Paul Andrew Micheletti v PHI (International) Australia Pty Ltd - [2025] FWC 2348

[2025] FWC 2348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paul Andrew Micheletti
v

PHI (International) Australia Pty Ltd

(U2024/12597)

COMMISSIONER SLOAN

SYDNEY, 13 AUGUST 2025

Application for an unfair dismissal remedy

Paul Micheletti is a helicopter pilot. He was employed by PHI International Australia Pty Limited, initially on a casual basis and then full-time, from 5 July 2021 until 30 September 2024. On the latter date, PHI terminated his employment on the basis that his position had become redundant.

On 18 October 2024, Mr Micheletti commenced these proceedings by filing an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009[1] (“Application”). He seeks to be reinstated to his position with PHI, with orders providing for continuity of service and backpay.

PHI opposes the Application. It contends in the first place that Mr Micheletti’s dismissal was a genuine redundancy within the meaning of section 389, with the result that it could not by virtue of section 385(d) have been an “unfair dismissal”. On that basis, it has raised a jurisdictional objection to the Application. In the alternative, if the Commission dismisses its objection, PHI denies that the dismissal was harsh, unjust or unreasonable.

Determination

I have determined to uphold PHI’s jurisdictional objection. I find that Mr Micheletti’s dismissal was a case of genuine redundancy. These are my reasons.

Relevant law and principles

Section 385 provides:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Under section 396, the Commission must decide the following matters before considering the merits of the Application:

(1) whether the Application was made within the period required in subsection 394(2);

(2) whether Mr Micheletti was protected from unfair dismissal within the meaning of section 382;

(3) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(4) whether the dismissal was a case of genuine redundancy.

There was no controversy that Mr Micheletti was dismissed with effect from 30 September 2024. He commenced these proceedings on 18 October 2024. That is within the 21 day time limit imposed by section 394(2). There was no dispute, and I find, that Mr Micheletti was a person protected from unfair dismissal within the meaning of section 382. PHI is not a small business employer and so the Small Business Fair Dismissal Code has no application. The question that remains for determination is whether the dismissal was a case of genuine redundancy.

The term “genuine redundancy” is defined in section 389. As it is central to my decision, I will reproduce the terms of the section in full:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

Having regard to the terms of section 389, to uphold PHI’s jurisdictional objection I would be required to make three findings:

(1) As at 30 September 2024, PHI no longer required Mr Micheletti’s job to be performed by anyone because of changes in the operational requirements of its enterprise.

(2) PHI complied with any obligation in the applicable enterprise agreement to consult about the redundancy. In this case, that was the PHI International Australia Broome and Truscott Helicopter Pilots Enterprise Agreement 2021 (“Enterprise Agreement”).

(3) It would not have been reasonable in the circumstances for Mr Micheletti to be redeployed within PHI’s enterprise or that of one of its associated entities.

For the following reasons, I have determined to make each of those findings.

Observations on the evidence

Mr Micheletti’s evidence was contained in two statements.[2] He also relied on a statement of Jared Marks, a Senior Legal and Industrial Officer of the Australian Federation of Air Pilots (“AFAP”).[3] PHI relied on a statement of Tim Hartley, PHI’s Head of Flight Operations (Chief Pilot) – Australia.[4] All of the witnesses were cross-examined. For completeness, I observe that each party tendered a single additional document into evidence during the course of the proceedings.

The statements on which the parties relied contained a large amount of detail regarding events from 2023 and throughout 2024. I will only traverse that evidence to the extent necessary to explain the findings and determination that I have made.

Before doing so, I make several observations on the evidence. In closing oral submissions, PHI submitted:[5]

“Can I turn then to deal with some general remarks about the evidence. In my submission, you can accept all of the witnesses as honest. Not all of the evidence that you heard, Commissioner, was particularly impressive, but none of the witnesses, in my submission, set out to deceive you or give false or misleading evidence, and there’s no basis, in my submission, to make any finding that any witness misled or gave false evidence to this Commission.”

From my observations of the witnesses during their oral testimony, I accept those submissions. However, I also accept PHI’s submission that Mr Micheletti’s evidence was coloured by his strong view that the redundancy was, in effect, a smokescreen to hide PHI’s true motivations. For instance, Mr Micheletti accepted under cross-examination that some parts of his written evidence had been included to support an argument that PHI was out to get him as a result of him having brought an underpayment claim against it. He conceded, though, that his evidence in this regard was “not entirely accurate”.[6]

For these reasons, I approach Mr Micheletti’s evidence with some caution. Again, and I emphasise, that is not to suggest that he had any intention to mislead the Commission. It is simply that there was a strong sense of argument in his written evidence, and to some extent in the answers he gave under cross-examination, beyond being simple statements of fact. There is reason to question whether his recollection is coloured by his apparent sense of grievance as to how he considers he was treated by PHI.

I place significant reliance on the documents that the parties tendered with and in addition to their witness statements. They provide a surer and more contemporaneous means by which to assess the witnesses’ testimony. Where there was a conflict in the testimony of Mr Micheletti and Mr Hartley, I found Mr Hartley to be the more persuasive witness.

The relevant factual context

PHI’s business and fleet

PHI provides offshore helicopter services, including passenger air transport operations, medevac and search and rescue services, and aviation support services to the oil and gas industry. The majority of PHI’s work is performed for clients in the offshore oil and gas sector. That work predominantly involves the transportation of workers to and from offshore oil and gas platforms.

PHI’s clients determine the number of helicopter pilots that PHI must allocate to their contracts (the “crewing requirement”) and the type of helicopter that PHI must use. The contracts that PHI has with its clients allow for them to adjust the crewing requirement on notice. Mr Hartley stated that such adjustments are a common occurrence, with the industry being highly dynamic and client requirements changing often.

PHI operates, or has operated, a number of helicopter types. These include:

(1) AgustaWestland AW139 (“AW139”);

(2) AgustaWestland AW109 (“AW109”);

(3) Airbus H175 (“H175”); and

(4) Sikorsky S92A (“S92”).

Pilot qualifications

To be permitted to fly a helicopter type, a pilot must hold a “type-rating” for that particular aircraft. A type-rating allows a pilot to operate only the aircraft specified by that type-rating.

Mr Hartley stated that PHI would in the normal course recruit pilots who hold the type-rating for the specific helicopter type required by a client’s contract. However, where reasonable and practical, PHI would pay for training for existing employees to obtain new type-ratings in order to meet operational requirements. This comes at a considerable cost to PHI, including the cost of backfilling positions while pilots undertake the training.

Type-rating training involves two components. The first is known as “ground school”, which is the theoretical, class-based component of the training. It can be completed in person or via Microsoft Teams. It includes a flight instructor (known as a training captain) teaching student pilots about the aircraft type’s specific design characteristics and systems, before the pilots sit a written exam.

The second component of the training is simulator (or “sim”) training. Mr Hartley described this as “the main component of type-rating training” which “is designed to teach pilots the fundamentals of a particular helicopter type, including its handling characteristics and operating systems whilst providing the opportunity for the pilot to practice emergency procedures when certain systems fail”.[7] Simulator training for PHI’s pilots is conducted in the United Kingdom or Europe.

Mr Hartley stated that it takes approximately 13 weeks for a pilot to be type-rated to a helicopter type. During this period, the pilot is paid their salary and a daily travel allowance if they are travelling to undertake the training. If the pilot is already a part of PHI’s workforce, PHI also bears the cost of backfilling their position while the pilot completes the training. In addition to those costs, Mr Hartley estimated that the cost to PHI of type-rating training was $110,000 per pilot.

Micheletti’s employment with PHI

Mr Micheletti’s employment with PHI commenced on 5 July 2021. He was employed initially on a casual basis as a Captain in PHI’s Marine Pilot Transfer operations in Karratha in Western Australia.

In a letter dated 5 September 2022, PHI offered Mr Micheletti “a transfer of employment…to the permanent, full-time position of Captain at our Broome base”.[8] The letter proposed a commencement date of 22 October 2022, although PHI would recognise Mr Micheletti’s start date of 5 July 2021 “for the purpose of continuous service”. Mr Micheletti accepted that offer.

As a Captain at Broome, Mr Micheletti was working on a contract between PHI and one of its clients, INPEX. He was flying an AW139 helicopter. He worked on an even-time roster, with 21 days on duty (or “on tour”) followed by 21 days off.

Changes in PHI’s operations[9]

In June 2023, PHI was notified that it had not been successful with retaining a marine pilot transfer contract in Karratha and that the contract would end in April 2024. This affected 19 pilots who were then employed by PHI on that contract, all of whom were type-rated on the AW109 aircraft.

As at January 2024, PHI’s agreement with INPEX required it to have six S92 crews and two AW139 crews available on base in Broome seven days per week. On or about 10 January 2024, INPEX informally advised PHI that it intended to remove the AW139 aircraft from the Broome contract in the coming months. INPEX also informed PHI that it intended to replace one of the S92s and replace it with an H175 aircraft, although it planned to keep all six S92 crews on contract until the H175 was introduced. As a result, PHI would need to bridge the training gap with additional S92 pilots whilst it type-rated the H175 pilots.

At the same time, INPEX advised PHI advised that it intended to complete a short-term drilling campaign (approximately three to four months) in Darwin in 2024. That contract coincided with two additional short term contracts PHI was negotiating with ENI in Darwin at the time. All three of the Darwin contracts would require two and a half flight crews on base to achieve the scope of work. The end date for the last ENI drilling campaign was programmed for late November to early December 2024.

Attempt to obtain type-rating for S92 aircraft for Micheletti

As a result of these changes, PHI determined to arrange for pilots who had been flying AW139s, including Mr Micheletti, to undergo training to be type-rated for S92s.

Mr Micheletti completed the ground school component of the training via Microsoft Teams in mid-January 2024. Arrangements were made for him to attend simulator training in the United Kingdom in March 2024. However, the Training Captain scheduled to conduct the course had a family emergency, resulting in the course being cancelled on 27 January 2024.

On 29 February 2024, Karly Kepert, PHI’s Flight Operations Coordinator, sent an email to Mr Micheletti which stated in part:[10]

“Have had numerous chats with the trainers and we’re going to have to move your type rating to the right. Between the fact you’re one of the most current 139 drivers and the potential fallout of the S92 ditching last night, we’re going to need your experience on the 139 for another couple of months.”

Ms Kepert’s email went on to propose dates in May and June 2024 during which Mr Micheletti could undertake the simulator training for the S92.

Mr Micheletti sent an email to Ms Kepert on 3 April 2024, asking whether she had “hatched a plan” regarding his simulator training.[11] Ms Kepert sent an email to Mr Micheletti in reply on 12 April 2024, which stated in part:[12]

“Apologies for the delay on reply to this email, I’m losing track of everything at the moment. As the H175 commencement slides to the right, as does the continuation of the AW139 on contract. Current plans will see you stay on the 139 until the end of contract. We’ll work everything around your dates below.”

In the meantime, on 8 April 2024, Mr Micheletti had suffered an injury to his bicep while surfing. That necessitated him having to undergo surgery. He was not cleared fit to return to work until 15 August 2024.

Further changes in PHI’s operations[13]

On 22 March 2024, INPEX “formally notified”[14] PHI of three matters. First, that it would be releasing the AW139 from service in July 2024 and releasing one of the two AW139 flight crews (four pilots in total) effective immediately. Second, that it would be replacing one S92 in Broome with one H175 aircraft. INPEX notified PHI that it intended to keep all six S92 crews on contract until the H175 was introduced and at that point it would be releasing two S92 crews and replacing them with two H175 crews. Third, that it would be committing to its drilling campaign in Darwin once ENI had finished with the drill rig. This was forecast to start in July 2024.

In April 2024, PHI sent six pilots to France to undertake H175 type-rating training. This group was made up of pilots coming off the AW109 contract in Karratha, pilots coming off the AW139 contract in Broome, and pilots on S92 contracts.

In early May 2024, ENI notified PHI that it intended to mobilise the Darwin contract with a start date of 17 May 2024. PHI transferred both existing S92 pilots and newly type-rated S92 pilots to Darwin to work on that contract.

In early June 2024, PHI sent the second group of six pilots to France to start their H175 type-rating training.

Also in early June 2024, three S92 pilots gave notice to PHI of their resignations. PHI placed expressions of interest on Seek looking for S92 pilots. After a recruitment process, PHI offered four pilots positions flying S92s, with the first two starting early July 2024 and the second two starting at the end of July 2024. Those recruits had to receive, and were provided with, training to have them type-rated to S92 aircraft. This included simulator training in August and September 2024.

In early July 2024, on the completion of ENI’s first drilling campaign, INPEX started its drilling campaign in Darwin. It was expected to last for 80 to 90 days, before INPEX handed the service back to ENI for its second drilling campaign. By that stage, the end date of ENI’s second campaign had been pushed back to January 2025.

At the time, PHI was in negotiations with two other clients who were looking to take over the drill rig once ENI finished its second drilling campaign. Had this work been obtained, PHI anticipated that its Darwin operation would continue to operate until July or August 2025. However, it was informed in August 2024 that the clients had decided not to take over the drill rig. As a result, PHI anticipated that it would have to close the Darwin operation at the end of the ENI campaign.

In early August 2024, PHI was notified by Woodside that it intended to drop one S92 and its one flight crew (four pilots) from its contract in Exmouth on 31 December 2024.

Mr Hartley stated:[15]

“Because of the above developments, by mid-August 2024 PHI anticipated that it may have a surplus of S92 pilots and that without the award of more work may need to make some pilots redundant in December 2024 or January 2025. This is despite just recently employing some new pilots and type-rating them onto the S92.”

Events culminating in Micheletti’s dismissal

Mr Micheletti’s Designated Aviation Medical Officer (“DAME”) declared him fit to return to work on 15 August 2024.

On 27 August 2024, Mr Micheletti had a conversation with Mr Hartley, during which:

(1) Mr Hartley advised Mr Micheletti that the AW139 aircraft type he was employed to fly was no longer on contract at any of PHI’s Australian operating bases and that PHI did not operate any other aircraft types in Australia he was type-rated on. (In his statement in reply, Mr Micheletti said that this did not come as news to him.)
(2) Mr Hartley also stated that while Mr Micheletti had been off work, PHI had filled all vacant positions on the S92 and that following recent news from some of its clients, the company would potentially have a surplus of S92 pilots by the end of the year.
(3) There was a discussion regarding the possible redeployment of Mr Micheletti to a position in the Philippines. This is a matter to which I will return. For now, it suffices to say that Mr Micheletti told Mr Hartley that he was not interested in the option that Mr Hartley had proposed.

Mr Hartley stated that following this meeting, he explored alternatives to Mr Micheletti’s dismissal with Alexander Head, then PHI’s Senior Human Resources Business Partner. He gave the following evidence:[16]

“Mr Head and I considered the alternatives listed in clause 19.2.3 of the Broome EA and determined most were either not relevant or unavailable. Potential alternatives considered and the reasons why they would not work were the following – natural attrition, alternate duties and temporary or part time work were not available because Mr Micheletti did not hold a type-rating for roles that could become available, and in any event, at that stage I knew that PHI would have a surplus of pilots soon; leave and leave without pay was not viable because Mr Micheletti had just returned from an extended period of leave without pay and in any event, him taking more leave, of any type, at this stage would not have changed the fact that he did not hold a type-rating for any helicopter operated by PHI in Australia; early retirement was not discussed because Mr Micheletti indicated he wanted to continue to work and did not at any stage say he wanted to explore the possibility of early retirement. Mr Head advised me that an alternative was to make an offer to Mr Micheletti to mutually agree to terminate his employment in exchange for payment of redundancy benefits and an ex-gratia amount, subject to signing a deed of settlement and release. Signing a deed would serve as a basis for making a payment to Mr Micheletti in circumstances where he was not entitled to severance pay. It would also provide legal assurance to PHI in respect of matters arising from the termination of Mr Micheletti’s employment.”

Mr Hartley arranged a Microsoft Teams meeting with Mr Micheletti and Mr Head on 4 September 2024. The effect of that meeting was that Mr Hartley proposed that PHI and Mr Micheletti agree on terms to bring the employment relationship to an end as opposed to PHI dismissing Mr Micheletti on the basis of redundancy. The terms that PHI proposed were contained in a Deed of Settlement and Release (“Deed”) that Mr Head sent to Mr Micheletti by email later on 4 September 2024. In his email, Mr Head stated:[17]

“Thank you for your time earlier. …

As discussed, as a result of the end of the contract requiring the 139 model, PHI no longer have a suitable position for you within Australia. PHI understands that in a discussion on Tuesday 27 August 2024, a position with PHI in the Philippines was discussed. During this conversation, you advised PHI that a position in the Philippines would not work for you.

Given this, PHI wishes to offer you the attached Deed of Settlement.”

Mr Micheletti and Mr Head exchanged several emails over the following week regarding the terms of the Deed. The Deed was also the subject of discussion at a meeting on 17 September 2024, between Mr Micheletti and Mr Marks (from the AFAP) on the one hand, and Mr Hartley and Mr Head for PHI.

Perhaps self-evidently, Mr Micheletti did not execute the Deed.

On 27 September 2024, PHI sent a letter to Mr Micheletti which included the following:[18]

“The purpose of this letter is to confirm the outcome of a recent review by PHI International Australia Pty Ltd (the Company or PHI) of its operational requirements, and what this means for you.

As a result of the change in operational requirements in our Australian Flight Operations due to the end of all contracts requiring AW139 helicopters, the position of Line Captain (AW139 type rated) is no longer needed. Regrettably, this means your employment will terminate. This decision is not a reflection on your performance.

…
As such, your employment will end on Monday, 30 September 2024.”

Why I have found the dismissal to have been a genuine redundancy

I have already outlined the three findings that I must make in order for Mr Micheletti’s dismissal to have been a genuine redundancy within the meaning of section 389. I will deal with them in turn.

PHI no longer required Micheletti’s job to be performed by anyone because of changes in the operational requirements of its enterprise

Micheletti’s job

The starting point is to identify Mr Micheletti’s job. He submitted that “the substance of work required under the relevant client contract did not change. The only change was the aircraft type used to perform that work.”[19] In closing oral submissions he contended:[20]

“Mr Micheletti’s job was a helicopter pilot. His classification was permanent full‑time captain, and we see all that from his letter of appointment. That means in order to meet the first element of section 389(1)(a), the respondent must no longer require the job of a helicopter pilot to be performed by anyone.”

PHI submitted:[21]

“It is correct that formally in his letter of offer…he is offered a position of helicopter pilot, but that’s not where it ends. That position of helicopter pilot was at Broome. It was tied to that position. And as a matter of fact he was employed to fly the AW139 aircraft, and that’s what he flew during the period of his employment. That was the job that he was to perform.

By August that job didn’t exist.”

I accept PHI’s submissions. I have referred above to the letter of 5 September 2022 that PHI sent to Mr Micheletti. It offered Mr Micheletti “a transfer of employment…to the permanent, full-time position of Captain at our Broome base”,[22] which he accepted. He was assigned to work on the contract that PHI had with INPEX, flying an AW139 aircraft. He was told that he would stay in that role as client requirements changed throughout 2024, as seen in Ms Kepert’s emails to Mr Micheletti of 19 February 2024 and 3 April 2024. His “job” was tied to that contract and location.

Further, as I will come to explore, one of the issues that arose in this case was whether a position that PHI offered to Mr Micheletti in the Philippines was on substantially similar terms and conditions to those he then enjoyed. In relation to the Philippines role, Mr Micheletti stated:

“In my view, there was no way this position was in any way commensurate with my position as a full time, permanent Line Captain with PHI under the Broome EA.” (Emphasis added)

The “Broome EA” is the Enterprise Agreement. This evidence suggests that Mr Micheletti also saw his position as being tied to Broome.

Changes in PHI’s operational requirements

As I have observed, Mr Hartley gave a considerable amount of evidence as to changes in client requirements and PHI’s operational needs in 2023 and 2024. His evidence revealed that there was significant uncertainty as to the numbers of pilots that PHI required over that period, and the type-ratings they had to hold, due to changes sought by clients to the aircraft used on their contracts or to the crew requirements on their contracts.

It was not in dispute that by August 2024, PHI had no AW139 positions in Australia. Mr Micheletti was not at that time type-rated to fly any other aircraft operated by PHI in Australia.

At the heart of Mr Micheletti’s case is the fact that, while he was convalescing, PHI recruited four new pilots and trained them to be type-rated for the S92 aircraft. He contended that PHI should have, but did not, arrange for him to attend simulator training following his anticipated return to work from injury in August 2024. Instead, it arranged for new recruits to undertake that training, as a result of which “he was replaced to have his job performed by someone else”.[23] There are two elements to Mr Micheletti’s arguments: first, the apparent incongruity between PHI hiring new pilots in reasonably close temporal proximity to his dismissal; and second, the failure by PHI to schedule him to attend simulator training in anticipation of his return to work.

The hiring of new recruits

At first glance, it does appear incongruous that PHI would hire new pilots in July 2024 and declare Mr Micheletti’s role redundant in September. For example, Mr Micheletti attended ground school between 15 and 19 July 2024.[24] He stated:[25]

“27. I attended this ground school with two new external pilot hires to PHI – Jason Davis and Liam Dumbrell. Jason was recruited on 10 July 2024 and did not hold either an AW139, EC175 or S92 rating. Liam was recruited on 17 July 2024 and did not hold an AW139, EC175 or S92 rating. Jason and Liam were subsequently placed ahead of me to undertake the S92 Simulator training in August 2024. I am aware of another pilot, whose name I cannot recall, who was also recruited as a Co-Pilot on 1 August also attended the S92 Simulator.

28. Further, I am aware that another Captain was hired on 2 September 2024. That might be Paul McKenna, but I cannot be certain.”

However, in response to that evidence, Mr Hartley stated:[26]

“107. Mr Davis was not recruited on 10 July 2024. The recruitment process for Mr Davis had commenced on or about 17 May 2024. 10 July 2024 is the date that Mr Davis’ employment with PHI commenced. Mr Davis was recruited to meet PHI’s operational requirements that existed at the time.

108. Mr Dumbrell was not recruited on 17 July 2024. The recruitment process had commenced on or about 09 July 2024. 17 July 2024 is the date that Mr Dumbrell’s employment with PHI commenced. Mr Dumbrell was recruited to meet PHI’s operational requirements that existed at the time.

…
110. Paul McKenna, referred to at paragraph 28, was an experienced S92 type-rated pilot who was employed by PHI to fly on the Darwin contract until the contract ended. …Mr McKenna had no expectation of ongoing work with PHI.”

Other than for Mr Micheletti describing that evidence as “false”,[27] Mr Hartley’s evidence was not challenged.

Similarly, Mr Micheletti stated:[28]

“37. I was surprised by Mr Hartley’s comment about possible layoffs given PHI had just hired four new pilots (who did not have relevant type ratings), had at least four contract (casual) pilots on the roster, and at least five pilots had recently resigned. The prospect of layoffs seemed highly unlikely.”

In response, Mr Hartley stated:[29]

“116. This statement at paragraph 37 about the pilots which PHI had available is incorrect. At that time (27 August 2024), PHI only had two casual pilots. These pilots were both already S92 type-rated and their services were only being utilised whilst PHI completed its H175 type rating training. The four pilots referred to in Mr Micheletti’s statement were hired in response to the five resignations. Recruitment for these roles commenced in June 2024.”

That evidence went unchallenged.

Mr Micheletti further stated:[30]

“43. As noted earlier in this statement, all AW139 rated pilots, except me, were provided with new type ratings, whether EC175 or S92 and transitioned accordingly, and all have continued their employment with PHI. Four new external hire pilots have been provided S92 type ratings after my medical was reinstated on 15 August 2024. Additionally, a further Co-Pilot was employed on 1 August 2024 and a Captain on 2 September 2024.

…
45. On 12 October 2024 I was made aware that PHI had engaged another casual/contract pilot in addition to the four other casual/contract pilots.”

In response, Mr Hartley stated:[31]

“118. Arrangements for the external hire of the four new pilots mentioned in paragraph 43 took place prior to August 2024 when PHI’s operational requirements dictated a need for additional pilots. While these pilots commenced their roles on 01 August 2024, their recruitment process has [sic] started months earlier and they were interviewed in or around early July 2024.

119. The captain that Mr Micheletti refers to was already S92 type-rated and was available for a few months of work. By 02 September 2024, PHI was aware it would have surplus permanent S92 positions and that redundancies may follow in December 2024 and January 2025.

…
121. As to paragraph 45, a previous full time PHI employee was employed on or around mid-October 2024, however he was an experienced S92 type-rated pilot who was employed on a casual basis for a maximum of three weeks while other PHI pilots were undertaking 175 type rating training.”

Once again, that evidence was not challenged, other than Mr Micheletti commenting that paragraph 118 of Mr Hartley’s statement was “incomprehensible”.[32]

I note that Mr Micheletti accepted under cross-examination that Mr Hartley would be in a better position than him to know “when a particular person was employed or how many pilots of a certain type rating were available on a certain date”.[33]

PHI’s failure to anticipate Micheletti’s return or reserve a position for him

Mr Micheletti injured himself on 8 April 2024. Two days later he sent an email to Mr Hartley and others in which he advised that he was undergoing surgery the next day, after which he would require a minimum of 16 weeks post-operative care. He stated that four to six months absence was as accurate an estimate as he could give at that time.[34]

In an email to PHI on 9 May 2024, Mr Micheletti stated: “DAME advises earliest return to work end of August”.[35] In an email to Ms Kepert of 5 July 2024, Mr Micheletti stated: “My DAME wants to see me Aug 15th where he expects he will be able to reinstate my Aviation Medical being 18 weeks post operative.”[36] In a further email to Ms Kepert of 15 July 2024, Mr Micheletti stated that his DAME had “advised that he will reinstate my medical when I next see him August 15^th”.[37]

As I have already observed, Mr Micheletti received his clearance to return to work on 15 August 2024.

Mr Micheletti raised two arguments regarding his absence. First, he contended that from about six weeks into his recovery he was physically able to undertake ground school and simulator training. He gave evidence of the recreational and other activities that he was then able to engage in, to demonstrate his fitness. He submitted:[38]

“13. On PHI’s case, no steps were required until Mr Micheletti presented a full clearance from his DAME and CASA. This is unreasonable, and prejudicial. Here the principles in s 5 of the Disability Discrimination Act 1992 (Cth) provide guidance on what an employee recovering from an injury (defined as a loss of bodily function) could reasonably expect from their employer. It says that it is discrimination if an employer does not make reasonable adjustments for a person with a disability, treating them less favourably than a person without the disability in similar circumstances. Section 15 further elaborates that it is unlawful for an employer to discriminate against an employee based on their disability in terms of employment conditions, access to benefits, or by dismissing the employee.

14. Overlaying those principles on to the present case, it was incumbent upon PHI to not treat Mr Micheletti less favourably than other employees (such as the new recruits) during his transition back to work. PHI could have progressed Mr Micheletti through any classroom-based ground school and simulator training while he was recovering from his injury. Doing so obviously would not have impeded his recovery.”

Those submissions are misguided. The medical certificates that Mr Micheletti provided to PHI described him as being “unfit for work” from 11 April 2024 until 15 August 2024.[39] Whether or not Mr Micheletti considered himself fit to undertake training, and regardless of the activities in which he was engaging at that time, PHI could not direct him to attend work of any kind, including training. I accept PHI’s submissions that the question of reasonable adjustments does not arise when a person is medically unfit to perform any work.[40]

The second argument raised by Mr Micheletti is that PHI was aware from 15 July 2024 that he would be fit to return to work on 15 August 2024 and should have arranged for him to attend simulator training following his anticipated return.

It is noteworthy that Ms Kepert did not appear to read Mr Micheletti’s email of 15 July 2024 as confirming the date on which he would be cleared to return to work. In her response to Mr Micheletti the same day she stated: “Glad to hear your recovery is going well and you’re expected to have your medical reinstated in the coming months.” (My emphasis)[41]

Mr Hartley gave the following evidence:[42]

“26. Following the informal notification from INPEX in January 2024, PHI identified that some of the pilots that will be affected by the removal of the AW139 already held S92 type-ratings, but others did not. At the time, due to the anticipated increase in work later in 2024 and the anticipated need for more S92 type-rated pilots, PHI considered it reasonable to undergo the burden and cost of re-type rating all of the AW139 pilots. The Applicant (Mr Micheletti) was part of this group of AW139 pilots who was affected by the reduced demand for AW139 crews and one of the pilots PHI planned to issue a S92 type-rating too.

27. While INPEX’s decision to remove the AW139 had not been formally notified to PHI, the decision was made to contact all the AW139 pilots and advise them that they would be moving onto another type-rating. On or about 11 January 2024, Mr Micheletti was notified that he would be moving onto another aircraft type some time in 2024.

28. Mr Micheletti was one of the first AW139 pilots to start the ground school phase of his S92 type rating training as early as 15 January 2024 and was scheduled to complete the sim training phase in March 2024 due to sim availability at the time. This sim training phase was subsequently cancelled last minute due to the training captain needing to take personal leave.

29. On 22 March 2024, INPEX formally notified PHI that it would be releasing the AW139 from service in July 2024 and releasing one of the two AW139 flight crews (four pilots in total) effective immediately.

…
65. On 15 August 2024, Mr Micheletti provided PHI with a medical certificate from his DAME…This certificate stated that the DAME had examined Mr Micheletti on 15 August 2024 and that he would be fit to fly from that date onwards.

66. As stated in paragraphs 26-29 above, at that time Mr Micheletti was cleared to return to work, PHI no longer operated the AW139 in Australia and therefore did not require any pilots with this type-rating in the country. Additionally, for the reasons stated in paragraphs 39 to 41 above, PHI anticipated it would soon have a surplus of S92 type-rated pilots and expected it would need to make approximately eight to ten of these roles redundant in the immediate future. From the time when Mr Micheletti first went on personal leave to the time he was certified as fit to return to work, PHI’s operational requirements had materially changed. PHI was forecasting a reduction in client work in the next few months which would ultimately result in a reduction in requirements for pilots overall. Because of the operational requirements prevailing at the time, it was not reasonable for PHI to continue with Mr Micheletti’s S92 type-rating training after he was certified fit for work because PHI no longer required additional pilots with that type-rating.

67. Pilots who had already been booked for sim training at the time were allowed to complete their training given that such training had been booked a few months in advance and PHI had already incurred this cost. This situation did not apply to Mr Micheletti because he was only certified fit for work on 15 August 2024, at a time when no further sim slots had been booked or were required. Due to the dynamic nature of staffing requirements and the costs involved, PHI could not simply book surplus sim training slots based on Mr Micheletti’s personal assertions about when he would potential be fit [sic] to resume duties. It is reasonable for PHI to only incur the cost of planning for and booking training when it can rely on medical evidence of a pilot’s fitness to attend such training. Prior to 15 August 2024, Mr Micheletti did not and could not provide PHI with such medical evidence.”

Mr Hartley was challenged in cross-examination as to when PHI was informed that Mr Micheletti would be returning on 15 August 2024. In particular, he was taken to Mr Micheletti’s email to Ms Kepert of 15 July 2024. Under cross-examination, Mr Hartley gave the following evidence:[43]

“So I put it to you, Mr Micheletti, that PHI was aware for a month that Mr Micheletti would return on 15 August? ‑I would disagree with that, Mr Marks. Whilst we did not challenge the response, Mr Micheletti was informed approximately in July that he would not be able to return to work until he produced a medical certificate clearing him fit for work. So whilst we knew that he was coming - due to return to work, we were not actually sure when he would return to work. We needed that evidence before we could return him to work.”

I do not consider that PHI was under any obligation to arrange simulator training for Mr Micheletti in advance of him being cleared to return to work. On Mr Hartley’s evidence, staffing requirements were in a state of flux in 2024. Given the state of uncertainty and the considerable costs of the simulator training, it was not unreasonable for PHI to await Mr Micheletti’s clearance to return to work. It was not obliged to accept and act on the statements in Mr Micheletti’s email of 15 July 2024.

Did PHI have ulterior motives?

This leads me to consider a thread that ran through Mr Micheletti’s case. That is, that PHI had determined to remove Mr Micheletti for reasons unrelated to its operational needs. This was why, for example, it was said to have ignored his anticipated return date, denied him the opportunity to undertake simulator training in August or September 2024 and replaced him with new recruits.

In support of this contention, Mr Micheletti led evidence from Mr Hartley that when making workforce decisions his goal was to minimise cost while meeting client demand. It was put to him that when deciding to dismiss Mr Micheletti as opposed to one of the new recruits he was in fact maximising costs. In his oral submissions, Mr Micheletti described this as a “commercially irresponsible and irrational decision”.[44]

Mr Micheletti suggested, but never positively asserted, that such a decision could only be explained if PHI had an ulterior motive in removing him. It was difficult to discern precisely what conclusions he was asking me to draw.

Mr Micheletti gave evidence that in September 2023, he and two colleagues raised concerns with PHI that they had been underpaid. This resulted in them commencing proceedings in the Commission on 27 March 2024.

In his oral submissions at the hearing of this matter, Mr Micheletti contended: [45]

“Upon concluding the dismissal was not a case of genuine redundancy, it is open to the Commission to consider what the actual reason for the dismissal was. In this regard, the applicant submits it is reasonable to infer that the actual reason for dismissal was either retribution for Mr Micheletti suing the respondent or because he was temporarily absent from work due to an injury. Importantly, the Commission need not consider either reason as that will be the task for another application and perhaps another decision‑maker, but it is open to the Commission to consider these matters under section 387(h) as possibly explaining a motivation, as we put the submission, and we put the submission no higher than that, Commissioner.”

This submission led me to have the following exchange with Mr Micheletti’s representative:[46]

“THE COMMISSIONER: It is a theme in your written submissions, quite clearly a theme in your written submissions, that Mr Micheletti is asserting that he was dismissed as a result of having brought the underpayment claim. Do you need a moment, Mr Stephens?

MR STEPHENS: What we’re saying, Commissioner, is you simply don’t have to make findings in relation to those parts of the Act, the general protection parts of the Act, but there is sufficient there for you to draw conclusions with respect to section 387(h) of the Act. That’s the point we’re making there.

THE COMMISSIONER: The conclusions being that Mr Micheletti was dismissed because he had brought the underpayment claim and/or because he was temporarily absent from work due to illness or injury?

MR STEPHENS: That is open to the Commission if it wishes to do so, but we are not seeking it necessarily.”

It remains unclear to me precisely what Mr Micheletti is asking me to determine in relation to this aspect of his case. However, to the extent he invited me to draw a conclusion that the redundancy of his role was a smokescreen to hide PHI’s true motivations, I decline to do so. The reasons for this can be shortly stated.

First, the contention that Mr Micheletti was dismissed because he was temporarily absent from work due to an injury was confined to an assertion in closing oral submissions. It was not supported by evidence, nor was it put to Mr Hartley.

Second, Mr Hartley stated that the underpayment claim was not a factor for PHI when considering its operational requirements. He was not challenged on that evidence. The contrary was not put to him. While Mr Micheletti described that evidence as “false”,[47] he conceded under cross-examination that he did not actually know whether the underpayment claim was a factor in PHI’s decision.

Third, Mr Micheletti had raised his underpayment claim in September 2023. Despite that, PHI made arrangements for him to undergo training to be type-rated for the S92 aircraft in January 2024. That training had only been cancelled due to the unavailability of the training captain. As at 29 February 2024, Ms Kepert was exploring with Mr Micheletti alternative dates on which he could undertake the simulator training. There is nothing to suggest that Mr Micheletti’s underpayment claim had any negative impact on his relationship with PHI. While Mr Micheletti submitted that the commencement of proceedings in relation to the underpayment claim in March 2024 “change[d] that dynamic”[48], this was no more than assertion.

Mr Micheletti also sought to draw inferences from PHI’s request that he sign the Deed as a condition to receiving the payment offered to him on 4 September 2024. Whether or not the Deed was required in the circumstances, as Mr Hartley and Mr Head appeared to believe, I do not consider the request to be significant. Noting that the Deed expressly excluded the underpayment claim from the release, I am not persuaded that the fact that it was requested suggests any ulterior purpose on PHI’s part.

Conclusions

In light of all of the evidence, I consider that Mr Micheletti was the victim of a series of unfortunate events that resulted in his position becoming redundant. That is, his simulator training in January 2024 had to be cancelled due to the unexpected unavailability of the trainer. Due to client needs, he was required to stay on the INPEX contract. His type-rating training was consequently deferred (or “moved to the right”) until May or June 2024. Mr Micheletti suffered an injury on 8 April 2024. Throughout 2024 there was considerable change in the needs of PHI’s clients with consequences for PHI’s operational requirements. By the time Mr Micheletti was able to return to work on 15 August 2024, there were no AW139 positions available for him. He was not type-rated to fly any of the other aircraft that PHI operated in Australia. Moreover, as PHI considered that it had, or would soon have, an oversupply of pilots type-rated for the S92 aircraft, there was no apparent reason why PHI would incur the considerable cost of training for him to obtain a type-rating for that aircraft.

It might have been open to PHI to dismiss another pilot instead of Mr Micheletti, although the possibility was not put to Mr Hartley. Mr Micheletti did not explain how it would have been achieved. In any event, it would do nothing to overcome the fact that Mr Micheletti’s job as a Captain flying AW139 aircraft on the INPEX contract at Broome was no longer required.

For all of these reasons I am satisfied, and I find, that as at 30 September 2024, PHI no longer required Mr Micheletti’s job to be performed by anyone because of changes in the operational requirements of its enterprise.

PHI complied with its obligations in the Enterprise Agreement

The Enterprise Agreement relevantly provides as follows:

19. REDUNDANCY

19.1. Redundancy is provided for in the NES. This clause provides occupational specific detail.

19.1.1. The provisions of this clause do not apply to a Pilot if the Company offers the Pilot other employment, on substantially similar terms and conditions, within the Company, or a successor who recognises the Pilot’s service, if the Pilot refuses that offer. All other provisions relating to redundancy and the exclusions from the obligation to pay redundancy pay contained within the Fair Work Act shall apply.

19.1.2. Interpretation: For the purpose of this clause, a termination on the grounds of redundancy means the Pilot’s employment is terminated at the Company’s initiative because the Company no longer requires the work done by the Pilot to be done by anyone, except where this due to the ordinary and customary turnover of labour, or because of the insolvency of the Company.

19.2. Consultation

19.2.1. The Company will consult with the Pilot(s) affected and the Union or other chosen representative in the event of redundancy of the Pilot’s position.

19.2.2. Matters to be discussed include, but are not limited to:

(a) a selection procedure to be followed in the event of redundancy,

(b) alternatives available to minimise the need for redundancies, and

(c) other relevant matters.

19.2.3. Compulsory redundancy will be a last resort after all alternatives including, but not limited to, natural attrition, leave, leave without pay, alternate duties, transfer, secondment, voluntary redundancy, early retirement, temporary part time work, enhanced voluntary and/or involuntary severance pay benefits have been explored.

PHI contended that it had satisfied the requirements of clause 19.1.1 of the Enterprise Agreement, with the result that the consultation obligations in clause 19.2.2 did not arise. For the reasons that follow, I accept that contention.

During their conversation on 27 August 2024, to which I referred above, Mr Micheletti and Mr Hartley discussed the possibility of Mr Micheletti being redeployed to the Philippines. They gave very different accounts of what had been offered to Mr Micheletti.

Mr Hartley gave the following evidence:[49]

69. I wanted to offer Mr Micheletti other employment with PHI on substantially similar terms and conditions of employment. For this reason, around the middle of August 2025, I contacted PHI’s Senior Human Resources Business Partner at the time, Alexander Head. I informed Mr Head that PHI had a pilot who had recently returned from a long period of medical leave. I told Mr Head that this pilot held a AW139 type-rating and because PHI no longer had any positions available for this aircraft type in Australia, I wanted to know if we could offer him a permanent AW139 position on similar terms and conditions at one of PHI’s other operating bases that still used the AW139. I was aware PHI had two AW139 roles available in the Philippines and I asked Mr Head to confirm the upper range of remuneration PHI could pay for the available roles. I wanted to know what the upper range was because I wanted to make the best offer of alternative employment possible to Mr Micheletti taking into account his experience on the AW139.

70. Mr Head sent me an email with the remuneration details of the AW139 positions available in the Philippines. The remuneration for the available positions had a base rate of $841USD per day plus travel allowances, with an even time roster identical to the roster Mr Micheletti usually worked.

71. The position I was planning to offer Mr Micheletti was a permanent full-time position and it was equivalent to an AW139 captain role in Australia. In all material terms this role was substantially similar in terms and conditions to Mr Micheletti’s existing role. As per PHI’s practice, continuity of service and accrued benefits would be recognised for Mr Micheletti.

…
73. On 27 August 2024, Mr Micheletti returned my calls… During this call we discussed the following:

…
(c) I told Mr Micheletti that there were two vacant positions within PHI APAC in the Philippines for AW139 type rated pilots. I asked Mr Micheletti if he would be interested in redeployment to one of these positions. I informed Mr Micheletti that these were permanent roles and that his service and accrued benefits would be recognised. I told him the roster would be an equal time roster and the $USD salary converted into $AUD was equivalent to his salary in Australia.

(d) Mr Micheletti then said words to the effect of ‘unless PHI is prepared to pay me a substantial amount of money I am not interested and could get more money working elsewhere overseas’.”

Mr Micheletti disputed Mr Hartley’s account of the conversation on 27 August 2024. He stated:[50]

“31. As to paragraph 71, what Mr Hartley says about the tenure of the Philippines work is false. The contract was a 12-month fixed term contract which I raised with Mr Hartley at the time, and which he did not deny. It was, and remains, my assessment that the job was not remotely equivalent to my position in Australia. There was no salary. It was a contracted day-rate for a period of 12 months fixed term, after which there was no return to PHI Australia. There was no superannuation, no additional allowances, and no Duty Travel Allowance, no sick leave, or long service leave etc.

32. I asked if this was a secondment from PHI Australia with a right of return, Mr Hartley said ‘no, I would have to resign my position in Australia’. In my view, there was no way this position was in any way commensurate with my position as a full time, permanent Line Captain with PHI under the Broome EBA.” (Underlining in original)

Mr Micheletti also stated that the day rate that Mr Hartley offered to him was $US769, which equated to an annual remuneration of $AU200,000, well below his current earnings. He denied using the words attributed to him by Mr Hartley. He claimed that he told Mr Hartley “that no one works overseas for less remuneration than they can make at home”.[51]

In support of his contentions, Mr Micheletti relied on an email sent by Taylor Carran, a Senior Recruitment Advisor, Perth for “PHI Aviation”, to a number of recipients on 22 August 2024. The email referred to “exciting opportunities in PHI APAC”. They included expressions of interest for an AW139 Captain position and an AW139 Copilot position in the Philippines. Both roles were said to be “Fixed Term, Touring” positions associated with “a 12 month drilling campaign”. Mr Micheletti submitted, and I accept, that the description of those roles is consistent with the position that he says Mr Hartley offered to him.

However, under cross-examination, Mr Hartley was taken to Taylor Carran’s email. He gave the following evidence:[52]

“Mr Hartley, Mr Micheletti says that you offered him a 12-month fixed-term contract in the Philippines for a touring pilot. Correct? ‑That’s - well, Mr Micheletti said that. Correct.

Yes. You have denied that. You have said absolutely did not provide such a position. You have also provided the Commission with a – well, what should have been a complete list of any positions advertised or needed or required; any vacancies, I should say. Mr Hartley, those are the two jobs, aren’t they? ‑That was what was advertised. Correct.

No. Those are the two jobs that you offered Mr Micheletti. They line up perfectly? ‑No. That’s incorrect. It’s incorrect. Mr Micheletti was a full-time employee. That’s not what I offered him.

Well, it must be a striking coincidence then. Two positions in the Philippines are the only fixed-term positions of the lot. Both for the exact aircraft which you say is basically out of out of service. Both in the Philippines. Both touring. Both fixed term. And you say this is something else; it has nothing to do with the position you offered him, and there’s some other position which we haven’t seen anywhere in production that you claim is the position you actually offered him. Is that your evidence? ‑That is my evidence.

Thank you? ‑And, full context, if the position was if an expression of interest for people that wanted to go up there for a fixed term - however, Mr Micheletti was a full-time employee, and we were keeping him as a full-time employee. The 12-month drilling campaign was an opportunity for somebody that wanted to go up there for 12 months. It was not what was offered to Mr Micheletti.”

To give context to that evidence, I had issued an Order to Produce at Mr Micheletti’s request that required PHI to produce, amongst other documents, “[a] copy of all advertisements for pilot jobs with PHI and its associated entities, including those published on PHI’s intranet and external service providers (for example seek.com.au) during the period June 2024 to December 2024 (inclusive)”. In closing oral submissions, Mr Micheletti contended:[53]

“Mr Hartley’s evidence, in fact, beggars belief and leads to two alternative adverse outcomes: either PHI did not comply with the order to produce all vacancies available at or around the time Mr Micheletti was dismissed, or it did, and Mr Hartley is not truthful about the terms of the job he offered Mr Micheletti.”

However, Mr Micheletti ultimately withdrew that submission after the following exchange that I had with his representatives:[54]

“THE COMMISSIONER: I’ll try to explain my concern here. The list of vacancies was put to Mr Hartley yesterday, and it was put to Mr Hartley in the witness box that this was a 12‑month contract position, this was this, these are the Philippines positions. He says, ‘But that’s not what I offered because Mr Micheletti was permanent, and so I didn’t offer him that job, I offered him something else.’ Now, I understand what the documents say, the advertisement, but your criticism of Mr Hartley and the findings of credibility that you want to make are premised on the assumption that only an advertised position could have been offered to Mr Micheletti. Isn’t that logically the premise of your position?

MR STEPHENS: Well, they couldn’t have offered him anything else.

THE COMMISSIONER: But where’s the evidence of that?

MR STEPHENS: Well, I suppose it presupposes a proposition that the company was proposing to recruit over and above its required numbers.

THE COMMISSIONER: Perhaps.

MR STEPHENS: Well - - -

THE COMMISSIONER: But this is again the concern I’ve got because you’re asking me to draw quite a strong adverse inference against Mr Hartley, and what you’re asking me to do is just accept that only the advertised positions were available to be offered to Mr Micheletti, despite Mr Hartley saying in the witness box yesterday he offered him something else. Now, it wasn’t put to Mr Hartley that there wasn’t another position, that only the advertised could be offered. Now, I understand there’s a factual contest between Mr Micheletti and Mr Hartley as to what was offered.

MR STEPHENS: Yes.

THE COMMISSIONER: And I understand the submissions that you are making, which is that what Mr Micheletti said was offered is more consistent with the advertised positions than something else. I understand where you are going with that, but I’m just asking you, as a matter of logic, you are asking me to accept that Mr Hartley could only have accepted - I withdraw that - Mr Hartley could only have offered Mr Micheletti one of the positions which had been put out for advertisement, be it for an expression of interest, or on any other basis. Isn’t that right?

MR STEPHENS: Well, no, he could only make available to him positions that were available and he made available. I think he touched on it, but the point of the evidence - the point of the submissions and the point of the document marked 6 is that the comparability between the position of Mr Micheletti is corroborated by that document in terms of what he was told, he says, about that position.

…
MR MARKS: Perhaps if I could assist?

…
MR MARKS: Commissioner, you’re correct in your assessment that the submission is that you’ve got two competing versions, and the trouble, of course, is how to resolve that competition. The submission being made is that the advertisements are consistent with one of those parties’ version, and we put the submission no higher. We’re not suggesting - - -

…
THE COMMISSIONER: Mr Stephens did put the submission a lot higher than that.

MR MARKS: I agree with you, and to the extent we can withdraw that submission and restate it in those terms as being the more accurate way for it to be put.”

As I noted in that exchange, there was no evidence that only advertised positions could be offered to a person in Mr Micheletti’s position. That proposition was not put to Mr Hartley.

During his oral evidence, I had the following exchange with Mr Hartley:[55]

“THE COMMISSIONER: Thank you. Mr Hartley? ‑Thank you, Commissioner. It’s quite easy to clear this up. The position offered to Mr Micheletti was a full-time position in the Philippines. The advertisements that Mr Marks is referring to are a series of what we call expressions of interest. We quite often advertise for pilot positions externally through our – via Seek, but through our portal. And some of them are for work that we are tendering on but may not be awarded. Some of it is known work that we have been awarded that is coming up. For want of better terms, we see what’s out there on the market and we will see what pilots are available, so we can keep track of them, and then if awarded work, we will then offer them a job. That would either be on a full-time basis or in some cases a fixed-term basis for a certain drilling campaign. The job ads that Mr Marks is referring to were not the ones that Mr Micheletti was offered during our initial conversation.

I’m not sure I know which one Mr Marks was referring to. That’s part of my confusion? ‑I think it’s fair to say all of these job ads, Commissioner, are expressions of interest for us to shake the tree, as such, to see what pilots fall out.”

In so far as Taylor Carran’s email is concerned, I accept the following submissions made by PHI:[56]

“Now, that evidence that, yes, he offered a different position, was not, other than through the tone of Mr Marks’ questioning, seriously challenged. …There is nothing surprising or unusual about that evidence. It’s not out of keeping with common experience. That the company was seeking expressions of interest for fixed term work does not mean Mr Hartley did not offer a different position, a permanent position, to Mr Micheletti. He could not have been clearer about that. He was the chief pilot. His role included hiring pilots. There’s no reason why he could not, and did not, offer a permanent position to an employee who was, at the time, a permanent employee.”

There is some near-contemporaneous support for Mr Hartley’s evidence as to the offer he made to Mr Micheletti on 27 August 2024. This is an email that he sent the following day to Mr Head and Victoria Paterson, who was described in the proceedings as PHI’s “head of HR” at the time.[57] In his email, Mr Hartley stated:[58]

“I informed Paul that while I was still reviewing what options were available for his to return to work, I wanted to advise Paul that we have 2 vacant positions with PHI APAC in the Philippines on the AW 139 and inquired if he would be interested in transferring onto the Philippines contract. After informing Paul that the roster would be an equal time roster and the USD salary converted into AUD was equivalent to his salary in Australia, Paul advised me that ‘unless we are prepared to pay him a substantial amount of money he was not interested’.”

I accept, as Mr Micheletti submitted, that the email does not reflect all of the terms that Mr Hartley said were offered to Mr Micheletti, such as the role being a permanent ongoing position and that his service and accrued benefits would be recognised. Equally, though, it does not say that the position was fixed-term or that Mr Micheletti would be required to resign. I note that the reference to the equivalence in the salary is consistent with Mr Hartley’s evidence of the offer.

Mr Hartley was not challenged about the contents of that email, including the words attributed to Mr Micheletti. Further, it was not put to him that the Philippines position would require Mr Micheletti to resign from PHI. He was also not challenged on his evidence that Mr Micheletti’s service and accruals would be recognised.

Overall, I prefer the evidence of Mr Hartley as to the position that was offered to Mr Micheletti. I note that Mr Micheletti did not raise as a concern the fact that the position was based in the Philippines.

I find that this was an offer of employment “on substantially similar terms and conditions, within the Company, or a successor who recognises the Pilot’s service” within the meaning of clause 19.1.1 of the Enterprise Agreement. It follows that PHI had no obligation to consult with Mr Micheletti or the AFAP under clause 19.2 of the Enterprise Agreement.

On that basis, I find that section 389(1)(b) has no application in the present matter.

It would not have been reasonable in the circumstances for Micheletti to be redeployed within PHI’s enterprise or that of one of its associated entities

Section 389(2) provides that a person’s dismissal will not have been a genuine redundancy if it would have been reasonable in the circumstances for the person to be redeployed within the employer’s enterprise or that of one of its associated entities.

In the present case, Mr Micheletti was offered but rejected redeployment to the Philippines position. There is no evidence that at the time of his dismissal, PHI had other positions available for a pilot type-rated to the AW139 aircraft.

The question which arises from Mr Micheletti’s case is whether it would have been reasonable for him to be redeployed to a position involving him flying a different aircraft. I consider that the answer to that question is no, for two reasons.

First, there is no evidence that there was another position available for Mr Micheletti at that time. As things stood in August and September 2024, Mr Hartley anticipated having a surplus of S92 pilots. While Mr Hartley’s concerns at having to make other pilots redundant were not ultimately realised, that is not to say that they were not validly held at the time.

Second, Mr Micheletti’s case is premised in part on the contention that PHI should have made a position available for him, presumably by dismissing one of the more recently-recruited pilots in his stead. As I have already observed, Mr Micheletti did no more than suggest this as a course that PHI should have taken. He did not explain how it would have occurred.

I find that it would not have been reasonable in the circumstances for Mr Micheletti to be redeployed within PHI’s enterprise or that of one of its associated entities.

Conclusions

For the reasons set out above, I find that Mr Micheletti’s dismissal was a case of genuine redundancy within the meaning of section 389. It follows from section 385(d) that he cannot have been unfairly dismissed. I uphold PHI’s jurisdictional objection.

It is accordingly not necessary to consider the arguments advanced by the parties as to why the dismissal was, or was not, harsh, unjust or unreasonable and what, if any orders, I should make as a consequence of the parties’ respective positions. The only appropriate order is that the Application be dismissed.

Order

The Application is dismissed.

COMMISSIONER

Appearances:

David Stephens and Jared Marks, of the Australian Federation of Air Pilots for the Applicant
Cheyne Beetham, counsel for the Respondent

Hearing details:

29 and 30 April 2025
Sydney

[1] In this decision, all references to legislative provisions are references to sections of the Fair Work Act

[2] Statement of Paul Micheletti, 17 January 2025, and Reply Statement of Paul Micheletti, 21 March 2025

[3] Statement of Jared Marks, 21 March 2025

[4] Statement of Tim Hartley, 28 February 2025

[5] Transcript, 30 April 2025, PN1547

[6] Transcript, 29 April 2025, PN606 (see PN579ff)

[7] Statement of Tim Hartley, 28 February 2025, par 18(b)

[8] Statement of Paul Micheletti, 17 January 2025, Annexure PM1

[9] In his statement, Mr Hartley gave a considerable amount of evidence regarding changes in PHI’s operational requirements in 2023 and 2024. That evidence was largely uncontroverted and I accept it. The description of those changes in this decision is largely drawn from Mr Hartley’s statement.

[10] Statement of Paul Micheletti, 17 January 2025, Annexure PM7

[11] Statement of Paul Micheletti, 17 January 2025, Annexure PM7

[12] Statement of Paul Micheletti, 17 January 2025, Annexure PM7

[13] See footnote 9

[14] Statement of Tim Hartley, 28 February 2024, par 30

[15] Statement of Tim Hartley, 28 February 2024, par 41

[16] Statement of Tim Hartley, 28 February 2024, par 77

[17] Statement of Tim Hartley, 28 February 2025, Annexure TH8

[18] Statement of Paul Micheletti, 17 January 2025, Annexure PM2

[19] Applicant’s Submissions, 17 January 2025, par 33

[20] Transcript, 30 April 2025, PN1309

[21] Transcript, 30 April 2025, PN1617-PN1618

[22] Statement of Paul Andrew Micheletti, 17 January 2025, Annexure PM1

[23] Transcript, 30 April 2025, PN1514

[24] There was some controversy as to whether Mr Micheletti attended that ground school in defiance of a direction from PHI not to do so. It is not necessary to address that matter. It suffices to say that Mr Micheletti determined to attend the ground school on an unpaid basis while he was off work, in consultation with one of the S92 Training Captains, Russell Mardon.

[25] Statement of Paul Micheletti, 17 January 2025

[26] Statement of Tim Hartley, 28 February 2025

[27] Reply Statement of Paul Micheletti, par 52

[28] Statement of Paul Micheletti, 17 January 2025

[29] Statement of Tim Hartley, 28 February 2025

[30] Statement of Paul Micheletti, 17 January 2025

[31] Statement of Tim Hartley, 28 February 2025

[32] Reply Statement of Paul Micheletti, 21 March 2025, par 55

[33] Transcript, 29 April 2025, PN551

[34] Statement of Paul Micheletti, 17 January 2025, Annexure PM8

[35] Statement of Paul Micheletti, 17 January 2025, Annexure PM7

[36] Statement of Paul Micheletti, 17 January 2025, Annexure PM12

[37] Statement of Paul Micheletti, 17 January 2025, Annexure PM12

[38] Applicant’s Reply Submissions, 21 March 2025

[39] Statement of Tim Hartley, 28 February 2025, Annexures TH1, TH2, TH3 and TH5

[40] Relying on Hilditch v AHG Services (NSW) (t/as Lansvale Holden) [2017] FCCA 1086 at [179]

[41] Statement of Paul Micheletti, 17 January 2025, Annexure PM12

[42] Statement of Tim Hartley, 28 February 2025

[43] Transcript, 29 April 2025, PN922

[44] Transcript, 30 April 2025, PN1513

[45] Transcript, 30 April 2025, PN1289

[46] Transcript, 30 April 2025, PN1294-PN1297

[47] Reply Statement of Paul Micheletti, 21 March 2025, par 45

[48] Transcript, 30 April 2025, PN1464

[49] Statement of Tim Hartley, 28 February 2025

[50] Reply Statement of Paul Micheletti, 21 March 2025

[51] Reply Statement of Paul Micheletti, 21 March 2025, par 34 d)

[52] Transcript, 29 April 2025, PN1192-PN1196

[53] Transcript, 30 April 2025, PN1400

[54] Transcript, 30 April 2025, PN1412-PN1431

[55] Transcript, 29 April 2025, PN1167-1168

[56] Transcript, 30 April 2025, PN1565

[57] Transcript, 29 April 2025, PN404

[58] Statement of Tim Hartley, Annexure TH6

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