Mr Roger Woods v LifeFlight Australia Limited
[2021] FWC 5464
•3 SEPTEMBER 2021
| [2021] FWC 5464 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Roger Woods
v
LifeFlight Australia Limited
(U2021/909)
COMMISSIONER RIORDAN | SYDNEY, 3 SEPTEMBER 2021 |
Application for an unfair dismissal remedy.
[1] On 4 February 2021, Mr Roger Woods (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was terminated on the basis of misconduct for ‘failing to comply with a lawful and reasonable direction’ by LifeFlight Australia Limited (the Respondent) on 15 January 2021. The LifeFlight Australia Limited and Rotary Wing Pilots Certified Agreement 2016-2019 (the Agreement) applied to the Applicant’s employment with the Respondent.
[2] The Respondent is a not-for-profit organisation which provides rapid response aeromedical care across Queensland’s Emergency Helicopter Network. The Respondent is contracted by its clients to provide medical rescue and retrieval services. Its major client is Queensland Health, which provides around 70% of the funding for the Respondent’s service. The Respondent employs around 370 employees, in occupations including:
(a) Corporate services and administration;
(b) Fundraising and marketing;
(c) Doctors, nurses and paramedics; and
(d) Pilots, aircrew officers and aircraft engineers.
[3] The Respondent’s services include the operation of fixed wing (FW) and rotary wing (RW) craft.
[4] The Applicant was employed by the Respondent on 4 April 2016. Prior to the Applicant’s termination, he worked as a RW pilot, and was located at the Respondent’s Toowoomba base.
[5] The Applicant’s termination letter provided that the Applicant’s employment was terminated for misconduct, including the tone and language used in his Show Cause responses, which the Respondent deemed had resulted in an irrevocable breakdown of the employment relationship.
[6] The matter was listed for Hearing on 17 and 18 June 2021. The Applicant was represented at the Hearing by Ms Conte-Mills of Counsel. The Respondent was represented at the Hearing by Ms Gibb of MinterEllison. Leave was granted in accordance with section 596(2) of the Act to allow the Applicant and Respondent to be represented at the Hearing.
[7] A further Hearing was conducted on 20 August 2021.
[8] The Applicant appeared and gave evidence on his own behalf in the proceedings. The following witnesses also provided statements and appeared and gave evidence for the Applicant:
• Mr Brent Hall, Helicopter Pilot for LifeFlight;
• Mr Hamish Felton-Taylor, Helicopter Pilot for LifeFlight; and
• Mr Jan Steen, Toowoomba Community Captain for LifeFlight.
[9] The following witnesses provided statements and appeared and gave evidence for the Respondent in the proceedings:
• Mr David Donaldson, Commercial Director (Defence & Law Enforcement) for LifeFlight;
• Mr David Bashir, Head of Flying Operations (HOFO) for LifeFlight;
• Mr Brian Guthrie, Director Rotary Wing Operations for LifeFlight; and
• Mr Scott Kessell, Director Commercial Projects & External Relations for LifeFlight.
Outline of the Applicant’s Submissions
[10] The Applicant submitted that notice of the Respondent’s intention to terminate his employment was provided to him by email on 11 January 2021, to his work email address. The email was sent by Mr Scott Kessell, Director Human Resources, Commercial Projects and External Relations, and gave the Applicant a ‘final opportunity to show cause’ why his employment should not be terminated. It also notified of an immediate suspension from duty, pending the outcome of the show cause process.
[11] The Applicant’s employment was formally terminated 4 days later, on 15 January 2021, by way of an email sent by Mr Kessell to the Applicant’s work email and private email addresses.
[12] The Applicant submitted that the reasons for termination of his employment, cited by the Respondent appeared to relate to:
(a) The tone and language employed by the Applicant in his Response to the Respondent’s proposed Job Keeper Enabling Direction (JED) (outlined below);
(b) Subsequent breach of the Code of Conduct and Bullying and Harassment Policy (as a result of the tone and language employed in this Response); and
(c) An allegation of ‘misconduct’ as a result of the reasons set out in the Show Cause notice and apparent ongoing conduct re tone and language in the Show Cause Responses, then rephrased as ‘unacceptable behaviour’.
[13] The Applicant denied that his conduct stemming from the Response to the JED intention notice and subsequent conduct regarding the Show Cause Notice and Show Cause Responses amounted to misconduct or unacceptable behaviour. The Applicant also denied that his Response to the proposed JED was inappropriate in the tone and language employed. The Applicant submitted that the entire context of the letter and the circumstances in which the Response was written must be taken into consideration.
[14] The Applicant submitted that the Commission should also have regard to various events that occurred during his employment, as outlined below, in providing context for his dismissal.
22 February 2019 mission
[15] The Applicant submitted that in February 2019, he completed a complex rescue flight, approved by the chief pilot, which had a successful outcome of saving the patient’s life. The Applicant submitted, however, that his decision to fly that rescue mission was questioned by Mr Nic Trimmer (Head of Training and Checking). The Applicant sought clarification of this enquiry in the chain of command, as the mission had been approved.
Bullying allegations
[16] The Applicant submitted that subsequently, he perceived he was subjected to workplace bullying and harassment. He filed an antibullying application in the Commission, which he later withdrew after the staff member responsible for the alleged bullying resigned from the business.
The CASA Report
[17] The Applicant submitted that as part of the bullying incidents, Mr Gladwin (Training and Checking Captain) made a vexatious and unwarranted report to CASA that he was unfit to fly. While the call to CASA was ‘anonymous’, the Applicant submitted he was certain that Mr Gladwin was responsible. The Applicant submitted that as a consequence, he was required to demonstrate to CASA’s satisfaction that he was fit to fly, which had a significant impact on him. The Applicant disputed the Respondent’s submissions that he underwent medical tests of his own accord. He submitted that if he had not undergone the tests as required by CASA, he would have lost his licence.
[18] The Applicant agreed with the Respondent’s submission that following the medical tests he was deemed fit to fly by CASA.
Removal from single-pilot operations (WP1)
[19] The Applicant submitted that in about May 2020, he was banned from conducting single-pilot operations, as his qualification had been authorised by a flight examiner who was not authorised to give single-pilot qualifications. The Applicant claimed that he was singled out and victimised, however, because there were four other pilots who also received their authorisation from this examiner, but he was the only pilot that was denied single-pilot privileges. The other pilots’ licences remained valid.
[20] The Applicant submitted that he was then taken off the community EMS aircraft, which had a normal shift pattern of 2 days and 2 nights on then 4 days off (WP1) and tasked as Captain of the SGAS commercial aircraft on a touring pilot roster (WP2), which was 7 x 24 hour shifts on, then 7 days off. The Applicant submitted that this was contrary to his employment agreement and he believed he was not remunerated in the same way as other ‘community’ pilots. The Applicant stated that WP2 pilots were paid a higher rate to compensate for the impact of the roster and fatigue levels and while he was paid a daily allowance, he did not receive the extra shift allowance that the other SGAS pilots were paid.
[21] The Applicant submitted that he was the only pilot required to complete another AW-139 single-pilot course and while he had assumed he would be placed back onto his normal
community roster pattern after successful completion of the course, the company required him to continue flying on the WP2 roster.
Involvement in Enterprise Agreement negotiations
[22] The Applicant submitted that he had also become involved as a ‘leading part’ of the core group negotiating for a new enterprise agreement. The Applicant submitted that he made it clear to the Respondent that the pilot group intended to take protected industrial action to achieve agreement in the new enterprise agreement and that the safety issues he raised should be attended to. Whilst the Respondent has submitted that the Applicant held himself out to be an AFAP employee representative, the Applicant advised that he was a candidate for the position of AFAP employee representative. However, his employment was terminated three days before the elections and he was therefore never provided the chance to act officially in that capacity.
[23] The Applicant submitted the Respondent had previously terminated the employment of two employee workplace representatives during ‘coercive bargaining’.
The audit of sorties
[24] The Applicant submitted that the Respondent appears to have taken steps towards his ‘removal’, in conducting a full audit of sorties flown by him with a focus on the time duration between task notification and task acceptance. The Applicant noted that a sortie was discovered in which a delay of 53 minutes between task notification and task acceptance existed, which would be widely considered as ‘completely unacceptable’ within the emergency medical services industry and for which he noted strong disciplinary action would be reasonable. The Applicant claimed that the reason for the delay was that he was already on an emergency medical services task when notified, and he had accepted the new task four minutes after completing the prior task.
The JobKeeper Enabling Direction (JED)
[25] In mid-October 2020, the Applicant wrote to the Respondent advising that under his contract of employment, he would no longer agree to fly on the WP2 roster. He gave the Respondent until the end of January 2021 to make relevant roster amendments, however, he submitted that in November 2020, the Respondent released the roster for February which still had the Applicant on the touring contract. In reply submissions, the Applicant stated that he had ‘volunteered’ to assist on the WP2 roster and his contract stated that any variation was voluntary.
[26] The Applicant submitted that the Respondent then presented him with an intention to issue a JobKeeper Enabling Direction (JED), which provided that, due to the COVID-19 pandemic, the Respondent could order him to continue on the WP2 roster despite his requests to be removed. The Applicant submitted that in this directive, the Respondent claimed that because he had been doing this roster he could be directed to continue doing it. This letter provided for a response by the Applicant:
“18 December 2020
Mr Roger Woods
[email address redacted]
Notice of intention to make a JobKeeper Enabling Direction pursuant to s.789GE of the Fair Work Act 2009
Dear Roger,
LifeFlight continues to experience operational difficulties resulting from the COVID-19 pandemic, including difficulties with travel limitations for interstate touring pilots (including because of limited flight availabilities and changing quarantine requirements).
These limitations and uncertainties around pilot availably place LifeFlight at risk of not being able to service its SGAS contract. Should LifeFlight lose the SGAS contract, this will result in loss of employment for affected LifeFlight employees.
To avoid any potential loss of employment, LifeFlight proposed to provide you with a JobKeeper Enabling Direction (JED) pursuant to s.789GE of the Fair Work Act 2009.
Proposed JED
I propose to direct you to remain on Work Practice 2 (WP2) until 31 March 2021 or otherwise directed in writing. In proposing this JED, I have taken the following into consideration:
a) you have already been performing the WP2 duties for some months now;
b) LifeFlight has complied with your request to only be rostered on WP2 in Toowoomba and will continue to roster on this basis for February and March;
c) The roster was published this month providing due notice of your first week of WP2 shifts for February.
Your recent correspondence in relation to continuing on WP2
I have also taken into consideration your email of 9 December 2020 directed to [email address redacted] with the subject heading of ‘Unavailability for SGAS Shifts post January as advised’ where you advised that you will not be available for WP2 from the end of January 2021, and sought to be removed from the SGAS roster at that time.
In your email you continued to assert the safety of the operation has been compromised by the lack of control around how Rescue 577 is used to cover the community helicopter rescue service, which concerns you initially raised in October 2020 (Safety Concerns).
I confirm that the Safety Concerns were reasonably and adequately addressed in October 2020. The Safety Concerns were the basis of an email exchange and phone conversation with the Head of Flight Operations Mr Bashir on 13 October 2020, and also the Director, Rotary Wing Operations, Mr Guthrie, in person at the Toowoomba Base on 14 October 2020. You were also provided with a written response to the Safety Concerns from Mr Guthrie via email on 19 October 2020. This email also indicated LifeFlight would be willing to discuss the matter with the AFAP or another representative (which invitation was not taken up). As such, LifeFlight considers the Safety Concerns resolved.
Consultation
LifeFlight would like to consider any matters you or your representative (copied in) wish to raise before making a final decision to impose the JED. You are requested to provide any matters you wish to be taken into consideration to [email protected] by no later than Wednesday 23 December 2020 If we do not hear from you by then, we will assume you have nothing you wish to add, and will make a decision on the information currently before us.
Yours sincerely
Scott Kessell
Director, Human Resources, Commercial Projects & External Relations
LifeFlight Australia”
[27] The Applicant submitted that he advised the Respondent he did not accept this directive as a lawful workplace order and would not be working further on that contract. The Applicant submitted it is relevant that the WP2 roster is onerous, requiring a pilot to work 9 hours and 56 minutes with a 4 hour break, then another 9 hours and 56 minutes with a 4 hour break over the period of 7 days. The Applicant submitted he had expressed concerns about fatigue on this roster; and this roster required him to double his working hours “in return for a payment of $19.50 per hour”.
[28] The Applicant submitted that the JED was only issued to him by the Respondent, as a means to force his compliance with a task the Respondent knew he had performed outside of his employment agreement, had performed well, but which he was no longer willing to perform past January 2021. The Applicant submitted that the JED was a form of manipulation by the employer. While the Respondent had invited a response from him, the Applicant submitted the timeframe was too short and he was therefore not afforded due process. He believed that the Respondent had ‘pre-determined’ the outcome, being termination of his employment.
[29] The Applicant disputed that he had been offered an opportunity to ‘consult’ about the JED as suggested by the Respondent. The Applicant submitted the letter of 18 December 2021 only invited him to provide matters he wished to be taken into consideration and if he did not do so by 23 December 2020, the Respondent would make a decision on the information before it. He therefore denied that it was a ‘consultation letter’, but rather a ‘notice of intention’.
[30] Further, in his reply submissions, the Applicant submitted that the Respondent’s submissions were misleading, in providing that the Respondent was entitled the make the JED. The Applicant submitted that pursuant to s.789GE of the Act, it only applied in circumstances where the employer became entitled to JobKeeper payments for the employee for a period that consisted of or included the period that the direction applied. The direction must also be necessary for continued employment. The Applicant submitted there is no evidence that the JED was necessary for his continued employment in WP2. He submitted the JED was not issued within the intention of the Act, and was used by the Respondent to ‘override’ his employment agreement.
[31] The Applicant did not believe the Respondent had a pilot shortage requiring the issuing of the JED, and further submitted that two pilots had returned from WP2 to WP1 in December 2020 without a JED being issued on them.
[32] The Applicant provided his response to the JED letter as follows:
“From: Roger Woods [email address redacted]
Date: Saturday, 19 December 2020 at 11:49 am
To: Scott Kessell [email address redacted]…
Cc: James Mattner [email address redacted]
Subject: RE: Letter for your attention
Dear Mr Kessell,
Thankyou for your letter of 18 December entitled “Notice of intention to make a JobKeeper Enabling Direction pursuant to s.789GE of the Fair Work Act 2009”
I shall address your letter sequentially by paragraph.
Your first paragraph concerns your operational difficulties with touring pilots. On the SGAS contract, Capt Gatt is the only Captain whom continues to effectively tour from interstate, and I am aware you continue to pursue his redundancy as you have achieved with other interstate touring pilots. I put it to you Mr Kessell, that Life Flight Australia (LFA) in fact is experiencing operational difficulties because it remains determinedly the lowest payer in the industry by a large margin. The relevant EA expired more than a year ago and your current offer to the pilot group is “we are comfortable with what we are paying you”. I have watched you attempt to recruit pilots, and when they discover how low the remuneration is, they almost universally decline your offer. There is a colloquial saying “play stupid games, win stupid prizes”, and perhaps LFA might consider the strategic wisdom of the industrial games it has been playing.
Your second paragraph concerns the perceived threat to the SGAS contract. I remind you that I am very specifically employed as a Toowoomba Community Pilot on Work Practice 1 under the PSBA contract, 2 days, 2 nights, 4 off. I am not employed by LFA on the SGAS contract on a touring roster (WP2) which is 7 x24hr shift on and 7 x24hr shifts off. Threat to the SGAS contract is not a threat that as a Toowoomba Community Pilot, exists within my area of immediate concern. I will help LFA where I can, and have been doing so. But please do not confuse this with any concept that I ‘have’ to do so.
Your third paragraph invokes S789GE of the Fair Work Act 2009. I agree that this section gives you some scope to change my duties of work, but as I will demonstrate, it is not a catch-all that allows LFA to (amongst other questionable directives) effectively double my working hours for the princely sum of $235.00 per day (before tax). Please consider the following extract from the Fair Work website:
Introduction
The COVID-19 pandemic and the responses from governments, both federal and state, have had a substantial impact on businesses and their employees with a range of restrictions implemented across a wide range of industries.
These restrictions have affected businesses and their employees and will continue to do so into the foreseeable future.
Consequently, some parties to enterprise agreements are considering varying their enterprise agreements to introduce additional flexibility to help address the impact of the COVID-19 pandemic.
How do I vary my current enterprise agreement?
The employer and its employees who are covered by the enterprise agreement can agree to a variation. Any variation must be approved by the majority of employees who vote for the variation.
Before employees vote on a variation to their agreement, the employer must take some of the same steps as required to make a new enterprise agreement. This includes that the employees must have been given access to a copy of the variation for 7 days before they vote.
The requirements for varying an agreement are similar to those for approving a new agreement, including that the agreement as varied must pass the better off overall test.
How do I make an application to vary an agreement?
The Commission will expedite any applications to vary agreements sent to [email protected].
Find out more about the requirements for lodging an application at Vary an agreement and download our COVID-19 Fact sheet – Making an application to vary an agreement.
Can I use Individual flexibility arrangements instead of varying my agreement?
A number of enterprise agreements contain individual flexibility arrangements (IFAs).
An IFA is a written agreement used by an employer and employee to change the effect of certain clauses in their agreement. It is used to make alternative arrangements that suit the needs of the employer and employee that may include changes to regular rosters and working hours.
However, an IFA cannot be used to reduce or remove an employee’s entitlements under the agreement and must leave the employee better off overall than they would be under the agreement. Consequently, an IFA is less likely to be as effective as varying an enterprise agreement to address the impact of COVID-19 in the workplace.
In effect, you are trying to illegally and unreasonably direct me to enter into an IFA that demonstrably fails the no disadvantage test. This is therefore not a lawful workplace directive.
Concerning your fourth paragraph including sub-paragraphs. As you note, I have already been performing the WP2 duties for some months now. Because of the excessive use of the Toowoomba SGAS aircraft whilst I have been doing this, I have frequently been the highest ‘hours flown’ pilot on the Toowoomba base. Working 168 hour weeks covering SGAS is very different to woking (sic) 48 hours each eight days on Toowoomba Community. I accepted a job to do the latter and have done the former for you for as long as is reasonable. I also gave you more than three months notice that this coverage needed to finish, allowing you ample time to establish alternative arrangements. Your discriminatory treatment of me in comparison to all of my WP1 peers is the subject of an emerging FWC claim, but it is reasonable to say that this has not helped me view your current demand positively.
Paragraphs concerning the safety of the Toowoomba SGAS operation. Here is an extract from our(long expired) EA:
“14. PERMANENT FULL TIME EMPLOYEE 14.1 A permanent full time Employee is an Employee who is engaged on an ongoing basis to perform duty up to the maximum duty time permitted under the CAOs, the Fatigue Risk Management System (FRMS) or the Work Practices in Appendix 2.”
The effect of this paragraph on the use of the Toowoomba SGAS crews (never envisaged by the EA or our FRMS as stated by the Head of Flying Operations - David Bashir) is that they can be directed to work up to the maximum duty time permitted by our FRMS. This potentially requires a pilot to perform 9 hours and 56 minutes of duty, followed by a four hour break with two hours of sleep, then another 9 hours and 56 minutes of (all night) duty, followed by a four hour break with two hours of sleep etc etc. This type of unsafe work practice could potentially extend for an entire 7 day WP 2 shift. And before you say such ridiculous duty hours would never actually happen, it has actually happened.
No reasonable person would consider this safe in any way. To this point, LFA has fundamentally responded that a pilot can call ‘fatigue’ at any point. But at the same time, the EA allows the pilot to be directed to work up to the limits of the FRMS, and as we know, different pilots will have different fears about calling ‘fatigue’ in conflict with the FRMS. I am certain that this presents a serious risk to flight safety that is clearly within the responsibility of LFA to resolve without solely relying on a pilot (who already has degraded decision-making ability due to fatigue) to call fatigue. The default NES ruling is that 38 hours and a ‘reasonable’ amount of overtime may be scheduled weekly for an employee. 138 hours ‘overtime’ in a week is not going to be considered reasonable should it be tested.
So as I have clearly demonstrated, Mr Kessell, your proposed JED pursuant to S789GE of the Fair Work Act 2009, fails on a number of allowable grounds under the Fair Work Act. Whilst you may be able to change some of my duties, you cannot determine that you will double my working hours, particularly for the pitiful sum you offer of $19.50 an hour. You could direct that I cover SGAS whilst working my normal WP1 shifts, but I appreciate this would only achieve part of your goal. You also need to be very careful of contributing further to the expanding list of discriminatory action LFA has been guilty of applying to me – I am taking action concerning that, and extreme caution not to discriminate unlawfully against me should be a very high priority for you.
By far the option I see as most workable for all involved is that you have your Flight Operations staff actually address the gaping hole in the Safety Management System created by the poorly planned introduction of SGAS Commercial aircraft covering Toowoomba Community duties. Fix the safety issues to my satisfaction (previously detailed) and you will find me much more willing to consider assisting on the Toowoomba SGAS aircraft. At the centre of it, this is a SAFETY issue Mr Kessell, and my decision in October to cease (from Feb 21) being a volunteer to operate in an environment with that level of risk, remains valid. Until the safety issues are fixed, neither your misreading of my employment contract, the EA, bullying, threats to my employment, nor the Fair Work Act 2009 – Sect 789GE are going to convince me I need to continue to subject myself to 7 day tours of fundamentally unrestricted liability to perform near continuous duty.
The irony in all of this is way back in April when my AW139(SP) qualification was revoked and I requested to be offered an SGAS Capt position suited to my (then) AW139 two pilot qualification, LFA did not even bother responding. Had you responded logically then, you would have a Toowoomba based, Toowoomba/Roma capable SGAS Captain who would not be taking you to the FWC for discriminatory allowance application.
Thank you for your consideration Mr Kessell, I look forward to your response.
Kind Regards,
Roger Woods
RePL/CPL/ATPL(H)”
[33] The Applicant sent a further email on 21 December 2020, in relation to a pilot retention bonus that the Applicant believed was payable:
“From: Roger Woods [email address redacted]
Date: Monday, 21 December 2020 at 11:08 am
To: Scott Kessell [email address redacted]
Subject: Re: Letter for your attention
Well, don't consider it for too long Mr Kessell, you and I have an EA to finalise over the coming weeks. Might I suggest you try working with me rather than constant attempts at using coercive mechanisms in the hope that I will capitulate. I never have, and can guarantee you that I never will.
As you have seen, I have no hesitation in dragging you before the industrial umpire to assist you to reassess your workplace relations decisions where you fall short of the legislated standard. The blunt force attacks you and Mr Guthrie seem to prefer are ultimately self-defeating. This is Neanderthal IR that most of us left behind in the 1980's. If that remains your preferred mechanism, I can certainly play that game. I cut my industrial teeth with the TWU, MUA, ALAEA and ASU. I promise you that as the newly appointed AFAP rep for the pilot group, I will be a formidable industrial opponent if that is how you choose to treat me. I know the rules Mr Kessell, it would be wise of you to follow them.
I suggest you get your cheque book out and pay the pilot retention bonus to the pilot group ASAP. You have acted illegally by not paying it on the 1st of December. I have directed AFAP to get you before the FWC at the earliest opportunity and I will be requesting that the Commission not only order you to pay the bonus, but will also be requesting LFA be fined under the Act for repeated breaches of very clear requirements.
In your previous correspondence to me, you attempted to illegally force me to change work practices because you are short of pilots. As I pointed out, you are short of pilots due to the pathetic remuneration you are determined to offer, not anything to do with Covid-19. In fact, Covid-19 has created a boon of available pilots yet you have failed to attract any. For goodness sake Mr Kessell, even in my little agricultural drone business I have just put on three more Agricultural Drone Operators, two of whom were ATPL qualified Tigerair A320 Captains prior to Covid. How can my little drone business win while LFA continues to lose? I treat my people well. I give them pay rises they didn’t ask for, extraordinary flexibility in their employment and generally look after them in every way I can. I see them as my greatest asset Mr Kessell, not my greatest enemy.
The really sad thing is that there are so many win/wins available within our operations. Ironically, in your current establishment you actually have too many underpaid pilots whom are deployed inefficiently. You could have a smaller group of well-paid pilots and if deployed correctly, there would be safer operations, more availability for the clients, more resilience to disruption and better work/life balance helping to attract and keep expensive-to train aircrew.
But alas, you are determined to see the pilot group as a distasteful competitor in a zero-sum game. So we get back to that old saying about games and prizes...
Kind regards,
Roger Woods
Pilot and AFAP Workplace Rep”
First and final warning
[34] The Applicant submitted that the Respondent then issued a First and Final Warning on 28 December 2020, for the tone and language used in his response email in which he informed the company he would no longer be available for the touring roster. The Applicant submitted that deeming his tone and language as ‘misconduct’ warranting dismissal is excessive, unreasonable, and disproportionally harsh and unjust. The warning letter provided as follows:
“28 December 2020
Mr Roger Woods
[email address redacted]
First and Final Written Warning
Dear Roger,
I refer to your correspondence to Scott Kessell on 19 December 2020 and 21 December 2020, in response to LifeFlight’s proposed JobKeeper Enabling Direction (JED) and invitation to consult (your Response).
This first and final written warning (Warning) relates to the tone and language used in your Response.
To clarify, this Warning is not in relation to the content of the Response, or the Response itself, only to the tone and language used.
In short, the tone and language employed in your Response is unacceptable, and breaches both LifeFlight’s Code of Conduct, and Bullying and Harassment policy.
Code of Conduct (Code)
The Code outlines the standards of conduct and behaviour required of employees, including but not limited to:
a) refraining from conduct which may cause a reasonable person offence;
b) using inappropriate, abusive or offensive language in the workplace;
c) complying at all times with the company Bullying and Harassment Policy; and
d) not engaging in bullying behaviour.
Discrimination, Sexual Harassment & Bullying Policy (Policy)
The objectives of the Policy include:
a) providing a pleasant, harassment free working environment for all;
b) ensuring that everyone is treated with respect and dignity; and
c) encourage good working relationships.
An example of bullying provided in the Policy includes abusive, insulting or offensive language or comments.
The Policy further provides that all employees have a responsibility to contribute to the achievement of a professional and productive work culture.
I have extracted in Annexure A some of the comments made in your Response, which I consider breach both the Code and the Policy. For clarity, while the comments below have been extracted, I have viewed each comment in the context of the entire Response in coming to the conclusion that they breach the Code and the Policy.
I consider the language used, as well as the tone and intent of your Response, to be offensive, disrespectful, abusive, confrontational, insulting, inciting, and threatening. The Response amounts to harassment and is also unprofessional and unproductive.
This serves as a first and final warning that if such conduct continues, disciplinary action may be taken against you including the termination of your employment.
With immediate effect, you are directed to:
1. refamiliarise yourself with your obligations under the Code and the Policy;
2. advise me if you believe you require any further training or support in order to meet those obligations; and
3. communicate with all workplace participants (whether verbally or in writing), including Mr Kessell, in a productive, professional and respectful manner.
Finally Roger, I wish to stress so that there is absolutely no misunderstanding, that this warning relates to the tone and language of your Response, and not the content of the Response itself. LifeFlight has no issue, with (and in fact encourages) employees to raise legitimate concerns, questions, and/or make enquiries in relation to their employment and workplace rights, or engage in union or other industrial activities, and we are always willing to engage in meaningful and even robust discussions in this regard. However, we will not tolerate inappropriate communications such as your Response. That the content of your Response was in relation to a JED and other workplace matters, does not provide you with a licence to conduct yourself inappropriately, or provide you with a shield or immunity from complying with the Code or the Policy. We are always willing to discuss any matter an employee wishes to raise in relation to their employment or otherwise, provided this is done in a respectful manner.
Yours sincerely
Ashley van de Velde
Group Chief Executive Officer
LifeFlight Australia
Annexure A – Extracts from Response
19 December 2020 Correspondence
1. “There is a colloquial saying “play stupid games, win stupid prizes”, and perhaps LFA might consider the strategic wisdom of the industrial games it has been playing.”
2. “… please do not confuse this with any concept that I ‘have’ to do so.”
3. “…other questionable directives”.
4. “..the princely sum”.
5. “..for the pitiful sum you offer”.
6. “You also need to be very careful of contributing further to the expanding list”.
7. “…extreme caution not to discriminate unlawfully against me should be a very high priority for you.”
8. “…the poorly planned introduction of SGAS Commercial aircraft…”
9. “Fix the safety issues to my satisfaction (previously detailed) and you will find me much more willing to consider assisting on the Toowoomba SGAS aircraft.”
10. “…neither your misreading of my employment contract,…”
11. “Had you responded logically…”
December 2020 Correspondence
12. “Well, don't consider it for too long Mr Kessell, you and I have an EA to finalise over the coming weeks. Might I suggest you try working with me rather than constant attempts at using coercive mechanisms in the hope that I will capitulate. I never have, and can guarantee you that I never will.”
13. “I have no hesitation in dragging you before the industrial umpire to assist you to reassess your workplace relations decisions where you fall short of the legislated standard.”
14. “The blunt force attacks you and Mr Guthrie seem to prefer are ultimately selfdefeating.”
15. “This is Neanderthal IR that most of us left behind in the 1980's. If that remains your
preferred mechanism, I can certainly play that game.”
16. “I cut my industrial teeth with the TWU, MUA, ALAEA and ASU. I promise you that as the newly appointed AFAP rep for the pilot group, I will be a formidable industrial opponent if that is how you choose to treat me. I know the rules Mr Kessell, it would be wise of you to follow them.”
17. “I suggest you get your cheque book out and pay the pilot retention bonus to the pilot group ASAP. You have acted illegally by not paying it on the 1st of December. I have directed AFAP to get you before the FWC at the earliest opportunity and I will be
requesting that the Commission not only order you to pay the bonus, but will also be requesting LFA be fined under the Act for repeated breaches of very clear requirements.”
18. “In your previous correspondence to me, you attempted to illegally force me to change work practices because you are short of pilots. As I pointed out, you are short of pilots due to the pathetic remuneration you are determined to offer, not anything to do with Covid-19.”
19. “For goodness sake Mr Kessell, even in my little agricultural drone business I have just put on three more Agricultural Drone Operators, two of whom were ATPL qualified
Tigerair A320 Captains prior to Covid. How can my little drone business win while LFA continues to lose?”
20. “I see them as my greatest asset Mr Kessell, not my greatest enemy.”
21. “Ironically, in your current establishment you actually have too many underpaid pilots whom are deployed inefficiently.”
22. “..you are determined to see the pilot group as a distasteful competitor in a zero-sum game. So we get back to that old saying about games and prizes...”
[35] The Applicant submitted that if considered in its entirety, his response contains nothing which could be construed as amounting to misconduct justifying termination of his employment. The Applicant submitted his response to the JED was provided in an honest, upfront and respectful manner “given the very difficult circumstances that had evolved”.
[36] The Applicant responded to the Respondent’s first and final warning letter, signed by the CEO, at 12.37am on 30 December 2020, in the following terms;
“From: Roger Woods [email address redacted]
Date: Wednesday, 30 December 2020 at 12:37 am
To: Ashley van de Velde [email address redacted]
Cc: Scott Kessell [email address redacted], James Mattner [email address redacted]
Subject: Re: Correspondence from Ashley van de Velde
Thank you Mr van de Velde, I appreciate your letter greatly. I will be sure to consider it closely.
On first reading there seems to be scant justification for any warning let alone a first and final, but I will get folk who are smarter than me to go over it and determine whether it is valid, in which case a good Methodist boy from Gunnedah like me will apologise, or if it is excessive, in which case I will be requesting it be withdrawn or getting the FWC to order it be withdrawn.
I understand that ever since I took LFA to Fair Work a year ago, you have been keen to remove me. The anonymous report to CASA AVMED by one of your subordinate managers, aiming to terminate my flying career was disgraceful and seriously exposes LFA moving forward. Mr Kessell's 'Job keeper enabling directive' attempt to bully me into a change of work practice was clear discrimination and the response that he got was both accurate and justified. Mr Guthrie's remuneration discrimination against me is before the FWC but suffice to say, there is an exceedingly vivid picture showing what is going on here.
No amount of pressure that is applied to me will make me crumble, it just ends up being more ammunition for me in current and future claims. I suggest your letter is a premature deployment of a FaF. It risks being seen as a building block to a constructive dismissal. I would like to invite you to withdraw it. If you do not, I will commence a process to have it disallowed.
I look forward to representing the AFAP pilot group in our upcoming EA negotiations. It would be helpful if you could be present. Perhaps then you would then understand the gross disrespect Mr Kessell and Mr Guthrie have for your pilots.
You have a serious upcoming industrial problem. We, as a group feel disrespected in how we are treated and how we are remunerated in comparison to our peers in the industry. It was a mistake to not pay the retention bonus, that pushed even the more placid and accepting members of the group into militancy.
But despite all this, thank you for communicating with me, the first correspondence we have had since I joined the company five years ago.
Roger Woods
Line Pilot - Rotary Wing”
[37] The Applicant also sent an email to Mr Kessell at 1.45am on 30 December 2020 in the following terms:
“From: Roger Woods [email address redacted]
Date: Wednesday, 30 December 2020 at 1:45 am
To: Scott Kessell [email address redacted]
Subject: FaF
Really Mr Kessell,
A FaF for tone... That won't only lose at Fair Work it will be laughed out of Chambers... Surely you can do better than that ;)
But in all seriousness, Happy New Year to you and your loved ones.. I am looking forward to a fantastic 2021...
Kind regards,
Roger Woods”
[38] The Respondent issued the Applicant with a Show Cause letter on 11 January 2020 in the following terms:
“11 January 2021
Mr Roger Woods
c/- [email address redacted]
Invitation to show cause
Dear Roger,
I refer to the first and final warning issued to you on 29 December 2020 (Warning).
I then refer to your two emails to Mr van de Velde and myself on 30 December 2020 in response to the Warning (30 December emails).
Once again the tone and language used in the 30 December emails is unacceptable, and in breach of LifeFlight’s Code of Conduct and Bullying and Harassment policies for the same reasons set out in the Warning.
The immediate repeat offence of the very conduct about which you had been warned creates significant concern for LifeFlight, who considers, given the 30 December emails, that the relationship of employment has irretrievably broken down. LifeFlight no longer has trust and confidence that the employment relationship can continue in any meaningful or productive way, or in your ability to interact with your employer in an appropriate or acceptable way. In addition, your advice to Mr Van De Velde that the Warning was ‘premature,’ your invitation to ‘withdraw it’, failing which you will ‘commence a process to have it disallowed’ indicates that you have not reflected on your conduct at all, have no awareness around the inappropriateness of your behaviour or how your conduct is perceived by others, nor will you take steps to modify your conduct in the future (which is clearly demonstrated by your 30 December emails).
LifeFlight considers it has no option but to terminate your employment due to the irrevocable breakdown of the employment relationship, and due to its loss of trust and confidence in you, for:
a) failing to obey LifeFlight’s lawful and reasonable directions as to your future conduct as set out in the Warning (particularly communicating with your colleagues in a respectful way); and
b) breaching LifeFlight’s Code of Conduct and Bullying and Harassment policies in relation to the 30 December emails.
Next steps
Response
LifeFlight wishes to provide you with a final opportunity to show cause why your employment should not be terminated. You are invited to provide any matters which you wish LifeFlight to take into consideration prior to making a final decision, in writing and by no later than 5.00pm on Thursday 14 January 2021 to myself via email. These matters may include a response to the misconduct and/or any personal circumstances you believe may be relevant to LifeFlight’s decision.
Suspension from duties
Given the seriousness and nature of the conduct, LifeFlight has elected to suspend you from duty pending the outcome of this show cause process. The terms and conditions relating to your suspension are set out in Annexure A to this letter. These terms and conditions are viewed as reasonable and lawful directions in the circumstances, and failure to abide by them may result in dismissal, including dismissal without notice for serious misconduct.
Your suspension will continue until you are otherwise advised in writing.
We look forward to receiving your response to this show cause invitation by 5.00pm on Thursday 14 January 2021. If we do not hear from you by this time, we will assume you do not have any matters you wish LifeFlight to take into consideration, and a decision will be made based on the information available.
If you have any questions, please contact me in writing.
Yours sincerely
Scott Kessell
Director, Human Resources, Commercial Projects & External Relations
LifeFlight Australia”
[39] The Applicant submitted that until this time, the Respondent had provided all correspondence to his work and private email addresses. However, he submitted that the Respondent provided the show cause notice to his work email address only, on day one of his 7 days off shift. The Applicant contended this was done to “manipulate the situation” as the Respondent knew he may not have access to his work emails during this period, and therefore may not see the correspondence in the 72-hour period provided for him to respond to the show cause letter. The Applicant submitted that he didsee this correspondence and noted to the Respondent how unfair the process was to date. He said that the Respondent had formed their view of his ‘poor on-going conduct’ and determined the employment relationship had irrevocably broken down. The Applicant submitted his employment was then terminated with immediate effect.
[40] The Applicant submitted that providing him with a first and final warning, in circumstances where he had responded to the invitation of the Respondent in relation to the making of the JED, was harsh and unjust. He submitted the following factors should be considered by the Commission:
• His 5 years of continuous employment with LFA;
• No disciplinary action, warning letters or any workplace problems prior to the bullying incident;
• No previous instance of ‘tone and language’ problems despite numerous communications regarding various issues;
• No practical support to amend a perceived tone and language problem including no offer of professional development or coaching, no support by line management to edit ‘draft’ communications prior to sending, no supportive conversations whatsoever;
• No implementation of offer of a Performance Improvement Plan;
• The response from the Respondent caused the Applicant to believe the Respondent was seeking to terminate his employment regardless of what he did or said. This was a reasonable conclusion to be drawn by the Applicant from such a harsh reaction to his requested response.
[41] The Applicant submitted that he was dismissed whilst on leave, over the Christmas period and in all of the circumstances he was denied procedural fairness.
[42] The Applicant believes the real reason for his dismissal was frustration of the Respondent due to him “holding them to account in their lack of compliance with workplace law, lack of attention to significant safety issues and his increased Union activity”. He submitted that even if his ‘tone’ was the reason for the dismissal, it falls short of misconduct and therefore there was no valid reason for his dismissal. He maintained that in his response to the JED, he addressed each issue sequentially, in a professional manner, and outlining the issues as he saw them and as he had been requested to do. The Applicant submitted that as he had only been a volunteer in the WP2 position, any response was going to be against remaining on WP2.
Remedy
[43] The Applicant submitted that his interactions with the Respondent were in all instances appropriate and in proportion to the issues he was raising, considering the high pressure and high-risk working environment in which the pilots operate. The Applicant seeks reinstatement as a ‘WP1’ pilot in accordance with his employment agreement. He submitted that he has a flawless safety record as a pilot, significant experience as a helicopter pilot in emergency settings, and does not believe the relationship between himself and the Respondent has irretrievably broken down.
[44] The Applicant submitted his correspondence of 30 December 2020 was not an indication of his unpreparedness to modify his conduct. He submitted his response was a frustrated reaction in response to him being forced to work in a job arrangement contrary to his contract and in a manner he felt was not sufficiently protected from fatigue. He submitted his response was also influenced by the belief he would be dismissed, regardless of his responses. The Applicant submitted he is willing to work with management to improve the company and ensure the safety of its operations.
[45] In support of seeking reinstatement, the Applicant submitted the helicopter pilot community in Australia is small and that he has no other opportunities for being employed as a helicopter pilot. He submitted that the dismissal had destroyed his reputation and that reinstatement is his only option for ongoing work as a helicopter pilot.
Outline of the Respondent’s Submissions
[46] The Respondent submitted that the Applicant’s dismissal on the basis of misconduct was fair in all of the circumstances.
[47] The Respondent submitted that RW pilots are engaged in accordance with the terms of the Agreement, to work either the Work Practice 1 (WP1) or the Work Practice 2 (WP2) roster. It submitted that at the time of his employment, the Applicant was engaged to work WP1, however there was an earlier agreement he would remain “flexible to work flexibly”. 1 The Respondent submitted that at the time of his dismissal, the Applicant had, by agreement, been working WP2 for some time. The Respondent submitted this was largely in response to a significant staff shortage due to COVID-19 travel restrictions placed on four WP2 pilots who lived interstate and were unable to reliably travel to Queensland to work their shifts.
[48] The Respondent submitted that on 9 December 2020, the Applicant wrote advising he would no longer be available to work WP2 after January 2021.
[49] The Respondent submitted that it considered its available human resources and whether to issue the Applicant with a JED to retain him on WP2 until the end of March 2021, at which time it was anticipated that reliable travel arrangements could be made for the interstate pilots to return to work. The Respondent submitted Mr Kessell therefore wrote to the Applicant on 18 December 2020, inviting him to consult about the potential issue of a JED.
[50] The Applicant responded to the Consultation Letter on 19 and 21 December 2020. The Respondent considered the tone and language used by the Applicant in his response was in breach of its Code of Conduct and Workplace Bullying policy. Therefore, on 28 December 2020, the Respondent issued the Applicant with a ‘first and final warning’ which:
(a) advised that the tone and language used by Mr Woods in his correspondence was unacceptable;
(b) confirmed that Mr Woods’ conduct was a breach of LifeFlight’s Code of Conduct and Bullying and Harassment policy;
(c) directed Mr Woods to modify his conduct and ensure all future communication was productive, professional and respectful; and
(d) put Mr Woods on notice that he may be dismissed if the conduct continued.
[51] At the Hearing, I questioned Mr Kessell on his view of the Applicant’s correspondence and his evidence was as follows:
“You had already formed a view that the tone in the letter that Mr Woods sent you on the 19th, after you requested him to do so, was offensive, hadn't you?---Correct.
And you had already formed a view that the tone in the email of 19 December was bullying towards you, wasn't it?---Yes, it was.
You had already formed a view that the response on 19 December was against the company's code of conduct?---Yes.” 2
[52] For the sake of convenience, I summarise the relevant provisions of the Respondent’s Code of Conduct (the Code) and Discrimination, Sexual Harassment & Bullying Policy (the Policy) as follows:
Code of Conduct
“Aim of Policy
LifeFlight Australia (LifeFlight) recognises the importance of a work environment which actively promotes best practice. The purpose of this Code is to describe the standards of behaviour and conduct expected from Workplace Participants in their dealings with patients, customers, suppliers, clients, co-workers, management and the general public.
LifeFlight expects all Workplace Participants to observe the standards set out in this Code. Compliance with this Code is expected and non-compliance may result in disciplinary action up to and including the termination of employment or contract for services.
Scope
The Code applies to all employees, agents and contractors (including temporary contractors), collectively referred to as ‘Workplace Participants’ of the LifeFlight Australia Group of companies which includes; LifeFlight Australia, LifeFlight Training Academy, LifeFlight Retrieval Medicine, LifeFlight Foundation and StarFlight. The use of ‘LifeFlight’ throughout this policy refers to those companies listed.
It applies in all work related dealings with other people including colleagues, patients and their families, external clients, students, customers and suppliers, while in the workplace, working off-site, on a mission, and at work related functions and conferences (collectively referred toas the ‘workplace’).
Where relevant, the Code operates in conjunction with other policies relating to minimum standards of behaviour and conduct, the Contract of Employment or Contract for Services. The Code does not form part of any employee’s contract of employment. Nor does it form part of any other Workplace Participant’s contract for services.
The Code Requirements
All Workplace Participants are expected to observe the highest standards of ethics, integrity and behaviour during the course of their employment or engagement with LifeFlight. This Code provides an overview of LifeFlight’s fundamental business values. It is by no means exhaustive, but summarises some of LifeFlight’s most important policies, which are based on standards that underlie business ethics and professional integrity; standards that apply to all Workplace Participants.
As representatives of LifeFlight, all Workplace Participants are expected to conduct
themselves in a professional and courteous manner and observe the following standards of behaviour both inside the workplace and outside the workplace where the workplace participant can be perceived as representing LifeFlight.
1. General
a) Comply with all laws, policies, procedures, rules, regulations and contracts.
b) Comply with all lawful and reasonable directions from LifeFlight.
c) Be honest and fair in dealings with patients, customers, clients, suppliers, co-workers, management and the general public.–
…Code of Conduct
k) Refrain from any form of conduct which may cause any reasonable person
unwarranted offence or embarrassment or give rise to the reasonable suspicion or
appearance of improper conduct or biased performance.
…
r) Do not use inappropriate, abusive or offensive language in the workplace.
2. Discrimination, Sexual Harassment & Bullying
LifeFlight has a zero tolerance policy on Discrimination, Sexual Harassment and Bullying. Workplace Participants must;
a) Read and comply at all times with any company policy on Discrimination, Sexual Harassment and Bullying;
b) Complete/attend any mandatory training on Discrimination, Sexual Harassment and
Bullying;
c) Treat customers, patients, clients, suppliers, co-workers, company management and
the general public in a non-discriminatory manner with proper regard for their rights
and dignity. In this regard, discrimination, victimisation or harassment based on a
person’s race, colour, religion, national origin, age, sex, sexual orientation, marital
status, family responsibilities, pregnancy or potential pregnancy, union membership
or non-membership, mental or physical disability, or any other classification protected
by law will not be tolerated.
d) Not engage in any behaviour that could constitute sexual harassment; that is sexual
attention that is unwanted or unwelcome that includes both verbal and physical
conduct.
e) Not engage in bullying behaviour. Workplace Bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.
…”
(underlining is my emphasis)
Discrimination, Sexual Harassment & Bullying Policy
“Workplace Bullying:
Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.
Repeated behaviour refers to the persistent nature of the behaviour, not the specific type of bullying behaviour. Behaviour is considered ‘repeated’ if an established pattern can be identified and it may involve a series of diverse incidents.
Unreasonable behaviour means behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.
A single incident of unreasonable behaviour is not bullying, although it may have the potential to escalate into bullying and therefore should not be ignored.
Detailed below are examples of behaviour, whether intentional or unintentional, that may be considered to be workplace bullying if they are repeated, unreasonable and create a risk to health and safety.
This is not an exhaustive list; however it does outline some of the more common types of behaviour:
− Abusive, insulting or offensive language or comments
− Spreading misinformation or malicious rumours
− Unjustified criticism or complaints
…
6. Roles & Responsibilities
LifeFlight Responsibilities
Employers may be vicariously liable if a workplace participant contravenes State or
Commonwealth laws which prohibit discrimination, sexual harassment and workplace
bullying.
LifeFlight will take the following actions to ensure, as far as reasonably practicable, the
effective prevention and resolution of discrimination, sexual harassment and bullying in the workplace:
− Provide all employees with discrimination, sexual harassment and bullying awareness
training
− Promote the Code of Conduct and Employee Essentials for service providers to follow
− Provide a complaints investigation procedure outlining the support systems available
and options for resolution
− Regularly review this policy, training, and complaints investigation procedure.
…
7. Procedure
Complaints of discrimination, sexual harassment and workplace bullying should be raised as soon as possible so that the situation can be dealt with quickly, impartially and confidentially.
− Complaints in relation to discrimination, sexual harassment and workplace bullying should be made in line with the procedure as outlined below and in the Grievance Policy. These stages do not need to be followed sequentially, an employee or manager may commence the process at any stage dependent on the circumstances of the complaint.
− The process is to be completed in a timely manner. Discussions at any stage of the process shall not be unreasonably delayed by any party, subject to acceptance that some matters may be of such complexity or importance that it may take a reasonable amount of time for an appropriate response to be made.
Stage 1 - Discussion with the Other Party
Many concerns can be sorted out quickly and informally by speaking directly with the person concerned. Therefore in the first instance, the workplace participant should attempt to resolve the matter with the other party if they feel comfortable doing so.
Stage 2 - Referral to Manager
If discussion with the other party does not resolve the situation or, if the workplace participant is not comfortable approaching the other party directly, the workplace participant may refer the matter to their manager; this does not have to be in writing. The manager must deal with the complaint. The Manager may do this by speaking to the other person and taking appropriate steps to address the behaviour, and if appropriate, facilitating a discussion between the parties to resolve the complaint. The manager must notify the HR Department of any complaint of discrimination, sexual harassment or bullying. They may also ask their Manager or HR for support depending on the severity. The manager must promptly report any potential safety or criminal matters to the HR Department.
If the behaviour relates to the workplace participant's manager, the matter should be
reported to an alternative appropriate member of management or the HR Department.
Stage 3 – Make a formal complaint
If no effective resolution has been achieved in Stage 1 or 2, the complaint should be lodged with the employee’s manager and/or HR (preferably in writing). An employee may also choose to make a formal complaint as their first step.
A full investigation is likely to follow, with support of the HR Department, which may involve the collection of documentation including statements from the parties, records of interview with the complainant, the alleged bully/harasser and any witnesses, personal notes and reports.
If a complaint is investigated, all parties must agree to:
Give a true and accurate disclosure and cooperate in establishing the facts;
Maintain confidentiality at all times to avoid defamation;
Conduct themselves in a professional manner and observe appropriate workplace
behaviours; and
Refrain from the victimisation of anyone during or after the investigation process.
If the complaint is substantiated, a formal record of the complaint, the investigation, the
outcome and the action implemented will be kept on the relevant workplace participant’s file.
Outcomes that may result if a complaint is substantiated include:
An apology;
A formal undertaking that the behaviour will cease;
Formal counselling of the alleged harasser;
Formal training or coaching;
Disciplinary action, e.g. transfer, formal warning, dismissal (dismissal will commonly be the outcome of gross acts of sexual harassment);
Notification to the Police (for criminal matters).”
[53] The Respondent considered that the 30 December 2020 correspondence constituted:
(a) a repeat of the misconduct outlined in the Warning;
(b) a wilful and deliberate refusal to obey a reasonable direction; and
(c) an indication that Mr Woods was not prepared to modify his conduct even when faced with the very serious consequence of dismissal.
[54] The Respondent cited the decision in Kolodka v Virgin Australia Airlines Pty Ltd t/a Virgin Australia, 3 which found that the poor attitude and behaviour of the applicant formed a valid reason for dismissal in circumstances where the employee reacted to a performance review by continuing to “explicitly and consistently disrespect team members, customers and supervisors”.
[55] The Respondent submitted that on 11 January 2021, it provided the Applicant with an opportunity to show cause why his employment should not be terminated.
[56] The Applicant responded via a series of emails to Mr Kessell on 12 and 13 January 2021:
“From: Roger Woods [email address redacted]
Sent: Tuesday, January 12, 2021 3:47 pm
To: Scott Kessell
Cc: Barbara
Subject: Re: Important correspondence for your attention
Dear Mr Kessell,
My only response is that I do not believe that you have anywhere near grounds to summarily dismiss me. You have bullied and bullied and bullied to a disgraceful degree.
I look forward to hearing you justify these actions to the Fair Work and Human Rights Commissions.
Absolutely brazen constructive dismissal, and you have not even bothered to construct it properly.
See you soon...
Roger Woods
Line Pilot - Rotary Wing”
…
“From: Roger Woods [email address redacted]
Date: Wednesday, 13 January 2021 at 10:34 am
To: Scott Kessell [email address redacted]
Cc: Ashley van de Velde [email address redacted]
Subject: Re: Important correspondence for your attention
Dear Mr Kessell,
It is clear that Mr van de Velt has told you to get rid of me whatever it takes. I believe his desperation to do so is due to my union representation and clear industrial intent concerning the very very stalled pilot EA.
Your grounds for my dismissal will fail, and you will be ordered to reinstate me. I will take the matter to the High Court if needs be.
I invite you to send me whatever correspondence you have planned soonest. It is not actually very hard to see where you have been aiming for some time now. There is only one way this matter will be sorted out now. The immaturity of LFA industrially beggars belief.
You are going to have to reinstate me, and the compensation for your behaviour toward me will be substantial and on-going. Worse, the reputation and standing of LFA will be damaged through this unnecessary process. At the line level, we provide a great community service. But the poor behaviour of members of upper management tarnishes an otherwise good company.
You have been derelict in your duty toward your CEO and LFA. You should have advised him of the cost of pursuing such a high profile path with no chance of success. What is about to occur is on your head Mr Kessell.
Regards.
Roger Woods
Line Pilot - Rotary Wing”
…
“From: Roger Woods [email address redacted]
Date: Wednesday, 13 January 2021 at 1:28 pm
To: Scott Kessell [email address redacted]
Cc: Ashley van de Velde [email address redacted]
Subject: Re: Important correspondence for your attention
Oh one more thing, I have broken item 6 of your ridiculous hostage letter. Who do you think you are mate? Do you really think you can ban me from talking to friends of mine who I served with in the Army for 20 years?
You really should get better advice before you roll out that sort of dribble... it is laughable.
Cheers ;)
Roger Woods
Line Pilot - Rotary Wing”
[57] Mr Kessell formed the view that the correspondence contained further breaches of the Respondent’s policies, constituting misconduct as outlined in the Warning Letter.
[58] Mr Kessell therefore wrote to the Applicant on 15 January 2021, informing of the decision to terminate his employment with payment in lieu of notice:
“15 January 2021
Mr Roger Woods
Outcome of disciplinary action
Dear Roger,
I refer to my correspondence dated 11 January 2021 in which you were invited to show cause why your employment should not be terminated for the reasons set out in that letter (SC Notice).
I also refer to your three responses to the SC Notice on 12 and 13 January 2021, as set out in Annexure A to this letter (SC Responses).
After carefully considering your SC Responses, as well as the conduct complained of in the SC Notice, I have determined to terminate your employment for misconduct, with notice to be paid in lieu.
The reasons for my decision are set out in the SC Notice. However, the tone and language used in your SC Responses only served to confirm my preliminary view that due to your ongoing conduct, the relationship of employment has irrevocably broken down, and that the trust and confidence required of such a relationship is unable to be restored.
Your Workplace Concerns
While I do not propose to respond to all of the matters raised in your SC Responses, I do feel it necessary to make the following discrete comments. This does mean to say I have not considered all the matters raised in your SC Responses in reaching my decision.
I do not deny that the past two years or so of your employment have been impacted by various workplace issues, including:
• your ongoing claims of workplace bulling, one of which escalated by an Anti-Bulling
• application to the FWC (which you later withdrew);
• your complaints about unsafe fatigue management;
• the ‘anonymous’ complaint to CASA in relation to your fitness to fly;
• LifeFlight’s attempts to consult with you regarding a JobKeeper Enabling Direction; and
• more recently, your increased union activity.
(Workplace Concerns)
In my view, LifeFlight have taken all reasonable steps and invested significant time and resources to respond appropriately to your Workplace Concerns. More particularly, you raise in your SC Responses your increased union activities and that in your view the reason for your termination is your increased union activity. This comment warrants a response.
I wish to categorically deny that your increased union activity, or any of your Workplace Concerns, are in any way a factor, or have in any way been taken into consideration, when making my decision to terminate your employment with LifeFlight. Those reasons firmly, and only relate to your conduct as set out in the SC Notice.
LifeFlight takes its industrial relations obligations extremely seriously, and as part of this has enjoyed a significant and lengthily relationship with the AFAP and the other unions which represent its employee body. While our relationship with the AFAP is often adversarial and grounded in conflict, it has nevertheless always been one based on robust, meaningful discussion, and mutual respect. To suggest that your dismissal is any way reprisal for your union activity is simply nonsense and has no factual basis. Many of our employees are active union members and we welcome and value their contributions. I will be taking steps to communicate this to the Pilot employee body to ensure that given your comments, they are under no misperception that they will be treated in any adverse way due to their union activities.
Importantly, your union activity, or other Workplace Concerns, do not provide you with a ‘shield’ or some form of ‘immunity’ from disciplinary action, or confer on you a licence to engage in unacceptable behaviour without consequence. Regardless of any Workplace Concerns you may have, you are nevertheless required to conduct yourself in an acceptable way in compliance with your employment obligations, the Code of Conduct, and other LifeFlight policies. Your Workplace Concerns do not provide you with an indemnity to behave in a manner which renders the employment relationship unworkable. I have engaged with many union employee representatives in extremely heated and confrontational matters, which have never affected their employment relationship, or their professional and respectful conduct in the workplace.
You are being dismissed due to your unacceptable behaviour, nothing more.
Next steps
Your dismissal will take effective immediately today, 15 January 2021. You will be paid in lieu of notice and other entitlements under law. I will forward you a copy of your final payslip detailing your final pay in due course.
If you have any personal belongings on LifeFlight premises, please advise me of this by 12 noon on Monday 18 January 2021 and I will arrange for these to be delivered to your home at 12 noon on Tuesday 19 January 2021. At the same time as returning these items, LifeFlight will collect from you all company property you have in your possession. Attached to this letter is our Final Day Checklist for your completion and to assist you in the return of company property. Please return this form along with your company items.
If you do not wish for this exchange of property to take place as suggested, you are welcome to nominate another time, date, or location (which is not a LifeFlight workplace) and I will make the necessary arrangements.
Finally, I wish to convey that a decision to dismiss an employee is never taken lightly. We value our workforce and the skills and expertise pilots such as yourself bring to the organisation. I wish to express – and I hope you will believe that this is offered sincerely – my best wishes to you for your future endeavours, and thank you for the positive contributions you have made to the organisation.
Should you wish to avail yourself of LifeFlight’s EAP, this service will continue to be made available to you.
Yours sincerely
Scott Kessell
Director, Human Resources, Commercial Projects & External Relations
LifeFlight Australia”
[59] The Respondent submitted that the Applicant was dismissed for the following reasons:
(a) failing to obey LifeFlight’s lawful and reasonable directions as to the Applicant’s future conduct as detailed in the Warning letter; and
(b) breach of LifeFlight’s Code of Conduct and Bullying and Harassment policies.
[60] The Respondent cited the decision in Slater v Patrick Port Logistics Pty Ltd, 4 regarding the question of ‘validity’. It submitted that in that case, the applicant displayed aggressive, intimidating and abusive conduct towards supervisors, and was warned prior to dismissal that continued behaviour of this type would likely lead to termination. The Respondent submitted that in the present case, the Applicant has similarly disregarded the Warning of the Respondent to communicate in a productive, professional and respectful manner.
[61] The Respondent submitted that failure to follow a lawful and reasonable direction has long been held to be a valid reason for dismissal. 5 It submitted that the Applicant failed to follow its directions, without reasonable cause, by responding to the Warning and perpetrating the same types of behaviour in breach of the Respondent’s direction to modify his manner and the appropriateness of his communication. The Respondent therefore submitted there was a valid reason for the dismissal.
[62] The Respondent submitted that the dismissal related to the Applicant’s unsatisfactory conduct and not his performance. It noted the Applicant was warned about his misconduct on 28 December 2020, and put on notice that repeated conduct of that nature may result in dismissal.
[63] The Respondent submitted that the Applicant was afforded procedural fairness, and there were no procedural flaws in the process followed.
Response to ‘ancillary’ workplace issues raised by the Applicant
[64] As to the other matters raised by the Applicant, the Respondent submitted these workplace issues are not relevant to these proceedings as they did not form part of the reason for the Applicant’s dismissal.
[65] For the sake of completeness however, the Respondent responded to the workplace issues in summary as follows.
22 February 2019 mission
[66] The Applicant lodged an Operational Occurrence Report (OOR) in relation to criticism he received from Mr Gladwin and Mr Trimmer following the 22 February 2019 mission, seeking clarity in relation to operational control and reporting lines. The Respondent provided a response by issuing a clarification bulletin in relation to the matters raised by the Applicant.
[67] The Respondent submitted that the bulletin did not support the Applicant’s position on the matter. The Respondent submitted that while it clarified reporting lines, it also confirmed the right of check and training staff (including Mr Gladwin and Mr Trimmer) to question certain decisions made by pilots.
Bullying allegations
[68] The Respondent submitted that it took all reasonable steps to address the bullying allegations made by the Applicant, including conducting an independent workplace investigation. It submitted that following two failed mediations and the external independent investigation failing to substantiate the Applicant’s allegations, the Applicant made his application to the Commission for an order to stop bullying.
[69] The Respondent submitted that at no time, either as a result of the investigation or the application to the Commission, were any findings made which substantiated the Applicant’s allegations of workplace bullying. The Respondent agreed there had been workplace conflict as a result of the OOR, however there was no finding of ‘severe bullying’ as claimed by the Applicant.
[70] The Respondent submitted further that neither Mr Trimmer or Mr Gladwin were ‘forced to resign’ and that the bullying application was not withdrawn by the Applicant because of the ‘departure of the bullies’. The Respondent noted Mr Trimmer remained employed post the Applicant’s dismissal and was instrumental in the repair of his relationship with the Applicant, which led to the Applicant’s antibullying application being withdrawn from the Commission.
The CASA Report
[71] The Respondent submitted that the CASA Report was not made by the Respondent. The Respondent submitted that the Applicant had initially confirmed that the Respondent had no involvement in the report and has since sought to claim the report was a ‘below-the-belt hit by the Respondent’. The Respondent submitted this is false.
[72] The Respondent submitted that it took all possible steps to confirm the identity of the person who made the report, with the intent of taking appropriate disciplinary action if the report was established to be made vexatiously. This included an FOI request to CASA, which was declined, and seeking further information from the Applicant. The Respondent conceded that it is more probable than not that the CASA Report was made by Mr Gladwin.
[73] The Respondent submitted that the Applicant underwent medical tests and examinations of his own accord, to demonstrate his fitness to fly. The Respondent submitted these tests were not required by CASA or the Respondent and no flying restrictions were placed on the Applicant. The Applicant was deemed fit to fly by CASA.
[74] As to the Applicant losing his single-pilot status, the Respondent submitted that the Applicant lost his single-pilot CASA rating when his licence was erroneously altered due to an administrative error by CASA. It submitted the Applicant, by his own evidence:
(a) confirms that his removal from SP duties was ‘technically correct’; and that
(b) the removal of his SP rating was a result of an administrative error by CASA over which LifeFlight had no control.
[75] The Respondent submitted that it went to great effort on the Applicant’s behalf to have the error corrected. It submitted the Applicant was not singled out or targeted and that other pilots were subject to the same error and removed from single pilot operations.
Non-payment of shift allowance
[76] As to enquiries made by the Applicant in December 2020 regarding his entitlement to a shift allowance, the Respondent submitted the Applicant was not entitled to the allowance and was informed of this. The Respondent confirmed that the Applicant was at all times paid correctly and in accordance with the Agreement. It submitted his remuneration included all of the allowances the Applicant was entitled to receive, which did not include the shift allowance as sought by the Applicant. The Respondent submitted the Applicant was not targeted in this regard and that only a small number of pilots received the allowance, in specific circumstances.
The audit of sorties
[77] The Respondent submitted the Applicant was not targeted for an audit of his response times. It submitted these enquiries were routine, made of all pilots and were necessary to meet the Respondent’s contractual obligations to its clients.
Safety issues regarding fatigue management
[78] The Respondent submitted that it operates a strict, CASA approved FRMS.
[79] It submitted that in about October 2020, the Applicant raised concerns about fatigue management in relation to the ‘arduous and unsafe’ WP2 roster. The Respondent submitted that the Applicant had agreed to work that roster and did so for some time; however, when these safety concerns were raised, they were promptly addressed. The Respondent submitted that Mr Guthrie travelled to Toowoomba and met with the Applicant and other pilots to discuss the Applicant’s concerns and explain why the matters were not in breach of the FRMS.
Involvement in Enterprise Agreement negotiations
[80] The Respondent submitted that it has been engaged in bargaining with the RW pilot cohort for more than two years and that the protracted negotiations have at times been robust and litigious.
[81] The Respondent submitted that on about 21 December 2020, the Applicant began communicating with the Respondent, holding himself out to be an elected AFAP employee representative, even though this was factually incorrect. The Respondent submitted that at that time, the RW pilot cohort were agitating for the payment of an annual retention bonus, which the Respondent refused to pay on the basis it was not an entitlement under the terms of the nominally expired Enterprise Agreement. The Respondent submitted that the Applicant in particular ‘perpetuated’ the view that the Respondent was acting unlawfully in not paying the bonus, which caused trust and relationship issues between the pilots and the Respondent during the negotiations.
[82] The Respondent submitted that in December 2020, it sought the assistance of the Commission to clarify the legality of withholding the retention bonus payment. It submitted that by the time the matter was listed for Conference in January 2021, the Applicant had been dismissed. The Respondent withdrew the application following a successful conciliation conference, where the AFAP agreed the retention bonus was not payable.
[138] In Goldberg v The Advice Spot[2020] FWC 2671,Deputy President Sams held:
“[112] I have taken into account the applicant’s period of service and her current limited prospects for future job opportunities as a consequence of the birth of her second child. These matters tell in favour of a finding of unfairness, based on harshness. The applicant was notified of her dismissal in an email from Mr Hill sent to her when she was on leave on 27 November 2019 (see [1] above). Not for the first time, have I had occasion to point out that informing an employee of their dismissal by phone, text or email, is an inappropriate means of conveying a decision, which has such serious ramifications for an employee. I consider it would only be in rare circumstances that a decision to dismiss an employee should not be conveyed in person. For example, it may be necessary where the employer believes a dismissed employee might be a threat to the safety of his/her employees, might pose a serious risk to Company property, or because the employee expressly did not want a ‘face to face’ meeting to hear the outcome of any disciplinary process. I agree with Commissioner Cambridge when he said in Knutson v Chesson Pty Ltd t/a Pay Per Click [2018] FWC 2080 at [47]:
‘[47] The employer provided notification of dismissal by email communication sent at 8.53pm on 6 November 2017. Notification of dismissal should not be made by email communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessary callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.’”
[139] It is not in dispute that the Applicant was terminated by email.
Conclusion
[140] In many respects the Applicant has had an unfortunate list of experiences in the workplace over the last two years. Coupled together, the Applicant is of the view that they amount to a vendetta from the Respondent to remove him from the workplace. I do not accept this proposition. I do not believe that Mr Kessell or the CEO were responsible for the anonymous report to CASA in relation to his mental health or the enquiry into the Applicant’sactions when he bravely saved the life of a citizen or the scenario which resulted in the Applicant losing his single-pilot rating. There is no evidence to suggest that these issues were nothing more than an unfortunate set of circumstances. To suggest otherwise would require more than a few managers to be involved in a conspiracy – which eventually led to two of the managers ceasing their employment. Such a scenario is implausible, however, I can understand how any employee with the characteristics of the Applicant could convince himself of such a conspiracy.
[141] There is no doubt that an employee is obligated to follow a reasonable and lawful instruction from their employer. The Applicant believes that he complied with the direction of the CEO. The Applicant does not believe that his correspondence to the Respondent was in breach of the Respondent’s Code of Conduct or Bullying Policy. In accordance with the Bullying Policy, bullying is described as repeated behaviour, which is described as an ‘established pattern’ which may involve a series of diverse incidents. Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, intimidating or threatening. Mr Kessell reached the conclusion that the Applicant was bullying him based on the correspondence of 19 and 21 December 2020. In my opinion, Mr Kessell arrived at this conclusion a little too hastily. To issue a first and final warning without any discussion with the Applicant is premature. I find that the Applicant’s behaviour could not be described as either repeated or unreasonable.
[142] During the proceedings, I put to Mr Kessell that on the evidence adduced at the Hearing, it was not uncommon for the Applicant to have written and spoken in the manner which Mr Kessell had deemed inappropriate. I asked Mr Kessell, if the Applicant had spoken and behaved in such a manner throughout the course of his employment, why had there been a sudden change of response from the company. Mr Kessell’s evidence was as follows:
“Commissioner, this is the first time I've seen Mr Woods put something like this in writing. You've heard over the last few days around other people commenting on his behaviour, it seems, and their interactions with him, but this is - to me, this is the first time he's put something - anything like that in writing and I found it offensive.” 19
[143] I have closely examined the correspondence from the Applicant to Mr van de Velde on 30 December 2020. There is no adverse or inappropriate language in this correspondence. I find that the Applicant has complied with the direction of Mr van de Velde in this regard. I find that there is no breach of the Respondent’s Code or Policy in the wording contained in this correspondence.
[144] I have closely examined the correspondence from the Applicant to Mr Kessell on 30 December 2020. The Applicant wished Mr Kessell and his family a Happy New Year and included a throw away, half humorous challenge, including a keypad smiley face. I do not accept that this sentence could in any way be identified as bullying, harassment or a breach of the Code or Policy. I also do not regard this sentence as a breach of the direction given to the Applicant by the CEO. If Mr Kessell took offence at this email, then his response belies his alleged experience in industrial relations.
[145] I accept the evidence of a number of witnesses that the Applicant is very arrogant and very confident in his own ability. These traits may be beneficial in a helicopter pilot in the Applicant’s current role and undoubtedly in his former role in the armed services. However, arrogance is not a personality trait that is illegal, even though it may be offensive. After previously working for 6 years in the electrical distribution industry and 24 years as a union official, I do not find the Applicant’s emails on 19 and 21 December 2020 to be offensive or inappropriate at all.
[146] They show that the Applicant is opinionated, in some cases without cause. To put it bluntly, whilst trying to be appropriate, the Applicant is clearly a smart alec.
[147] I find that the Respondent was obligated to consult with the Applicant in relation to the issuing of a JED in accordance with the Act. I find that the Act requires consultation to be in accordance with the definition identified above, ie, a conference for discussion. Consultation does not mean that the parties need to reach an agreement on the subject matter, it simply means that there has to be a discussion. An employer then must consider the views of the employee or their representative before making their decision. It is not possible to have proper or appropriate consultation, except in extremely rare circumstances, by correspondence. Mr Kessell’s excuse that he did not meet with the Applicant to discuss the JED because the Toowoomba Base is a 90-minute drive from Brisbane is not an acceptable reason. The Respondent had an obligation to explain this new legislation, upon which it was seeking to force the Applicant to continue to work the WP2 roster, to him in a meeting. If that was impossible due to operational reasons, then this meeting could have been conducted via a Teams conference or by a telephone call. I note that Alexander Bell patented the telephone in 1876.
[148] It is possible that a face to face meeting, where Mr Kessell or Mr Guthrie explained the reason that the Respondent needed the Applicant to remain on WP2, may have resulted in the Applicant agreeing to perform the role for a further two months. There may also have been the capacity to explore further options at this meeting. The Respondent was the recipient of a large amount of JobKeeper funding. There may have been pilots receiving JobKeeper payments and not working full time, who could have assisted in covering the WP2 shifts by way of a JED. Further, discussions in relation to Mr Guthrie’s recommendation to use two other pilots could have also been beneficial.
[149] No discussion occurred, therefore no ‘Intention to issue a JED’ could occur. On this basis, the Applicant received his first and final warning on a document that was issued in contravention to the Act by the Respondent. As a result, it would be unfair to the Applicant if the Respondent was able to rely on this warning in identifying a valid reason for the Applicant’s termination.
[150] I am also of the view that the Respondent has breached its Code. I agree with the comments of Cambridge C, which were endorsed by Sams DP, that notifying an employee of their termination by email was callous. It is certainly not conduct which could be identified as ‘productive, professional and respectful’.
[151] Further, this principle can be extrapolated to the ongoing operation of the HR Department. In my view, the Applicant’s description of the HR Department engaging in Neanderthal practices is nothing more than an exacerbated and frustrated employees’ complaint. The Respondent submitted that its relationship with the unions was robust and conflict based. The fact that the Agreement expired more than 12 months ago and has been under negotiation for that period of time brings into context the industrial relationship. At a time when organisations are utilising the New Approaches provisions of the Act, the Respondent refuses to meet the Applicant in relation to his disciplinary issues. To suggest that a 90-minute drive was too far when you are discussing an employee’s livelihood and future, whilst utilising a rarely known and brand-new provision of the Act, is unsatisfactory.
[152] Whilst the Commission is not bound by the strict rules of evidence, it was not open to the Respondent to have the views of the CEO relayed by Mr Kessell. If the CEO felt that the Applicant was in breach of the Respondent’s Code and Policy, or that he had failed to follow his legal and reasonable direction, then the CEO was obligated to make himself available for cross-examination by the Applicant.
[153] I am also of the view that the Applicant’s correspondence was toned down after he received his warning. His email to Mr Kessell was an attempt at humour with a genuine gesture wishing Mr Kessell and his family a Happy New Year. It was up to Mr Kessell if he accepted this greeting, as it was for the Applicant when Mr Kessell wished him “sincere best wishes for his future endeavours” and “thanked him for his positive contribution to the Respondent” in his termination letter.
[154] I am not convinced that Mr Kessell is a witness of credit for the following reasons:
a) Mr Kessell’s memory is obviously quite poor. I do not accept that a HR Manager with 30 years’ experience who had to interrupt his holidays to issue a JED to an employee who he then dismissed some two weeks later, would not remember issuing the JED. Further, it is not in dispute that this is the only JED that Mr Kessell has issued in his career.
b) Mr Kessell changed his evidence under cross-examination in relation to the offending comments by the Applicant in his correspondence of 19 and 21 December 2020. Mr Kessell testified that he was offended by each of the 22 comments that he identified in Annexure A of the First and Final Warning letter, when asked to explain why he was offended by a particular comment he changed his evidence to say that the offending comments had to be taken as a whole.
c) Mr Kessell dismissed the Applicant based on his correspondence of 30 December 2020. I do not accept that a reasonable person, or a person who is not under mental stress or fatigue, would be offended by the following:
“Really Mr Kessell,
A FaF for tone... That won't only lose at Fair Work it will be laughed out of Chambers... Surely you can do better than that ;)
But in all seriousness, Happy New Year to you and your loved ones.. I am looking forward to a fantastic 2021...”
[155] Finally, the lack of consultation throughout the disciplinary process renders the process undertaken by the Respondent as invalid. It is procedurally unfair for there to be absolutely no verbal communication between an employer and an employee in such a situation. Every successful relationship has good communication, conversely, poor communication between the parties invariably leads to a detrimental and deficient process as has occurred in this circumstance.
[156] For the reasons identified above, I find that that Respondent did not have a valid reason to terminate the Applicant. Without a valid reason, any dismissal must be harsh and unfair.
[157] I find that the Applicant was unfairly dismissed.
Remedy
[158] The relevant provisions of the Act state:
“Section 390
When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[159] The Applicant seeks to be reinstated to his former role.
[160] It is not in dispute that reinstatement is the primary remedy in the Act. In my view the Commission must, where possible, comply with the preference of the Parliament in determining an appropriate remedy.
[161] In this circumstance, however, I am not convinced that reinstatement is appropriate. It is clear that the Applicant does not have a great deal of respect for the leadership of the Respondent. These feelings and attitude may be well founded based on the way that the Applicant has been treated, however, I am not confident that the parties can restore the level of trust required to re-establish a working relationship. It would not be fair to either the Applicant or the Respondent if every time the Applicant or Respondent sought to raise a workplace issue that the parties would then need to contemplate questions associated with bullying, prejudice or managerial prerogative. An employment relationship cannot be sustained if there is no confidence or trust on either side in relation to the bona fides of a particular action of the other party.
[162] I have taken particular notice of the evidence of Mr Donaldson on this issue. I regard Mr Donaldson to be a witness of credit and prefer his opinion above all others on this issue. Relevantly, Mr Donaldson testified:
“My view – as I've put in my statement at paragraphs 92 to 94, my view about Mr Woods being reinstated to the workplace is that I believe it would really only be a matter of time before Mr Woods found himself in conflict with other employees, whether at the base or elsewhere, and through that, probably through an escalation, then also found himself in conflict with management again as well.
And I say that because it's apparent to me that there is – through my dealings with Mr Woods over the last couple of years, there's a very fairly consistent theme of that. And I guess the other, more significant concern that I have is the impact that that has on employees at the base, and then what happens in the aircraft on operations as well. I think Mr Woods, as I said, has a very dominant personality. He has a very strong sense of his own – what's the word – superiority. That may be a bit of a – superiority, I guess.
And I – I believe that if Mr Woods was reinstated, then he would come back to the workplace with an even stronger sense of that, and he would continually push back on virtually any decision or direction that he didn't like. And probably of more concern, I think, that other employees that worked with him, particularly working with him in the aviation environment, I think that other employees would find themselves even less likely to challenge him on any particular matters.
And when it comes to operations in the aircraft, that's of particular concern to me. I think it would leave people like our chief pilot and other managers in Mr Woods' line of management, right up to the CEO, who is accountable for our aviation operations, I think it would leave them in a very difficult position. We're directed to re-employ Mr Woods in a pilot role.
But those people – and of course they speak for themselves on this, but I can't see how they would have any degree of confidence and trust that Mr Woods was making appropriate decisions in what is a fairly unsupervised environment for an aircraft captain. And I also think they wouldn't have a great deal of confidence that the other crew members that he's working with would feel in any way that they were empowered to raise their concerns with him.” 20
[163] There is no utility in ordering the Applicant’s reinstatement if the employment relationship has irretrievably broken down and the Applicant’s future termination is all but guaranteed.
[164] I find that reinstatement is not the appropriate remedy on the basis that the trust and confidence required for an employment relationship to exist cannot be re-established in this circumstance.
[165] In relation to calculating the appropriate quantum of compensation to be awarded to the Applicant, the Commission is required to take a number of matters into account in accordance with section 392(2) of the Act (see above).
[166] I am satisfied that although the Respondent is partially funded by charitable donations, it has the financial resources to pay the Applicant the compensation that I have determined.
[167] The Applicant was employed by the Respondent for 5 years during which time the Applicant proved to be an exceptional pilot who was prepared to work flexibly to assist the Respondent and his colleagues.
[168] The Applicant’s annual salary was $158,217.90 (incl. superannuation) per annum.
[169] The Applicant advised that he was unable to find alternate employment as a helicopter pilot in the area that he resides.
[170] The Applicant advised that he has continued to run his small business
[171] Whilst the Applicant was dismissed for misconduct, I have found that this conduct did not occur.
[172] The compensation that I have ordered does not include a payment for shock, distress or humiliation.
[173] The compensation that I have ordered is not in excess of half of the Applicant’s annual salary or half of the high-income threshold under the Act.
[174] In following the formula in Sprigg v Paul’s Licensed Festival Supermarket (the Sprigg Formula), 21 as refined in Ellawalla v Australian Postal Corporation,22 I am required to make an assessment as to how long the Applicant would have remained as an employee if he had not been dismissed. Whilst I was highly critical of the Respondent’s lack of consultation throughout the entire disciplinary process, based on the Applicant not accepting the advice of Mr Guthrie after a three step consultation process over the Applicant’s safety concerns, I am not convinced that the Applicant would not have continued to agitate and push back against management. At some point in the future, this would have resulted in the Applicant either being insubordinate or refusing to follow a reasonable and lawful direction. I believe that this timeframe would have been 4 months.
[175] I have allowed for an amount of 10% for contingencies. Since his dismissal, the Applicant would have had more time to spend on his small business thereby increasing his earning capacity from that business.
[176] This final amount is to be taxed as an Eligible Termination Payment, which is currently 32 cents in every dollar (32%).
[177] The Respondent will also be required to pay the Applicant the relevant Superannuation Guarantee Levy on this amount.
[178] Calculation:
4 months’ pay ($142,396.11 x 0.333) = $47,465.37
Less 10% contingencies = $42,718.83
Less ETP tax @32% = $29,048.80
Plus superannuation - $4,271.88
[179] The Respondent is ordered to pay to the Applicant $29,048.80 and $4,271.88 into the Applicant’s nominated superannuation account within 21 days of this decision.
[180] I so Order.
COMMISSIONER
Appearances:
Ms Conte-Mills of Counsel for the Applicant.
Ms Gibb of MinterEllison for the Respondent.
Hearing details:
17 and 18 June.
20 August.
2021.
Printed by authority of the Commonwealth Government Printer
<PR733466>
1 Witness Statement of Mr Kessell at Annexure SK-13.
2 Transcript at PN1407 – 1409.
3 [2012] FWA 7828.
4 (2012) 225 IR 362.
5 Grant v BHP Coal Pty Ltd[2014] FWCFB 3027.
6 Witness Statement of Mr Woods at [11].
7 [2011] FWAFB 5944.
8 Ibid at [4].
9 (1995) 185 CLR 410, 465-7.
10 (1998) 84 IR 1, 10.
11 (1995) 62 IR 371.
12 Rode v Burwood Mitsubishi Print R4471.
13 Qantas Airways Ltd v Cornwall (1998) 84 FCR 483.
14 Transcript at PN1441, 1442 and 1449.
15 (2012) 225 IR 362.
16 Kane and McMillan v Goodyear and Dunlop Tyres (Australia) Pty Ltd[2010] FWA 4858.
17 Transcript at PN1380 – 1393.
18 Transcript at PN1394 – 1407.
19 Transcript at PN1471.
20 Transcript at PN1114 – 1118.
21 (1998) 88 IR 21.
22 Print S5109.
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