Was employer reasonable in dismissing employee for safety critical position?
In a recent Fair Work Commission (FWC) case, an employee questioned why she did not get the job after finishing most of the training.
It dealt with the question: Is there unfair dismissal if the employer does not deem a worker qualified for the position?
The employer provides 24/7 emergency aeromedical services to 1.5 million peoplein communities across northern New South Wales. It operates four AW139 helicopters from three bases at Belmont, Lismore and Tamworth.
The company provides emergency aeromedical services to communities across northern New South Wales under a contract with the New South Wales Ambulance.
The employee was employed by Northern NSW Helicopter Rescue Service Limited as a line pilot for less than seven months before her dismissal.
Before working for the employer, she reportedly “had extensive experience” in flying helicopters, including during her service as a helicopter pilot in the Australian army for 17 years.
However, the employee did not have any experience in flying the type of helicopters used by the employer (AW139) to conduct its rescue and other services in northern New South Wales.
‘Ad hoc’ training
As the employer was aware that it would have to train the employee to operate an AW139 aircraft, the former provided training to the employee.
According to records, the training took longer than had been anticipated. From early December 2021, the employee no longer received training according to the original training plan. Her training became ad hoc and was scheduled on short notice. The training sessions were regularly cancelled due to weather events or because the aircraft had been taken off-line. This caused further training delays and uncertainty about how and when she would be trained.
She said the “loss of continuity in training made it difficult for her to establish a flow.”
In March 2022, the employee “arrived at work excited to complete her scheduled final summative assessment, the line check, only to be told that a decision had been made that she should not proceed to line check because she had not met company standards in all areas of her training.”
A show cause process took place, and the employer decided to dismiss her due to “a narrow area of concern” relating to her ability to “accurately position the AW139 aircraft during precision handling and then to maintain a stable hover on a consistent basis.”
The employee received payment in place of notice but claimed unfair dismissal.
On the other hand, the employer argued the position of line pilot is a “safety critical position” and the requirement “to consistently maintain a stable hover is an essential element of the role.”
“A new line pilot must not only have the requisite experience to perform the role, but they must also complete prescribed training and checking (competency assessments) before they are cleared to work in an operational capacity,” the employer said, and it explained that it was only maintaining “a competency required to carry out their responsibilities to the employer’s standards.”
HRD previously reported on the case of a worker who sued his employer for failing to refund his training fees.
In another story, a worker argued that he was unfairly dismissed after he “expected” that his contract would be renewed.
The FWC’s decision
The FWC found that the dismissal was harsh because there were “significant mitigating factors” as to why the employee’s training had taken longer and cost more than anticipated by the employer.
“Her performance was deficient in a narrow area. It is likely that her deficiency could be remediated in a relatively short period of time with additional training,” the commission found.
It said she had “excellent captaincy skills and had shown during her training that she made sound, carefully thought-out and safe decisions.”
It also said the dismissal was “unreasonable” because the employer could have “provided her with further training to bring her to the standard required.”
“She would have met the standard required if she had been provided with a further period of training of about two weeks,” the decision said.
Thus, the commission ordered the employer to reinstate her to her former position. The former added it was “satisfied that a sufficient level of trust and confidence can be restored to make an employment relationship viable and productive.”
