FairWorkAct 2009
s.739 - Application to deal with a dispute

Mr Luke Crouch
v
Airservices Australia
(C2021/6964)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. Jurisdictional objections; whether text of body of agreement inconsistent with schedule; whether clause has application to trainees. Construction of enterprise agreement. Whether procedural fairness afforded. Inferences about persons not giving evidence.

INTRODUCTION

[1] This decision concerns an application made pursuant to s.739 of the Fair Work Act 2009 by Luke Crouch, a trainee air traffic controller employed by Airservices Australia. The application is for the Fair Work Commission to deal with a dispute arising under an enterprise agreement, with the alleged dispute relating to Airservices’ foreshadowed decision to terminate Mr Crouch’s training. The dispute arises under the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023 1 (the 2020 Agreement).

[2] The application was made in October 2021 and was initially dealt with by me in conciliation. When conciliation did not resolve the matter, it was the subject of a hearing at which Mr Stephen Hardy, solicitor from K & L Gates appeared on behalf of Mr Crouch and Mr Jon Lovell, solicitor from Ashurst appeared on behalf of Airservices. Each lawyer appeared with permission being given by me, being satisfied of the criteria within s.596(2)(a).

[3] Mr Crouch provided gave evidence on his own behalf. Four witnesses gave evidence on Airservices’ behalf: Marcus Knauer, Stephen Clarke, Antoinette Crisara, and Frank Bosnich. Mr Knauer was involved in bargaining for a predecessor to the 2020 Agreement, the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 2 (the 2017 Agreement). For a substantial period of the matters in dispute Mr Clarke was Airservices’ Operational Training Head; Ms Crisara was the Acting Trainee Coordinator; and Mr Bosnich was the Acting Air Traffic Control Training Lead.

[4] The dispute surrounds Airservices’ view that Mr Crouch’s training agreement should be terminated and that, in arriving at that decision and because of the terms of Schedule 1 (Ab Initios) of the 2020 Agreement, it does not have to apply the terms of Clause 50 (Performance Conduct, Termination of Employment) to Mr Crouch.

[5] For the reasons detailed below, I find that Airservices did not comply with Clause 50 and that the appropriate action to be taken is for Airservices to recourse Mr Crouch to another training cohort.

BACKGROUND

[6] Luke Crouch was offered employment with Airservices as an air traffic control trainee in September 2019 and began work with the organisation shortly after in November 2019. The work he was to perform was training towards becoming a fully licensed Air Traffic Controller.

[7] Airservices is a government business enterprise and has an Australian monopoly on the provision of air traffic control services within Australia’s airspace. An Air Traffic Controller may only work in Australia for Airservices. The organisation is a Registered Training Organisation and provides both theoretical and practical training to trainees over a period of time. As might be imagined the training is rigorous and a high degree of trainees do not complete their training. 3

[8] When he started employment with Airservices Mr Crouch had worked in other industries and did not have prior experience in the aviation industry. He recalls being told in the interview and assessment centre processes in August 2019 that “this did not matter and that Airservices would provide all necessary training and support”. 4 When he applied for employment with Airservices he lived in Brisbane and took the position in the knowledge that his training would be conducted in Melbourne.

[9] Mr Crouch signed a contract of employment with Airservices on 22 September 2019. That contract committed him to commence initial training on 11 November 2019. This was expected to be completed in approximately 13 – 15 months, at which time he would be provided with a Diploma of Aviation (Air Traffic Control) and then assigned to field location training which would take approximately four months. Initial Training was stated to be guided by, and subject to, the Registered Training Organisation Operations Manual and the ANS Initial Training Manual. Mr Crouch was placed in a training cohort known as En Route Course Number ATC – 152. Arrangements were made to meet his travel expenses from his home in Queensland to the initial training location at Melbourne Airport.

[10] Training as an Air Traffic Controller requires study for, and completion of, five phases of training, each of different durations, comprising a total of 23 modules. 5

[11] Phase 1 of Mr Crouch’s training, dealing with theory only, started upon employment in November 2019 and continued until 10 March 2020. His results for the Phase 1 assessments were generally good, with 10 out of 12 exams passed and pass marks ranging between 83% and 100%. The pass mark for all Phase 1 subjects is 70%. During Phase 1 Mr Crouch failed two units on his first attempt with scores of 67.6% and 66%. He subsequently passed the supplementary exams, achieving 70% and 90%. 6 Mr Crouch contends that others in his training cohort “failed at least 1 exam” and had to undertake supplementary exams.7

[12] His training then moved into Phase 2 on 11 March 2020, with that phase comprising both theoretical and practical training.

[13] In late June 2020 Mr Crouch became ill and his capacity to work was impacted because of the then applicable COVID – 19 Pandemic protocols. On Sunday, 28 June 2020, having taken a COVID – 19 test, he was instructed to self-isolate until he returned a negative test. That did not take place until 8 July 2020 and he was then not cleared for a return to work until 13 July 2020. Mr Crouch missed two weeks of work during this period.

[14] On 22 July 2020, shortly after returning to work, Mr Crouch was required to sit a theoretical exam. The exam was for a module known as ASA 119 Separation Standards. Mr Crouch failed badly, achieving 45.9%, 8 against the required pass mark of 70%.9 He later sat a supplementary exam for the module on 14 August 2020, slightly more than 3 weeks after the original exam. While he did appreciably better in the supplementary exam than on his first attempt, achieving 68.7%, the result was not a pass.

[15] Mr Crouch was then immediately placed on “training review” and instructed not to return to work.

[16] The parties contest what occurred between the two exams for the Separation Standards module and whether Mr Crouch was provided with sufficient support by Airservices. They also vigorously contest what should have been done as a result of not passing the supplementary exam, and whether Mr Crouch’s overall progress for the phase indicated proficiency or not.

[17] After placing Mr Crouch on training review in August 2020, in February 2021 Airservices formed the view that Mr Crouch’s training should be terminated and informed him of this recommendation.

[18] When Mr Crouch sought to appeal that review and pointed out that it omitted consideration of an important matter of fact Airservices either undertook a second training review or reissued the original review in a second version (which of the two was done is a matter of dispute). Both such documents upheld the recommendation that Mr Crouch’s training should be terminated, with the second report or version being concluded in April 2021.

[19] On 14 April 2021 Mr Crouch requested a review of the recommendation, by letter to Steven Clarke. Mr Crouch was informed of Mr Clarke's decision to uphold the recommendation on 27 April 2021. 10

[20] In May 2021 Mr Crouch commenced an academic appeal against that conclusion and raised a dispute under the 2020 Agreement. The academic appeal was rejected in June 2021.

[21] Having been told by the author of the academic appeal that he could have an independent review conducted by Airservices’ Employee Assistance Program (EAP) provider Mr Crouch sought to do so in July 2021, and then learned that the EAP provider did not provide such a service. Airservices instead offered a mediation with it to be conducted by the EAP provider which Mr Crouch attended in October 2021; however, the mediation did not resolve the dispute. Shortly after, on 15 October 2021, Mr Crouch commenced a s.739 dispute application in the Commission.

QUESTIONS FOR DETERMINATION

[22] Mr Crouch characterised the dispute to be resolved by the Commission in the following manner in the closing submissions made on his behalf;

“(a) whether the Respondent, Airservices Australia, has breached Clause 50 (being Clause 50.1, 50.2 and/or 50.3) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020 - 2023, ID Code: AE507712 (Enterprise Agreement)? ; and, if so

(b) whether the Applicant should be recoursed and/or provided with other remedial training in accordance with Clause 50 of the Enterprise Agreement to ensure that provision is complied with by Airservices Australia.” 11

[23] The Respondent characterises the dispute somewhat more simply with two primary propositions that require resolution but in a way that requires consideration of two threshold questions;

“1. The Applicant has notified a dispute under clause 10 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020 – 2023 (ATC EA) in relation to:

(a) whether Airservices Australia has complied with clause 50 of the ATC EA; and

(b) whether Airservices should re-course the Applicant and/or provide the Applicant with remedial training in accordance with clause 50 of the ATC EA.

2. Airservices submits that the threshold questions for determination by the Commission are:

(a) whether clauses 2 and 4 of Schedule 1 to the ATC EA operate to exclude clause 50 from applying to Applicant;

(b) alternatively, whether clause 50, by its terms, applies to the Applicant's circumstances as an ab initio trainee.”  12

[24] Disputes may be brought to the Commission in the manner set out in the 2020 Agreement’s Clause 10, which allows the raising and progression of “a dispute about a matter arising under this Agreement or in relation to the National Employment Standards between Airservices and an employee or employees whose employment is subject to this Agreement”. If after conciliation the dispute is unresolved, “the FWC can arbitrate the dispute and make a determination that is binding on the parties, subject to either party exercising a right of appeal against the decision to a Full Bench of the FWC”.

[25] Airservices submit that the dispute is not validly before the Commission, since Clause 50 does not apply to Mr Crouch, or any other Ab Initio trainee, owing to the clause being inconsistent with Clauses 2 and 4 of Schedule 1. 13 Further, if there is no inconsistency between Schedule and Clause 50, the operation of Clause 50 is confined, with its terms not applying to Ab Initio trainees. Clause 50 is directed at assisting the return of an employee to performance at a satisfactory standard, whereas an Ab Initio trainee, being unqualified and inexperienced in the field of air traffic control, does not have performance standards to meet.14 Even if Clause 50 applies to Mr Crouch’s employment, Airservices has in substance met the requirements of the term in Mr Crouch’s case, with a number of his grievances having marginal, if any, relevance to whether Airservices has met the requirements of Clause 50.15

[26] In considering the parties’ respective submissions on the subject of the matters to be determined and noting there is some but not complete consistency of views between the parties about the matter to be arbitrated, I will determine the dispute by answering the questions posed by Mr Crouch, with some minor changes, and in the course of doing so address Airservices’ objections. The two Questions for Determination are;

1. Has Airservices Australia, complied with Clause 50 of the 2020 Agreement?;

2. If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices? 16

FIRST QUESTION – HAS AIRSERVICES COMPLIED WITH CLAUSE 50?

(a) Whether clauses 2 and 4 of Schedule 1 operate to exclude Clause 50

[27] In considering the first question for determination regard needs first to be given to whether clauses 2 and 4 of Schedule 1 to the 2020 Agreement operate to exclude Clause 50 from applying to Mr Crouch.

[28] The 2020 Agreement commenced operation on 21 April 2020. In contest between the parties are two of its terms; Clause 50 (Performance Conduct, Termination of Employment) and Schedule 1 (Ab Initios). The terms of Clause 50 have been included in the current and at least the previous two enterprise agreements, whereas Schedule 1 has featured only in the 2020 and 2017 agreements. The two clauses are extracted as an Attachment to this decision.

[29] The parties agree Mr Crouch is an Ab Initio employee being employed, as the Macquarie Dictionary would define it, “from the beginning”.

[30] The Full Bench has summarised the task of construction of an enterprise agreement in the following way;

“[38] The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.” 17

[31] Considerations of a purposive approach may include reading the text under consideration in order “to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading”. 18

[32] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties. 19 In that regard;

“12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a

common assumption.” 20

[33] Ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances; however, in determining whether ambiguity exists, regard may be had to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity. 21 If there is no ambiguity in the Agreement, the issue of a common understanding between the parties does not arise.22

[34] Considerations of ambiguity were dealt with in some detail by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales;

“The true ru1e is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.” 23

[35] Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding. 24

[36] The parties’ principal debate is whether Schedule 1 operates in such way as to prevent the application of Clause 52 to Mr Crouch’s employment or whether Schedule 1 operates in in such a way that the provisions of Clause 50 apply to him as well. Airservices argue the terms of Clause 50 are inconsistent with Schedule 1 and especially with the Schedule’s Clause 4 meaning the provisions of Clause 50 have no application to Mr Crouch’s employment. Airservices’ submission is that;

“(c) Schedule 1 was first included in the immediate predecessor ATC EA in recognition that ab initio trainees were a fundamentally different class of employee to qualified air traffic controllers,13 and that it was not intended that ab initio trainees have access to the full range of entitlements applying to operational ATCs under the 2012 EA;

(d) Clause 4 of Schedule 1 provides that Airservices may terminate an ab initio trainee's employment where the trainee fails to satisfactorily complete an essential unit of training;

(e) in its terms, Clause 4 is plainly directed at the process of managing a trainee's employment where the trainee is not meeting an aspect of the ATC training course;

(f) Clause 50 sets out the principles to be applied by Airservices in managing suspected underperformance issues that arise in respect of its employees, and the actions that Airservices may take to manage underperformance including termination of employment;

(g) to the extent that Clause 50 could by its terms have any application to managing an ab initio trainee's failure to meet a requirement of the training course (which is contested – see paragraphs 2530 to 30 below), Clause 4 excludes its operation.” 25 (reference omitted)

[37] Clause 50 is one of a suite of terms in the 2020 Agreement dealing with disciplinary matters or termination of employment. Clause 51 addresses the subject of standdown, including for disciplinary purposes. Clause 52 deals with notice of termination; Clause 53 abandonment of employment; Clause 54 redeployment and redundancy; Clause 55 fitness for continued duty; and Clause 56 the loss of essential qualification. The contested Clause 50 deals with the subjects of performance and conduct management and the consequential taking of action.

[38] An earlier decision on the subject clause, The Civil Air Operations Officers’ Association of Australia v Airservices Australia 26 (Civil Air) from Commissioner Bissett, found that “Clause 50 of the Agreement has three sections – clause 50.1 is a general statement with respect to managing performance and conduct matters. Clause 50.2 concerns the application of principles of procedural fairness and clause 50.3 deals with the formal process for managing performance or conduct”. Civil Air then rejected the proposition that a formal performance process could not be commenced until the informal process had concluded. Further, Commissioner Bissett found it was not mandatory for assistance to be provided for each incidence of unsatisfactory performance or misconduct.27

[39] Airservices argue the terms of the 2020 Agreement “operate to exclude Clause 50 from applying to the applicant” with the basis of that exclusion being the prescription within Schedule 1, Clause 2 that the schedule applies to Ab Initios “to the extent of any consistency”. 28

[40] Airservices argue Schedule 1 was included in the 2017 Agreement for specific purposes. First, it reflected the special place that Ab Initio trainees have within Airservices and in particular that they are employed to undertake the Air Traffic Controller training course over a period of 13 to 15 months after which they will be employed for field training of around 4 months duration. 29 These things are expressed in writing to the trainee.30

[41] Second, the change reflected the fact that management of a trainee’s progress is the subject of considerable framework outside of the enterprise agreement. Third, the management of a trainee’s progress in their course of training is a key area of difference to the management of qualified Air Traffic Controllers.

[42] In this matter, Airservices seeks regard to be had to a range of materials provided to the Commission in the course of Mr Knauer’s evidence. Mr Knauer put forward that between November 2015 and December 2016 he was involved in bargaining for what became the 2017 Agreement. His evidence goes to the subject of what motivated Airservices to propose what is now Schedule 1, and the course of bargaining that led to the final schedule. Consideration of Airservices’ submissions and evidence in that regard requires consideration of the principles of ambiguity and surrounding circumstances in order to determine the proper construction of Clause 50 and Schedule 1. Mr Knauer’s evidence included that;

“9. Airservices did not intend that ab initio trainees should have access to the full range of entitlements applying to operational ATCs under the 2012 EA, on the basis that trainees undertake a training course in the Learning Academy (running during business hours Monday to Friday) and do not perform shiftworker roles in an operational environment until they have successfully completed the course requirements .

10. In preparation for bargaining, the bargaining team sought feedback from various business areas in relation to possible amendments to the 2012 EA. A manager from the Airservices Learning Academy advised the bargaining team that the proposed replacement enterprise agreement should more clearly address the terms and conditions that applied (or did not apply) to ab initio trainees.” 31

[43] Mr Knauer says that in the course of bargaining the tabling in negotiations of a draft for what is now Schedule 1 “intended to clarify key differences between entitlements available to qualified ATC’s and those available to Ab Initio trainees”. 32 Inclusion of the schedule stemmed from discussions, in late November or early December 2015, in which Airservices and Civil Air, the union bargaining representative, agreed that “trainees were a fundamentally different class of employee to qualified air traffic controllers, and that it was appropriate for the proposed 2017 EA to reflect that. It was also agreed that Schedule 1 was intended to confirm the terms and conditions applying to ab initio trainees, rather than changing those terms and conditions”.33 His evidence though was that the “proposed schedule was not controversial. It was given only limited attention during the bargaining process”.34

[44] The original draft of the schedule proposed by Airservices and put to Civil Air was a proposal “to include a schedule to the new EA to specifically set out the entitlements of ab initios”. 35 The original schedule proposed by Airservices included two terms not subsequently agreed in the course of bargaining; a term dealing with the ordinary hours of work of Ab Initio trainees and a term dealing with recreation leave.36

[45] After agreement was reached on all matters and the employee access period had commenced information sessions were conducted.

[46] Schedule 1 as made in the 2017 Agreement was later adopted without change in the 2020 Agreement. Similarly, Clause 50 in the 2020 Agreement is the same as that in the 2017 Agreement. There are no materials or evidence before me about how those terms were explained to employees at the time the 2020 Agreement was made.

[47] Schedule 1 as made in the 2020 Agreement does four things;

•  It defines the class of people to whom the schedule applies;

•  It prescribes that the schedule applies “to the extent of any inconsistency” to the exclusion of other parts of the agreement;

•  It deals with the subject of personal/carer’s leave for Ab Initio trainees, providing that Clause 37 of the agreement does not apply to them; and

•  It deals with the subject of an Ab Initio trainee’s “termination of employment”, prescribing that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”.

[48] It requires noting that an undertaking was provided to the Commission in the process of approval of the 2020 Agreement which affects the rights of Ab Initio employees, with that undertaking providing;

“2. During the term of the Agreement Ab Initio Trainees will be not required to work night shift or to perform ordinary hours on weekends.

3. This undertaking is provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.”

[49] What may be distilled from Mr Knauer’s evidence about the schedule in the 2017 Agreement are, in summary, these things;

•  Airservices’ motivation for the Schedule was a managerial desire that the proposed replacement enterprise agreement should more clearly address the terms and conditions that applied (or did not apply) to ab initio trainees. 37

•  Reportedly Airservices and Civil Air agreed trainees were a fundamentally different class of employee to qualified air traffic controllers. The Schedule should “confirm” rather than change the conditions applying to trainees. 38

•  In or around November 2015, Airservices provided the first draft of the Schedule to a bargaining meeting. The proposed term dealt with three substantive subjects (other than defining the term Ab Initio and including an inconsistency term); arrangements for Ab Initio ordinary hours of work; personal and carer’s leave for Ab Initios; and a termination of employment provision stating that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”; 39

•  The first draft of the Schedule was amended in December 2015 by including a new clause dealing with the accrual and taking of recreation leave, 40 which in turn was removed in February 2016 after a request by Civil Air.41

•  A “summary of negotiations” document dated 15 December 2016 states under a heading Who Proposed/Rationale”;

“Airservices/Remove ambiguity surrounding AB entitlements (proposed by learning academy)” 42

•  Bargaining ended in December 2016 and communications to employees about the proposed agreement commenced in 2017. The slide deck provided to employees stated as a “highlight” that the proposed agreement would include “A new ab initio schedule, showing clearly where entitlements differ from other employees covered by the Agreement”. 43 Further, it was communicated as part of the “Agreed outcomes” that a new clause would be introduced; “Schedule 1 Ab Initio Schedule – defining where entitlements differ from other employees covered by the Agreement”.44 In an FAQ document reference was made to the proposed new Schedule with the following Q and A;

“Q4. What has changed?

There have been some changes to the EA that include the following new provisions:

•  Enhanced consultation on rostering that gives effect to the Fair Work Act

•  Ability to cash out excess annual leave at employee request

•  Simplification of transfer provisions

•  Career Break Scheme

•  A new ab initio schedule that clarifies trainee entitlements

A new definition of Employee Representatives has been provided that encompasses both Union and other nominated employee representatives.” 45

[50] Despite the matters dealt with in Schedule 1 having first been introduced to bargaining in November 2015, bargaining itself was not concluded until December 2016 with the resulting agreement signed by the relevant representatives on 20 and 21 March 2017. The 2017 Agreement operated from 30 March 2017. 46 Near to the same time Airservices implemented a Performance Improvement Procedure (PIP), which came into effect on 10 March 2017. That document describes the changes it brings about as including that it is “clarified that this procedure does not apply to Ab Initios and employees in probation”. Within the body of the procedure, it is defined as applying “to all Airservices employees with the exception of Ab Initios and employees in probation”.47 The authors of the procedure Jorge Scarneo and Philippa Prothero did not give evidence in these proceedings.

[51] While the PIP may not strictly be post-agreement conduct, having been brought into being shortly before the 2017 Agreement was approved by the Commission, but seemingly after it was “made”, the PIP is not “such as to show that there has been a meeting of minds, a consensus”. 48

[52] The relevant parts of Schedule 1 are Clauses 2 and 4.

[53] I do not find from the evidence before the Commission on the subject of the construction of Schedule 1, being that of Mr Knauer’s and the documents he tabled, that the disputed term is ambiguous.

[54] The material placed before the Commission by Mr Knauer about Airservices’ intention for Schedule 1 really only rises to the point of it being evidence that it and Civil Air sought to, “more clearly address” the employment conditions of trainees and to ““confirm” rather than change the conditions applying to trainees”. His evidence about the explanation given to employees – who presumably included a number of trainees – was that the proposal was “defining where entitlements differ” and that the schedule “clarifies trainee entitlements”.

[55] There is no evidence from Civil Air or any other bargaining representative on the subject of the negotiations or their intentions.

[56] At best, Mr Knauer’s evidence relates Airservices’ “intentions, aspirations or expectations” for the term; most certainly it wanted clarification, however no detail at all is given beyond the things within the term as to what clarity was to be brought to the bargaining table and thereby the enterprise agreement. Mr Knauer’s evidence was that at various times during bargaining Airservices wanted the Schedule to address four subjects; ordinary hours or work; personal/carer’s leave; termination of employment; and recreation leave. 49 Despite Mr Knauer’s view that the schedule “was not controversial”, Airservices succeeded in reaching agreement on only two of those subjects; personal/carer’s leave and termination of employment. There is not only no evidence before the Commission on why the other subjects were removed, but no objective evidence clarifying or confirming the purposes of the clauses which survived bargaining, the current Clauses 3 and 4 of Schedule 1. Clause 3 is in specific terms and likely does not require extrinsic material in order to ascertain the parties’ common intention. Clause 4 of Schedule 1 though has potential broad application if Airservices is correct in its construction. The prospect of Airservices’ stated motivation for the schedule being to “more clearly address” the employment conditions of trainees and to ““confirm” rather than change the conditions applying to trainees” implies that what was to be within the schedule was a continuation of existing practice, yet the Respondent’s evidence does not extend to what those existing practices may be.

[57] There is no identifiable ambiguity within Clause 2, which merely provides that the schedule applies to Ab Initios only and that “[t]o the extent of any inconsistency, this schedule applies to the exclusion of other parts of this Agreement.” The term is not ambiguous and none of the material brought to the Commission by Airservices reasonably leads to the conclusion that it is. The words of the clause are to be readily understood as providing that when the schedule provides for a matter, then a provision on the same subject elsewhere in the agreement has no operative effect.

[58] Clause 4 (Termination of employment) in its entirety provides that “Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training”. That provision is also not ambiguous and none of the material before me would allow such a conclusion.

[59] The material before the Commission is summarised above. In late 2015 Airservices wanted to “more clearly address the terms and conditions that applied (or did not apply) to ab initio trainees” proposing a schedule which “confirmed” rather than changed the conditions applying to trainees. By late 2016 and early 2017, when bargaining had concluded and employees were asked to consider the proposed agreement, they were told the new schedule defined where entitlements differed and that it clarified trainee entitlements. Those things – the intentions, aspirations or expectations of the parties (and really only one of them, being Airservices) – do not rise to the point of revealing an ambiguity in Clause 4 of Schedule 1. Airservices’ material is at best merely descriptive of the “intentions, aspirations or expectations” of Airservices.

[60] Clause 4 indeed does clarify the rights of the parties in respect of Ab Initios – they may be terminated if they fail to satisfactorily complete an essential component of their training.

[61] The uses of the word terminate, or its derivatives, are in several contexts across the agreement, with the context for the purpose of this dispute being confined to actions to end an employee’s employment. The phrase “may be terminated” coupled as it is with the contingency of failure to “satisfactorily complete an essential component” of training is plainly a discretionary decision on the part of Airservices; there does not have to be a termination of employment, but there may be. The clarification provided, on the ordinary or usual meaning of the words employed, is to give permission for termination for the reason of the specified failure. Such clarification, particular to Ab Initios, is not unusual in the context of other provisions of the 2020 Agreement (as well as the 2017 Agreement);

•  Clause 55 (Fitness for Continued Duty) provides that in the case of an employee deemed to be suffering from a health problem that impairs for the long term their capacity to perform their duties that “Airservices may take action that includes, in descending order, but is not limited to the following: …(e) Terminate an employee’s employment with Airservices”.

•  Clause 56 (Loss of Essential Qualification (LOEQ)) provides that “Permanent loss of an essential qualification may result in redeployment or termination of employment”;

[62] The prospect that there may be termination after a certain process has been followed, or certain considerations given, is not even unusual within the context of Clause 50 which itself puts forward that dismissal is a discretionary decision being but one of several alternatives once Airservices has decided upon action;

“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.”

[63] The other thing which is notable from the “formal process” clause is that the obligation to observe the principles of procedural fairness is stated as applying universally, with one exception – “where the employee has engaged in serious misconduct that warrants summary dismissal”. This, coupled with the provisions of Clauses 55 and 56 and the generality of the statement of alternatives at the end of Clause 50.3 that after the stipulated process “Airservices may … terminate the employee’s employment” leans to the construction of Clause 50 being that it sets out processes of application to all employees under the 2020 Agreement, with the exception of those who have “engaged in serious misconduct that warrants summary dismissal”.

[64] There is no part of the evidence before me that would allow a finding that the words used in the Clause 4 of Schedule 1 mean something different to the proposition that there does not have to be a termination of employment, but there may be. Observably Schedule 1 makes no reference to Clause 50. If there is an inconsistency of the schedule on matters associated with a decision to “terminate the employment of an Ab Initio” the inconsistency will need to be established through the construction both of the Schedule and the “other parts of this Agreement” that may be in contention.

[65] As a result, the schedule and its interaction with the remainder of the enterprise agreement turns to be decided on the ordinary meaning of the relevant words.

[66] The possibility that “Airservices may terminate the employment of an Ab Initio” is expressed as being contingent on the employee failing to satisfactorily complete an essential component of their training. The first part of the contingency is straightforward ; with “failure to satisfactorily complete” likely being a reference to the standards Airservices sets for passing and failing and as adopted as part of its Registered Training Organisation processes. The 2020 Agreement gives no illumination of what is an “essential component” of the employee’s training, however that subject does not require determination in order to ascertain the construction of the disputed terms. By providing that “Airservices may terminate the employment” of such an employee the schedule clarifies the person’s employment is not ongoing or indefinite in the way that may be the case for other people employed under the agreement and that termination may be for reason of failure of an essential component of training in addition to such other termination rights as may exist.

[67] In this regard, consideration should be given to Clause 18 (Categories of Employment) which draws a distinction between probationary employment, permanent full-time employment, permanent part-time employment, casual employment and fixed term employment. The clause provides that probationary employment is for a period of three months or such “longer period which is expressly stated to be associated with the successful completion of a formal period of training according to a formal assessment mechanism)”, which could be a reference either to a longer period stated in the 2020 Agreement (which there is not) or in a person’s contract. Mr Crouch’s offer of employment states that his “ongoing employment with Airservices is subject to the successful completion of a qualifying period (which includes a six (6) month probation period). The qualifying period extends for the duration of the Diploma and Field Location training periods and ends on the date you successfully complete your Field Location training and you are issued with an initial Air Traffic Control Rating and licence”. 50 However that contractual provision plainly does not determine the meaning of Clause 18.

[68] In proper context the provisions of Clause 18 reinforce there is a clarification given by Clause 4 of Schedule 1; notwithstanding the employment category of an Ab Initio, Airservices “may terminate” their employment if they fail “to satisfactorily complete an essential component of their training”.

[69] In conclusion there is no inconsistency between Clause 50 and any part of Schedule 1, including Clause 4. The ordinary meaning of the words of Clause 4 of Schedule 1 is that it provides for a discretion on the part of Airservices to terminate the employment of an Ab Initio who has failed to satisfactorily complete an essential component of their training.

(b) Does Clause 50 apply to Mr Crouch’s employment?

[70] By way of an alternative argument Airservices submitted that, even if the effect of Clause 2 and 4 of Schedule 1 does not operate to create an inconsistency between the schedule and Clause 50, the clause in any event has no operation to Mr Crouch or any other Ab Initio employee. This is because Clause 50 establishes a process for managing an employee whose performance is unsatisfactory, with a primary focus on improving that person’s performance to “a satisfactory level”. It is further submitted;

“28. Read in context, clause 50 is directed at assisting an employee who is underperforming to return their performance to a satisfactory standard. This clause has obvious application in circumstances where a qualified ATC (who has successfully completed the full course of training, attained a licence and performed their duties in the field) is identified as underperforming. Where such an employee is not performing to the required standard, clause 50.1 contemplates that they will receive constructive assistance (including possibly a course of training) to support them to resume performing at a satisfactory level. Where such assistance does not result in the employee performing to the required standard and Airservices has serious concerns with the employee's performance, clauses 50.2 and 50.3 require Airservices to afford the employee procedural fairness before taking any formal action (including reduction in classification or termination of employment) to manage the underperformance.

29. This can be contrasted with the position of an ab initio trainee who is not meeting the requirements of the ATC training course. By definition, ab initio trainees are unqualified and inexperienced in the field of air traffic control. They are laypersons being paid to undertake a course of study where they progressively acquire the theoretical knowledge and practical skills required to operate as an air traffic controller. They have not yet demonstrated the required skills and knowledge to undertake field training or ultimately attain an air traffic control licence, rating or endorsement. They are not employed to perform duties in an operational role, and there are no "performance standards" that they are required to meet. Instead, there are minimum academic requirements in each unity of study that must be met in order to progress to the next phase of training.

30. Clause 50 should not be construed in a manner that extends the operation of the performance management procedures designed for qualified, experienced employees to ab initio trainees who are employed in entirely different circumstances and on a fundamentally different basis.” 51

[71] The propositions set out above would invite a narrow and pedantic approach to construction of Clause 50 and cannot be favoured. When Madgwick J in Kucks v CSR Limited eschewed such an approach to construction he counselled that the search should be “for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon”. 52 There is no warrant within the 2020 Agreement for a conclusion that the phrase “performance and/or conduct” has no application to Ab Initio trainees. The clause does not say that its provisions are to be applied only to one group of employees and not another (with the exception of those accused of serious misconduct). Consideration of the 2020 Agreement as a whole leads to the conclusion that when the drafters intended a provision to apply or not to a particular group or employee it makes that plain in its terms; see for example, Clauses 18 (Categories of Employment), 19 (Hours of Work), 24 (Training Bond Agreement), 33 (Superannuation), 37 (Personal Leave and Special Leave – ATC), 38 (Personal Leave – Employees other than ATCs), 55 (Fitness for Continued Duty), 56 (Loss of Essential Qualification (LOEQ)), 57 (Employees who are entitled to benefit of early retirement provisions under previous industrial instruments: Special Provisions).

[72] While certainly not determinative of the clause’s construction, Mr Clarke and Mr Bosnich’s both refer to trainees not performing to the required level when they do not show sufficient progress with their training (with underlining added in each case);

•  Mr Bosnich’s evidence is that “[T]he purpose of a training review is to determine what action to take in respect of a trainee who is not performing to the required level. Training reviews may be conducted when a trainee has been assessed as "not yet satisfactory" during any formative or summative assessment in their training course (theoretical or practical), or at any stage of training where the trainee has not demonstrated adequate progress” 53

•  Mr Clarke refers to the ATC Training Manual describing the “the process to be followed in circumstances where a trainee is not performing to the required level.” The Manual extract itself sets outs its purpose as being “[t]o demonstrate the review process should a trainee not be performing to the required level” 54

[73] Related to the application of Clause 50 to Mr Crouch’s employment are submissions made by Airservices about Civil Air, the decision by Commissioner Bissett, potentially providing guidance to the resolution of this matter. Civil Air considered the approach taken by Airservices to the performance management of a qualified and experienced air traffic controller stood down for concerns as to whether he was demonstrating consistent performance of safe and efficient standards. Airservices submits in this matter that Commissioner Bissett had found Clause 50 is a self-contained provision 55 “meant in the sense that it sets out an informal process for responding to performance concerns separate from a formal process to which the other provisions in clause 50 are directed”, going on to “reject that clause 50.1 was required to be observed in all cases as a precondition to conducting a formal process under clause 50.3”56.

[74] The context of the findings in Civil Air was a dispute about whether Clause 50 mandated the provision of assistance to a person about whom there were performance concerns, with the term expressing that the “primary focus … should be to constructively assist the employee to improve their performance and/or conduct to a satisfactory level within a reasonable time”. Civil Air noted Clause 50 as a whole comprised three sections “clause 50.1 is a general statement with respect to managing performance and conduct matters. Clause 50.2 concerns the application of principles of procedural fairness and clause 50.3 deals with the formal process for managing performance or conduct”. 57 The decision found that ““should” is used in the sense of creating an obligation on the employer, prior to commencing any formal process, to consider what might practically be done first to assist the employee to improve”.

[75] Regard to Civil Air as a whole shows a distinction was drawn between steps of assistance to be taken during informal and then formal performance management. Clause 50.1 refers to constructive assistance that “should” be provided, whereas Clause 50.3, the “Formal Process” does not. Rejecting the proposition that a formal performance process could not be commenced until the informal process had concluded, Civil Air found it was not mandatory for assistance to be provided for each incidence of unsatisfactory performance or misconduct;

“[50] Clause 50.1 of the Agreement deals with performance and conduct issues. If Civil Air is correct and “should” mandates the provision of assistance through the informal process then this would be required for all performance and conduct issues, regardless of the severity of the poor performance or conduct. The formal process in clause 50.3 of the Agreement could not be initiated until the informal process (the constructive assistance) had occurred, yet there is nothing in clause 50.3 to suggest it cannot be utilised until the application of clause 50.1 is exhausted (however this might be measured).

[51] Further, clause 50.1 of the Agreement requires some assessment of the appropriateness of the assistance being offered. That the assistance must be appropriate imports some consideration of the totality of the circumstances confronting Airservices in relation to the particular employee in determining what assistance might appropriately be provided.

[52] The issue is whether, in all cases of poor performance or in each instance of poor performance, Airservices must go through this process in clause 50.1 of the Agreement before moving to the more formal process in clause 50.3 of the Agreement. In this regard it is my view that, in determining the assistance to be offered, the appropriateness of that assistance can, and should, properly consider past assistance. To not do so would be to ignore the context within which the assistance is being delivered.

[53] For these reasons I do not consider that it is mandatory that for each incidence of unsatisfactory performance or misconduct Airservices must provide constructive assistance directed at improving that particular performance or conduct of the employee concerned. Whilst the capacity or appropriateness of providing such assistance should be the first consideration it cannot be the only consideration. The word “should” is not to be read otherwise in the context of clause 50 of the Agreement.”

[76] I do not disagree with Civil Air’s ultimate finding – that whilst the capacity or appropriateness of providing constructive assistance should be the first consideration it cannot be the only consideration.

[77] In application to Mr Crouch, this reasoning leads to the question of whether constructive assistance was provided to him and, if it was not, were there other considerations that may have meant it was not feasible or appropriate to do so? Irrespective of this Clauses 50.2 and 50.3 have work to do in his case, with the former stating the principles of procedural fairness and the latter requiring Airservices observe the principles where it has serious concerns with his performance or conduct.

[78] I am satisfied that Clause 50 has application to Mr Crouch and that Airservices is required to comply with its terms in decisions about him.

(c) Has Airservices complied with clause 50?

[79] Having found that clauses 2 and 4 of Schedule 1 to the 2020 Agreement do not operate to exclude Clause 50 from applying to Mr Crouch, consideration turns to whether Airservices has complied with the terms of Clause 50.

Introduction

[80] The terms of Clause 50 are set out in the Attachment to this decision and are summarised by Mr Crouch as including the following commitments to him;

“52. Clause 50.2 of the Enterprise Agreement provides that Airservices will adhere to the principles of procedural fairness when managing an employee in relation to suspected underperformance 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.

53. Clause 50.3 of the Enterprise Agreement provides that 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. The actions that Airservices may take to manage an employee’s poor performance and/or conduct, Airservices may include requiring the employee to undergo remedial training.

54. Airservices did not fulfil these obligations to me and my particular circumstances.” 58

[81] Mr Crouch’s closing submissions narrow the aspects of these matters which he submits have not been afforded to him;

“9. Most notably, the evidence before the Fair Work Commission establishes that:

(a) during the course of the Applicant's training, at a time when Airservices Australia says the Applicant was underperforming, it failed to meet the obligation imposed upon it to constructively assist the Applicant to improve his performance to a satisfactory level, within a reasonable time, giving feedback and assistance as appropriate;

(b) the evidence establishes that Airservices Australia failed to provide procedural fairness to the Applicant when managing his suspected underperformance in the manner required under clause 50 of the Enterprise Agreement. Most notably, the evidence when considered in totality, establishes that Airservices Australia:

(i) failed to promptly advise the Applicant of Airservices Australia's concerns;

(ii) failed to provide the Applicant with sufficient time to be represented or supported in relation to performance management processes;

(iii) failed to provide the Applicant with enough opportunity to respond to Airservices Australia's concerns and to genuinely consider that response;

(iv) was biased in its consideration of the Applicant's views;

(v) failed to genuinely consider matters put by the Applicant in respect of its management of the Applicant; and

(vi) have taken (and propose to take) actions and issue sanctions that are wholly disproportionate to the Applicant's performance and conduct.” 59

[82] These claims fall to be tested against what took place.

Summary of Performance in Phase Two

[83] Mr Crouch’s progress in Phase 2 requires consideration before turning to consideration of his procedural fairness arguments.

Types of Assessment

[84] There are three types of assessment relevant to the analysis of Mr Crouch’s performance in Phase Two: progress evaluations, theoretical assessments and periodic tracking. These three methods of assessment are not entirely discrete from one another. Specifically, periodic tracking takes into account the results of both theoretical assessments and progress evaluations so should not considered as an entirely separate indicator alongside these other two methods of evaluation. 60

Progress Evaluations

[85] Mr Crouch undertook six progress evaluations during Phase Two of his course. These progress evaluations took place approximately once a month until Mr Crouch’s placement on training review, at which point they ceased.  61

[86] The results of the progress evaluations show four fields of assessment: operating facilities, comms, executing control actions, and maintaining situation awareness. Each of these fields is then divided into a number of separate elements for evaluation, with all fields except for comms being divided into three of these elements, while comms is divided into two. In total there are 11 elements. Mr Crouch’s performance is summarised as follows:

•  In his first progress evaluation (PE1) on 25 March 2020, Mr Crouch was rated satisfactory in all fields.

•  In his second (PE2), on 28 April 2020, Mr Crouch was rated satisfactory in all fields except for two.

•  In his third, (PE3), on 1 June 2020, Mr Crouch was rated satisfactory in seven fields and not yet satisfactory in four fields.

•  In his fourth, on 18 June 2020, Mr Crouch was again rated satisfactory in seven fields and not yet satisfactory in four fields.

•  In his fifth, on 22 July 2020, Mr Crouch was rated satisfactory in three fields and not yet satisfactory in eight.

•  In his sixth, on 12^th August 2020, Mr Crouch was rated satisfactory in nine fields and not yet satisfactory in two.  62

[87] According to Mr Bosnich’s statement “It is not uncommon for students to have some "Not Yet Satisfactory" outcomes recorded in their Progress Evaluations, and I rated his performance on the Progress Evaluations as average relative to other students.” 63

[88] The First Training Review failed to consider Mr Crouch’s sixth progress evaluation result in Phase 2. Due in part to this error being raised, a Second Training Review was conducted and approved by Mr Bosnich. The assessment of Mr Crouch’s performance in terms of progress evaluations was as follows:

•  “Luke performed at the standard expected for that stage of training during the first PE. During the next four PEs Luke received a ‘NYS’ score in the element of ‘Maintaining Separation/DTI’. The reports indicate that Luke made a majority of errors in ‘Maintaining Separation’ and generally had an acceptable performance for DTI processing. In PE5, Luke received ‘NYS’ scores in eight out of eleven elements. In PE6, Luke received ‘S’ scores in nine out of eleven elements which is considered an improvement in performance. Luke received an ‘S’ score in the element of ‘Maintaining Separation/DTI’.”  64

•  “Luke did not perform at the standard expected during PEs two, three, four and five. Luke received a ‘NYS’ score in the element of ‘Maintaining Separation/DTI ’in these four PEs. His unsuccessful theory assessments are considered causal to this outcome… Luke’s performance improved in most elements during PE6 where he received ‘S scores in nine out of eleven elements. He received ‘S’ in ‘Maintaining Separation/DTI’.” 65

[89] In his statement, Mr Crouch states that his results for PE5, which he undertook the same day as the ASA-119 Separation Standards exam, were, like the results of that exam, an outlier due to having to catch up on course material in a compressed time frame prior due to COVID related leave. 66

[90] He further notes that progress evaluation results are “cumulative in nature” and his results in PE6 accordingly show that following PE5 he had consolidated the concepts which were previously in issue, including the element of ‘Maintaining Separation/DTI’. 67

Theoretical Assessments

[91] There are four theory assessments in Phase 2. Of these, Mr Crouch passed two, with marks slightly lower than the course averages; on the Lateral Drawing Assessment Mr Crouch received a mark of 91, with the course average being 91.1% and on the Local Assessment Paper, Mr Crouch received an 89% with the course average being 93.1%. Mr Crouch failed one, the ASA -119 Separation Standards, with an initial mark of 45.9% and a supplementary mark of 68.7%, with both of these marks being significantly lower than the course average of 83.2%. Mr Crouch was placed under training review prior to sitting the fourth examination. 68

[92] The minimum pass rate for theoretical assessments is 70%, in accordance with requirements imposed by the Civil Aviation Safety. 69

[93] Mr Bosnich’s evaluation of Mr Crouch’s performance in the ASA-119 Separation Standards assessment was that the result was “very out of the ordinary. In my experience, most students pass theoretical assessments on their first attempt, and those that fail typically only fall short of the 70% pass mark by a slim margin. My experience is that students who fail an initial assessment usually go on to score well above 70% in the supplementary exam. This reflects the fact that they have been assessed on the content previously, and have had an opportunity to revisit the material and address any knowledge gaps.” 70

[94] Mr Crouch’s assessment was that had he been provided with appropriate debriefing and feedback following his initial attempt at this exam, he would have passed the second exam. 71

Periodic Tracking

[95] Nine instances of periodic tracking of Mr Crouch’s performance occurred in Phase Two, between 18 March 2020 and 14 August 2020, including one which is undated. In the first seven instances Mr Crouch was given the second highest rating available of four ratings, ‘at level’. In the last two instances, on 23 July 2020 and 14 August 2020, Mr Crouch was given the rating below ‘at level, that being ‘below level LOW’. 72

[96] Mr Crouch notes that, “During Phase 2 and in or around March 2020, one of my instructors, Adam Gardiner, told me that he had never rated someone as being ‘Above level’ in all his years as an instructor, and based on my discussions with my classmates during my time at the college, I am aware that none of them had ever been assessed as being ‘Above level’. From the documents Airservices has produced to me as part of this dispute, I can see that no trainee in my cohort nor any trainee re-coursed in the last three years was ever assessed as being ‘Above level’.” 73

[97] As noted previously, periodic tracking takes into account performance in the other two types of assessment outlined above. On this basis, Mr Crouch states that the first of the ‘below level LOW’ ratings in his periodic tracking was the result of the PE5 outcome, discussed in the Progress Evaluation section above. 74 Mr Crouch also states that the ‘below level LOW’ rating in the second instance was largely based on his performance in the ASA-119 Separation Standards exam, discussed in the Theoretical Assessments section above, and was verified to be as such by his instructor Tracy Thornley.75

Illness & isolation – March – August 2020

[98] Mr Crouch missed two weeks of training from 29 June to 13 July 2020. On 28 June 2020 he undertook a COVID test and was told he had a fever. He was directed to self-isolate at home until a negative result was returned from his test. On 6 July 2020, Mr Crouch’s test was returned with an inconclusive result. He was then required to take another test, which took place on 7 July 2020. This returned a negative result on 8 July 2020. Due to the government guidelines in place at the time, Mr Crouch was then required to attend a GP appointment to cease self-isolating. At the GP appointment, which took place on 8 July 2020, the GP took Mr Crouch’s temperature and told him to self-isolate for another 48 hours and only return to work if he had no fever during that period. 76

[99] Mr Crouch details that these two weeks of isolation had a “profound effect” on his wellbeing. Due to his partner being in Brisbane, he was at home in Melbourne by himself. The rules at that time specified he was not allowed to leave the house for exercise or fresh air. This resulted in Mr Crouch reporting that, at that time, his “morale was extremely low” and he was “struggling with self-isolation” in addition to feeling unwell. 77 A further stressor which Mr Crouch notes as impacting upon him at this time was the fact that he was “very concerned about missing two weeks of ATC trainings and runs on the simulators, particularly given that it was coming up to the pointy end of Phase 2.”78

[100] As a result of these concerns, Mr Crouch had a number of phone calls during this period with Mr Derek Russell, an ATC instructor. During these phone calls Mr Crouch reports that he relayed “concerns about missing activities and falling behind.” To these concerns, Mr Crouch states that Mr Russell “told me not to worry and that ‘it would be okay’ as I would be given the opportunity to catch up.” 79

[101] Mr Crouch also describes finding it challenging to study in this period due to his feelings of illness, his difficulties with self-isolation and the fact he was someone who “learns best by ‘doing’.” 80

Training Support

[102] During phase one, Mr Crouch was unsuccessful in two of twelve initial theoretical assessments. Mr Steven Clarke, at the time Airservices’ Operational Training Head, details the support he says Mr Crouch received in relation to these failures as follows,

“(a) The Applicant failed his initial assessment in unit ICAO004 -Air Traffic Services. The Applicant was provided with a Training Support Agreement (TSA) in respect of the unsuccessful assessment, which included a new workbook, review quizzes and a debriefing session to clarify any knowledge gaps. He requested that his supplementary examination be postponed due to his workload, and this request was granted. The Applicant scored 70.2% on the supplementary exam, which indicated significant deficiencies in understanding. He was provided oral top-up training in relation to all incorrect responses to assist him to gain a full understanding of the subject material…

(b) The Applicant failed his initial assessment in unit ASA 108 -Aircraft Performance and Recognition. The Applicant was provided with a TSA in respect of the unsuccessful assessment, which included a new workbook, handouts, PowerPoint information and quizzes. After successfully completing the supplementary exam, the Applicant was provided oral top-up training to revise all incorrect responses and ensure he had full understanding of the subject material.” 81

[103] Mr Clarke also states that throughout his employment with Airservices’ Mr Crouch had access to the following pastoral and academic support services: EAP – Employee Assistance Program (external); SafePlace – an internal employee support program for the provision of essential psychological wellbeing and investigative support (internal); and Peer Support Officers. 82 Mr Crouch submits that this is misleading for the following reasons,

“I first learnt of the SafePlace program from an Airservices employee unrelated to the training college on 6 September 2021. I contacted Ms Crisara and requested the details the same day. I had never heard of Peer Support Officers before reading the SC Statement. It remains unclear to me how any of these programs offer academic support.” 83

[104] During his two-week period of isolation, from 29 June to 13 July 2020, Mr Crouch states that his absence meant he was unable to practice the application of separation standards on the simulators throughout that period. Mr Crouch reports that he received no support from Airservices during this time, other than Mr Derek Russell, an ATC instructor, offering to deliver groceries to him following Mr Crouch explaining to him the challenges he was experiencing while self-isolating. 84

[105] Mr Crouch states that upon his return to work he “felt a bit shaky on the console” as a result of his absence and discussed this with Mr Russell in the weeks following his return. He says Mr Russell told him “not to worry and that it would be okay.” 85

[106] Mr Crouch states that the training content which he missed during his two-week absence was delivered to him in a compressed time frame over two and half days through one-on-one instruction. He reports that during this catch-up period he missed further activities, which he then caught up on while the other trainees in his cohort were given opportunities to undertake runs on the simulators to consolidate what they had learnt. Mr Crouch states that these catch-up activities also affected his ability to prepare for the ASA 119 Separation Standards theory exam. He submits that “no support was provided to address the fact that I was being overloaded or operating on a materially compressed timeline.” 86

[107] Mr Clarke’s description of this period differs from Mr Crouch’s in that he notes Mr Crouch’s theoretical assessment for the ASA 119 exam was postponed until 22 July “to allow him an opportunity to catch up.” 87

[108] Following his failure of the first ASA 119 exam on 22 July 2020, Mr Crouch had a meeting on or about 23 or 24 July 2020 with Michael Boyd, the Training Delivery Manager, and Chris Watson, an ATC instructor, to discuss his unsuccessful result. Mr Watson was assigned to be Mr Crouch’s instructor for the purposes of training support. 88

[109] Mr Crouch’s description of what took place in this meeting is that Mr Watson stated his exam paper was “horrible” and “not worth reviewing together” and appeared hostile and annoyed that he was being required to attend the meeting. 89 Mr Crouch then describes the meeting proceeding as follows,

“I sat at the table by myself and review my exam answers alone (while Mr Boyd and Mr Watson were talking amongst themselves). I did not receive specific feedback or a debrief on my exam, or any support, from either Mr Boyd or Mr Watson and based on the comments Mr Watson made I considered that he had ruled this out as an option.” 90

[110] Mr Crouch notes that his exam paper was marked with some comments and example answers from Mr Watson. However, he states that in many cases it was not clear to him why certain marks had been lost. The nature of the exam paper was that a number of questions asked for the best way of solving a problem. Mr Crouch submits that,

“The separation standard that I wrote down may have worked to maintain separation but may not have been the best separation standard to apply in that situation. Going through the exam paper with Mr Watson would likely have caught instances where that had happened. However, this opportunity was not provided to me given Mr Watson’s conduct.” 91

[111] At this meeting, Mr Crouch also raised a concern regarding his slow writing ability impacting on his ability to undertake the exam. Mr Boyd and Mr Watson advised him that a verbal exam was a potential option, and they would check this and return to him. 92

[112] On or about 31 July 2020 Mr Crouch had another meeting with Mr Boyd and Mr Watson in which they confirmed a verbal exam was an option. Mr Crouch then raised questions regarding the verbal exam format as he had not taken one previously. He reports that he expressed that he was nervous about the process and sought support and clarification. 93 In response to this, Mr Crouch states that,

“Other than a brief description saying that they would record me and transcribe my responses, no other information or support was offered. They did not address my concerns in any way and I was not given the option to do a practice verbal exam. They told me that I had until the day before my supplementary exam scheduled for 14 August 2020 (i.e. 13 August 2020) to make a decision on the exam format. I felt pressured and unsupported.” 94

[113] Mr Crouch states that he was approached by Mr Watson or about 10 or 11 August 2020 and instructed to make a decision by the end of the day as to whether he would be taking a verbal or written exam. Mr Crouch states he said that he would take a written exam, however notes that this took place two or three days earlier than he had previously been told he would need to make a decision regarding exam format and none of his concerns with a verbal exam had been addressed. On this basis, he says he chose to undertake the written exam as he was “too apprehensive about embarking on a new format with no support.” 95

[114] On or about 4 August 2020 Mr Crouch reports that he received an ASA 119 TSA Training workbook. He states he completed between 90-95% of the questions in this workbook in the period between 4 and 12 August, and that he left the other questions blank as he was usure of the answers and wished to discuss them at the meeting which had been scheduled for 12 or 13 August 2020. He submits that he “received no support from Airservices in relation to the questions I completed myself.” 96 Mr Crouch also notes that during some of this time he was also studying for the Local Rating Paper theory exam which he sat on 7 August 2020 and passed with a score of 89%.97

[115] Regarding the intended methodology for completion of the workbook, Mr Clarke states that the “intended approach is for a trainee to complete the workbook independently, and to ask their instructor for assistance if they have difficulty with any aspect.” 98

[116] On 12 or 13 August 2020 Mr Crouch had a meeting with Mr Watson to discuss the ASA 119 TSA Trainee workbook. Mr Crouch describes this meeting as follows,

“Mr Watson said that he "only had an hour" and that we "wouldn’t be going through the whole workbook" but that he would answer any specific questions I had. We discussed the questions that I had not yet completed. With hindsight, there were probably answers in the workbook that were incorrect or lacking in detail that would have been identified had we gone through the entire workbook together. However, I did not know this at the time and, in any event, Mr Watson had ruled out going through the entire workbook as an option. The approach that was adopted required me to self-identify gaps or errors in my own knowledge. The process was unsupportive, rushed, cursory and left me attending to matters alone.” 99

[117] Mr Crouch also describes the workbook itself as being unhelpful in his preparations as it was identical to a workbook he had completed prior to undertaking the initial exam and contained several questions which were not relevant to the exam. 100

[118] Mr Clarke states that the training support agreement to address Mr Crouch’s initial failure of the Separation Standards exam was “delivered in full, as confirmed by delivery manager.” Mr Crouch dispute the accuracy of this statement, noting that;

“The delivery manager at the time was Mr Michael Boyd. While Mr Boyd was present at my initial meeting with Mr Chris Watson (who had been assigned as my instructor for the purposes of training support) on or about 23 or 24 July 2020, he was not present at my meeting with Mr Watson on 12 or 13 August 2020, where we discussed the ASA 119 TSA Trainee workbook.” 101

[119] On 14 August 2020, Mr Crouch failed the ASA 119 supplementary exam and was placed on training review. 102

Events after the ASA 119 Separation Standards supplementary exam

The period between commencement of the training review and communication of its outcome to Mr Crouch

[120] When Mr Crouch failed the supplementary exam for the ASA 119 module on 14 August 2020 his training came to an abrupt end. He was placed on “training review” the same day and instructed not to return to work.

[121] The scope of the training review as it applied to Mr Crouch is not clear. While a template training review report is before the Commission, 103 the procedures for conducting the review (if there are any) are not.

[122] What transpired is that the training review took six months to complete. Ms Crisara’s evidence about the amount of work involved in completion of a training review is that it was “a minimum of 8 hours of work usually over a period of several weeks” 104 She attributes the delays “to the COVID-19 pandemic and the lack of training staff in the Academy”.105 Mr Crouch is highly critical of the delay;

“The Applicant believes that Airservices Australia "sat on" his training review until February 2021, either (having regard to the nature and extent of the errors and omissions, delay and circumstances of this matter generally), deliberately (in the hope that he would resign while on review) or due to significant maladministration and mismanagement.” 106

[123] The evidence does not conclusively allow such a finding, but leans in that direction, with it abundantly evident that the initial review processes were marred by missteps by Airservices and inadequate communication to Mr Crouch. In few respects can the six months that it took to produce the first training review be considered to be timely, considerate of Mr Crouch’s needs or his responses. Evidence tabled by Airservices late in the proceedings at the request of Mr Crouch showed that extraordinary delays for the completion of training reviews were routine. While such lengthy delays could be explained by the factors referred to by Ms Crisara (the pandemic and the lack of training staff) such is not reconcilable with her evidence about the inputs required to complete a review; a “minimum of 8 hours of work usually over a period of several weeks” hardly explains why a six week timeframe might be experienced, let alone six months. , Since I have difficulties with the reliability of Ms Crisara’s overall evidence findings of maladministration and mismanagement are open to be made and may not be ruled out.

[124] Having been informed he was on training review and instructed not to return to work on 14 August 2020, two Airservices people, Emma Schafer, Competency and Standardisation Specialist Enroute, and Simone McColl, Trainee Coordinator scheduled a meeting with Mr Crouch in early September. However, the meeting had to be rescheduled since no one in Airservices had provided Mr Crouch feedback about his supplementary exam paper. After the feedback by another person, Tracy Thornley, a meeting with Ms Schafer and Ms McColl took place three days after it had originally been scheduled. While Mr Crouch was encouraged about the nature of his discussion with Ms Thornley and communicated such to Ms Schafer and Ms McColl, he detailed the concerns he had with the training support provided to him after he failed the initial exam and noted that the feedback provided to him by Ms Thornley would have been beneficial prior to the supplementary exam. 107

[125] From mid – September 2020 to February 2021 – a period of 5 months – there was little contact of substance by Airservices with Mr Crouch about progress on the review and no transparency regarding the process. Mr Crouch says about the situation; “I am at a loss as to why the training review process took so long. The delay is something that Airservices has never been able to explain, despite my repeated requests for an explanation”. 108

[126] Ms Crisara who was at the time Airservices’ Acting Trainee Coordinator gave evidence on behalf of Airservices about her interactions with Mr Crouch when she worked as Trainee Coordinator in the Air Services Learning Academy. Her witness statement recorded she received reports from the Learning Academy about the progress of the training review and conveyed that information to Mr Crouch, doing so approximately weekly. Evidence about the nature and content of those reports is not in evidence in these proceedings. Ms Crisara’s evidence is that she was also responsible for checking in on Mr Crouch’s well-being. 109

[127] Ms Crisara initially described her role to the Commission as being to assist the trainees with their training and be their support person. 110 Ms Crisara’s later oral evidence though showed this to be a significant overstatement about her role. Instead of being an important conduit for information back and forth she was, at best, an ineffectual messaging service. Her communication appears never to have moved in substance beyond relaying to Mr Crouch that the review was not finished and relaying to Mr Clarke that Mr Crouch was concerned about that fact. My impression of her oral evidence was that she did not have the position-power within Airservices to advocate for a quicker process or outcome and in any event she did not do so.111

[128] The context of Ms Crisara’s written evidence appeared to be to provide reassurance Airservices had done all it could for Mr Crouch during an otherwise difficult time for him. She put forward in her witness statement that the delay in finalising his training review stemmed from wider staffing problems and that Mr Crouch was not alone in having a delayed training review. There was no intention that a deliberate delay in the review might lead to his resignation; the delay was in no way related to Mr Crouch personally. 112

[129] Despite saying in her witness statement that “Luke did not mention to me that the delay was affecting his mental health” 113 Ms Crisara accepted in her oral evidence she heard “concern and angst from Mr Crouch”; that the delay “was becoming way more serious for Mr Crouch”, warranting more than a chat.114 Further, she conceded in response to a question from me that her steps were not particularly effective;

“Right, thank you. There's just one other matter I wish to check. They're not the only references to you in Mr Crouch's statement and I'm not suggesting that they are. But what does come through from that is that he was, by the looks of it, getting increasingly concerned and expressing things to you in an increasing level of anxiety. Would that be accurate?---Yes, I'll say yes.

Right, and your evidence is that you reported that to Mr Clarke, but not much else?---That's right.

All right. Would that seem particularly effective to you?---Probably not now, no.” 115

[130] Mr Crouch planned to be married in October 2020 (and became so) with his wedding becoming an increasing matter of concern as time progressed. In mid-September 2020 he was given approval to return to Queensland from Victoria to attend his wedding. His 3 March 2021 letter to Mr Clarke seeking a review of the training review report given to him by Mr Hunt and Ms Crisara on 18 February 2021 expresses in detail why this caused him considerable anxiety. After noting his wedding had been booked and paid for a number of years and that the COVID-19 border restrictions caused problems for him, including with the possible need to undergo 14 days hotel quarantine to travel to Queensland, he stated to Mr Clarke the reasons these matters had caused him stress and his attribution of some of the stress to Airservices in general and Ms Crisara in particular;

“(B) My partner and I attempted to cancel the wedding; however, the venue was refusing to provide a refund. My partner and I had already paid the wedding venue in full and had paid deposits to a number of vendors for the date 10 October 2020.

(C) On numerous occasions, I updated Airservices as to my requirements to attend the wedding and asked whether taking two weeks off was a possibility. I had informal meetings with Simone McColl and Michael Boyd and a formal meeting with Antoinette Crisara about this. On each occasion, they told me they would look into it and get back to me or refer me to another person. However, none of them ever provided a substantive response to my request.

(D) Airservices did not alleviate my concerns as to whether I could attend my wedding. This created additional stress and uncertainty for me, and I was involved in a number of discussions with my wedding venue right before the date of the supplementary exam trying to examine alternatives and reach a workable solution. These discussions took up a lot of my time and were quite hostile.” 116

[131] While I accept of course that interstate travel in mid-to-late 2020 was highly problematic as well as the subject of rapid and frequent change, Mr Crouch’s letter to Mr Clarke does several things pertinent to my consideration about the period in the three of four months to October 2020. In addition to expressing concerns about the assistance he received from Airservices in the period between the two exams, he puts forward that the matters associated with interstate travel and his wedding had a detrimental effect on his performance in the ASA 119 supplementary exam and that he was anxious and pre-occupied because of his forthcoming wedding and the potential for a financial loss if it were cancelled. Further it points to Ms Crisara as being unhelpful when he needed confirmation about whether it was possible for him to take two weeks off to attend his wedding if required.

[132] At best Ms Crisara’s evidence establishes that she would speak with Mr Crouch about progress with the training review, but those conversations did not lead to action of any substance. She was simply relaying messages while the training review drifted. Even though she noticed that fact she did not influence it or the timing of the review in any way. Her role was at best a superficial veneer to give reassuring impressions to Mr Crouch that progress was being made. These matters lead me not to accept as credible the evidence Ms Crisara gave about the period between the commencement of the training review and when its outcome was advised to Mr Crouch in February 2021, other than to accept that she had regular contact with Mr Crouch and passed information about that contact to Mr Clarke.

[133] Ms Crisara also gave evidence that at the time Mr Crouch was placed on training review another 19 trainees had been placed on training review before Mr Crouch, and that Airservices completes the reviews in the order in which they were received, giving this evidence about the delay;

•  From her witness statement;

“Luke was not the only trainee that was affected by this delay. There were also delays in training reviews for other trainees. When Luke was placed on training review on 17 August 2020, there were 19 training reviews that were pending. Training reviews are carried out in sequential order, based on the date that the trainee was placed under review.

Annexed to this statement and marked AC-01 is a list of trainees that were under review at the time Luke was placed on training review.” 117

•  From her evidence-in-chief in answers to questions from Mr Lovell and me;

“At the time Mr Crouch was placed on a training review, how many other trainees were already on training review?---We had 19 before Mr Crouch.

Are each of those training reviews able to be progressed in parallel?---Meaning?

At the same - sorry, I will clarify this. I will withdraw that, Commissioner, and I will clarify. Are training reviews conducted concurrently, at the same time?---We do from the first to the last (indistinct).

Has that been Airservices' practice prior to these circumstances?---Yes, it is.

THE COMMISSIONER: What does that mean? Does that mean that you start one and you finish that and then you start the next?---Correct”  118

[134] In the light of later evidence produced to the Commission Ms Crisara’s evidence on this subject is also not credible. That evidence, in the form of an updated Attachment AC – 01 with a new column “Review Decision Date” shows 6 out of 18 completed reviews were completed out of sequence. While two were finished more or less in step with others commenced at the same time, one was completed five months earlier than other reviews commenced on the same day and well before five others which were commenced earlier. A further three were completed well before others commenced earlier. Mr Hardy, lawyer for Mr Crouch, characterised the original evidence on this matter as being “simply false”. 119 While I do not go that far, Ms Crisara obviously did not check her statement when she made it, and was at the least reckless or negligent in putting forward the statements she made.

[135] Despite the misleading nature of Airservices’ original evidence given about the time taken to complete reviews, the updated information discloses that ultra-lengthy reviews were the norm at the time, and Mr Crouch’ was by no means the longest to complete. Of the 18 reviews reported to have been completed between August 2020 and March 2021, 14 took longer than six months to complete.

“Blipping”

[136] Mr Crouch reports that most ATC trainees who are placed on review are still required to come into the office through a shift roster system to assist other trainees by ‘blipping’, which involves acting as the pilots on the simulators, or performing other tasks. 120 He is critical that ‘blipping’ duties were not provided to him after being placed on training review, stating that “[b]eing on standby without any certainty as to when a decision would be made and when (or whether) I would be asked to return for 'blipping' duties meant that I could not take up any other opportunities and had nothing to occupy my time”.121 Further, he states he was never informed of the reasons he was not asked to blip and “was only ever told by Ms Crisara when I requested to perform blipping duties that she would pass on my request”.122

[137] Ms Crisara’s description of ‘blipping’ duties differs from Mr Crouch’s explanation in some respects. Whereas Mr Crouch reported that most trainees placed on review were required to come into the office for these duties, Ms Crisara stated that “Sometimes, when a trainee is under review, they will be asked to attend work and perform ‘blipping’ duties or other support roles [emphasis added].” 123

[138] Ms Crisara further qualifies this explanation by stating that this is not required of all trainees placed on review, and the “usual practice is to assign these duties to the most advanced trainees”. As Mr Crouch had not successfully completed phase two, Ms Crisara stated that he was not asked to perform these duties as other trainees on review at the time were more advanced. She details that this is due to the fact that it is necessary for a trainee to have completed a phase prior to providing support to trainees who are undertaking that phase.  124

[139] In his witness statement in reply, Mr Crouch disputes Ms Crisara’s characterisation of ‘blipping’ duties. He states that, prior to being placed on review, he had ‘blipped’ “almost all runs” his class undertook. He also reports that, based on conversations with other trainees under review, “some were on review for the same phase they were doing the blipping for, and the only requirement was they had completed the module they doing the blipping for.” 125

[140] Mr Crouch also contends Ms Crisara’s assertion that he had not been asked to perform blipping duties due to other trainees on review being more advanced. He disputes this on the basis that during his time at the college “there was always a significant demand for trainees to blip to improve the learning outcome of the class.” 126

[141] Mr Crouch states that he was told by Ms Crisara that he could return to Queensland from mid-September 2020 to attend his wedding. However, after his wedding in early October 2020 Mr Crouch states he was “on standby expecting to receive a call from Airservices asking me to return to the office for ‘blipping’ duties pending the outcome of the training review.” Mr Crouch states he did not receive such a call, and reports that this caused him stress and anxiety. 127

[142] Mr Crouch further notes that he requested to perform blipping duties and was told by Ms Crisara she would pass on the request. He states he was not informed of the reasons he was not asked to blip. 128 In her cross-examination, Ms Crisara stated she was not aware that Mr Crouch wanted to perform blipping duties and that his evidence to this effect did not ring a bell.129 In this cross-examination, Ms Crisara also vacillated on the topic of whether she was aware of whether or not Mr Crouch was asked at any point to do blipping duties. Her initial statement was that she was not aware of this information, but upon redirection to her statement she ultimately stated that she was aware of this information.130

[143] In relation to the ‘other support roles’ which Ms Crisara noted in her statement that trainees on review were known to perform, Ms Crisara stated in her cross-examination that these roles could involve photocopying or binding and were likely to assist administrative staff. When asked who performed these roles, Ms Crisara stated that, “At the time we didn't need anyone for support roles but sometimes we do.” 131

[144] This matter, together with the weaknesses I have identified in the evidence given by Ms Crisara about the steps she took to assist Mr Crouch, causes me to consider her evidence as not to be relied upon. In particular, I do not accept her statements about the reason for the delays in the training review; the assistance she provided Mr Crouch and the reasons ‘blipping’ duties were not offered to him during the training review. I also do not accept her statement that “Luke did not mention to me that the delay was affecting his mental health”. 132 Instead the evidence supports that Mr Crouch raised his health with Ms Crisara who did little or nothing of substance about it, other than to relay messages to Mr Clarke. The evidence supports she took no action of significance to assist Mr Crouch’s concerns about the delays with the training review or his mental health.

Communication to Mr Crouch of the outcome of Hunt Review Report

[145] A meeting was organised with Mr Crouch, Ms Crisara and Mr Hunt for 18 February 2021 in which Mr Crouch was told the “preliminary finding” of the training review was that it had been recommended his training be terminated. 133 The review was approved by Stewart Hunt, the ATC Training Lead and is referred to from this point forward as the Hunt Review Report.

[146] The correspondence that was sent to Mr Crouch and signed by Mr Hunt made plain that the review was undertaken on the papers with the exception of the meeting Mr Crouch had with Ms Schafer and Ms McColl on 10 September 2020. 134 The review report was undertaken by Jessica Walton, Air Traffic Controller, who “prepared” the review and Emma Schafer who “conducted” it with the report being approved by Mr Hunt. None of these people referred to, Ms Schafer, Ms McColl, Ms Walton, or Mr Hunt gave evidence in these proceedings.

[147] The letter that accompanied the Hunt Review Report identified to Mr Crouch that he could request a review of the recommendation for termination of training, an opportunity taken up by him on 3 March 2021 when he sent a 23-page letter on the subject to Mr Clarke, who was at that time Airservices’ Operational Training Head 135. That correspondence argued in detail why Mr Crouch considered the recommendation for termination of training to be unsound and put forward that the appropriate course of action for Airservices to take was to re-course him;

“10.1.2 For all the reasons set out in this document, this recommendation is unsound. The recommendation is based on:

(i) a failure to consider relevant material (particularly my performance in PE 6);

(ii) a failure to consider or give appropriate weight to external factors and the impact those factors had on my performance during Phase 2 (particularly during PE 5 and the Period Tracking period ending 23 July 2020);

(iii) a consideration of irrelevant factors and giving disproportionate or excessive weight to factors of little importance or probative value; and

(iv) incorrect statements and oversights.

10.1.3 Extension of training (Re-coursing) is the most appropriate option (and indeed the only fair option), when my failure of the ASA 119 – Separation Standards assessment is considered in its proper context, including:

(i) the external factors that contributed to my below level performance on that assessment (68.7% on the supplementary exam);

(ii) the shortcomings of the training support that was provided to me;

(iii) my successful completion of Phase 1;

(iv) my successful completion of all theory exams that I sat in Phase 2 other than the ASA 119 – Separation Standards assessment;

(v) my satisfactory practical performance on the simulators as most recently demonstrated in PE 6 (which is the final PE before the Phase 2 exam and assesses performance on concepts covered throughout the entirety of Phase 2); and

(vi) the vast amount of time that has elapsed since I was placed on review on 14 August 2020 which would now rule out further training support alone as a viable option.” 136

Bosnich Review Report

[148] A little over a week later, on 9 March 2021 Mr Clarke met with Mr Crouch and Ms Crisara to discuss the matters raised by Mr Crouch. Mr Crouch recollects Mr Clarke saying to him “he was the one considering my “appeal” and that it was his job to decide whether I had been given “a fair and reasonable opportunity to get through the course”. He said he would make his decision by the end of the following week (19 March 2021). I explained that the reason I raised all the points in my submissions was that I really wanted to continue my training and genuinely believed the finding was wrong”. 137 Neither Mr Clarke nor Ms Crisara, both of whom gave evidence in these proceedings, materially address this meeting in their witness statements or the oral evidence and in particular neither denies Mr Crouch’s recollection.

[149] When, on 19 March 2021, Mr Crouch had not heard from Mr Clarke or Airservices he contacted Ms Crisara for an update. Mr Crouch recalls Ms Crisara’s response as being “that Airservices had decided to do a new training review and include some of the things they left out the first time”. 138

[150] Mr Clarke explains the reasoning for Airservices’ decision to “do a new training review” in his witness statement;

“I was responsible for reviewing the recommendation that the Applicant's training be terminated. On reading the Applicant's submissions, it came to my attention that a formative practical assessment task referred to as Progress Evaluation Six (PE6) had not been considered as part of the training review. The Applicant has undertaken PE6 been failing the initial assessment for ASA 119 Separation Standards and undertaking the supplementary assessment. On this basis, I requested that a new training review be completed which included consideration of PE6.” 139

[151] Mr Clarke specifically refers to this as being a “second training review”. 140, with the review conducted by Sarah Synott an ATC Instructor and approved by Frank Bosnich, the ATC Training Lead. Mr Bosnich gave evidence in these proceedings, however Ms Synott did not. The activities associated with this are referred to from this point forward as the Bosnich Review Report.

[152] Mr Clarke specifically referred to there being a “second training review” multiple times in his oral evidence. 141 Airservices used the same characterisation, of there being a second training review, in its submissions to the Commission;142 its cross-examination of Mr Crouch143 and in its re-examination of Mr Clarke,144 each of whom gave evidence before Mr Bosnich and with him absent. Mr Bosnich’s evidence though was different with him stating that he did not undertake a second training review, but instead completed a version two of the one review. Mr Hardy’s cross-examination of Mr Bosnich included the following;

“Thank you. Can I ask you to accept, Mr Bosnich, that at the time you received, for approval, the report that is contained at 1033 of the court book, you were reviewing the first review of Mr Crouch and approving the findings of that second review. Can you accept that?---Sorry, Mr Hardy, can you repeat the question?

…

At the time you were in that process that is described in the 'Background', and set out thereafter, you were undertaking training review number 2 and you were reviewing the previous training review that had been undertaken by Mr Hunt, do you accept that?---I was reviewing what was contained in version 2.” 145

“And I've asked you, a moment ago, were you doing training review 2 and were you reviewing the previous training review and your emphatic answer was, 'No'?---Because the - the whole process, in my eyes, is one review, training review 1, training review 2, resulting in a version 2 of the document.

Where does it say that, in your letter?---That - well, it doesn't say that in the letter.” 146

[153] In some respects, this distinction could be argued to be unimportant, however what it indicates is that the actions taken by Mr Bosnich were directed at plugging the hole first identified by Mr Crouch in his 3 March 2021 letter 147 and then accepted by Mr Clarke, namely that the Hunt Review Report did not deal with the failure to reference Progress Evaluation Six (PE6). However, that was not what was held out by Airservices to Mr Crouch. He thought, and with good reason, that having asked for an appeal and being informed the Hunt Review Report was accepted as being deficient that Airservices’ response would be to “do a new training review”.

[154] Mr Clarke’s witness statement puts forward that “A second training review was conducted by Sarah Synott (ATC Instructor) and approved by Frank Bosnich (ATC Training Lead). Again, it was recommended that the Applicant's training be terminated”. Such, together with the other paragraphs I have referred to, appears designed to imply that the “second training review” was new, separate, and unconnected with the first. Having read both Mr Clarke’s statement and that of Mr Bosnich in their entirety and observed each giving their oral evidence, this is obviously misleading. The second training review was merely a revision of the first to take account of the mentioned omission.

[155] Mr Clarke’s overall evidence is diminished in its credibility as a result. Mr Clarke’s witness statement seeks to give a gloss to the overall process of review which does not bear scrutiny; the first review report was wrong and had to be corrected, but, rather than saying that, he instead he puts forward the implication that “a second training review” reached the same conclusion independently of the first. The credibility of Mr Clarke’s evidence is also in question for other reasons, including the evidence he gave about the final step in the review process, a matter which is dealt with below. I am not satisfied these are just matters of inexact expression and thereby error, but instead view these as carefully chosen words intended to give an impression well beyond the facts of the matter. Mr Clarke’s oral evidence was unimpressive giving me the impression he did not especially wish to have to explain his decision making or address the concerns Mr Crouch held which led to these proceedings. His oral evidence also exposed gaps in the knowledge he asserted in his witness statement. I therefore do not accept Mr Clarkes’ evidence as a full and accurate recollection of the facts.

[156] Mr Bosnich had only recently moved into a position as Acting ATC Training Lead, in March 2021 and was in the role until January 2022. 148 Prior to March 2021 he had not worked within Airservices’ training college. When he moved to the ATC Training Lead role he reported to Mr Clarke, until the latter handed responsibility over to another manager, Sara Davis at the end of June 2021.149 Even so, he considered he had a good understanding of the workings of the college and denied having been appointed to the Acting ATC Training Lead as a consequence of Mr Crouch seeking a review of the first training report.150 His understanding of the college and its workings came from 33 years working as an air traffic controller, a training assessment supervisor, and a group training specialist.151

[157] Mr Bosnich’s witness statement stated that when he received the draft second training report he read it, reviewed a number of the original source documents underpinning the report, and “discussed Luke's performance with instructors who had been directly involved in his training”. 152 His witness statement also identifies the following matters of relevance about the content of his report and his conclusions about those matters;

•  He noted that Mr Crouch scored 49.5% on the initial separation standards exam and “again failed to achieve the minimum pass mark of 70%”on the second attempt was “very out of the ordinary” and “a serious cause for concern” 153 (Mr Crouch contends that with Mr Bosnich’s reference to the “minimum pass mark of 70%” he “omitted to mention that I scored 68.7% (and was short on a pass mark by only 1.3%, which was only a difference of fraction of a single question as the exam comprised approximately 65 questions)”.154

•  He noted the following features of the training review report which was provided to him by Ms Synott, including that he was provided with some material about extenuating circumstances affecting Mr Crouch’s performance;

“The report set out the history of Luke's performance since he commenced the training course. It included:

(a) his scores in each assessment in each theory module in phase one, including supplementary assessments;

(b) a summary of Luke's results on formative assessments known as "Periodic Tracking" across phases 1 and 2;

(c) a summary of Luke's results on practical skills tests referred to as "Progress Evaluations" in phase 2. Progress Evaluations are scheduled at key points during simulator modules for the purpose of providing feedback to trainees;

(d) details about the remedial training offered to Luke after he failed several theoretical assessments; and

(e) a summary of his submissions about extenuating circumstances affecting his performance.” 155

•  He noted Mr Crouch had failed two theoretical assessments in phase 1 with it being “uncommon for students to fail theoretical assessments in phase 1 or 2” 156 his opinion in relation to the theoretical assessments was;

“These assessments test the fundamental knowledge underpinning the practical assessments in phase 2 and later phases. A student who does not have a strong grasp of the matters assessed in theoretical units during phases 1 and 2 will generally experience difficulty in meeting the required standards in later phases. I considered that Luke's performance in theoretical assessments (particularly in Air Traffic Services and Separation Standards) meant that he was unlikely to successfully complete the training course.” 157

•  He rated Mr Crouch’s performance on the progress evaluations as “average relative to other students”. 158

•  Mr Bosnich’s overall assessment as set out in his witness statement was the following;

“23. Overall, the results did not persuade me that his training should not be terminated. Even if his practical results had been flawless (which they were not), I would not have been comfortable recommending a different outcome, given the serious deficiencies in his theoretical knowledge that were evident.

24. I took into account the fact that Luke had been on leave between 29 June 2020 and 10 July 2020 . In particular, I took into account that:

(a) The Separation Standards examination was originally scheduled for 7 July 2020, but that Luke was on leave at the time awaiting a COVID-19 test result;

(b) Luke's examination was postponed until a date 12 days after his period of leave concluded;

(c) Ahead of the initial examination, Luke was provided with follow-up training in relation to all of the activities that he missed while he was on leave;

(d) Luke was provided with a supplementary theoretical assessment on 14 August 2021;

(e) Ahead of the supplementary assessment, he was provided with remedial training which included a workbook of revision exercises and a one-on-one consultation with an instructor.

25. I was satisfied that Luke had been provided with a sufficient amount of support to seek to address the knowledge gaps identified in the initial assessment.

26. I weighed up all of the information available to me and applied my professional judgment to make a holistic, qualitative assessment about the most appropriate outcome. No single factor was determinative. The following matters contributed to my decision:

(a) the fact that Luke had failed two units in phase 1, and ultimately only passed the Air Traffic Services unit by 0.2% in the supplementary assessment;

(b) his very poor result on the initial assessment in Separation Standards (even after factoring in his leave of absence), and his poor result in the supplementary assessment; and

(c) his average results on formative assessments, which included some "below level" and "not yet satisfactory" scores.

27. Based on my extensive experience as a qualified air traffic controller , check controller and training supervisor, my opinion was that Luke would be unable to demonstrate the level of performance required to successfully complete training within a reasonable time period. This was consistent with the views of the instructors I consulted during the training review.

28. As a result, I recommended that Luke's training be terminated.” 159

[158] Mr Bosnich’s engagement with Mr Crouch’s instructors though was limited, being assurances from Ms Synott and Ms Kylie Boyd about the training support said to have been provided to Mr Crouch. It is also clear from the evidence that Mr Bosnich did not meaningfully consider in undertaking his work the submission Mr Crouch made to Airservices in his 3 March 2021 correspondence. There is no evidence that Mr Bosnich actually did took into account the extenuating circumstances Mr Crouch put forwards as affecting his performance. 160

[159] Mr Crouch was told of the outcome of the Bosnich Review Report in a meeting on 7 April 2021 with Mr Bosnich and Ms Crisara, about which Mr Crouch says;

“I had never heard of nor met Mr Bosnich before and I was expecting my meeting to be with Steven Clarke and Antoinette Crisara. I asked why Mr Clarke was not at the meeting. Mr Bosnich said that this meeting was to go through my new training review and was not related to my request for review which was with Mr Clarke.” 161

[160] Mr Crouch was provided with a letter in that meeting which advised Airservices recommended his training be terminated. 162

[161] In the course of the meeting on 7 April 2021 Mr Crouch recollects Mr Bosnich as saying he had not read the Hunt Review Report nor Mr Crouch’s 3 March 2021 letter. Neither Mr Bosnich or Ms Crisara address these contentions in their witness statement or oral evidence. Mr Crouch recalled he was “surprised to learn that this process had no effect on the review process that I requested with Steven Clarke as that was still underway”. 163

[162] Mr Crouch’s evidence about his meeting with Mr Bosnich and Ms Crisara on 7 April 2021 is that “Mr Bosnich was rude, hostile and disrespectful towards me. He interrupted and spoke over me throughout the entire meeting. He dismissed my explanations, often interrupting me before I had finished speaking. He treated me with contempt and made me feel that he was not interested in anything I had to say”. 164

[163] In the response in his witness statement Mr Bosnich denies that proposition, explaining that he was direct, firm and forthright “because it was clear that he strongly disagreed with my recommendation and he became argumentative” 165 and that for his part Mr Crouch became agitated and angry when the former “expressed any views and opinions that were not consistent with his own”.166 He denied saying to Mr Crouch that his decision to recommend termination was heavily influenced by the fact that some “Not Yet Satisfactory” scores had been received on Progress Evaluations. He took the Progress Evaluation results into account but placed more weight on Mr Crouch’s performance on theoretical assessments.167

[164] Mr Crouch’s own witness statement says about the meeting that;

“I attempted to end the meeting twice as it became clear that it was not a productive discussion. Mr Bosnich continued to talk over me. When finally he stopped, I said how disappointed I was that he spoke over me and that I thought it was very rude. He then scoffed at me and said with a smile on his face "not to worry because [he has] worked for Steven [Clarke] for many years and [he knows] how fair Steven is and that [I] shouldn’t worry because Steven will be very fair when reviewing [my] case".” 168

[165] Mr Bosnich’s response on the subject engages only with the words put forward by Mr Crouch, does not materially engage with the tone or demeanour about which he complains and then asserts an action of Mr Crouch;

“36. I have read paragraph 100 of the LC Statement. It is true that I told Luke I had worked for Steven Clarke for many years, and that he would be fair when reviewing Luke's case. I said this sincerely. I wanted Luke to understand that my recommendation was only one step in a robust review process, and that he would be afforded procedural fairness in relation to any review decision.

37. After I said this, Luke got up and walked out of the meeting room and slammed the door behind him.” 169

[166] Mr Crouch denies slamming a door, giving evidence in his reply witness statement that “Ms Crisara opened the door for me, I stepped out of the meeting room and Ms Crisara followed out behind me. At no time did I even touch the door to the meeting room. Mr Bosnich remained in the meeting room. Ms Crisara then stood in the doorway as I exited the building” 170

[167] For her part Ms Crisara did not observe Mr Bosnich being rude, disrespectful or hostile toward Mr Crouch, stating that the former neither treated the latter with contempt nor was dismissive. However, “[d]uring the meeting, Luke was extremely upset and frustrated. He seemed to be in total disbelief that his training was being terminated.” 171 Her oral evidence was that she did not observe any rude, disrespectful, or hostile conduct from any participant in the meeting.172 Notably as well, her witness statement does not deal with the allegation made by Mr Bosnich that a door was slammed by Mr Crouch.

[168] Having observed Mr Bosnich give evidence I can see how he may have been perceived by Mr Crouch to be rude. His answers to questions in cross-examination were at times coupled with disdain, even brusqueness, giving the impression he is someone who does not accept his judgement being questioned. Such may reasonably have been seen by Mr Crouch as rudeness on the part of Mr Bosnich. I do not accept his evidence that Mr Crouch slammed the door at the end of the meeting; there is no evidence in support of the contention other than Mr Bosnich’s statement that it occurred.

[169] The meeting with Mr Crouch to communicate the outcome of the Bosnich Review was on 7 April 2021. Mr Clarke’s witness statement gives evidence that after receiving the Bosnich Review Report he reviewed its content and conclusions (referred to by me as the Clarke Review);

“70. In conducting the review, my role was to determine whether the Applicant had been given a fair and reasonable opportunity to complete the course. This involved identifying whether there were any issues with the way the Applicant's training had been delivered, or the way his underperformance had been managed by ATC training personnel. To make this assessment, I had regard to the Applicant's submissions, the information set out in the first and second training reviews, and relevant Airservices policies and procedures.

71. I did not identify any evidence that the Applicant had been treated improperly or unfairly. After reviewing the information available to me, I formed the view that he had been offered a sufficient level of support throughout his training, including following his return from the leave taken before the Separation Standards examination. Based on my experience, I was satisfied that the support given to the Applicant was consistent with the level of support provided to other trainees in comparable positions.

72. I did not identify any procedural deficiencies or other issues in relation to the second training review. I considered that the process followed by Ms Synott and Mr Bosnich was sound, and that the recommendation that made was appropriate. I agreed with the findings that fair and reasonable support had been provided to the Applicant, and that there was no evidence to indicate an increased likelihood of success through any further extension of training or training support.

73. As a result, on 27 April 2021, I made the decision to uphold the recommendation to terminate the Applicant's training.” 173 (underlining added)

[170] On 14 April 2021 Mr Crouch wrote to Mr Clarke requesting a review of the recommendation made by Mr Bosnich, making further submissions. 174 Amongst other matters Mr Crouch’s 14 April 2021 correspondence;

•  took issue with the Bosnich Review Report placing reliance on him receiving some Not Yet Satisfactory scores on several performative evaluations, with him contending this was commonplace. In that regard it noted he had asked for information from Airservices about the deidentified progress of others in his training cohort some months earlier, with it never being provided;

•  put forward reasons for having some “at level” ratings, noting that in their meeting Mr Bosnich had “indicated to me that he did not consider that my “At level” tracking was relevant and that in his opinion I was not “At level””;

•  argued that his results in PE 6 showed he had “consolidated the concepts I had missed while on sick / COVID test leave” with those results showing he “was able to maintain separation and apply separation standards”. 175

[171] The context for Clarke Review is the statement in Mr Bosnich’s 7 April 2021 letter which states about the prospect of its findings and recommendations being challenged;

“Should a review be requested, Mr Clarke will make a determination on your suitability to continue training based on information presented in the Training Review and any new information presented by yourself. The recommendation to terminate training will be reviewed and considered in an impartial manner.” 176 (underling added)

[172] Mr Clarke’s oral evidence though was quite different, indicating he did not start from a base of impartiality but instead suggesting he held a predetermined view about someone in Mr Crouch’s situation,

“THE COMMISSIONER: Mr Clarke, can I just interpose at this stage. The comment that you've made in your statement is an interesting one and it's saying to me, isn't it, that in Mr Crouch's case, from what I knew about this man at this point in time, I didn't think he was going to pass the thing with further opportunities, so I didn't give him those opportunities. Is that the way I should be reading it?---Yes. What we find with the trainees is if they don't complete things within a reasonable period of time, particularly in an early stage of the course, that they really do struggle. It would have been - - -

So that's how I've read it?---Yes.

Now your answer to Mr Hardy, so far, is not strong. You've said, well, everything I knew means that I can make that prediction. This is your opportunity to delve into your knowledge and explain what that knowledge was, why it was in Crouch's case there wasn't to be a further opportunity but perhaps in other people's cases there might be; or maybe there's a third possibility which is, I never give anyone any further opportunity. So, please explain to me what that sentence really means and how you formed that view?---I formed that view based on Mr Crouch's progression. If I think about the theory exam if that's where we are here, he performed very poorly in the first instance. And following the training support and a reasonable period of time to be able to study for that exam for what is a foundational examination in air traffic control, it's separation standard, so they're the standards we apply between the aircraft where you'd need a really strong knowledge. To fail that exam twice following the training support agreement, in my experience, there was little likelihood that giving him any more opportunity, notwithstanding that we don't set the pass mark, that's set by the Civil Aviation Safety Authority, that he wouldn't have been any more likely to pass that exam.

And is that the same impression you would have for everyone else in that situation, as well?---For a theory examination, yes. For the practical it can be different because there are various - the practical is done in a simulator so there are lots of variables. You've got people who have been pilots that can change the outcome of an exercise, so in terms of a second supplementary examination, in my experience for theory, I've never seen that. We might in certain circumstances have a second supplementary examination for theory depending on the circumstances at the time.

So, is that saying in Mr Crouch's case where he failed the same exam twice, the theory exam - - -?---Yes.

There was no turning back?---Yes, that's my - - -

There was no further chance to be had?---Yes.

All right. So then what was the review process about?---So that whole training review when somebody doesn't pass an element of the course, they used to collect all the evidence together in one spot so that we can then make an objective assessment about whether or not that person is planning to continue, i.e., they get re-coursed, or that their training is terminated.

That's what you might do, whereas what I'm talking about is what Mr Crouch might do. He's asking for a review?---Yes.

Now the proposition I put to you is based on what you had to say at that review process, really. That's my point. Anyone in his position would end up in the same situation of being recommended for termination?---Yes, in the circumstances of the theory, that's correct.” 177

[173] It is evident from these matters that there was no proper review by Mr Clarke. The thing held out to Mr Crouch in Mr Bosnich’s letter – that the recommendation to terminate training will be reviewed and considered in an impartial manner – was not delivered.

Academic Appeals Review

[174] Shortly after receiving the Bosnich Review Report on 7 April 2021 Mr Crouch took two actions; he sought to appeal its stated recommendation; and he raised a dispute under Clause 10 of the 2020 Agreement which had commenced operation on 21 April 2020.

[175] The appeal against Mr Clarke’s decision was made as an academic complaint and appeal pursuant to the Registered Training Organisation processes. 178

[176] On 21 May 2021 Mr Crouch was informed Mr Clarke had appointed James Harrington, Firefighter Leader, as the Chair of the Academic Review Panel. 179 The panel also comprised Nicole Lewis, ATC Line Leader, and Ingrid Clements, Operational Training Specialist, both of whom were employed in Airservices’ Air Traffic Control section and not the training department.180 Mr Crouch considers there to be a conflict of interest relevant to the appointment of Mr Harrington who was at the time a direct report of Mr Clarke.

[177] On 16 June 2021 Mr Harrington sent Mr Crouch a letter advising the outcome of the review, being to uphold the decision to terminate his training. Mr Crouch criticises the letter as not having addressed his concerns and “instead there are only broad sweeping statements that (again) do not engage with the material I submitted”. 181 The letter sets out the following;

“Dear Luke,
Academic Appeal Decision

I am writing to inform you of the outcome of the Academic Appeal that you submitted on 2 May 2021.

An Academic Appeal Review Panel (The Panel) was formed and included myself (Panel Chair), Nicole Lewis (ATC Line Leader) and Ingrid Clements (Operational Training Specialist). We reviewed your training documentation below:

•  Academic Complaints and Appeals Form (C/A Ref No #42)

•  ANS Initial Training – Training Review

•  Trainee Support Agreement No. 1 (TSA1)

•  Trainee Support Agreement No. 2 (TSA2)

•  Trainee Support Agreement No. 3 (TSA3)

Based upon the evidence:

•  You were aware of the requirements to achieve a minimum of 70% in module ASA119 Area Separation Standards.

•  TSA3 was developed for you after you failed to meet the minimum criteria in your first assessment for ASA119 Area Separation Standards. Michael Boyd, Derek Russell and yourself confirmed your agreement of the conditions set out in TSA3.

•  Post-delivery of TSA3 all applicable parties, including yourself, confirmed that the outcomes of the agreement had been met.

•  You failed to achieve the minimum score of 70% in the supplementary assessment of ASA119 Area Separation Standards.

•  You had issues throughout your training demonstrated by the three Training Support Agreements where your performance was below in required standard.

•  You received ample support during your training as demonstrated by the three Training Support Agreements. This includes the opportunity to sit a ‘verbal assessment’ as an alternative to the paper based assessment for the ASA119 Supplementary Assessment.

•  Additionally the panel noted your appeal fails to consider your obligations as an Airservices employee with an expectation of staff to take accountability for their own learning as in any adult educational environment.

Based on the above The Panel upholds the decision to terminate your training.

If you are not satisfied with the decision of The Panel you may request an independent review through the Airservices Employee Assistance Program. Should you wish to go down this path you will be required to notify me via [email address] within five (5) business days of receiving this letter.

Regards
James Harington
Firefighter Training Lead
16 June 2021”

[178] The letter is indeed brief and states the appeal consideration to be limited to Mr Crouch’s “training documentation” Given both its significance on Mr Crouch’s employment and career and the complaints he made about Airservices decision-making to the date of his appeal it is open to a finding that the appeal fails both to engage with his complaints in any meaningful way or why they were without merit. At most the appeal seems to be no more than a desk-based delivery assurance review checking off Mr Crouch’s achievements and the support Airservices contends was provided to Mr Crouch. As such it was an appeal in name only. Importantly, the correspondence from Mr Harrington ends with the statement that if Mr Crouch is dissatisfied with the appeal decision he may request “an independent review through the Airservices Employee Assistance Program”.

[179] As context to that statement, it is noted that trainees, including Mr Crouch, are provided with a Student Handbook and an Operations Manual, both of which make reference to the EAP and its role in academic appeals;

•  Operations Manual – section 8.5.3 describes the academic appeals procedure and after referring to earlier appeal steps are set out following; 182

Step

Action

When

Who

Evidence retention

…

13	If the decision is not accepted the appellant may request an independent review through the Employee Assistance Program (EAP), via email to the Appeal Panel Chair. Up to two sessions, maximum two hours each session.	Within five calendar days of the appeal decision.	The appellant	Appellant’s rejection of decision is documented and retained on the appellants file. AQS receive email of appeal outcome and status is updated in C&A Register.
14	Coordinate independent review through EAP.	Once notified Independent review required.	Academic Appeal Review Panel Chair	Appeal Review ensures all documentation associated with this phase of the process is retained on the appellant’s file. (TU provides admin support)
15	Independent review of decision is undertaken to determine if appeal is upheld or denied (max two sessions). The decision made by the EAP independent review is considered final and the appeal is closed.	During EAP sessions.	EAP Specialist	Appeal Review Panel Chair ensures all documentation associated with this phase of the process is retained on the appellant’s file. (TU provides admin support)

A footnote is included in item 13, stating “Two (two hour) EAP Sessions up to a maximum of four hours in total are available to all appellants and provide an independent third-party review of the process undertaken to ensure the principles of natural justice and procedural fairness at every stage of the complaint and appeal process. The decision of the EAP is final and renders the appeal closed.”

•  Student Handbook – section 3.3 identifies the EAP as Converge. The handbook then repeats the information contained within the “Action” column of the Operations Manual extracted above. 183

EAP Independent Review

[180] Mr Crouch tried and failed to engage both the EAP, Converge, and Airservices to conduct an external review of the recommendation his training be terminated. After contacting Mr Harrington, he sent Mr Clarke a letter on 2 July 2021, pleading for help. He expressed his “continued disappointment” about Airservices’ handling of his Training Review; that he had “been strung along by Airservices for almost 11 months now” despite having made multiple submissions to Airservices about his concerns. He stated he had been treated “incredibly poorly by Airservices” because of its constant delays and lack of engagement with his concerns. He also pointedly raised the subject of the EAP conducting an independent review (referred to in this decision as the EAP Independent Review);

“On 23 June 2021, I contacted Mr Harington to progress my concerns and I was instructed to contact the employee assistance program (EAP) to request an independent review of the decision. That same day I contacted the EAP only to find they are unaware of what they are required to do in relation to this matter. The EAP indicated that they are contracted by Airservices to facilitate mediations, and not to provide any binding decision-making. This is notwithstanding the fact that, according to the Student Handbook for Airservices Employees Enterprise Registered Training Organisation 5168 (CMAN-0153) at section 6.1.3, an independent review through the EAP is the final review in the academic appeals procedure. I have spoken to a number of people at the EAP including Jason Dixon, the partnership manager, who is also unaware of what is required. At this stage I am continuing to wait for this issue to be resolved.

All of this has caused me significant stress and anxiety and I regard this as unreasonable management action which further aggravates the gross procedural unfairness that has been visited upon me throughout this entire process. I will be seeking to progress these issues further with the Fairwork Commission.” 184

[181] In his witness statement Mr Clarke stated that;

“At the completion of the RTO Academic Appeal process, if an appellant is dissatisfied with the outcome, they can refer the matter to Converge (Airservices' external employee assistance program provider) for mediation”. 185 (underlining added)

[182] In his oral evidence on the subject of the organisation holding out that an independent review would be conducted by the EAP Mr Clarke elaborated that upon learning of the problem; “[w]e attempted to comply with that but we became aware that it was not a service that Converge, who's the EAP, no longer provided”. 186

[183] Referable to step 13 of the Airservices Registered Training Manual - Operations Manual Academic Appeals Procedure and Evidence Retention requirements which states a trainee “may request an independent review through the Employee Assistance Program (EAP)” Mr Clarke conceded in answers to questions from Mr Hardy that the intended referral was not for mediation but independent review;

“Do you see to the page that I started with, 156, item 13 is an independent review that is supposed to be undertaken in compliance with this RTO manual by an employee assistance program provider, correct?---Yes.

And that was not complied with in relation to Mr Crouch, correct?---We attempted to comply with that but we became aware that it was not a service that Converge, who's the EAP, no longer provided.

The question was that it wasn't complied with in relation to Mr Crouch, correct?---Correct.

Your statement, if you could turn to it please, at paragraph 55, and the court book reference, apologies, is page 590 - do you have that?---Nearly.

No problem, just let me know when you do?---Yes.

You say the referral there is for mediation but that's not correct, is it? And from what we've just looked at - sorry, let me withdraw that. Let me ask that question first. It's not a referral for mediation?---The (indistinct) receiver at the time, no, it was not a referral for mediation.

Thank you. It was a referral for an independent review to be undertaken by the EAP provider?---Yes.” 187

[184] It is noted that Mr Clarke had moved out of the Operational Training Head position at the end of June 2021, 188 although it appears he retained responsibility for dealing with Mr Crouch’s matter after that time. Mr Crouch says that Ms Crisara rang him, on 2 August 2021, to say “that there was no alternative to a mediation with the EAP and there was no external review process”.189 A mediation took place on 1 October 2021 and was unsuccessful in resolving the parties’ impasse. On 15 October 2021, the application which commenced these proceedings was lodged in the Commission.

[185] Mr Clarke’s witness statement assertion that the EAP step is for the purposes of mediation is disingenuous and possibly untruthful, with him walking it back in his oral evidence, but only when specifically asked about the subject. In observing him giving evidence and considering the totality of his evidence I am satisfied his evidence in this regard lacks credibility and is not to be accepted. Mr Clarke’s command of his brief and the training college was such that I do not accept he thought all along the last step of the training review and academic complaints process was of a mediation. The contention that there can be a reference by an appellant who is dissatisfied with the Academic Appeal Review outcome, to the EAP provider for mediation is likely a self-serving creation on his part to explain how the Registered Training Organisation he headed came to have as the final step in an academic appeals procedure a process that did not exist. I also am unable to accept as a truthful recollection that it was only at the point of Mr Crouch’s post-academic appeal request that “we became aware that it was not a service that Converge, who's the EAP, no longer provided”. I do not accept his evidence on these matters.

[186] In comparison to my findings about the evidence given by some of Airservices’ witnesses, Mr Crouch’s evidence was in the main clear, credible and capable of acceptance even though some parts of his witness statements were tendentious, more in the form of submissions than evidence. His answers in cross-examination were in the main clear and concise, generally avoiding argument and he was mainly willing to accept fault on his part when it was put to him.

[187] In addition to these matters is the matter of recoursing as dealt with in Mr Clark’s evidence, that is, to place the trainee in further or remedial training.

[188] In answering questions in cross-examination about the recoursing of trainees Mr Clarke acknowledged that in the period 2015 to 2022 there were 351 trainees of whom 57 were recoursed and that 17 of those subsequently passed, or about 30% of those who were recoursed. 190 However, it arose in response to questions from Mr Hardy that Mr Clarke viewed the use of recoursing to be somewhat confined. His evidence was that it may be considered when a person has not undertaken a training review, such as when they are unfit to be able to attend work. Otherwise, and in Mr Crouch’s case, it would involve a consideration of his theoretical results and not those together with progress evaluations and periodic tracking;

“Yes. So, if we take those 50 and we take the re-coursed 57, that means that there must have been over that period as I read this, 107 employees through that training review? Because before you initiate an organisation initiated training, those 50 would have gone through a review, correct?---Those 50 would have, yes.

So therefore we've got 107 employee trainees over that period, 107 of them and through that calculation, 57 of them re-coursed, correct?---Correct.

That's 50 per cent of those that go on a training review get re-coursed on this data, just over?---Yes, we can't assume that everybody who goes under a training review will get re-coursed. It depends on the circumstances. But that's what this data is showing, yes.

How else do you go on to be re-coursed if you haven't undertaken a training review, Mr Clarke?---Circumstances where people fall off their bicycle, broken leg, they're progressing well through the course, they're not under - they're not having any issues with the course. They're just unfit to be able to attend work.

But presumably that requires a review and a decision to be made? You don't just fall off your bike and break your leg and then get back up on a re-course, do you? There's a process?---Yes, it's a considered process but it's not the same depth of review that would be done when somebody is not performing to what we expect.

When you were looking at options available for Mr Crouch did you have regard to the comparable results in both theoretical course work and practical course work of his cohort?---No, I considered the theoretical results.

Of all the others in his course?---No, of Mr Crouch.

You didn't assess how he was tracking against the balance of his cohort. That's what you've just said, correct?---Correct.” 191

[189] Flowing from the evidence of Airservices’ operational based witnesses, Mr Clarke, Mr Bosnich and Ms Crisara, are the following potential findings;

•  There was likely a pre-formed view that anyone who had twice failed the separation standards exam was at the end of their training;

•  As a result, the Hunt or Bosnich Review Reports, the Clarke Review or the Academic Appeals Review were likely not open and objective reviews of all the circumstances and what should then be done but, instead, were mainly paper-based processes focusing on the theory results, with no meaningful account to be taken of the submissions or responses put forward by Mr Crouch;

•  The abovementioned reviews did not take account of Mr Crouch’s extenuating circumstances or that he was not provided with reasonable constructive assistance after the first ASA 119 exam and before the supplementary exam;

•  There is no proper explanation for the length of time to complete the training review, the outcome of which was the Hunt Review Report and Airservices was not responsive to his requests for its earlier completion or his anxiety that it was not completed and probably unreasonably so. The delay was time taken to complete the report was not actively managed by Airservices, when it should have been. At the least it was convenient to Airservices for the report to be delayed and certainly would be so if Mr Crouch resigned. On the evidence before the Commission it cannot be ruled out that the delay may have been intentional and for the collateral purpose of procuring Mr Crouch’s resignation.

•  It was likely known to Airservices that the final step in the academic appeals process of there being an external independent review was in fact not available to Mr Crouch and that nothing was done to ensure a final external independent review was made available to him.

•  ‘Blipping’ or other meaningful duties could have been provided to Mr Crouch.

(d) Inferences

[190] Mr Crouch seeks the Commission draw adverse inferences about Airservices’ conduct of its case, relying upon the reasoning in Jones v Dunkel for its failure to call a number of witnesses and in particular;

•  Peter Curran;

•  Stuart Hunt;

•  Jessica Walton;

•  Emma Schafer;

•  Chris Watson;

•  Michael Boyd;

•  Sarah Synott;

•  James Harrington;

•  Kylie Boyd;

•  Ingrid Clements; and

•  Nicole Lewis.

[191] Mr Curran was Airservices’ Executive General Manager Air Navigation Services at the time of the making of the 2020 Agreement. The other people listed have had some involvement in decision making about Mr Crouch’s review applications.

[192] The Full Bench held in Joseph Calleri v Swinburne University of Technology that the “rule in Jones v Dunkel applies in circumstances where a party fails to call a witness, where it would be natural for them to do so, or where the party might be reasonably expected to call the witness. Further, the inference that may be drawn is a negative one, namely that the evidence that might have been led by the party concerned would not have assisted it”. 192 In Hyde v Serco Australia Pty Ltd,193 the Full Bench elaborated on the principle, drawing upon the earlier decision of Tamayo;

“[102] The rule in Jones v Dunkel has been aptly described as ‘a rule of common sense and fairness in relation to the fact finding process.’ The rule was considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo). In that matter the Full Bench made the following general observation about the rule in Jones v Dunkel:

‘1. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case.

The rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability.

The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness. Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate party closely involved in the circumstances in question and present during the hearing of the case.

The rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn.

2. The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference.

3. The rule only applies where a party is `required to explain or contradict' something and this depends on the issues thrown up by the evidence in a particular case.

4. The rule only applies to the failure to call a witness who is not a party to the proceedings if it would be natural for the party to call that witness, or the party might reasonably be expected to call the witness in question, or as Glass JA said in Payne v. Parker, `the missing witness would be expected to be called by one party rather than another'. His Honour said that this condition:

‘. . . is also described as existing where it will be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reasons there will be for thinking that his knowledge is available to that party rather then to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman; his safety officer; his accountant; his treating doctor.’

A party is not necessarily expected to call their own employees, though the more senior employee the more reason for concluding that the employee's knowledge is available to his or her employer rather than any other party.

5. The evidence of the missing witness must be such as would have elucidated the matter. In Payne v. Parker Glass JA said:

‘. . . according to Wigmore the . . . condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary, would have had a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of the principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.’

[103] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s.590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that ‘is fair and just’. As the ‘rule’ in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. We adopt the observations made in Tamayo.

[104] A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.

[105] The impact on the fact finding process of an unexplained failure by a party to call or tender apparently relevant evidence within that party's control is ultimately a matter in the discretion of the member hearing the case at first instance. That discretion is to be exercised in accordance with the dictates of commonsense and fairness. Absent an error of principle, a breach of the rule in Jones v Dunkel will only give rise to error on the part of a member at first instance if the member acted unreasonably in drawing or failing to draw the relevant inference resulting in factual findings that are manifestly unfair.

[106] The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party's ‘camp’.” 194 (footnotes omitted)

[193] I am not persuaded that an inference need be drawn against Mr Curran. Mr Knauer was the first witness for Airservices and gave evidence about the steps leading to the inclusion of Schedule 1 in the 2017 Agreement. I have made the requisite findings about those matters and have done so on the evidence given by Mr Knauer. I do not require Mr Curran’s evidence to determine that aspect of the matter before me.

[194] The potential for adverse inferences to be drawn in relation to the other named people requires greater consideration. Of particular importance for me in that regard are the conclusions set out above that may be drawn from the evidence of Mr Clarke Mr Bosnich and Ms Crisara.

[195] Mr Clarke was Operational Training Head before and after preparation of the Hunt Review Report and the Bosnich Review Report. Before those reports were completed, he received periodic reports from Ms Crisara about Mr Crouch. Mr Hunt, along with Ms Walton and Ms Schafer were tasked with undertaking the Hunt Review Report, and Mr Clarke then appointed Mr Bosnich and Ms Synott to undertake the Bosnich Review Report. After rejecting an appeal from Mr Crouch on the Second Training Review, Mr Clarke appointed Mr Harrington and Ms Lewis and Ms Clements to undertake the Academic Appeal Review.

[196] To some extent the documents finalising each of those steps speak for themselves; each is short, formulaic and to-the-point. Each states Mr Crouch has benefited from training from Airservices and been given assistance along the way and then rejects his requested review or appeal. However, what the documents do not do is to address the things that may be drawn from Mr Clarke’s evidence; that since there is little point in persisting “there was no further chance to be had” and that “anyone in [Mr Crouch’s] position would end up in the same situation of being recommended for termination” even if there are some personal factors that could be taken into account. The Hunt Review Report also fails to note Mr Crouch’s concerns about the time taken to finalise the report, or to address why its preparation had taken so long.

[197] Of the people involved in preparing the Hunt and Bosnich Review Reports and the Academic Appeal Review only Mr Bosnich gave evidence, and his was limited in the ways referred to earlier. It is unexplained why the other people involved in preparing those reports or the Academic Appeal Review did not give evidence. Of course, the evidence of those other people may have shown there was no plan to delay the review process in the hope of resignation and no predetermination or unpreparedness to allow recoursing. Equally, their evidence may not have been able to assist in casting any further light on the matter. On the other hand, Mr Clarke’s evidence that suggests a predetermined view is such that it requires explanation, as does the inference that may be drawn from Ms Crisara’s evidence, that extraordinary delays in preparing the review report may have been for the collateral purpose of procuring a resignation.

[198] As a result I am persuaded that an inference of this type may be drawn in relation to Mr Hunt, Ms Walton, Ms Schafer, Mr Watson, Mr Boyd, Ms Synott, Mr Harrington, Ms Boyd, Ms Clements and Ms Lewis.

[199] Mr Hunt, Ms Walton and Ms Schafer could have given evidence about the matters taken into account in forming the Hunt Review Report, the factors associated with its extraordinary delay; whether it was prepared impartially and without bias or pre-determination; and as to its recommendation why termination of training was appropriate, whether other possible outcomes were considered and if so why termination of training was recommended. Mr Watson and Mr Boyd’s evidence may have overcome the criticism that they did not provide constructive assistance to Mr Crouch when they could have. Ms Synott’s evidence may have assisted with the view that the Bosnich Review Report was merely a revision of the Hunt Review Report and that it did not impartially or independently form its recommendation. Ms Synott’s evidence, together with that of Ms Boyd’s may have assisted in the matter of how Mr Crouch’s performance was reported to Mr Bosnich for the purposes of his report. The evidence of Mr Harrington, Ms Clements and Ms Lewis may have assisted in dispelling the findings made about the Academic Appeals Review, including that it was an appeal in name only, failing to engage with Mr Crouch’s complaints.

[200] It is likely that evidence from each would not have helped Airservices’ case and I draw the inferences invited by Mr Crouch in respect of Airservices’ failure to call each as witnesses.

[201] Having drawn these inferences, I am satisfied the evidence that was actually before me enables the indicated findings set out above at paragraph [186] may be made and that it is appropriate to do so.

Findings

[202] As set out above, Mr Crouch argues 7 failings on the part of Airservices sourced from Clause 50 of the 2020 Agreement; 195

1. It has not constructively assisted him to improve his performance (referable to Clause 50.1);

2. It failed to promptly advise him of its concerns (cl. 50.2(a));

3. It failed to provide him with sufficient time to be represented or supported in relation to performance management processes (cl. 50.2(b));

4. It failed to provide him enough opportunity to respond to Airservices’ concerns and to have that response genuinely considered (cl. 50.2(c));

5. It was biased in its consideration of his views (cl. 50.2(d));

6. It failed to genuinely consider matters he put forward about its management of him (cl. 50.2(d)); and

7. Its actions and sanctions are wholly disproportionate to his performance and conduct (cl. 50.2(e)).

[203] Airservices argue that it constructively assisted him, was not biased against him, and did not otherwise fail to afford him procedural fairness. It also argues the construction of Clause 50.1 referred to above, set out in Civil Air, does not mandate the provision of constructive assistance before the institution of the formal processes set out in Clause 50.3.

[204] While that may be so, Mr Crouch’s case is not one that could be said to mean there was no capacity on Airservices’ part to provide assistance to him or that it was inappropriate to do so. Civil Air makes two points of relevance in this regard; that “in determining the assistance to be offered, the appropriateness of that assistance can, and should, properly consider past assistance”, and that “[w]hilst the capacity or appropriateness of providing such assistance should be the first consideration it cannot be the only consideration”. 196

[205] The past assistance provided to Mr Crouch includes both the matters set out in the three training support agreements and the steps taken by Airservices after he failed the first ASA 119 exam, referred to directly in his evidence and indirectly in the evidence of Mr Clarke and Mr Bosnich. There was no direct evidence before me from an Airservices witness on the subject of either category of past assistance. While certainly Mr Clarke and Mr Bosnich provided evidence about these matters, their evidence was not direct, first-hand knowledge of what was provided or its actual or potential efficacy.

[206] Mr Crouch participated in three “training support agreements” between 16 December 2019 and 31 July 2020. Those agreements appear unexceptional and consistent with Airservices’ usual processes.

[207] The first training support agreement was put in place on 16 December 2020 “following Luke not satisfying the performance requirements for ICAO 004 Air Traffic Services Topics 1-4, 6-10”; the second on 19 February 2020 “following Luke Crouch not satisfying the theory assessment requirements for ASA 108 Aircraft Performance and Recognition”; and the third on 31 July 2020 “following Luke not satisfying the Assessment requirements to correctly answer a minimum of 70 percent of the available marks in each topic”. 197

[208] It is striking that no account is taken within the third training support agreement either of the impact on Mr Crouch of the two weeks away from work or the stressors to which he has referred in his evidence; of feeling isolated and anxious as a result of the COVID self-isolation; of under-preparedness for having missed two weeks of critical work. The third training support agreement does not explicitly deal with the fact Mr Crouch had been on COVID leave and missed two weeks of training. Instead, it refers to absence only as a forward event, stipulating a medical certificate would be required for absence if future illness arises and is in identical terms to the same clause in the first and second training agreements.” 198

[209] According to Mr Clarke, the third training agreement provided for “a review of the initial assessment”, provision of a trainee workbook for completion; and “a session with an instructor to ask questions”, 199 with those things being delivered in the dysfunctional session with Mr Watson. Mr Clarke’s evidence is that “[t]he training support agreement was delivered in full, as confirmed by the delivery manager”,200 however no insight of significance is given for that contention and the little that was given by him was confused and uncompelling. Whereas the delivery manager was Michael Boyd it was actually Emma Schafer who informed Mr Clarke the training support agreement had been delivered in full, and then not by Mr Boyd but by Mr Watson;

“MR HARDY: How did you confirm that the training support agreement was delivered in full? My recollection, that was informed to me by Emma Schafer.

So, Emma Schafer informed you that that had been - and who was Emma Schafer? What was her role? Emma Schafer was the person who did the training review, who did the first training review.

Given that distance away from the reality of what was going on, would it surprise you that Mr Crouch's evidence is that the delivery manager, Mr Boyd, there were two sessions with him - he wasn't present at the first session? Are you aware of that? Sorry, apologies. He did not deliver the first session. It was a session by Chris Watson? Correct.

Are you aware of that? Yes, I'm aware that's in the evidence, yes.

And that he didn't attend, he wasn't present as the delivery manager at the second of those meetings. Are you aware of that? Yes, and I don't see that he would need to be.

So, the delivery manager is not present and you give evidence to the Commission to say in paragraph 60 that the agreement was delivered in full as delivered by the delivery manager, which as I understand your evidence, wasn't confirmed to you by him but by some other lady, Schafer, correct? Yes, from reviewing the documentation of the training support and agreement.

Did you speak to Mr Boyd, did you check? I couldn't speak to Mr Boyd because he's left the organisation.

Why does that prevent you from speaking to Mr Boyd? I didn't see a need to speak to Mr Boyd because the documentation was in place to say that that was the training support agreement that was delivered.

But your evidence to the Commission is that it has been confirmed by the delivery manager. How can you tell the Commission that if you didn't speak to Mr Boyd? Because it was informed to me by the people who were in the training review, on reviewing their documentation.” 201

[210] Mr Clarke’s evidence that the training agreement was delivered in full is unreliable. He was plainly not in a position to make such an assertion to the Commission.

[211] When Mr Crouch badly failed the first ASA 119 exam it should have been evident to Airservices there was a problem of some depth that may require assistance beyond the norm. In some ways the depth of the problem appears to have been evident to Mr Watson who had been assigned to be Mr Crouch’s instructor for the purposes of training support who stated in the meeting with Mr Crouch and Mr Boyd his exam paper was “horrible” and “not worth reviewing together”; 202 however those statements and the hostility he exhibited could not be considered either to be assistance or a proper engagement with what should have been an obvious problem. The third training support agreement then offers as a reasonable adjustment for the supplementary exam to be taken verbally, which Mr Crouch declined.203 Whereas the offer of taking the paper verbally is, of course, constructive assistance, dealing with a hostile training support instructor and the absence of other steps is not.

[212] The second and third training agreements also states under the heading “outcome” that “[s]uccessful completion of the supplementary assessment will see Luke continue Phase 2 Training with ATC152. Unsuccessful completion of the supplementary assessment will result in Training Review, with termination of training a possible outcome”. 204 Given this possibility (and on Mr Clarke’s evidence, a likelihood), it was unreasonable of Airservices to not provide tailored training support to Mr Crouch. Upon return to work on 13 July 2020 he had 10 days to reassimilate himself to training; to catch up on what he had missed; and to prepare for the first ASA 119 exam. It would have been reasonable for Airservices to check on his actual progress toward the exam and provide additional tailored assistance to him.

[213] At the point Mr Crouch failed the first ASA 119 exam he had made good but not exemplary progress through the training. He had been away from the workplace for a period of over two weeks, during which he was isolated both from work as well as being physically isolated from friends and family. While that was not an unusual situation in Melbourne in mid-2020 it was a factor to be taken into account. The assistance given by Mr Watson who described Mr Crouch’s exam paper as being “horrible” was sub-standard and may itself be described as horrible. After telling Mr Crouch his paper was “not worth reviewing together”;

“24. …He was hostile towards me and seemed annoyed that he was being required to attend this meeting with me. It was not a supportive environment.

25. I sat at the table by myself and reviewed my exam answers alone (while Mr Boyd and Mr Watson were talking amongst themselves). I did not receive specific feedback or a debrief on my exam, or any other support, from either Mr Boyd or Mr Watson and based on the comments Mr Watson made I considered that he had ruled this out as an option.

26. While my exam paper was marked up with some comments and example answers from Mr Watson, in many cases it was not clear to me why I had lost so many marks (for example, where an answer was worth 10 marks and I had been awarded some, but not all, of those marks but I considered that I should have been awarded more because my answer covered many of the same points covered by the example answer). However, because of Mr Watson’s comments and his hostile tone and demeanour towards me, I felt like I could not ask him to run through the exam with me and explain why I had lost marks. Mr Watson had made it very clear to me that my paper was “not worth reviewing together” and he showed no interest in trying to support me through the process.” 205

[214] In contrast to this evidence, which was not contradicted by Airservices, Mr Crouch was encouraged by the debrief he received from Ms Thornley after he had failed the supplementary ASA 119 exam and been placed on training review, describing the meeting with her as “incredibly helpful”;

“57. … Ms Thornley explained what I had lost marks for, such as not writing the unit of measurement (nautical miles) in my answers. Prior to that, I had thought that the unit of measurement was so obvious that I did not need to write it down. Ms Thornley also told me that there were also one or two questions where I had lost marks for not writing the words "up to /"less than" or "inclusive" even though the numerical figure or range I gave was correct. Again, this would have been useful to know prior to undertaking the supplementary exam; however, this was not communicated to me by Airservices and is something I believe Mr Watson could have assisted me with.

58. Had I received a debrief and appropriate support after the initial exam, I believe I would have passed the supplementary exam. ...” 206

[215] I am satisfied that the past assistance provided to Mr Crouch was insufficient and in the case of that provided by Mr Watson and Mr Boyd was not constructive assistance. The debrief undertaken with him by Ms Thornley demonstrates constructive assistance could have been provided to Mr Crouch. The evidence does not lead to a finding that constructive assistance could not have been provided to Mr Crouch after the first exam was failed. There was no inappropriateness or impracticality to the proposition. This is shown by the fact that Mr Watson and Mr Boyd were supposed to provide it but did not and that Ms Thornley provided an incredibly helpful debrief within a few weeks of the second exam.

[216] I therefore make the finding that Airservices has not provided constructive assistance to Mr Crouch so he may improve his performance to a satisfactory level within a reasonable time. That finding is made for three relevant periods; after he returned from COVID leave; after he failed the first ASA 119 exam; and for the period since he failed the second ASA 119 exam (with the exception of the assistance provided by Ms Thornley).

[217] The steps taken by Airservices to provide assistance after returning from COVID leave were inadequate and did not have sufficient regard to Mr Crouch’s situation and were thereby not compliant with Airservices’ obligations to him under Clause 50.1. Likewise, given the hostile briefing after the first exam was failed, Airservices’ steps in that period were also insufficient as to be characterised as compliant with Clause 50.1. The steps taken after the supplementary exam was failed were also inadequate and noncompliant, with the exception of the debrief given by Ms Thornley. In light though of Mr Clarke’s evidence that “[t]hat there was no further chance to be had” 207 in Mr Crouch's case, the debrief was essentially without a purpose, since there was in all likelihood no further chance to be afforded to Mr Crouch.

[218] When Mr Crouch failed the supplementary ASA 119 exam he was immediately placed on training review and instructed not to return to work. The fact that he was sent away from work and the length of time it took to complete the training review also leads to the conclusion he was not afforded procedural fairness. He submits the length of time was either deliberate in the hope that he would resign while on review or due to significant maladministration and mismanagement. 208 Ms Crisara disagrees with that proposition, explaining “that the delays were related to the COVID-19 pandemic and the lack of training staff in the Academy”.209 Such though is not credible evidence in the context of her evidence first that training reviews take “a minimum of 8 hours of work usually over a period of several weeks”210 and second her amended Annexure AC – 01, which shows it was routine for training reviews to take longer than 6 months to complete.

[219] If Ms Crisara’s evidence that one training review might take a minimum of 8 hours work then it is implausible the training review system moves as slowly as it does. The combination of the fact that Mr Crouch was sent away from the workplace and had to wait 6 months for the first training review report to be completed lends weight to his suspicion that it was done with deliberate intent in the hope he would resign. Airservices did not afford Mr Crouch with procedural fairness in taking as long as it did to conclude the Hunt Review Report.

[220] In relation to the matters dealt with in Clause 50.3 the evidence also leads to a conclusion that at least some of Airservices’ obligations have not been complied with and that Mr Crouch’s position has been significantly compromised as a result.

[221] Clause 50.3 is to be construed in tandem with Clause 50, which commits Airservices to “adhere to the principles of procedural fairness when managing an employee in relation to suspected under-performance or misconduct”. After noting that the clause itself does not start from the presumption there is actual under-performance to be managed, and that its subject is instead suspected under-performance Clause 50.2 provides;

“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.”

[222] Consideration of Mr Clarke’s evidence in tandem with Ms Crisara’s leans to the conclusion that delays associated with Hunt Review Report were not actively managed by Airservices; that it may have been convenient to Airservices for the report to be delayed if Mr Crouch resigned; and that it cannot be ruled out that the delay may have been intentional and for the collateral purpose of procuring Mr Crouch’s resignation..

[223] Mr Clarke agreed in his oral evidence “[t]hat there was no further chance to be had” in Mr Crouch's case having failed the same exam twice and that in the circumstances of the theory exam “[a]nyone in [Mr Crouch’s] position would end up in the same situation of being recommended for termination”. 211 That evidence leans to the conclusion that each of the Hunt and Bosnich Review Reports, the Clarke Review and the Academic Appeals Review were not impartial or unbiased but instead tainted with the view there were to be no further chances available to Mr Crouch. At the relevant time the people responsible for the reviews reported to Mr Clarke and/or were selected by him to undertake the work they did. Mr Clarke’s opinion is not a dispassionate, experience-based opinion that there may be difficulties ahead, but the blunt and clinical analysis that there was no further chance to be had. In the absence of cogent evidence from the other people involved in the preparation of the relevant reviews I am unable to set aside that they were not impartial or unbiased.

[224] It is apparent as well that each of the Hunt and Bosnich Review Reports, the Clarke Review and the Academic Appeals Review failed to adequately consider Mr Crouch’s personal circumstances and in the hope it would sway the outcome of his matter. Such consideration as was given was likely through the prism articulated by Mr Clarke that there was no further chance to be had for someone in Mr Crouch’s situation with extenuating circumstances not likely to influence the decision. This was a failure by Airservices to be unbiased in its considerations of Mr Crouch’s views and a failure to give genuine consideration to the matters he put forward.

[225] Each of the Hunt and Bosnich Review Reports, the Clarke Review and the Academic Appeals Review also failed to acknowledge or weigh other relevant matters; namely, that Mr Crouch’s failure of the supplementary ASA 119 exam was marginal, achieving 68.7% against the pass mark of 70%; and that on Mr Crouch’s evidence other trainees had been afforded a further supplementary exam but he had not. 212 In this regard the conclusions drawn in the respective reports were procedurally unfair, with Airservices failing to consider relevant matters.

[226] For the purposes of clarity, it may be presumed from my decision that I regard this not only as a contravention of Airservices’ obligations to Mr Crouch arising under Clauses 50.1 and 50.2, but also a contravention of Clause 50.3. The latter mentioned clause operates where “Airservices has serious concerns with an employee’s performance and/or conduct”. By determining that Mr Crouch’s training should be terminated Airservices has taken “action” against him within the meaning of Clause 50.3. I accept it holds “serious concerns” about Mr Crouch’s performance but consider both the formation of that view and the determination of action to be in contravention of Clause 50.3 since its view and determined action were formed in a procedurally unfair manner.

[227] These matters cause me to find that Airservices has not complied with Clause 50 in its dealings with Mr Crouch

[228] For these reasons, the First Question for Determination is answered by me as follows;

Q1: Has Airservices Australia, complied with Clause 50 of the 2020 Agreement?;

A: No.

SECOND QUESTION – SHOULD MR CROUCH BE RECOURSED AND/OR PROVIDED WITH OTHER REMEDIAL TRAINING ?

[229] The second question to be determined turns to the matter of what should occur if it is found the provisions of Clause 50 have not been applied to Mr Crouch. Clause 50.3, entitled “Formal Process” sets in place a decision-making process where Airservices “has serious concerns with an employee’s performance and/or conduct”. The clause provides a non-exhaustive list of actions that may be taken to manage an employee’s poor performance or conduct, ranging from the provision of training to termination of employment;

“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.”

[230] For the purposes of clarity, and since I do not wish to be misunderstood, it must be noted that on any analysis Mr Crouch’s situation is tenuous. He has failed an important exam twice and his training history has some blemishes. Airservices is in an industry in which the margin for error is miniscule and risk must be analysed and very tightly controlled. Airservices was entitled to be concerned in mid-2020 about whether Mr Crouch would realistically make the grade and successfully complete his further training. However, such views as it held at that time required testing in accordance with the principles of procedural fairness to which reference is made in both Clauses 50.2 and 50.3.

[231] Airservices argue that if the Commission finds that Clause 50 applies to Mr Crouch’s circumstances the “any relief should be confined to a determination that Airservices did not comply with particular aspect(s) of clause 50 of the Agreement”. 213 Further;

“A determination of this kind would resolve the dispute between the parties in relation to the interpretation and application of clause 50 to the Applicant's circumstances. Airservices could then take any necessary steps to comply with clause 50 (as interpreted by the Commission) in respect of the management of the Applicant's academic performance. This may, for example, involve undertaking the training review process again in a way that addresses any deficiencies in procedural fairness identified by the Commission. It is not necessary for the Commission to make any particular orders to give effect to this outcome.

The relief sought by the Applicant includes an order or direction that Airservices re-course the Applicant or provide the Applicant with remedial training. Airservices submits that it would not be appropriate for the Commission to grant relief of this kind, taking into account that clause 50 of the Agreement (to the extent it applies here) sets out a non-exhaustive list of the potential outcomes of any formal performance process and vests Airservices with discretion in relation to the outcome that may be implemented.” 214

[232] In response, Mr Crouch argues the Commission should go further than proposed by Airservices and that to do so would be consistent with Airservices’ Training Manual. With reference to the possibility that Airservices be left to its own devices and make its own tailored decision consequential to the Commission finding Clause 50 applies to Mr Crouch and its terms were not applied, Mr Crouch submits that Airservices’ past conduct during the training reviews has been “egregious and a sham” and that an ongoing training review would be a continuation of the sham;

“The Applicant submits that a finding and determination to that effect would be made by the Commission and that re-coursing would be the appropriate determination to resolve this dispute.

Re-coursing is one of four avenues that were, at all times, available to the Respondent and, in the Applicant's submission, is the appropriate (and proportionate) avenue that ought to be afforded to the Applicant, when having regard to the overall performance, assessment and training support concerns raised by the Applicant in this dispute.

The Respondent has a documented procedure for re-coursing students who are placed on training review. This procedure is set out in section 11.2 of the RTO 5168 - Air Navigation Services (ANS) Initial Training Manual (Air Traffic Services). The evidence led by the Respondent (in Annexure SC-15) establishes that the Respondent regularly re-courses students who are placed on training review. Indeed, the table in Annexure SC-15 (CB: 1051) demonstrates that more than 50% of students who have a training review completed are re-coursed. The Applicant submits he should be afforded this opportunity, which would also provide the Respondent with an opportunity to comply with its obligations under the Enterprise Agreement.

If the Commission finds that the Respondent breached particular aspects of clause 50 prior to placing the Applicant on training review (as is submitted by the Applicant), and while on training review (as also submitted by the Applicant), the undertaking of a further training review process (as proposed by way of example by the Respondent) will not appropriately remedy that breach or resolve this dispute. The Respondent's conduct prior to and during its training review process, on the evidence before the Commission, was egregious and a sham. The Applicant respectfully submits that:

•  any ongoing training review (as proposed by the Respondent), would be a continuation of that sham and severely affected (or contaminated) process; and

•  the appropriate determination to resolve the dispute would be for the parties to "reset" and for the Applicant to be re-coursed.” 215

[233] When Mr Crouch failed the supplementary ASA 119 exam Airservices could have either taken the view that the matters were not so serious as to require formal processes or that they were. If it chose to require formal processes it had a discretion to apply the non-exhaustive alternatives set out in Clause 50.3, if and to the extent they were warranted on the facts before it and with observance of the principles of procedural fairness. Clause 4 of Schedule 1 made plain that a discretion of termination of employment was available if it were established that the exam failed by Mr Crouch was for the purposes of the 2020 Agreement “an essential component” of his training. Likely it is – and certainly Mr Clarke and Mr Bosnich took it to be – however there is insufficient evidence before me on the subject. Noting that the Mr Crouch’s training required study for and completion of five phases of training, each of different durations and comprising a total of 23 modules, and that he has only got so far as the mid-point of the second phase the counter argument can plainly be made as well.

[234] Ordinarily the appropriate path to take after finding Clause 50 applies to Mr Crouch but that its terms have not been applied would be to proceed in the manner proposed by Airservices. That is, to require Airservices to proceed to properly and with observance of the principles of procedural fairness notify Mr Crouch that he is suspected of under-performance; to seek his response and, after receiving the response and not before, determine a proportional outcome.

[235] That path though would be grossly unfair to Mr Crouch. He has now spent two years away from training. Some but not all of that time has been associated with the conduct of these proceedings; most of the time has been associated with the training and academic reviews detailed above. The evidence leans to the findings made by me above, that delays associated with the Hunt Review Report were not actively managed and could have been for a collateral purpose. Further, the reviews were not conducted impartially or without bias. I could not be satisfied that Airservices would proceed to determine an appropriate outcome for Mr Crouch which took account of its obligation for procedural fairness and was concluded in a timely manner.

[236] Accordingly, the appropriate path is to proceed to determine the dispute by addressing not only the question of whether Clause 50 applies to Mr Crouch’s circumstances, but also the matter of an appropriate outcome.

[237] In forming my views about an appropriate outcome, I take into account Mr Crouch’s history of employment and engagement with Airservices about his concerns, including the following matters;

•  At the time Mr Crouch failed the supplementary ASA 119 exam he had been employed for about 9 months and was thereby part way through training for the Diploma of Aviation (Air Traffic Control), estimated to usually take about 13 – 15 months, with a further four months in field location training required before training would be regarded as completed.

•  Mr Crouch had been affected by the COVID-19 pandemic, including by being required to self-isolate at home for about two weeks without any other person in his household. He lost two weeks training as a result. When he returned to work he “felt a bit shaky on the console” and informed his instructor, who was encouraging. 216 Catching up itself caused him to miss other activities.

•  The first time Mr Crouch sat the ASA 119 exam he failed it badly, achieving a mark of 45.9% against a pass mark of 70%.

•  Mr Crouch’s progress prior to the ASA 119 exams had some blemishes. In Phase 1 he had initially failed two out of twelve theoretical assessments, however he passed them on subsequent attempts. His scores for the Phase 1 theoretical units he passed on the first attempt ranged between 83% and 100% and the scores for the second attempt units were 70.2% and 90%. His performance with the practically based “progress evaluations” were mixed. His performance on Progress Evaluation 6 was equal to one trainee and better than seven others, out of a cohort of 12. 217

•  Mr Crouch was not provided with constructive assistance by Mr Watson and Mr Boyd after failing the first ASA 119 exam and likely suffered as a result. Mr Watson was hostile, and his “assistance” was substandard. Mr Watson’s statements are summarised above, and amongst other things include telling Mr Crouch to go over his exam answers alone and did not providing Mr Crouch with specific feedback or a debrief.

•  The second time Mr Crouch sat the ASA 119 exam he failed it by a small margin, achieving 68.7%.

•  Mr Crouch considered the debrief given by Ms Thornley to be constructive assistance and this was the first constructive assistance he was given on the subject of the ASA 119 exam after he failed it for the first time.

•  After he was put on training review and asked why he thought he had failed the supplementary exam Mr Crouch told Airservices of his impressions of Ms Thornley’s debrief and that he wished he had been given it before the supplementary exam. He also told Airservices of Mr Watson’s hostility and the problems he had with the training support given to him after he failed the initial exam.

•  Recoursing of trainees is not uncommon; 57 trainees were recoursed from a total of 351 trainees between 2015 and 2022. Slightly under a third of those recoursed successfully completed their training. 218 At least one trainee in Mr Crouch’s cohort has been recoursed at that person’s request, after having failed a Phase 3 supplementary exam, appealing and “being recoursed a second time”.219

•  By August 2020 the proximity of Mr Crouch’s forthcoming wedding (in October 2020) and concerns about whether he could travel to Queensland to attend it or whether it would be cancelled, without a refund, were causing him anxiety. It is unclear when Mr Crouch first raised his concerns with Airservices.

•  While referring to Mr Crouch’s isolation during his COVID leave and the anxiety caused by whether he could attend his wedding, I accept these are exigencies that applied to many people in the community at that time. They are matters to be weighed but are not decisive of what should be done.

[238] The failure by Airservices to provide constructive assistance and that Mr Crouch had missed two week’s training when he returned from COVID leave are each factors that lean firmly against the termination of his training as does the fact that recoursing is both not unusual as well as likely to produce good results in about 1 in 3 cases. The fact that he failed the supplementary exam by a very small margin leans in his favour, and heavily so when the failure to provide constructive assistance is taken into account.

[239] In favour of the termination of his training is Mr Crouch’s training history which is patchy, including that he failed the same exam twice. Against that proposition is the fact that Mr Crouch argues his training results are not dissimilar to other trainees.

[240] After considering all relevant matters it is appropriate that a further training opportunity be given to Mr Crouch by Airservices. Termination of his training would in the context of all the evidence be an outcome that is disproportionate to all the circumstances. The evidence does not disclose that there is a strong probability that Mr Crouch will fail if given a further opportunity. Termination of training would not take account of the fact that Mr Crouch has also suffered a significant penalty already from the two years it has taken to seek redress of his concerns from the time he failed the supplementary ASA 119 exam. Given the amount of time since his initial training there is likely no viable alternative other than to completely recourse him from the start. The non-exhaustive list of actions within Clause 50.3 (a), (b) and (c) provide guidance about how this may be done. For practical purposes I do not propose to be prescriptive about how this is to occur other than to say that he should be recoursed as soon as it is possible to do so.

[241] I am concerned as well that Mr Crouch may have to wait several weeks or months before he can be recoursed to the next cohort of trainees to start training. Taking these matters into account, the appropriate actions to be taken are for Mr Crouch to be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.

[242] For these reasons, the second question for determination is answered by follows;

Q2: If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices?

A: Yes; Mr Crouch should be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.

CONCLUSION

[243] For the reason set out above, the Questions for Determination are answered in the following manner;

Q1: Has Airservices Australia, complied with Clause 50 of the 2020 Agreement?;

A: No.

Q2: If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices?

A: Yes; Mr Crouch should be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.

[244] The dispute is determined accordingly.

ATTACHMENT

From the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023.

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.

SCHEDULE 1 – AB INITIOS

1. Definition

An Ab Initio is an employee who:

(a) does not hold, and has never held, an air traffic control licence; and

(b) is undergoing training provided by Airservices with the aim of becoming a licensed air traffic controller.

2. Application of this schedule

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.

3. Personal/carer’s leave

(a) Clause 37 of this Agreement does not apply to Ab Initios.

(b) Ab Initios will accrue personal/carer’s leave in accordance with Clause 38 of this Agreement.

4. Termination of employment

Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to satisfactorily complete an essential component of their training.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR744840>

Appearances:

Mr S Hardy for the Applicant
Mr J Lovell for the Respondent

Hearing details:

5 April, 6 April, and 8 June 2022
Melbourne (by video)

 1   AE507712.

 2   AE423762.

 3   Exhibit R3, Witness Statement of Steven Clarke [77] – [79], Hearing Book 593 – 594.

 4   Exhibit A4, Witness Statement of Luke Crouch [2], Hearing Book 46.

 5   Ibid [7], Hearing Book 47.

 6   Ibid [9] – [10], Hearing Book 47.

 7   Ibid.

 8   Ibid [21], Hearing Book 52.

 9   Exhibit R3, Witness Statement of Stephen Clarke, Attachment SC – 03, Hearing Book 1003.

 10   Exhibit A4, Witness Statement of Luke Crouch [109], [112], Hearing Book 65.

 11   Exhibit A6, Applicant’s Outline of Closing Submissions [1].

 12   Exhibit R6, Respondent’s Outline of Submissions [1] – [2], Hearing Book 552.

 13   Ibid [22], Hearing Book 561.

 14   Ibid [28] – [30], Hearing Book 560 – 561.

 15   Ibid [31] – [36], Hearing Book 560 – 561.

 16   Exhibit A6, Applicant’s Outline of Closing Submissions [1].

 17   AMWU v Programmed Industrial Maintenance Pty Ltd [2021] FWCFB 3456, with reference to WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173, [122]-[130].

 18   Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, (2005) 138 IR 286, [96], per Kirby J; citing with approval Kucks v CSR (1996) 66 IR 182, 184, per Madgwick J; cited with approval in Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67, [16] and WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197].

 19   AMWU v Berri [2017] FWCFB 3005; (2017) 268 IR 285, [62] (AMWU v Berri).

 20   Ibid [114].

 21   Australian Nursing and Midwifery Federation v Alfred Health, [2017] FWCFB 4420, [40] (ANMF v Alfred Health), with reference to AMWU v Berri [2017] FWCFB 3005; (2017) 268 IR 285, [114] (7) – (9).

 22   United Firefighters Union of Australia v Emergency Services Telecommunications Authority [2017] FWCFB 4537, [40] (UFU v ESTA).

 23   149 CLR 337, 352 per Mason J.

 24   AMWU v Berri [114] (15); ANMF v Alfred Health [50]; UFU v ESTA [41].

 25   Exhibit R6, Respondent’s Outline of Submissions [22], Hearing Book 558 – 559.

 26   [2019] FWC 5369

 27   Ibid, [40], [53].

 28   Exhibit R6, Respondent’s Outline of Submissions [22], Hearing Book 558 – 559.

 29   Ibid [9], Hearing Book 553.

 30   Ibid [10], Hearing Book 553.

 31   Exhibit R1, Witness Statement of Marcus Knauer, Hearing Book 579.

 32   Ibid [11], Hearing Book 579.

 33   Ibid [13], Hearing Book 579.

 34   Ibid [12], Hearing Book 579.

 35   Exhibit R1, Attachment MK – 01, 5, Hearing Book 603.

 36   Exhibit R1, Witness Statement of Marcus Knauer [13], Hearing Book 579; Exhibit R1, Attachment MK-1, Hearing Book 611.

 37   Exhibit R1, Witness Statement of Marcus Knauer [10], Hearing Book 579.

 38   Ibid [13], Hearing Book 579.

 39   Exhibit R1, Attachment MK – 01, Hearing Book 611.

 40   Exhibit R1,Attachment MK – 02, Hearing Book 615.

 41   Exhibit R1, Witness Statement of Marcus Knauer [16], Hearing Book 580; Exhibit R1, Attachment MK – 03, Hearing Book 619.

 42   Exhibit R1, Witness Statement of Marcus Knauer [18], Hearing Book 580; Exhibit R1, Attachment MK – 04, Hearing Book 620.

 43   Exhibit R1, Attachment MK – 05, Hearing Book 642.

 44   Ibid, Hearing Book 646.

 45   Exhibit R1, Attachment MK – 06, Hearing Book 651.

 46   AE423762.

 47   Exhibit R2, Further Witness Statement of Marcus Knauer, Attachment MK – 07.

 48   AMWU v Berri [114] (15); with reference to Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209; 148 IR 409 [44].

 49   See Exhibit R1, Attachments MK – 01 and MK – 02, Hearing Book 611 and 615.

 50   Exhibit A4, Attachment LC – 1, Hearing Book 73.

 51   Exhibit R6, Respondent’s Outline of Submissions, Hearing Book 560 – 561.

 52   Kucks v CSR Limited (1996) 66 IR 182, 184.

 53   Exhibit R5, Witness Statement of Frank Bosnich [6], see also [8], in which he states he has “completed numerous training reviews for underperforming trainees”, Hearing Book 572 – 573.

 54   Exhibit R3, Witness Statement of Steven Clarke [42] and Attachment SC – 06, Hearing Book 588, 825..

 55   Ibid [40].

 56   Transcript, PN 2628 - 2629

 57   [2019] FWC 5369 [40].

 58   Exhibit A1, Applicant’s Outline of Submissions, Hearing Book 58.

 59   Exhibit A6, Applicant’s Outline of Closing Submissions.

 60   Exhibit A4, Witness Statement of Luke Crouch [22], [48], Hearing Book 50, 54.

 61   Exhibit R5, Witness Statement of Frank Bosnich, Attachment FB-01, Hearing Book 598.

 62  Ibid.

 63  Ibid [22], Hearing Book 575.

 64   Exhibit R3, Witness Statement of Steven Clarke, Hearing Book 1041.

 65   Ibid, Hearing Book 1045.

 66   Exhibit A4, Witness Statement of Luke Crouch [22], Hearing Book 49.

 67   Ibid [42], Hearing Book 53.

 68   Exhibit R3, Witness Statement of Steven Clarke, Hearing Book 1040.

 69  Exhibit R5, Witness Statement of Frank Bosnich [11], Hearing Book 573.

 70   Ibid [12], Hearing Book 573.

 71   Exhibit A4, [58]; Hearing Book, p.55.

 72   Exhibit R3, Witness Statement of Steven Clarke Section 4.2.1, Hearing Book 1039.

 73   Exhibit A4, Witness Statement of Luke Crouch [12], Hearing Book 47.

 74   Ibid [22], Hearing Book 50.

 75   Ibid [48], Hearing Book 54.

 76   Ibid [15], Hearing Book 48.

 77   Ibid [16] – [17], Hearing Book 49.

 78   Ibid [18], Hearing Book 49.

 79   Ibid.

 80   Ibid [17], Hearing Book 49.

 81   Exhibit R3, Witness Statement of Steven Clarke [56], Hearing Book 590 – 591.

 82   Ibid [62], Hearing Book 591.

 83  Exhibit A5, Further Witness Statement of Luke Crouch [30], Hearing Book 528.

 84   Exhibit A4, Witness Statement of Luke Crouch [17], Hearing Book 49.

 85   Ibid [20], Hearing Book 49.

 86   Ibid [20] – [21], Hearing Book 49.

 87   Exhibit R3, Witness Statement of Steven Clarke [57], Hearing Book 591.

 88   Exhibit A4, Witness Statement of Luke Crouch [23], Hearing Book 50.

 89   Ibid [24] – [26], Hearing Book 50.

 90   Ibid [25], Hearing Book 50.

 91   Ibid [28], Hearing Book 50.

 92   Ibid [29], Hearing Book 51.

 93   Ibid [30], Hearing Book 51.

 94   Ibid.

 95   Ibid [33], Hearing Book 51.

 96   Ibid [31], Hearing Book 51.

 97   Ibid.

 98   Exhibit R3, Witness Statement of Steven Clarke [59], Hearing Book 591.

 99   Exhibit A4, Witness Statement of Luke Crouch [37], Hearing Book 53.

 100   Ibid [38] – [39], Hearing Book 53.

 101   Exhibit A5, Further Witness Statement of Luke Crouch [28], Hearing Book 528.

 102   Exhibit A4, Witness Statement of Luke Crouch [45], Hearing Book 54.

 103   Exhibit R10, Training Review Template.

 104   Exhibit R4, Witness Statement of Antoinette Crisara [9], Hearing Book 570.

 105   Ibid, [13], Hearing Book 570.

 106   Exhibit A1, Applicant’s Outline of Submissions [8], Hearing Book 35.

 107   Exhibit A4, Witness Statement of Luke Crouch [59], Hearing Book 56.

 108   Ibid [64], Hearing Book 58.

 109   Exhibit R4, Witness Statement of Antoinette Crisara [5] – [6], Hearing Book 569.

 110   Transcript, PN 982 – 983.

 111   See Transcript, PN 1126 – 1138.

 112   Exhibit R4, Witness Statement of Antoinette Crisara [12], Hearing Book 570.

 113   Ibid [7], Hearing Book 569.

 114   Transcript, PN 1145 – 1150; 1161 – 1171.

 115   Transcript, PN 1186 – 1188.

 116   Exhibit A4, Witness Statement of Luke Crouch Attachment LC – 13, Hearing Book 365.

 117   Exhibit R4, Witness Statement of Antoinette Crisara [11], Hearing Book 570.

 118   Transcript, PN 973 – 977.

 119   Transcript, PN 2329 – 2330; 2811 – 2812.

 120   Exhibit A4, Witness Statement of Luke Crouch [62], Hearing Book 57.

 121   Ibid, [63].

 122   Exhibit A5, [9] – [10].

 123   Exhibit R4, Witness Statement of Antoinette Crisara [23], Hearing Book 571.

 124   Ibid [23] – [24], Hearing Book 571.

 125   Exhibit A5, Further Witness Statement of Luke Crouch [9], Hearing Book 524.

 126   Ibid [10], Hearing Book524.

 127   Exhibit A4, Witness Statement of Luke Crouch [62], Hearing Book 58.

 128   Exhibit A5, Further Witness Statement of Luke Crouch [10], Hearing Book 524.

 129   Transcript, PN1027; PN1331 – 1332.

 130   Transcript, PN1027 – PN1035.

 131   Transcript, PN1334-1337.

 132  Exhibit R4, Witness Statement of Antoinette Crisara [7], Hearing Book 569.

 133  Exhibit A4, Witness Statement of Luke Crouch [61], [66], Hearing Book pp.58 – 58; Exhibit A4, Attachments LC – 25 and LC – 26, Hearing Book 441 – 445.

 134   Ibid, Attachment LC – 25, Hearing Book 441.

 135   Exhibit A4, Witness Statement of Luke Crouch [85], Hearing Book, 64; Exhibit A4, Attachment LC – 13, Hearing Book 354.

 136   Exhibit A4, LC – 13, Hearing Book 376.

 137   Ibid [86], Hearing Book 61.

 138   Ibid, Attachment LC – 19, Hearing Book 402.

 139   Exhibit R3, Witness Statement of Steven Clarke [67], Hearing Book 592.

 140   Ibid [68], Hearing Book 592.

 141   Transcript, PN 531, 539, 547.

 142   Exhibit R6, Respondent’s Outline of Submissions [47], [48], Hearing Book 565.

 143   Transcript, PN 207.

 144   Transcript, PN 858, 871, 872.

 145   Transcript, PN 1740 – 1741.

 146   Transcript, PN 1755 – 1756.

 147   Exhibit A4, Attachment LC – 13, Hearing Book 355.

 148   Transcript, PN 1544 – 1545.

 149   Transcript, PN 523.

 150   Transcript, PN 1467 – 1473.

 151   Transcript, PN 1485.

 152  Exhibit R5, Witness Statement of Frank Bosnich [17], Hearing Book 574.

 153   Ibid [12] – [13], Hearing Book 573.

 154   Exhibit A5, Further Witness Statement of Luke Crouch [12], Hearing Book 524.

 155   Exhibit R5, Witness Statement of Frank Bosnich [16], Hearing Book 574.

 156   Ibid [18] – [19], Hearing Book 574.

 157   Ibid [20], Hearing Book 575.

 158   Ibid [22], Hearing Book 575.

 159   Ibid, Hearing Book 575 – 576.

 160   Transcript, PN 1856 – 1865.

 161   Exhibit A4, Witness Statement of Luke Crouch [92], Hearing Book 62.

 162   Exhibit A4, Witness Statement of Luke Crouch [93], Hearing Book 62; Exhibit A4, Attachment LC – 28 and LC – 29, Hearing Book 474 – 476.

 163   Exhibit A4, Witness Statement of Luke Crouch [95], Hearing Book 62.

 164   Exhibit A4, Witness Statement of Luke Crouch [96], Hearing Book 62.

 165   Exhibit R5, Witness Statement of Frank Bosnich [30], Hearing Book 576.

 166   Ibid [34], Hearing Book 577.

 167   Ibid [31], Hearing Book 576.

 168   Exhibit A4, Witness Statement of Luke Crouch [100], Hearing Book 63.

 169   Exhibit R5, Witness Statement of Frank Bosnich [37], Hearing Book 577.

 170   Exhibit A5, Further Witness Statement of Luke Crouch [25], Hearing Book 527.

 171   Exhibit R4, Witness Statement of Antoinette Crisara [17] – [19], Hearing Book 570 – 571.

 172   Transcript, PN 1286 – 1287.

 173   Exhibit R3, Witness Statement of Steven Clarke, Hearing Book 593.

 174   Exhibit R3, Witness Statement of Steven Clarke [69], Hearing Book 593. Exhibit R3, Attachment SC – 14, Hearing Book 1047.

 175   Exhibit R3, Attachment SC – 14, Hearing Book 1047 – 1050.

 176   Exhibit A4, Attachment LC – 28, Hearing Book 475.

 177   Transcript, PN 678 – 687.

 178  Exhibit A4, Attachment LC – 19, Hearing Book 387.

 179   Exhibit A4, Witness Statement of Luke Crouch [124], Hearing Book 67.

 180   Transcript, PN 549 – 551, 815

 181   Exhibit A4, Witness Statement of Luke Crouch [125], Hearing Book 67.

 182   Exhibit A4, Attachment LC – 2a, Hearing Book 157.

 183   Exhibit A4, Attachment LC – 3, Hearing Book 302.

 184   Exhibit A4, Attachment LC – 23, Hearing Book 435 – 436.

 185  Exhibit R3, Witness Statement of Steven Clarke [55], Hearing Book 590.

 186   Transcript, PN 584.

 187   Transcript, PN 583 – 589.

 188   Transcript, PN 523.

 189   Exhibit A4, Witness Statement of Luke Crouch [129], Hearing Book 68.

 190   Exhibit R3, Attachment SC – 15, Hearing Book 1051; Transcript PN 694 – 703.

 191   Transcript, PN 702 – 709.

 192   [2017] FWCFB 4187, [31]; with reference to Tamayo v Alsco Linen Service Pty Ltd, Print P1859, 25 February 1997.

 193   [2018] FWCFB 3989.

 194   Ibid.

 195   Exhibit A6, Applicant’s Outline of Closing Submissions.

 196   [2019] FWC 5369, [52] – [53].

 197   Exhibit R3, Attachments SC – 9, SC – 10 and SC – 11, Hearing Book 916, 919 and 926.

 198   Exhibit R3, Attachment SC – 10, Hearing Book 928.

 199   Exhibit R3, Witness Statement of Steven Clarke [58], Hearing Book 591.

 200   Ibid [60], Hearing Book 591.

 201   Transcript, PN 635 – 643.

 202   Exhibit A4, Witness Statement of Luke Crouch [26], Hearing Book 50.

 203   Exhibit R3, Attachment SC – 10, Hearing Book 929.

 204  Exhibit R3, Attachments SC – 11, Hearing Book 928.

 205   Exhibit A4, Witness Statement of Luke Crouch, Hearing Book 50.

 206   Exhibit A4, Witness Statement of Luke Crouch, Hearing Book 55.

 207   Transcript, PN 682 – 687.

 208   Exhibit A4, Witness Statement of Luke Crouch [58], Hearing Book 55 – 56.

 209   Exhibit R4, Witness Statement of Antoinette Crisara [13], Hearing Book 573.

 210   Ibid [9], Hearing Book 573.

 211   Transcript, PN 682 – 687.

 212   Exhibit A4, [60]; Hearing Book, p.56.

 213   Email from Ashurst, solicitors for Airservices, 16 June 2022.

 214   Ibid.

 215   Email from K & L Gates, solicitors for Mr Crouch, 1 July 2022.

 216  Exhibit A4, Witness Statement of Luke Crouch [20], Hearing Book 49.

 217   Ibid [9] – [10], [40] – [43], Hearing Book 47, 53.

 218   Exhibit R3, Annexure SC – 15, Hearing Book 1051.

 219   Exhibit A4, Witness Statement of Luke Crouch [65], Hearing Book 58.