Thacker v Airservices Australia

Case [2024] FCA 1507

FEDERAL COURT OF AUSTRALIA

Thacker v Airservices Australia [2024] FCA 1507

File number(s): VID 1365 of 2024
Judgment of: DOWLING J
Date of judgment: 20 December 2024
Catchwords: PRACTICE AND PROCEDURE –where the applicant sought interlocutory reinstatement pursuant to s 545 of the Fair Work Act 2009 (Cth) – serious question to be tried whether applicant’s dismissal was in contravention of s 351 of the Act – whether applicant had met the requirements to be an aviation firefighter – whether balance of convenience favoured the reinstatement on an interlocutory basis – held: serious question to be tried whether the applicant had met the requirements to be an aviation firefighter – balance of convenience favoured reinstatement – interlocutory reinstatement ordered
Legislation:

Fair Work Act 2009 (Cth) ss 342, 351, 361, 365, 545

Civil Aviation Safety Regulations 1988 (Cth) regs 67.155, 67.180, 139.840

Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission [2023] FCA 1458

Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988

Quinn v Overland [2010] FCA 799; 199 IR 40

Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238

Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71

Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; 81 IPR 339

Trego v Wesbeam Pty Ltd [2019] FCA 1030

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547

Wong v National Australia Bank [2022] FCAFC 155; 318 IR 148
Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 80
Date of hearing: 19 December 2024
Counsel for the Applicant: Mr J McKenna
Solicitor for the Applicant:  Davies Lawyers
Counsel for the Respondent: Mr T Donaghey
Solicitor for the Respondent:  HWL Ebsworth Lawyers

ORDERS

VID 1365 of 2024
BETWEEN:

NICK THACKER
Applicant
AND:

AIRSERVICES AUSTRALIA
Respondent

ORDER MADE BY:

DOWLING J

DATE OF ORDER:

20 DECEMBER 2024

PENAL NOTICE

TO:     AIRSERVICES AUSTRALIA

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)      REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)      DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

UPON:

The applicant, by his counsel undertaking, to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order…

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Details
AGLC
Thacker v Airservices Australia [2024] FCA 1507
Case
[2024] FCA 1507
Decision Date

CaseChat Overview and Summary

In the case of Thacker v Airservices Australia, the applicant, Mr Thacker, sought interlocutory reinstatement under section 545 of the Fair Work Act 2009 (Cth). The central issue was whether the applicant's dismissal contravened section 351 of the Act and if he met the necessary requirements to be an aviation firefighter. Specifically, the questions were whether Mr Thacker had passed a medical examination and whether he had met the standard for an Aviation Medical Certificate Class 2.

The court determined that there was a serious question to be tried regarding both issues. It was also noted that the reasons for Airservices' conduct included Mr Thacker's physical disability, though the court did not need to resolve the dispute about section 361(1) and (2) of the Act. The balance of convenience considerations favoured Mr Thacker, taking into account his significant personal sacrifices, including relocating from Cairns to Melbourne, the financial strain of unemployment, and his long-held aspiration of becoming a firefighter. Airservices argued that Mr Thacker's decision to relocate should be given less weight, but the court found that the value and role of work, as highlighted in Trego v Wesbeam Pty Ltd, supported Mr Thacker's case.

Consequently, the court ordered the interlocutory reinstatement of Mr Thacker to his previous employment and permitted him to undertake the Aviation Rescue Fire Fighting Services Training Recruit Course RC102 in Melbourne, pending the final determination of the application.

Orders

Orders of the court

1. Until the final hearing and determination of this application, or further order, the respondent reinstate the applicant to the employment he held before his termination on 10 December 2024.

2. Until the final hearing and determination of this application, or further order, the applicant be permitted to undertake the Aviation Rescue Fire Fighting Services Training Recruit Course RC102 commencing in January 2025 in Melbourne.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied, for the purposes of a serious question, that the reasons for Airservices conduct included Mr Thacker’s physical disability. I come to that view without having regard to the potential role of the operation of s 361(1) and (2). I do not need to resolve the dispute between the parties about the application of that section. Conclusion on serious question In all of those circumstances I am satisfied that there is a serious question to be tried in respect to the two questions raised by Mr Thacker. That is a serious question that Mr Thacker has passed a medical examination and a serious question that he met the standard for an Aviation Medical Certificate Class 2. I consider both questions to be of reasonable strength.BALANCE OF CONVENIENCEBalance in favour of Mr Thacker In support of his balance considerations Mr Thacker gives the usual undertakings as to damages. He also agrees to comply with the terms of Prof Nicholson’s protocol (see [57] above) as a condition of his employment. He says that he has a strong serious question. Mr Thacker relies upon evidence that:(a)he and his fiancé moved from Cairns to Melbourne so that he could participate in the Recruit Course and have purchased a home in Geelong;(b)Mr Thacker’s fiancé resigned her employment in Cairns in order to move to Melbourne and that he resigned his employment prior to commencing the Recruit Course;(c)That the consequence for Mr Thacker and his fiancé of Mr Thacker being unemployed are “immense.” He says that they will not be able to pay their mortgage. He says his fiancé is pregnant and will not be able to work in the near future. He says his termination has “affected his mental health”; and(d)Mr Thacker has dreamt of being a firefighter since he was a child and has dedicated many years to achieving that goal. I accept those matters weigh in Mr Thacker’s favour, save what I say below about Mr Thacker’s decision to move to Melbourne. Mr Thacker further submits that a balance consideration in his favour is the important role that work plays in people’s lives. He relies upon Trego v Wesbeam Pty Ltd [2019] FCA 1030 at [78] where Mortimer J stated:I consider I can take judicial notice of the role that work plays in the lives of members of any community. It is a source of self-respect, of purpose, of a sense that one is contributing to one’s family’s wellbeing and to the community. Working hard in a way that is meaningful and productive brings a sense of satisfaction that is important to a person’s wellbeing. A workplace can be a tangible and critical source of social support for an individual, as some of Mr Trego’s evidence demonstrates. Unemployment is destructive in a myriad of ways. It can have a particularly destructive effect on families. I accept the submission of Mr Thacker that the value and role of work is a matter that weighs in his favour. Airservices says that Mr Thacker’s decision to move to Melbourne was a decision made prior to the confirmation of his participation in the Melbourne Recruit Course and should either not be weighed or be afforded less weight. Relatedly, it says that there was no obligation to relocate because Airservices had agreed to provide return flights and accommodation for participation in the Melbourne Recruit Course. On the evidence before me there was some uncertainty about why Mr Thacker decided to move at the time that he did. I afford this consideration some weight but discount it as the result of that uncertainty.Balance in favour of Airservices

Ratio Decidendi

Legal Principle Established

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