Flying high: Pilot reinstated to her role after dismissal declared harsh and unreasonable but not unjust.

In the recent case of Susana Henderson v Northern NSW Helicopter Rescue Service Limited [2023] FWC 314, the Fair Work Commission (the FWC) found a valid reason to terminate the employee’s employment, but certain mitigating factors and personal circumstances revealed that ultimately, the dismissal was harsh and unreasonable.

Facts

Ms Henderson was employed by Northern NSW Helicopter Rescue Service Limited (the Rescue Service) as a Line Pilot for a period of 6 months and 26 days before her dismissal on 6 May 2022. The Rescue Service provides 24/7 emergency aeromedical services across Northern NSW and operates four AW139 helicopters (the Aircraft) from three base locations.

Prior to her role with the Rescue Service, Ms Henderson accumulated extensive flight experience from piloting for 17 years in the army and 2 years as a Helicopter Emergency Medical Services in the Torres Strait. Ms Henderson did not have any experience flying the Aircraft prior to this role so she was provided training by the Rescue Service.

Ms Henderson’s training plan was split into three stages. In the first stage she would learn to operate the aircraft. In the second stage she would learn to operate the aircraft in accordance with the Rescue Service’s procedures. In the third stage she would perform live operational training exercises. Her training was expected to take 12-14 weeks but had not concluded at the time of her dismissal. Ms Henderson completed her first two training stages and various other checks required by the Rescue Service but during her trainings was repeatedly unable to perform a stable ‘hover’ accurately where conditions were not ideal.

On 21 March 2022, the Rescue Service’s executive team agreed to cease Ms Henderson’s training, with one key reason being her inability to maintain a consistently steady hover in less than ideal conditions, despite previous attempts to address this issue.

Clause 16.2.1(iii) of the Northern NSW Helicopter Rescue Service Limited Pilots and Aircrew Officer Enterprise Agreement No 6 states that an employee can be terminated for ‘failure to attain and maintain necessary licences, qualifications and accreditations and the like necessary for the performance of the Employee’s duties’.

On 22 March 2022, Ms Henderson was informed that she would not proceed to her final assessment phase. On 24 March 2022, she received a show cause letter, to which she responded with proposals to remedy the issues she was experiencing. On 6 May 2022, Ms Henderson was dismissed because the skill gap identified was deemed ‘too great a risk for the nature of the Respondent’s operations’.

Ms Henderson contended her dismissal was harsh, unjust and unreasonable and brought an unfair dismissal application under section 394 of the FW Act. The Rescue Service denied that the dismissal was unfair.

The Decision

The FWC firstly outlined that due to the configuration of the Aircraft having only a single pilot and a supporting aircrew officer, the flight is more challenging than multi-pilot operations and requires higher standards of aircraft handling and captaincy. The FWC accepted that Ms Henderson did not meet the required standard of a Line Pilot due to her inability to accurately maintain a stable hover, which is a key skill for safe aircraft winching operations. The FWC was therefore satisfied that the Rescue Service had a valid reason to terminate Ms Henderson’s employment.

The FWC was went on to consider the personal circumstances and mitigating factors which could indicate that Ms Henderson’s dismissal was nevertheless unfair, including:

• the impact of unemployment on her family of four children, the youngest of whom is autistic;
• that the role with the Rescue Service was the only one in the local area and her new role (obtained after her dismissal) requires her to be away from her family for two weeks at a time, every month;
• that Ms Henderson was given the wrong simulator course for her first training stage assessment, which delayed the completion of her training and put her at a disadvantage;
• that Ms Henderson was not provided with an initial flight to allow her to adapt to the Aircraft, but was expected in her first flight to undertake a complex winching scenario under time pressure; and
• that her trainer had commented during flight training that he was keeping records for her dismissal, which damaged Ms Henderson’s confidence in future flights.

The FWC ultimately concluded that the dismissal of Ms Henderson was ‘not unjust, but it was harsh and unreasonable in all the circumstances.’ The dismissal was not unjust because the Respondent had a valid reason for the dismissal, and it afforded procedural fairness to Ms Henderson prior to making a decision to bring her employment to an end.

However, the dismissal was harsh and unreasonable when taking into consideration the delays and breaks in training which were outside her control, and the fact that her performance issues were easily remediable. The FWC noted that ‘Ms Henderson had excellent captaincy skills and had shown during her training that she made sound, carefully thought-out and safe decisions, and the dismissal was harsh in its consequences for Ms Henderson’s personal situation.’

The FWC made orders to reinstate Ms Henderson to her previously held Line Pilot position on the basis that a sufficient level of trust and confidence could be restored to make an employment relationship between the parties viable and productive. The FWC denied to make an order for backpay, even though Ms Henderson was without any income for over 10 weeks, because the Rescue Service had already spent approximately $169,000 on Ms Henderson’s training and it would be required to undertake further training upon reinstatement.

Take Home Messages

This case is a sound demonstration of how the FWC applies the FW Act provisions relating to unfair dismissal and the various considerations that can impact the outcome of whether there is a finding that the dismissal was harsh, unjust or unreasonable.

The decision encourages employers to turn their minds to the various considerations listed in section 387 of the FW Act when they dismiss an employee, including the employee’s personal circumstances and other mitigating factors, and to ensure that they have complied with procedural fairness requirements.

If you wish to discuss any matters raised in this article please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.