Reinstatement for unfair dismissal; a reasonably rare case

The following extract from a recent Fair Work Commssion unfair dismissal case sets out the reasoning of the Deputy President to grant an applicant the reasonably rare remedy of reinstatement.

I apologize for the odd formatting but for some reason the decision has been issued by the Commssion as  PDF without formatting, and for that matter a mechanism to copy it with paragraphs displayed.

 

“Conclusion on harsh, unjust or unreasonable dismissal [190] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that the Respondent’s dismissal of Ms Henderson was not unjust, but it was harsh and unreasonable in all the circumstances. [191] The dismissal was not unjust because the Respondent had a valid reason for the dismissal and it afforded procedural fairness to Ms Henderson prior to making a decision to bring her employment to an end. [192] Having regard to all the circumstances, my assessment is that the dismissal was harsh, primarily because there were significant mitigating factors as to why Ms Henderson’s training had taken longer and cost more than had been initially anticipated by the Respondent, 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 (albeit such further training would continue to inconvenience to the operations and staff at the Lismore base and incur additional costs to the Respondent), Ms Henderson had excellent captaincy skills and had shown during her training that she made sound, carefully thought-out and safe decisions, and the dismissal was harsh in its consequences for Ms Henderson’s personal situation.111 [193] The decision to dismiss Ms Henderson was also, in my assessment, unreasonable in all the circumstances. I accept that the decision to dismiss Ms Henderson had an evident and intelligible justification in light of her inability to consistently maintain a stable hover in all circumstances, but the existence of an evident or intelligible reason for a decision is not the only basis on which unreasonableness can be established.112 The reasonableness of a decision [2023] FWC 314 47 must be judged objectively having regard to all the circumstances.113 It is not necessary to show that the decision in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.114 [194] The significant mitigating factors to which I have referred in paragraphs [174] to [179] above weigh in support of Ms Henderson’s contention that it was unreasonable of the Respondent to dismiss her rather than provide her with further training to bring her to the standard required. I have found on the balance of probabilities that it is likely that Ms Henderson would have met the standard required if she had been provided with a further period of training of about two weeks. Although the cost of training for a helicopter pilot is significant – about $3,000 per hour not including the cost of Ms Henderson’s salary and the inconvenience and cost associated with not having an operational Line Pilot at the Lismore base for a further two weeks – the decision taken by the Respondent to dismiss Ms Henderson also involved significant costs, including paying Ms Henderson five weeks’ wages in lieu of notice ($16,669.20)115 and paying for the training necessary for an already experienced AW139 helicopter pilot to be ready to fly for the Respondent ($43,000). 116 Apart from the narrow area of concern which needed to be remedied to bring Ms Henderson to the standard necessary to perform the role of Line Pilot safely, Ms Henderson had all the skills, experience and personal qualities to perform very well in the role of Line Pilot and make a meaningful and positive contribution to the Respondent’s business over a long period of time. Having regard to all the circumstances, my evaluative assessment is that the decision to dismiss Ms Henderson was unreasonable. [195] I therefore find that the Respondent’s dismissal of Ms Henderson was unfair. Remedy [196] Having found that Ms Henderson was protected from unfair dismissal, and that her dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. Ms Henderson seeks the remedy of reinstatement, together with orders maintaining her continuity of employment with the Respondent and backpay. [197] The Respondent submits that it would be inappropriate to reinstate Ms Henderson because it has lost trust and confidence in her such as to make reinstatement impractical. The Respondent contends that it does not have trust and confidence that Ms Henderson could safely and effectively perform the Line Pilot role and this view is soundly and rationally based on Ms Henderson’s employment history and the Respondent’s safety obligations. The Respondent emphasises the fact that the Line Pilot role is a safety critical role and Ms Henderson has failed, in the Respondent’s assessment, to demonstrate the competencies required to perform the role. [198] The Respondent submits that it is difficult to see how an employment relationship could be restored with a sufficient level of cooperation, confidence and mutual trust following reinstatement to be viable in circumstances where Ms Henderson has demonstrated in her evidence and submissions: (a) A lack of recognition of the performance issues that occurred during her training, including those during the 4, 5 and 6 January 2022 training sorties and the subsequent [2023] FWC 314 48 training review process and meetings with human resources that took place. Ms Henderson’s written evidence did not acknowledge any shortcomings in her performance. Rather, she demurred and detracted from those matters. It was not until cross examination that Ms Henderson made any concessions regarding her flying and that was largely limited to accepting Mr Fisher did have some criticisms of her NVIS hovering on 20 and 21 December 2021, that she did not fly the sortie on 5 January 2022 ‘well’ but it was due to other contributing circumstances such as weather and location, and that she received feedback on 16 March 2022 from Mr Humphreys regarding drift; (b) A lack of appreciation of the seriousness of the performance issues that led to her dismissal – being issues with the essential flying skills of a Line Pilot following more than 90 hours of training – or the inherent safety risk of those concerns; and (c) That she holds the view she was treated differentially by the Respondent. This submission is further supported by Ms Henderson’s clear attack on the actions and opinions of Mr Fisher, the Respondent’s Head of Flying Operations, both on a professional and personal basis. Mr Fisher’s actions were reasonable in the performance of his senior roles that have statutory obligations to safely manage training activities and conduct safe, efficient and compliant operations in a highly regulated industry. Ms Henderson’s characterisation of all actions taken by Mr Fisher to be biased since her recruitment supports the contention that a productive and viable relationship would not be able to be restored. This damaged relationship would undermine crew resource management and aviation safety leadership within the Respondent and has the potential to lead to future disputation in the workplace. [199] The Respondent submits that a critical part of helicopter aviation is the importance for the entire crew to have trust in one another. It is submitted by the Respondent that such trust in Ms Henderson to perform the full inherent requirements of the Line Pilot role was not held by the Respondent’s employees prior to her dismissal, with the exception of Mr de Winton who recruited Ms Henderson for the role. Where Ms Henderson is brought back into the Respondent’s business as a Line Pilot by way of reinstatement order, this would impair the Respondent’s managerial prerogative and ability to take risk mitigation measures to ensure that the crew has trust in one another where there are identified and documented concerns by multiple crew members. It would require Ms Henderson to fly with crew, who themselves did not have the requisite trust and confidence in her during employment, and paramedics, doctors and patients in a challenging and dynamic risk environment. The Respondent submits that this would foster a damaging culture within the workplace that is not productive or viable. [200] The Respondent further submits that the Line Pilot role requires the Respondent to obtain the consent of New South Wales Ambulance to engage Ms Henderson to perform the services and New South Wales Ambulance has the contractual right to reject any proposed personnel. It is contended that it would not be appropriate for the Commission to order reinstatement in circumstances where Ms Henderson’s ability to perform the inherent requirements of the role and obtain approval of New South Wales Ambulance would not be known to the Commission at the time of making the order. [201] It is submitted by the Respondent that the Lismore base currently has five Line Pilots, including a new Line Pilot who replaced Ms Henderson on 25 July 2022. Because it is not [2023] FWC 314 49 known what resources would be required to get Ms Henderson’s performance to the Respondent’s standard to perform the Line Pilot role, the Respondent contends that it would be inappropriate for the Commission to reinstate Ms Henderson. The Respondent also says that reinstatement would result in an additional unbudgeted cost of approximately $190,000 per annum (wages plus superannuation) plus training costs for the Lismore base. Practically, the Respondent submits that reinstatement would mean that there is an additional pilot on base without work to perform because the resources required to under the services require a roster of 4 days on, 4 days off roster of 12 hour shifts that is already filled. If the roster was adjusted due to Ms Henderson’s reinstatement to reduce the hours of other employees, or to have an additional pilot without duties at the base, then this would likely have flow-on issues, including impact the flying currency requirements hours of pilots. [202] The Respondent does not agree that Ms Henderson would not require further training if she were reinstated. The Respondent’s TCM would still apply to Ms Henderson and she would be required to undertake and complete additional training with the Respondent’s training team prior to commencing operations as a Pilot in Command. In this regard, the Respondent says that Toll Helicopter’s operations pursuant to the contract under which Ms Henderson is currently working are not identical to the Respondent’s operations. [203] The Respondent submits that Ms Henderson’s assertions concerning her strong connections with, and support from, Lismore based pilots, ACOs, engineers, paramedics and doctors are not supported by evidence. [204] Lastly on reinstatement, the Respondent relies on the requirement under the Act to ensure that a ‘fair go all around’ is accorded to both the employer and the employee in unfair dismissal proceedings. The Respondent contends that it is critical and in the public interest that, as an aviation provider who carries passengers and with safety responsibilities under CASA and workplace health and safety laws, the Respondent and its management team are able to make reasonably practicable decisions about the competency of its operational crew members, particularly where the crew members are conducting their initial training prior to commencing operational duties without supervision. It is submitted that the nature and quality of the work conducted in the Respondent’s operations weighs in favour of the Commission not intervening to order reinstatement in this case. [205] The Respondent acknowledges that it is the only locally based HEMS operator in the Lismore area, and that Ms Henderson has needed to return to touring pilot positions following her dismissal by the Respondent. However, the Respondent submits that those matters, particularly taking into account Ms Henderson’s short employment period and the fact that she resided in the Lismore area without employment with the Respondent for approximately eight years prior to her six months and 26 days of employment with the Respondent, are not sufficient to counterbalance the strong competing considerations against and order for reinstatement given the particular circumstances of this case. [206] In the event that the Commission finds in favour of Ms Henderson with respect to reinstatement, the Respondent submits that there ought to be no orders made for continuity of service or back pay. A decision to order reinstatement is separate and distinct from the exercise of a discretion to make an order maintaining an employee’s continuity of employment and continuous service. It is submitted that the reinstatement of Ms Henderson would still require [2023] FWC 314 50 the Respondent to assess her competency to commence Pilot in Command operations in accordance with clause C4.2.2 of the TCM. It is submitted that Ms Henderson’s period of service with the Respondent should not be continuous taking into account the time that has now elapsed since she was employed by the Respondent, the time that it will take for her to undertake further training and the fact that she did not during her employment undertake the full requirements of the Line Pilot role. [207] A Full Bench examined the relevant principles concerning an alleged loss of trust and confidence in the context of an application for reinstatement in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (references omitted):117 “[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases: • Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. • Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. • An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. • The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. • The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. [28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” [2023] FWC 314 51 [208] After the termination of her employment with the Respondent, Ms Henderson obtained employment with Toll Helicopters as a Crash Rescue Helicopter line pilot flying AW139 helicopters. That employment commenced on 22 August 2022. Ms Henderson has received extensive training during her employment with Toll Helicopters, including approximately 40 hours in the simulator and three weeks of training flights including day, night, NVIS, land, water, winching and vessel training.118 The majority of these training sorties were responses to primary mission scenarios with various levels of complexity to replicate the sorts of challenges that might be faced during operational missions on both the Crash Rescue Helicopter contract and Toll Helicopter’s contract to undertake HEMS work for New South Wales Ambulance from Bankstown.119 Ms Henderson’s training with Toll Helicopters was continuous with one or two flights each day. There was a large emphasis in the training on instruction and teaching, appreciating that the pilots were developing their high level of familiarity with the AW139 aircraft, local procedures and Toll Helicopter’s procedures.120 Ms Henderson progressed through the training well with no difficulty.121 [209] Following the completion of her proficiency checks with Toll Helicopters, Ms Henderson completed aircraft line training in Darwin, including simulated crash rescue helicopter response missions which incorporated day, instrument and NVIS flights, confined area flights and winching. At no stage were any concerns raised by Toll Helicopters with Ms Henderson about her flying ability, precision handling or ability to maintain a stable hover.122 Ms Henderson has been checked to line by Toll Helicopters with no operational restrictions and is currently operational on the line in Darwin.123 Ms Henderson’s line check with Toll Helicopters involved a NVIS confined area and winching simulator mission.124 Ms Henderson completed her line check ‘first time’ and did not require any further or remedial training.125 [210] At the time Ms Henderson made her reply witness statement on 19 October 2022 she had not completed hi-line and water training with Toll Helicopters. Ms Henderson gave evidence that such training was expected to be given in the coming months.126 [211] Ms Henderson says that the essential skills and requirements of a crash rescue helicopter pilot are the same as those required of a HEMS pilot and include single-pilot day, night, NVIS with landings required to remote land on sites as well as winching, which would be sufficient to gain approval as a line pilot with New South Wales Ambulance; it will also include search and rescue and water winching once the training has been conducted.127 Mr Richard Maas, Line Trainer and Crash Response Helicopter Pilot employed by Toll in Darwin, who has experience in the HEMS industry, gave evidence that the position of crash response helicopter pilot requires the same skill sets as those required on the New South Wales HEMS contract, including NVIS winching.128 Mr Fisher is not aware of the exact details of Ms Henderson’s new job with Toll Helicopters, but says the tasking rate, being the number of missions to be undertaken each year, is lower.129 [212] Mr Maas also gave unchallenged evidence, which I accept, that he:130 • considered that Ms Henderson planned and conducted her line check mission with Toll Helicopters to a high standard; • was impressed with Ms Henderson’s professionalism and pure flying skills; and [2023] FWC 314 52 • is of the opinion that Ms Henderson has adapted to the flying conditions in the Northern Territory (which can be very difficult with low contrast terrain and poor visibility) and operates in a very safe and deliberate manner. [213] I accept the consistent evidence given by Ms Henderson and Mr Maas that the essential skills and requirements of a crash rescue helicopter pilot are essentially the same as those required of a HEMS pilot, including NVIS winching. It follows that, in the period since 22 August 2022, Ms Henderson has received significant additional training and experience in an AW139 aircraft undertaking similar work to that which is required of a Line Pilot employed by the Respondent. This additional training and experience with Toll Helicopters, coupled with the fact that Ms Henderson had a narrow area of deficiency when she was being trained by the Respondent, gives me confidence that Ms Henderson would be able to perform the requirements of the role of Line Pilot with the Respondent in a safe and competent manner if she were reinstated. I accept that the Respondent would need to assess Ms Henderson’s competency and provide her with further training in accordance with the requirements of the TCM before checking her to line and giving her operational duties if she were reinstated. On the evidence before the Commission, I am satisfied on the balance of probabilities that if Ms Henderson were reinstated by the Respondent she would be checked to line within a reasonably short period of time and then able to be assigned operational duties. [214] As to the Respondent’s contention that it does not have the trust and confidence in Ms Henderson’s ability as a pilot to reinstate her as a Line Pilot, I accept that the position of Line Pilot is a safety critical role and it is essential that the Respondent’s Line Pilots be able to conduct their duties in a consistently safe and competent manner. However, the Respondent’s area of concern in relation to Ms Henderson’s skills and ability was narrow, it was agreed that the deficiency was remediable with further training, and Ms Henderson has received a significant amount of additional training and experience in an AW139 aircraft since her dismissal. There has never been any doubt about Ms Henderson’s captaincy skills or her ability to make safe and well-thought-out decisions as a Pilot in Command. The evidence demonstrates to my satisfaction that Ms Henderson either now has, or will have after a brief period of further training by the Respondent, the skills and ability to undertake the role of Line Pilot for the Respondent in a safe and competent manner on a consistent basis, including maintaining a consistently stable hover during NVIS winching and other activities. Assuming that Ms Henderson performs well in her further training by the Respondent and is checked to line (as I expect will be the case), there would be no rational basis for any of the Respondent’s employees or any paramedics, doctors or patients to have a lack of trust or confidence in Ms Henderson’s ability to safely and competently operate a AW139 aircraft. [215] There would clearly be a cost to the Respondent to assess Ms Henderson’s competency and provide her with whatever additional training is required by the Respondent’s TCM before conducting her line check following her reinstatement. This is a matter which weighs against making an order for reinstatement. However, no evidence was adduced to suggest that the Respondent could not afford such costs or that they would cause the Respondent significant financial difficulties. As a result, the weight to be given to this factor is not as significant as it would be in a case where the costs associated with assessing the competency of an employee and providing further training to them after reinstatement would cause significant financial difficulties to the employer. [2023] FWC 314 53 [216] I do not accept the Respondent’s contention that Ms Henderson demonstrated a lack of recognition of the performance issues that occurred during her training or a lack of appreciation of the seriousness of those performance issues. For example, Ms Henderson has always accepted that she did not perform well during her training sortie with Mr Overton on 5 January 2022.131 Ms Henderson clearly regrets, in hindsight, attempting the winching exercise during the poor weather conditions on the night of 5 January 2022, but she has never pretended that she performed well during the training exercise.132 Understandably, Ms Henderson was surprised and upset when she was prevented from undertaking her check to line on 22 March 2022, having passed every proficiency check given to her by the Respondent and completed her line training. Ms Henderson’s recognition and appreciation of the performance concern identified by the Respondent is evident from the three options proposed by her in her response to the show cause letter: option 1 was to permit Ms Henderson to undertake her check to line and then potentially place an operational restriction on her ability to undertake NVIS winching for a period of time; option 2 was to provide further remedial training; and option 3 was to allow Ms Henderson to “pay for a vertical referencing course at … [her] own expense to improve … [her] hovering without a reference”.133 [217] True it is that Ms Henderson has been critical in her evidence and submissions of particular conduct on the part of Mr Shepherd and Mr Fisher. Mr Shepherd has left his employment with the Respondent. As a result, he will not be working at the Lismore base if Ms Henderson is reinstated. In any event, Mr Shepherd did make inappropriate comments to Ms Henderson during her first training flight, including that he was keeping a ‘paper trail’ for the purposes of her dismissal. As to Mr Fisher, I have found for the reasons explained in paragraph [184] above that he wanted the Respondent to employ an experienced and qualified AW139 pilot in lieu of Ms Henderson, and after he was not able to convince others to agree to that course of action, he repeatedly campaigned for Ms Henderson’s dismissal throughout her employment. On the evidence before the Commission it is clear that Mr Fisher was the chief instigator, and most forceful advocate in favour, of the decision ultimately made by the CEO to dismiss Ms Henderson. That is a decision which I have assessed to be harsh and unreasonable in all the circumstances. It follows that Ms Henderson had a sound and rational basis in her evidence and submissions to criticise Mr Fisher’s role in the termination of her employment. Notwithstanding this, Ms Henderson came across during her evidence as a very calm and levelheaded person; I do not sense that Ms Henderson has any personal animosity towards Mr Fisher and I am confident that Ms Henderson would be able to work with Mr Fisher in a professional and courteous manner in his role of Head of Flight Operations based in Newcastle, if she were reinstated to her position of Line Pilot based in Lismore. [218] Having regard to all the circumstances, I am comfortably satisfied that a sufficient level of trust and confidence can be restored to make an employment relationship between Ms Henderson and the Respondent viable and productive. [219] That New South Wales Ambulance has the contractual right to reject any proposed personnel engaged by the Respondent does not, in my assessment, weigh in support of an argument that it would be inappropriate to order the reinstatement of Ms Henderson. There is no evidence or reason to suggest that New South Wales Ambulance would exercise this right unless it had any genuine concerns about the safety, competency or relevant personal traits of a Line Pilot employed by the Respondent. For the reasons I have already explained, I consider it highly likely that Ms Henderson will be checked to line by the Respondent within a short [2023] FWC 314 54 period of time and assessed as safe and competent to work as a Pilot in Command on an AW139 aircraft. [220] I accept that the Respondent has five Line Pilots employed at the Lismore base, does not require any other Line Pilots based at Lismore, and will incur additional costs and inconvenience to its operations and potentially to other Line Pilots if Ms Henderson is reinstated to her position as a Line Pilot based in Lismore. [221] It is not uncommon for a position occupied by an applicant for relief from unfair dismissal to no longer be vacant at the time the unfair dismissal application is determined. However, this “bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not ‘appropriate’. To adopt such an approach would tend to defeat the remedial purpose of the legislation. The unavailability of a job vacancy is simply one factor to be taken into account in deciding whether or not an order for reinstatement is appropriate.”134 [222] Of relevance in the present case is the fact that one of the five Line Pilots based in Lismore was employed on 25 July 2022 to replace Ms Henderson. Another one of the five Line Pilots based in Lismore was also employed on 25 July 2022 to replace Mr Shepherd, who resigned with effect on 9 June 2022.135 The evidence does not reveal whether either or both of those Line Pilots were engaged on a fixed term or outer limit employment contract. [223] Ms Henderson’s union representatives lodged her unfair dismissal application in the Commission on about 25 May 2022. The remedies sought by Ms Henderson in that application were reinstatement, an order to maintain continuity of employment, and an order to restore lost pay. Accordingly, the Respondent was aware when it employed two new Line Pilots at the Lismore base on 25 July 2022 that Ms Henderson was challenging the fairness of her dismissal and was seeking to be reinstated to her position as a Line Pilot at the Lismore base. If the Respondent has not taken any steps to engage at least one of the new Line Pilots based in Lismore on an outer limit contract or some other basis that would address the prospect that Ms Henderson could be reinstated to her position as Line Pilot based in Lismore, then the cost and inconvenience associated with ordering the reinstatement of Ms Henderson to the position of Line Pilot at the Lismore base such that there are six Line Pilots at that base is largely a consequence of the Respondent’s own actions or inactions. For these reasons, I will give limited weight to the matters referred to in paragraph [220] above when assessing the appropriateness of an order requiring the Respondent to reinstate Ms Henderson. [224] Having regard to all the circumstances, I do not consider that the making of an order to require the Respondent to reinstate Ms Henderson would result in the Respondent not being accorded a ‘fair go all around’. There is no doubt that the Respondent and its management team should, as an aviation provider who carries passengers and with safety responsibilities under CASA and workplace health and safety laws, be permitted to make decisions about the competency of its operational crew members, particularly where the crew members are conducting their initial training prior to commencing operational duties without supervision. However, such decisions must not be unreasonable, harsh or unjust if the employee concerned is protected from unfair dismissal and the Respondent wishes to avoid the risk of a reinstatement order being made. Conclusion on remedy [2023] FWC 314 55 [225] In all the circumstances, my evaluative assessment is that the appropriate remedy in this case is an order under s 391 of the Act reinstating Ms Henderson to the position in which she was employed immediately before the dismissal: Line Pilot based at Lismore. For the reasons already explained, I am satisfied that a sufficient level of trust and confidence can be restored to make an employment relationship between Ms Henderson and the Respondent viable and productive. The other matters raised by the Respondent do not persuade me that reinstatement would be inappropriate in all the circumstances of this case. [226] I also consider it appropriate to exercise my discretion to make an order under s 391(2)(a) of the Act to maintain the continuity of Ms Henderson’s employment with the Respondent. I am not persuaded by the Respondent’s arguments that such an order should not be made having regard to the time that has now elapsed since Ms Henderson was employed by the Respondent, the time that it will take for her to undertake further training and be assessed by the Respondent, and the fact that she did not during her employment undertake the full requirements of the Line Pilot role. Ms Henderson was employed by the Respondent for just over six months. She worked diligently and to the best of her ability during that period before being harshly and unreasonably dismissed. I consider that the interests of justice warrant the making of an order for continuity of employment in all the circumstances. [227] However, I am not prepared to exercise my discretion to make an order for backpay in this case. Notwithstanding that Ms Henderson was without any income for a period of 10 weeks and 2 days before she commenced employment with Toll Helicopters (at a slightly higher rate of pay than she received during her employment with the Respondent), I do not consider that it would be just in all the circumstances of this case to make an order for backpay. In making this evaluative assessment I am mindful of the fact that the Respondent spent approximately $169,000 on Ms Henderson’s training, which was approximately $58,100 more than initially budgeted.136 Further, the Respondent will be required to undertake further training of Ms Henderson in accordance with the TCM when it reinstates her. ”

 

Henderson v Northern NSW Helicopter Rescue Service Limited – [2023] FWC 314 delievered 7 February 2023 per Saunders DP