appointment to a different position the Commission ought to have concluded that it was not appropriate to reinstate the respondent to a position in respect of which he could not perform the duties, and no order for reinstatement should have been made, and the question then should have been one of considering whether it was appropriate in all the circumstances to order compensation.

PN164

A suggestion might be put against us that the dismissal of Mr Meyer in November 2002 deprived him of an opportunity of participating in a return to work program. I will deal with that in more detail later, but at this point I will say this; the Commission made it clear from the findings that the respondent rejected a proper participation in that program, he bypassed the manager, he didn't inform persons as he was required, so that a proper assessment program could be instituted at the time, but it appears that notwithstanding his conduct then, he is saying that he ought to have the full benefit of that program and that he was deprived of having such an outcome.

PN165

In addition, the Commission would be familiar with a number of cases, particularly in the redundancy field, where the Commission fully recognises that had dismissal not occurred reinstatement is inappropriate, but the question of the quantum compensates the employees for the opportunity lost by reason of the employer's dismissal. Perhaps I can try and put that differently.

PN166

There have been a number of cases where it is alleged that there is procedural unfairness in the selection process for redundancy. The Commission has found unfairness. When it comes to reinstatement considerations the Commission does not order reinstatement as a rule, in order to try and turn the clock back to have a selection process re-undertaken. The Commission recognises that the lack of procedural fairness may, for example, have deprived the employees of a chance, it makes an assessment of that chance, and it tailors the compensation accordingly.

PN167

This was an approach adopted by the Industrial Relations Court as well, when it dealt with matters of this kind, and I have got one example on our list of authorities and in the bundle. That of Manuel v Pasminco Cockle Creek. It is a decision - actually, Federal Court on 7 July 1998, 861 FCA. This was a review by the Courts of a decision of a Judicial Registrar in respect of redundancies which occurred at Pasminco's operations. A number of the employees the subject of that application had injuries which meant that they could not perform the relevant work associated with their position.

PN168

At first instance there had been reinstatement orders made, but on the review the Court took a different view. At page - I think it is page 23 over to 24, under the heading Remedies, von Doussa J makes reference to the orders made by the Judicial Registrar in respect of a number of these employees. Each of those at the time the terminations were effected by a disability to a greater and less extent. In the next paragraph, his Honour said:

PN169

It is important to recognise that the discretion of the Court under Section 170EE to award reinstatement is a wide one.

PN170

This is made clear first by the qualification, the appropriateness, and also practicality. I am summarising; the Commission is familiar with those matters. And then some paragraphs down:

PN171

Once it is accepted that the operational requirements of Pasminco's undertakings ...(reads)... and that their services would be superfluous to the needs of the reorganised structure.

PN172

And then I simply refer to the balance of these reasoning to see the approach taken where the Court effectively estimated the chance that the employees had had they remained in employment and participated in a procedure which was "fairer" and did not reinstate, but ordered compensation to take account of that lost chance. As appears from the paragraph immediately at the top of - sorry - at the bottom of page 25 the Commission will see his Honour said:

PN173

In assessing the contingencies, the applicants urged that had they been heard they would have convinced the relevant managers that there were jobs that they were able to perform -

PN174

etcetera. And then towards the end of that paragraph:

PN175

The decision was one to be made by managers in consultation -

PN176

etcetera.

PN177

The most it can be said is the decisions were made without the benefit of the additional information that may have been provided by the applicants and the possibility that the decision would have been different because of that entirety.

PN178

And then in each case, as appears, for example, under Mr Carol and Others, the Commission made an assessment of what the prospects were, that the person would have some other work, having lost that opportunity, discounted the compensation accordingly. And that is a clear available avenue in a compensation assessment if the Commission regards compensation as the appropriate remedy recognising the arguments that we have put forward. In paragraph 25 we address very briefly the question of whether leave to appeal should be granted. We submit that these matters go to the nature of the reinstatement power. The reasons of the Commission at first instance demonstrate error of the kind identified in House v The King and referred to in CFMEU v AIRC a copy of which is provided.

PN179

One can categorise the errors in a number of respects; firstly, that the Commission failed to appreciate the nature of the power. Secondly, the Commission erred in the exercise of the power. Thirdly, the Commission erred by failing to have regard or proper regard for the evidence in respect of incapacity. And fourthly the Commission had regard for irrelevant considerations, those identified in paragraphs 97 and following to which I referred earlier. For all those reasons, on the question of leave the Commission of course on the authority of Griderson number 2, which is also in our list, is entitled to look to the question of error for the purposes of granting leave and one does not necessarily have to show public interest. But in my respectful submission this case does raise both matters.

PN180

The last issue that I should briefly refer to, and that is what would be the appropriate remedy if the appellant is able to persuade the Commission to grant leave and uphold the appeal. In my respectful submission it would be appropriate that orders be issued that the decision and orders of the Commission of 24 September 2003 be quashed and that the matter be remitted for hearing on whether an alternative remedy to reinstatement should be ordered. In other words, whether the Commission should exercise its powers in all the circumstances to award compensation, and if so what compensation? If the Commission pleases, those are my submissions.

PN181

SENIOR DEPUTY PRESIDENT HARRISON: Okay. We might take a short break, Mr Duffin, before you commence. 10 minutes.

SHORT ADJOURNMENT [11.38am]

RESUMED [11.56am]

PN182

SENIOR DEPUTY PRESIDENT HARRISON: Mr Dixon.

PN183

MR DIXON: May I have the Commission's indulgence to hand up a copy of the Full Court decision in Ramsey Butchering v Blackadder reported at 122 IR 21.

PN184

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN185

MR DIXON: And in the joint judgment of Tamberlin and Goldberg JJ the passages that are most relevant seem to be paragraphs 75 and following on page 54 and following.

PN186

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN187

MR DIXON: Thank you.

PN188

SENIOR DEPUTY PRESIDENT HARRISON: Mr Duffin.

PN189

MR DUFFIN: Thank you. Your Honours and Commissioner, as a matter of housekeeping, in one sense our submissions are not - the submissions that we have filed are not sort of directly hitting the same points that my friend's submissions do. Part of the reason for that is the time tabling issue which my friend, Mr Dixon, alluded to earlier today. We had commenced our submissions addressing the grounds of appeal set out in the notice of appeal and we have subsequently varied them to a certain degree to reflect matters in the outline of submissions that my friend, Mr Dixon, has provided.

PN190

SENIOR DEPUTY PRESIDENT HARRISON: But do you still want us to mark the ones that you sent to us?

PN191

MR DUFFIN: Yes, I would, your Honour.

PN192

SENIOR DEPUTY PRESIDENT HARRISON: Mark these versions? Yes, all right.

PN193

MR DUFFIN: I'd seek that those - - -

PN194

SENIOR DEPUTY PRESIDENT HARRISON: TW1.

PN195

MR DUFFIN: I think perhaps it might be AM1 in this instance, your Honour.

PN196

SENIOR DEPUTY PRESIDENT HARRISON: I see. AM1. Thanks.

EXHIBIT #AM1 RESPONDENT'S OUTLINE OF SUBMISSIONS

PN197

MR DUFFIN: Your Honour, perhaps the starting point that we would seek to take to the Commission is on page 2 of our submissions and page 2 and 3 and the top of 4. Mr Dixon has alluded perhaps after a fashion towards the end of his submissions to the nature of an appeal on these sorts of matters. We have - perhaps firstly Section 45 is the relevant section, but it is added to in areas dealing with unfair dismissal matters by Section 170JF which, as the Commission is probably well aware, provides at Section 170JF(2) that an appeal to a Full Bench under Section 45 in relation to an order made by the Commission under subdivision B of division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.

PN198

That question of what constitutes error in Commission matters has been sort of up hill and down dale to a certain degree over the past three to four years. If I may hand up the decision in both Miller and also the two other decisions I referred to in that section, both being Woodman v Hoyts and Ponthill Drilling v Gibson - - -

PN199

SENIOR DEPUTY PRESIDENT HARRISON: There appears to only be two copies of Miller.

PN200

MR DUFFIN: I think I've given my friend - I'm certain that I've got three copies of everything, but relevantly, your Honours and Commissioner, we'd point to paragraph 33 in the decision of Miller as being the relevant paragraph which has been applied in these matters. And is effectively a sort of a representation of the CFMEU v AIRC decision at the Federal Court, and the issue there in one sense was what is the nature of an appeal? On what basis can you bring an appeal for relief in these sorts of matters?

PN201

Now, in Woodman v Hoyts, a Full Bench of the Commission applied that decision, and if you will bear with me one second - the Full Bench in that matter, which consisted of the President, Giudice J, Senior Deputy President Watson and Commissioner Grainger, examined the issues in relation to 170CE which is the harsh unjust unreasonable issue, and determined that House v The King applied in those instances, and paragraphs 16 and 17, which are effectively set out - paragraph 16, rather, which is set out in our submissions, is the relevant section.

PN202

Now, it's our fundamental case, your Honours and Commissioner, that none of those errors exist in this decision. None of the errors which are set out in House v The King are exhibited in the decision of Commissioner Richards. Now, in Australia Meat Holdings v McLaughlin, which is in the materials that Mr Dixon provided to you behind tab 1, on page 19 of that decision was set out from the third sentence or third line from the top the approach of the Full Bench in that matter, where they noted that the reinstatement issue in relation to that matter was a broad discretionary decision. And they state at the paragraph commencing "Given", they say:

PN203

Given the broad nature of the discretion in Section 170CH(3) and (6) we think that the question ...(reads)... at first instance based on the evidence and material before the Commission.

PN204

So we say, as I have already indicated, that there are no errors in a House v The King Fashion and there is no basis upon which an appeal ought be granted - leave to appeal or, indeed, the appeal be granted. And we make that point as well in paragraphs 10, 11, 12 and 13 in our outline of submissions. Now, as Mr Dixon has conceded, they do not press ground one of the notice of appeal. That's referred to in paragraph 14 of our submissions. In ground two of the notice of appeal there does not seem to have been much in the way of - discussed here this morning.

PN205

It was said that the Commissioner erred in not having regard to matters other than those set out in Section 170CH(2)(a) to (d). Now, in relation to that, your Honours, we - and Commissioner, there are - we've referred to paragraphs 41 and 42 in our outline of submissions. Those are actually the references on behalf of Mr Meyer at that point. Paragraphs 68 to 74 deal with the same issues as raised - or Section 170CH(2)(a) effectively, such other grounds as might exist. 68 to 74 deal with those that are lead by the respondent.

PN206

In particular, the Commission refers to the fact that the respondent submitted in paragraph 68 - the respondent submitted that the respondent's business had undergone a significant restructure program which had resulted in any redundancies, accelerated leave and other initiatives designed to address the serious reduction in flying patterns. So the Commissioner looked at that issue. The Commissioner continues to refer to the circumstances in relation to 170CH(2)(e) in paragraphs 70, 71, 72, 73 and 74 and indeed refers to submissions made at first instance on behalf of the respondent referring to the appeal decision in the Blackadder case, which Mr Dixon has recently handed up to you.

PN207

I will be talking a little bit more about that a little later. But it's certainly put there that in terms of both 72 - that the 170CH(3)(b) issue is dealt with there, but also the reference to the 170CH(3)(a) issue which Mr Dixon alluded to earlier as not being based on any material before the Commission. The Commissioner's conclusions on the matter in relation to 170CH(2)(e) are found at paragraph 85 where he has looked at the circumstances arising from the delay associated with the running of this matter and that was a matter which occupied some earlier correspondence between the parties and the Commissioner in relation to this proceeding.

PN208

There was delay caused largely as a result of the applicant's legal representatives, it must be said. But there are other elements in relation to 170CH(2)(e) in relation to trust and confidence which are dealt with across paragraphs 91 through to 95. So our first point in relation - perhaps our point in relation to that ground of appeal is this; it clearly was dealt with. The Commissioner clearly dealt with issues other than those as set out from 170CH(2)(a) through to (d). He examined a range of issues including, but not limited to, trust and confidence - in fact, we will come to that but also issues associated with the nature of what would happen in the light of the usual situation which would happen to an injured worker at Qantas. What was the usual rehabilitation mechanism at Qantas?

PN209

And this is also an issue that he deals with in paragraphs 97 through to 104. And these are, we would submit, quite clearly relevant considerations for the Commission to examine. Now, at paragraph 22 of our submissions we deal with the compendium of appeal grounds which were set out in paragraph 3 of the notice of appeal. And some of those appeal grounds are really repeated in subsequent appeal grounds and rather than complicate our submissions by dealing with the same thing twice we've effectively said, well, that is an issue which is dealt with later on in our submissions.

PN210

So, for example, the issue of the submissions of the applicant at the hearing - this is in subparagraph (d) of that notice of appeal - that the applicant remained unable to undertake the duties of his former position. That was really something that was dealt with and is dealt with in paragraph 5 of the notice of appeal. Now, it's said against Mr Meyer that he did not wish to return to his former position and that the evidence of the respondent was that light or restricted duties were only provided to employees as part of a rehabilitation return to work program.

PN211

Now, this material, your Honours and Commissioner, is found in the evidence of Dr Isles, which is found at paragraphs 1993, which is at page - in fact, it really starts at page 217 of the appeal book in appeal book one, but also continues across through the re-examination of Dr Isles. At paragraph 1987 there is a discussion there about Mr Franco who represented the respondent in this matter at the initial hearing. He's cross-examining Dr Isles in relation to this matter and he says:

PN212

Well, what would usually happen?

PN213

And at paragraph 1987 he states that:

PN214

It doesn't happen in every case. Any such procedure such as this or the policy or the program ...(reads)... co-ordinators and to some extent the Workers Compensation Department -

PN215

And that's relevant, "to some extent the Workers Compensation Department".

PN216

...where we review the reports that we have, whether it be from independent medical opinions ...(reads)... require - ask for further assessment from the Qantas medical officer as well.

PN217

Ms McKenzie re-examines on these issues. She says:

PN218

Well, what would usually happen in these situations?

PN219

SENIOR DEPUTY PRESIDENT HARRISON: Where?

PN220

MR DUFFIN: This is in paragraphs paragraph number 993 to 1994.

PN221

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN222

MR DUFFIN: She says:

PN223

Are you able to give the Commission some indication of the average or usual time?

PN224

Dr Isles says:

PN225

Well, I'd say on average that decision isn't made until quite a long way into the rehabilitation ...(reads)... not until six months or certainly nine months before those decisions are made.

PN226

It goes on to say:

PN227

The person obviously has to return to work on suitable duties or commence their rehabilitation program and then at a further point in the program vocational assessment may be required.

PN228

And then at paragraph number 1996 Ms McKenzie asks:

PN229

So I understand it - so returning to work as part of a rehabilitation or an attempt ...(reads)... permanently unable to return to their duties then vocational assessment is offered.

PN230

Now, Mr Meyer was clearly seeking reinstatement. That's quite clear from the evidence that Mr Dixon has provided to you. He says he loves the company, loves his job, wants to go back. He says at paragraph 795, 796 which is at page 98, Mr Franco in re-examination says:

PN231

You were asked questions about what you wanted from Qantas. You stated that you want to go ...(reads)... could do anything else, I'll do anything else.

PN232

There is other material that Mr Dixon referred you to about where he stated that he loved his job, and he loved Qantas, and he'd go back there tomorrow. Now, it was made quite clear in the outline of submissions as my friend indicated that Mr Meyer was seeking reinstatement pursuant to Section 170CH(3)(b), but in the discussions, in the course of the oral submissions, the applicant, by his representative, stated, at paragraph number 2565 which is at page 568 of the second appeal book, stated that:

PN233

The applicant in that regard also is very receptive to the possibility of reinstatement under Section 170(3)(a).

PN234

And there are other references around that mark to the same thing.

PN235

SENIOR DEPUTY PRESIDENT HARRISON: Where is - in the second book.

PN236

MR DUFFIN: Sorry, that's in page 568, your Honour, at the second last paragraph.

PN237

SENIOR DEPUTY PRESIDENT HARRISON: Right.

PN238

MR DUFFIN: Now, we refer in our outline of submissions that it was not contended, there was no contention about the fact that Mr Meyer had suffered an injury and that is in the decision of Commissioner Richards. I believe - in fact, I think it's in both decisions, but there was some discussion as to what would happen in the normal course of events were he not to have had his employment terminated and indeed what would also happen in the event that he was returned to work pursuant to Section 170CH(3)(a), and this material was set out in paragraphs 2464 and onwards.

PN239

What happened was that the Commissioner raised this issue. He said, effectively to Qantas's representative, "Look, what I am considering is reinstating the person pursuant to Section 170CH(3)(a). What would happen in that situation. What would be the result", and Ms McKenzie says, "I need to get instructions about that". She goes and gets instructions and comes back and says, "Well, there are two possible paths", this is at 2464 which is at page 556. "There are two possible paths depending on whether it's a workers compensation injury or whether it's not".

PN240

Now, remembering all the time that to date it's still yet to be determined whether it is a workers compensation injury or not, largely because, as I understand it, the matter has been referred to the Medical Assessment Tribunal in Queensland, but beyond that I don't know and I have no instructions as to exactly what has resulted from that, but Ms McKenzie deals with both aspects in relation to this. Firstly, what would happen if he was returned and it was a workers compensation issue and secondly, on the following page, at 558, well, what about if it's not a workers compensation injury.

PN241

She said, "Well, he has 43 days accrued sick leave", although she goes on to say, well, a further two weeks would have been accrued in the - sorry, I take that back. There's about 43 days' worth of accrued sick leave and that process would continue on those following pages and indeed goes on to discuss the superannuation scheme and whether he'd have right pursuant to hardship claims, that sort of thing. So the issue is not one where the material is not before the Commission. The Commissioner is getting the material from Qantas as to what would happen.

PN242

How would this work? Can it work? Now, in the outline of contentions filed by Qantas, they refer in paragraph 14 and Mr Dixon has gone through this paragraph with you this morning. They refer to the issue of whether it's possible to be reinstated and Mr Dixon alluded to some other decisions dealing with the issue of notional or real jobs. Relevantly though, the Full Bench in Blackadder did split on what was intended by the meaning of reinstatement, and Moore J who, effectively, sought to agree with - well, sought to agree with the position adopted by Madgwick J at first instance, was in the minority in this matter and Goldberg and Tamberlin JJ were in the majority, and their approach in this matter is set out commencing in the material that has been provided to your Honours.

PN243

I did not previously use the Industrial Reports version, but their decision commences at the bottom of page 49 and Mr Dixon is correct in that the commencement in some ways of their discussion on reinstatement is at paragraph 75.

PN244

They deal with, effectively, a distinction between contract law and employment law. That can be seen in paragraph 77 where they state that by using the terminology appointing as opposed to re-employing, for example, there is indicated a legislative intention to re-establish rights or equivalent rights which were destroyed by the wrongful termination. The language does not indicate a legislative intention to provide more than to which the employee was entitled prior to the wrongful termination.

PN245

In paragraph 78 they state:

PN246

In our opinion where a person is reinstated by appointment to a position in which he or she was acting at the time ...(reads)... which the person did not previously have under the relevant terms of the person's employment.

PN247

In the event the majority in that case effectively held that it would be possible to reinstate Mr Blackadder by not providing him work which was the issue. The live issue was effectively what does reinstatement mean. Madgwick J said, well, it must mean returning him into the factual position so that he can do work, and that is where that reference to otiose that Mr Dixon has referred you to. The majority say, well, that's not right. At contract law, there is no obligation upon an employer to provide an employee with work. They are just to be - reinstatement means they are to be given the same contractual terms and entitlements that exist in that situation.

PN248

Now, we do distinguish in paragraph 27 - and my friend has effectively conceded this in one respect - that the decision in RTA - the Retail Traders Association v SDA concerned a deceased applicant, as he said. I am not sure that it should be read any more widely than that. It is an implausible scenario to say that re-instatement can occur in circumstances where the applicant is dead. It is just a nonsense.

PN249

However, what we are dealing with in this case is a situation where Mr Meyer, in October 2002, less than a little bit over one month after the initial date of injury, his doctor provides to Qantas material saying that he can perform 27 out of the 30 duties that were to be done by effectively a baggage handler, an ASO. In those circumstances, you are dealing with a situation where the person is able to do the vast majority of the job in October 2002 and that is quite clear. The Commissioner is dealing with this issue in the decision that he reaches in paragraphs 97 through to 103. In paragraph 99, he states that:

PN250

The Commission has before it medical evidence which was current at May 2003 that Mr Meyer will not be able to be exposed ...(reads)... may not be able to take up his former position. But there is no inherent certainty of this -

PN251

and he goes on to say:

PN252

The Commission is not convinced beyond all doubt that the effluxion of time and a fresh medical assessment ...(reads)... that a different prognosis may emerge.

PN253

Now, we would submit, your Honour, that that is entirely consistent with the evidence that was provided to the Commission in the first instance proceeding, namely, that there was some distinction on the medical evidence. Dr Isles, for example, took the view upon viewing the video, and, I might quote Dr Isles in this respect. Dr Isles, in paragraph 7 of his witness statement, which is at page 507, stated that he reviewed the suitable duties list for the role of an ASO and noted that the activities he observed the applicant performing without apparent discomfort or restriction on the video, including bending, lifting and twisting, are not inconsistent with the tasks the applicant would have performed during a return-to-work program, remembering that the return-to-work program is designed to return him to his pre-injury position.

PN254

In our submission, in relation to that appeal ground such as it is, again, we would submit to your Honours and Commissioner that there is no demonstration of a House v the King type of error. The Commissioner took into account relevant considerations, weighed them up and decided that reinstatement was appropriate. That was the question which he had to ask and that was the question which he answered. He did not take into account irrelevant considerations in doing so.

PN255

In paragraph 4 of the notice of appeal which is also repeated in paragraph 23 of the outline of contentions, it is said there that the Commissioner erred in making the orders and that he wrongly concluded by reference to Section 170CH(2)(b) that the respondent's length of service favours making an order, and goes on to refer to the long service leave issue. We have included in our outline of submissions precisely what was included at paragraph 80 of Commissioner Richards' decision where he states:

PN256

In relation to subsection 170CH(2)(b), the Commission has had regard to the applicant's length of service with the employer and concludes that this favours making an order -

PN257

"concludes that this favours making an order". He stops at that point. He goes on to say this is when he started, this is when he finished. Finally, he says:

PN258

The Commission is also aware but for the termination the application would have been eligible for long service leave in September 2003.

PN259

Our submission in relation to this is that the Commissioner did not rely upon the long service leave point. That was included in his paragraph at paragraph 35, but that was a second leg, a second limb, if you like, to the idea that the length of service, of itself, favours making an order.

PN260

And, indeed, we would hand up to your Honours and Commissioner a decision of Senior Deputy President Lacy in Christine Wright v Telstra Corporation Limited, where, at paragraph 17 of that decision, his Honour stated that Ms Wright who had a little bit less service than what the respondent does in this matter, stated that it is, relatively speaking, substantial service with the one employer and provides support for making an order in favour of the applicant. Likewise - and I must confess to have stapled this one imperfectly last night so I will apologise in advance should anyone suffer.

PN261

In the Full Bench decision that I have handed up in Diamond Offshore General Company v Daniel Robertson, Mr Robertson, who had a somewhat shorter period of service, in paragraph 56 and 57 - in particular 57, rather:

PN262

We consider -

PN263

that is, the Full Bench considers -

PN264

that Mr Robertson's employment of 20 months with Diamond was not so short that it goes against either of the orders - that is a reinstatement order or a compensation order.

PN265

Now, paragraph 5 of the notice of appeal, which is also paragraph 21 in relation to the outline of contentions - perhaps by way of completeness I should say that as such, our submission is that he took appropriate account of the respondent's length of service in this matter, and in our view, not only was it open to him find that it was appropriate, it was appropriate in those circumstances. In paragraph 5 of the notice of appeal, which is, as we say, at paragraph 21 of the outline that Qantas has provided in this matter, it's said that the Commissioner erred and failed to proper consider the relevance of the applicant's physical capacity; namely, that he was still permanently incapacitated from undertaking his pre-injury duties.

PN266

Now, the argument here, fundamentally, is that the Commissioner failed to give sufficient weight to this matter. Now, it's quite clear, from a reading of paragraphs 90 and following, that the Commissioner did look very closely at this issue. This was the issue that he was asked to refuse to exercise his discretion to determine that it was appropriate to reinstate the respondent pursuant to 170CH(3)(a), and in fact, I mean, that - so much is made clear in paragraph 91 of the Commissioner's decision. But as Mr Dixon has alluded to, the Commissioner has looked at the issues and said, "Well, is it appropriate to reinstate the applicant?" That is his question: is it appropriate to reinstate the applicant to his former position? He looks at these issues; goes through them all. They're all there for you. He deals with them in paragraphs 97, 98, 99, 100, 101, 102, 103, 104. He looks at them in detail, and he says, "Well" - at paragraph 100:

PN267

Where the Commission is of the view that the applicant should be reinstated, the Commission should not prejudice the applicant by reason of any injury or for reason of a medical process that may, in the end, determine Mr Meyer as unsuitable for further work, or further work of a particular kind.

PN268

The Commissioner looked at the issue; considered it in light of the evidence that had been provided to him. So much is made clear by paragraph 99. He has looked at the evidence. But ultimately he says, "Well, yes it is appropriate that he be reinstated". He said it is appropriate that he be reinstated to his former position. He says this for a range of reasons. He says it because it's fair. It's a fair go all round. He says it because the medical evidence - as he says - may change, but there's no inherent certainty that with the effluxion of time and a fresh medical assessment, in consultation, that a different prognosis may emerge.

PN269

There is no question that what the Commissioner was seeking to do was to place the respondent into exactly the same position that he would have been in but for the unfair dismissal - exactly the same position. And to that end, we rely upon the decisions of - the majority decision in Ramsey v Blackadder, in paragraphs 77 and 78, because that decision is about saying the person should be placed back into the position they were in prior to the termination. That is what "reinstatement" means.

PN270

And the Commissioner notes, in paragraph 102 - notes the comments that were made to him by the respondent - the appellant dealing with the SARS crisis and dealing with time moving and changes in aviation. He deals with that, and he says, "Look, reinstatement is still appropriate. I still believe this is appropriate. It's an exercise of my discretion to determine this in these circumstances, to exercise them based on the evidence and material before the Commission. It's a matter for the judgment of the Commission member at first instance." And that's what McLaughlin says.

PN271

Now, paragraph 6 of the notice of appeal, which in some ways is, as we say in paragraph 51 - paragraph 6 of the notice of appeal is in some ways the reference to the improper purpose, failing which, it's a bit difficult to see where, in the notice of appeal, the argument dealing with improper purpose actually arises from. The question there which is posed in paragraph 6 of the notice of appeal is that the Commissioner erred in making the order, and then he failed to properly consider, as required by Section 170CH(2), whether reinstatement was appropriate - rather, the Commissioner applied a wrong test, having regard to the circumstances of the case. That is, whether the applicant deserved to be penalised by reason of forfeiture of his employment for the opportunities of having his particular circumstances managed.

PN272

Now, we say there that this is not what the Commissioner answered. This is not the question that he answered. This was a consideration - and a relevant consideration in making his determination as to whether reinstatement was appropriate or not, but this was not the question that he answered. We refer, in our submissions, again to the McLaughlin reference, and the reference to Dr Isles in the evidence - and that's footnoted at that footnote at the bottom of page 11. And in para 56 where we say that the evidence was that - apart from some major injuries - that's referring again back to that paraplegia:

PN273

Employees will be given the opportunity to return to the workplace, ascertain whether an injury would finish their employment in their current position, and if so, then determine whether an alternative position existed.

PN274

And that's effectively what Ms McKenzie put in her oral submissions at paragraph 2464 and following, which are set out from pages 556 of the second appeal book and following.

PN275

In paragraph 57 we say that the approach which is pursued - that should read "by the Commissioner" rather than "by Qantas" - being analogous to the contractual rights of the employee. And we refer in that context to the decision of Commissioner Whelan in Hermann v Qantas Airways. This case involved a demotion of an employee of Qantas where, in the particular set of circumstances, Mr Hermann claimed it to be unfair dismissal. In the event, by reference to a letter of appointment to the applicant, the company's corporate policies and procedures manual - this is found in paragraph 86 - was effectively incorporated into the employee's contract of employment, allowing Qantas to demote Mr Hermann, based on those policies.

PN276

Now, there's no evidence before your Honours - before my friend jumps up to say such a thing, there's no evidence before your Honours that there was a contractual term between Mr Meyer and Qantas with respect to the corporate policies in relation to what would happen in the event of an injury. But it's quite clear, from the evidence of Dr Isles, the material provided as part of Ms Kingston's - I presume it's Ms Kingston - the material attached to Ms Kingston's witness statement, namely the guides to workers compensation, etcetera, which are set out from pages 428 behind tab 22 of the second appeal book, it's quite clear that there is an established customer practice, apart from those situations, involving people with serious injuries, that is, paraplegia, etcetera, as to how the circumstances would be dealt with at the workplace.

PN277

And, again, we refer in paragraph 58 to paragraph 78 of the decision in Blackadder. Now, in paragraph 60, your Honours and Commissioner, there is also a slight addendum, or amendment, rather, where it states, "He looked at the issues and noted". It should actually say, "We note". And not every aspect of that was noted by the Commissioner. But, certainly, aspects of that were. What we say, your Honours and Commissioner, is really highlighted in paragraph 61 of our outline, and we would emphasise, again, that it's quite clear on a reading of the decision of the Commissioner that he looked at the right question.

PN278

He looked at the question of whether, pursuant to 170CH(3)(a), whether it was appropriate to reinstate the employee by reappointing the employee to the position in which the employee was employed immediately before the termination. He looked at that issue and he looked at all the issues surrounding this matter. He looked at the factual matrix surrounding this issue, this case, and he exercised his discretion appropriately. Now, in paragraph 62 of our outline of submissions we refer to paragraph 7 in the notice of appeal, which is also referred to in paragraph 21 of the outline of contentions supplied by Qantas in this matter.

PN279

We have referred to, earlier, Mr Prior's comments in the hearing on remedy in relation to the applicant having an interest in the reinstatement to the former position pursuant to Section 170CH(3)(a). Indeed, in relation to this, I mean, it had been made clear all the way through that reinstatement was always sought by the applicant and, indeed, I think my friend provided the material in relation to the outline of submissions by - or the oral submissions, rather, by the respondent's first advocate, which should have been behind tab 17, and the final - there is a reference in those submissions, in fact, on pages 8 and 9, that the appropriate order is that - the appropriate remedy is to order the applicant be reinstated. This is at paragraph 31 of those submissions.

PN280

Now, my friend indicated earlier that Commissioner Richards dealt with the two matters at separate hearings, but these material were filed in relation to that matter. It's - paragraph 31:

PN281

If it is found that the respondent acted harshly, the appropriate remedy is to order the applicant to be reinstated on the condition that he undergo the vocational assessment.

PN282

And then the justification for the order is found on the following page. There's never been any question that there hasn't been sought to be reinstatement. Now, we say further that, in one sense, it really wouldn't matter, frankly, whether the applicant sought reinstatement pursuant to 170CH(3)(a) or (3)(b). It's a matter for the Commission to determine. True it is, it would be highly unorthodox if a Commissioner determined that the order to reinstate should occur in circumstances where no one had ever asked for it.

PN283

This isn't the case here but, in one sense, on a strict reading of those words, it's a matter for the Commission. The discretion is at large. There is no words or limitation on that that say, it is a requirement that one party bring such an application but, clearly, we say, in any case, in this instance oral submissions were made seeking reinstatement to the former position.

PN284

SENIOR DEPUTY PRESIDENT HARRISON: Mr Duffin, we had in mind, if it was possible, to finish this matter, well, we had in mind sitting on, but it's really - - -

PN285

MR DUFFIN: Your Honour - - -

PN286

SENIOR DEPUTY PRESIDENT HARRISON: - - - a matter for yourself now to make an assessment as to how long you think you might be and - - -

PN287

MR DUFFIN: I think I've got a page and a half to go.

PN288

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN289

MR DUFFIN: I anticipate being no more than - I hope to be no more than 10 minutes, I mean, subject to the Commission.

PN290

SENIOR DEPUTY PRESIDENT HARRISON: No. We won't hold you to it, but it's something like that. We'd prefer to sit on. Is that going to cause a problem for anyone? Yes, continue.

PN291

MR DUFFIN: I was really about to move to the issue of public interest which my friend raised at the conclusion of his submissions. Firstly, we would submit that this is not a matter which falls within that 45(2) category or, indeed, in the category that - in the decision in Ponthill Drilling where it is said - where it was said by the Commission in that instance that it's a separate or a mandatory test in these sorts of cases. And we say that because this is really a case about the exercise of discretion.

PN292

It's all it is. It's not a case about greater, you know, perceived issues associated with how this particular provision might apply. It's really a question that deals with, in this set of circumstances and in this set of facts, did the Commissioner appropriately exercise his discretion. And our answer to that is, yes, he did. He asked himself the right question. It doesn't matter, in one sense, whether we say yes or no. We say clearly, yes, but that's not the issue. The issue is it was his discretion to exercise. Provided he didn't make any errors in the House v the King sense, he was entitled to find whatever way he wanted.

PN293

And we say in that sense that there is nothing unusual in the public interest in the nature of his decision even. It accords with good public policy. Injured workers should be returned to work. They should not be dismissed. I understand my friend's submissions that there was this cute distinction between the misconduct alleged versus the nature of the injury. And, indeed, that was the nature of how the case proceeded, in one sense. It turned out to be a fight, at first instance, as to whether Dr Roudenko should have or should not have supplied a certificate, and if he should have, on what basis should the applicant have then sought to inform Qantas that, "I've got the certificate", but this is not really the issue in relation to this appeal.

PN294

This appeal is about in what circumstances should the Commission deal with this sort of issue. Fundamentally, our position is that the appellant says that persons such as Mr Meyer should never - can never be reinstated to the workplace. Persons in those circumstances such as Mr Meyer can never be reinstated to the workplace. Our position is the Commissioner is entitled to look at the circumstances of the case and if he or she so determines that reinstatement is appropriate, then that is the nature of the case. There's no great issue of principle associated with that. If the Commission pleases.

PN295

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Mr Dixon?

PN296

MR DIXON: If the Commission pleases, there are a few matters which I wish to deal with in reply. The Commission was taken to Mr Isles's evidence at appeal book 217 and at paragraph 1987, and one has got to bear in mind that Mr Isles was dealing with a situation that would apply in the context of an employee who was participating in the program as it was envisaged, namely, that at the very early stage, the employee would immediately respond so that the program would take over the course of how the respective employer and employee conduct themselves, a matter to which I'll return, because Mr Meyer did not do that, but in paragraph 1987 to which you were taken, it's clear that Mr Isles's evidence is not that there's an absolute rule. He refers to the position as to apply in some cases and then at 1988, the question is:

PN297

'

PN298

And would they more likely be cases where there's some concern as to whether the treating ...(reads)... of referring them for further opinion.

PN299

Now we know that in this situation, the treating doctor's views, two of them, the long-term treating doctor, Dr Kelly and Dr Roudenko were very firm in their views and in the position they took. Mr Isles's evidence is based, of course, on, as I said, a co-operation and participation in the program. May I remind the Commission of what Commissioner Richards said concerning the applicant as appears at paragraphs 68 through to 70, appeal book 18 and 19 where it's quite clear that he evaded the program, did not participate in it in a way which permitted or facilitated the usual manner in which the program would operate but now the respondent seeks to obtain the full benefit of the program that he shunned at the time.

PN300

It was said in that - in respect of the medical evidence that there was some distinction in the medical evidence, and reliance was placed on Mr Isles' written material which is at paragraph - sorry, appeal book 507, paragraph 7. May I ask the Commission, please, to go back to the material. What Mr Isles was asked to do was to review the video material that had been obtained by way of surveillance which gave rise to the whole incident. People had observed the respondent behaving in a way that seemed inconsistent with a claimed total incapacity; surveillance material was obtained.

PN301

That surveillance material suggested conduct wholly incompatible with total incapacity. The passage you were taken to in paragraph 7 at page 507 is a view expressed by Mr Isle or Dr Isles. He holds a medical qualification, was that he reviewed suitable duties list and he observed the applicant performing without apparent discomfort or restriction not inconsistent with the tasks. That was not saying anything about a clinical examination with full knowledge of the medical history of Mr Meyer as to his capacity to do this work in the future.

PN302

There's no suggestion that Mr or Dr Isles, which I should more accurately call him Dr Isles, ever physically examined Mr Meyer. He was not making an assessment about his future capacity. He was addressing the question in respect of whether there was misconduct, namely, whether this employee had misrepresented a position to the company. In contrast to that, Dr Roudenko did his examination. He expressed the view, he maintained the view of incapacity in the Commission. Dr Kelly, the longer treating doctor, maintained that position in the Commission.

PN303

So that appears to be the only evidence that the respondent is able to rely on to suggest some distinction in the medical evidence. It is not a real distinction and it is not one that in any way, in my respectful submission, allows a view that an order for reinstatement here was in any way other than an artificial and not a practical order. There was reliance placed on the decision in the Diamond Offshore v Robertson case. That decision, in my respectful decision, has as its - at its very basic level, the concept that reinstatement to a non-existence position is inappropriate.

PN304

The position that Mr Robertson was employed in was - no longer existed as at May 2003. The decision before the Full Bench shows that the Commission at first instance on 19 June 2003 handed down the decision. If one goes to the Commission's decision at first instance, one finds that the hearing occurred on 23rd and 24 April 2003 but a matter which was apparently overlooked at first instance is that the parties had agreed that Mr Robertson's position would have been made redundant in May 2003.

PN305

When the matter came on, on appeal before the Full Bench, the Full Bench overturned or found error at first instance, the error being a failure to appreciate the fact that the position would no longer be there, but the Full Bench did not contemplate using reinstatement or the reinstatement power to put the employee back in a non-existent position to see whether another position might become available which the employee could contemplate or apply for against others.

PN306

The reasoning in that case underscores what, in my respectful submission, has been Qantas' argument here, is that the reinstatement to the original position power should not be used for a different purpose. If that was otherwise, it would be my respectful submission in the Diamond Offshore case - not have provided any relevant error which resulted in the decision at first instance being overturned.

PN307

The respondent took the Full Bench back to the decision of Commissioner Richards in the remedy aspect of the case and particularly to paragraph 90 and following, saying that the issue that the Commission was looking at was one in the exercise of discretion as to whether it is appropriate. Qantas' position, of course, was that in light of the evidence the Commission was not reinstating Mr Meyer to his former position. To the extent that the Commission attempted to restore the contractual arrangement in the face of evidence that that couldn't result in the performance of work, there was a miscarriage in the Commission's discretion, in my respectful submission.

PN308

It was then submitted that the Commissioner was placing the respondent in a position he would have been in but for the unfair dismissal. Although the respondent sought to dismiss the distinction that I drew earlier between the cause of the dismissal and incapacity, it simply means that the respondent cannot answer that aspect of the case. This was a case where different matters intervened between the date of dismissal and the date of the remedy.

PN309

The matters which intervened was the emergence of evidence that the respondent was incapable of performing the duties. That incapacity was not Qantas' - did not arise from Qantas' dismissal of the respondent. It was a process of ongoing medical assessment and testimony and the respondent's own position. So it was not in relevant terms the dismissal which altered the position, but the incapacity. And in Qantas' submission, the applicant to the proceedings could not be put in the position he would have been in in respect of his position because of his incapacity, and that incapacity did not arise from the unfair dismissal.

PN310

The process described by Mr Duffin in this regard was simply one to see if there was possibly a different position at the end of the day, and that process is not open, in my respectful submission, where the Commissioner had expressly, in considering whether to exercise powers under subparagraph 3(b), disavowed that as appropriate. They'd expressly found an alternative position for the Commission to order an alternative position was not appropriate, but yet the argument goes against us that some other form of mechanism should have been open to achieve the same result.

PN311

There was some reference on the next topic that I deal with to the exchange which took place between the Commissioner at first instance and Ms McKenzie in final submissions when she's appearing for Qantas. May I simply draw the Commission's attention to some of the other paragraphs relevant in that debate. At page 551 of the Appeal Book at paragraph 2410 the position that Qantas was taking was made clear, that reinstatement when the capacity is not there was inappropriate. At 559 at 2488 it's clear that some of the Commission's questions in this regard were directed at whether there was a possibility of redundancy if an order were made to reinstate to the original position but the employee was incapable of performing those roles.

PN312

And then at 562 paragraph 2519 and 2520 it was submitted that the Commission should assume no higher than that - should assume that the prognosis will not differ. And then in 520 it's our submission absolutely what an order for compensation could be directed to and would compensate an employee for and the reinstatement power ought not to be used to open up those opportunities for employees. So although there is a debate that takes place in the interim as to what might happen if the Commission were to order re-employment, the position put by Qantas was very clear that that would be inappropriate, I would categorise it as, that it would not be a proper exercise of the powers available to the Commission.

PN313

It is not correct to say, as is submitted by the respondent, that if Qantas' argument is correct, an employee such as Mr Meyer with his incapacity would never be reinstated to the workplace. That's not Qantas' case. Qantas' case is that given his particular evidence and given the circumstances existing at Qantas where there are limited alternative positions available because of various events and the speculative nature of whether the applicant to the proceedings, Mr Meyer, would ever find an alternative position, one had to assess the two options: could he be restored to the original position, and the answer is no. Was an order for another position appropriate in his circumstances, and the answer is no, given the issue as to his capacity.

PN314

Just this one last point, if I may. If the Commission just bears with me for a moment. Lastly, may I just simply go back to the Full Court decision in Blackadder, which Mr Duffin referred to. I want to do so for two reasons, if I may. One is simply to draw the Commission's attention to some additional passages which you were not expressly taken to. It's in the joint judgment of Tamberlin and Goldberg JJ at page 55.

PN315

There is a passage at paragraph 78 as to what the subsection (3)(a) requires, and then there is reference to the case that I had made reference to earlier, Jackson v Fisher's Foils, and from the quote from that decision reinstatement means reinstatement in his employment and his employment means the contractual position which he occupied as against his employer before his dismissal that contractual permission permitted the employer to withhold work from the employee providing he pay him his wages. Then their Honours said:

PN316

His Lordship in that case however felt constrained by the precedent referred to and followed it. The precedent turned on war-time emergency measures -

PN317

and so on. And then they said in 81:

PN318

We consider that where the terms of employment of the position in which a reinstated ...(reads)... reinstate by re-employment does not require the conferral of any additional entitlements to work.

PN319

That of course was looking at it from the point of view of whether the employee could demand the performance of work. But in my respectful submission, the reasoning should apply in respect of entitlement to the payment when an employee cannot work. Lastly, in the paragraph that follows their Honours said a number of cases were cited to the Court in support of the proposition that the obligation to reinstate carried with it an obligation to provide the employee with work. And there is then reference to the Retail Traders case to which we referred earlier, and their Honours said those cases fell to be determined in context, and under legislation different to terms found in Section 170CH. I thought I should draw that to the Full Bench's attention.

PN320

But nonetheless, the concept of reinstatement considered in the Retail Traders decision, to the extent that it doesn't rely on an obligation to provide an employee with work, seems to still have some relevance, in my respectful submission, to the matters that are the subject of the appeal here. Those are the submissions in reply. If the Commission pleases.

PN321

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you. We intend to reserve our decision. The Commission will now adjourn.

ADJOURNED INDEFINITELY [1.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #Q1 APPLICANT'S OUTLINE OF SUBMISSIONS PN63
EXHIBIT #Q2 EXTRACT FROM MACKEN'S 5TH EDITION OF LAW OF EMPLOYMENT PN63
EXHIBIT #AM1 RESPONDENT'S OUTLINE OF SUBMISSIONS PN197