Dec 279/99 M Print R3130

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.45 appeal against decision and order [Print Q5911]

issued by Vice President Ross on 8 September 1998

National Jet Systems Pty Ltd

(C No. 50835 of 1998)

s.170CE application for relief in respect of termination of employment

T. Mollinger

and

National Jet Systems Pty Ltd

(U No. 60031 of 1998)

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT POLITES
COMMISSIONER GREGOR	MELBOURNE, 18 MARCH 1999

Appeal against decision - termination of employment - leave to appeal declined.

DECISION

[1] This is an appeal by National Jet Systems Pty Ltd (the appellant) against a decision made by Vice President Ross on 8 September 1998 [Print Q5911] in which the Vice President found that the appellant's dismissal of a Mr Trevor Mollinger was harsh and an order made by the Vice President on the same day requiring the appellant to reinstate Mr Mollinger and making some consequential orders in relation to payment.

[2] Mr Mollinger commenced employment with the appellant on 25 October 1995 and his employment was terminated on 4 February 1998. At the time of the termination Mr Mollinger had been working as a first officer on BAe 146 aircraft, although he had been held out of flying duties since 13 December 1997.

[3] On 11 December 1997 Mr Mollinger was first officer on a BAe 146 aircraft under the command of a Captain Kilvington. Shortly after take off from Cairns airport the aircraft flaps were prematurely retracted whilst the landing gear was still down and at an altitude of only 96 feet. The landing gear is normally retracted soon after takeoff and the flaps at 600 feet. Five seconds after retraction of the flaps commenced alarms sounded in the cabin and the angle of ascent decreased automatically due to the operation of a pre-set control system which takes over when there is a likelihood of the aircraft stalling. According to the flight data recorder the aircraft immediately lost some 80 feet in altitude, dropping from 428 feet to 349 feet whereupon a further alarm sounded. Retraction of the landing gear commenced some seven seconds later. By the time the gear was fully retracted, a further ten seconds, the aircraft had regained height and was flying normally.

[4] The Air Traffic Controller at Cairns observed the incident and reported it to the Bureau of Air Safety Investigation. The Bureau contacted the appellant which immediately commenced an internal investigation. On 13 December the appellant's chief pilot, Captain Smith, interviewed the cockpit crew in Perth and read the statements that they had prepared the previous day at the request of another senior pilot. At the end of the discussion Captain Smith advised Captain Kilvington and Mr Mollinger that they were both to undertake further training. At that stage Captain Smith did not envisage further disciplinary action.

[5] Captain Smith produced a report on 17 December 1997 in which he expressed the view that the flaps had been inadvertently retracted by Mr Mollinger. It is convenient to point out at this stage that the Vice President found, and it was not challenged on appeal, that Mr Mollinger did not receive a copy of this report until early January 1998. Captain Smith wrote to Mr Mollinger on 19 December in the following terms:

"You will recall that on 12th December 1997 you were suspended from Line Operations as a direct result of an incident while operating VH-NJL (QF923) as the First Officer (Pilot-Not-Flying). The circumstances surrounding this matter have now been investigated and you will recall our telephone discussion earlier on today.

The incident was as a direct result of the premature retraction of the Flap by you as the PNF, when the PF called for the Gear to be selected Up. The Cockpit Resource Management and PF/PNF duties broke down at some stage after the 80 KIAS call during the Take-Off roll and were not fully restored until the aircraft was climbing away some 60-75 seconds later. This breakdown is attributed to you as the PNF and your over concentration on peripheral matters. However, it is also difficult to accept that the PF did not recognise the inadvertent retraction of the Flap and that the additional warning clues as the situation developed were ignored, is also a major concern.

Additionally, the total lack of situational awareness during this incident, given the experience level of both Philip Kilvington and yourself is not easily explained. However, this factor coupled with the routine repetitive nature of the environment in which Airline Flight Crew operate does lead to a level of complacency. However, you should reflect on the hypothetical result given a departure from Cairns RW15. This would have seen a further degradation of performance. It is significant that in the Cairns RW33 case the performance of the aircraft was significantly better, being in straight flight, when compared to the minimum 25 degree angle of bank required to comply with the RW15 SID on passing the departure end of Cairns RW15.

Trevor, one element of the Investigation that is disturbing is the failure of the Operating Crew to report the matter to the company. We have over a period of time invested considerable energy to put in place a number of flight safety reporting lines of communication. As the investigation into the circumstances of the operation of VH-NJL has revealed, this was a very serious arising and one from which all could learn. Your part in the failure to report this matter given the circumstance can not be overlooked.

Further an examination of your Flight Crew History file highlights that at all stages since transition to the BAe 146 you have just achieved the minimum standard. There is considerable comment throughout this record with regard to knowledge of aircraft systems, adherence to SOPs, RT and concentration on the task at hand. Of significance is a comment `Has a tendency to flick switches without really looking at what is happening'. Any decision to return you to Line Operations must carefully consider a course of action that will either overcome or resolve these deficiencies.

At this point in time I do not have the available training resources to address these issues. As discussed today we all need some `time out' and you are to be rostered out on leave initially to 31 January, but, in probability through until 19/20 February 1998. The administrative action to effect this will be put in place by Captain Jorge Washington.

I will not be in a position to a advise the program for February until around mid January 1998."

[6] On 29 December 1997 Captain Smith received a letter from Mr Mollinger in which Mr Mollinger said that he rejected the allegations in Captain Smith's letter of 17 December and that he was taking legal advice. On 31 December 1997 Captain Smith met with senior management of the appellant. There was some conflict in the evidence as to what occurred at the meeting. Vice President Ross found that at the meeting Mr Seymour, the appellant's general manager, decided to terminate Mr Mollinger's employment and directed Captain Smith to implement the decision after 1 February 1998.

[7] Captain Smith wrote to Mr Mollinger on 12 January 1998 enclosing a copy of the investigation report which Captain Smith had prepared in December. The report contained the following passages:

"The PF did not recognise that the Flaps had been inadvertently retracted until after the STALL VLV A and B activation. As the GPWS activated and the aircraft began to sink whilst accelerating and despite this and other warning signs available to him, the PF at no stage increased Power to at least N1 REF ...

The incident was as a direct result of the premature retraction of the Flap by the PNF when the PF called for the Gear to be selected Up. The Cockpit Resource Management and PF/PNF duties broke down at some stage after the 80 KIAS call during the Take-Off roll and were not fully restored until the aircraft was climbing away some 60-75 seconds later. This breakdown is attributed to the PNF and his over concentration on peripheral matters. However, it is also difficult to accept that the PF did not recognise the inadvertent retraction of the Flap and that the additional warning clues as the situation developed were ignored, is also a major concern.

The total lack of situational awareness during this incident, given the experience level of both Pilots is not easily explained."

[8] In his letter of 12 January Captain Smith asked Mr Mollinger to meet with him on 21 January. On 15 January the appellant received a letter from Mr Havilah, a barrister and solicitor, in which Mr Havilah advised that he acted for Mr Mollinger and wished to be present at any meeting between Mr Mollinger and the appellant. On 19 January 1998 Captain Smith wrote to Mr Mollinger again, stating that "It is essential that the company now establish any additional factors that you may wish to bring to our attention." In that letter he indicated that there was no objection to Mr Havilah attending the meeting on 21 January. Mr Mollinger, however, did not attend the meeting, nor did Mr Havilah. The meeting eventually took place on 29 January 1998. By letter dated 4 February 1998 the appellant terminated Mr Mollinger's employment on the grounds of serious breach of operating procedures, namely the premature retraction of the flaps during takeoff from Cairns airport on 11 December the previous year.

[9] The substantive grounds relied upon on the appeal were:

(i) the Vice President erred in the application of the "fair go all round" concept;

(ii) the Vice President erred in considering the harshness of the decision in the circumstances that existed on 31 December 1997 rather than in those that existed on 4 February 1998;

(iii) alternatively to (ii), if the Vice President had considered the harshness of the decision in the circumstances that existed at 4 February 1998 he nevertheless failed to have regard to a relevant matter, namely Mr Mollinger's failure to co-operate in the January investigation, in particular his refusal to answer questions at the meeting of 29 January 1998;

(iv) the Vice President erred in finding that Mr Mollinger did not have a proper opportunity to respond for the purposes of s.170CG(3)(c) before the decision of 31 December 1997 to terminate his employment;

(v) if there was no opportunity given to respond it is not a significant omission because Mr Mollinger was given an actual opportunity to respond at the meeting of 29 January 1998 (which he refused to take advantage of) and in any event any explanation would not have assisted his case;

(vi) the Vice President erred in rejecting certain evidence given by Captain Smith;

(vii) the Vice President should have acted on Mr Seymour's evidence that in Mr Seymour's opinion retraining of Mr Mollinger was not appropriate;

(viii) the Vice President erred in taking into account the fact that Captain Kilvington's employment was not terminated in concluding that Mr Mollinger's dismissal was harsh, and

(ix) the Vice President erred in exercising his discretion to reinstate Mr Mollinger.

We will deal with each of these grounds in turn.

The application of the "fair go all round" criterion

[10] This ground raises for consideration the proper construction of s.170CA(2). Section 170CA(2) reads as follows:

"The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a `fair go all round' is accorded to both the employer and employee concerned.

Note: The expression `fair go all round' was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95."

[11] It was submitted by Mr White QC who appeared on behalf of the appellant that on its proper construction s.170CA(2) requires the Commission to ensure a fair go all round in relation to the processing of an application, the manner of its hearing and the remedies it awards. The requirement does not extend, however, to the Commission's consideration of the facts and circumstances surrounding the termination of employment in question. It followed, therefore, that the Vice President was wrong to conclude that whether there had been a fair go all round in the circumstances was a factor to be taken into account in determining whether the termination was harsh, unjust or unreasonable.

[12] In our view the appellant's construction of s.170CA(2) is too narrow. The reference to Loty and Holloway contained in the note at the foot of the section is important. The relevant passage from the judgment of Justice Sheldon is as follows:

"I believe that in the modern context expressions used in the older cases such as `harsh', `oppressive' and `unconscionable' as determinants as to whether intervention by an industrial authority is in its discretion permissible are properly interpreted on the basis simply of firstly deciding in all the circumstances, even though in the dismissal (be it summary or on notice) the employer has not exceeded his common law and/or award rights, whether the employee has received less than a fair deal. Mr Commissioner Manuel in a recent case put it in a nutshell and in language readily understood in the industrial world when he conceived his duty to be to ensure `a fair go all round'. In my view, the use of the old adjectives, with their overtones from other jurisdictions, tends to distort this basically simple approach in that they can be strained to mean that an employer can be less than fair in exercising his right to dismiss and yet stand outside the permissible area within which an industrial authority in its discretion may act." [at p.99]

[13] There is little doubt that s.170CA(2) enjoins the Commission to apply basic notions of fairness in carrying out its functions under Division 3. This injunction is not limited to the manner in which the hearing is conducted or the consideration of the remedy to be awarded but extends to the Commission's consideration of all of the relevant circumstances. Were it otherwise the reference to Loty and Holloway would not make sense. We do not understand Vice President Ross to have taken a different view. We reject the submission based on the construction of s.170CA(2).

Time at which harshness is to be assessed

[14] The Vice President concluded that although the employment was terminated on 4 February 1998 it was the implementation of a decision which had in fact been made on 31 December 1997. Looked at in that light, he concluded that the termination was harsh. The appellant submitted that this finding and conclusion involved error because the relevant time was 4 February 1998.

[15] In our view the Vice President's conclusion that the decision was made on 31 December was reasonably open to him. A number of substantial pieces of evidence support the conclusion. The most convincing of these is a memorandum from Captain Smith to Mr Alexander, the appellant's Group General Manager, Personnel and Administration, in which, with reference to the meeting of 31 December, Captain Smith said:

"The decision of that meeting was that First Officer Trevor Mollinger was to be terminated regardless of the cost. Additionally, you were to become involved to limit the liability of the company although it was accepted that some pay out would be required. A reply to Trevor's letter dated 28th December was to be delayed until I returned from leave on 1st February 1998."

[16] When Captain Smith gave oral evidence he at first denied that any decision had been taken at the meeting on 31 December to terminate Mr Mollinger's employment, but later testified that he disagreed with the directions he had been given at the meeting and that those directions included one that he was to terminate Mr Mollinger's employment after 1 February 1998. There was no denial by Mr Seymour that he had given such a direction at the 31 December meeting, and neither of the other two persons who attended the meeting apart from Captain Smith gave evidence. We reject the appellant's second submission.

Failure to have regard to a relevant matter

[17] The substance of the next argument was that whether the decision to terminate employment was made on 31 December 1997 or 4 February 1998, the Vice President erred because he failed to take into account the opportunity the appellant afforded Mr Mollinger to respond to the criticisms made of him in Captain Smith's report when he attended the meeting of 29 January 1998. In this connection it is relevant to point out that the Vice President found that Mr Mollinger had not been given the opportunity to respond to criticism which s.170CG(3)(c) envisages. In the circumstances of this case, which are unusual, the Vice President's conclusion in this respect is justifiable by reference to his earlier finding that the termination decision was made on 31 December 1997 - well before the meeting of 29 January - and the evidence upon which that finding was based. It was also open to him to find for the reasons he gave that no opportunity was ever given. It would also have been open to him to find that the meeting of 29 January was part of a process undertaken by the appellant in order to attempt to minimise the legal expenses of the company following the termination, consistent with the statement in Captain Smith's memorandum of 12 January 1998 that Mr Alexander was "to become involved to limit the liability of the company." The fact that Mr Mollinger refused to answer questions at the 29 January meeting only becomes relevant if, despite the finding that the decision to terminate had already been made, there was evidence before the Vice President which compelled the conclusion that the appellant's mind was truly open to the question of whether or not Mr Mollinger's employment should be terminated.

There is no such evidence. While there is evidence from which inferences could be drawn, it is not for us on appeal to substitute our own judgment for that of the member who heard the case.

[18] There was a further dimension to this submission. Mr White also contended that Mr Mollinger's failure to co-operate with an investigation into a serious incident affecting the safety of a passenger-carrying aircraft and the appellant's reputation was a significant matter which weighed against the conclusion that the dismissal was harsh. We find this submission unappealing. On no view of events was the meeting of 29 January about the incident at Cairns airport as such. It was clearly about Mr Mollinger. His failure to respond to questions carried at the most only a possibility of causing damage to the appellant, its reputation or its safety standards and that possibility was fairly remote.

An opportunity to respond

[19] Next the appellant submitted that even if the decision to terminate was made on 31 December, Mr Mollinger had an opportunity to respond to the case against him prior to that date. It was said that the opportunity arose at the meeting with Captain Smith on 13 December. We find this submission unconvincing. There was never a suggestion prior to the meeting on 13 December that Mr Mollinger's employment was in jeopardy. That meeting was a fact-finding exercise, an investigation of the incident. The Vice President accepted the evidence of the appellant's witnesses that at the end of the meeting Captain Smith told Captain Kilvington and Mr Mollinger that their suspensions were lifted and that they would receive confirmation of that in writing. At that time there was no reason for Mr Mollinger to suspect that the future of his employment would be determined at the 31 December meeting. On 19 December the appellant wrote to Mr Mollinger. Part of that letter is set out in paragraph [5] above. That letter indicated, among other things, that:

· Mr Mollinger had some deficiencies which needed to be corrected as part of any decision that he be returned to the line;

· he was to be on leave until the end of January at least;

· the program for February would be advised in mid-January 1998.

[20] By letter dated 28 December 1997 Mr Mollinger informed Captain Smith that he refuted any allegations contained in Captain Smith's letter of 19 December, was taking legal advice and sought more information about his flying status. Nothing in Captain Smith's letter indicated that Mr Mollinger's employment was in jeopardy and that he should put a case to management. Nothing in Mr Mollinger's letter indicates he believed he ought to do so. His concern was about whether he was being suspended from flying duties. He gave evidence he was apprehensive at this time about his future employment but we think that evidence carries little weight because of the representations made by Captain Smith at the end of the meeting on 13 December, and in his letter of 17 December, that the matters for consideration related to whether Mr Mollinger would be held back from operational duties and if so for how long. Furthermore Mr Mollinger was not aware that the 31 December meeting was to take place. He only found out about it many weeks later. There is no doubt that the Vice President's finding that there was no relevant opportunity for Mr Mollinger to respond to the case for his dismissal prior to 31 December was not only open on the evidence but correct.

Lack of opportunity to respond irrelevant

[21] The appellant submitted that if there was no opportunity to respond it was irrelevant because an actual opportunity for Mr Mollinger to put forward his case was afforded to him at the meeting on 29 January, which he spurned. It was further submitted that no explanation Mr Mollinger could have given would have had any effect on the position because of the nature of his misconduct.

[22] We think this submission has some merit. Regardless of the appellant's "state of mind" on 29 January, Mr Mollinger was given an opportunity to put his side of the story which he rejected. There seems little doubt he perceived some risk that he would lose his employment. The failure to co-operate was never satisfactorily explained but no doubt Mr Mollinger thought that silence would best serve his interests. Equally it might be said that any further information which Mr Mollinger had furnished would not have assisted him because it would not have added to information already available or would have been so incredible as to cause the appellant's officers to form the view that he was untrustworthy. These considerations of themselves, however, would not lead us to overturn Vice President Ross' decision. Whilst it is true that our conclusions on this point tend to undermine the force of the Vice President's conclusion that Mr Mollinger was not afforded an opportunity to respond to the case against him, whether a dismissal is harsh depends on all the relevant circumstances not just the matters identified in s.170CG(3)(a)-(d).

Captain Smith's evidence

[23] Under this ground the appellant submitted that the Vice President erred in rejecting certain evidence Captain Smith gave. It will be recalled that on 13 December Captain Smith told Mr Mollinger that he would be returned to the line. It is also clear that Captain Smith disagreed with Mr Seymour's decision of 31 December that Mr Mollinger's employment should be terminated. Vice President Ross properly attached a great deal of weight to the chief pilot's opinion on this matter, as do we. By the time he gave evidence before the Vice President, however, Captain Smith had changed his mind and supported the appellant's decision to terminate Mr Mollinger's employment. If Captain Smith's reason for changing his mind was soundly based that would be very significant. The Vice President, however, found that Captain Smith's stated reasons for changing his mind were unconvincing. He further found that Mr Seymour had overborne Captain Smith's judgment. Captain Smith's stated reasons for his change of mind were that he was convinced that Mr Mollinger had denied responsibility for the incident and further had, in the witness box, expressed the view that Captain Kilvington was in some way incapacitated at the time the incident occurred. He also said that Mr Mollinger's refusal to discuss Captain Smith's findings at the 29 January meeting was an influential factor also. As the Vice President pointed out, Captain Smith knew that Mr Mollinger refused to accept responsibility when he received Mr Mollinger's letter of 28 December. Yet on 31 December his view was that termination should not occur. Furthermore Captain Smith's own report of the incident indicated he was unable to explain Captain Kilvington's "total lack of situational awareness" during the incident. The Vice President's rejection of Captain Smith's evidence was within the ordinary bounds of the discretion available under s.170CG(3) and his finding was reasonably open on the evidence before him. It is not necessary that we examine the Vice President's conclusion that Captain Smith had been overborne by Mr Seymour on this issue, it is sufficient that we indicate that we have concluded that it was open to him to disregard Captain Smith's change of view.

Retraining

[24] The appellant submitted that the Vice President should have accepted Mr Seymour's evidence (which was not challenged in cross-examination) that because of the nature of his deficiencies as a pilot Mr Mollinger could not be successfully retrained. In those circumstances, the submission continued, termination of employment was the only course available to the appellant. Vice President Ross accepted that Mr Seymour was an experienced pilot and that he had statutory obligations as a Director and Chief Executive Officer. Nevertheless the Vice President, as he was required to do, formed his own view about the dismissal. In doing so he took into account the lack of any evidence that Mr Seymour ever interviewed Mr Mollinger about the incident and Captain Smith's original view that a further period of training was the appropriate course. As the appellant's chief pilot, with particular responsibility for operational safety, Captain Smith's opinion carries a great deal of weight and the Vice President was entitled to rely upon it. Captain Smith's original view was that after further training Mr Mollinger might be capable of returning to operational duties. Captain Smith's view subsequently altered in the manner discussed above, but even at the trial he refused to accede to the proposition that training would definitely be unsuccessful. Because there is no compelling reason why the Vice President ought to have accepted Mr Seymour's opinion, in our view he made no appealable error in not doing so.

Relevance of Captain Kilvington's treatment

[25] Next it was submitted that the Vice President erred in taking into account the fact that Captain Kilvington was not dismissed for his role in the incident. After a period of training Captain Kilvington was returned to flying duties.

[26] The Vice President pointed out that at the time of the incident Mr Mollinger had only recently converted to jet aircraft and had been a BAe 146 officer for less than six months. By contrast Captain Kilvington had over 9,000 flying hours in jet aircraft including nearly 3,000 hours in command of a BAe 146. The Vice President also dealt at some length with the evidence concerning Captain Kilvington's conduct during the incident. We shall not set it out here but in summary it includes evidence that Captain Kilvington:

· failed to recognise that the flaps had been prematurely retracted;

· failed to respond to the cabin warning systems in accordance with standard procedure;

· showed a "total lack of situational awareness" during the incident, and

· failed to report the incident within the time prescribed in the appellant's procedures in accordance with his responsibilities as captain.

[27] Given this evidence, which was not seriously challenged on appeal, it was open to the Vice President to regard Captain Kilvington's treatment by the appellant as a factor tending to show that Mr Mollinger's dismissal was harsh.

Reinstatement not appropriate

[28] Finally, it was submitted that even if Mr Mollinger's dismissal was harsh, reinstatement was an inappropriate remedy. Reliance was placed upon a range of factors including the incident at Cairns airport, some adverse comments on Mr Mollinger's flying record, gaps in his knowledge of standard operating procedures, including some revealed in cross-examination, and issues of public safety. We have examined the Vice President's reasons and the evidence to which Mr White referred us. We are not persuaded that the Vice President made any error on the facts, took into account any irrelevant consideration or failed to have regard to any relevant consideration. In our view the Vice President's conclusion that reinstatement is the appropriate remedy was clearly open to him on the evidence and we do not intend to disturb that conclusion. No doubt Mr Mollinger will require significant retraining, particularly because of the time which has elapsed since his dismissal. As the Vice President pointed out in his decision, his order requires the appellant to reinstate Mr Mollinger but does not require it to return him to operational flying duties. We have nothing to add to what the Vice President has already said on that issue.

Conclusion

[29] We decline to grant leave to appeal.

BY THE COMMISSION:

PRESIDENT

Appearances:

R. White QC and J. Hankin for the appellant.

P.J. Marsh of counsel for the respondent.

Hearing details:

1998.

Perth:

December 15, 16.

Decision Summary

		Termination of employment - unfair dismissal -- appeal - full bench - application 'fair go all round test' - Bench rejected claim that test had been misapplied - held findings challenged were reasonably open - leave to appeal refused.
Appeal by National Jet Systems Pty Ltd against a decision of Ross VP, print Q5911 of 1998
C No 50835 of 1998				Print R3130
Giudice J Polites SDP Gregor C			Melbourne	18 March 1999

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