The Civil Air Operations Officers' Association of Australia v Airservices Australia

[2019] FWC 1732

[2019] FWC 1732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Civil Air Operations Officers’ Association of Australia
v
Airservices Australia
(C2019/914)

COMMISSIONER BISSETT MELBOURNE, 18 MARCH 2019

Alleged dispute about any matters arising under the modern award and the NES – interim orders.

[1] The Civil Air Operations Officer’s Association of Australia (Civil Air) has made an application to the Fair Work Commission (Commission) for the Commission to deal with a dispute in relation to its member Mr Andrew Wren. The application to the Commission was made in accordance with s.739 of the Fair Work Act 2009 (FW Act) pursuant to the dispute settlement procedure in the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 1 (the Agreement).

[2] Mr Wren is employed by Airservices Australia (Airservices) as an air traffic controller (ATC). Mr Wren has been stood down with pay. Airservices has determined to dismiss Mr Wren from his employment as it “does not consider that [he is] capable of demonstrating consistent performance of safe and efficient air traffic control.” This decision followed a serious incident in October 2018 when Mr Wren, whilst on a performance improvement program (PIP) in relation to earlier matters, failed to maintain separation of aircraft and a subsequent desktop review.

[3] The immediate matter before the Commission is an application by Civil Air for interim orders that would stop Airservices proceeding with the dismissal of Mr Wren and which would require it to place Mr Wren in a non-operational position with productive work and the capacity to keep his skills current.

[4] The substantive dispute is whether Airservices has fulfilled its obligations under clause 50 of the Agreement.

[5] Clause 50 of the Agreement is as follows:

50. PERFORMANCE, CONDUCT, TERMINATION OF EMPLOYMENT

50.1. The primary focus of managing an employee whose performance and/or conduct is unsatisfactory should be to constructively assist the employee to improve their performance and/or conduct to a satisfactory level within a reasonable time, giving such feedback and assistance as is appropriate. Initial or ‘early intervention’ processes may include, but are not limited to, providing an employee with a course of training or other remediation. Note taking by the relevant manager during counselling or feedback does not constitute making this a formal process.

50.2. Procedural fairness

Airservices will adhere to the principles of procedural fairness when managing an employee in relation to suspected under-performance or misconduct. This means that Airservices will:

(a) promptly advise the employee of its concerns;

(b) provide enough time to the employee to be represented or supported in relation to the performance and conduct management process;

(c) provide enough opportunity for an employee to respond to the concerns raised by Airservices and to genuinely consider that response;

(d) Airservices will be unbiased in the consideration of the employee’s views and will genuinely consider the matters put by the employee or by their representative;

and

(e) Take actions and issue sanctions that are proportional to the employee’s performance and conduct.

50.3. Formal Process

Where Airservices has serious concerns with an employee’s performance and/or conduct, Airservices will observe the principles of procedural fairness, advise the employee of its concerns in writing, setting out relevant particulars and arrange a meeting with the employee to discuss those concerns before taking any action against the employee. This process does not apply where the employee has engaged in serious misconduct that warrants summary dismissal.

Without exhaustively stating the actions that Airservices may take to manage an employee’s poor performance and/or conduct, Airservices may:

(a) require the employee to undergo remedial training and/or counselling as appropriate to the circumstances of the case;

(b) give the employee a written warning appropriate to the circumstances of the case;

(c) set conditions with which the employee needs to comply;

(d) reduce the employee in classification for a period of time or indefinitely;

(e) terminate the employee’s employment.

Interim orders

[6] In deciding if interim orders should be issued there are two main considerations – firstly, if there is a serious issue to be tried (or matter to be determined) and, secondly, the balance of convenience.

[7] These matters were considered by Bromberg J in Quinn v Overland 2 where his Honour said:

[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question“ to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”

[8] Civil Air put, consistent with this decision, that it was not necessary to determine that it is more probable that it would succeed in the substantive application but rather that there is a sufficient likelihood it would do so.

[9] Section 589(2) of the FW Act gives the Commission power to make an interim decision. There was no submission to the contrary.

[10] Neither party suggested that the Commission does not have jurisdiction to deal with the substantive application and I am satisfied that the Commission does have such power. It should be noted that whilst the interim order is directed at ensuring Mr Wren’s employment is not terminated, his employment had not been terminated at the time of hearing and the determination of the matter.

Background

[11] Mr Wren was employed as an air traffic controller (ATC). He commenced employment with Airservices in 1996. He is currently 50 years old.

[12] Civil Air put, and it was not disputed by Airservices, that in mid-2015 Mr Wren was transferred from Hastings to the Gwydir Group at the Brisbane Centre. The Gwydir Group operates arrivals into Sydney and in notoriously complex. In addition, Mr Wren was responsible for arrivals rather than departures which he had responsibility for in the Hastings Group.

[13] After being moved to Gwydir Mr Wren was involved in a number of “incidents”. These were:

•  19 April 2016 – distracted at live console and consciously non-compliant with supervisory instructions;

•  28 November 2017 – breakdown of coordination;

•  25 August 2018 – incorrect runway assigned;

•  19 October 2018 – loss of aircraft separation.

[14] In addition Mr Wren had the following performance issues:

•  13 February 2018 – failed to reach the minimum standard in completing open book rating examination. His ATS privileges were withdrawn temporarily and reinstated when he completed a closed book examination;

•  4 May 2018 – failed to secure a readback from ANA879 to confirm receipt of a holding instruction;

•  31 May 2018 – deemed not competent during a Performance Assessment Report (PAR) renewal check. He undertook remedial training including some additional on the job training;

•  12 June 2018 – underwent a remedial PAR and was deemed competent;

•  4 July 2018 – underwent a standard renewal check and was deemed competent;

•  16 July 2018 – issued with performance improvement plan (PIP).

[15] The PIP set out the following:

•  It was issued because of deficiencies in Mr Wren’s performance identified by the incidents of 28 November 2017, 13 February 2018, 14 May 2018 and 31 May 2018;

•  A review had been conducted which identified areas in which he needed to develop, take action and be diligent.

•  Detailed that his performance would be assessed by compliance with policy and procedures including the code of conduct and fitness for duty provisions and that he would be provided with feedback to further improve and monitor his technical performance;

•  Expectations of Mr Wren were set out and the support that he would be provided with detailed. The support identified was “ALM guidance” including that Mr Wren should contact his ALM or team members and discuss or clarify requirements with his ALM, and access to the Employee Assistance Program;

•  A formal review of the PIP would occur at the end of the review period with possible outcomes, if he failed to reach or maintain the standard required, of training, a written warning, establishment of conditions, reduction in classification or termination of employment.

[16] The PIP was signed by Mr Wren and his ALM on 16 July 2018.

[17] The PIP set five milestones. Mr Wren successfully completed the first on 16 July 2018 and the second on 23 August 2018.

[18] From 24 September to 9 October 2018 Mr Wren was an annual leave. On 9 October 2018 he undertook a familiarisation shift and on 10 October 2018 performed a night shift (a traditionally quiet shift). Between 11 to 13 October 2018 Mr Wren was absent on personal leave and from 14 to 18 October 2018 was absent on rostered days off.

[19] On 19 October 2018 Mr Wren returned to work and was involved in a loss of aircraft separation incident. As a result of this he lost his privileges (which I understand to mean he could not perform the work he was employed to do until the concern was remediated).

[20] This incident was the subject to an investigation. The investigation report found that the shift rosters were not conducive to maintaining proficiency and the “recency” requirements were deficient. The report recommended that Line Managers should review the rosters with a mind to maintaining proficiency and, in conjunction with this, review the “recency” requirements.

[21] Following the incident of 19 October 2018 Airservices management undertook a desktop review of Mr Wren’s performance since 2002. The desktop review did not draw any conclusions but set out, objectively, the relevant history in relation to Mr Wren’s performance including the incidents he has been involved in.

[22] As a result of the incident of 19 October 2018 Mr Wren was not assessed against the third, fourth and fifth milestones on the PIP.

[23] On 29 November 2018 Airservices wrote to Mr Wren and advised him that a review of his PIP had been conducted and it had been concluded that his progress remained unsatisfactory in that he had been unable to meet the standards of the PIP. Airservices advised that it had concluded that no further training would address his performance deficiencies to enable his to sustain work at the required level of an ATC.

[24] Mr Wren provided a response to the letter of Airservices on 12 December 2018. Airservices determined to seek redeployment if possible for Mr Wren or, should this not be possible, termination of his employment. Redeployment was not successful and Mr Wren was advised his employment would be terminated. Following a conference before the Commission this was delayed pending further attempts at redeployment. Again this was not successful and Mr Wren was advised his employment would be terminated on 15 March 2019.

[25] This application for interim orders was heard by me at 4.00 p.m. on 15 March 2019. Airservices agreed to delay the dismissal until 4.30 p.m. on Monday 18 March 2019 to allow this application to be dealt with.

Serious issue to be tried

[26] Civil Air says that clause 50 of the Agreement places a positive obligation on Airservices to “constructively assist” Mr Wren to improve his performance, including the provisions of training or other remediation and that, in adhering to the principles of procedural fairness, it should “take actions and issue sanctions that are proportional” to Mr Wren’s performance.

[27] Civil Air says that in terminating Mr Wren’s employment Airservices has failed to meet the positive obligation on it including the offering of training or other remediation. In taking the actions Airservices has, its response has not been proportional to Mr Wren’s performance issues. Civil Air says that a proportionate response would have been to have provided more structured training and support to Mr Wren and that it was disproportionate to decide to terminate his employment. In this respect Civil Air says that Airservices has failed to meet its obligations to Mr Wren under clause 50 of the Agreement in that the PIP did not contain the training and remediation that would have been a proportionate response to the performance issues Airservices identified with Mr Wren.

[28] In support of its claim that there is a serious matter for the Commission to deal with Civil Air also relies on the “ATS Training Operations Manual” 3 (ATOM) and the “National ATS Administration Manual”4 (NAAM) which it says supports the provision of remedial training. ATOM sets out the basis on which a Training Support Agreement (TSA) could have been made available to Mr Wren. It says that a TSA is available and is a proportional response to Mr Wren’s performance. It says that this is supported by the NAAM which provides that operational remedial management strongly supports the training structure.

[29] Airservices says that the PIP cannot be seen in isolation of other attempts to assist Mr Wren to maintain the standard required of him as an ATC. Airservices says that it has an obligation to the safety of the public to ensure that air traffic controllers perform their roles safely.

[30] Airservices says that Civil Air misunderstands, and therefore misrepresents, the purpose of ATOM. Airservices says that the application of ATOM is to a much more restricted set of circumstances such as new trainees and does not apply to Mr Wren’s circumstances.

[31] Airservices agrees that clause 50.1 of the Agreement places a positive obligation on it in managing employee performance. It says that the PIP meets the requirements of clause 50 but that Mr Wren could not maintain consistent appropriate performance levels. The PIP was tailored to the needs of Mr Wren. It was not designed to improve Mr Wren’s performance level but rather to assist him in maintaining a consistency in his performance.

[32] Airservices also says that the desktop review was only one of a number of inputs in Airservices reaching its decision.

[33] Airservices says that the incident of 19 October 2018 is emblematic of Mr Wren’s performance issues. His performance is satisfactory, he then has an issue or incident, remediation occurs and his performance improves, there is then another incident or issue, remediation takes place and so it goes.

[34] It is not necessary for me to determine if Airservices has met its obligations under clause 50 of the Agreement but rather to decide if there is sufficient likelihood that Civil Air would succeed in its application.

[35] I am satisfied that clause 50 of the Agreement places a positive obligation on Airservices in managing under performance of employees.

[36] It is not apparent, on the basis of the evidence before me, that Airservices has met this obligation through the PIP.

[37] Civil Air says Airservices has not met its obligations under clause 50 of the Agreement as it has failed to provide Mr Wren with a TSA. Airservices says that it has met its obligations when the PIP is considered in conjunction with other support offered to Mr Wren. These opposing views strongly support the conclusion that there are questions of fact that require resolution to the extent of the requirements of clause 50 of the Agreement and whether these have been met by Airservices in the support and PIP provided to Mr Wren.

[38] This weighs in favour of the grant of the interim order.

Balance of convenience

[39] I am satisfied in this case the balance of convenience favours the grant of the order.

[40] Civil Air says that the balance of convenience lies with granting the application for interim orders. Should the orders not be issued Mr Wren will be without employment (there being limited call for ATC work) and the economic consequences of this. Further, it submits that there are intrinsic none economic values of work that would be lost to Mr Wren should the order not be granted.

[41] Airservices submits that the balance of convenience does not favour granting the order sought. It does not believe that Mr Wren can carry out his work as an ATC in a safe and efficient manner and that he otherwise does not have transferable skills within Airservices.

[42] Should I not grant the order Mr Wren’s employment will be terminated. Whilst he has an avenue of relief available to him under the FW Act it seems to me an injustice would be done to him should he lose employment and income and the process he embarks on finds that he has been unfairly dismissed. These processes take time and, as mentioned above, there are very limited employment options for an ATC outside Airservices.

[43] Should I grant the order I acknowledge that there will be a cost to Airservices but I am not convinced it is a cost it cannot meet whilst the matter in dispute is resolved. In this respect I note that, on questioning by me, Civil Air indicated that it would only require a period of two weeks to file and serve its material in relation to an arbitration of the substantive question. That is, Civil Air is alive to the need to resolve this matter expeditiously. This weighs in favour of the grant of the interim order.

[44] I also acknowledge the concerns expressed by Airservices that it does not consider that Mr Wren can carry out the work of an ATC in a safe and efficient manner and that he has limited transferable skills. I have taken this into account in the interim order I intend to issue.

Conclusion

[45] For all of these reasons I have decided to grant the application for interim orders.

[46] In doing so I should stress that I have not determined the final question. The determination of that matter will be on the basis of the evidence put before the Commission in the arbitration of the matter.

[47] The interim order 5 will be issued separately. The substantive matter will be listed for Mention for the purposes of programming.

COMMISSIONER

Appearances:

E. White, of counsel, for the Applicant.

J. Lee for the Respondent.

Hearing details:

2019.

Melbourne:

March 15.

Printed by authority of the Commonwealth Government Printer

<PR705918>

 1   AE423762.

 2 [2010] FCA 799.

 3   Exhibit A2.

 4   Exhibit A3.

 5   PR705904.