Full Bench endorses employer’s decision to dismiss a trainee
A Full bench of the Fair Work Commission has overturned an earlier ruling by a single Commissioner that the dismissal of a trainee for failing an examination did not comply with the terms of the prevailing enterprise agreement and was, therefore, incorrect.
The former employee, ‘LC’, commenced employment with Airservices Australia (Airservices) as an air traffic controller trainee on 11 November 2019 and was classified as an ‘Ab Initio Trainee’ under the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023 (the Agreement).
The training he was undertaking is for a 13 to 15-month period, and when successfully completed, qualifies the trainee with a Diploma of Aviation (Air Traffic Control), following which there would be an assignment to field location training for approximately four months.
During Phase 1 of his training, L C failed two units with scores of 67.6% and 66%. He then passed supplementary examinations, achieving scores of 70% and 90%. He subsequently failed a theoretical examination covering aircraft separation in airspace, achieving only 45.9% against the required pass mark of 70%.
He then sat a supplementary examination for the module on 14 August 2020 but again failed, achieving a score of 68.7%. He was placed on a “training review” and instructed not to return to work. In February 2021, Airservices formed the view that his training should be terminated and informed him of this recommendation.
Clause 50 of the Agreement, ‘Performance, Conduct, Termination of Employment’, sets out the processes to be followed when Airservices is unhappy with an employee and offers various options, including the ability to terminate an employee.
Further, Schedule 1 of the Agreement specifically states that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”.
In the initial decision handed down in August 2022, Commissioner Nick Wilson held that by dismissing the trainee, Airservices failed to comply with clause 50 of the Agreement, which details that “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 …”. In Commissioner Wilson’s view, Airservices failed to “constructively assist” the trainee to improve his performance, and ordered the air traffic trainee to be reintroduced to the next cohort of trainees.
In the collective view of the Full Bench, comprising Deputy Presidents Val Gostencnik and Amber Millhouse and Commissioner Chris Simpson, Commissioner Wilson erred in his interpretation of the Agreement.
They determined that there was no impediment to Airservices’ decision to terminate the trainee. As they noted,
“Thus, the object of the employment of an Ab Initio is the provision of training by Airservices and the satisfactory completion of the training by the Ab Initio with the aim of becoming an Air Traffic Controller. And so, unsurprisingly, the Agreement makes express and unfettered provision for Airservices to determine that the employment as an Ab Initio be terminated if the Ab Initio fails to complete an essential component of their training”.
The Full Bench determined that the wording of Schedule 1 (2) “This Schedule 1 applies to Ab Initios only. To the extent of any inconsistency, this schedule applies to the exclusion of other parts of this Agreement’ meant that Airservices was not required to comply with clause 50 in their decision to terminate the trainee.
The dispute was dismissed.
For queries about performance management, trainees and apprentices, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.