//
[398]
[2023] FWC 314
General information, not legal advice.
Fair Work Commission
2023-02-07
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for relief from unfair dismissal - valid reason for dismissal - dismissal harsh and unreasonable - applicant reinstated without backpay.
[2] I heard Ms Henderson's unfair dismissal case against the Respondent on 7 and 8 November 2022. Ms Henderson gave evidence in support of her case. She also adduced evidence from Mr Glenn Miller, Deputy Head of Flight Operations and Flight Examiner at a HEMS operator, Mr Richard Maas, Line Trainer and Crash Response Helicopter Pilot for Toll Aviation, and Mr Michael de Winton, Pilot employed by the Respondent. The Respondent adduced evidence from Mr Darryl Humphreys, Head of Training and Checking with the Respondent (resigned effective 16 October 2022), Mr Mark Overton, Training and Checking Pilot with the Respondent, Ms Debbie O'Grady, Human Resources Business Partner with the Respondent, and Mr Robert Fisher, Head of Flight Operations with the Respondent.
[4] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.
[5] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Ms Henderson's application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) Ms Henderson was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Ms Henderson's dismissal; and
(d) Ms Henderson's dismissal was not a genuine redundancy.
[6] The Respondent provides 24/7 emergency aeromedical services to 1.5 million people in the communities across northern New South Wales. The Respondent operates four AW139 helicopters from three bases at Belmont, Lismore and Tamworth.
[7] The AW139 type of helicopter is a modern glass cockpit aircraft with an advanced autopilot and flight management system.
[8] The Respondent provides its emergency aeromedical services to the communities across northern New South Wales pursuant to a contract with New South Wales Ambulance. This contract requires the Respondent to provide aircraft, maintenance support and aviation crews to support Emergency Medical Services (EMS) operations during the day and night, including the ability for a single flight crew at the Lismore base to be capable of safely accessing patients on boats up to 100 nautical miles from shore, either by landing or by winching.
[9] The Respondent is required to comply with the Work Health and Safety Act 2011 (NSW) and regulations as well as the Civil Aviation Safety Regulations 1998 (Cth). In addition, the Respondent has developed its own safety and operational requirements under its integrated safety management system.
[10] The types of emergency missions conducted by the Respondent's operational crews include:
(a) primary missions in response to triple 0 emergency calls to assist patients with trauma or those that are injured in hard to access locations by ground-based emergency services;
(b) inter-hospital transfers for critically ill or injured patients that require specialist care and timely transfer from a regional hospital to a specialist tertiary facility; and
(c) land and marine based search and rescue operations in all types of conditions, including the extraction of people from remote and hard to access locations and vessels.
[11] The Respondent conducted 1,479 missions across northern New South Wales during the financial year ending on 30 June 2021.
[12] A Line Pilot employed by the Respondent is a safety critical position and the key requirements of the position include:
(a) conducting helicopter aeromedical and search and rescue operations and responding to mission tasks in accordance with the Respondent's procedures;
(b) avoiding variations from standard procedures unless warranted by mission requirements, and then only if justifiable through a crew member risk assessment process;
(c) maintaining high situational awareness of the weather and potential hazards throughout the duty shift, and submitting flight plans when appropriate;
(d) demonstrating and upholding exceptional safety standards in accordance with the requirements of the Civil Aviation Safety Authority (CASA), the Respondent's contract with New South Wales Ambulance and SafeWork NSW;
(e) maintaining all currencies and competencies as required by CASA and the Respondent's requirements; and
(f) upholding safety standards in accordance with the Respondent's procedures.
[13] The crew configuration used by the Respondent on its AW139 aircraft is a single pilot, supported by an Aircrew Officer (ACO), a New South Wales Ambulance Critical Care Paramedic/Winchman and a specialist doctor.
[14] During winching operations the ACO leaves the cockpit and operates the winch from the rear cabin of the aircraft. When hovering close to obstacles the Line Pilot establishes an accurate and steady hover on a reference and any movement of the aircraft is cleared by the ACO, who looks and moves around the aircraft to facilitate this. It requires effective teamwork and clear and concise communication.
[15] Establishing an accurate and stable hover is the platform for ensuring the safe delivery and extraction of the medical team and patients. Winch rescues can be conducted at over 200 feet and any instability or harsh movement of the aircraft through the Line Pilot's controls can quickly be transferred into the winch, which acts as a pendulum and resultant spins and swings can be hazardous to anybody on the wire. In addition, any undesired movement when close to obstructions such as trees or a cliff can place the aircraft in danger of striking the obstruction.
[16] Because there is no co-pilot to provide a constant overview of actions on the Respondent's AW139 aircraft, its single-pilot operations are regarded as more challenging than multi-pilot operations and the competency standards required of the Respondent's Line Pilots in terms of captaincy, aircraft handling and proficiency is higher.
[17] The Respondent's operations often occur under intense and challenging conditions, including operating in different weather environments, at night utilising night vision goggles (NVG), in cloud, and winching over land and water.
[18] Ms Henderson holds an air transport licence (helicopter), a multi engine helicopter instrument rating, a flight instructor grade 2 rating, and a class 1 aviation medical certificate. She has a Bachelor of Science and an advanced diploma of aviation studies.
[19] Ms Henderson is a graduate of the Australian Defence Force Academy and the Royal Military College Duntroon.
[20] Ms Henderson served as a helicopter pilot in the Australian army for 17 years flying Bell 206 Kiowa's at 161st Reconnaissance Squadron, serving two tours in East Timor and one tour in Afghanistan flying Chinook CH-47D helicopters.
[21] Prior to her employment with the Respondent, Ms Henderson flew as a Helicopter Emergency Medical Services (HEMS) pilot in the Torres Strait for about two years.
[22] Ms Henderson's prior helicopter flying experience includes search and rescue, emergency medical services, surveillance, peace keeping, combat operations, slung loads, winching, low level flight, instrument flight, night vision imaging system (NVIS) flights and remote operations in diverse and complex operating environments. She is also an army reservist with command and senior management experience having previously served as a communication, leadership, management, operations and tactics instructor, as well as commanding joint task units during Operation Bush Fire Assist, Operation Covid-19, Operation NSW Flood Assist 2021, and Operation Flood Assist 2022.
[23] In August 2021, Mr Fisher, who at that time was the Respondent's Head of Training and Checking, was asked to provide an overview of the candidates for the recently advertised Line Pilot position based in Lismore. The candidates included Ms Henderson and an experienced AW139 helicopter pilot with 10 years' EMS experience.
[24] At the time, the Respondent had just commenced operating an additional aircraft, added to the fleet to support the New South Wales Ambulance Covid-19 response effort. This change required the Respondent to recruit and train an additional two temporary Line Pilots and three temporary ACOs. Mr Fisher was aware that this recruitment would result in significant additional work for the Respondent because its training team was resourced to support its existing operation.
[25] In late August or early September 2021, Mr Fisher received feedback from the Respondent's recruitment team for the Line Pilot position in Lismore, of which Mr Fisher was not a member, that Ms Henderson had performed well at her interview. The recruitment team consisted of Mr de Winton, Ms O'Grady, Mr Todd Mulville, Chief ACO, and Captain Nathan Scard, Lismore Base Manager.
[27] I also accept Mr de Winton's evidence that the AW139 is initially a challenging aircraft to operate on NVIS due to the poor visuals, but once a pilot gains experience on the aircraft and learns the nuances of the AW139 they become more confident and competent.
[28] Ms Henderson was asked to complete a pre-employment flight simulator check conducted by Lismore Base Trainer, Captain Martin Shepherd, prior to being offered a position with the Respondent. The simulator report showed that throughout the ground training and simulator check process Ms Henderson was a strong candidate with the ability to adapt to operating a complex aircraft such as the AW139. Mr Shepherd gave the following summary at the conclusion of his simulator assessment report:
"It is my assessment that Ms Henderson will have little difficulty assimilating the AW139 Type Rating. She will be capable of completing the company HEMS Conversion and Line Training but is likely to require additional line training to fully consolidate her transition [to] the AW139 and NNHRS HEMS environment. I see her having no issue operating and integrating as a PIC as part of a high performing team and as a result will be able to operate a complex multi-engine aircraft in VMC and IMC."
[29] Post Ms Henderson's selection as the preferred candidate by the recruitment team (including Mr de Winton) and her successful simulator assessment, Mr Fisher sent correspondence to Mr de Winton and Ms O'Grady detailing the expected cost and time impacts of employing Ms Henderson, as compared to a helicopter pilot who was already trained and qualified to fly a AW139 helicopter. Mr Fisher assessed the cost difference to be comprised of the following components:
[30] Type rating training is training in how to operate the AW139 aircraft, which is a modern glass cockpit aircraft different to the analogue aircrafts Ms Henderson had previously operated.
[31] Mr Fisher then provided the following summary of his analysis:
[32] Notwithstanding the cost differential and the uncertainty as to how long it would take to train Ms Henderson to fly a AW139 helicopter, the Respondent made the decision to employ Ms Henderson, rather than a pilot who was already qualified and experience to operate a AW139 aircraft.
[33] Ms Henderson commenced her employment with the Respondent as a Line Pilot at the Lismore base on 11 October 2021. The Respondent has just one helicopter that operates from its base in Lismore. Ms Henderson was classified under the Northern NSW Helicopter Rescue Service Ltd Pilots and Aircrew Officer Enterprise Agreement No 6 (Enterprise Agreement) as a second year Pilot.
[34] On the commencement of her employment, Ms Henderson was issued a comprehensive conversion course training plan outlining how her training competencies would be tracked and setting out the formative and summative assessment plans for her.
[36] During the period from 18 October 2021 to 12 November 2021, Ms Henderson successfully completed a AW139 multi-pilot type rating course conducted by Toll Helicopters in a full motion simulator based at Bankstown. It was later discovered, on 24 November 2021, that Ms Henderson had been given the wrong training by Toll Helicopters. She should have been given the single-pilot training course, but was instead given the multi-pilot training course. The single-pilot training course was the correct course because the Respondent's Line Pilots operate the AW139 aircraft on their own; they do not have a co-pilot on board with them during normal operations. That Ms Henderson was given the wrong training course caused delays and loss of continuity in her training.
[37] On 26 November 2021, Ms Henderson passed her Instrument Proficiency Check (IPC). However, Ms Henderson's Operator Proficiency Check (OPC) was deferred because the Respondent wanted Ms Henderson to first complete the single-pilot type rating course which had not been completed due to the wrong training course being provided to Ms Henderson by Toll Helicopters.
"... It was the first flight in the aircraft and it was a complex winching scenario. I haven't even flown a circuit in the helicopter yet. We went straight out to winching [on a] complex slope on the side of the hill. And, yes, I had seen him do it before but it was a pretty big ask when I haven't flown the aircraft before.
... I thought I was going to be trained to fly the aircraft day winching but I received no training. I was just expected to go out and demonstrate it straight away."
[39] I prefer the direct evidence given by Ms Henderson about what happened during the training flight with Mr Shepherd on 29 November 2021 over the hearsay accounts of Mr Shepherd and Mr Kross, ACO, neither of whom were called to give evidence.
"This was an introductory flight to company winch procedures by day. It was the first flight in the aircraft and was conducted following a 1.1 hr demonstration flight which included an ACO SAR Check. Aircraft handling improved throughout the flight with hovering close to company standard. Profiles flown during CA operations are not constant and decelerating in nature. DATUM positions are much too high. Awareness of company procedures, checklists and work-flows is poor and requires more effective pre-reading. Aircraft start checks are not yet able to be recalled. Overall you are operating near saturation. Only increased knowledge and familiarity will increase capacity and establish robust situational awareness."
[43] Later, in March 2022, Mr Humphreys sent an email to Ms Henderson in which he made the following statement in relation to way in which Mr Shepherd interacted with Ms Henderson in an unprofessional manner during the initial training exercise on 29 November 2021:
"I would like to apologise as a trainer for the way your program has progressed. It's an embarrassing example of how not to get the best in people."
"... primarily, flying training is very much a[bout] confidence - it's very much about confidence, about personal confidence and belief in your own abilities, and it's very easy - it's very easy for an instructor to load up a student or to create an environment in which it's not conducive to learning..."
[46] Mr de Winton flew two training exercises with Ms Henderson on 2 and 3 December 2021. Mr de Winton told Ms Henderson that he was disappointed with the way in which Mr Shepherd had conducted the first training flight. Mr de Winton also told Ms Henderson that normally a pilot's first flight is an easy and relaxed sortie, and that Mr Shepherd should not have taken her on such an intense first flight winching.
[48] To the extent that ACOs who were in the aircraft when Ms Henderson conducted the training exercises with Mr de Winton on 2 and 3 December 2021 made comments to Mr Fisher which were critical of Ms Henderson's performance and inconsistent with Mr de Winton's assessment that he had "no concerns" with Ms Henderson's performance, I prefer the evidence given by Mr de Winton. No ACOs were called to give evidence in the proceedings. Further, they are not qualified helicopter pilot instructors or trainers. As a general observation, I prefer the evidence given by the pilot instructors and trainers in these proceedings over the hearsay accounts given by ACOs who were not called to give evidence and could not be cross examined by Ms Henderson's representatives.
[49] From early December 2021, Ms Henderson no longer received training according to the original training plan. Her training became ad hoc and was scheduled on short notice. The training sessions were regularly cancelled due to weather events, or because the aircraft had been taken off-line. This caused further delays to Ms Henderson's training and uncertainty as to how and when she would be trained. I accept Ms Henderson's evidence that the loss of continuity in training made it difficult for her to establish a flow.
[50] On 8 December 2021, Ms Henderson returned to the Toll simulator facility and completed the correct single-pilot type training. On 9 December 2021, Ms Henderson completed and passed the AW139 single-pilot type rating flight test.
[51] On 10 December 2021, Ms Henderson conducted an additional operational development sortie with Mr Fisher, who told Ms Henderson that her captaincy and crew resource management were of a good standard and that he was pleased. The sortie took place in a simulator and was Mr Fisher's first exposure to instructing Ms Henderson. Mr Fisher considered that Ms Henderson's performance in the simulator was sound, although he notes that a simulator does not provide the opportunity to judge low level flight skills.
[53] Mr Fisher made reference in his memorandum dated 13 December 2021 to Ms Henderson's performance during the initial winching training exercise with Mr Shepherd and then her additional training with Mr de Winton. Mr Fisher then set out his "overall assessment" as follows:
"Overall Assessment. Our initial training plan was formulated on the basis that Sana would quickly assimilate the aircraft handling skills post TR and possessed sufficient depth of HEMS experience that would require an extended period of Line Training, but which would ultimately suffice for Lime Operations at Lismore. Having now completed 2 months of training with the company it is clear that:
[55] On 15 December 2021, a meeting took place between Mr de Winton, Mr Fisher, Mr John Candy, Chief Financial Officer, Mr Rob Jenkins, Operations Manager, and Ms Fiona Williams, People Capability and Strategy Manager. It was agreed that Ms Henderson would receive additional training to consolidate her handling skills. Mr de Winton stated that he disagreed with the proposition for Ms Henderson to operate from the Belmont base, although no firm decision was reached in relation to this matter at the meeting.
[56] On 17 December 2021, Ms Henderson flew a conversion course NVIS flight with Mr de Winton. He assessed Ms Henderson as 'competent'. Mr Fisher considered the feedback he received from Mr de Winton about this sortie to be encouraging.
[57] On 20 December 2021, Ms Henderson undertook a night training sortie with Mr Fisher, who assessed Ms Henderson's "NVIS proficiency check overall assessment" as 'competent'. Mr Fisher's comments at the end of his report were as follows:
"Overall, your knowledge of company procedures, checks and SOPS is developing well. You communicate your intentions clearly and maintained a good standard of CRM throughout whilst making, on the whole, sensible Captaincy decisions. Your NVIS approaches were consistently shallow and labored with your precision work in the confined area not yet sufficiently accurate. During your next sortie, work on executing relatively steep approaches to the CA which will allow you to maintain visuals into it throughout - the CAT A Helipad picture is a good starting point. Ensure that you trim the aircraft in the CA and reacts smoothly and quickly to both visual and ACO cues - sure that you remain relaxed on the controls to avoid overcontrolling."
[58] On 21 December 2001, Mr Fisher conducted another night training sortie with Ms Henderson. The initial aim of the sortie was to undertake Ms Henderson's NVIS Proficiency Check (NPC), however it was assessed that Ms Henderson was not ready for NPC, so the sortie was a 'back to basics' sortie to address Ms Henderson's approach and hover accuracy. During this sortie Mr Fisher's opinion was that Ms Henderson was not able to fly a consistently accurate approach and her performance in the hover was still not accurate enough. Notwithstanding this, Mr Fisher assessed Ms Henderson's "NVIS proficiency check overall assessment" as 'competent' and made the following comments at the end of his report:
"This was a very valuable sortie that allowed some consolidation of purely aircraft handling skills. Whilst your approaches are improving you are finding it challenging to visually fly a constant angle - sweat keeping the LS in the correct point in the screen, offset the aircraft to improve visuals, monitor aircraft deed and do not allow it to wash off and maintain an overview of rad alt height to aid maintaining the correct angle. Precision work is improving with good light placement - you must improve your accuracy, especially in the vertical - ensure that you collaborate with the ACO to establish a solid reference where you want it."
[61] This revised plan provided for a break in Ms Henderson's flying training over Christmas.
[62] On 26 December 2021, Mr de Winton flew with Ms Henderson situated in the left-hand seat to observe, so that she could view operations and understand the Respondent's processes, whilst gathering valuable knowledge of the area. Mr de Winton also flew a training sortie with Ms Henderson, which he regarded as being well handled by Ms Henderson and he did not identify any problems.
[63] During the period from 4 to 6 January 2022, Ms Henderson undertook three further NVIS development training flights at the Respondent's Belmont base with Mr Mark Overton, Training and Checking Pilot Trainer.
[64] The intention of the flight on 4 January 2022 was to revise the basics, including holding a steady hover and using hover references to pick up on any aircraft drift, to ensure that Ms Henderson was operating the aircraft correctly with regards to the use of the NVIS. Mr Overton formed the view that Ms Henderson's learning capacity was getting maxed out with the new aircraft type, techniques and systems and this meant that her basic skills were starting to drop off and she was reverting to older ways of flying helicopters, before there were glass cockpits and automation, as there is in the AW139 helicopters. As an example, Mr Overton explained that Ms Henderson was moving her head too much during NVG scanning, rather than just using her eyes. This was causing her to move her hands slightly, which caused the helicopter to drift.
[66] On her second attempt, after the 'go around' call, a similar situation occurred with the aircraft drifting and the ACO told Ms Henderson to 'go around' again. I accept Mr Overton's evidence that Ms Henderson either did not hear the call or thought she was getting it under control. Mr Overton then took over control of the aircraft to fly it out of the area because he did not believe that Ms Henderson was responding to the 'go around' call. I also accept Mr Overton's evidence that it is very uncommon for a Training and Checking Pilot to take over control of an aircraft during a sortie flight. Mr Overton believes that Ms Henderson was getting task saturated in the new aircraft operating environment, rather than building up her skills from the previous sortie. By task saturation Ms Overton means that Ms Henderson was working at near maximum capacity operating the AW139 aircraft and it was impacting her ability to process new information and training regarding more complex operations and skills and causing reversion of some flying skills. Ms Henderson's training flight on 5 January 2022 was the only flight during her conversion course where she received an overall assessment of 'not yet competent'.
[68] On 6 January 2022, Ms Henderson undertook a further night training sortie with Mr Overton. The training focused on hovering. Mr Overton observed that Ms Henderson was getting very low on her approach profiles and this needed to be revised during the sortie. Flying a low approach is a military tactic but it is not used by the Respondent's Line Pilots.
[69] In his report dated 7 January 2022, Mr Overton made the following comments in relation to Ms Henderson's knowledge, skills and attitude:
"Knowledge. Sana's subject knowledge on NVIS operations appears to be sound. This would be tested thoroughly during the NPC ground based assessment.
Skills. The following points were noted regarding Sana's Captaincy, CRM and NVIS general Handling skills;
Attitude. Sana's attitude towards the entire learning process appears to be good. She has been well prepared for each sortie and relates to other members in a base operating context well. Sana receives debrief and constructive criticism well and is trying to apply lessons learnt to current operations.
Conclusion. Sana is coping with operating under NVIS is benign operating environments. When transitioning to more complex mission subsets in low illumination and challenging weather, Sana is becoming task saturated which has the ability to lead to undesired aircraft states. Sana will require further training focussed on missions that require higher fidelity in varying degrees of difficulty concerning terrain, weather and illumination. I suggest this occurs prior to her NPC so she has the best chance of achieving competence and continuing her progression towards being cleared to line."
"15. It is clear that Sana is trainable, the issue revolves around how much resource we allocate. My concern, based on my own experience and report of the training team is the demonstrable low rate of progression from a pilot who, is on paper a fully qualified HEMS NVIS captain. Her core basic handling skills require continued instruction and in my judgement, completion of TCM training will at best provide a pilot who is not initially able to conduct NVIS winch operations and is likely to require an onerous level of oversight for routine night primary missions at a base which experiences very low levels of night tasking (continuity).
16. It is clear that the interests of safety and operational capability require us to seriously considered both options."
[73] The original training plan provided for Ms Henderson to complete 1.5 hours of day training and 4.5 hours of night training in the aircraft. As at 7 January 2022, Ms Henderson had completed 6.9 day hours and 9.6 night hours of flight training, amounting to an additional 10.5 flight hours which equate to approximately $30,500 of cost in aircraft time. Overall, including all training received, Ms Henderson had over 60 hours of training in the AW139 by 7 January 2022. In Mr Fisher's experience in conducting and delivering pilot training at the Respondent, this was significantly more training than he had previously delivered. As at 7 January 2022, Mr Fisher's judgement was that the evidence from the training team highlighted that Ms Henderson demonstrated a clear lack of ability to consistently meet the Respondent's standard for winching, hovering and low level operations of the aircraft.
[79] Mr de Winton believes that Mr Fisher's negative email of 14 January 2022 was aimed at predetermining the upcoming meeting at which Ms Henderson's future would be discussed.
[81] The night assessment flight to be conducted by Mr Humphreys with Ms Henderson could not be legally undertaken until Mr Humphreys had completed his training with the Respondent, which took place during January 2022. To support Ms Henderson's preparation for the assessment flight and having regard to the fact that Ms Henderson had not flown for 21 days (because of several factors including Covid-19 leave requirements for various trainers), it was decided that she should complete a refreshment flight with Mr Fisher on 27 January 2022. The refreshment flight took place on 27 January 2022.
[82] At a meeting on 19 January 2022, Ms Henderson was told of the plan moving forward in relation to her training.
[84] On 4 February 2022, Ms Henderson conducted her NPC flight with Mr Humphreys. The flight involved a simulated primary NVIS winch task in complex terrain north of the Lismore base. Mr Humphrey's assessment was that Ms Henderson had demonstrated proficiency during the sortie by flying all required sequences to a safe line standard. Ms Henderson passed her NPC. After passing her NPC, Ms Henderson flew an NVIS paramedic live winch training sortie with minor debrief points.
[85] During the period from 9 to 11 February 2022, Ms Henderson returned to the Toll simulator in Sydney to undertake her OPC, which involves checking the proficiency of the pilot to deal with emergencies and the Respondent's emergency procedures. This check is a requirement of the Respondent, not a CASA requirement.
[86] On 10 and 11 February 2022, Mr Humphreys conducted two OPC training flights with Ms Henderson. Mr Humphreys considered that Ms Henderson flew well during these training flights and passed her OPC. These OPC flights involved operating the aircraft in a simulated environment in normal flight conditions and did not involve precision handling of the aircraft. Following Ms Henderson passing her OPC she had completed the conversion training course with the Respondent and could proceed to her line training, which is training in 'real-world' flight operations for the Respondent that are as close as possible to what a Line Pilot is employed to do. This means that the Line Pilot undertaking their line training is rostered to work at the base as part of the normal operations of the aircraft conducting primary and secondary missions under the supervision and guidance of a Training and Checking Pilot.
[87] On 18 February 2022, Mr Humphreys conducted a short training flight with Ms Henderson. This flight did not involve any precision handling of the aircraft.
[88] On 21 February 2022, Ms Henderson participated in 'doctor live winch training by day' and NVIS.
[89] On 27 February 2022, Mr Humphreys conducted a line training flight with Ms Henderson. This mission involved an inter-hospital transfer between two hospitals. The weather conditions were poor during the flight, which did not involve any precision handling. After completing her training on 27 February 2022, Ms Henderson was not able to return home as rising flood waters had cut roads from the Lismore base causing the farm where Ms Henderson lives with her family outside Lismore to be isolated. For this reason, Ms Henderson elected to sleep at the Lismore base so that she would be in location for her subsequent night shift on 28 February 2022.
[90] Flooding in the Lismore region impacted operations at the Respondent's base located in Lismore from 28 February 2022. The Lismore base was damaged by the flooding and a temporary base was established from Ballina Airport. On 28 February 2022, Ms Henderson conducted multiple flights transporting critical equipment and personnel from the Lismore base to the Lismore Hospital helipad in extremely challenging conditions.
[91] Ms Henderson is an Army Reservist and Commanding Officer of the local 41st Battalion which had been called forward on a Defence Assistance to the Civil Community, Level 1 emergency support request in relation to the flooding in the Lismore area. Ms Henderson led the Australian Defence Force response to the flood emergency, including overseeing the rescue and evacuation of hundreds of local residents by army helicopters and ground personnel. Ms Henderson remained on this task for the first six days of the flood event until Australian Defence Force reinforcements were able to reach the northern rivers area of New South Wales and Ms Henderson's team could be relieved.
[92] After returning home for a day off on Sunday, 6 March 2022, Ms Henderson recommenced her line training with the Respondent. On 7 March 2022, Mr Humphreys conducted a further line training flight with Ms Henderson. This mission involved inter-hospital transfers and did not involve specific precision handling skills, although a debrief point was discussed with Ms Henderson about aircraft drift on departure from elevated helipads. This was raised to refocus attention to this area after another break from regular flying in the line training phase.
[93] On 9 March 2022, Ms Henderson undertook a line training flight from Grafton to the Gold Coast Hospital.
[94] On 14 March 2022, Ms Henderson flew a 'doctor live winch training sortie by day'.
[95] On 15 March 2022, Mr Humphreys conducted a further line training flight with Ms Henderson. The first primary mission was the transport of a patient to a hospital. Following this mission Ms Henderson undertook further winch hover training. This type of training is not directed at the pilot but is a proficiency check that is required to be completed by doctors and paramedics for their training currency. In between doctor/paramedic training sessions Ms Henderson conducted a high non-live winch scenario to a confined area in the vicinity. Mr Humphreys observed that Ms Henderson had difficulty maintaining a stable hover in the windy conditions of the day. On completion of this mission, Mr Humphreys told Ms Henderson that training missions had been undertaken and that the plan was for her to complete her line check on the next shift block with Mr de Winton. This was on the proviso that there be no problems with the programmed hi-line training sortie planned for a few days' time. Mr Humphreys informed Ms Henderson that there would likely be an operational restriction placed on her for NVIS winching with an ongoing proposed monthly training flight to focus on this area further and develop and refine this skill set.
[96] On about 15 March 2022, Mr Humphreys advised Mr Fisher that he recommended for Ms Henderson to proceed to line check with the understanding that Ms Henderson not be cleared for unrestricted operations until further NVIS winch training was conducted and a further assessment completed. Mr Fisher indicated that this would have to be approved by the client (New South Wales Ambulance) and would need to be discussed with Mr Jenkins. Mr Humphreys was not sure if that would be acceptable at a contract level.
[97] On 16 March 2022, Mr Humphreys conducted an NVIS training flight with Ms Henderson for her three-monthly winch proficiency training. This was the first night operations flight that Ms Henderson had conducted since her NPC on 4 February 2022. During the flight Mr Humphreys observed that Ms Henderson was having issues with maintaining the aircraft position in a stable hover where reference points were not ideally where Ms Henderson wanted them to be, being in front of the aircraft.
[101] Ms Henderson also says that hi-line is not comparable to the hovering required for NVIS winching. She says that hi-line is a different and specific skill set, and working with a vessel requires different visual cues. Three senior and experience trainers engaged by the Respondent - Mr de Winton, Mr Mick O'Grady and Mr Humphreys, who are all ex-navy - told Ms Henderson that hi-line is not comparable to the hovering required for NVIS winching. Mr Fisher says that whilst the locations are different for hi-line and NVIS winching, the piloting skill is the same and it is necessary for a pilot to have the ability to visually interpret their surroundings and translate that into the physical movement to manoeuvre the aircraft. Mr de Winton says that hi-line is a complex evolution and has created a number of challenges for pilots over the years. Mr de Winton has taught hi-line in the British Navy and with the Respondent. He has observed a large number of pilots struggle with the task, including highly experienced pilots, as it is not a practice that is regularly conducted and is usually practiced only once a year.
[102] A training review meeting took place on 21 March 2022. In attendance were Mr Fisher, Mr Humphreys, Ms O'Grady, Mr Todd Mulville and Mr Sharman. At this time, Mr de Winton had been removed from the position of Head of Flight Operations. At the meeting Mr Fisher advocated for the cessation of training to Ms Henderson in light of his assessment that she was not able to consistently ensure a steady hover during operations. It was agreed that Ms Henderson's training would be ceased by the Respondent. The training review report dated 21 March 2022 states that the following points were agreed by the persons who conducted the review:
17. As a result of these points and in the interests of future flight safety, the review group unanimously recommend that Sana Henderson's training is permanently suspended."
[103] On 22 March 2022, Ms Henderson arrived at work excited to finally complete her scheduled final summative assessment, the line check. The instructor, Mr de Winton, who was scheduled to assess Ms Henderson's line check, had flown from Newcastle to Ballina for the shift. Ms Henderson received a phone call from Mr Fisher on the morning of 22 March 2022 to inform her that the senior operations team had met the day prior and decided that she should not proceed to line check because she had not met company standards in all areas.
[104] Ms Henderson was shocked by what Mr Fisher said to her. She said she did not understand, as she had passed all proficiency checks and completed her line training. Mr Fisher said there were concerns raised with her NVIS training sortie on 16 March 2022 and that ACOs had come forward and said they did not feel safe to conduct winching with her.
[105] Ms Henderson was upset. Mr de Winton, who was nearby, asked what was wrong. Ms Henderson told him. Mr de Winton said that he was surprised, because he had flown up to conduct Ms Henderson's line check and had not been briefed otherwise.
[106] Ms Henderson spoke to Mr Jimmy Keogh about her phone call with Mr Fisher. Mr Keogh had been rostered as her ACO during line training and was to be rostered with Ms Henderson once she was checked to line. He had flown many hours with Ms Henderson including winching. Mr Keogh told Ms Henderson that he had not said anything to Mr Fisher about having any problems flying with Ms Henderson. Ms Henderson said that Mr Fisher had mentioned the NVIS training sortie on 16 March 2022. Mr Keogh said words to the effect, "Yeah we did three winches, the first one had a good reference and you were rock solid, the second was more challenging and there was a bit of drift, but workable, and the third you were out of the wind without a hover reference and we couldn't achieve a steady hover there, but all pilots have problems in that spot".
[108] Later on 24 March 2022, Ms Henderson received a show cause letter from the Respondent. Ms Henderson sought assistance from her union and they requested an extension of time to respond to the show cause letter. The Respondent permitted Ms Henderson additional time to respond to the show cause letter but refused to provide the documents sought by Ms Henderson.
[109] On 21 April 2022, Ms Henderson provided a comprehensive response to the show cause letter. As part of that response Ms Henderson made the point that she had passed all six formal checks on the first attempt during her employment with the Respondent. Ms Henderson suggested in her show cause response three alternative options which were available to mitigate the Respondent's concerns prior to terminating her employment. The first option was to permit Ms Henderson to undertake her line check and gain further experience flying on the line. Hi-line training could be completed with an additional sortie as originally proposed and should a concern remain about Ms Henderson's hovering during NVIS low contrast with a compromised reference, then an operational restriction could be put in place requiring an additional phone call and oversight prior to the conduct of any NVIS winch operation. An additional NVIS training sortie could be conducted each month for the first few months. The second option suggested by Ms Henderson was for the Respondent to provide remedial training and recheck the skill said to be causing concern. The third option suggested by Ms Henderson was for her to pay for a vertical reference training course, at her own expense, to improve her hovering without a reference.
[110] Ms Henderson also outlined a number of mitigating circumstances in her response to the show cause letter. They included the following:
"The training continuum has been disjointed in terms of timeliness, consistency of instruction and training locations. Substantial gaps in my Type Rating and subsequent Conversion/Line training occurred that were outside my control which made demonstrating consistency extremely difficult. This has resulted in large gaps between training flights, particularly in live aircraft.
Also, the continuous changing of instructors and subtle differences between instructional technique and inter-rater reliability meant there was some inconsistency in their expectations of flying techniques which made my consolidation extremely difficult. These significant breaks in training when converting on to a new type in addition to learning new company procedures, on a new contract and in new airspace represent a predictable obstacle to consistency.
Despite this I was able to pass all of my check flights on the first attempt and progress through to completion of my line training.
As a large amount of my training has involved assimilating new information (aircraft type and company procedures), the introduction of extended gaps in my training program together with receiving instruction from six different company Training and Checking Pilots added additional pressure on my performance.
Irrespective, only one skill has been identified and only under abnormal/ adverse conditions. Moreover, any documented evidence to support this concern in the Check Forms written after each flight is lacking.
During my meeting on 24 March 2022 and through the Show Cause letter and the subsequent supplementary letter of 4 April 2022 a picture has been painted that I have taken excessive time in training and been given significant additional training. There have been several factors not related to my flying performance that have impacted on my training program:
• My initial type rating at Toll was incorrectly run as a multi-crew type rating and not single pilot. Two weeks of flying the simulator were not conducted single pilot. This put me at a significant disadvantage at the commencement of my conversion training as I had not had the pre-conversion training at that additional single pilot level.
As a result, I could not complete my OPC as originally planned in my first week of sim training as I first had to return to Toll to complete a single pilot type rating but without the usual number of lead-in flights. That required an additional week to schedule the rating to be conducted in Sydney.
• My initial trainer during the first week of company sim training had concerns about my ability to conduct a single pilot IPC. At this time the company policy was that an IPC could not be conducted with the use of an ACO in the front left hand seat (LHS). As I had only been flying the aircraft multi-crew and on my previous type we were able to have a crewman present during the conduct of a single pilot IPC I was not used to this circumstance.
This delayed the conduct of my IPC. It should be noted that the following month in December the company changed the relevant policy to permit ACOs to act in their role in the front LHS to support the conduct of an IPC. Had this been afforded to me less than a month earlier I would have met my originally scheduled IPC timeline.
• My initial week of flights scheduled in the aircraft were delayed partially because of my performance on the first flight, but also due to the trainer's conduct during that first flight which I had cause to submit a report on, including at the direction of the company, from which an investigation has been, or is being, conducted. I have touched on that incident above and do not traverse it further in this form.
However, it cannot be denied as a significant event impacting on me in numerous ways. Needless to say, training had to be rescheduled and, for that in part, I must show cause as to why I ought not be dismissed.
• After completing my three NVIS sorties as per OPSMAN C4.3.2 para 3b it was decided to break for Christmas prior to conducting my NPC due to availability of trainers. Lead up training to that NPC would be provided due to the extended break over Christmas. This led to a plan of two NVIS flights with Mark Overton followed by an NPC to be conducted at Belmont.
Prior to my second flight with Mark I was advised that I would no longer be sitting my NPC the following night as there had been positive Covid cases at Lismore Base and the scheduled examiner was deemed a close contact and therefore could not conduct my NPC.
I was told that the positive of this was that I could now focus on purely developmental training for the subsequent two scheduled sorties and my NPC would be rescheduled once trainers were available.
• Upon returning from Belmont a Training Check-in was scheduled with Mike De Winton and Debbie O'Grady. A decision was made that I would conduct a company assessment to determine if I was ready to sit the NPC. The company decided to wait for the incoming HTC to be online to conduct my assessment check. I asked whether in the interim I could go to the sim to complete my OPC, commence line training or at least be able to ride along on missions to maintain my progression and increase my proficiency.
All of these requests were denied. Had these requests been met my training time overall would have been reduced significantly. Instead, I did not fly for three weeks at the behest of the company.
In summary the issue of being trained incorrectly as multi-crew during my type rating, having to conduct my IPC without an ACO, delaying my OPC as I did not yet have a single pilot type rating, repeating my type rating, breaking for Christmas, delaying my NPC due to Covid close contacts and waiting for the incoming HTC to be on-line to conduct my independent assessment all contributed to delays in my training that were not related, nor attributable, to my performance. Additionally, many flights were cancelled due to weather or aircraft being on task.
I accept the report regarding hovering while NVIS winching with a compromised reference. However, no additional training to specifically address this has been provided, let alone offered, discussed or planned.
I have passed all of my proficiency checks at the first attempt, completed my conversion training and there has been no issues raised during the conduct of my line training so far that compromised my progression."
[111] Ms Henderson responded as follows in her show cause response to the contention that she had not demonstrated a consistent hover performance despite over 90 hours of experience in the AW139:
"Whilst I have logged over 90 hours only 74.8 have been flown hands on from the right-hand seat. Many of these flying hours were not low-level nor involving winch training.
The letter says that over 23 hours of flight training has been completed. However only 17.5 hours of aircraft flight training was completed during the conversion course.
• Total Simulator hours: 38.6 and Total Aircraft hours: 36.2
• Type Rating Multi-Crew and Single Pilot Sim hours: 19.9
• Conversion Training (Simulator): Allocated hours were 12 hours (not 10 as stated in the letter). Actual Hours flown were 18.7 hrs. Seven of these hours were for IPC purposes (note the IPC is not allocated hours in the OPSMAN conversion course breakdown)
• Six hours were for my scheduled February OPC cyclic which was pre-allocated and not an additional resource bid for.
• Therefore, conversion training total resource for simulator was 5.7 hours.
• Conversion Training (Flight): 17.5 hours. 3.2 hours were for lead in flights post-Christmas and pre-NVIS checks due to long breaks in flying not otherwise required. This leaves 14.3 hours: 4.4 hours was Day training (3 sorties) and 9.9 was Night training (6 sorties). An additional 3.1 hours were flown for the company NVIS assessment and NPC.
• Line Training: 15.6 hours including 4.8 hours of live winching for paramedic and doctor training (a resource not allocated for my training specifically), 1.2 NVIS winch currency and 1.5 Hi-line training.
The hours and sorties numbers above are less than those outlined in the 4 April 2022 supplementary letter. These hours were utilised for the obtainment of several qualifications and skills including IPC, OPC, Multi-Crew Type Rating, Single-pilot Type Rating, NPC, Doctors and Paramedics Winch Currency, Hi-line training etc. To suggest that a large proportion of these hours constitute 'additional training' specific to the purpose of addressing the alleged 'inability' is misleading.
It is noteworthy that Toll schedules the following minimum hours for newly inducted pilots who have not previously held a rating on type before they are cleared to fly the line and as agreed to by NSW Ambulance:
The total minimum hours on type prior to being checked to line at Toll are:
a. Dual 22 hours (15 Sim, 7 aircraft);
b. PIC 50 hours (40 Sim, 10 aircraft); and
The Training hours resource originally scheduled for me by WRHS was significantly lower than that allocated by Toll for a similarly experienced pilot."
"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."
The above statement includes the requirement to meet the training and checking standards of the organisation and receive the appropriate "accreditation" to carry out the duties of a Line Pilot. Based on the following factors you have not been successful in meeting the required standard and therefore are unable to fulfil the requirements of your Line Pilot role.
A review of your training and checking results since your commencement on the 11th October 2021 have indicated the following concerns in relation to your competency as a Line Pilot:
[114] At the time of her dismissal, Ms Henderson was the only female HEMS Captain in Australia. In addition, the Respondent's operations team, apart from Ms Henderson, were all male. Ms Henderson's response to the show cause letter included a statement of concern by her that "certain person(s) involved in this process who are representing the company campaigned against my initial appointment/employment and continue to do so, including seeking to have my appointment reversed even before I commenced training, and then seeking my termination despite a completely unblemished check record". This was clearly a reference to Mr Fisher's conduct after Ms Henderson was identified as the preferred candidate in the selection process.
"I believe that an initial breakdown in the instructor/student relationship at the very beginning created a confidence breakdown with Ms Henderson, which I identified in my first flight with her. I believe that we didn't - and I blame myself as much for this - instruct her properly. She did the wrong course at the beginning. She did a two-pilot course, not a single-pilot course and the expectation was just going to do a quick check right - a quick - in the right-hand seat was a sufficient answer. I don't agree necessarily that was the right way and we didn't pick up on it. I didn't pick up on it either until it was too late when we were in the training system. I think we should have spent more time instructing. That is my personal view."
"I would believe that there were areas to improve on which would be gained by experience ... I think some of the areas that I was concerned about was that we hadn't spent the time training to ensure that [what] we were after was being achieved... I believed that Sana could actually achieve what she wanted to achieve. Her captaincy and her mannerisms and method around the place was exceptional. It was just a little bit rusty on the flying skills."
[125] At the time of Ms Henderson's dismissal, Mr Fisher did not believe that Ms Henderson could be trained within a reasonable timeframe to the standard required by the Respondent to consistently apply skills for precision handling of the AW139 aircraft. Mr Fisher says that the Respondent is not a pilot training school; it employs experienced pilots and converts them, if needed, to fly AW139 aircraft according to the Respondent's requirements. Mr Fisher also says that, at 6 May 2022, the Respondent had spent approximately $169,000 on Ms Henderson's training, which was $58,100 more than initially budgeted. The provision of further training for Ms Henderson would also have required, according to Mr Fisher, the allocation and rostering of Training and Checking Pilots and ACOs to facilitate training. This would have meant that those employees would not have been available to perform operational missions, which in turn would impact other Line Pilots/ACOs who were needed to fill the roster. Mr Fisher points out that the operational roster at Lismore was without a pilot for over a year, which resulted in fatigue, travel and overtime costs for the Respondent's existing crews.
[127] Mr Fisher emphasised that the Respondent's most challenging flight profile is night winching utilizing NVG. This competency is subject to a three-monthly training currency, which typically results in the period between night winching sorties being between 6-8 weeks. To be considered proficient and safe, crews must be able to maintain competency in NVG winching and other essential flight skills with this intermittent exposure.
"... I think in two weeks, yes, we could have got Ms Henderson above the line potentially, but is it going to stay and that was the nub of the discussions that we were having, to try and establish that. If I had a very clear view in my head, yes, two weeks and Ms Henderson would be fine, then that would have been very different - that would have been a very different decision that we had to make as opposed to the decision that I had to make at the time where I didn't have that assurance in my own head."
[129] Ms Henderson was recruited to the Respondent's Lismore base. At that location the Respondent's pilots experience an annual flying rate per pilot that approaches the minimum at which safe competency can be maintained by exposure to tasking alone. This low flight rate requires the Respondent's crews to be able to maintain their high flight standard with an irregular exposure to different flight types. Mr Fisher says that this is especially relevant to the interval to night winching serials, which is routinely 6-8 weeks.
[130] Mr Fisher says that as part of the review into Ms Henderson's training performance, the Respondent considered whether placing operation limitations on Ms Henderson during her initial period of line operations was an appropriate course of action. It was agreed during the review that historically the Respondent had placed a limitation on some pilots to contact the Head of Flight Operations for clearance to conduct winching operations. In this case Mr Fisher says that the pilot had completed all training and had been assessed at the Respondent's standard for winching. The limitation was in place to ensure the pre-mission captaincy considerations regarding the winch had been appropriately considered. Mr Fisher says that Ms Henderson's issue was not her captaincy but that she had not reached the Respondent's standard to safely winch. Mr Fisher further says that the requirements of the Respondent's EMS tasking and service requirements demand that all of the Respondent's Line Pilots are required to be winch capable. Furthermore, Mr Fisher says that the Respondent's TCM requires achievement of the service standard prior to commencing line operations.
Was the dismissal harsh, unjust or unreasonable?
[133] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Henderson's dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
[138] The Respondent contends that the capacity to safely winch and operate the AW139 aircraft on a consistent basis is an important part of the substantive position of a Line Pilot. The Respondent's competency standards for Line Pilots are higher than the minimum CASA standard. These competency standards include those with respect to low-level operations, operating in hilly and difficult terrain, winch operations and NVIS operations.
[139] The Respondent submits that the TCM is structured such that a new Line Pilot must not only have the requisite experience to perform the role, they must also complete prescribed training and checking (competency assessments) before they are cleared to work as a Line Pilot in an operational capacity. The Respondent contends that proficiency check flights (e.g. IPC, OPC, NPC), while critical, are only one part of the verification and monitoring process of the Respondent when assessing whether a Line Pilot has attained and maintained a competency required to carry out their responsibilities to the Respondent's standards.
[140] It is submitted by the Respondent that it had a sound, defensible and well-founded reason to dismiss Ms Henderson because she was not able to consistently perform one of the essential requirements of the position of a Line Pilot, namely maintain a stable hover of the AW139 aircraft, particularly during night winching operations.
[141] In summary, Ms Henderson contends that there was no valid reason for her dismissal because:
(a) there were deficiencies in the wording of the termination letter;
(b) Ms Henderson was entitled, and not permitted, to complete a line check;
(c) Ms Henderson was entitled to, and not given, remedial training;
(d) the Respondent could have checked Ms Henderson to line with an operational limitation on NVIS winching, as it had done in the past; and
(e) Ms Henderson's performance in her new employment with Toll Helicopters, after the termination of her employment with the Respondent, demonstrates that she has the skills to operate as a HEMS pilot in a AW139 aircraft.
[142] The termination letter relevantly provides:
"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.'
The above statement includes the requirement to meet the training and checking standards of the organisation and receive the appropriate 'accreditation' to carry out the duties of a Line Pilot. Based on the following factors you have not been successful in meeting the required standard and therefore are unable to fulfil the requirements of your Line Pilot role.
A review of your training and checking results since your commencement on the 11th October 2021 have indicated the following concerns in relation to your competency as a Line Pilot:
[143] The Respondent's training and checking standards for the position of Line Pilot include the consistent demonstration of competency in required flying skills. One such skill is the ability to consistently maintain a stable hover during NVIS winching operations. I accept that Ms Henderson's failure to meet this standard constituted a "failure to attain and maintain necessary ... accreditations and the like necessary for the performance of the Employee's duties" within the meaning of clause 16.2.1(iii) of the Enterprise Agreement. In any event, the bullet points in the termination letter provide clarity as to the Respondent's reason for termination. Even if the reason articulated in those bullet points did not meet the requirements of clause 16.2.1(iii) of the Enterprise Agreement, it would not mean there was no valid reason for termination.
[144] I do not accept the argument that Ms Henderson had a right to complete her line check. It is a matter for the Respondent to determine whether a Line Pilot is at the standard to warrant a line check and, if successful, to then commence duties as a Pilot in Command. So much is clear from clause C4.3.3 of the TCM, which refers to the "point of recommendation for a Line Check" in the context of pilot line training. Also, clause C4.4.3(5) provides that prior to their initial line check, the "pilot under check shall meet all of the minimum experience and recency requirements of the CARs, CASRs, CAOs, the Ministry of Health Contract and this Operations Manual". The Respondent formed the view that Ms Henderson had not met all such requirements because she had not demonstrated a consistent ability to maintain a stable hover, mainly during night winching exercises.
[145] There is a dispute between the parties as to whether the remedial training provisions of the TCM, on their proper construction, applied to Ms Henderson as a Line Pilot who was in training and had not undertaken her line check. By way of context, clause 20.4 of the Enterprise Agreement provides:
"Where an Employee fails to meet the training and checking standards that are a requirement to perform their role they will be relieved from operational duties. The Employee will be given an opportunity to undertake remedial training and retesting as outlined in the Operations Manual. Any failure to meet the training requirements after remedial training will be referred to the appropriate Training and Checking Committee for further action..."
[146] Clause 12.1.1 of the Enterprise Agreement is also relevant. It relates to the probationary period for employees and provides:
"On commencement, the first six (6) months of employment are deemed to be a probationary period. During this time, the Employer is committed to assisting the Employee to gain the skill set required for the role and assess their suitability for the position."
[147] The following provisions of the TCM, otherwise known as the Operations Manual, are relevant to this issue:
1. All initial AW139(SP) Type Rating ground and flight training shall be undertaken at a facility, and in aircraft and simulators, approved by CASA.
2. Where a simulator is used, valid simulator and training provider certifications shall be obtained and retained by the Company in the Air Maestro Operational Documents Library.
3. On completion of this training the pilot shall be issued with an AW139(SP) Type Rating on their licence in accordance with the processes of CASR Part 61.
1. Upon commencing work for the company a pilot will undergo Conversion and Line Training. The Conversion Training course detailed ground and flight syllabus are located within the Air Maestro Operational Document Library, files numbers 8044 and 8045 respectively. Air Maestro Check Form numbers 9001 to 9005 will be used as applicable to the flight. The syllabus outline for pilot Conversion Training is contained within Appendix 1 of this section.
2. Pilot Conversion Training flights may only be conducted by a TCP approved under this TCO.
3. Pilot Conversion Training consists of two phases:
a. 4 x 2.0-hour simulator sorties followed by an Operator Proficiency Check (OPC); and,
b. 1 x 1.5-hour day winch sortie followed by 3 x 1.5-hour NVG sorties prior to an NVIS Proficiency Check (these sorties are all in the aircraft).
4. The number of Conversion Training flights may be varied depending upon the background, experience, recency, and intended flying duties of the pilot, and as determined by the HTC. In all cases, a minimum of one day and one night simulator training flight will be conducted to confirm readiness for an OPC. And at least one day winch plus one NVIS winch sortie will be conducted in the aircraft to confirm readiness for an NVIS Proficiency Check.
5. Completion of the Conversion Flying Training program is to be achieved with a maximum of 18 hours ICUS flight time, depending upon the previous experience on Type and in a similar helicopter medical transport operation.
6. Conversion Training flights shall be conducted in QSTD and aircraft. Where conducted in the aircraft, and if non-normal exercises are required training elements, CASA approval under CAO 82.0 paragraph 7.3 is required.
1. Line Training shall be conducted after the Conversion Training and only following successful completion of an OPC and NVIS Proficiency Check. The requirements for Line Training are as follows:
a. The trainee shall occupy the command seat of the aircraft, logging ICUS, with a TCP in the co-pilot seat. An ACO shall also be included as crew to allow their usual duties, as defined within A1.4.13, A5.14 and B6.2, to be conducted.
b. If new to Type, a minimum of 15 hours ICUS, shall be attained prior to recommendation for a Line Check.
c. Where the pilot is already experienced on Type a minimum of three Line Training flights shall be conducted, with a minimum of one being a primary scene response, and one being at night.
d. Line Training flights are not required unless a pilot is employed to conduct operational missions.
e. Line Training flights shall only be conducted in the aircraft, and conducted as part of a normal operational mission. Non-normal exercises are not permitted during Line Training flights.
2. The detailed Line Training syllabus is located within the Air Maestro Operational Document Library, file number 8046. The syllabus outline for pilot line training is located at Appendix 2 to this section.
3. Competency, to the point of recommendation for a Line Check, is to be achieved with a minimum of 3 and maximum of 6 operational missions whilst ICUS. Where actual mission tasking does not allow this to be achieved, simulated missions with a full crew may be utilised to meet the Line Training requirements. "Operational missions" are defined as being Primary or Secondary Air Ambulance or SAR missions tasked under contractual arrangements with state government authorities."
"C4.3.9 REFRESHER ASSESSMENTS AND REMEDIAL TRAINING
1. Pilots returning to the line following periods of absence in excess of 45 days, where no flying as AW139 PIC has been undertaken, will be rostered for a training day to refresh knowledge of operational changes, including an assessment flight in order to assess their maintenance of competency standards for a return to Line Operations. Depending upon the period of absence, and at the discretion of the HTC, training may also be required prior to the Refresher Assessment. Sequences covered shall include Line Check elements as described within C4.4.3 including confined area, winch and IFR handling, plus an instrument approach.
2. Refresher assessments shall only be conducted by a Company TCP.
1. Remedial training shall be carried out whenever a pilot does not demonstrate the required level of competence during any training or checking, or as a result of poor performance during line operations.
2. The HTC shall notify any such remedial training requirements to the Chief Pilot.
3. Remedial training shall only be conducted by a CASR Part 61 Flight Instructor with the relevant training endorsement, or a Company TCP.
4. Following the failure to exhibit the necessary knowledge, skills, behaviour or attitude required of a pilot during any training, checking or line operations, the pilot will be removed from operational duties until satisfactory remedial training and checking has been completed.
5. The HTC shall arrange appropriate remedial training. In the case of knowledge assessment deficiencies, this shall take the form of assistance with theory training as required. In the case of flight performance deficiencies this shall be a minimum of one remedial tutorial, plus a maximum of two flights of 1.0 to 1.5 hours duration in an aircraft, synthetic trainer, or simulator, as appropriate to the training required.
6. Following the above remedial training, the pilot shall be retested in the deficient items of theory and/or flying skill.
7. If a pilot subsequently fails to exhibit the necessary knowledge or flying skill when under check following the remedial training, the matter shall be referred to a committee comprising of: CP, HTC, and relevant TCP(s) involved. Matters to be taken into consideration regarding any recommendation of the committee are: the pilot's experience level; recency; past record of remedial training; and any other relevant mitigating circumstances that could impact on pilot performance; for example, recent sickness, injury, or personal relationships.
8. Following a meeting of the above committee, the CP in consultation with the HTC, will direct the course of action to be taken in relation to additional remedial training and testing, or other administrative action.
9. If the CP determines the pilot should be permanently removed from flying operations, this recommendation shall be passed to the CEO for final consideration and appropriated action.
10. Any pilot undergoing remedial training shall be informed in writing of the progress and ramifications of each stage of the remedial training process. Should the pilot express dissatisfaction with any aspect of the training this shall be recorded and discussed with the HTC prior to the next stage in the process taking place. The CP shall have the final authority on dispute resolution.
11. Should any pilot require remedial training more than once in 18 months in relation to similar elements of training or checking, the matter shall be referred to the committee indicated above and the subsequent actions described followed.
12. Following successful remedial training the pilot shall return to full operational duties."
[148] I consider that there is ambiguity in clause C4.3.9.2 of the TCM as to whether the obligation to undertake remedial training applies to all pilots or just those who have passed their initial training and have been checked to line. The use of the undefined word "pilot" in clause C4.3.9.2 gives rise to this ambiguity. However, when the provisions are read in context, as they must be, it is relatively clear, in my opinion, that the remedial training provisions do not apply to pilots who have not yet been checked to line. Clauses C4.3.9.2(4) and (12) deal with a pilot being removed from "operational duties" to undertake remedial training and returned to "operational duties" following successful remedial training. This provides a strong indicator that the remedial training provisions only apply to those pilots who have passed their initial training, are checked to line, and are undertaking "operational duties". It would be odd to think of a pilot in training, who has not yet been checked to line, as having "operational duties" as a pilot. Clause C4.4.3(1) makes pellucid that a line check must "be conducted prior to undertaking operational duties". In addition, clause C4.3.2(4) addresses the circumstances of a pilot who is undertaking conversion training requiring further conversion training flights, depending on their "background, experience, recency". Such additional training would be provided, at the discretion of the Head of Training and Checking, where the pilot undertaking the conversion training needs further (i.e. remedial) training to get them to the required standard. That the provisions of the TCM which govern the early stages of training for a pilot address the concept, albeit not by name, of remedial training is a further contextual indicator that the later general provisions concerning remedial training (clause C.4.3.9.2) do not apply to pilots who have not yet been checked to line. In construing the relevant provisions of the TCM and determining the obligations imposed by the TCM on the Respondent and its pilots, I have not given any weight to the opinions expressed by Mr Miller in his witness statement concerning what is said to be 'common practice', 'normal', 'usual', 'unusual' or what 'most operators' do in the industry, nor have I given weight to Mr Miller's opinion evidence about regulatory matters. I consider that the TCM is the instrument that relevantly applies to the Respondent and its pilots; it has been prepared for use by the Respondent having regard to the regulatory environment in which it operates.
[151] I am satisfied on the evidence that the Respondent had a valid reason to terminate Ms Henderson's employment on the basis of her inability to consistently maintain a stable hover of the AW139 aircraft in all conditions and circumstances. I accept that the position of Line Pilot is a safety critical position and the requirement for a Line Pilot to be able to consistently maintain a stable hover is an essential element of the role. Ms Henderson was not able to meet this requirement on a consistent basis during her training from the commencement of her employment in October 2021 until the cessation of her training on 22 March 2022. Further, I am satisfied that the Respondent's reason for termination related to the capacity of Ms Henderson because the reason was associated or connected with the ability of Ms Henderson to do her job as a Line Pilot.
[152] That the Respondent had a sound, defensible and well-founded reason to terminate Ms Henderson's employment weighs against Ms Henderson's contention that her dismissal was harsh, unjust and unreasonable.
[153] I am satisfied on the evidence that Ms Henderson was notified of the valid reason for her dismissal. The notification was provided in the termination letter and through the show cause process. This weighs in support of the Respondent's argument that Ms Henderson's dismissal was not harsh, unjust or unreasonable.
[154] During the investigation process Ms Henderson was given opportunities to respond, and did in fact respond, to the reason for her dismissal. In particular:
(a) Ms Henderson responded to the Respondent's concerns about her performance in the meeting on 24 March 2022, at which time Ms Henderson read out her pre-written response; and
(b) Ms Henderson responded to the Respondent's show cause letter in her detailed response dated 21 April 2022.
[155] I do not accept Ms Henderson's contention that she was not given an opportunity to respond to the reason for her dismissal because the Respondent predetermined the outcome before hearing from Ms Henderson and did not provide Ms Henderson with all the documents she requested.
[156] True it is that the show cause letter was prepared in draft form before the meeting at which the Respondent would listen to Ms Henderson's response to the concerns about her performance and decide whether she would be required to show cause why her employment should not be terminated. However, the decision to send the show cause letter to Ms Henderson was not made until Ms Henderson had provided her response at the meeting on 24 March 2022. Further, this part of the process took place well before the decision was made by the CEO of the Respondent to terminate Ms Henderson's employment. That decision was only made after a show cause letter was provided to Ms Henderson, an extension of time was given to Ms Henderson to respond to the letter, Ms Henderson provided a very detailed response to the show cause letter, and the CEO obtained recommendations from three members of the senior management team as to what decision should be made in relation to Ms Henderson.
[157] As to the request for documents, I am satisfied by the evidence that the Respondent explained in clear terms the concerns it had with Ms Henderson's performance and gave her every opportunity to respond to those concerns before it made any decision about the termination of her employment. I do not consider that Ms Henderson required any further documents to be given a fair opportunity to respond to the reason for her dismissal.
[158] Having regard to all the circumstances, I am satisfied that Ms Henderson was given an opportunity to respond to the reason for her dismissal which related to her capacity. This weighs in support of the Respondent's argument that Ms Henderson's dismissal was not harsh, unjust or unreasonable.
Unreasonable refusal to allow a support person (s 387(d))
[159] There is no dispute, and I am satisfied on the evidence, that there was not any unreasonable refusal by the Respondent to allow Ms Henderson to have a support person present to assist in any discussions relating to her dismissal.
Warnings of unsatisfactory performance (s 387(e))
[160] Ms Henderson submits that she was not warned that her unsatisfactory performance could result in dismissal, save for being told that failing her NPC could possibly result in termination of her employment. This occurred during the meeting between Ms Henderson, Mr de Winton and Ms O'Grady on 13 January 2022. Ms Henderson says that the meeting was not conveyed as a disciplinary meeting and the warning about termination was informal.
[161] Ms Henderson contends that a similar meeting took place on 19 January 2022. Ms Henderson says she was not warned about performance issues that could affect her ongoing employment and none were raised.
[162] Ms Henderson submits that the Respondent did not warn her about performance issues that could affect her ongoing employment at any time after 13 January 2022 or before 23 March 2022.
[163] The Respondent contends that Ms Henderson was warned about the areas in which her performance was deficient and was given an opportunity to improve her performance in those areas before a decision was made to terminate her employment.
[164] I am satisfied on the evidence that Ms Henderson was given feedback after each sortie about her performance during the sortie. The feedback included an explanation of the areas in which Ms Henderson needed to improve her performance. A common issue addressed in the feedback provided to Ms Henderson was the need for her to maintain a consistently stable hover, particularly when conducting NVIS winching in circumstances where there were no convenient points of reference. Further, in the meeting on 13 January 2022, Mr de Winton referred to the concern in relation to maintaining a stable hover during winching and warned Ms Henderson that her employment may be terminated if she did not pass her NPC, which involved assessing her skills in NVIS winching. For these reasons, I am satisfied that Ms Henderson was warned about the primary concern held by the Respondent in relation to her performance and was aware that her employment may be terminated if her performance in that area did not improve.
[166] In all the circumstances, I am satisfied that Ms Henderson had been warned about her unsatisfactory performance before her dismissal. This weighs in support of the Respondent's contention that Ms Henderson's dismissal was not harsh, unjust or unreasonable.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
[167] The Respondent is a substantial enterprise; it employed approximately 140 employees at the time it filed its Form F3 Response to Ms Henderson's unfair dismissal application. The Respondent has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of the Respondent's enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Ms Henderson's dismissal.
[168] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[169] Ms Henderson has lived with her family on a farm in Lismore for about 10 years. It had been a long-held aspiration of Ms Henderson to gain a position as a Line Pilot with the Respondent at its Lismore base because the Respondent is the only locally based HEMS operator close to her family farm. Ms Henderson had applied for a position with the Respondent many times in the past and spent two and a half years as a HEMS pilot touring to Horn Island, away from her family, to gain industry experience and increase her competitiveness for a position with the Respondent.
[171] Ms Henderson's prediction about obtaining alternative employment away from her local area in a touring position has turned out to be accurate. Following her dismissal from the Respondent, on 22 August 2022 Ms Henderson gained employment with Toll Helicopters as a Crash Rescue Helicopter line pilot. It is a touring position, two weeks on and two weeks off, which requires Ms Henderson to be away from her family on a regular basis. Ms Henderson's remuneration in her new position with Toll Helicopters is very similar to the remuneration she earned during her employment with the Respondent. Ms Henderson was dismissed by the Respondent with five weeks' pay in lieu of notice on 6 May 2022 and there was a further 10 weeks and 2 days where she received no income before obtaining employment with Toll Helicopters.
[172] These matters weigh in support of Ms Henderson's argument that her dismissal was harsh in its consequences for her personal situation.
Mitigating factors associated with training provided to Ms Henderson
[173] I consider that the following significant mitigating factors must be considered when assessing the amount, quality and cost of the training provided to Ms Henderson during the first six months of her employment with the Respondent.
[175] Secondly, Ms Henderson was given the wrong simulator training course by Toll Helicopters at the commencement of her employment with the Respondent. She should have undertaken the single-pilot course in the AW139 aircraft, not the multi-pilot course. This error was not detected until late November 2021. Giving Ms Henderson the wrong course delayed the completion of her training and put her at a disadvantage at the commencement of her conversion training because she had not undertaken the pre-conversion training at the single-pilot level.
[176] Thirdly, unlike other pilots with similar backgrounds and experience, Ms Henderson was not provided with an initial flight to allow her to adapt to the AW139 aircraft, which is a complex aircraft. Instead, she was expected by Mr Shepherd, in her first flight as a pilot in a AW139 aircraft, to undertake a complex winching scenario under time pressure.
[178] Fifthly, although Ms Henderson accepts that she did not perform well during her training sortie with Mr Overton on 5 January 2022, the weather conditions on that night were poor and Ms Henderson would not have accepted a mission in which she was required to winch in those conditions with her level of experience in the AW139.
(g) At a training review meeting on 21 March 2022, Mr Fisher advocated again for the cessation of training to Ms Henderson. This time, Mr Fisher's view prevailed and agreement was reached by those at the meeting to cease Ms Henderson's training. It is noteworthy that Mr de Winton, who had previously supported Ms Henderson in such meetings, was not present because he had been removed from the position of Head of Flight Operations. I do not accept the Respondent's submission that Mr de Winton was biased in favour of Ms Henderson. First, that suggestion was not put to Mr de Winton in cross examination. Secondly, Mr de Winton was only one person on the recruitment team that selected Ms Henderson for employment in 2021. Thirdly, the Respondent's primary point about Ms Henderson's performance is that it varied and was not consistently at the standard required in relation to the narrow area of concern pertaining to maintaining a stable hover. It is therefore not surprising that Mr de Winton did not have any concerns with Ms Henderson's performance during the particular training flights he conducted with her.
(i) Finally, following the termination of Ms Henderson's employment, the Respondent employed the experienced AW139 pilot who Mr Fisher argued, in about September 2011, should have been employed in preference to Ms Henderson.
[185] I find on the balance of probabilities that, at the time of her dismissal, Ms Henderson required a further period of training of about two weeks and if she was provided with such further training, it is likely that she would have met the standard required by the Respondent in relation to consistently maintaining a stable hover.
[187] In addition, when considering the amount of additional training required to get Ms Henderson to the standard required, it is relevant to note that although the Respondent provided Ms Henderson with more training than it initially had planned to provide it did not provide the following training recommended by senior employees of the Respondent:
[188] In my view, it would have been reasonable for the Respondent to act in accordance with Mr Humphreys' recommendation by permitting Ms Henderson to undertake her line check and, if successful, communicate with New South Wales Ambulance about whether it would be acceptable for Ms Henderson to undertake operational duties with a limitation on NVIS winching for a period of three to six months, during which time Ms Henderson would undertake further training. There was a chance that such an arrangement may not have been acceptable to New South Wales Ambulance having regard to the fact that only one aircraft operates from the Lismore base. But the evidence demonstrates that such arrangements had been put in place in the past with the approval of New South Wales Ambulance, indicating that there was at least some prospect of an operational limitation being acceptable in respect of Ms Henderson. The Respondent did not explore this possibility with New South Wales Ambulance. Instead, it chose to terminate Ms Henderson's employment.
Affording more time to Ms Henderson to respond to the show cause letter
[189] The Respondent acceded to Ms Henderson's request for additional time to respond to the show cause letter issued to her. As a result, Ms Henderson's employment extended just beyond the six-month minimum period of employment provided for in s 383 of the Act. I consider that the Respondent's conduct in agreeing to such an extension weighs in favour of its argument that Ms Henderson's dismissal was not harsh. I will accord this matter due weight when I make an overall assessment as to whether Ms Henderson's dismissal was harsh in all the circumstances.
Conclusion on harsh, unjust or unreasonable dismissal
[190] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that the Respondent's dismissal of Ms Henderson was not unjust, but it was harsh and unreasonable in all the circumstances.
[191] 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.
[195] I therefore find that the Respondent's dismissal of Ms Henderson was unfair.
[196] Having found that Ms Henderson was protected from unfair dismissal, and that her dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. Ms Henderson seeks the remedy of reinstatement, together with orders maintaining her continuity of employment with the Respondent and backpay.
[197] The Respondent submits that it would be inappropriate to reinstate Ms Henderson because it has lost trust and confidence in her such as to make reinstatement impractical. The Respondent contends that it does not have trust and confidence that Ms Henderson could safely and effectively perform the Line Pilot role and this view is soundly and rationally based on Ms Henderson's employment history and the Respondent's safety obligations. The Respondent emphasises the fact that the Line Pilot role is a safety critical role and Ms Henderson has failed, in the Respondent's assessment, to demonstrate the competencies required to perform the role.
[198] The Respondent submits that it is difficult to see how an employment relationship could be restored with a sufficient level of cooperation, confidence and mutual trust following reinstatement to be viable in circumstances where Ms Henderson has demonstrated in her evidence and submissions:
(a) A lack of recognition of the performance issues that occurred during her training, including those during the 4, 5 and 6 January 2022 training sorties and the subsequent training review process and meetings with human resources that took place. Ms Henderson's written evidence did not acknowledge any shortcomings in her performance. Rather, she demurred and detracted from those matters. It was not until cross examination that Ms Henderson made any concessions regarding her flying and that was largely limited to accepting Mr Fisher did have some criticisms of her NVIS hovering on 20 and 21 December 2021, that she did not fly the sortie on 5 January 2022 'well' but it was due to other contributing circumstances such as weather and location, and that she received feedback on 16 March 2022 from Mr Humphreys regarding drift;
(b) A lack of appreciation of the seriousness of the performance issues that led to her dismissal - being issues with the essential flying skills of a Line Pilot following more than 90 hours of training - or the inherent safety risk of those concerns; and
(c) That she holds the view she was treated differentially by the Respondent. This submission is further supported by Ms Henderson's clear attack on the actions and opinions of Mr Fisher, the Respondent's Head of Flying Operations, both on a professional and personal basis. Mr Fisher's actions were reasonable in the performance of his senior roles that have statutory obligations to safely manage training activities and conduct safe, efficient and compliant operations in a highly regulated industry. Ms Henderson's characterisation of all actions taken by Mr Fisher to be biased since her recruitment supports the contention that a productive and viable relationship would not be able to be restored. This damaged relationship would undermine crew resource management and aviation safety leadership within the Respondent and has the potential to lead to future disputation in the workplace.
[199] The Respondent submits that a critical part of helicopter aviation is the importance for the entire crew to have trust in one another. It is submitted by the Respondent that such trust in Ms Henderson to perform the full inherent requirements of the Line Pilot role was not held by the Respondent's employees prior to her dismissal, with the exception of Mr de Winton who recruited Ms Henderson for the role. Where Ms Henderson is brought back into the Respondent's business as a Line Pilot by way of reinstatement order, this would impair the Respondent's managerial prerogative and ability to take risk mitigation measures to ensure that the crew has trust in one another where there are identified and documented concerns by multiple crew members. It would require Ms Henderson to fly with crew, who themselves did not have the requisite trust and confidence in her during employment, and paramedics, doctors and patients in a challenging and dynamic risk environment. The Respondent submits that this would foster a damaging culture within the workplace that is not productive or viable.
[200] The Respondent further submits that the Line Pilot role requires the Respondent to obtain the consent of New South Wales Ambulance to engage Ms Henderson to perform the services and New South Wales Ambulance has the contractual right to reject any proposed personnel. It is contended that it would not be appropriate for the Commission to order reinstatement in circumstances where Ms Henderson's ability to perform the inherent requirements of the role and obtain approval of New South Wales Ambulance would not be known to the Commission at the time of making the order.
[201] It is submitted by the Respondent that the Lismore base currently has five Line Pilots, including a new Line Pilot who replaced Ms Henderson on 25 July 2022. Because it is not known what resources would be required to get Ms Henderson's performance to the Respondent's standard to perform the Line Pilot role, the Respondent contends that it would be inappropriate for the Commission to reinstate Ms Henderson. The Respondent also says that reinstatement would result in an additional unbudgeted cost of approximately $190,000 per annum (wages plus superannuation) plus training costs for the Lismore base. Practically, the Respondent submits that reinstatement would mean that there is an additional pilot on base without work to perform because the resources required to under the services require a roster of 4 days on, 4 days off roster of 12 hour shifts that is already filled. If the roster was adjusted due to Ms Henderson's reinstatement to reduce the hours of other employees, or to have an additional pilot without duties at the base, then this would likely have flow-on issues, including impact the flying currency requirements hours of pilots.
[202] The Respondent does not agree that Ms Henderson would not require further training if she were reinstated. The Respondent's TCM would still apply to Ms Henderson and she would be required to undertake and complete additional training with the Respondent's training team prior to commencing operations as a Pilot in Command. In this regard, the Respondent says that Toll Helicopter's operations pursuant to the contract under which Ms Henderson is currently working are not identical to the Respondent's operations.
[203] The Respondent submits that Ms Henderson's assertions concerning her strong connections with, and support from, Lismore based pilots, ACOs, engineers, paramedics and doctors are not supported by evidence.
[204] Lastly on reinstatement, the Respondent relies on the requirement under the Act to ensure that a 'fair go all around' is accorded to both the employer and the employee in unfair dismissal proceedings. The Respondent contends that it is critical and in the public interest that, as an aviation provider who carries passengers and with safety responsibilities under CASA and workplace health and safety laws, the Respondent and its management team are able to make reasonably practicable decisions about the competency of its operational crew members, particularly where the crew members are conducting their initial training prior to commencing operational duties without supervision. It is submitted that the nature and quality of the work conducted in the Respondent's operations weighs in favour of the Commission not intervening to order reinstatement in this case.
[205] The Respondent acknowledges that it is the only locally based HEMS operator in the Lismore area, and that Ms Henderson has needed to return to touring pilot positions following her dismissal by the Respondent. However, the Respondent submits that those matters, particularly taking into account Ms Henderson's short employment period and the fact that she resided in the Lismore area without employment with the Respondent for approximately eight years prior to her six months and 26 days of employment with the Respondent, are not sufficient to counterbalance the strong competing considerations against and order for reinstatement given the particular circumstances of this case.
[206] In the event that the Commission finds in favour of Ms Henderson with respect to reinstatement, the Respondent submits that there ought to be no orders made for continuity of service or back pay. A decision to order reinstatement is separate and distinct from the exercise of a discretion to make an order maintaining an employee's continuity of employment and continuous service. It is submitted that the reinstatement of Ms Henderson would still require the Respondent to assess her competency to commence Pilot in Command operations in accordance with clause C4.2.2 of the TCM. It is submitted that Ms Henderson's period of service with the Respondent should not be continuous taking into account the time that has now elapsed since she was employed by the Respondent, the time that it will take for her to undertake further training and the fact that she did not during her employment undertake the full requirements of the Line Pilot role.
"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."
[213] I accept the consistent evidence given by Ms Henderson and Mr Maas that the essential skills and requirements of a crash rescue helicopter pilot are essentially the same as those required of a HEMS pilot, including NVIS winching. It follows that, in the period since 22 August 2022, Ms Henderson has received significant additional training and experience in an AW139 aircraft undertaking similar work to that which is required of a Line Pilot employed by the Respondent. This additional training and experience with Toll Helicopters, coupled with the fact that Ms Henderson had a narrow area of deficiency when she was being trained by the Respondent, gives me confidence that Ms Henderson would be able to perform the requirements of the role of Line Pilot with the Respondent in a safe and competent manner if she were reinstated. I accept that the Respondent would need to assess Ms Henderson's competency and provide her with further training in accordance with the requirements of the TCM before checking her to line and giving her operational duties if she were reinstated. On the evidence before the Commission, I am satisfied on the balance of probabilities that if Ms Henderson were reinstated by the Respondent she would be checked to line within a reasonably short period of time and then able to be assigned operational duties.
[214] As to the Respondent's contention that it does not have the trust and confidence in Ms Henderson's ability as a pilot to reinstate her as a Line Pilot, I accept that the position of Line Pilot is a safety critical role and it is essential that the Respondent's Line Pilots be able to conduct their duties in a consistently safe and competent manner. However, the Respondent's area of concern in relation to Ms Henderson's skills and ability was narrow, it was agreed that the deficiency was remediable with further training, and Ms Henderson has received a significant amount of additional training and experience in an AW139 aircraft since her dismissal. There has never been any doubt about Ms Henderson's captaincy skills or her ability to make safe and well-thought-out decisions as a Pilot in Command. The evidence demonstrates to my satisfaction that Ms Henderson either now has, or will have after a brief period of further training by the Respondent, the skills and ability to undertake the role of Line Pilot for the Respondent in a safe and competent manner on a consistent basis, including maintaining a consistently stable hover during NVIS winching and other activities. Assuming that Ms Henderson performs well in her further training by the Respondent and is checked to line (as I expect will be the case), there would be no rational basis for any of the Respondent's employees or any paramedics, doctors or patients to have a lack of trust or confidence in Ms Henderson's ability to safely and competently operate a AW139 aircraft.
[215] There would clearly be a cost to the Respondent to assess Ms Henderson's competency and provide her with whatever additional training is required by the Respondent's TCM before conducting her line check following her reinstatement. This is a matter which weighs against making an order for reinstatement. However, no evidence was adduced to suggest that the Respondent could not afford such costs or that they would cause the Respondent significant financial difficulties. As a result, the weight to be given to this factor is not as significant as it would be in a case where the costs associated with assessing the competency of an employee and providing further training to them after reinstatement would cause significant financial difficulties to the employer.
[217] True it is that Ms Henderson has been critical in her evidence and submissions of particular conduct on the part of Mr Shepherd and Mr Fisher. Mr Shepherd has left his employment with the Respondent. As a result, he will not be working at the Lismore base if Ms Henderson is reinstated. In any event, Mr Shepherd did make inappropriate comments to Ms Henderson during her first training flight, including that he was keeping a 'paper trail' for the purposes of her dismissal. As to Mr Fisher, I have found for the reasons explained in paragraph [184] above that he wanted the Respondent to employ an experienced and qualified AW139 pilot in lieu of Ms Henderson, and after he was not able to convince others to agree to that course of action, he repeatedly campaigned for Ms Henderson's dismissal throughout her employment. On the evidence before the Commission it is clear that Mr Fisher was the chief instigator, and most forceful advocate in favour, of the decision ultimately made by the CEO to dismiss Ms Henderson. That is a decision which I have assessed to be harsh and unreasonable in all the circumstances. It follows that Ms Henderson had a sound and rational basis in her evidence and submissions to criticise Mr Fisher's role in the termination of her employment. Notwithstanding this, Ms Henderson came across during her evidence as a very calm and level-headed person; I do not sense that Ms Henderson has any personal animosity towards Mr Fisher and I am confident that Ms Henderson would be able to work with Mr Fisher in a professional and courteous manner in his role of Head of Flight Operations based in Newcastle, if she were reinstated to her position of Line Pilot based in Lismore.
[218] Having regard to all the circumstances, I am comfortably satisfied that a sufficient level of trust and confidence can be restored to make an employment relationship between Ms Henderson and the Respondent viable and productive.
[219] That New South Wales Ambulance has the contractual right to reject any proposed personnel engaged by the Respondent does not, in my assessment, weigh in support of an argument that it would be inappropriate to order the reinstatement of Ms Henderson. There is no evidence or reason to suggest that New South Wales Ambulance would exercise this right unless it had any genuine concerns about the safety, competency or relevant personal traits of a Line Pilot employed by the Respondent. For the reasons I have already explained, I consider it highly likely that Ms Henderson will be checked to line by the Respondent within a short period of time and assessed as safe and competent to work as a Pilot in Command on an AW139 aircraft.
[220] I accept that the Respondent has five Line Pilots employed at the Lismore base, does not require any other Line Pilots based at Lismore, and will incur additional costs and inconvenience to its operations and potentially to other Line Pilots if Ms Henderson is reinstated to her position as a Line Pilot based in Lismore.
[223] Ms Henderson's union representatives lodged her unfair dismissal application in the Commission on about 25 May 2022. The remedies sought by Ms Henderson in that application were reinstatement, an order to maintain continuity of employment, and an order to restore lost pay. Accordingly, the Respondent was aware when it employed two new Line Pilots at the Lismore base on 25 July 2022 that Ms Henderson was challenging the fairness of her dismissal and was seeking to be reinstated to her position as a Line Pilot at the Lismore base. If the Respondent has not taken any steps to engage at least one of the new Line Pilots based in Lismore on an outer limit contract or some other basis that would address the prospect that Ms Henderson could be reinstated to her position as Line Pilot based in Lismore, then the cost and inconvenience associated with ordering the reinstatement of Ms Henderson to the position of Line Pilot at the Lismore base such that there are six Line Pilots at that base is largely a consequence of the Respondent's own actions or inactions. For these reasons, I will give limited weight to the matters referred to in paragraph [220] above when assessing the appropriateness of an order requiring the Respondent to reinstate Ms Henderson.
[224] Having regard to all the circumstances, I do not consider that the making of an order to require the Respondent to reinstate Ms Henderson would result in the Respondent not being accorded a 'fair go all around'. There is no doubt that the Respondent and its management team should, as an aviation provider who carries passengers and with safety responsibilities under CASA and workplace health and safety laws, be permitted to make decisions about the competency of its operational crew members, particularly where the crew members are conducting their initial training prior to commencing operational duties without supervision. However, such decisions must not be unreasonable, harsh or unjust if the employee concerned is protected from unfair dismissal and the Respondent wishes to avoid the risk of a reinstatement order being made.
[225] In all the circumstances, my evaluative assessment is that the appropriate remedy in this case is an order under s 391 of the Act reinstating Ms Henderson to the position in which she was employed immediately before the dismissal: Line Pilot based at Lismore. For the reasons already explained, I am satisfied that a sufficient level of trust and confidence can be restored to make an employment relationship between Ms Henderson and the Respondent viable and productive. The other matters raised by the Respondent do not persuade me that reinstatement would be inappropriate in all the circumstances of this case.
[226] I also consider it appropriate to exercise my discretion to make an order under s 391(2)(a) of the Act to maintain the continuity of Ms Henderson's employment with the Respondent. I am not persuaded by the Respondent's arguments that such an order should not be made having regard to the time that has now elapsed since Ms Henderson was employed by the Respondent, the time that it will take for her to undertake further training and be assessed by the Respondent, and the fact that she did not during her employment undertake the full requirements of the Line Pilot role. Ms Henderson was employed by the Respondent for just over six months. She worked diligently and to the best of her ability during that period before being harshly and unreasonably dismissed. I consider that the interests of justice warrant the making of an order for continuity of employment in all the circumstances.
[228] A separate order [PR750263] will be issued giving effect to this decision.
Mr D Stephens, Senior Industrial Officer, and Mr J Marks, Senior Legal and Industrial Officer, of the AFAP, for the Applicant
Ms E Gruschka and Ms J Phillips, solicitors, for the Respondent
[1] PN2167; PN2202; Court Book at p 1023 (penultimate paragraph)
Susana Henderson
Northern NSW Helicopter Rescue Service Limited [2023] FWC 314