Dickson and Airservices Australia

CATCHWORDS – CIVIL AVIATION – whether cancellation of applicant's Air Traffic Controller (ATC) licence was the correct or preferable decision – whether applicant failed to meet the obligations specified in Regulation 269(1(c) of the Civil Aviation Regulations 1988 – applicant in breach of those duties – whether discretion to cancel ATC licence should be exercised – public protection – licence to be cancelled – decision affirmed.

Civil Aviation Regulations 1988 – regs 7, 269,
Corporations Law – s 829

Australian Securities commission v Kippe and Another (1996) 67 FCR 499; (1996) 137 ALR 423; (1996) 20 ACSR 679; (1996) 14 ACLC 1226
Hardcastle v Commissioner of Police (1984) 53 ALR 593
New South Wales Bar Association v Evatt (1968) 117 CLR 177; (1968) 42 ALJR 13
Pillai v Messiter [No. 2] (1989) 16 NSWLR 197
Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383

DECISION AND REASONS FOR DECISION [2001] AATA 553

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2000/1011
GENERAL ADMINISTRATIVE DIVISION      )

Re TIMOTHY DREW DICKSON

Applicant

And AIRSERVICES AUSTRALIA

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)
Mr A Argent (Member)

Date 18 June, 2001

Place Melbourne

DecisionThe Tribunal affirms the decision of the respondent dated 31 May, 2000.

S A FORGIE
Deputy President

REASONS FOR DECISION

This is an application by Mr Timothy Drew Dickson ("the applicant") for review of a decision of Airservices Australia ("Airservices"), dated 31 May 2000, to cancel his Air Traffic Controller ("ATC") Licence No V615 with effect from 31 May 2000. The applicant's licence was cancelled pursuant to r. 269(1) of the Civil Aviation Regulations 1988 ("CAR"). That regulation provides that the Civil Aviation Safety Authority ("CASA") may vary, suspend or cancel an ATC licence in certain circumstances. Pursuant to r. 7, the Director of CASA has delegated, in writing, powers and functions relating to Air Traffic Control and Flight Service Authorisations to Airservices. CASA's Instrument of Delegation Number 247/99 authorises the head air traffic controller to cancel ATC licences. Only the head air traffic controller holds this delegation.

At the hearing the applicant was represented by Mr P Rose, of counsel and the respondent by Ms M Young, of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence. Also admitted were:

(a)A – Assessment Reports on Applicant during his ab initio training
(b)B - ATC Performance and Check Reports on Applicant on Sector 6 dated 19 January 1997
(c)C - Assessment Reports on Applicant – Sector 5 Module
(d)D - ATC Performance and Check Reports on Applicant on Sector 6 dated 8 July 1998
(e)E- ATC Performance and Check Report on Applicant on Sector 5 dated 12 August 1998
(f)F - ATC Performance and Check Report on Applicant on Sectors 6 and 5 dated 24 August 1998
(g)G - ATC Performance and Check Report on Applicant on Sector 6 dated 3 January 1999
(h)H - ATC Performance and Check Report on Applicant on Sector 5 dated 8 February 1999
(i)I – ATC Performance and Check Report on Applicant on Sector 6 dated 21 July 1999
(j)J – ATC Performance and Check Report on Applicant on Sector 5 dated 8 August 1999
(k)K – ATC Performance and Check Report on Applicant on Initial TAAATS (The Advanced Australian Air Traffic [Control] System) Endorsement dated 29 September 1999
(l)L – Letter from Airservices to Applicant re termination of his Remedial Training Program dated 27 January 2000
(m)M – Unsigned Letter to Applicant from a Manager, Air Traffic Services ("ATS") re an examination under r.107(1) of the CAR dated 22 November 1999
(n)N – Letter from Applicant dated 11 April 2000 responding to Show Cause letter from Airservices dated 6 April 2000
(o)O – Extract from Chapter 5 Civil ATS Operations Administration Manual ("CATSOAM") re examination pass standards
(p)P – Affidavit by Applicant dated 18 October 2000 setting out his case
(q)Q – Investigation Report by Mrs D T Dalton concerning incident of 18 October 1999
(r)2 - Affidavit by A H Tiede, Team Leader, Air Traffic Management Procedures, Airservices dated 31 October 2000
(s)3 – Bundle of air traffic charts
(t)4 - Affidavit of R G Sciortino, Group Leader Desert Group, A-Airservices dated 31 October 2000
(u)5 – Occurrence Investigation Report by R Sciortino dated 5 April 1999 re occurrences of 6 February 1999
(v)6 – Affidavit of Ms S J Keey, Centre Manager Melbourne, Airservices

The applicant gave evidence and the other witnesses were:

(a)Mrs D T Dalton, an Investigating Officer, Airservices, Melbourne

(b)Mr A H Tiede, a Team Leader, Air Traffic Management Procedures, Airservices, Melbourne

(c)Mr I W Brokenshire, an air traffic control specialist, Australian Transport Safety Bureau ("ATSB")

(d)Mr R G Sciortino, Desert Group Leader, Airservices, Melbourne

(e) Ms S J Keey, National Training Manager, Airservices, Brisbane

THE ISSUE

The issue in this case is whether the cancellation of the applicant's ATC licence was the correct or preferable decision. That involved a consideration of two subordinate issues. The first was whether the applicant had failed to satisfy any requirement prescribed by, or specified under, the CAR and whether he had failed in his duty with respect to any matter affecting the safe navigation or operation of an aircraft. If he had failed in either, or both, of these respects, the second subordinate issue arises. That is whether the discretion to cancel the applicant's ATC licence should be exercised.

BACKGROUND

On the basis of the applicant's evidence, which was not challenged on these aspects, we make a number of findings of fact regarding certain facts forming the background to the issues we must consider. We will set those out in the following paragraphs.

We find that the applicant was born on 4 July, 1969 and is currently 31 years of age. He completed year 12 at secondary school and then attended the University of Sydney where he commenced a Bachelor of Science degree. After the first year, he deferred his study when his parents found his attending university somewhat of a financial struggle and he could not find employment. On returning to the town where he grew up, the applicant worked for a time at the RSL club. He had wanted to be a pilot and had applied to join the RAAF. His application was not accepted as he was too tall. He then enlisted in the Australian Army where there were no height restrictions and attended an officer training course at the Royal Military College, Duntroon. Six months before the conclusion of the course he (and the others) were asked their Corps preferences. The applicant chose aviation but was allotted to the ordnance corps. As ordnance duties were not what he joined the Army for he resigned and returned home. In all, the applicant spent 14 months at Duntroon.

The applicant then worked in a piggery for some six months before spending the following eighteen months as a trainee medical scientist in a pathology laboratory. As he found the pathology work was not what he expected, he re-applied to join the RAAF. He was again unsuccessful on the basis of his height but was then unable to continue as a trainee medical scientist as he had resigned from his job on the basis that he was going to train as a pilot. The applicant then worked for a time as a trainee golf professional and did some bar work.

He applied to become an ATC as he had always been interested in aviation. At one time, he had thought that Airservices only employed ex-military personnel but then discovered that it also employed civilians. He joined Airservices in 1995 when he was 26 years of age. On joining, he was required to undertake a 12 month course. That course assumed that its participants had no knowledge of aviation and was designed to qualify them to obtain an ATC rating and endorsement. Regular examinations were held during the course. If a participant failed that examination and the subsequent supplementary examination, he or she was not permitted to continue the course. The applicant was not required to sit for any supplementary examination during the course.

The course was divided into four segments. A report was prepared after each segment and signed by the senior instructor, course co-ordinator and trainee and, in the case of the final report, by the Manager of the ATS College. Other reports were also prepared. An early report, covering the period 28 November, 1995 to 25 January, 1996, noted that the applicant set himself high standards and was determined to achieve them. When he saw an opportunity to improve his performance, he adopted it quickly and effectively. Among his weaknesses the following were identified:

"Drew is reluctant to accept instructor's assessments, preferring to dwell on his own, usually negative, view of his performance. This preoccupation with the negative sometimes causes him to be deaf to alternative methods or options, and also means he can have trouble adjusting his work rate to suit increasing traffic because he is still fretting about his last 'disaster'. Drew's usual bemused or sarcastic response to constructive criticism will probably not do him any service during field training." (Exhibit A)

His attention was drawn to the need to have "Better prioritisation and task completion, and concentration on detail" (Exhibit A). The applicant commented on the report that he could see that some instructors might have the perception recorded in it but he did not, and did not accept that his classmates believed, that it was an entirely accurate representation of his personality and attitude.

The report at the end of the second phase noted an improvement in the applicant's acceptance of constructive criticism and encouraged him to heed the improvements he had made in that phase and to continue in the same manner. His untidy strip work was noted as a weakness but not considered a major problem. The applicant's strengths were his ability to assess rapidly new information, problem solving and a very good work rate and traffic management.

The report at the end of the third phase stated that the applicant was a good team member and working hard. While he had maintained the basic skills gained during the procedural phase and his radar skills were developing at a satisfactory rate, he had some difficulty with maintaining an adequate pace of work on Procedural. The report noted that the applicant "… shows a tendency to 'close down' when under pressure, and this is particularly apparent where co-ordinating/negotiating between P & R is required." As one of the strategies for his improvement, the report recommended that the applicant "… should consult with instructors to develop a defensive, one-step-at-a-time technique." (Exhibit A)

The applicant's final report spoke of the applicant's feeling that he was below the required standard at the beginning of phase 4. This affected his confidence but that improved as he gave capable performances in the simulator. His strengths and weaknesses, together with the course summary, were identified on his successfully completing phase 4 as:

"Strengths:    Drew constantly strives for improvement in his performance. He has been a good classroom participant, and after some practice, those skills transferred to the teamwork required in Radar/Procedural positions. He processes new information efficiently, and is able to adopt a defensive style when warranted.
Weaknesses:    Drew is his own hardest task master. Whilst this undoubtedly fuels his ambition for improvement, it can cause him to doubt his skills, or to expect too much from himself.
Course Summary:    Drew has worked hard in all areas of his training and has been a strong contributor to group activities. He has remained focused throughout. Drew has shown that he is keen to impress and has demonstrated a high level of study and application." (Exhibit A)

On the completion of the course in August 1996, the applicant went to the ATC Centre at Melbourne Airport for simulation and Sector training. He was attached to Sector 6 for six to eight weeks. It is controlled both by radar and procedural (i.e. lateral and vertical separation based upon timings) control. On 27 September, 1996, Mr Chapman reported on the progress of the Sector 6 training. In relation to the applicant, he noted that he needed to improve his scanning technique, to practise and improve his calculations and, in resolving conflicts, to have available a procedural alternative rather than simply relying upon the radar. At that time, Mr Chapman regarded the applicant as "borderline" and wrote that he had to improve his calculations and think like a procedural controller if he were to pass his simulator test. Errors with his calculations appeared to be a recurring problem and that was being closely monitored. (T documents, page 103)

The simulator report on 4 October, 1996 was also prepared by Mr Chapman. He wrote that the applicant had passed the simulator check but that the pass was conditional on his on the job training over the following two weeks (T documents, page 102). The applicant was required to improve in his coordination, his separation and in his stripwork by ensuring that he recorded all information on his strips. He had identified all conflictions during the exercise but it was the manner in which he had resolved them that led to the conditional pass. If he did not improve, he would be returned to the simulator for remedial training (T documents, pages 100-101).

The applicant's response was:

"It is by my own admission that the simulator check on the 4.10.96 was a well below average performance. I was overly nervous due to the fact that this was my first check shift in the 'real' AACC environment, and this had a detrimental effect on my performance. Nonetheless, I am confident that I can show a markable improvement on this performance and remedial simulator training will not be required." (T documents, page 101)

The subsequent training contract extended over nine shifts of on the job training between 6 October, 1996 and 24 October, 1996. The areas of deficiency were noted and measurable improvement was to be demonstrated on 24 October, 1996 (T documents, page 98).

On 23 October, 1996, the applicant underwent a further simulator check. The report stated that he had completed the requirements of his training contract. He had improved but needed to continue to apply himself if he were to get a rating (T documents, pages 94-96). In November 1996, the applicant received his initial endorsement to operate Sector 6 (T documents, page 97).

The applicant and the other ATCs were subject to periodic checks by team leaders every six months to ensure that they remained proficient. On 19 January, 1997 both his radar area control and procedural area control were both assessed. On a rating scale beginning at 5 and counting down to 1 and then "F", the applicant was assessed as a "2" on separation standards, meteorology ability, display, equipment, perception and judgement and coordination and communication (Exhibit B). He was given a "3" for traffic management. The comments made by Mr Shane Graham, who conducted the assessment, were:

"Drew appears to be consolidating and improving his controlling techniques, his speed also has improved. Drew must continue to be vigilant in broadning (sic) his experience and speed in his consolidation." (Exhibit B)

After a period as a Sector controller of Sector 6, he began on-the-job training on Sector 5, which is a procedural control only Sector. The training comprised three modules. The assessment for the third module, dated 5 June, 1997, reads:

"Drew has performed at a high standard for this stage of training. He has developed sound techniques which are enabling many things to be done automatically, saving time for more complicated problems. His airspace knowledge is excellent and all coordination is accurate and timely." (Exhibit C)

On 29 June, 1997, the applicant underwent a progress check in Sector 5. It was conducted by Mr Grayham Hannan, who noted that the applicant was uncharacteristically nervous and that this affected his performance. Mr Hannan noted that the applicant needed to pay attention to his stripwork and to improve his knowledge of the Sector. He noted that "Drew freely admits that ad-hoc situations tend to initially 'stump him' …" and gave an example of such a situation (T documents, page 93). The applicant's phraseology was at times loose and conversational and his lack of confidence on the day led him to mumble. Sector 6 had passed an erroneous estimate of time but he had not questioned it in the sense of journalising the estimate. A potential conflict was overlooked for 15 minutes.
The applicant was granted an endorsement on his licence for this Sector in February 1998. He was then required to remain current on both Sectors 5 and 6 but he performed the majority of his work over the next six months on Sector 5. On 8 July, 1998, he was assessed again in relation to Sector 6. His traffic management, display and perception and judgement were assessed at the level of "5" and his separation standards, meteorology and equipment at "4". His coordination and communication and SAR/IFER were assessed at "3" (Exhibit D). The acting team leader, Ms Lisa Anderson's overall comment read:

"This check was carried out over a four hour period with light to moderate traffic.
Numerous sigmets were current & Drew fulfilled all his obligations in this area.
All coordination & phraseologies were clear & concise.
Perception & judgement were demonstrated to be of a high standard, and this was a significant factor in excellent traffic management." (Exhibit D)

On 12 August, 1998, Mr Michael Chapman, as team leader, assessed the applicant's performance on Sector 5. Apart from equipment on which he was assessed at the level of "5", on all items relevant to Sector 5 the applicant was assessed at "4". The overall comments read:

"This check was conducted in moderate to heavy traffic with several unusual operations.
Several unusual conflictions occurred, all of which were handled well by Drew.
All actions were completed in a timely manner and Drew maintained an accurate board display at all times.
No areas for concern were identified.
Trainer ability not assessed as Drew does not have 6 months yet." (Exhibit E)

On 24 August, 1998, while he was operating Sectors 5 and 6, another (unsigned) report was completed regarding the manner in which the applicant operated as part of a team. By this time, he had completed an on the job training instructor's ("OJTI") course and a tower course at Sale with the RAAF. He was assessed at "4" for enthusiasm, at "3" for application, temperament, teamwork, initiative, confidence and communication and at "2" for trainer ability. The overall comments read:

"Drew is a valued member of the Functional Area who always avails himself for extra tasks.
Drew has not yet spent enough time as an OJTI, and as such, the Trainer Ability score is not necessarily a true reflection of his ability." (Exhibit F)

It was recommended that the applicant be placed on the next Sector 16 course which was then scheduled to commence in January, 1999. The goals set for him to achieve were to complete that training by March, 1999, gain more OJTI experience by August, 1999 and complete his TAAATS competency by September, 1999. (Exhibit F)

The applicant undertook simulator instructor duties and then returned to Sector 6. His assessment conducted on 3 January, 1999 by Airservices was conducted in moderate traffic with no weather effect. He was rated at "3" for all skills apart from traffic management and perception and judgement where he was rated at "4". The general comments read:

"Drew displayed a safe and effective way of running Sector 6. He identifies potential conflicts early, uses competent judgement in selecting separation solutions and coordinates accurately.
Being dual rated, Drew must ensure that he keeps up to date with all the changes associated to both Sectors e.g. SY RWY CONFIG. He also needs to be more vigilant in updating the procedural board.
Drew, after returning from SIM instructor duties, has become one of our preferred training officers for Sector 6 and therefore important to our functional group." (Exhibit G)

On 8 February, 1999, the applicant was assessed over two shifts while he operated Sector 5. This occurred after the incidents on 6 February, 1999 ("first and second incidents"). In the first incident, the applicant gave an incorrect departure time of an aircraft to the Sector that was about to receive that aircraft. The second incident occurred when there was a breakdown of separation as two aircraft flew too close to each other. At the assessment the applicant was assessed at "4" on all of his relevant skills except for coordination and communication. On those he was assessed at "2-3". The general comments read:

"Drew demonstrated a very sound technique operating Sector 5 procedural.
Traffic planning was completed early and traffic efficiently managed.
Drew kept the procedural board up to date and showed good perception and judgement with aircraft's performance and operating limitations.
Coord was accurate and completed on time.
Drew made a concerted effort to ensure all departure coord was accurate." (Exhibit H)

The applicant returned to Sector 6 where he was assessed on 4 August, 1999 in moderate traffic. He was rated at a "3" for all relevant skills other than traffic management and perception and judgement where he was rated at "4". The general comments read:

"Drew operates in a safe and efficient manner on Sector 6. He demonstrated that his coordination was on time and accurate. His traffic solutions were practical and applied early to ensure separation. Strip display was accurate and regularly monitored to ensure it remains up to date.
Drew is an enthusiastic controller who is willing to take on extra tasks within the group. He must not let this nature extend to attempting to control more traffic than is practical as problems are the only result to this action.
Drew can be easily distracted with a resultant drop in his performance. He must maintain the same discipline toward job concentration during quiet times as he applies when it is busy. It will be the quiet periods when concentration levels drop that control performance is reduced. KEEP FOCUSED." (Exhibit I)

On 8 August, 1999, the applicant was assessed with respect to Sector 5. He was assessed at level "4" on all relevant skills and "3" on trainer ability. The general comments read:

"Drew demonstrated a high level of skill in managing Sector 5. He shows high situational awareness and economy in co-ordination and frequency management.
Drew demonstrated his separation skills with accurate etops, and lateral separation calculations for unusual flights.
Drew must continue to maintain this high standard as he is one of the most experienced controllers on this Sector and has been a good training officer, as such is looked up to by less experienced controllers.
Good work." (Exhibit J)

The applicant then commenced his TAAATS training. He first completed computer and class room training before moving to the TAAATS simulator course. Once he passed, he was qualified to work airspace in the TAAATS environment. On completion of his simulator course, Mr Andrew Tiede, his team leader, completed his assessment of the applicant. That assessment was dated 29 September, 1999. The applicant was assessed at "4" for separation standards, meteorology ability, equipment and perception and judgement. He was rated at "3" for traffic management, display and coordination and communication. Staff management and trainer ability were not assessed. The applicant achieved endorsement standard. The general comments read:

"Drew exhibited good general use of the HMI [human machine interface] during the assessed sessions but could consider more text fields to reinforce situational awareness. Understanding of procedural control requirements was good. Keep the scan going to identify priority items and try not to rush data entry as errors can cost time to correct. Use spare time to increase familiarity with non routine aspects of the new machine and practice FPL entry via the FPW to increase machine fluency. All conflicts identified and resolved and TAAATS procedures complied with." (Exhibit K)

On 18 October, 1999, the applicant was involved in an incident in which there was a failure to maintain separation between an eastbound aircraft travelling from Adelaide to Sydney and a northbound aircraft travelling from Melbourne to Brisbane ("third incident"). An Air Traffic Services report was prepared by Ms Deb Dalton on 6 January, 2000 (T documents, pages 67-74.6). A draft report dated 24 February, 2000 was prepared by the Australian Transport Safety Bureau ("ATSB") (T documents, pages 309-317). A final report was dated 15 May, 2000 and was released publicly on 22 May, 2000 (T documents, pages 297-303).

In his review of the break down of separation of 18 October 1999, Mr Tiede noted (Exhibit 2, para 51 et seq) the applicant failed to notify the ATC of the neighbouring Sector (Sector 7) that the east bound B737 was still at FL370 (i.e. flight level 370) when he had previously informed that controller "CZU will be assigned 350" (T documents, page 74.2). CZU, the east bound B737 remained at FL370 until well into Sector 7 airspace. In addition, the applicant failed to notify the Sector 7 ATC that CZU was being vectored south of track. We will refer to this as the "fourth incident".

In a letter dated 22 November, 1999, the applicant was advised that he was required to demonstrate his continued fitness or proficiency to hold an ATC licence. Consequently, he was required to undertake an examination under r.107(1) of the CAR for that purpose. The examination would take place by way of a test of theoretical knowledge and/or a practical test of knowledge and skill. He would be required to undertake retraining in relation to Sector 6.

On 8 December, 1999, the applicant, Mr Chapman (team leader), Mr Tiede (group leader), Mr Brian McNamara (FIR Manager) and Mr Rob van Aken (Training Manager) entered a remedial training agreement (T documents, pages 64-66). The agreement stated that the applicant would be required to undertake a period of simulator training and on the job training with a view to returning him to his duties. Simulator training was scheduled for 9 and 10 December, 1999 when he would undertake Sector 6 exercises. During those exercises, the applicant would experience a variety of vectoring situations involving different components of head, tail and crosswinds and be exposed to recovery actions to correct simulated breakdowns of separation. The agreement then noted that the applicant had been scheduled for seven shifts in the TAAATS simulator and that he was required to achieve the endorsement standard for Sectors 5 and 6. He had to demonstrate that he had achieved that standard by way of 90 minute formal check exercises on each Sector. Simulator final assessment was to be conducted by Mr Sciortino on 22 December, 1999.

The agreement also required the applicant to undertake a written assessment paper on phraseologies and communication procedures/requirements for ATS/ATS and ATS/Pilot communications. He had to complete that assessment to CATSOAM standards prior to his resuming line control duties. On the job training was to comprise approximately twelve shifts until 15 January, 2000.

The examination pass standards are set out in CATSOAM:

"The following pass standards shall apply to written examinations:
·The overall pass standard is 100%.
·The minimum acceptable initial response for each question or group of questions in a written examination is 80% (see Note 1).
.An average of 80% over the whole examination, including questions failed, is not in itself an acceptable initial response.
.Failure to obtain at least 80% for each question or group of questions shall necessitate complete re-examination (see Note 2)

.Where less than 100% was attained for any question or group of questions in a written examination, the examinee must provide additional correct responses to oral examination, to attain the required 100% (see Note 3).
Notes:
1.Initial response scores to the written examination must be recorded on the examination paper, and retained.
2.The maximum number of re-examination attempts is two. This may be varied at the discretion of the Business Unit manager. Any remedial study and/or training shall be determined by the Team Leader in conjunction with the line manager and the person concerned. (See also Chapter 10 – Post Incident Procedures and Remedial Management.)
3.Additional oral examinations must be successfully completed before the granting/renewal of the Rating/Endorsement/Qualification." (Exhibit O)

When the simulator assessment was held on 22 December, 1999, Mr Sciortino concluded that the applicant failed to meet the required standard by neglecting to ensure the separation of two aircraft. Those aircraft were proceeding under radar coverage on crossing tracks (Q94 and H31) at the same altitude. Mr Sciortino found that the applicant had allowed them to cross without being appropriately monitored. Although the aircraft came no closer than twelve nautical miles, there were no assurances in the form of the TOP (time of passing) function, BRL's (bearing and range lines) to monitor entering and leaving times, confirmation of CANTY (a Sector or the ATC of that Sector) separation or IQL's (individual quick look) on either aircraft (T documents, page 227).

A second remedial training agreement was entered between the applicant, Mr Tiede and Mr van Aken on 11 January, 2000. The purpose of the agreement was to:

"… convey clear expectations between Drew Dickson and the training/checking staff as to the level of performance required at each Key Performance Indicator milestone (KPI).
Mr Dickson's first attempt at KPI 2 (simulator endorsement) as outlined in the Remedial Training Agreement dated the 8th of December, 1999, was unsuccessful. Despite having failed this attempt at KPI 2 on the 22nd of December, 1999, all parties have agreed that Drew be allowed to continue with a second attempt at retraining. All parties have also agreed that failure to reach the required standard during the remaining KPI assessments will result in the activation of Loss of Essential Qualifications (LOEQ) procedures.
…" (T documents, page 55)

The applicant had successfully completed Key Performance Indicator 1 ("KPI 1") on 10 December, 1999. The prerequisites for phase 2 were:

"Successful completion of written Rating and Endorsement examination papers to CATSOAM standard (80% Written, 100% Oral). Conduct of examinations to CATSOAM standard (closed book) for re-issue of Rating and Endorsement.
Successful completion of written examination paper to CATSOAM standard (80% Written, 100% Oral) on phraseologies and communications procedures/requirements for ATS/ATS and ATS/Pilot communications.
Completion of a familiarisation/observation period attached to ML TMA and Desert BKE/PKS. This period shall comprise approximately 6 shifts between the 7th and 16th of January, 2000 and will be used to observe phraseology and the application of procedures as well as general research and study. Mr Dickson has elected to formulate his own study routine of LIs, TLIs and MATS documentation during this period. Successful completion of this prerequisite will be proven by successful completion of the written examination papers.
Written examination papers will be completed on the 17th of January, 2000." (T documents, page 56)

Phase 2 of the retraining comprised simulator training over eight shifts and phase 3 comprised on the job training. Phase 4 comprised a formal progress check within three months of the applicant's resuming his solo ATC duties.

On 14 January, 2000, Mr Tiede sent the applicant a memorandum scheduling the written examinations for 17 January, 2000. After specifying that there would be 20 General Rating questions, 12 Endorsement PKS Sector questions, 12 Endorsement BKE Sector and 25 Phraseology/Communications questions, the memorandum stated that:

"The examinations will be conducted as closed book examinations. Study guides for the Rating and Endorsement questions have been provided.
Expect to commence the examination session at approximately 1330 on the 17th. Michael Chapman will supervise the session and will provide a Jeppeson Computer and writing materials as required. Please report to Michael at the commencement of your 1300 shift.
CATSOAM requirements provide for a pass rate of at least 80% on the written responses, upgraded to 100% by way of oral examination. You should be prepared for follow up oral examinations should 100% results not be achieved from the written responses." (T documents, page 224)

The results of the examinations as determined by Mr Chapman, who supervised them were:

"General        48 out of 50     =        96%
Parkes            31 out of 37     =        83.8%
Bourke            28 out of 36     =        77.8%
Phraseology    39 out of 50     =        78%"    (T documents, pages 216-223)

As he did not obtain 100% in each, the applicant was questioned orally on those questions he had incorrectly answered earlier. In this exercise, one of the questions was omitted from the Bourke Sector. The results after that examination became:

"General         49 out of 50     =        98%
Parkes            35 out of 37     =        94/6%
Bourke            32 out of 35     =        91.4%
Phraseology    42 out of 50     =        84%"   (T documents, pages 216-223)

Various correspondence was exchanged between the applicant and Airservices. He was first invited to show cause why the remedial training agreement should not be terminated and then why his ATC licence should not be cancelled. In a letter dated 31 May, 2000, Airservices cancelled that licence. Further discussions followed regarding the expiration of his endorsements on 29 March, 2000 and so the loss of his essential qualifications. With effect from 4 October, 2000, Airservices reduced his classification to ADSO Band One. He is now employed by Airservices as a Target Generator Operator in the Air Traffic Control simulator. His salary is some $20,000 less than the $66,000 he was earning as an ATC.

THE EVIDENCE

The applicant's view of his overall performance as an ATC

The applicant believed that he is a bit of a perfectionist. He takes criticism on board, he said, and uses it to improve his performance. With regard to one of the reports during his initial training, he had not handled it well as he had been tired and upset. The instructor had believed that he was not listening to him. As to his performance on the course, the applicant believed that he had been an average to better than average student.

In cross-examination, the applicant said that he did not regard himself as a star on the ab initio training course but he was no worse than the majority of people who attended it. Sometimes he had a struggle with the work but all of the trainees did. When he went into the "real world" after the training at college, he found it a "bit of a shock" and took a little longer than others to adjust to it. All the trainees were checked on 4 October, 1996 but he was required to enter another training agreement and to be re-checked. He did not think it unfair that he was required to do that. He had been surprised by the intensity of the training after he left the college. The applicant agreed with Ms Young that his performance was patchy in that he performed both well and poorly but said that every trainee goes through patches. He disagreed that he could be described as a "struggler" in his work.

Of the check on 29 June, 1997, the applicant said that he had not been ready for it. He had been away from the Sector as he had undertaken a tower course. Later, he said that he had said that he was not ready for it as he had been performing duties as a training officer. Consequently, it was written as a progress report rather than a report for his rating. When asked if he viewed his phraseology at that time as unacceptable, he replied that he was not in a position to answer. It depended from whose position the phraseology was being looked at. He was not in a position to say, he said, because the rules say that the correct phraseology should be used at all times but some ATCs do not always follow those rules. At college, the students had been taught that they must learn all of the rules before they could know those they could break.

In cross-examination, the applicant said that he had only needed to gain his rating for Sector 16 before he would have become a Full Performance Controller ("FPC"). He had observed that Sector 16 was the busiest piece of airspace and that it had the potential to be complex. It was similar to Sector 5 in that it was not covered by radar. The applicant said that he had asked Mr Tiede why he and another had not been permitted to train on Sector 16 when another person of equal seniority had been permitted to train. He agreed that Mr Tiede had told him that it was not a matter of seniority but of skill. Mr Tiede, he said, had told him that he did not have the experience. He might also have told him that the other officer had better skills than he. She had been an ATC in the RAAF and he accepts that was the case.

The first and second incidents of 6 February, 1999

Concerning the incidents on 6 February 1999, the applicant said he had been at the console of Sector 5 for about one and a half hours. Traffic peaked from about 1130 to 1200 hours and continued at those levels until about 1400 hours. An aircraft departed from Alice Springs to fly for Cairns. The applicant was required to write the aircraft's departure time in one box and a nominated time at which that aircraft was to be contacted if the pilot had not reported back ("SARTIME"). The SARTIME was ten minutes after the departure time (0237 hours UT instead of 0227 hours UT). In passing the departure time to the receiving Sector ATC in Brisbane, the applicant (mistakenly) gave the aircraft's SARTIME rather than its departure time ("first incident").

The applicant said that, when he realised he had given an incorrect time of departure of an aircraft not under radar coverage from Alice Springs to the receiving Sector controller he told his team leader of the error. He stood himself down and did not try to hide the error.

In cross-examination, the applicant said that he had pointed out that he had a different time when he checked the time given to him by the ATC in the neighbouring Sector. They first checked that the aircraft were separated and then discussed the matter. The applicant then decided that he must have given an incorrect departure time.

Following the incident, the applicant said, the tape recording of his time at the console was played. The incident was investigated and he was given two days of on the job training at the console. There was another check report on him on 8 February, 1999.

When the tape was transcribed, another incident concerning the separation of two aircraft was found to have occurred ("second incident"). The applicant said that he was told about it but had never heard the tape or seen the transcript. He denied that he had tried to cover up the incident. Never at any stage had he realised that another incident had occurred. Had he so realised, he would have been silly to stand himself down for the second incident for that would lead to the tapes' being played and the first incident's being discovered.

The applicant later said that he agreed with Ms Young that it was absolutely unacceptable to attempt to cover up any incident. It was his duty to report any such incident. Reporting enables an investigation to take place and for corrective steps to be taken.

The applicant's understanding of the second incident was that a break down of separation occurred when two passenger jets were descending into Ayers Rock. They were only eighteen, rather than the required twenty, miles apart. In cross-examination, the applicant said that he was operating in a situation in which he did not feel that he needed help. It would be debatable whether someone could have helped him. The applicant could recall situations in which he had asked for help to check calculations.

When he was asked about the second incident by Mr Sciortino, the applicant said that he had told him he had not been aware of it. He denied that he had told Mr Tiede that he had concealed it. It is possible that he told Mr Tiede that he had not noticed the incident. He could not recall Mr Tiede's telling him that an ATC who could not recognise conflicts is severely lacking in the fundamentals and has no place as an ATC. He could not recall Mr Tiede's asking him to think carefully about what he had noticed and what he had not. The applicant denied that he had told Mr Tiede that he was aware of the incident but had attempted to conceal it. He again said that it would have been quite silly to do so when he had stood himself down for a later incident when there would be a transcript of the earlier incident.

Mr Tiede

Mr Tiede, who is now an Airservices Team Leader in Air Traffic Management Procedures, has been employed for 20 years by Airservices (and its predecessors). He gave written (Exhibit 2) and oral evidence. At the time of the incidents, he said, he was the applicant's group leader. He regarded the passing of an incorrect departure time as most serious because accurate information is crucial, particularly outside of radar coverage where procedural control applies. When he questioned the applicant about the break down of separation between the aircraft on descent to Ayers Rock, he said the applicant told him that he had not noticed it. Later, the applicant told him he had attempted to conceal it.

Mr Sciortino

Mr Sciortino, who is now the Group Leader, Desert Group, has been employed by Airservices for more than 11 years in operational, training and supervisory positions. He gave written (Exhibit 5) and oral evidence. When he was a team leader in the Desert Group, the applicant was in his team. Mr Sciortino said that he investigated the 6 February, 1999 incident where the applicant passed an incorrect departure time of an aircraft en route to Cairns from Alice Springs to the adjacent controller. This aircraft requested a climb to an altitude which passed it through the altitude of another aircraft flying in the opposite direction. The error in timings could have jeopardised the requirement for the climbing aircraft to be above the other by 10 minutes before their estimated time of passing. As it happened, the departing aircraft climbed at a faster rate than expected and thus there was no break down in the 10 minute buffer.

Mr Sciortino stated that, when he was investigating this incident, he discovered that a break down of separation between two aircraft on their descent into Ayers Rock had occurred at the same time as the first incident. Their separation was 18 miles whereas it should have been a minimum of 20 miles. He could not establish whether the applicant had concealed the break down in separation or if he was unaware of it.

The third and fourth incidents of 18 October, 1999

The applicant

After he had completed TAAAT's training, the applicant said, he had been asked to volunteer to go back to the old centre on Sector 6 so that the other ATCs could complete their training. He said that there was no clear directive as to how long he should take to familiarise himself with the equipment. Consequently, he just sat in with another ATC until he felt comfortable. After three hours, he felt comfortable enough to take up duties.

On 18 October, 1999, he had taken over the console at noon. He had been working for an hour and a half when two Boeing 737s ("B737") (one on the Melbourne-Brisbane and the other on the Adelaide-Sydney routes ("Melbourne-Brisbane B737" and "Adelaide-Sydney B737")) were both at FL 370 i.e 37 000 feet. That was the optimum ceiling for this type of aircraft. The applicant said that he identified a conflict when both were 150 to 200 miles apart. He knew the weather was bad and that the pilots would want to keep out of it. To maintain separation where their air routes crossed, he instructed the Adelaide-Sydney B737 to descend to FL350 (i.e. two thousand feet lower). He did this through the ATC of the Sector to the west of him who was in the TAAATS centre. That ATC came back to him and said that the captain of the Adelaide-Sydney B737 did not wish to descend as it would put the aircraft in the cloud tops where there would be turbulence. The pilot of that aircraft had asked if there were "any vectors" to avoid conflicting traffic. The applicant said that it was quite a busy period as aircraft were detouring into his airspace. He agreed to vector the aircraft and asked the ATC in the neighbouring airspace to put the aircraft onto his frequency so that he could vector it.

He said his recent experience in the TAAATS' simulator was a factor in his deciding to use vectoring. He decided to vector the eastbound Adelaide-Sydney B737 at its then present altitude of FL370 to the right of track to provide separation from the Melbourne-Brisbane B737. He did not cancel the descent instruction he had previously given to the Adelaide-Sydney B737. He instructed the pilot of that aircraft to turn right but it did not turn as much as he expected. Later in his evidence, the applicant said that his experience in the TAAATS' simulator had erroneously led him to think that the aircraft would turn as fast as it did in the simulator. The applicant said that he then asked the pilot if she had commenced to turn as it was "getting quite tight". He then ordered further alterations of headings to the right. He also instructed the pilot of the Melbourne-Brisbane B737 to turn right but he did not hear him as another aircraft wanted to divert. The applicant said that he did not reissue the instruction as, by then, the aircraft were moving away from each other. As it was, the Adelaide-Sydney B737 still passed 4 nautical miles behind the Melbourne-Brisbane B737 and so breached the separation standard of 5 nautical miles. Neither of the Terrain and Collision Avoidances Systems ("TCAS") installed on each aircraft was activated but the console's warning alarm sounded. In his view, there was no way the two aircraft could have hit each other. The applicant said that he had another ATC to relieve him at his console.

The applicant said that, in his three years in Sector 6 controlling, he had dealt with the separation of conflicting traffic at this intersection many times and on this occasion he recognised the conflict 15 minutes earlier, but this was the first time in his experience an aircraft did not wish to descend. He did not descend the Melbourne-Sydney B737 as he believed it would be affected by the same weather conditions as the Adelaide-Sydney B737 was expecting. The applicant admitted he made a poor judgement but said he was nervous.

In cross-examination, the applicant said that he had vectored aircraft previously but only for the purposes of sequencing. He had never before attempted to vector for the purposes of separation but he did not agree with Ms Young's suggestion that his first attempt had been in a complex situation. It was not complex, he said. He had not seen an easier solution at the time.

The applicant agreed with Ms Dalton's report that he had failed to vector correctly. He had also failed to rescind the order to the Adelaide-Sydney B737 to descend. In view of his omission to do so, he said, "technically" the aircraft was required to descend but both he and the pilot knew he did not intend his instruction to be complied with. He also accepted that he had used inappropriate phrases. At the time, he was under stress and very busy. He tended to forget that all that was said was recorded. Things "slip out" unconsciously and he said things to himself.

In cross-examination, the applicant disagreed with the suggestion that his choice of language contributed to the third incident. He agreed that the instruction to descend was still a valid and current instruction even though the vectoring solution he adopted was intended to supersede his earlier solution to resolve the potential conflict between the two aircraft. In hindsight, it was not acceptable that he had not rescinded that instruction as it had remained valid.

The applicant said in giving evidence that he had been recommended for a Sector 16 course but June, 1999 came and went and he had still not attended the course. Others who had started on the ab initio course with him had already been rated as FPC's by this time. The course had been cancelled for some reason unknown to him. The applicant did not think that his not attending the Sector 16 course contributed to the third incident that was to follow.

The applicant said that there had been clashes with a couple of team leaders. He said that he clashed particularly with Mr Sciortino, who had been one of his instructors on the ab initio course and who seemed to follow him about.

The applicant said that the ATSB's categorisation of the third incident as a category 4 was the second lowest category it could have assigned. Category 5 relates to incidents of only statistical information. Category 4 relates to occurrences where the facts do not indicate a serious safety deficiency.

In cross-examination, the applicant agreed that he found the work on the day of the third incident to be hectic or difficult. He was asked whether it was normal practice in such circumstances to ask for help. Each Sector had different ways of asking for help, he replied. On Sector 5 it was limited but on Sector 6 it was a little easier. A person assisting him on Sector 5 could do little other than get in the road. For that reason, asking for help was often more trouble than it was worth. By way of contrast, help could be very handy on Sector 1 as it is a larger airspace. The applicant said that he could recall his being reluctant to ask for help when he needed it early in his career.

Later in cross-examination, the applicant said that it was too late to call in assistance when the separation incident occurred. He had mentioned that he would like the procedural airspace open to enable him to give his attention to the radar. A person did come to open that airspace but did not get there until after the separation incident had occurred. He had asked for assistance as the situation was getting out of hand. It was serious. The incident was serious but any breakdown of separation is serious.

The applicant agreed that he had referred to one of the pilots involved in the third incident as a "stupid bitch" (T documents, page 74.3). He said that he had muttered it under his breath and forgot that he was being recorded. When challenged that he had not muttered it under his breath but as part of a conversation, he said that he had muttered one thing under his breath. The other ATC might have heard it but he muttered it under his breath. In hindsight, it was an unacceptable thing to say. He regretted it and he had no call to say that to the pilot.

In cross-examination, the applicant said that he did not know whether the fourth incident had occurred. It might have but he did not know and he was not shown the evidence relating to it. Later, he did not agree that the ATC in Sector 7 would have no idea where the aircraft was as he would know that it was coming and would know that he was initiating another solution. He agreed with Ms Young that there was a problem in that the ATC in Sector 7 would have arranged separation in that Sector taking into account the information he had given to him. That other ATC would have an idea of the aircraft's location. When asked if this was a serious matter, the applicant replied that, had it been an airspace other than Sector 7, it would have been. Sector 7 is only a feeder Sector into Sydney airport. Many times, the ATC in Sector 7 told him that he did not need to know the level of an aircraft as it would shortly be on descent into Sydney. The danger was minimal but he agreed that he did not really know the extent to which the ATC in Sector 7 relied on his information.

The ATS report

Ms Dalton is an Airservices investigator in the Directorate of Safety and Standards. She has been an ATC since 1993 and is a FPC with thirteen Sector endorsements. She said that she did the initial investigation into the 18 October, 1999 break down of separation on 18 October, 1999 and prepared an Occurrence Investigation Report. It was not her duty, she said, to comment on the ability of the ATC or on the methods adopted. She stated she regarded the incident as serious.

Ms Dalton found that the following factors contributed to the third incident:

"ATC
Controller inexperienced in vectoring for separation
Failure to assure separation during application of separation standards
Failure to cancel requirement on CZU
Use of inappropriate and non procedural phraseologies

.Personal disheartenment to career development
.Organisational issues in the workplace
.Controller recently return to AUSCATS environment after TAAATS endorsement
Pilot:
.Specifically requesting vectors as an alternate method of separation
.Failure to confirm the status of the vertical requirement once assigned vectors
Organisational:
.Minimal staffing due to transition
.Familiarisation requirements of staff after undertaking TAAATS endorsement not clearly documented nor supervised
.Requirements for achieving FPC inconsistently applied to group staff
.Personality confliction between controller and some supervisors
.Part A – ATC performance and check report – annual assessments not carried out in accordance with CATSOAM " (T documents, page 67 and see also Exhibit Q)

Each of these factors was developed in the remainder of Ms Dalton's report. She identified the applicant's application of separation as poor. That poor application resulted from his lack of experience in vectoring for separation and poor phraseology. The factors assessing the applicant's state of mind at the time of the incident were a personality conflict with some supervisors, concerns regarding career development within the group, inconsistent distribution of opportunity to achieve FPC within the group and failure to act on the recommendation in a performance report that the applicant receive Sector 16 training.

The ATSB's report

The incident was referred to the ATSB, which is a Commonwealth agency independent of Airservices. It prepared an Aviation Occurrence Brief on the third incident (T documents, pages 297-303).

The ATSB's report set out the background factors prevailing at the time of the third incident:

"… The incident occurred during the period when Melbourne air traffic controllers were transitioning from the old centre that used the Australian Computer Air Traffic Control System radar and procedural flight strip bay facilities to new facilities using the Advanced Australian Air Traffic Control System (TAAATS). Sector 6 was in the old centre while Canty Sector was a TAAATS position. TAAATS has a number of alarms to alert controllers of potential separation infringements. During the occurrence the short-term conflict alert operated at the Canty position.
The Sector 6 controller was busy at the time with a moderate level of traffic. The complexity of the management of Sector 6 was compounded by weather that was causing flight crews to request advice of weather on various routes and also for diversions to avoid developing weather cells. Sector 6 had two control positions, radar and procedural and was normally operated in the combined configuration. The controller was managing both positions at the time. Another controller was available to assist at the position. This controller was not utilised until after the occurrence.

When CZS [the Melbourne-Sydney B737] entered Sector 6 airspace it was approximately 7NM west of air route H29. This was normal practice as departure controllers were approved to instruct crews to track from their present position, within the terminal area (within 45NM of Melbourne), direct to Mudgee. This required the Sector 6 controller to calculate a specific solution for each potential crossing conflict with aircraft nominally tracking on H29 and aircraft on all intersecting routes. Sector controllers can use lateral separation diagrams to assist in the application of separation. However, the use of such diagrams was dependent upon aircraft operating within the navigational tracking tolerance of the air route being flown. Sector 6 did not have or use lateral separation diagrams.
Sector 6 was a joint radar/procedural Sector with a majority of radar coverage. However, the size of the Sector and the disposition of air routes within the Sector meant that generally conflicts were resolved using procedural control methods. Radar vectoring was used to sequence aircraft for arrival into Sydney but was not generally used to establish separation between aircraft. Consequently controllers had limited opportunities to practice (sic) vectoring techniques." (T documents, page 301)

As to the applicant's circumstance, the ATSB found:

"The controller had returned to the Sector 6 staff roster two weeks prior to the occurrence after being rostered for familiarisation training on 30 September and 1 October 1999. The controller had agreed to return to Sector 6, following his TAAATS transition training, to enable other controllers to be released for transition training. The Sector 6 area of responsibility within TAAATS had been divided into two Sectors, Parkes and Bourke. The management of traffic and coordination requirements for these Sectors differed considerably from those required for Sector 6. The controller had undergone radar vectoring exercises during the transition training but these had focused primarily on developing human-machine interface skills and not traffic management skills. Also, some exercises used nil-wind conditions and thus were not reflective of conditions likely to be experienced on the job. The controller was rostered for two familiarisation shifts on the return to Sector 6. However, after five hours during the first period of familiarisation, the controller felt comfortable and believed he was capable of operating at a satisfactory level and was subsequently endorsed to operate the Sector." (T documents, page 302)

The ATSB's analysis of the third incident was:

"The disparity between the TAAATS training and management of Sector 6, the differences in coordination and management between TAAATS and Sector 6 and the limited opportunities to use radar vectoring, all contributed to limit the controller's ability to successfully resolve the conflict.
The ready provision of direct tracking to Mudgee for aircraft that had planned via H29 increased the controller workload. While this factor was minor in comparison to the others previously mentioned, it nevertheless resulted in some additional action by the controller. Had aircraft been required to intercept and rejoin air route H29 prior to the majority of the intersections with other routes it is likely that the complexity of the controller's task would have been reduced.

Prior to the crew requesting the availability of alternative separation methods the controller had formulated a traffic management plan that would ensure separation was maintained between the aircraft. After the crew's query, the controller adjusted his plan to compensate for the changed circumstances but was inadequately prepared to ensure maintenance of separation using the radar." (T documents, page 302)

Mr Tiede

Mr Tiede in his evidence did not agree with some of the contributory factors put forward by Mrs Dalton regarding the third incident. He said the applicant had a significant amount of vectoring training and was doing a standard, routine separation task; there was normal staffing on duty at the time of the incident; a FPC was available should a controller become overloaded; the applicant had been back in the Australian Computer Air Traffic Control System ("AUSCATS") radar environment since late September 1999 and assessments were carried out in accordance with CATSOAM.

In his affidavit and his oral evidence Mr Tiede stated the applicant had been operating in Sector 6 for about three years, it was an easy Sector with predominantly regular public transport cruising above 20 000 feet and there was a traffic conflict at least a dozen times per shift - a "bread and butter conflict." In this particular incident both aircraft were covered by radar and were about 70 nautical miles from the crossing point. The applicant should have given the Melbourne-Brisbane B737 another altitude or, as the Adelaide-Sydney B737 had a much higher ground speed (due to the strong westerly winds), it was quite possible it would pass the crossing point 5 nautical miles ahead of the Melbourne-Brisbane B737.

Mr Brokenshire

Mr I W Brokenshire, an ATC specialist from the ATSB, investigated this infringement of separation standards (T documents, pages 309-317). He was assisted by Ms Dalton. In summary, he found that the differences between TAAATS training and the management of Sector 6, the differences in coordination and management between TAAATS and Sector 6 and the limited opportunities to use radar vectoring all contributed to the applicant's ability to resolve the traffic conflict successfully.

He gave the occurrence a Category 4 rating. This ATSB Safety rating reads:

" occurrences where the facts do not indicate a serious safety deficiency. The category is used for occurrences where the circumstances were sufficiently complex to require detailed information from the pilot and/or other involved Parties……" (T documents, page 319)

Ms Keey

Ms S J Keey, who is now Airservices National Training Manager, was the Centre Manager at Melbourne in October 1999. In her written and oral evidence, she said the applicant had completed his TAAATS training on 29 September 1999. His errors, she said, were of a basic nature and were not related to TAAATS training. He had been back in the AUSCATS environment since 30 September 1999 whereas the ATSB report indicates he had only recently returned to it. Ms Keey added the ATSB also indicated that had the Melbourne-Brisbane B737 been on track it would have made it easier for the controller to resolve the conflict. In rebuttal, she pointed out that both aircraft were under radar surveillance, that tracking direct to Mudgee from Melbourne had been the practice for a number of years and that the resolution of conflicting traffic at this crossing point happened at least six times a day due to the airline schedules. She added that, amongst other things, the applicant should have asked for a wind speed check, an important factor in coming to a decision, from the Adelaide-Sydney B737, before committing that aircraft to vectoring.

Ms Keey also told the Tribunal she categorised the occurrence as Class 2 Critical, which is an Airservices' classification. It is not a classification used by the ATSB. The definition of Class 2 Critical reads:

"An incident… where
. less than the applicable separation standard was maintained between two or more aircraft…
and the incident was such that the safety of the aircraft involved may have been seriously jeopardised." (T documents, page 318)

Other incidents

The applicant

The applicant said that Mr Sciortino had spoken to him on one occasion about his reading a magazine while at the console. Mr Sciortino had then issued a general directive regarding the reading of magazines at consoles. The applicant was neither happy nor unhappy with the directive.

The applicant agreed with Ms Young that he had played a joke on Mr Tiede on one occasion. He had done so by pressing his intercom a number of times over several minutes ("the gonging incident"). When asked if Mr Tiede had been in the middle of a complex traffic situation, the applicant replied that he did not know what Mr Tiede's situation had been. He agreed with Ms Young that Mr Tiede was very angry but did not agree that Mr Tiede had told him that his behaviour was very childish. What Mr Tiede had said was that if he did it again, he (Mr Tiede) would nail him. The applicant could not explain what the joke in his behaviour had been as it was a long time ago and he could not explain what was going on at the time. He had been on duty at the time but his airspace had been devoid of traffic. The applicant agreed that he had made an inappropriate use of the intercom on this occasion.

Early in his career, the applicant could recall Mr Tiede's telling him that he chatted too much when he was at the console. When asked if Mr Tiede told him that he was not at the level where he could do that, the applicant replied that the nature of the job is such that more than one thing can be done at once. As to whether the job requires good powers of concentration, he replied that it is a matter of being able to divide attention between tasks. He agreed that the job is, at times, boring and there was a need to keep the concentration levels up. The applicant could not recall Mr Sciortino's telling him that he should stop joking around with more senior ATCs and concentrate on his work.

The applicant recalled another occasion when he had, at the request of a colleague, asked the pilot of an aircraft if the colleague's brother could visit the cockpit. The colleague's brother had a name suggesting he might be Muslim. The applicant said that he told the pilot not to worry as the gentleman was not armed. In response, the pilot had said "roger" in a joking tone, he said. The pilot and he had a common understanding. When asked whether others could have heard the conversation, the applicant said that the pilot was on an Australian domestic aircraft on the same frequency. He agreed at the hearing that such an exchange was unacceptable and denied that he had earlier said that he did not regret it. Other people had heard his exchange with the pilot. They had told him that they had found it "pretty funny" and mentioned it to him on occasion but he did not mention it to others.

Mr Tiede

Mr Tiede said on one occasion he was very busy working an adjacent Sector when the applicant, apparently as a joke and for his own amusement, repeatedly gonged the intercom. This gonging so seriously affected his concentration that he relieved himself from his duties and spoke strongly to the applicant about the matter later. Mr Tiede said Mr Dickson was contrite over this incident. The incident was also observed by Mr Sciortino.

Mr Sciortino

In his affidavit Mr Sciortino stated the applicant, when on duty, transmitted to an aircraft that, although an acquaintance of the applicant wishing to visit the cockpit had a Muslim sounding name, that person was not armed. On another occasion, on 18 October 1999, when the Adelaide-Sydney B737 asked for vectors, the applicant in conversation to another controller referred to a crew member of that aircraft as "a stupid bitch" (T documents, page 74.3). In his evidence the applicant said he regretted making these transmissions.

Phraseology

In a written progress assessment on 29 June 1997 (T documents, pages 92-93) it was noted the applicant's "phraseology is at times loose and conversational". In an Interoffice Memorandum dated 13 December 1999 (T documents, page 63) the applicant was advised to improve his "vectoring phraseology". In her evidence Ms Dalton said that controllers' phraseologies were not always correct and in accordance with the Manual of Air Traffic Services ("MATS"), and that from time-to-time some lapsed into every day plain language. Mr Tiede said there were relatively few occasions when standard phrases cannot be used.

Events following the third and fourth incidents of 18 October, 1999

The applicant

The applicant said that he was very emotionally drained after the third incident and took a while to get over it and to recover his confidence. On the day following it, the voice and radar tapes were recovered. He was assigned to administrative duties and, about a week later, was formally stood down from his duties as an ATC. Mr Tiede advised him that he could not return to his duties until after the investigation of the third incident. The applicant said that he took leave for two weeks before returning to work to undertake administrative duties.

The applicant said that he could not commence retraining until early December, 1999 because a simulator was not available due to TAAATS' training, which was still continuing at that stage. He said that he was also told he could not retrain until the ATSB's draft report was received. When the retraining agreement of 8 December, 1999 was entered into, he said, he did not have any input into the person who was to assess him. He did not think that he had any choice in the matter. The agreement was put in front of him and he was told to sign it.

At the time of the agreement, he said, he had no idea what the CATSOAM standards were. He later found out that he had to achieve at least 80% but that if he did not achieve 100%, he had to have an oral examination. If he could not correctly answer the question at the oral examination, he did not meet the CATSOAM standards.

The applicant felt that he performed admirably on TAAATS equipment considering that it was new equipment. The simulator exercises proved to be far more complicated than those he had completed for his rating. He had never operated TAAATS in a real situation. He said that he spent about ten days on TAAATS equipment in re-training. The intensity of that training increased as he needed to do a lot of radar vectoring. In situations in which he would normally direct an aircraft to change its level, he was told to solve the problem by using radar vectoring. He later said that he felt "fairly unfamiliar" with the machine when he was required to undergo the simulator test.

The applicant did not pass the TAAATS simulator test when he failed to maintain proper separation between two aircraft on a sequenced approach to the Sydney airport. He was told to give the first aircraft 40 miles and the second 20 miles but, as he was busy at the time, he did not write down the instruction. The applicant said that, had it been a real situation, the instruction would have appeared on the screen. As it was, they were not and he gave each aircraft 20 miles. The applicant said that he was "quite down" when he was told about his mistake and it affected the rest of the simulator test. He has always been down on himself when things do not go to plan. At that time, he did not undergo the examination in phraseology.

The applicant said in cross-examination that he felt that he had been unlucky that Mr Sciortino had been his assessor for the simulator test. On the day, he was aware that there was a personality clash between the two of them. He did not think that the assessment that he made was fair but he did not know whether that was due to the personality conflict between them. It was possible that he might have been exercising his professional judgement but the applicant did not know if that was the case. He said that he had never spoken, either formally or informally, about the conflict. He had not felt confident in approaching either Mr Tiede or Mr Sciortino about it as he was somewhat scared of the repercussions. As to the person who conducted his assessment, he was not aware that he could have asked for someone other than Mr Sciortino. With hindsight, he thought that he should have done that.

In cross-examination, the applicant said that Mr Sciortino had spread a rumour about his (the applicant's) personal life. He did not raise it with Mr Sciortino as he did not approach Mr Sciortino unless it was a professional matter. When Mr Sciortino asked him if he could have a lift with him, he felt obliged to do so as they lived in the same suburb and were rostered on the same shift. They had dined together on one occasion with twenty other people. The applicant doubted whether a "quick conversation" would have cleared matters up. As to Mr Sciortino's assessment of him, he could not say whether or not their personality clash had a negative effect. When asked whether Mr Sciortino's assessing him at the level of 3 and 4 on 3 January, 1999 had not indicated a negative attitude, the applicant replied that he would not know. He recalled talking to him about the comment in the report that he needed to be more vigilant in updating the procedural board. He could not say that the comment was not appropriate and so he had left it at that. The applicant agreed that the report had been a favourable report.

Nothing was to be decided about the applicant's future before Christmas, he was told by Mr van Aken. The applicant asked for leave at that time. The applicant said that the second remedial training agreement he entered in January, 2000 contained more stringent requirements. The agreement was changed in one aspect on the recommendation of the "legal people" but, otherwise, he did not have any say in its terms, he continued. It also contained two phases but he was deemed to have passed the first. He had received no more training on the TAAATS simulator since December, 1999 and was not asked if he needed more time.

The applicant said that he found out on Friday, 14 January, 2000 that the examination was scheduled for the following Monday. When he had undergone his ab initio training, examinations were held after he had undergone ground training for five weeks and a further period of five weeks in the simulator. The examination at the end of that training had been closed book but he sat for it only after he had been given all of the papers. Phraseology was also tested by means of a closed book examination at that time. The applicant said that the second remedial agreement had not mentioned that the examination would be closed book.

The applicant said that he was required to answer three papers. One was phraseology, another a general paper and the third a rating paper. The area was too broad and the material he needed to know would have been a foot high. In cross-examination, he explained that he had expected the general paper and the rating paper to be closed book but had not expected that of the phraseology paper. Although the minute of 14 January, 2000 had said that study guides for the rating questions had been provided, the applicant denied that was the case. Those guides, together with other material for the papers, were only provided to him on the Friday at about 1.00pm. He did not agree with the proposition that any ATC taken from a console would have been able to answer the questions without a study guide. Some questions were of a routine nature but others were not. He was to be given six shifts to study and he had not been made aware that there would be examinations until 11 January, 2000 when the agreement was signed. He was not rostered for work on the Saturday or Sunday and had inadequate time to prepare.

After he had been stood down as an ATC, the applicant said in giving evidence, he was required to collate examination questions from various rating papers for various Sectors. He cut and pasted the questions into one homogenous paper. From a paper of over a hundred questions, he was required to select twenty questions. There were matching answers to the questions but he was never asked to collate the answers. In cross-examination, the applicant said that he did not bother reading the TAAATS' questions as he had just completed the course five or six weeks before.

When the applicant did not achieve 100% in the examination, he went through the questions with his team leader and another person and had to answer them verbally. He answered them to the best of his ability and thought that he had answered four or five of them better than he had previously. Several of the questions were ambiguous and he could not answer them any better than he had. When he was marked as having incorrectly answered those questions, Mr Chapman had agreed that his answers had in fact been correct.

In cross-examination, the applicant gave questions 39, 40, 43 and 44 as examples of ambiguous questions in the General Rating Examination (T documents, pages 208-213) and question 15 in the Phraseology and Communication Written Examination (T documents, pages 214-215). After the examination, he had discussed his answer to question 39 with Mr Chapman. He had agreed, the applicant said, that his answer had been correct even though it had earlier been marked as incorrect. Despite that, Mr Chapman had not later changed the marks.

The applicant said that all ATCs are given a copy of MATS when they start. His personal copy was not up to date. When asked whose responsibility it is to maintain MATS, he replied that it is kept up to date by the team leader. The copy had not been kept up to date when he was doing administrative duties. Later in cross-examination, the applicant agreed that amendments to MATS were published from time to time and that a pile of them was available to be collected. They were available, he said, for collection by those people who had an up to date MATS at home. He was not required to keep an up to date MATS and denied that he was "just slack" in not maintaining it.

He agreed with Ms Young that there is an aviation language used by ATCs and pilots to communicate. It is important that it be used accurately and maintained at all times. Sometimes, however, it is quicker to use common language. He would be more careful in using standard phraseology to an aircraft than to another Airservices unit and does not use it at the console. The applicant agreed that he could not look up the phraseology book while he was at the console and that he should be able to speak phraseology in his sleep. Later in cross-examination, the applicant agreed that the use of correct phraseology is a core skill for an ATC. He did not agree that he saw its use as optional for him. In his estimate, he used it 90% of the time but he could not make everything by the book.

Mr Tiede

In his evidence Mr Tiede said he thought the applicant would have passed the Phraseology examination as he had plenty of time to study and he had collated questions and answers into a database in November 1999. It was from this database that the questions were drawn. Mr Tiede had given the applicant a MATS, which only required minor amendments, to study because the applicant's was badly out of date. The applicant had four and a half years of ATC training and work and any ATC with this experience, Mr Tiede stated, ought to be using correct phraseology accurately and fluently as a matter of course.
Mr Tiede said closed book examinations, as mentioned in the second remedial training agreement of 11 January 2000, were conducted where there were suspended licences. He added he had no concern about bias or pre-judgement and he does not believe he sub-consciously or consciously influenced the remedial training team members so that the applicant would not make the grade.

Personality Clash

The applicant, Mr Tiede and Mr Sciortino

The applicant said there was a personality conflict between himself and Mr Sciortino arising from workplace relationships that, amongst other things, led Mr Sciortino to assess him subjectively. He wrote of this in his letter of 10 February 2000 to Mr P Evans, the manager of Melbourne Centre Operations (T documents, pages 44-45). Mr Sciortino rejected this accusation and said he had many informal chats with the applicant and that three times he had given him the benefit of the doubt on his air traffic controlling when others may have reported him. In his written evidence Mr Tiede said he was unaware of any personality difficulties between the two and that, in any event, it was late in the day for the applicant to raise them now. If there were problems, the applicant should have raised them with him, his Group Leader, much earlier (T documents, page 37).

Potential to reach FPC Level
The applicant

On the issue of whether he had shown no reasonable prospect of reaching the standard required of an FPC, the applicant relied on his Performance and Check Reports and other reports, to which we have already referred. He said he believed he has the ability to be an FPC and would wish to undergo further training but under different instructors and reporting controllers.

In cross-examination, the applicant did not agree that the incidents were a cause for concern. After the third incident, he would say that he required some re-training. On that day, he was ill-equipped to handle the situation that took place. If that situation were to occur again, he felt that the incident itself had been enough of an instruction in how to handle it. A person learns by mistakes and knows how to deal with a situation if it comes up again. He said that he was still of that view even though there had been the earlier separation incident in February, 1999. That had been a completely different situation, he said.

Apart from the incidents, he believed that his performance had not been too bad. All he wanted was another chance, that was both reasonable and fair, to demonstrate his capabilities. From the time of the incidents, it had been extremely harrowing for him. He would not put himself forward unless he thought himself capable of doing the work. It was incorrect to think that, even if he could pass the examinations, he would not be able to maintain the standard.

Mr Tiede

Mr Tiede in his written and oral evidence said that during training he spoke to the applicant informally on a number of occasions about his behaviour and performance. Points arising were the applicant's lack of confidence and then over-confidence at times; his being too readily distracted from the console by engaging with conversation with others and turning away from the screen; the "gonging incident"; and his sub-standard solutions and techniques during transition training on the new equipment in airspace in which he had been operating for three years. Concerning this last point Mr Tiede believed the applicant was reluctant to take his advice and over-estimated his ATC ability. He also noted the applicant did not ask for assistance when controlling problems arose.

Mr Tiede further said the applicant had received only two Sector endorsements (Sectors 5 and 6) and he took a long time to get his Sector 6. Sectors 5 and 6 are the easier Sectors of Desert Group which now has seven Sectors. FPCs in the Desert Group must have endorsements for all seven Sectors. He believes the applicant would not be able to cope with the demands of Sectors such as Sector 16. This Sector is adjacent to Sydney Airport and has crossing traffic down to 8 500 feet, climbing and descending aircraft and impinging traffic from and to Bankstown, RAAF Richmond and RAAF Williamtown. Some ATCs Mr Tiede said, who were on the applicant's course are already FPC's.

In answer to a question, Mr Tiede replied that good reports during the training on simulators, as the applicant from time-to-time received, were not necessarily an indication as to how the trainee would perform during his on-the-job training.

Mr Sciortino

Mr Sciortino said the applicant was not a good controller. This view was formed over a period of time and the incidents gave weight to this view. The applicant's performance varied and he was not consistent or reliable. He would perform satisfactorily for a time and then make a basic or serious mistake. There was no formal advice to the applicant that he would not make a controller but he was told informally there was "room for improvement" and he "would need to improve."

He cited an example where he believed the applicant lacked maturity and over-estimated his ability. The applicant was reading a magazine whilst at his console and, when told it was inappropriate, the applicant suggested he could handle it and ignored Mr Sciortino for the remainder of the shift. Mr Sciortino stated, "Teamwork in ATC is important. The 'silent treatment' serves no purpose in our workplace."
Mr Sciortino produced a history of the applicant's air traffic control career (T documents, pages 75-78) and stated, while with some controllers it was possible to assess whether poor controlling occurred at certain times or in a recurring way, he could establish no such patterns for the applicant.

CONSIDERATION

In so far as it is relevant in this case, r. 269(1) reads:

" Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely:

(a) …

(b)…

(c)that the holder of the licence … has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft:

(d)…

(e) …"

It follows that the first matter we must consider is whether the applicant has failed to meet the obligations specified in r. 269(1)(c). What is meant by an ATC's "…duty with respect to any matter affecting the safe navigation or operation of an aircraft…" is not specified in the Regulations. Regulation 269 is a provision relating to all manner of licences e.g. a pilot's licence, an aircraft maintenance engineer licence or, as in this case, an ATC licence. It follows that the precise manner in which a person must carry out his or her functions under a licence in order to comply with his or her duty will vary according to the nature of the licence, certificate or authority under consideration.

On the basis of the applicant's own evidence (consistent as it is with that of the other witnesses), we find that the maintenance of appropriate separation of aircraft is vital if safe navigation of aircraft is to be maintained. We also find that the accurate transmission of information about aircraft from one ATC to another is similarly vital to the continued safe navigation of aircraft. The maintenance of appropriate separation and the transmission of accurate information to an ATC are both matters for which an ATC is responsible. Both can be described as duties of an ATC and so both may be described as duties "… affecting the safe navigation or operation of an aircraft…".

On the basis of his own evidence, we are satisfied that the applicant has been in breach of both of these duties. He was in breach of his duty to ensure correct separation in the third incident and he was in breach of his duty to transmit accurate information in relation to the first incident. Although we accept that the applicant did not attempt to conceal the breakdown of separation in the third incident, we find (again on the basis of his own evidence) that he did not identify it. His failure to do so was a further breach of his duty as an ATC to maintain appropriate separation. With regard to the fourth incident, the applicant does not concede that it occurred. Having regard to the other evidence we have in this case, we accept that the applicant did fail in his duty to notify the ATC in an adjacent Sector of the level of an aircraft and that it was being vectored south of track. This also was a breach of his duty to pass accurate information to another ATC.

That we have found that the applicant is in breach of his duties as prescribed by r. 269(1)(c) does not lead automatically to the conclusion that his ATC licence should be suspended. The regulation is expressed in discretionary terms and so it is necessary to consider when that discretion may be exercised. In this regard, it is similar to the disciplinary provisions found in other legislation regulating various other occupations and professions such as liquidators, auditors and lawyers. At the heart of those cases is the principle that we must bear in mind that we are not imposing a penalty. As the Full Court of the Federal Court said in Australian Securities Commission v Kippe and Another (1996) 67 FCR 499 (Von Doussa, Cooper and Tamberlin JJ) in relation to a banning order made under s. 829 of the Corporations Law against a dealer's representative:

"The immediate and direct legal effect intended by a banning order is not to impose a penalty or punishment on the person concerned, but to be preventive in that it removes a perceived threat to the public interest and to public confidence in the securities and futures industry by removing that person from participation therein." (page 508 and with regard to legal practitioners see also New South Wales Bar Association v Hamman [1999] NSWCA 404, (Unreported, Mason P, Priestley JA and Davies AJA, 29 October 1999))

Authorities such as New South Wales Bar Association v Evatt (1968) 117 CLR 177 (Barwick CJ, Kitto, Taylor, Menzies and Owen JJ) and Hardcastle v Commissioner of Police (1984) 53 ALR 593 (Bowen CJ, Gallop and Lockhart JJ) acknowledge that, in achieving the objects of public protection and the maintenance of proper professional standards, an order made in disciplinary proceedings may involve great deprivation for the person who is the subject of that order. Despite that, the object of the order is not to punish or to extract retribution.

Cancellation or suspension of a person's right to engage in his or her chosen profession does not only follow because a person has intentionally committed a wrong-doing. As Kirby P said in Pillai v Messiter [No.2] (1989) 16 NSWLR 197:

"… The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed. …" (page 201)

In the context of r. 269, the consideration of whether or not to vary, suspend or cancel an ATC licence must focus upon "… considerations relating to the safety and orderly conduct both of air operations and of air navigation generally …" (Sullivan v Department of Transport (1978) 20 ALR 323, Smithers, Deane and Fisher JJ, per Deane J at page 345). How is that to be achieved? It seems to us that there are two considerations that must be taken into account and these follow from the principles set out in the Kippe case. The first is in ensuring that the individual concerned follows a course of action to maintain a standard appropriate for the safe conduct of air operations in the future. The second is in securing, or in securing as well as is reasonably possible, that those who are entrusted with the maintenance of the safe conduct of air operations can be properly entrusted with that task. It is particularly important that ATCs comply with their duties in so far as they relate to the safe navigation or operation of aircraft. Their actions are relied upon by other ATCs and by the pilots and operators of aircraft as well as by the travelling public.

The imposition of a cancellation of an ATC's licence achieves, in respect of at least one ATC, the second consideration. That is to say, it ensures that a particular person, who has been found to have been in breach of his or her duty with respect to a matter affecting the safe navigation or operation of an aircraft is no longer entrusted with the task. At the same time, it informs both other ATCs, members of the aviation industry, members of the flying public and members of the public generally that behaviour at odds with those duties is neither acceptable nor tolerated.

Whether cancellation achieves the first consideration is a more difficult issue and is very dependent upon the individual circumstances of each case. In some cases, a period of suspension, rather than cancellation may lead a person to reflect upon his or her behaviour. It may lead him or her to come to an understanding of why that behaviour has been regarded as inappropriate by others and, if it is necessary to do so, to take steps to improve his or her knowledge of what is an appropriate manner of behaviour. On the other hand, a period of suspension may not result in such reflection or lead to a person's coming to any greater understanding than he or she had when it was imposed. A variation in an ATC licence may, perhaps, narrow the range of responsibilities of an ATC and so ensure that he or she can focus upon honing his or her skills and so ensuring that he or she can maintain them in the future.

In this case, we have considered whether we should suspend, vary or cancel the applicant's ATC licence or, indeed, whether we should do none of the above. In light of the four incidents and, even more importantly, in light of his attitude to each of them and to his attitude to his work generally as well as his general performance, we have concluded that the applicant's ATC licence should be cancelled.

Turning first to the breaches, we are of the view that the second and third incidents concerning the breakdown of separation are most serious. Such breakdowns potentially endanger the safety of the aircraft and their passengers. The second was particularly serious as the applicant failed to identify that it had occurred let alone failed to take any corrective action. That is not to say that the first and fourth incidents are not serious. Their seriousness lies in the importance of ATCs' knowing the precise location of aircraft both in and approaching their airspace. In addition, the fourth incident causes us concern for, like the second, the applicant did not identify that it had occurred.

That brings us to the applicant's attention to detail. We regard the second and fourth incidents as indicative of a lack of attention to detail on at least two crucial occasions. This lack of attention to detail was, we find, present during his training. It was reflected on several occasions in the various reports during his training and subsequent employment. It was apparent as early as the report relating to the period of his training from 28 November, 1995 to 25 January, 1996 and appeared in later reports in relation to his stripwork. The report at the end of the third phase also referred to his "… tendency to 'close down' when under pressure, and this is particularly apparent where co-ordinating/negotiating between P & R is required." (Exhibit A). He was advised on the strategy he should develop to overcome this tendency. The first report on his training in Sector 6 also reflected that errors with his calculations appeared to be a recurring problem and errors were being closely monitored. His work improved in October, 1996 when he was checked but had deteriorated at the time of the progress check in Sector 5 in June, 1997. The applicant's attention was drawn to the need to improve his stripwork and to his needing to improve his knowledge of the Sector.

That progress report also raised another issue of concern to us. That is that "… ad-hoc situations tend to initially 'stump him' …" (T documents, page 93). Consequently, he was somewhat "stumped" when the pilot travelling from Adelaide to Sydney (in the third incident) expressed reluctance to descend in response to his instruction. He had instructed many aircraft to descend in the past and none had questioned him. When faced with the question, he chose an inappropriate solution. Such a choice was consistent with the trait identified by Mr Chapman in his report of 27 September, 1996 regarding the applicant's progress in his Sector 6 training. That trait was that he was inclined not to have available a procedural alternative but relied simply upon the radar.

We also find that the applicant's phraseology and language as an ATC has been inappropriate on a significant number of occasions. This was a difficulty identified in his training reports. That could be overlooked but it has persisted into his work as a trained ATC. On his own evidence, we find that the applicant referred to a pilot as a "stupid bitch". We find that it was, at best, an inappropriate remark. Having read the transcript, we do not accept his evidence that it was a remark muttered under his breath. It was made as part of the exchange with the other ATC. We accept that the pilot may not have heard the remark but gratuitous derogatory remarks about another participant in a situation is unacceptable.

On the basis of the applicant's evidence again, we find that he made a joke based on whether a passenger on a plane was or was not armed. We accept his evidence that the pilot may have thought it a joke and regarded it as funny. That, however, is not to the point. The airwaves are not the sole province of any particular ATC and a pilot. Communication is for the purpose of ensuring the safe navigation of aircraft. It may be that some levity is permitted but, given the sensitivity of the aviation industry to the possibility of hijack, the applicant's choice of subject matter for his levity is inappropriate.

On the basis of the various progress and check reports, we find that, in addition to the two instances of inappropriate language, the applicant has used phraseology that is at times loose and conversational and he has mumbled. This was commented on by Mr Hannan in his report of 29 June, 1997. On the basis of his examination results under the second remedial agreement, we are satisfied that the applicant is not aware of the correct phraseology. Having examined the questions and his answers, we are satisfied that there were no questions that could be regarded as being out of the ordinary range of situation that the applicant might expect. We accept that he felt that he did not have sufficient opportunity to study for that examination but do not accept that this was so. It was not so for a number of reasons. First, we accept Mr Tiede's evidence that the phraseology expected of the applicant was of the sort readily known by any ATC. Second, we find that the applicant had been aware for at least several days before the examination that it would take place. Third, he had his own copy of MATS provided by Airservices. Updated material was made available to him to update his copy. That his copy was not an up to date copy might have impeded him in his study for the examination but his opportunity to study had been enhanced when he had been required to collate the questions from which his examination questions were chosen.

The applicant's attitude that he did not have to update his personal copy of MATS is indicative, in our view, of the applicant's tendency to fail to recognise his own responsibilities. We find that, while he regards himself as a perfectionist and is hard on himself when he does not meet his own expectations, he is quick to blame others for his own shortcomings. Although his professional career was potentially at stake, he made no effort to update his MATS or to inform himself when he was collating the questions. Instead, he blamed Mr Tiede for not making material available before 14 January, 2000. Furthermore, he did not accept responsibility for his not performing well in the simulator but suggested that the examinations had been conducted unfairly in that Mr Sciortino had been an assessor. At the same time, he accepted that he had never given any indication that he did not regard Mr Sciortino as an impartial assessor. Having regard to the assessment Mr Sciortino made of the applicant on 3 January, 1999, we find that it was a most favourable assessment of the applicant. In light of that, of Mr Sciortino's evidence, of the applicant's having given him lifts to work and of the applicant's failure to make an earlier complaint, we do not accept that Mr Sciortino was biased against the applicant.

We also find that, as an ATC, the applicant's judgement is inappropriate. This is illustrated by his choice of the vectoring solution in the third incident rather than by a choice of a more appropriate solution such as insisting that his instruction to descend be followed. It is also illustrated by the "gonging incident", which the applicant acknowledges occurred. He can give no explanation for his behaviour although it was thought amusing at the time. We accept that, with hindsight, he considers his behaviour as inappropriate. In our view, such behaviour is inappropriate because it had the capacity to distract the attention of Mr Tiede from his duties as an ATC to ensure safety. It is a positive aspect of the applicant's behaviour that he is able to acknowledge that he has been inappropriate at times in the past. What remains of concern, however, is that he is unable to identify what is, and is not, inappropriate at the time of his behaviour.

We have had regard to the evidence of Mr Tiede as well as our own assessment of the applicant in concluding that we do not consider that the applicant will be able to achieve the status of an FPC. At the conclusion of his training course, we find, he was identified as a "borderline" trainee. He failed to pass his Ferranti simulator training at his first attempt on Sector 6 as well as failed to obtain a rating at his first attempt on Sector 5. With ratings obtained for only two Sectors in the Desert Group, he had a further five to obtain to achieve his FPC. Sectors such as Sector 16 in the Desert Group are busier than Sectors 5 and 6. Given the difficulties that we have identified, we have concluded that the applicant would have grave difficulties in obtaining ratings in the remaining five Sectors and to maintain currency in all seven as required of an FPC.

Cancellation of the applicant's ATC licence is not a decision we have come to lightly. We are mindful that his career as an ATC will come to a halt. Whether or not he will be able to maintain his employment is a matter of conjecture. If he needs to start another career, we are aware that there will be hardship to the applicant. He has done so before but he has never progressed so far in a career in the past. His difficulties, however, are not matters that are relevant in considering whether he is a person who can be entrusted with the task of maintaining the safe conduct of air operations. His desire to be entrusted with the task is equally irrelevant even though we accept that it is a genuine desire. Having regard to the pattern of his behaviour, he has not shown that he has the ability to maintain a consistently acceptable level of operation from month to month and from year to year. Given the character traits and approaches to his work we have found above, we do not accept that he is likely to change that pattern of behaviour. If he is unable to maintain such a level of operation, we find that it is not likely that he will be able to maintain the safe conduct of air operations in the future.

We have formed that view whether or not the applicant is given another opportunity to sit for the written examinations. The examination for which he sat was held in accordance with the second remedial training agreement. Even if he were permitted a second opportunity, we do not consider that this would outweigh the other matters to which we have referred and which persuade us that he is not likely that he will be able to maintain the safe and orderly conduct of air operations in the future.

For the reasons we have given, we affirm the decision of the respondent dated 31 May, 2000.

I certify that the one hundred and forty one preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President) and Mr A Argent (Member)
Signed: …………………………
A Horne Associate

Dates of Hearing       18, 19 December, 2000
Date of Decision       18 June, 2001
Counsel for the Applicant                 Mr P Rose
Solicitor for the Applicant                Flower & Hart
Solicitor for the Respondent             Blake Dawson Waldron

[2001] AATA 553

18 June 2001