McKellar v Jetstar Airways Pty Ltd (No.2)
[2010] FMCA 509
•9 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCKELLAR v JETSTAR AIRWAYS PTY LTD (No.2) | [2010] FMCA 509 |
| INDUSTRIAL LAW – Applicant employed by Jetstar as a pilot on condition that he successfully complete external and internal assessment – where external training paid for by Jetstar under an agreement that the cost would be repaid during applicant’s first three years of employment or upon earlier termination – where applicant successfully completed the external assessment but failed two internal assessments and was terminated – whether applicant’s failure to pass internal assessment caused by inadequate training – where applicant claimed that his failure was result of gaps in training, an excessive number of training captains and a personality clash with a particular training captain. Notice – Whether applicant entitled to notice as a probationary or permanent employee – where employment arrangements allowed for new employees to be put on probation at discretion of employer – where no evidence of discussion regarding status of applicant’s employment – where applicant had asserted that his employment was probationary in summary of material facts provided to industrial tribunal – whether this assertion amounted to an admission. Workplace Relations Act – Whether failure to give 2 month’s notice amounted to breach of provisions – remedies – whether penalty appropriate. |
| Workplace Relations Act 1996 (Cth), ss.381(c), 643(7)(b), 719 Civil Aviation Act 1988 (Cth), s.28 Evidence Act 1995 (Cth) ss.81, 87 |
| Watson v Foxman (1995) 49 NSWLR 315 Byrne v Australian Airlines Ltd (1985) 185 CLR 410 Kucks v CSR Ltd (1996) 66 IR 182 United Fire Fighters Union v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 Amcor Ltd v CFMEU (2005) 222 CLR 241 City of Wanneroo v Holmes (1989) 30 IR 362 Hughes v Loy Yang Power Management Pty Ltd [2010] FMCA 81 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 Arthur Young v Brunswick NL [1998] VSCA 87 Edwardsv Olsen [2003] SASC 238 Pioneer Plastic Containers Ltd v Commissioners of Customs & Excise [1967] Ch 597 William James Ockendon v Australian Taxation Office - PR925954 [2003] AIRC 34 William James Ockendon v Australian Taxation Office - PR920818 [2002] AIRC 907 | ||
| Applicant: | ANTHONY MCKELLAR | |
| Respondent: | JETSTAR AIRWAYS PTY LTD |
| File Number: | SYG 2210 of 2009 |
| Judgment of: | Raphael FM |
| Hearing dates: | 22 - 23 March, 12 - 13 May, 17 June 2010 |
| Date of Last Submission: | 17 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Kimber SC and Mr J Mallios |
| Solicitors for the Applicant: | Australian & International Pilots Association |
| Counsel for the Respondent: | Mr P O'Grady |
| Solicitors for the Respondent: | Freehills |
ORDERS
Parties to bring in short minutes reflective of these reasons within 14 days together with written submissions as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2210 of 2009
| ANTHONY MCKELLAR |
Applicant
And
| JETSTAR AIRWAYS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Anthony McKellar is an airline pilot. Between 2003 and 2006 he worked as a co-pilot flying Beechcraft King Air twin turbo propeller passenger aircraft for Air Centre Airways Pty Ltd. From January 2007 to April 2008 he worked for General Aviation Maintenance Pty Ltd operating a scheduled chartered airfreight service as a single pilot flying piston twin engine aircraft. In early 2008 he applied for a position as First Officer A320 with Jetstar Airways Pty Ltd (“Jetstar”). His application was successful and, on 14 March 2008, he received a formal offer of employment from Jetstar. Mr McKellar had not previously flown an A320 aircraft and had to obtain an endorsement for that aircraft and satisfy Jetstar on behalf of CASA of his ability to fly the aircraft as a First Officer. The first requirement was a condition precedent to Mr McKellar’s employment so that if he failed to obtain the endorsement his official employment would not commence. If he did not pass the “check to line” assessment that would be made of him at the end of his training he would expect his employment with Jetstar to be terminated. Endorsement training is carried out on the ground and in simulators. Check to the line training is carried out in aircraft where the Trainee First Officer is trained by experienced captains. The check to line assessment is carried out by a “Check Captain”. It is the practice in the industry that pilots pay for the cost of endorsement training. This training is sometimes carried out entirely by their employer and sometimes part of the training is sub-contracted out to a third party. Jetstar adopts this latter approach and the ground training is carried out on their behalf by a company called Alteon Training Australia Pty Ltd.
Jetstar, in its letter or offer, required Mr McKellar to sign a document known as an Endorsement Agreement whereby he agreed to make repayment to Jetstar of the cost of the Alteon training. The basic premise of the agreement was that the training would be paid for in monthly instalments over three years by the newly employed First Officer. However, there were provisions within the agreement whereby the full cost would be repayable in the event of termination of the employee’s employment or if the employee failed the endorsement training so that his actual employment with Jetstar did not commence. Mr McKellar signed the Endorsement Agreement and in April 2008 commenced the endorsement training programme which he completed on 3 June 2008. Between 3 June 2008 and 20 June 2008 he attended ground school training conducted by Jetstar in Brisbane and it was on 10 June 2008 that his official employment with Jetstar commenced and he began to be paid as a Junior First Officer.
On 3 July 2008 Mr McKellar commenced line check training. Although there was some observation involved from the “jump seat”, the real training was undertaken by Mr McKellar acting as First Officer in an aircraft under the guidance of an experienced Captain. On 15 September 2008 Mr McKellar undertook his first check to the line under Check Captain Ron Mookhoek. He failed. In accordance with Jetstar’s usual practice, Mr McKellar received extensive debrief on the line check with Captain James McLaurie and Captain John Cawood. On 19 September 2008 during the course of this debrief and discussion Mr McKellar made certain comments regarding his training. Jetstar agreed that Mr McKellar should undergo a further period of training before a second check to line. He did this. One of Mr McKellar’s concerns that he had expressed to Captains Cawood and McLaurie was with the training he had received from a Captain McConnell. He understood that it had been agreed that during his second phase of training he would not be trained by Captain McConnell. This did not occur and he was trained by Captain McConnell during the first part of the second training phase until he contacted a Mr Reid who worked on training rosters for Jetstar. Mr McKellar ceased training with Captain McConnell after 13 October 2008. On 29 October 2008 Mr McKellar undertook a second check to line assessment which he failed. On 7 November 2008 Mr McKellar attended a meeting with Tim Nuttal, Captain Geoff Lowe and Captain Steven Anderson at Jetstar head offices to discuss his second failure to check to line and his continued employment with Jetstar. On 10 November 2008 Mr McKellar’s employment with Jetstar was terminated as of 14 November.
At the time of his termination Mr McKellar had made some small repayments of the training cost but, apart from a payment of $1054.28 on 30 January 2009, has made no further payments. Jetstar, through its solicitors on 23 March 2009, requested payment of the balance.
On 10 September 2009 Mr McKellar commenced proceedings in this Court in which he asserted:
1.That his termination was in breach of his employment arrangements (specifically the Jetstar Pilots Agreement) because it had proceeded on the basis that he had been placed on probation and the terms and conditions relating to the termination of probationary employees had been applied when in fact he had not been placed on probation and should have been treated as a permanent employee.
2.That his employment agreement had been breached by Jetstar in not providing him with reasonable access to training that would have allowed him to acquire the skills, competency and knowledge needed to perform the duties of an A320 First Officer and allowed him to have been checked to line.
3.That Jetstar had breached the endorsement agreement and/or the contract of employment by failing to provide him with access to the necessary training, the effect of which was that as it had breached an implied term of his contract. It could not terminate him or require him to pay for the cost of training.
Mr McKellar also claimed final orders for declarations that Jetstar had contravened s.719(1) of the Workplace Relations Act 1996 (Cth) (the “WRA”) by breaching clauses 19.1.2 and 20.1.3 or 32.4.1 of the Jetstar Airways Pilots Agreement (the “EBA”)and for penalties. He sought an order under s.719(6) of the WRA that Jetstar pay him two month’s pay in respect of its breach of clause 32.4.1 of the EBA and a declaration that he was not liable to pay the respondent the training amount under clause 19.1.8. He also sought an order under s.841 of the WRA that any penalty or penalties be paid to him as well as declarations and orders of a similar type arising out of the alleged breaches of his employment agreement.
The respondent resists the application. It argues that the applicant was at all times a probationary employee and that the endorsement agreement is a stand alone agreement whereby monies were advanced to Mr McKellar for the purposes of assisting him to pay for his training and that his obligation to repay the money upon termination of his employment was not affected by any implied terms in his employment contract. It argues that there are no such implied terms in the employment contract or alternatively that, even if there were, it had complied with them and provided him with all necessary training. It argues that the claimed breaches do not constitute unsatisfactory training and that Mr McKellar’s problems with being checked to line were due to his own failings as a pilot and not to his training. It counter claims the return of the balance of the unpaid training costs together with interest and costs which include the costs of recovery as provided for in the endorsement agreement.
In these reasons I shall deal first with the evidence given to the Court and my findings in respect to that evidence. I shall then consider how those findings affect the claims made in the Statement of Claim and Cross-Claim before considering the issues of law raised by both parties.
Anthony McKellar
In Mr McKellar’s affidavit of 19 February 2010, which constituted his evidence in chief, he told that during his first line check training he developed a good rapport with most of the training captains except Captain Greg McConnell who was involved in his training for approximately 53 of the total 130 hours received during his first training programme. He said that he felt uncomfortable and uneasy and in a state of stress whilst training with Captain McConnell:
“There was often an air of tension and conflict in the cockpit. It culminated on one occasion with Captain McConnell folding his arms looking forward out of the cockpit and saying words to the following effect:
McConnell: “I’ve given up on you””[1]
Thereafter Mr McKellar said that the training flights with Mr McConnell were spent in silence and that Captain McConnell only spoke to him when operationally necessary notwithstanding his attempts to ease the tension and establish rapport with the trainer. Mr McKellar referred to a particular exchange of words when he said to Captain McConnell:
“I am not enjoying this, I am not enjoying the training”
And McConnell responded:
[1] Affidavit of Anthony McKellar, 19 February 2010, para.15.
“No, I didn’t think you would be”[2]
There is a dispute as to whether this occurred during the first training or during the second. Mr McKellar said that the difficulties he experienced with Captain McConnell between 11 and 26 July resulted in his focus shifting from flying the plane to ensuring that he avoided Captain McConnell’s abuse and by 26 July when he completed the last of his training sessions he felt that his relationship with Captain McConnell was beyond repair. Mr McKellar then had a short period of training with Captain Davis, which he said went a long way to restoring his confidence. But on 10 and 11 August he had further training periods with Captain McConnell who, he claimed, became frustrated with what he perceived as a lack of improvement in the standard of Mr McKellar’s flying.
[2] Affidavit of Anthony McKellar, 19 February 2010, para.17.
Following his failure to check to line, Mr McKellar received a telephone call from Captain Michael McLaurie, the Jetstar Manager Flight Operations Standards. On 19 September they had a meeting at Jetstar’s head office in Melbourne. Captain Cawood, the Jetstar Airbus Training Manager was also in attendance. Mr McKellar deposed to a conversation with Captain McLaurie in which he was asked how he found the training and said that he had found it okay overall but that he was having trouble with one of the trainers who he initially did not wish to name. When he did name Captain McConnell he was asked what the problem was and said:
“I don’t feel at ease in the cockpit with him. I don’t feel comfortable and there is an air of conflict.”[3]
Mr McKellar then deposes to a further conversation in which Captain Cawood said:
“We will make sure that there is no further training with Captain McConnell and he will not be rostered with you again for your second attempt at passing your line check.”[4]
[3] Affidavit of Anthony McKellar, 19 February 2010, para.27.
[4] Affidavit of Anthony McKellar, 19 February 2010, para.28.
Mr McKellar was meant to get back to training on 20 September but when he arrived at the crew room on that day he was told that he had been removed from the flight and that his follow up training would be with Captain McConnell. On 21 September 2008 he sent an email to Captain McLaurie. The email notes that he had been told his follow up training was with Captain McConnell and asked Captain McLaurie to confirm that this was correct but otherwise makes no mention of the alleged promise that he would not be flying with Captain McConnell again. However, on 23 September 2008 he sent an email to Geoff Reid who was the Jetstar Training Coordinator. That email states:
“Hello Geoff
Thank you for your call yesterday and the opportunity to fly this Thursday with Capt. Edmund Keane. I admit I was somewhat disappointed on Saturday when I discovered in the crew room that I was not flying that day as I had thought.
I also appreciate the offer to fly today with Capt. Greg McConnell, but, as I discussed at the meeting that I had with Mike McClaurie and John Cawood, I believe there to be a personality clash between the two of us and therefore, if there is a chance that I may train with someone else, I would appreciate it. Having said that though, I believe that there should be no problem to line flying with Capt. McConnell once I am check to line. I apologise for this situation but do feel the need to inform you of it.
Thank you for your time, patience and consideration.
regards,
Anthony McKellar, F.O.”[5]
In his affidavit Mr McKellar had said that he had had a previous conversation with Mr Reid in which he had referred to his conversation with Captains McLaurie and Cawood about Captain McConnell and Mr Reid said he had not been spoken to by those captains.
[5] Affidavit of Anthony McKellar, 19 February 2010, page 39.
Mr McKellar recommenced training on 25 September and received about 65 hours of training conducted over a five week period with three different training captains. He received training on 7, 8, 9, 10 and 13 October from Captain McConnell. He had been on leave between 26 September and 4 October, an arrangement made with Mr Nuttall at Mr Nuttall’s request on 22 July 2008. Mr McKellar says that Captain McConnell was rostered as his Training Captain for 14 sectors totalling 27 of the 65 hours of training during his second line check training. He was then transferred to Captain Hallebone who then trained him on 15, 16, 20, 21, 22 and 23 October just prior to his second line check which took place on 29 October. Captain Allchin was the Checking Captain. Mr McKellar failed the second line check. Mr McKellar deposed to a short conversation with Captain Allchin in which he said that Captain Allchin had said that all he needed was a couple of hours in the simulator and that his problems would be fixed and that he would be recommending that this take place.
On 7 November 2008 Mr McKellar attended a meeting at the Jetstar head office with Mr Tim Nuttall, the Jetstar General Manager People Relations, Captain Geoff Lowe, the Manager Line Operations A320, and Captain Steven Anderson, of the AIPA, who attended as Mr McKellar’s nominated representative. Mr McKellar deposes to having told the meeting what happened during the check flight and why he believed he failed. Thereafter most of the talking was done by Captain Anderson who put to the Jetstar representatives that his training had been completely disrupted and lacked consistency. The major complaints being made were that during the course of the training Mr McKellar had flown with seven training captains, that he had been obliged to go on leave during training and that there was disruption to the training periods. Captain Anderson also raised the personality clash with Captain McConnell. When Captain Anderson raised this concern, Mr Nuttall said that he did not know about the issue with Captain McConnell and that it was not relevant. But Captain Anderson persuaded the Jetstar representatives to consider the decision that they had indicated that Mr McKellar’s employment would be terminated. Mr McKellar deposes:
“The meeting went for approximately two (2) hours and was interrupted by two (2) intervals where Nuttall and Lowe left the meeting room to conduct a private discussion. Both of these intervals were approximately 30 minutes in duration. During the intervals Anderson and I remained in the meeting room. Upon Nuttall and Lowe returning to the meeting room (after the second interval) a conversation to the following effect was held:
Nuttall:We accept that there were breaks in the training and a number of training captains involved in Anthony’s training. However, pilots quite often are required to have breaks between flights. Our concern is that even if Anthony was checked to line, there is no guarantee that he will pass his subsequent line check.
Anderson: The training was not as per normal Qantas and accepted practice.
Nuttall:I am not familiar with training practice. In an ideal world 2 or 3 training captains is preferable; however, within Jetstar we do not have the training captains available to accommodate such requests easily.”[6]
When the meeting concluded, Mr Nuttall confirmed that Mr McKellar’s employment would be terminated.
[6] Affidavit of Anthony McKellar, 19 February 2010, para.43.
Mr McKellar was cross-examined by Mr O’Grady. He accepted that, by 11 July 2008, he had a flight crew licence which contained an A320 endorsement, that endorsement was not specific to Jetstar and meant that subject to in-flight training and a check to line clearance he was qualified to become a First Officer for any airline which flew Airbus A320 aircraft. Mr McKellar indicated that he had made applications to Tiger Airways and Strategic Air for employment following his termination by Jetstar but that he had been unsuccessful. Mr McKellar accepted that he had not told Captain McLaurie and Captain Cawood on 19 September that his relationship with Captain McConnell was beyond repair, nor did he say that he felt uncomfortable, uneasy or in a state of stress when working with Captain McConnell. He did not say that Captain McConnell was particularly aggressive or intimidating. Mr McKellar agreed that he had not discussed his problems with Captain McConnell or any other members of management before the meeting on 19 September. Mr McKellar accepted that at no stage was an unqualified commitment given to him that he would not train again with Captain McConnell. Mr McKellar was further cross-examined about the debrief with Captain Allchin. Whilst he denied that Captain Allchin had said to him that there was a problem with landing the aircraft and in particular the last 30 miles, he did agree that Captain Allchin had not said that “it was a simple fix”. Mr McKellar told Mr O’Grady that he recalled that Captain Allchin had said that he would do what he could to help and that there may be a basis for further training.
Mr McKellar was then taken through the pilot line training records which were annexed to his affidavit. There were a number of them which indicated problems with the approach on landing. Following Mr Kimber’s re-examination, which did not to my mind change the nature of the witness’ evidence, I asked Mr McKellar about a transition simulator check which he had been given by Jetstar following his completion of the Alteon training:
“HIS HONOUR: I just want to ask you a question. You know the transition simulator check, the thing that - the translation simulator - - -?---The transition sim, yes.
Is that some sort of examination on what you learnt at the - or whatever - - -
MR KIMBER: Alteon---At Alteon?
HIS HONOUR: Yes?---I believe the transition sim is there to see if you meet a standard acceptable for Jetstar to commence training with them.
Yes, but does it refer back to the stuff that you learnt at the other place?---Yes. Yes.
So you go to the other place, and they pass you out, but then Jetstar want to check it out; is that right?---That’s right, yes.
So that’s why you see that thing?---Yes.
And do you agree with the remarks by Captain Sillar found at the last page of the annexures to his affidavit, which is annexure AKS6, that:
The first company assessment in the simulator during the transition simulator check was very weak, and was assessed as minimum standard pass by the check pilot, citing very weak situational awareness, knowledge and execution of 40 procedures and knowledge SOPs.
?---Yes.
Did you take any other company assessments in the simulator in the transition simulator check after that one? He says, this is first company assessment. Does that mean there were more than one company assessments, or is that a reference to the assessment, the first assessment of you by the company; do you know?---The first assessment by the company.
So there weren’t any others - - -?---No.
- - - after that one?---No, not in the simulator, no.
Well, the next assessment was presumably after - well, then you tell me if I m wrong- was the line check, was it?---That s correct.”[7]
[7] [T113].
Captain Allchin
Captain Allchin, who gave evidence on subpoena, has been a Check Captain with Jetstar for four years. He has been a Check Captain with Jetstar and other airlines for a total of 11 years. He has undertaken training as a Training Captain and as a Check Captain. He explained that a First Officer, having been checked to line, would do a follow up check within three months and then go into a cyclical system of one annual line check and two simulator checks per year. He explained that if a pilot failed any of those proficiency tests he would receive remedial training. Captain Allchin was the Check Captain for Mr McKellar’s second check to line and he had trained Mr McKellar for three days early in his training period. Captain Allchin explained that whilst continuity in training was important it was also important to have breaks, ideally every two to three days, so the trainee can absorb what he has done. On the other hand, too great a break would not be prudent because of the time taken to re-establish procedures. Captain Allchin was questioned about the number of training captains that should be utilised to train a pilot. He took the view that one to two was the general protocol and three in exceptional circumstances. That small number would give the trainee continuity in training but also allow the trainee to see a different slant on the same procedures. He was asked what he thought about the suggestion that it might be a good idea to have a different training captain every time the trainee was being trained. Captain Allchin’s view was that, whilst this might be appropriate on the long haul flights, if they were short sector flights he did not believe that this would be conducive to a trainee’s betterment. It might create confusion for the trainee.
Captain Allchin was then questioned about the discussion which took place between himself and Mr McKellar after he had failed the second check to line which was described as a debrief. The conversation had gone on for between two and a half to three hours and Mr McKellar had acknowledged the areas in which he felt he wasn’t proficient and took responsibility for the failure. He did, however, discuss with Captain Allchin some of the concerns he had about the training, including the lack of continuity. Captain Allchin told Mr McKellar that he was concerned with the breaks in his check, the number of training captains and the fact that he possibly was not mentally prepared to continue his training after he failed the first check to line. Captain Allchin had to report on the failure to Captain McLaurie and, when he did so, told Captain McLaurie that there seemed to have been some deficiencies in the training and that there was enough basis to give McKellar some more training. Captain McLaurie had responded that that was up to the Standards Committee. Captain Allchin was asked what the extra training required by Mr McKellar might be. He responded:
“Basically just the last 30 miles, you know, sectors, short sectors and targeted, I guess, with – well, we’ve got - all our training captains are very good, but if it had gone further forward I would have perhaps suggested a few people that might have been able to help more so than others in that area.”[8]
Captain Allchin explained, after looking at the line check form he had completed, that Mr McKellar had two grade ones in visual approach and instrument applications and three grade fours, grade one being a fail and grade three being average.
[8] [T124].
Under cross-examination Captain Allchin told that a grade one on a line check meant an automatic fail and more than three grade twos also meant an automatic fail. He explained his reference to Mr McKellar’s deficiencies in regard to the last 30 miles. Captain Allchin explained that the last 30 miles involved setting up the aircraft in the correct configuration on the profile at the correct speed to come in to land and that this description was sometimes called situational awareness. He agreed with Mr O’Grady that, in that section of the flight, Mr McKellar had some major issues which needed a lot of work. He confirmed that he did not say to Mr McKellar that there would be any quick fix, nor did he say that all that was needed was a couple of hours in the simulator. Whilst Captain Allchin would not agree with Mr O’Grady that there were benefits in having a larger number of training captains, he did accept that, if a pilot required a large number of training hours, then it was more likely that he would be exposed to a larger number of training captains.
Captain Allchin was questioned by the Court. He told that he had not seen the report of the check to line test from Captain Mookhoek. When he was taken to it, he agreed that Mr McKellar had failed his instrument approach on the first test and he did that again on the second test. He was then asked about the circumstances in which the fail took place and was read the comments of Captain Mookhoek when he said:
“Anthony still lags behind on descent profile resulting either much too high or too low on profile.”[9]
and agreed that both he and Captain Mookhoek had the same views about Mr McKellar’s abilities in relation to his approach to landing problems. In answer to a question as to whether this knowledge might have changed anything he had said about Mr McKellar’s training, Captain Allchin responded:
“Well, in isolation I think that stands out that perhaps there’s a case of what in fact happened but that’s in isolation. However looking at the training record from day 1 to when I did the final check I believe, given better opportunity, he might have done better on that day. I don’t profess to say he would have been proficient. I’m saying I believe the system perhaps didn’t give him the best opportunities.”[10]
[9] [T138].
[10] [T139].
Captain Hallebone
Captain Hallebone is a Check Captain with Jetstar. He gave evidence on subpoena. Captain Hallebone was the first Training Captain assigned to Mr McKellar when he commenced his training and was the last Training Captain he had before his second check to line. Captain Hallebone told the Court that in his experience, he typically saw two to three training captains and one check captain as the number of trainers for a particular pilot. He felt that the problem with having a significant number of trainers was that there were too many ideas for a new student to take on. He did not have views on the number of gaps in training but suggested that the optimum duration of the gaps would be three to four days. Captain Hallebone felt that it was essential to have a good relationship between the trainer and the trainee because not to do so would have a negative impact on the trainee’s ability to learn and their self-esteem and motivation to continue studying. Captain Hallebone told the Court that in respect of the training he gave Mr McKellar prior to his second check to the line, he felt that Mr McKellar was “underdone” and required some more training to get him up to the standard required to be checked to line. He spoke to either Captain Sillar or Captain McLaurie and approval was given. Captain Hallebone recalled that Mr McKellar had told him that he had a difficulty with a trainer that he didn’t get along with but did not name the trainer. Captain Hallebone was asked to look at the training records exhibited to Mr McKellar’s affidavit and told the Court that there were difficulties with the number of gaps in Mr McKellar’s training and the duration of those gaps. The Court clarified with Captain Hallebone the number of extra days that had been given prior to the second check to line. It appeared that he was originally assigned three days of training and, after asking for more time, was granted a further three days. Captain Hallebone told the Court that he thought that the gap between the last day of training, 23 October, and the day that Mr McKellar was checked to line, 29 October, was a significant gap.
Under cross-examination Captain Hallebone agreed that any rustiness arising out of a gap would be temporary if the candidate was reasonable and capable. Captain Hallebone agreed that the Standards Committee was made up of the most senior people in the organisation in terms of knowledge and responsibilities concerning training and that he would defer to their decision in relation to whether or not someone ought to be given another chance. He agreed that there were differing views as to the number of training captains that were ideal for a training pilot. The Court questioned Captain Hallebone who told it that he did not believe after completion of the training that Mr McKellar was ready or likely to pass the check test. He told the Court that Mr McKellar required practice on approach and landing, that he had applied for the extra training to be made up of “four sector days” so that there would be a more pronounced opportunity to land the aircraft. In fact, the last few days included late night flying which he felt was not conducive to learning. He agreed that the line check form was consistent with his views about Mr McKellar’s abilities and was consistent with the failings that he had identified. He told the Court that an extra three or four days of training would have got Mr McKellar to a stage where he would have passed the check to line. He felt that the training could be done either in the cockpit or in the simulator and that would have assisted overcoming a confidence problem that he had diagnosed in Mr McKellar. Captain Hallebone indicated that the six days between the last training flight and the check to line was unusual and would not have helped but he reiterated that he did not believe that Mr McKellar was ready to pass the check to line on the date of the test. Captain Hallebone was cross-examined on his responses to the Court and was asked to look at the training records and, in particular, the consistency between the weak points in Mr McKellar’s abilities. Perhaps the most significant weakness was the last 30 mile approach to landing which Mr O’Grady took Captain Hallebone to in both the line check reports, noting that he was given a one on the first check assessment for instrument applications:
“Yes, now, if you go to the line check form on 29 October, you will see that there are, again, this time he flies both legs, he gets a three in one and he gets a one in the other? Yes.
And if you have a look at item 7, whilst we’re on page 35, you will see he gets a one on visual approaches? Yes.
Now, that is a landing issue, is it not? It’s an energy management issue.
Energy management issue which is the position of the aircraft coming in to land over the last 30 miles or so? Yes.
If you go back then to 15 September, page 33, you will see the item 7, Visual Approaches? Yes.
He gets a three for that? Yes.
So he’s come from a three back to a one on visual approaches, and you’ll see that on the instrument applications he has been a one on both occasions, excepting on the second occasion, there were two landings. That suggests an inherent problem, does it not? In isolation, yes.
Yes. And if one goes through the training records and sees the phrase “energy management” coming up on a regular basis, and the last 30 miles on a regular basis, then it supports the view, does it not, that there’s an inherent problem? Yes.
Now, if it was the view of the Standards Committee that such a problem was not readily remedied by an extra three or four days of training, then you would accept that view, wouldn’t you? Well, no choice, yes.”[11]
In re-examination by Mr Kimber SC, Captain Hallebone indicated he felt that Mr McKellar’s problems should not be looked at in isolation but more broadly as to whether he had a real problem that was not capable of being remedied and that he would have recommended that Mr McKellar was given another opportunity to check to line.
[11] [T157].
Captain Anderson
Captain Anderson had sworn an affidavit on 18 February 2010 in which he told that he was an airline pilot employed by Qantas Airways Ltd, was a member of the AIPA Committee of Management. He had been the Assistant Secretary of the AIPA between 2006 and 2008 and since 2009 had held the positions of AIPA Secretary and the Welfare Portfolio Director. In Captain Anderson’s expert opinion, a pilot’s failure to be checked to line is generally connected, but not limited to, marital issues, illness or training programmes that are not configured to provide the correct levels of consolidation. In his view, there was a custom and practice within Jetstar that in the event of a training relationship breakdown between a training captain and a trainee, the trainee could request a different training captain be appointed. It was also his view that normal training involved the trainee pilot receiving training from two to three training captains because that allowed for the delivery of a more consistent approach to training which he believed was essential.
Captain Anderson agreed to assist Mr McKellar at the meeting which was called for 7 November 2008 following his second failure to be checked to line. Captain Anderson deposed to the fact that the meeting was attended by Mr Nuttall and Captain Lowe for the company and confirmed Mr McKellar’s evidence that he only spoke significantly at the commencement of the meeting when he was asked what had happened at the second check to line. Mr McKellar had told the meeting that on the approach to Hobart he was getting higher on the glide scope and he rectified this by disconnecting the auto-pilot and hand flying the aeroplane down. The Check Captain had taken the view that he should have used the auto-pilot and that he had a lack of knowledge of the automated systems. Mr McKellar put this down to the excessive number of training captains allocated to him. At this point Captain Anderson deposed to saying:
“Don’t you agree that the training was completely disrupted and had it not occurred this way we could have expected a completely different result had it been normal practice?”
and Captain Lowe responded:
“I agree with you.”[12]
Captain Anderson also deposed to the fact that Captain Lowe had said that he did not know why Mr McKellar had had seven training captains and felt that this was a bit harsh. He asked the Jetstar representatives to reconsider the decision to terminate Mr McKellar. He noted that the meeting which lasted about two hours was interrupted by two intervals where Mr Nuttall and Mr Lowe left the meeting room to conduct private discussions. These intervals were approximately 30 minutes in duration. Captain Anderson deposed that, after the second interval, conversation to the following effect was held:
“Nuttall:We accept that there were breaks however pilots quite often are required to have breaks between flights. Even if Anthony passed his check to line there is no way it could be guaranteed that he will pass his subsequent line check.
Anderson: The training was not as per normal Qantas and accepted practice.
Nuttall: I am not familiar with training practice; however, while having 2 or 3 training captains would be ideal, in the real world, we can’t provide that.”[13]
[12] Affidavit of Steven Anderson, para.14.
[13] Affidavit of Steven Anderson, para.17.
Captain Anderson gave as his expert opinion following a review of Mr McKellar’s pilot line training record that 130 hours of training over an 11 week period with seven different training captains indicated a disjointed structure with several break periods of five days or more. He believed that ran contrary to the principle of continuity of training which required multiple sectors to be flown over several days with only short breaks and noted his agreement with a comment by Captain Ogilvie in the pilot training record where Captain Ogilvie said:
“Anthony appears to be making methodical progress probably due to the number of training captains and interruptions over the training period. More sectors per day over a shorter time frame with two or three training captains would enable more consistent training.”[14]
Captain Anderson felt that the structure of Mr McKellar’s training significantly contributed to him not being checked to line and also that the second period of training with Captain McConnell would not have been appropriate or successful given Mr McKellar’s view that their personal relationship had broken down.
[14] Exhibit “AGM-1” of Mr McKellar’s affidavit, page 26.
In cross-examination, Captain Anderson agreed that one of the reasons that a person might not be checked to line was that he was just not up to scratch. Captain Anderson was asked whether the recollection which he had of his conversations with Captain Lowe and, in particular, Captain Lowe’s admissions about the training, were correct. Captain Anderson expressed the view that his affidavit constituted an accurate assessment of what occurred.
Captain Davis
Captain Davis swore an affidavit on 19 February 2010. He was appointed a Training Captain on the A320 in 2006. He was involved in Mr McKellar’s first line check training programme which commenced on 3 July 2008. He trained Mr McKellar on eight sectors with a total flying time of 15.5 hours in the period 1-2 and 6 August 2008. It was Captain Davis’ practice to read the training records so that he could concentrate on any weaknesses that needed to be specifically focused upon. He stated that in Mr McKellar’s case there was nothing unusual about his standard of flying given the amount of sectors and hours of training that he had performed. He stated that the normal approach to training typically involved flying multiple sectors over a short time frame with a maximum of two to three training captains. He believed this provided more consistent training and provided the best opportunity for a candidate to check to line. He agreed with Captain Lowe’s comments that were extracted in the evidence of Captain Anderson who was of the view that Mr McKellar should not have been subject to training from seven different training captains and that the significant interruptions throughout his training prevented him from having access to normal training. He also believed that it was appropriate that further training excluding Captain McConnell should have been provided. Had these things been done Mr McKellar would have had a better opportunity to be checked to line.
Under cross-examination, Captain Davis agreed that in the case of a trainee who required more than the usual amount of training it might be an exception to the rule that two or three training captains would be the ideal number. He stated that once the hours went beyond the normal there might be one or two extra training captains required because of roster reasons. In response to questions from the Court, Captain Davis said that the normal number of training hours was about 120 and that that might expand to 130 prior to the first check to line so that Mr McKellar having had seven training captains in the first period would mean that he had seven training captains within the normal training period and that that was very unusual.
Mr Nuttall
Mr Nuttall, who is the General Manager of Human Resources for Jetstar, affirmed an affidavit on 12 March 2010. He stated that, on 5 November 2008, he received an email from Captain Sillar, the Manager of Standards and Assurance, which referred to the Standard Committee’s concern with Mr McKellar’s performance and its decision not to award him further training. He arranged a meeting with Mr McKellar and Captain Lowe to discuss the unsuccessful line check. It says in his affidavit that:
“Following the decision of the Standards Committee not to provide Mr McKellar with any further training, it was appropriate to give Mr McKellar the opportunity to raise any concerns he had regarding his training which he may not have had the opportunity to raise elsewhere.”[15]
Mr Nuttall deposes that Captain Anderson cited three factors which contributed to Mr McKellar’s failure being the gaps in training, the number of training captains and the conflict between Mr McKellar and Captain McConnell. During the breaks in the meeting referred to in Captain Anderson’s affidavit. Mr Nuttall said that he spoke once to one of the managers of the Training Department about the conflict with Captain McConnell and then with Captain Wheeler, the Jetstar Chief Pilot. He states:
“It was determined by Captain Wheeler on advice from me and Captain Lowe that it was appropriate to terminate Mr McKellar’s employment. The reasons were that Mr McKellar:
(a)had not been able to demonstrate the standard of flying skills required by Jetstar during the prescribed line checks;
(b)had been provided with twice the expected amount of training other entry level pilots had required;
(c)in the opinion of training managers, who are experienced in training pilots with multiple skill levels, personal commitments and backgrounds, had not displayed the skills sufficient to have confidence in his future ability to maintain the standards required of a Jetstar pilot; and;
(b)had not put forward a sufficient explanation for his skills failure, either himself or through his support person.”[16]
[15] Affidavit of Timothy Nuttall, para.9.
[16] Affidavit of Timothy Nuttall, para.17.
The balance of Mr Nuttall’s evidence in chief deals with the repayment of training costs and concluded with a calculation of Mr McKellar’s debt to Jetstar of $30,574.02 as at 12 March 2010. In an examination in chief, Mr Nuttall was taken to the Jetstar Airways Pilots agreement 2008 (the “EBA”) and its predecessors. Under the 2001 and 2005 agreements, all pilots were employed subject to a probationary period. He explained that clause 20.1 of the 2008 EBA, which stated “[o]n initial employment with Jetstar, a pilot may be placed on probation”, did not appear in the previous agreements. He said that this related to the timing when the agreement was made. It was inserted in order to deal with the situation of senior pilots who would come over from other airlines to fly the new Boeing 787 Dreamliners. It is thought that those senior pilots would be reluctant to come over if they were to be placed on probation and the new wording allowed what was considered to be the standard probation arrangements to be waived. Mr Nuttall felt that the standard practice had not changed but, if someone was not to be placed on probation, they would be told. Under cross-examination about this aspect of the matter, Mr Nuttall agreed that the changes to the EBA meant that the company had to make a decision as to whether a new employee was to be put on probation or not. He agreed that he had not found any written document which indicated whether Mr McKellar was or was not on probation. Mr Nuttall confirmed that the EBA was not part of Mr McKellar’s contract of employment and that there was no reference to probation in any contractual document. Mr Nuttall was then questioned about the Endorsement Agreement. He said the separate agreement was required because it was a condition precedent that a prospective pilot had obtained the endorsement before he took up his employment proper. This meant that it could not be included in the contract of employment because it was possible that the person might undertake the training and fail and not ever take up their employment. Jetstar needed to recover the cost of the training even though the trainee never became its employee. He would not agree, however, that the Endorsement Agreement and the offer to pay for the training in advance constituted an offer of employment on conditions. He insisted that the Endorsement Agreement constituted a loan agreement only. He made it clear that he felt that there was no condition in the offer of employment that the pilot had to be trained at Alteon. The condition precedent was the obtaining of the endorsement. The pilot could obtain an endorsement in the manner of his own choosing. He could pay for the training himself and he did not need to have Alteon supply it. The Endorsement Agreement was only utilised because Mr McKellar decided that he wanted Jetstar to provide the training and to make the initial payment.
Mr Nuttall was then asked about the leave which Mr McKellar took. He agreed that he had rung Mr McKellar and talked to him about the possibility of him taking one month’s leave without pay and that Mr McKellar had informed him that he could not afford that at this time. He pointed out to Mr McKellar that he had a week’s leave with pay available to him and asked if he could take that and Mr McKellar agreed to do so provided he could choose the time. Mr McKellar then chose a time in late September. The cross-examination about the leave was lengthy. I am satisfied that, whilst Mr Nuttall may have asked Mr McKellar whether he would take a month’s leave without pay, he did not put him under any pressure to do so. On the other hand, I felt that Mr McKellar would have been under some pressure to agree to take the one week that he did have available and that he might not have sought leave at the end of September if he had not been approached by Mr Nuttall. But the timing of the leave that he requested would have been after the completion of his training had he checked to line on the first occasion. I have no reason to doubt that Mr McKellar expected to pass his first check to line so that the leave that he agreed to take would have come after that. To the extent that taking that leave caused a break in his training, I would not be prepared to say that this was a deliberate act on the part of Jetstar in the same way that waiting for a period of approximately five days between his last training session and his second check to line would have been.
Mr Nuttall was then cross-examined about his reaction to the information about Mr McKellar’s problems with Captain McConnell. He agreed that, prior to the meeting on 7 November, he did not know that there had been such a problem. He was asked what he meant when he had told Mr McKellar and Captain Anderson that it was not relevant. He said that this was because, prior to making that statement, he had spoken to the Training Department and made himself aware of the issue. He said he spoke to Captain Sillar and Captain McLaurie. Mr Nuttall denied that he had said that the problem was not relevant because a decision had already been made to terminate Mr McKellar and denied that the meeting which he had had with Mr Gising and Mr Garnett on 5 September was anything more than a meeting to alert those gentlemen to the fact that there was a possibility of termination of Mr McKellar’s employment on 7 November. He was asked whether he was advocating termination of employment on the basis that Mr McKellar had failed twice and the Standards Committee did not support any further attempt. He responded that it was not for him to advocate, merely to say that he was going to meet with Mr McKellar and, unless it comes out of the meeting that there were extenuating circumstances, his employment would be terminated. He did not make any recommendation as to termination prior to 7 November. Mr Nuttall did agree that, when he went to the meeting on 5 September, he did not have any knowledge of any problems with Mr McKellar’s training. Mr Nuttall did say that he took up Mr McKellar’s concerns with the Chief Pilot, Captain Wheeler and with the training captains:
“Do you suggest to his Honour that Captain Wheeler confirmed that, really, what you had been told in the meeting didn’t really matter, or didn’t warrant reconsideration of the position; is that your evidence?
Yes. After talking to the training guys we had – the first part of the meeting was raised of the issues with McConnell in the previous meetings. So I went back to talk to the training guys about that and the relevance of that and how important that was. Then we had further discussions in the meeting and then I went back to Captain Wheeler as the training guys report to him and the pilots report to him. So, again, from his experience and his role in the employment relationship clarified with him as the extent of the training that he had been given and the circumstances around it.”[17]
[17] [T216].
Mr Kimber then took Mr Nuttall to Mr McKellar’s affidavit and his account of the discussions on 7 November and, in particular, to the apparent agreement of Captain Lowe with the criticisms which were addressed by Captain Anderson, in particular, the number of training captains when Captain Lowe allegedly said he thought that was “a bit harsh”. Mr Nuttall agreed that that was an important matter that he should be aware of. Likewise, he agreed that it was important that he be aware of the complaints concerning Captain McConnell which he did not know about previously. Mr Nuttall spoke about the discussions which he had had during the breaks in the meeting on 7 November and particularly in relation to the Captain McConnell issue. The evidence which he gave was consistent with that given by the other relevant witnesses that Mr McKellar had raised the subject of his training with Captain McConnell, that Captain McLaurie and Captain Cawood had said they would see what could be done about it, that a request had been put in that Mr McKellar should not be further trained by Captain McConnell, that this request had not been actioned and that Mr McKellar had received further training from Captain McConnell. He was then asked whether the information that he had received mattered. He said that it did but his position was that, having learnt about these problems, his duty was to go back to the Standards Committee and ask them their views as to whether the trainee should receive more training:
“But if the answer is he’s still not up to the standard of flying then, from my point of view, that is where it ends for me.”[18]
Having said this, he then agreed that it was not a question of the Training Department making a decision as to whether Mr McKellar would be terminated or not. It was his discretion. He could have gone against the Training Department. There is then this exchange between Mr Kimber and Mr Nuttall:
“Right. So do I understand it, just to summarise, that once you became aware of these things you then bounce them off the training guys and they said “look, they’re small or they really don’t matter. The guy has had 200 hours in the air, he’s not up to it and that’s all she wrote”. Is that effectively what happened?
As far as the training goes and what has been raised in the meeting, yes.”[19]
Mr Kimber continued to question Mr Nuttall about these matters but Mr Nuttall did not resile from the position that he had taken appropriate advice and that, by the time the decision came to be made, he was fully conversant with the facts concerning Captain McConnell. He reiterated that he had spoken to Captain Wheeler and that he had told Captain Wheeler about the matters that were raised and that Captain Wheeler had told him that he did not think they should make any difference. Mr Nuttall did agree that he did not speak to any of the check pilots or the trainers, nor was he aware of Captain Allchin’s view that Mr McKellar should be given another chance. It came down to the fact that Mr McKellar had twice failed the check to line and had 210 hours of training when the normal range was up to 130. Mr Nuttall did not think that, in all the circumstances, Captain McKellar had put forward a sufficient explanation for his skills failure, either by himself or through Captain Anderson and that he held this view notwithstanding the concession apparently made by Captain Lowe.
[18] [T230].
[19] [T232].
Captain Sillar
Captain Sillar affirmed an affidavit on 12 March 2010. He is the Manager, Standards and Assurance at Jetstar, a position he has held since 8 September 2004. Captain Sillar deposed that he had overall responsibility for the checking and training of pilots across Jetstar and is the head of the Training and Checking Department. As such, one of his responsibilities is being one of the “key” personnel as defined in s.28 of the Civil Aviation Act 1988 (Cth) (the “CA Act”) and is required to monitor the compliance of Jetstar’s operating crew with the Act and Regulations. Captain Sillar was previously Deputy A320 Training Manager, then A320 Manager. Before taking up his role as Manager, Standards and Assurance, he had been employed by Singapore Airlines in their advance flight training section and as a supervisory instructor pilot and, before that, worked for Ansett Airlines for 14 years, during which time he had held senior training positions with A320 aircraft. Captain Sillar explained in his affidavit the regulatory system imposed by CASA upon Jetstar and the importance of ensuring that the company complied with the safety operational specifications in the CA Act and Regulations. He deposed that pilot training at Jetstar was conducted in accordance with Jetstar’s Air Operator Certificate (“AOC”) and in accordance with the Jetstar Operations Manual Volume 3-Training and Checking (“OM3”). In part 3.9 of OM3 the procedures when a pilot fails a test or a check are set out. It provides that:
“A failure of a retest will result in consideration of the suitability of the candidate to operate as a crew member of a Jetstar aircraft. Company policy is that further opportunity would not normally be provided.”[20]
The witness explained that endorsement training, of the type provided by Alteon, does not of itself entitle the trainee pilot to fly commercial passenger aircraft. It provides one with a general qualification which enables the trainee pilot, when employed by an airline, to undertake further training conducted according to that airline’s standards, which will permit the pilot to be checked to line at that airline.
[20] Exhibit 4.
Captain Sillar’s affidavit continues with a description of the training received by a Trainee First Officer after they have obtained the endorsement. It consists of a transition programme; a landing assessment; in-flight training; and finally a formal assessment or check to line. He states that, generally, pilots who have flown with a regional carrier require approximately 100 hours of training, whereas, those who have experience of light planes can require up to 120 hours of training. He stated that:
“There is no accepted industry practice regarding the number of training and check captains that the trainee pilot should receive training from. It is common practice for many airlines worldwide to require a training pilot to fly with a different training or checking captain on every training flight.
At Jetstar, a pilot’s training is scheduled by a rostering system. The structure of a pilot’s training is, therefore, dependent on a number of factors, including the availability of training and check captains and the number of pilots training at the time… Trainee pilots usually train with at least three training or check captains… While the amount of trainers will vary for each trainee pilot, it is common to receive training from up to six check or training captains during the course of line training.”[21]
[21] Affidavit of Angus Sillar, paras.38 and 39.
Captain Sillar deposed that he was not aware until after Mr McKellar’s meeting with Captain McLaurie on 19 September 2008 of his concerns regarding his training with Captain McConnell. He stated that McKellar had received extensive training and more than the amount generally provided to trainee pilots. Because of this high amount of training (215 hours) it was inevitable that Mr McKellar would receive instruction from a number of check and training captains, although, it is to be noted that Mr McKellar received training from seven training captains during the first period of training prior to his first check to line which was for a period of 130 hours, only slightly more than the norm. Captain Sillar reviewed Mr McKellar’s training record and deposed that, in his view, Mr McKellar consistently exhibited difficulties with (a) situational awareness (b) knowledge (c) execution of procedures and (d) problem solving.
Captain Sillar analysed Mr McKellar’s first line check assessment from Captain Mookhoek which I believe, in fairness to all concerned, should not be paraphrased by me.
“Mr McKellar’s first line check assessment form… reveals that Mr McKellar’s performance was far below the standard required to pass. The assessment is graded 1 – 5, with 5 being the highest grade. Generally, to reach the required standard and pass the line check assessment, a pilot must not be awarded more than 3 scores of “2” or any score of “1”. A score of “1” is an automatic failure. Whilst Mr McKellar did receive scores of 3 and 4 in some sectors, grades of 1 were recorded for the descent planning and instrument applications sectors.
Part 3.5.4 of OM3 provides a guide to assist in understanding the symbols used in the first line check assessment form. Reasons for the grades afforded to the trainee in the assessment are indicated by a particular letter, referred to as a “word symbol”. For example, the score of 1 for item 6 (descent planning) on page 33 of exhibit “AGM-1” is supported by reason codes “E”, “A” and “S” in the right hand column. The Training and Checking Order reveals that those codes have the following meanings:
(a)“E” means correct procedures not identified or major deficiencies in application or procedures or exceeded a reasonable time to carry out procedures.
(b)“A” means frequent mistakes made in selection of basic modes of automated systems.
(c)“S” means lack of awareness of a clearly evident and developing situation that will cause the aircraft to breach clearances, violate procedures or place it in danger. Unable to respond to threats and errors which may result in undesirable aircraft states.
By way of example as to how those results were arrived at, the notes on page 34 of exhibit “AGM-1” reveal that Mr McKellar had the aircraft 3,000 feet above where it should have been for the approach to land in Townsville. The Check Captain had to take over the flight to land the aircraft. One must bear in mind that this was a normal commercial passenger flight.”[22]
[22] Affidavit of Angus Sillar, paras.55-57.
Captain Sillar goes on to deal with the second failure to check to line and the remedial training received by Mr McKellar. He notes that he received additional training of 68.6 hours, of which 38.6 hours were with Captain Hallebone. He states that this exceeded the usual remedial training offered of 20 sectors. But a sector is a flight from one place to another so that the sector which involves a flight from Sydney to Melbourne is shorter than the sector which involves a flight from Sydney to Adelaide. Twenty sectors may or may not exceed 68.6 hours. In regard to the second check to the line report, Captain Sillar states:
“On 29 October 2008, Mr McKellar failed a second line check. Mr McKellar again received scores of 1 and 2 in a number of sectors, including visual approaches, instrument applications, landings and command potential (First Officer). Mr McKellar’s second line check assessment reveals that Mr McKellar was still struggling with fundamental skills. In a number of respects, his score on the second line check was lower than the first line check. …
For example, the score of 1 for item 7 (visual approaches) on page 35 of exhibit “AGM-1” is supported by reason codes “S”, “A” and “K” in the right hand column. Codes “S” and “A” are explained above. The Training and Checking Order reveals that code “K” means made fundamental errors regarding aircraft limits, systems, or any standard procedures.
The comments noted on page 36 of exhibit “AGM-1” also show that Mr McKellar continued to have difficulty with fundamental skills including situational awareness.”[23]
[23] Affidavit of Angus Sillar, paras.60-62.
Captain Sillar concluded that, by the time of the second check to line assessment, any break in Mr McKellar’s training should not have hindered his performance and any impact on his training from his relationship with Captain McConnell would be adequately rectified by his training with Captain Hallebone in the week before the second check to line assessment. Captain Sillar then referred to the Standards Committee meeting on 5 November 2008, following which, he sent an email to Mr Nuttall. The Standards Committee consisted of Captain Sillar, Captains Lowe, McLaurie, Duncan, Wheeler and Cawood. Both Captain McLaurie and Captain Sillar knew about the problems with Mr McKellar and the flight records and check flight assessments would have been available to them. The view expressed was:
“Hi Tim,
The Standards Committee have just met to review the performance of one of our newly recruited First Officers, Anthony McKellar (Staff Number 129171). Unfortunately his performances have been either marginal or unacceptable, having now failed to Clear to Line on two occasions. The following is a summary of the reasons that the Standards Committee has concluded that no further training will be provided for this candidate.
Ø First Company assessment in the simulator during the “Transitions Simulator” check was very weak and was assessed as a Minimum Standard Pass by the Check Pilot, sighting; Very weak Situational Awareness, Knowledge, Execution of Procedures and Knowledge SOP’s.
Ø During the line training it was noted that Anthony’s progress was slower than normal and weakness in Situational awareness and Knowledge were continually evident in the Training Captains reports.
Ø First attempt at CTL occurred on the 15/9/2008 after completing 125 hours of line training which is the normal target (120hrs) for a pilot with Anthony’s experience.
Ø Following this failure an additional 30 sectors or more than 60 hours of additional training were provided, normally 20 sectors or 40 hours is the maximum remedial training needed flowing a CTL failure, the additional remedial training was provided following requests for extra time from his Training Captains that were conducting his training.
Ø Second attempt at CTL was conducted on the 29/10/2008 and at the end of this assessment Anthony had completed a total of 215 hours flying on the A320 as First Officer, this assessment was again unsatisfactory with Situational Awareness, Knowledge, Automation & Execution of procedures areas that were deemed unsatisfactory.
Anthony has now been assessed by assessed by (sic) three individual Jetstar Check Captains and a number of Jetstar Training Captains who all have expressed concerns over his performances to date, because of this and the amount of additional training provided almost double that of the average pilot and we are still seeing fundamental errors occurring the Standards Department will not support anymore training.
Regards
Angus Sillar.”[24]
Captain Sillar deposed to the fact that another reason why the Committee declined to provide further training was that it believed that it was most likely that Mr McKellar would fail recurrent simulator checks or line checks in the future.
[24] Exhibit “AJS-6” of Captain Sillar’s affidavit.
Captain Sillar was cross-examined by Mr Kimber. He was questioned about the number of remedial sectors and stated that the number given was usually 20, which approximated to 40 hours of flying. When asked whether it could be longer than that, he said it was unlikely and:
“we prefer not to have them on longer sectors because we’re looking for the repetitive nature of the sectors to get the training through in a reasonable time.”[25]
Yet the last training sectors that Mr McKellar undertook were lengthy overnight flights with Captain Hallebone. Captain Allchin was questioned intensively as to his knowledge of Mr McKellar’s concerns about his training when the Standards Committee met. He confirmed that they had all the papers and that he had been made aware of the concerns about the training with Captain McKellar. He recalls speaking to Captain McLaurie about these problems although he was not exactly clear when and he also recalled discussions with Captain Hallebone who had asked for further training for Mr McKellar. Captain Sillar was also questioned at length about his knowledge of the amount of training that Mr McKellar had received from Captain McConnell and Captain McConnell’s further training of Mr McKellar after the first fail to check to line. He said that he was aware that Captain McConnell had trained Mr McKellar for 40 percent of his first training session and 45 percent of the second remedial session. Mr Kimber’s cross-examination of Captain Sillar proceeded on the basis that Captains McLaurie and Cawood accepted the complaints of Mr McKellar about his training with Captain McConnell as constituting a serious personality conflict which should not have seen him being further trained by Captain McConnell at all. Captain Sillar did not see the complaint in this way. Mr Kimber also proceeded on the basis that Captain McLaurie had given Mr McKellar a firm undertaking that he would not be trained by Captain McConnell but, again, the evidence does not quite go that far. Captain Sillar did not accept these assumptions. In his view, Captain McConnell was a good Training Captain and he believed that Mr McKellar would have received some benefit from any training given by Captain McConnell. He did not believe this was a factor in Mr McKellar’s lack of performance:
“because I’ve been through the training records right from day one. From the time he went through the transition simulator there were indicators there that performance wasn’t normal; it was below normal. Right from day one of line training with Captain Hallebone there were indicators there of substandard performance and that continued right throughout the whole of Anthony’s training and it showed up in both of the check assessments.”[26]
Captain Sillar noted that, in his view, Mr McKellar had gone backwards between the first check to line and the second assessment:
“Most of the checks to line I see where there’s failures there’s either a lot of 2s or one 1. Where you’re getting two 1s it’s a substantial failure and to get that again on the second result with the addition of a 2 is showing someone who has actually declined in their standard.”[27]
[25] [T245].
[26] [T257].
[27] [T258].
Mr Kimber then turned from discussion about Captain McConnell to the number of check captains who had trained Mr McKellar. Whilst Captain Sillar agreed that two to three training captains, four to the outside, would be a reasonable goal, he did not think that having six or seven was beyond the pale:
“I had a guy just this week, a similar experience, seven training captains, and he cleared the line under 120 hours and top results. It doesn’t have an impact on the trainee… We’ve had a lot of trainees go through with multiple training captains.”[28]
Captain Sillar believed that each training captain could provide a different insight and so there was not a serious disadvantage in having a number of them. Whilst Captain Sillar accepted that there were a number of gaps in Mr McKellar’s training schedule, he believed that they were mitigated by the amount of hours that he had been given which were sufficient to enable him to put in a satisfactory performance. Finally, Mr Kimber questioned Captain Sillar about the remark that the Committee was not confident that Mr McKellar would successfully check to the line in future should he be given a further opportunity and pass on that occasion. Whilst acknowledging that this could not be guaranteed in the case of any pilot, he felt that the Committee had a comfort level about their future performance which it did not share in the case of Mr McKellar. He did accept that, once a pilot had been checked to line the first time, he or she would have many hours of regular flying before the next check and that it was not usual for pilots to fail a review check to line. However, in response to a question from the Court, Captain Sillar agreed that this subsequent check to line was of a higher standard than the initial one because it took into account the flying that the trainee would have done between the first check and the review check. The Court also asked Captain Sillar about the transition simulator check which Mr McKellar had to go through following the Alteon training and before flying for the first time. A document dealing with the check was produced and Captain Sillar said:
“yes, transition B. It’s on page 2 of that transition sim. It’s got situation awareness, knowledge, execution of procedures and manipulation, so similar items. He scored minimum standard for the three of those items so that was almost a failure. One more two would have been a failure on that transition sim. That was my comment earlier, that it was a very marginal pass to actually get past this phase… and the other thing was that it had a recommendation for an interim sim which is very unusual on that point because it was the check captain having a bet each way.”[29]
[28] [T261].
[29] [T266].
Captain Lowe
Captain Lowe swore an affidavit on 12 March 2010 in which he told that at the relevant time he was Manager, Line Operations A320/A321 at Jetstar. In this role he was responsible for the management and administration of the Jetstar A320 pilot group. He attended the meeting on 7 November 2008 with Mr McKellar and Captain Anderson after Mr McKellar had failed his second check to line and the Standards Committee had refused to provide any additional line check training. He told that he heard the representations put forward by Captain Anderson on behalf of Mr McKellar and whilst he acknowledged that to a certain extent Mr McKellar’s training might have been a bit disjointed he did not believe that the training was improper or that his check to the line result was adversely influenced by the factors that Captain Anderson had identified. He believed that given the large number of training hours given to Mr McKellar it was a necessary consequence that he would be training with a number of training and check captains. He did not believe that anything had been raised with him at the meeting that would have had an impact on the result of the second check to line assessment.
Under cross-examination Captain Lowe indicated that, although his name was on the email from the Standards Committee referred to in Captain Sillar’s evidence, he did not recall being at the meeting. He did not think he had been. When he received a copy of the email he had a meeting with Mr Garnett and Mr Gissing and he said that he also spoke to Captain Sillar and people in the Training Department. He had copies of the training record and Mr McKellar’s roster. He indicated that he did not know whether he had been been made aware of the personality clash between Mr McKellar and Captain McConnell prior to the meeting on the 7 November 2008 but he did speak to Captain McLaurie. He told that as the Manager of Line Operations it was his job to terminate Mr McKellar should it be appropriate. He had not been told to terminate Mr McKellar under any circumstances, the matter was open. Captain Lowe indicated that, although it was likely following the decision of the Standards Committee not to support any additional training that Mr McKellar would be terminated, it was possible that he could put forward extenuating circumstances. Captain Lowe described these as matters within the trainee’s personal life that would lead to his performance being well below what is required. Captain Lowe was asked questions about his views as to the optimum number of training captains that a trainee pilot should have. He took the view of three or four during a normal course of training, if one included the Check Captain then four would be ideal. Captain Lowe did not have a problem with there being more than four, he believed it lent the trainee a broader view. Captain Lowe indicated that Jetstar operated through standard operating procedures so that different training captains would not be teaching different procedures, only techniques and the way those operating procedures were applied.
Mr Kimber then addressed the question of the personality conflict with Captain McConnell and the fact that even though there was an understanding that he would not be further trained by Captain McConnell on his second training schedule, 45 percent of the remedial training was actually performed by Captain McConnell. Captain Lowe indicated that he believed every attempt had been made to roster another captain on but this was heavily influenced by the rosters. Captain Lowe agreed that he was not personally aware of what attempts were made to ensure that Captain McConnell did not train Mr McKellar. Captain Lowe felt that the remarks made by Captain Ogilvie on 12 September, just three days before the first check to line, indicated that Mr McKellar had not reached the required standard and although he accepted that a serious personality clash, too many gaps in training and too many training captains could contribute to this state of affairs, he noted that a lack of ability could also do so. He said that there was one thing that stood out in the training records from start to finish. That there were some problem areas that were never overcome. Tunnel vision, flight management and situational awareness were reflected in Captain Sillar’s email as being the problem areas.
In regard to the information about the conflict between Captain McConnell and Mr McKellar, Captain Lowe said that only one instance had been brought up at the meeting and he did not consider that relevant to the overall package of training. Mr Kimber then turned to the evidence that Captain Lowe had agreed with the statement by Captain Anderson that, had Mr McKellar’s training not been disrupted and lacking consistency, a different result could have been expected. Captain Lowe said that he did not respond that he agreed. In fact, he took a different view to Captain Anderson about the number of trainers. He did not believe that the disjointed nature of the training affected the end result or that the training was in any way improper. When Mr Kimber took up with Captain Lowe the number of training captains that Mr McKellar had, he agreed that six or seven would be abnormal but stated:
“Unless I can’t count I count six training captains anyway and that includes the landing assessment captain for the first two days Captain Hallebone which normally wouldn’t be counted as a training captain.”[30]
[30] [T288].
There was a debate between Mr Kimber and Captain Lowe as to whether he had indicated that seven training captains was a bit harsh, he did not think he used that word and he did not think there were seven training captains in any event. He did agree with Mr Kimber that if there had been a personality clash between a training captain and the trainer this would not be irrelevant, it might well be a relevant consideration. He also agreed that the instances of personality clash that were referred to in Mr McKellar’s affidavit, if they were a fair reflection of the facts, would be contrary to harmonious and proper training. Mr Kimber turned to the fact that three experienced training captains, Allchin, Hallebone and Davis, were of the view that Mr McKellar should be given another opportunity and training and in response to the question whether Captain Lowe believed that that was a relevant matter said:
“Again it is the policy that we give people a go then we give them retraining. If they fail again then it is considered that unless there is some outstanding reason why they shouldn’t be terminated then that is what will happen. Check captains obviously are pilots as well and they want to see people make it through and as I have said in my affidavit Mr McKellar had a very good attitude, he is a very pleasant person and no one wanted to see him terminated. I think the comments from those check captains are more just a reflection that they agreed with his attitude and that he was trying hard and basically pleading a case to give him another go. It is not always possible within a company.”[31]
[31] [T295].
Captain Lowe remarked that, considering Mr McKellar had almost double the number of hours training and still was not up to standard, one would have to question whether a few more sectors would make any difference. When Mr Kimber suggested that one had to discount the eighty hours of training given by Captain McConnell Captain Lowe responded:
“Well if you take away 80 hours that still leaves something like 130 hours which is still 10 hours in excess of what’s the normal training allocated to everyone else. So even if you discount all of Captain McConnell’s training he still did something like 130 hours with other people.”[32]
[32] [T296].
Captain Lowe found it difficult to respond to questions from the Court as to whether the lengthy period of training after Captain McConnell ceased to train Mr McKellar in the first session would affect the situation. He stated:
“I am having a lot of trouble to comment on how much the personality problem would affect someone’s training because it is so very hard you know with individuals and I wasn’t there to see it.”[33]
[33] [T299].
Captain McLaurie
Captain McLaurie swore an affidavit on 11 March 2010. He is the A320 Check Captain and Standards Manager with responsibility for the standard of training conducted by the check and training captains and for monitoring the performance of individual pilots during training and throughout their employment with Jetstar. He has been working in a check and training capacity for seventeen years with Jetstar and other airlines.
Captain McLaurie organised the debrief after Mr McKellar’s first failure to check to line. In order to familiarise himself with Mr McKellar’s training progress, he obtained copies of his line training record, line check forms and the transition simulator forms. He told that Mr McKellar’s level of failure of the check to line was of particular concern. He received the lowest grading possible on two key skill areas being descent planning and instrument application. Captain McLaurie said that the purpose of the meeting was to find out if there were any issues that Mr McKellar may have been having and to understand the cause of his failure and to provide assistance to prevent a second failure. The assessment form was gone through in detail and Mr McKellar was provided with an opportunity to discuss the identified issues as well as being asked to explain what he thought he could have done to improve during the assessment:
“During the meeting Mr McKellar spoke about his training with Captain McConnell. At no stage before the meeting on 19 September 2008 did Mr McKellar raise any concerns with me regarding his relationship with Captain McConnell. At the meeting Mr McKellar spoke generally about Captain McConnell but did not claim that Captain McConnell’s behaviour affected his check to the line result. At no stage did he suggest he was stressed or that there was tension or conflict in the cockpit or that the relationship had broken down. I said words to the effect that “we will try plan further training without Captain McConnell.”[34]
[34] Affidavit of Michael McLaurie, para.13.
Captain McLaurie contacted the flight training co-ordinators (“FTCs”) and informed them that Mr McKellar would require further training. This meant some re-rostering because normally training rosters are prepared about two months in advance. Captain McLaurie acknowledged receipt of Mr McKellar’s email of 21 September and said that he would ensure that things get under way as planned. He meant that he would follow up Mr McKellar’s retraining program with the flight training co-ordinator. He asked the FTCs to do what they could to ensure that Mr McKellar was not paired with Captain McConnell. Captain McLaurie received the email sent to Geoff Reid and Tina Fan asking for four sectors in the lead up to his second check to line but his affidavit does not say whether he took any steps in regard to it.
Captain McLaurie’s affidavit then deals with the situation after the second check to line and the meeting of the Standards Committee of which he was part:
“Mr McKellar’s training record… reveals that:
(a) Mr McKellar made very slow progress;
(b)Mr McKellar was having difficultly grasping fundamental skills;
(c)some of Mr McKellar’s trainers made requests for additional line training sectors at various stages throughout his line training;
(d)Mr McKellar also exhibited difficulty at the induction simulator stage, requiring interim simulator training three months into his training to improve his skills above a marginal standard;
(e)Mr McKellar received training from some of Jetstar’s most experienced and skilled trainers;
(f)Mr McKellar received approximately 215 hours of training, far above the amount that is standard for pilot trainees of Mr McKellar’s background and experience.
This last point explains the number of Training and Check Captains who oversaw Mr McKellar’s training.
When I reviewed the second Line Check Form it was clear that this was a severe failure. Mr McKellar had not failed on a ‘technicality’. In addition, Mr McKellar’s performance was consistent with previous reports regarding his issues with situational awareness and usage of automated systems.”[35]
[35] Affidavit of Michael McLaurie, para21.
Captain McLaurie thought that Mr McKellar’s low scores in the area of visual approach and instrument applications were similar to, if not worse, than his transition simulator assessment on 27 June 2008 and his first check to line. Captain McLaurie felt that the number of breaks in training was not unusual given the extended period of training and the requirement to rework the training program and to accommodate him. He felt that, regardless of the number of trainers or the structure of his training, the number of hours Mr McKellar received should have been more than sufficient for him to pass. He did not think that the results of the second check to line could be explained away by the interruptions or any issue between Mr McKellar and Captain McConnell:
“Mr McKellar was given every opportunity through the extended training program and the access to the very best training captains and check captains to show that he had the skills and abilities necessary to be checked to the line. He was not able to do so. Mr McKellar did not have the capacity to be checked to the line.”[36]
[36] Affidavit of Michael McLaurie, para.27.
The transition simulator forms that were annexed to Captain McLaurie’s affidavit revealed the following comments:
“Multiple repeats required to achieve proficiency during engine failure after V1. Substantial debrief required on the importance of flying stable body angles. Awareness of aircraft speed during manual flight and with manual thrust was poor. Overall, minimum standard achieved.
Anthony has achieved a minimum standard pass. DME arrival was high and fast due to late configuration. OEI go around was minimum standard due to weak execution of procedures. OEI approach and landing was minimum standard due to poor pitch command. Overall, Anthony has poor pitch attitude control and very weak awareness of aircraft actual speed, whether in selected or managed mode. Support duties and calls are minimum standard. Overall bookwork knowledge is poor. Improved knowledge and performance is desirable.”[37]
[37] Exhibit “MJM-1” of Captain McLaurie’s affidavit.
I accept from the evidence I heard and the documents I perused that Captain McConnell was probably the least sympathetic of all Mr McKellar’s trainers. I think he took the view that Mr McKellar was going to have difficulties flying the A320 and that opinion did not change when he saw what he construed as Mr McKellar’s lack of progress after a lengthy training period. Flying is a competitive business. It is not easy to obtain a post as a First Officer flying A320s with any airline. Airlines invest considerable sums of money in training their own pilots. They have a vested interest in those pilots being checked to line and ensuring that training is not being wasted. Pilot training is not special needs training. Those who undergo it would be expected to cope with some stress, after all, a pilot’s work is by its very nature stressful, his having the responsibility of so many lives in his hands. Mr McKellar has not charged Captain McConnell with teaching him bad flying procedures which no Check Captain would have passed had they been learned. He charges him with impatience or frustration at Mr McKellar’s perceived failings. For the reasons which I give, I have come to the conclusion that these failings were inherent and were unlikely to have been overcome even without training from Captain McConnell. I share the view expressed by the respondent’s witnesses that the hours of training that Mr McKellar received after he ceased his training with Captain McConnell on the second training program should have rebuilt his confidence sufficiently to allow him to recheck to the line if his competence had permitted it. I have not been satisfied that the action on the part of Jetstar in failing to ensure that Mr McKellar did not train with Captain McConnell during the second stage constituted in itself a failure to provide him with reasonable access to training or a proper opportunity to complete his training.
Mr McKellar also complained that he received his training from too many training captains. The evidence clearly indicates a division between training captains as to whether training with more than three training captains has a negative effect on the training process. Some believe it has a positive effect. Mr McKellar had six training captains in his first training period. However, they all trained him for periods in excess of one day, with the exception of Captain Ogilvie who trained him on 12 September for two sectors. In the second training period Mr McKellar only had two training captains. The first training period consisted of 130 hours which is around the maximum time expected for a trainee to reach the check to line standard. Possibly, Mr McKellar would have done better with fewer trainers but the evidence does not permit me to say that this alone constituted the failure pleaded.
I have come to the conclusion, after examining the oral and written evidence, that the reason that Mr McKellar did not succeed in his checks to line was his own inability to fly the aircraft to the required standard. The A320 is a significantly larger aircraft than he had ever previously flown. It was a jet aircraft and not a piston engine one. It required particular techniques, especially in the last 30 miles before landing. The evidence revealed that Mr McKellar never mastered those techniques. He passed his simulator training by the barest of margins. When he took the required “in house” simulator test, his weaknesses in situational awareness, pitch attitude control and landing techniques were noted. The same problems evidenced themselves throughout the line training records and were the reasons for failure at both checks to line. They were matters particularly noted by Captain McConnell. The witnesses called for Mr McKellar did not convince me that Mr McKellar could have been trained up to the required standard within three or four more days of training. Even Captain Hallebone, the most sympathetic of all the witnesses, accepted that Mr McKellar was not ready at the time of the second check to line test. The witnesses also deferred to the views of the Standards Committee which thought that further training was not appropriate in this case. The cross-examination of Captain Hallebone, reproduced at [20] of these reasons seems to me to make the point very clearly. Mr McKellar, in words used of him in the flight reports and by witnesses, was “behind the aircraft”. He was not in command and this was particularly evidenced in the last 30 miles when he was preparing for landings. His instrumentation knowledge was not good. These are all problems that existed right from the start and never appeared to have improved significantly. The second check to line failure was worse than the first. By the time he took the second check to line, he had had 215 hours of training. I do not think it is appropriate to deduct from those hours every single hour of training from Captain McConnell but, even if one did, then Mr McKellar had an amount of training that was in the range for a flyer of his ostensible experience.
When the Standards Committee looked at his case, it made a finding that he might not be able to continue passing checks to line in the future. Mr Kimber argues that this was not the proper test. But I am not so sure that he is right. It could be that the Standards Committee took into consideration the possibility that, with some further training, Mr McKellar might just about be brought up to the standard allowing him to pass the first check to line. But subsequent checks to line would be to a higher standard and although he would have had experience of flying the aircraft, the inherent problems that he exhibited might not be overcome. I think that is a perfectly legitimate expectation. The Standards Committee is made up of a number of very senior captains. All the evidence that I heard points to a general wish not to fail trainee first officers. Mr McKellar is well-liked and his enthusiasm and desire to learn was respected. I am satisfied that the decision not to recommend further training was made bona fide and was made in the light of all the evidence. Captain McLaurie was a member of the Standards Committee as was Captain Cawood. Captain McLaurie was well aware of the concerns Mr McKellar had raised about his training with Captain McConnell. The Committee had before it all the line training records that had made reference to the number of trainers, gaps in the training and the request for further sectors. It is not suggested that those things were not taken into consideration when the recommendation not to provide further training was made. I am not satisfied that the training given to Mr McKellar was inadequate. Nor am I satisfied that the treatment of him following his checks to line interfered with the provision to him of reasonable access to training as pleaded. In my view the applicant has not made out a case that he was:
“At all times capable of being checked to line with reasonable access to training.”
It follows from what I have said above that I do not consider that Mr McKellar was wrongly treated by Jetstar when, after receiving the report from the Standards Committee and hearing the representations made on his behalf by Captain Anderson, after discussing those representations with appropriate members of senior pilot management it then decided that Mr McKellar must be dismissed. I do not consider Jetstar failed to make enquiries of what further training would be required for Mr McKellar to be successful and, by failing to provide him with the limited additional time in the simulator, the company prevented him from being checked to line. It was aware of that recommendation from Captain Allchin to Captain McLaurie but clearly decided against it. It had more information about Mr McKellar than Captain Allchin. In making these findings I have taken into account the cumulative effect of all the matters raised by Mr McKellar. It is noteworthy that Mr McKellar’s evidence in chief does not attempt to explain how the concerns he had with the number of training captains affected him, nor does he explain how the gaps between his training caused him problems. His evidence concentrates upon his problems with Captain McConnell rather than these matters. I have taken this into account in assessing the importance of these matters to the cumulative effect.
Having come to the conclusion that Mr McKellar has not satisfied me on the balance of probabilities that his failure to be checked to the line came about because Jetstar did not provide him with adequate training, which includes not providing him with further training after the second failure, there is no necessity for me to opine upon the submissions made by both sides concerning the genesis of such requirement. To do so would either be unnecessary because the findings are accepted (or upheld) or would risk falling into further error if they are not. I will therefore turn immediately to the second question as to whether the dismissal of Mr McKellar with only seven day’s notice constituted a breach of the Pilots Agreement.
The effect of my finding is that Mr McKellar’s claims that he is not bound to repay the training fee that was the subject of the Endorsement Agreement must fail. The claim assumes a breach of contract or award by Jetstar in the manner in which it provided access to and training of Mr McKellar. The argument, in its widest terms, being that the endorsement training was just one part of the total training which Jetstar promised to provide. Unless it provided all the training to a standard that would allow him to acquire the skills, competency and knowledge needed to perform the duties of an A320 first officer and allow him to have been checked to line, it would have breached the employment relationship (a term that describes the obligations imposed separately by the employment agreement and the EBA). As I have found that Mr McKellar was provided with the necessary training and that his failure to be checked to line was as a result of the apparently insurmountable difficulties which he had with what the witnesses described as “the last 30 miles”, there were no grounds upon which the respondent’s cross-claim for payment of the outstanding training cost can be resisted.
Was the applicant covered by clause 32.4.1 of the Jetstar Airways Pilots Agreement 2008 [the “EBA”]
The applicant’s employment with Jetstar, although on different bases; Byrne v Australian Airlines Ltd (1985) 185 CLR 410, was governed by the letter of offer dated 14 March 2008 and the EBA at 421-2. The letter of offer, which the applicant signed and returned as having accepted, states relevantly:
“Dear Anthony,
I am pleased to formally offer you the position of First Officer A320 with Jetstar Airways Pty Ltd (Jetstar). I have attached a copy of the Jetstar Airways Pilots Agreement 2008 (EBA) that is separate to this offer of employment but will apply to your employment at Jetstar.
This offer is subject to:
·you obtaining a Security Clearance and being issued and maintaining a valid Aviation Security Identification Card (ASIC) as per current company requirements and the Federal Aviation Transport Security Act 2004; [and]
·you passing all Jetstar pilot recruitment assessments including simulator assessment; and/
·you signing and returning the enclosed Endorsement Agreement.
Your employment pack is enclosed with this letter. The pack includes;
·a copy of the EBA;
·a duplicate copy of this letter for you to keep; and
·an Endorsement Agreement (and a copy for you to keep); and
·other policies, procedures and documentation to be read and completed prior to commencing employment.
Your employment with us will be on the terms set out in this offer and the enclosed EBA. The EBA is an agreement made under the Workplace Relations Act 1996 (Act). Your employment will commence subject to you acceptance of this offer and your ability to satisfy our security requirements. The terms and conditions set out in this letter and the EBA replace any prior written and oral representations made to you and discussions with you about your employment. …”
The following clauses of the EBA would appear to be relevant to a discussion of this issue:
“3. Working with Jetstar under this Agreement
The relationship between Jetstar and pilots covered by this Agreement is based on:
3.1 Mutual trust and integrity.
3.2 A shared responsibility to achieve Company objectives.
3.3Pilots accepting responsibility and authority while Jetstar provides direction, guidance and support.
3.4Encouraging pilots’ skill acquisition and personal development.
3.5Effective consultation, communication and decision making.
3.6Flexible working conditions that will take into account pilots’ needs balanced against the Company’s objectives.
20. Categories of Employment
20.1 Probation
20.1.1On initial employment with Jetstar a pilot may be placed on probation from commencement of employment until six months after being successfully checked to line, or nine months from commencement of employment, whichever occurs earlier.
20.1.2A formal assessment and examination may be undertaken at any time during a pilot’s probation. If the pilot fails this assessment or is otherwise deemed unsatisfactory by Jetstar, their employment with Jetstar will be terminated.
20.1.1During the probationary period Jetstar may terminate the employment of a pilot who fails an assessment or is otherwise deemed unsatisfactory in accordance with clause 20.1.2, by providing one (1) week’s notice in writing to the pilot.
32. Termination
32.1 Dismissal in Certain Circumstances
Jetstar may terminate a pilot’s employment for the following reasons, including but not restricted to:
32.1.1Serious misconduct by the pilot;
32.1.2A fundamental or serious breach by the pilot of applicable aviation safety or security legislation or Jetstar’s policies and practices as issued by Jetstar (or on Jetstar’s behalf) from time to time; or
32.1.3A failure by the pilot to perform to a satisfactory standard on a consistent basis (so long as the unsatisfactory areas of their performance have been explained to them and they have been given an opportunity to improve to the required standard); or
32.1.4Failure by the pilot to perform to a satisfactory standard at any time during their probationary period; or
32.1.5If the pilot is repeatedly absent from work without proper cause; or
32.1.6Conduct by the pilot which at common law would justify summary dismissal.
32.4 Notice to the Pilot if Jetstar Terminates Their Employment
32.4.1On permanent appointment, a pilot is entitled to two (2) month’s notice, or payment in lieu of notice calculated at the pilot’s annual salary.
32.4.2A pilot will not be entitled to notice if Jetstar summarily dismisses them for serious misconduct.”
The parties accept that in construing these clauses the Court must read them so as to give effect to their evident purpose despite inconsistencies or infelicities of expression which might tend to some other reading; Kucks v CSR Ltd (1996) 66 IR 182 at 184 and United Fire Fighters Union v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 at [51-52]. The language of the industrial agreement must be understood in the light of its industrial context and purpose; Amcor Ltd v CFMEU (2005) 222 CLR 241 per Gleeson CJ and McHugh J at [2]. But,
“It is of course no part of the Court’s task to assign a meaning in order that the award may provide what the Court thinks is appropriate – Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a Tribunal interpreting an award must attribute to the words used their true meaning even if it is satisfied that, so construed, they would not carry out the intention of the award making authority – Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth (1960) AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).”
Per French J, City of Wanneroo v Holmes (1989) 30 IR 362 at 379; see also Kucks v CSR Ltd (supra) at 184.
There is no mention of Mr McKellar being employed on a probationary basis in the letter of offer. In the EBA the power to place an employee on probation is discretionary. During the hearing evidence was given that in previous pilots’ agreements this was not so. The reason for the change was that Jetstar was employing some senior pilots from other airlines who were considered to be reluctant to leave secure employment for probationary employment [T194]. Mr Nuttall who gave evidence about the EBA said:
“The practice had been that everyone as far as the company was concerned and as far as the pilots were concerned, was under a probationary period for the time set out - that was in the EBA documents. So the practice hadn’t changed. Having the word “may” in there, in my mind, meant that if we were not going to place someone on probation that we would inform them of that and we would put that in because they were not going to asking for not to be put on to [sic] – on a probationary period. But I am not aware of anyone who was not – has had that put into a contract i.e. where they’ve not been put on to a probationary period.”[45]
In cross-examination by Mr Kimber, Mr Nuttall agreed that a person applying to Jetstar for an appointment as a First Officer as Mr McKellar did would not be aware of Jetstar’s practice before he obtained employment. Mr Nuttall agreed that there was no documentary evidence of any discussion about probation with Mr McKellar. I am satisfied from Mr Nuttall’s evidence and that of Mr McKellar that the question of probation was not brought up at any time and that there was an assumption on the part of Jetstar that Mr McKellar was a probationary employee and was treated as such upon his termination.
[45] [T195].
The nearest that Jetstar gets to establishing a contractual agreement that Mr McKellar was a probationary employee was in its submission that Mr McKellar made an admission to that effect in an application which he made for unfair dismissal where under the heading “summary of material facts and grounds for application” it states at para.2:
“F/O McKellar was placed on probation from commencement of his employment until 6 months after being checked to the line or 9 months from commencement of employment, whichever occurs first.”
These words follow the wording in clause 20.1.1 of the EBA. The application was later withdrawn because it was considered the relevant industrial tribunal did not have jurisdiction, Mr McKellar having been employed for less that six months. The respondent argues that by operation of ss.81 and 87 of Evidence Act 1995 (Cth) this constitutes an admission by Mr McKellar that he was placed on probation for the purposes of clause 20.1.1 of the Jetstar Agreement. The respondent submits that Mr McKellar gave the AIPA, who made the application on his behalf, full instructions concerning his employment at Jetstar and the circumstances of the termination of that employment and that he had made sure that the application accurately reflected the instructions that he had given to the AIPA.
The respondent argues that an assertion of fact in an unfair dismissal application has been found to constitute an admission and cites the decision of Burchardt FM in Hughes v Loy Yang Power Management Pty Ltd [2010] FMCA 81 at [73-84]. In that case Mr Hughes had been dismissed after he had been off work for almost nine months and had submitted relevant medical reports. In the dismissal letter Mr Hughes had been notified that he would be provided with six month’s payment in lieu of notice and that the pay would be treated as a redundancy payment. Mr Hughes lodged a claim of unlawful termination of employment together with an application under the WRA. A firm of solicitors lodged their notice of appearance on behalf of the respondent to the application made in the FMCA. Those proceedings were the subject of a purported settlement. There was a dispute as to the settlement agreement and the matter returned to the Court. One of the issues in the dispute was the correct amount to have been deducted as tax from the agreed settlement figure. The applicant, Mr Hughes, contended for a lesser figure because his termination of employment had been made on the ground of redundancy. But the respondent argued that the basis for his dismissal was because he was unable to perform in his employment role but that he would be paid as if it was a redundancy payment. Burchardt FM said at [72-74]:
Further, it must be said that the materials put in by the applicant himself in his AHRC complaint, and the materials in the correspondence generally, do not tend to suggest prima facie that Mr Hughes was redundant. Rather, they suggest that he might have been removed from one job and offered another job, or jobs, which he either was not prepared to do, or for which he was deemed not to be suitable.
There is, however, one further piece of evidence which, amidst this miasma of uncertainty, seems to me to be conclusive. A copy was provided to the Court as part of the applicant’s materials without objection. On or about 23 May 2008, Freehills filed a form 28 notice of employer’s appearance in the Australian Industrial Relations Commission. The appearance is dated that date. It was confirmed, under paragraph 9, that somebody was representing the employer, and the details of Messrs Freehills and the relevant lawyers followed in succeeding paragraphs.
Item 13 in this document states as follows:
“In summary form specify the facts on which the respondent relies and admit or dispute, either with or without qualification, each part of the claim made by the applicant.”
And then at [76-79]:
The response put in by Freehills was as follows:
· “The Respondent terminated Mr Hughes on 28 April 2008 on the basis of medical evidence that was available to it at that time. The Respondent had reasonably formed the opinion that Mr Hughes was unable to perform the inherent requirements of his position with it (and further that there were no suitable alternative roles available to him).
· Further, as the Respondent no longer required Mr Hughes’ role to be performed by any employee of the respondent, Mr Hughes’ role was made redundant.” (Emphasis added in original).
I accept, of course, that what an employer says is not binding upon the Court, and I also accept that there may be cases where, for one reason or another, what the employer said need not be accepted. An example is Fosters Group Ltd v Wing (2005) 148 IR 224, where the employer deliberately misrepresented to the employee the reasons why he was being dismissed.
In this case, there was no intention in filing the notice of appearance to mislead Mr Hughes. The parties were already locked in litigation and there was no benefit to dissimulation, unlike the position found by the Victorian Court of Appeal in Wing.
While the Australian Industrial Relations Commission does not operate on the basis of pleadings in any strict sense, the notice of appearance document filed by Freehills in the unlawful termination case in the Industrial Commission was plainly a document that served a function akin to a pleading. In relation to pleadings, it has been held that “An admission of a fact alleged in the pleading of the opposite party operates to remove the fact from the area of controversy.” (Pioneer Plastic Containers Ltd v Commissioners of Customs & Excise [1967] Ch 597).”
Does the statement contained in Mr McKellar’s application to the AIRC constitute such an admission? It is to be remembered that Mr McKellar was the applicant in the AIRC and, although I have not been given a full copy of the application, it may be relevant that Mr McKellar made his statement under the heading “summary of material facts and grounds for application” whereas the respondents in Hughes were invited to “admit or dispute… each part of the claim made by the applicant.” In Hughes, the party denying the truth of its statement was in a position to know the truth of the matters asserted. In the instant case, Mr McKellar could not have known the truth of his statement regarding the status of his employment. There is no evidence that any discussion ever took place and, therefore, the question is one of law rather than fact. In that sense, Mr McKellar’s statement is more an assertion than an admission. There seems to me to be a fundamental difference between an admission which is defined in the Macquarie dictionary as “an acknowledgement of the truth of something” and an assertion which is defined as “a positive statement; an unsupported declaration”.
In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 the High Court considered whether a Tribunal was disqualified from conducting an inquiry in circumstances where the appellant had brought defamation proceedings against it. The appellant argued that in the earlier proceedings the Tribunal and its individual members had admitted in its defence to particular negative beliefs about the impugned broadcast and were therefore biased. Mason CJ and Brennan J found that these pleadings did not constitute an admission of belief in the assertions. At [30] their Honours stated:
“First, as the defence was not verified on oath and was not required to be so verified, it does not amount to an assertion of belief in the correctness of the facts pleaded. Indeed, traditional principle is that assertions made in pleadings do not amount to admissions. In Boileau v. Rutlin [1848] EngR 661; (1848) 2 Ex 665 (154 ER 657), the Court of Exchequer Chamber held that an averment of the existence of an agreement in a bill in equity in another suit between the same parties could not be received as an admission of the agreement by the party pleading the agreement. Parke B. observed (at pp 680-681 (p 663 of ER)):
“It would seem that (bills in equity), as well as pleadings at common law, are not to be treated as positive allegations of the truth of the facts therein, for all purposes, but only as statements of the case of the party, to be admitted or denied by the opposite side, and if denied to be proved, and ultimately submitted for judicial decision.”
Later he said (at p 681 (p 663 of ER)):
“(T)he statements of a party in a declaration or plea, though, for the purposes of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated.””
After considering more recent authority on the issue, their Honours concluded that:
“[t]he suggestion that pleadings should be treated in the same way as any other form of admission fails, in our view, to take account of the function and object of pleadings, when they are not required to be verified, in outlining the party's case and defining the issues to be tried. Especially is this so in the case of pleading defences. A defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff's claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded. Accordingly, we do not regard the defences filed by the Tribunal as constituting admissions on the part of the Tribunal or, for that matter, on the part of its individual members.”
The decision in Laws v Australian Broadcasting Tribunal (supra) has been affirmatively noted in more recent cases including Arthur Young v Brunswick NL [1998] VSCA 87 and Edwardsv Olsen [2003] SASC 238. In the latter decision the Full Bench, Mullighan, Williams and Besanko JJ, made the following observations:
“It is well established that a party may not be bound by statements of fact in pleadings if to do so would defeat the interests of justice: O'Keefe v Australian Trencher Company Pty Ltd & Anor [1991] SASC 3017; (1991) 56 SASR 370 per King CJ at 376-377 and per Debelle J at 379: see also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 85. There is no reason to take a different view about facts set out in a case stated. No authority was cited to us by Mr Borick, Mr Bell or Mr Murphy to suggest that the factual matters set out in the Case Stated were binding on the parties. In my view, the admissions set out in the Case Stated stand no differently than a statement made by a party out of court. It may be used by the cross-examiner to impeach the credit of the party as a prior inconsistent statement if that is the case and, if accepted by the party that it is true, may be used like any other admission as evidence of the truth of the matter. It is not like an admission in a pleading which has the consequence that the admitted fact is not in issue.”
In so far as Pioneer Plastic Containers Ltd v Commissioners of Customs & Excise [1967] Ch 597 has been used as authority to suggest that assertions made in pleadings amount to admissions in every case, I would point out that the issue in that case was whether or not the applicants were entitled to call evidence on assertions made in pleadings which were not disputed and in that sense “removed from the area of controversy”. That is a different matter to the one being considered here. For the reasons outlined above, I am satisfied that the statement regarding probation made on Mr McKellar’s behalf does not constitute an admission of the truth of that statement.
It is axiomatic that an employment agreement is an arrangement in respect of which the parties have agreed on critical matters, although that agreement can be express or implied. In this particular case there is no evidence of any discussion between the parties about a probationary period and the only document governing the employment relationship which referred to it – the EBA – made the imposition of such a period discretionary. The applicant’s assumption that the discretion had been exercised, as evidenced in the application to the AIRC, may have been driven by the respondent’s complementary assumption that it had done so in its giving him only seven days notice of termination. But that assumption was wrong for both parties. The WRA appears to have recognised the importance of probationary periods being agreed between employer and employee. But it makes reference to such a period being “determined in advance” in s.381(c) and makes reference under the definition of “qualifying period of employment” in s.643(7)(b) to a period “determined by written agreement between the employee and employer before the commencement of the employment”. In my view, the applicant is entitled to take the benefit of the provisions of the EBA that require two month’s notice to a permanent employee under which heading I would classify the applicant because I am unable to classify him under any other. The only relevant categories of employment found in Part 5 of the EBA are probation (clause 20.1), and full-time pilot (clause 20.2). The notice period in respect of a probationary pilot is dealt with in clause 20.1.3 and the notice period for other pilots is dealt with at clause 32.4.1, entitling a pilot on permanent employment to two month’s notice or payment in lieu. There is no definition of permanent employment in the EBA .
I have considered whether Mr McKellar’s employment could be said to be probationary on the basis that the requirement to check to line created a qualifying period. However, I am satisfied that this is merely a term of the employment contract and does not establish a qualifying period. In this particular case, there is no way of knowing how long it would take a particular employee to check to line and so it is not possible to determine the qualifying period in advance as required by the Act. A review of cases concerning employment which is conditional upon employees achieving some additional qualification reveals that, in such cases, a period of probation is usually stipulated and may often end prior to the expected date of qualification: see for example William James Ockendon v Australian Taxation Office - PR925954 [2003] AIRC 34; William James Ockendon v Australian Taxation Office - PR920818 [2002] AIRC 907. In that case, as in the instant case, the term requiring successful completion of exams did not include a maximum period for satisfactory performance or a clear heading or reference to a qualifying period and was determined to be no more than another term of contract.
Failure to pay Mr McKellar the two month’s notice which he was entitled to constitutes a breach of the provisions of the EBA that would entitle me to make an order under s.719(6) of the Act that Jetstar pay to the applicant two month’s pay which has been calculated as $15,471.30. It is not clear to me whether this sum takes into account the one week’s notice that was paid and, if it does, it should be appropriately reduced. The applicant seeks that I impose a penalty on Jetstar pursuant to s.719 of the WRA in respect of the breach of the EBA. I do not think that this is an appropriate case for a penalty. Any breach of the EBA was entirely inadvertent. I am sure that Jetstar will have learnt from these proceedings the necessity of advising all new entrants into their first officer program that their employment falls within clause 20.1.1 of the EBA. I do not believe that there is any need for deterrence, specific or general. And the respondent has been significantly disadvantaged by its failure to properly indicate that Mr McKellar was on probation and will no doubt be affected by the publication of these reasons.
Repayment of the endorsement agreement monies
The applicant’s argument against having to repay the endorsement training monies remaining unpaid was based upon his not having received appropriate training that would have allowed him to pass the check to line. It did not relate to the endorsement training itself. There is no suggestion by the applicant that this was in any way deficient. I have found that the applicant’s failure to be checked to line was not affected by any alleged failures of training and so the applicant must be bound by his agreement to make repayment of the endorsement training monies. The evidence reveals that the applicant has received a benefit from this endorsement training. The endorsement is contained in his pilot’s logbook under the heading “XXII Certificates of Endorsement on Aircraft Types, Classes and Design Features” [exhibit 2]. He could have used it to apply to another airline for check to line training. I do not have any evidence as to whether it expires after some effluxion of time but I am satisfied that, in entering the contract, he gave and received sufficient consideration (not that this has been denied). I would therefore order that Mr McKellar pay Jetstar the sum of $30,574.02. I would order that there be set off against this sum the amount of $15,471.30 (or such lesser sum as is agreed between the parties in respect of the correct notice payment) and that interest upon the balance be paid in accordance with Order 35 of the Federal Court Rules from 23 March 2009 to the date of judgment.
The parties shall within 14 days bring in short minutes reflecting these reasons together with their written submissions on costs. I would not propose to hold a further hearing in relation to costs, which are reserved.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 August 2010
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