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Qantas ordered to reinstate a medically retired employee

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 104, 16 May 2006

In the case of Kazama v Qantas Airways (2005) PR969209, the Australian Industrial Relations Commission ordered Qantas to reinstate an employee who was terminated on the grounds that she was medically unfit to work as a flight attendant due to the unacceptable risk of a re-occurrence of eustachian tube dysfunction and her refusal to accept an offer for other work within Qantas.

Ms Kazama had been an employed as a flight attendant since 29 April 1989 until her termination. It was her position that she was at the time of her dismissal (and since), fit to perform the requirements of her job.

The Commission reviewed extensive medical evidence that was tendered in the form of written reports and expert oral evidence from numerous medical practitioners in order to determine whether Ms Kazama suffered a medical condition that rendered her unfit to work as a long haul flight attendant.

All the doctors agreed that while ever Ms Kazama is not suffering from an incident of Eustachian tube dysfunction there is no reason why she can not perform her job. The critical difference between the opinions of the medical practitioners concerned the probability of reoccurrence and the associated risks.

After considering the differing points of view the Commission preferred the evidence of one practitioner over the several others, primarily because the practitioner was a specialist with extensive experience. The Commission found as a matter of fact that a reoccurrence of eustachian tube dysfunction in Ms Kazama is no more a probability for Ms Kazama than for any other long haul flight attendant.

The Commission was persuaded that Qantas’ actions were motivated by a genuine concern for the safety of Ms Kazama and for other in-flight employees and passengers. However, the Commission ordered Qantas to reinstate Ms Kazama on the basis that the termination of her employment was harsh, unjust and unreasonable because Ms Kazama was:

• not unfit for her employment when she was terminated therefore there was no valid reason for termination;
• not provided with the views of some of the doctors and that inhibited her ability to respond to the allegation that she was unfit for duty;
• terminated without any attempt by Qantas to see how she would handle a return to work on international flights.

HR Tips

• Employers should ensure that decisions to terminate on medical grounds are objective and accurate.
• Where medical opinions differ consideration should be given to which opinion should be preferred (a specialists opinion may be given more weight than the opinion of a general practitioner).
• Employers should allow employees an opportunity to respond to the opinions of medical practitioners. Withholding such opinions inhibit the employee’s ability to respond and may be viewed as unfair.
  

Sharlene Wellard
Senior Associate
Australian Business Lawyers