1
Fair Work Act 2009
s.394—Unfair dismissal
Meaghan Kinnaird
v
National Jet Systems Pty Ltd T/A Cobham Aviation Services Australia -
Airline Services
(U2017/3108)
COMMISSIONER WILLIAMS PERTH, 23 NOVEMBER 2017
Termination of employment - jurisdiction - demotion.
[1] This decision concerns an unfair dismissal remedy application made by Ms Meaghan
Kinnaird (Ms Kinnaird or the Applicant) under section 394 of the Fair Work Act 2009 (the
Act). The respondent is National Jet Systems Pty Ltd T/A Cobham Aviation Services
Australia - Airline Services (NJS or the Respondent).
[2] The Respondent has raised a jurisdictional objection to the application on the grounds
that the Applicant’s employment was not terminated at the initiative of the employer.
Background
[3] Ms Kinnaird was employed in 1994 by the Respondent as a First Officer.
[4] In 1999 she became a Captain.
[5] In June 2008 she became a Line Check Captain and in August 2008 she became a
Simulator Check Captain based in Perth.
[6] Her remuneration as a Simulator Check Captain was $209,700. Currently the National
Jet Systems Pty Ltd Pilot Enterprise Agreement 2012 [AE401161] (the 2012 Agreement)
applies to Ms Kinnaird.
[7] In 2016 the Respondent reviewed the Training and Checking Department of its
operations across Australia. One outcome was a decision that all Simulator Checking and
Training roles, which included the Simulator Check Captain roles, would be relocated to
Brisbane. The number of Simulator Check Captain roles was also reduced from 9 to 5.
[8] Following a national consultation process the Respondent then advised Ms Kinnaird in
November 2016 that she would no longer be a Simulator Check Captain. Ms Kinnaird
protested this change but remained in employment and since 3 December 2016 has been
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DECISION
E AUSTRALIA FairWork Commission
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working in the role of an Aircraft Check Captain which has lesser remuneration than a
Simulator Check Captain.
[9] The Applicant argues that what occurred was a demotion and that she has been
dismissed and the dismissal was unfair. The Respondent denies there has been a demotion and
denies that the Applicant has been dismissed.
The evidence and factual findings
[10] Relevantly the evidence is that Ms Kinnaird was employed in August 1994 by the
Respondent as a First Officer.
[11] As her employment progressed she worked in various roles each involving an
associated salary increase. She worked in the roles of BAe146 Captain from 1999, Senior
Base Pilot - Darwin from November 2000 and BAe146 Training Captain from August 2000.
[12] She was then in the role of a Boeing 717 Training Captain, a B717 Check Captain
from 13 June 2008 and then a B717 Simulator Check Captain from 5 September 2008.
[13] Each new role involved higher status, greater responsibility and more remuneration.
[14] These steps are generally recognised as a career path.
[15] Notwithstanding this progression the ability for Ms Kinnaird to carry out the duties of
the prior roles remained.
[16] The role of Simulator Check Captain has the highest level of status and responsibility
in the Respondent’s Pilot structure. The critical qualification to be eligible to be appointed by
the Respondent as a Simulator Check Captain is to be approved by CASA to act as their
delegate. When conducting a simulator check on a Pilot a Simulator Check Captain holding
such a delegation is essentially acting as CASA’s representative.
[17] Ms Kinnaird was appointed to the position of Simulator Check Captain in September
2008 by Mr David MacKerras (Mr MacKerras) who was at that time the Head of Training and
Checking for the Respondent.
[18] Mr MacKerras gave evidence in support Ms Kinnaird’s application. His employment
with the Respondent ended in 2010.
[19] His and other evidence shows that a Simulator Check Captain was a full-time role.
[20] Check Captains, which include Simulator Check Captains, were available for no more
than half the equivalent flying workload of an ordinary Line Pilot.
[21] Mr MacKerras in his evidence, based on what Ms Kinnaird had advised him of the
changes to the Respondent’s training and checking arrangements, expressed highly critical
personal opinions of the Respondent’s actions.1 He also expressed similarly highly critical
personal opinions of the Respondent’s submissions in his evidence.2
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[22] Mr MacKerras’s evidence was that the appointment of Check Captains including Ms
Kinnaird to the Simulator Check Captain role was “permanent”.3 Much of his evidence in
support of this point referred to “long-standing arrangements” and “custom and practice”.
[23] The evidence is that in the past there has been a Simulator Check Captain who worked
in the role for 25 years.4
[24] Mr MacKerras’s evidence was that in his view an allowance being paid to a Check
Captain continued indefinitely because appointment to the position of Check Captain
involved unlimited tenure and the employer could not change this. However his evidence was
that Check Captains were free to relinquish their appointments and opt out of being a Check
Captain if they wished.5
[25] Ms Kinnaird’s evidence was that at the time she was appointed to the Simulator Check
Captain role Mr MacKerras’s spoke to her and expressly explained to her that this was
“permanent”.
[26] Ms Kinnaird’s evidence was she understood this to mean that her appointment did not
have an end date; it did not have a fixed time frame in any way.6
[27] Her evidence was that Mr MacKerras explained to her, her obligations in terms of
maintaining the position permanently and the most important thing that came out of that was
that she was expected to pass all her checks and if she failed a check the Respondent will have
to review the permanency of her position.7
[28] In July 2016 the Respondent’s CEO emailed all staff regarding a 10 year extension of
the Boeing 717 contract.
[29] Shortly thereafter further correspondence was sent to employees regarding a review of
the Check and Training Department structure.
[30] A process of consultation followed with Pilots across the country.
[31] Ms Kinnaird was dissatisfied at various points with the consultation process as it
applied to her.
[32] By email on 4 November 2016 she was advised by the Respondent that as a result of
the restructure decided upon she and some other Simulator Check Captains would no longer
have this role. The email explained that consequently it was likely that the allowance of the
25% additional salary she had been receiving in the role of a Simulator Check Captain may be
removed. She along with others was invited to provide an expression of interest for other roles
with the Respondent.
[33] On 20 November 2016 Ms Kinnaird sent an email letter to the Respondent contesting
what the Respondent had decided in terms of her situation and arguing she was being
demoted from her permanent position as a B717 Simulator Check Pilot. She referred to the
Respondent’s previous correspondence and advised that she was expressing an interest in the
position of Aircraft Check Captain-Perth. Her email stressed however that this expression of
interest was being made very much under duress and she does not accept the Respondent’s
demotion of her. She stated she wished to retain her current position and remuneration.8
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[34] Ms Kinnaird’s evidence was that she has not been made redundant by the Respondent.
The Respondent has however in her words pushed her out of her permanent position into a
lower paid position.9
[35] Evidence for the Respondent was given by Mr Simon Ewart (Mr Ewart) the Head of
Flight Operations and Chief Pilot at NJS.
[36] Mr Ewart has been employed with the Respondent in various roles for 25 years.
Between 2006 and 2009 he was a Check Captain reporting to Mr MacKerras when Mr
MacKerras was the Head of Training and Checking for NJS.
[37] In 2005 when the B717s were introduced there were two types of Check Pilots; being
a Line Check Pilot and a Dual Qualified Line and Simulator Check Pilot. Following the B717
introduction there was only one type of Check Pilot that being the Dual Qualified Line and
Simulator Check Pilot. As a consequence of that reorganisation some Line Check Pilots were
returned to Line Pilot roles.
[38] The bases of operation following the introduction of the B717 were Perth, Darwin and
Cairns. At that time the Respondent required the Dual Qualified Check Pilots to be located in
each of those locations, whilst the simulator duties were carried out in Brisbane because that
was the location of the B717 simulator.
[39] Since 2013 there has been an expansion of the fleet and operations have been re-
established at a Brisbane base along with a number of other East Coast locations being
Sydney, Hobart and Canberra. Because the majority of Simulator Check Pilots were based
other than in Brisbane this involved considerable costs and inefficiency.
[40] The Respondent chose to make changes following the signing of the new contract in
2016, one of which involved the relocation of all Simulator Check Pilots to Brisbane.
[41] Mr Ewart agrees that all Check Pilot positions are full-time positions, which is a
requirement of the CASA regulations. Those regulations however do not use the word
“permanent” but do use the words “full-time”. In his view these words are not interchangeable
and this does not mean the positions are permanent in perpetuity or that this has any effect on
their employment contract.
[42] Whilst Mr Ewart agrees that Mr MacKerras was for a period employed as the Head of
Training and Checking his belief was that even if at some point he acted in the role of Head of
Flying he is not aware that he had any delegation to employ any person because this was
exclusively the role of the General Manager for the Business Unit or the Head of Flying. He
agreed under cross-examination that he had no knowledge of the circumstances surrounding
Ms Kinnaird’s appointment to the Simulator Check Captain role in 2008.
[43] All Check Captains, which included Simulator Check Captains, were counted as part
of their home base and a factorised amount of flying by a Simulator Check Captain was
allowed for in the headcount of Pilots at their home base.
[44] Mr Ewart’s evidence was that employment issues are separate from the Respondent’s
operations manuals. In any event the operations manuals say nothing about employment
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conditions and Mr MacKerras is incorrect when he states that these refer to the appointment
of Check Captain as being “permanent”.
[45] Payment of Check Captains by an additional allowance on top of their salary was not
mere administrative convenience but reflected the applicable industrial instrument at the time.
[46] His evidence was that the 2012 Agreement provides allowances for Check Captains
that are paid and can be removed in an appropriate manner and similarly Pilots can withdraw
from Check Captain duties and revert to being a Line Pilot if they wish.
[47] He disputes the evidence by Mr MacKerras that the allowance paid to Check Captains
can only be taken away through redundancy events. He knows Pilots that have returned to
full-time Line Pilot duties in circumstances where there was no redundancy.
[48] Evidence for the Respondent was also given my Mr Darren Justice (Mr Justice) the
Head of Training and Checking at NJS. Mr Justice began his career as a Pilot in 1996 and has
been employed at NJS for 16 years. He has been in his current role since August 2016 and
prior to that was the Deputy Head of Flight Operations for four years and prior to that held the
positions of Chief Pilot of NJS Special Mission for five years.
[49] He has performed the role of a Simulator Check Captain since 2004 and recently
gained approval as a B717 Simulator Check Captain.
[50] Mr Justice was centrally involved in the consultation with employees affected by the
review and ultimately the changes to the Check and Training structure.
[51] The final decision following the consultation was advised to employees with the
specifics of the new structure on 2 November 2016.
[52] Mr Justice’s evidence was that the restructuring did not result in any redundancies
because it applied to recognised additional duties and not the substantive job role of Captain
Pilots. NJS sought to retain their employees and their skills and aptitudes within the changes
required.
[53] Relevant documentary evidence before the Commission includes a partial copy of an
Australian Workplace Agreement signed by Ms Kinnaird (nee McConachy) on 20 July 2005
and signed by the Executive General Manager Operations of National Jet Systems Pty Ltd,
Captain John Seibert, on 1 August 2005.10
[54] That signatory page includes the following header,
“Classification: You will be classified as a B717 Captain (wef Check to Line)”
[55] Noting that the document provided is a partial copy only it relevantly includes the
following provisions,
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“27 Remuneration
27.1 The Pilot shall, in consideration of the performance of his duties under this
agreement, and subject to clause 27.4 be entitled to a gross annual salary as specified
in clause (1) of Schedule 1.”
And,
“29 Allowances and Benefits
29.10 The Pilot, shall be entitled upon such conditions as the employer may determine
to allowances including the following:
…
(3) if the Pilot is a Simulator Check Captain, appointed by the GMFO, an additional
18% of the annual salary prescribed in clause (1) of Schedule 1.
...”
“Schedule 1
Pilot Salaries and Overtime Rates
(1) Pilot
Pilot salaries shall be as tabled below:
Aircraft type Captain First Officer
$ $
B717 122,590.20 73,553.92
…”
[56] A letter dated 13 June 2008 addressed to Ms Kinnaird on NJS/Cobham letterhead
reads as follows,11
“Dear Meaghan
In accordance with the approval issued by CASA, you are appointed as a Boeing 717
Check Pilot within the CAR (88) 217 Training and Checking Organisation for
National Jet Systems. This appointment is subject to continued approval by CASA and
is effective from the 5 June 2008.
In this role you will be supervised by me, as Manager Flight Training, until such time
as a Head of Pilot Training B717 is appointed.
Your employment conditions of service are as per your 2005 AWA and your additional
salary component to your base salary will be as follows:
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Check Captain Allowance of 10% of salary
Congratulations on your attainment of this professional qualification.
Your CASA Instrument No. MATFO 116/08 is attached and remains valid until 31
March 2009.
Yours sincerely
Captain Dick McKerras
Manager Flight Training”
[57] The Applicant and NJS signed an Australian Workplace Agreement Termination
Agreement respectively on 1 September 2008 and 2 September 2008. This states that the
termination of the Applicant’s Australian Workplace Agreement becomes effective from the
date the Workplace Authority receives the employer’s declaration and the Termination
Agreement.12
[58] A letter dated 5 September 2008 addressed to Captain Kinnaird on NJS/Cobham
letterhead reads as follows,13
“Dear Meaghan
In accordance with the approval issued by CASA, you are hereby designated as a
B717 Simulator Check Pilot within the CAR (88) 217 Training and Checking
Organisation for National Jet Systems. This approval is valid until the end of March
2009, and in this role you will be supervised by me, as Manager Flight Training, until
such time as a Head of Pilot Training B717 is appointed.
Your employment conditions of service are as per your NJS Pilot Collective
Agreement, and your additional salary component to your base salary will be as
follows:
Simulator Check Captain Allowance of 25 % of salary
Congratulations on your attainment of this professional qualification.
CASA Instrument No. MATFO 198/08 is attached, which revokes CASA instrument
No. 116/08 is attached.
Yours sincerely
Captain Dick McKerras
Manager Flight Training” (Underlining added)
[59] CASA Instrument No. MATFO 198/08 referred to in the above is headed “Approval –
Appointment of Check Pilot” and was signed on 26 August 2008. The approval instrument
states that the approval stops having effect at the end of 31 March 2009.14
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[60] A letter dated 4 November 2008 was sent to Ms Kinnaird from the Respondent’s
Human Resource Manager which rather confusingly states,15
“Your AWA ceased operating on 29 October 2008 when the Workplace Authority Issued
an Approval Notice terminating your AWA. From this date you became party to the
National Jet Systems Pty Ltd Pilot Collective Agreement 2007 – 2012 (N JS ECA)
…
You became covered by the Agreement on 5 September 2008. ”
[61] Whilst this correspondence raises some doubt as to actual date when the National Jet
Systems Pty Ltd Pilot Collective Agreement 2007 – 2012 [AC312845] (the 2007 Agreement)
began applying to the Applicant I accept that this enterprise agreement was applicable to the
Applicant from at the latest 29 October 2008.
[62] On 15 May 2013 a replacement enterprise agreement was approved by the
Commission and came into operation, the 2012 Agreement. This replaced the 2007
Agreement.
[63] On 4 November 2016 the Mr Justice, Head of Training and Checking Airline Services,
wrote to Ms Kinnaird.16 The letter referred to previous advice as to the company’s decision to
implement a revised structure which would consolidate Flight Examiner Simulator/Simulator
Check Captain responsibilities to Brisbane. The letter explains the initial personal
implications of the restructure for Ms Kinnaird. The letter states,
“Currently you are provided with an allowance of 25% of gross annual salary to
undertake additional duties as designated by the Head of Flight Operations as a Flight
Examiner Simulator/Simulator Check Captain as detailed in the National Jet Systems
Pty Ltd Pilot Collective Agreement 2007 – 2012 (PEA).
The company’s decision is to implement a revised Pilot Training structure with a
transition to the new structure to occur over coming months. The desired date of
implementation is 1 January 2017.
You are advised that you are provided notice that the company decision to allocate all
SIM training duties to Brisbane based Pilots means that should you elect to not seek a
vacant Captain role in Brisbane, your designation and associated allowance as a
Simulator Check Captain will be removed as at a date to be determined. Formal
notice will be provided should this apply to you and notice will be provided as soon as
date is determined.
You are invited to consider Pilot vacancies at alternative bases and opportunities to
continue your involvement in Pilot Training as detailed in published Pilot Training
opportunities communication to Pilots. The opportunities are for Aircraft Check Pilots
and Flight Examiners Simulator.”
[64] The letter went on to explain that,
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“In the event that the allowance for undertaking additional duties as a Flight Examiner
Simulator/Simulator Check Captain being withdrawn as a result of the revised training
structure, the company will implement the following transition arrangements which
will result in the allowance you currently receive being reduced to nil over a 16 week
period;...”
[65] The 16 week transition period involved 25% of the Simulator Check Captain
allowance being withdrawn every four weeks until it was no longer being paid.
[66] A subsequent letter dated 9 December 201617 advised Ms Kinnaird that she was to be
appointed as an Aircraft Check Captain based in Perth.
[67] The letter stated,
“Currently you are provided with an allowance of 25% of gross annual salary
(currently $41,940.14) to undertake additional duties as designated by the Head of
Flight Operations as a Flight Examiner/Simulator Training Captain under terms as
detailed in the National Jet Systems Pty Ltd Pilot Enterprise Agreement 2012 (PEA).
You are advised that the company is providing you notice that effective from 1 March
2017 the company has determined that you will not be required to undertake on-going
additional duties as a flight Examiner/Simulator Training Captain.”
[68] It is apparent that this letter erroneously referred to “Simulator Training Captain”
rather than “Simulator Check Captain.” I note that the allowance payable to a Simulator
Training Captain under the 2012 Agreement is 20% of the gross annual salary.
[69] The letter advised that the allowance of 25% of gross annual salary she had been
receiving as the Simulator Check Captain would be removed over a 16 week period and the
applicable allowance for an Aircraft Check Captain paid instead.
[70] The allowance payable to a Pilot appointed to the position of Check Captain under the
2012 Agreement is 15% of gross annual salary.
[71] There was no evidence as to the existence of, let alone the terms of, any written
contract of employment between the Applicant and the Respondent.
[72] The parties agree that the 2012 Agreement applied to Ms Kinnaird in 2016 and at the
time of hearing. Relevant provisions of the 2012 Agreement are set out below.
“This Agreement covers:
NATIONAL JET SYSTEMS PTY. LIMITED (ACN: 008 279 203)
(“Employer”)
AND
The Pilots as defined in Clause :1 herein employed by National Jet Systems Pty. Ltd
(NJS) and the TWU and the AFAP; herein referred to as the “parties”.
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...
4. Definitions and Interpretation
4.1 Definitions
...
(8) “Captain” means a Pilot as defined in this clause who holds the necessary
licences, ratings and endorsements approved by CASA and who is employed by
NJS pursuant to this Agreement, and who may be designated, in writing, as a
Pilot in command of any aircraft operated by NJS.
(9) “Check Captain” means any Captain nominated by NJS, approved by
CASA and designated in writing by NJS to conduct flight proficiency tests and
to certify the competency of Pilots for the issue and renewal of professional
Pilots’ licences.
(10) “Cleared to line” means any Pilot who:
(a) has been certified by a NJS Check Captain as competent to pilot an
aircraft operated by NJS;
(b) holds all appropriate licences, ratings and endorsements in
accordance with CAR/CASRs and CAOs and has been approved, in
writing, by NJS to act as an operating crew member on a specific aircraft
type operated by NJS.
...
(19) “First Officer” means a Pilot, who holds the necessary licences, ratings
and endorsements, who is employed by NJS pursuant to this Agreement and
who is designated in writing by NJS to act as a Pilot other than Pilot in
command of multi-pilot aircraft operated by NJS.
...
(22) “Full-Time Pilot” means a Pilot who is required to work up to the
maximum Flight Time as per Clause 34.
...
(27) “Pilot” means an Employee employed by National Jet Systems Pty. Ltd. in
the classifications listed in Schedule 1 of this Agreement.
...
(34) “Senior Base Pilot” means a Pilot, who is designated in writing by NJS,
to act as a supervisor at base level in addition to substantive duties and in
accordance with the approved NJS Position Description for Senior Base Pilot.
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...
(38) “Training Pilot” means any Pilot who is approved, in writing, by NJS to
provide either or both ground and flight instructional training for other Pilots.
...
31. Allowances and Benefits
...
31.8 A Pilot appointed to the following positions upon such conditions as determined
by NJS shall be paid allowances (which are not cumulative) effective from 1 July
2012, as follows:
(1) a Pilot appointed by the Head of Flight Operations to undertake delivery of
Ground Training, $180 for each day or part thereof that the duties associated
with ground training are undertaken. This Allowance will be increased by CPI
in accordance to the provisions detailed in Schedule 1 Clause 1.1(b)
(2) a First Officer Line Training Captain appointed by the Head of Flight
Operations, an additional 8.5% of the gross annual salary prescribed in
Clause (1) of Schedule 1.
(3) a First Officer Line Training Captain and Command Line Training
Captain, appointed by the Head of Flight Operations, an additional 10% of the
gross annual salary prescribed in Clause (1) of Schedule 1.
(4) a Check Captain, appointed by the Head of Flight Operations, an
additional 15% of the gross annual salary prescribed in Clause (1) of Schedule
1.
(5) a Simulator Training Captain, appointed by the Head of Flight Operations,
an additional 20% of the gross annual salary prescribed in Clause (1) of
Schedule 1. For the purpose of Clause 34.2, when acting in the capacity of a
Simulator Training Captain, a Simulator Training Captain will receive a credit
of one flight hour for each simulator hour worked.
(6) A Simulator Check Captain, appointed by the Head of Flight Operations,
an additional 25% of the gross annual salary prescribed in Clause (1) of
Schedule 1. For the purpose of Clause 34.2, when acting in the capacity of a
Simulator Check Captain, a Simulator Check Captain will receive a credit of
one flight hour for each simulator hour worked.
(7) an Administrative Pilot, an administrative allowance as agreed between the
Pilot and NJS. In the absence of agreement, the quantum of the administrative
allowance shall be determined by NJS.
(8) a Pilot appointed to the role of Flight Data Analysis Program (FDAP)
Fleet Representative, an allowance of $8,500 per annum in addition to the
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gross annual salary prescribed in Clause (1) of Schedule 1and this amount will
be adjusted in accordance with Schedule 1, Clause (1 ),(b).
(9) a Pilot appointed to undertake Line Operations Safety Audit (LOSA)
responsibilities, an allowance of $3,000 per annum in addition to the gross
annual salary prescribed in Clause (1) of Schedule 1 and this amount will be
adjusted in accordance with Schedule 1, Clause (1),(b).
...
34. Hours of Duty
34.1 NJS shall roster and each Pilot shall fly a roster in accordance with the
Rostering Protocol and CAOs, as amended or any concessions granted in writing by
CASA as reflected in NJS Operations Manuals, and according to any other special
considerations as specified at Clause 35.
34.2 Flight Time
The Pilot’s maximum Flight Time per roster period are 75 hours for a monthly Roster
Period.
34.3 Time spent in the flight Simulator shall be included in the calculation of Flight
Time per Roster Period and will be recognised for the purpose of the overtime
threshold.
...
Schedule 1
PILOT SALARIES AND OVERTIME RATES
(1) Pilot Salaries
(a) Pilot gross annual salaries effective from 1st July 2012.
Captain $155,000
First Officer
Year 1 $85,250 representing 55% of the wage designated for a Captain
Year 2 $89,125 representing 57.5% of the wage designated for a Captain
Year 3 $93,000 representing 60% of the wage designated for a Captain
Year 4 $93,000 representing 60% of the wage designated for a Captain
Year 5+ $100,750 representing 65% of the wage designated for a Captain
• Year 1 is the first year of service with NJS or related entity
• Year 2 is the second year of service with NJS or related entity
• Year 3 is the third year of service with NJS or related entity
• Year 4 is the fourth year of service with NJS or related entity
• Year 5 is the fifth year of service with NJS or related entity
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Progression will occur based on the anniversary date of the First Officers
employment with NJS or related entity. Progression will occur on the day
following the anniversary date.
...
Schedule 2
ALLOWANCES
...
(7) A Pilot who is appointed as a Senior Base Pilot shall be paid an allowance in
additional gross annual salary of $12,000 p.a. and this amount will be adjusted in
accordance with Schedule 1, Clause 1(b).” (Underling added)
The legislation
[73] Section 386 of the Act defines when a person has been “dismissed” as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season,
and the employment has terminated at the end of the period, on completion of
the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
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(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s employment,
to avoid the employer’s obligations under this Part.”
Applicable principles
[74] In Navdeep Singh v MSS Security Pty Ltd [[2016] FWC 1857] the Commission as
currently constituted considered the case law applicable to instances of demotion that were
asserted to amount to dismissal as follows,
“[37] The respondent’s objection is that Mr Singh’s employment contract contains a
term allowing demotion without termination and consequently his demotion did not
involve termination of Mr Singh’s employment and so Mr Singh has not been
dismissed within the meaning of section 386(1) (a) of the Act. Consequently Mr Singh
is not a person who is able to make an unfair dismissal remedy application.
[38] It is clear from the evidence that the respondent employer did not express any
intention to terminate Mr Singh’s employment. Nothing was put in writing to him that
he was dismissed or that his employment was terminated. Mr Singh concedes in his
evidence that he was never told he was dismissed or that he was terminated. The
respondent’s actions throughout have been consistent with not intending to terminate
or dismiss Mr Singh. Nothing the respondent has done amounts to an express
termination of his employment.
[39] Mr Singh has not resigned from his employment. Mr Singh simply has not
returned to do any work for the respondent since the meeting on 9 June 2015. He has
not advised his employer verbally or in writing that he is resigning from his
employment. This then is not a case of constructive dismissal under section 386(1) (b)
of the Act.
[40] What Mr Singh argues is that the respondent has repudiated his employment
contract. Whether there has been a repudiation is a question of fact. Not every breach
of contract is a repudiation. A repudiatory breach does not automatically terminate
the contract but confers an elective right of termination on the innocent party.
[41] There is a body of case law that deals with this situation. Deputy President
Gooley in the matter of Terence Lollback v the University of Southern Queensland
considered the circumstances where a demotion is not a termination of employment.
This particular matter concerned a circumstance where an employee had been
demoted which the employer argued was authorised by the terms of an enterprise
agreement and so was not a termination of employment and so not a dismissal.
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[42] After considering the line of authority Deputy President Gooley found that she
was bound by the decision of the Full Bench of the Australian Industrial Relations
Commission in Elizabeth Gorczyca v RMIT University which had concluded that:
“The respondent argues there has not been a termination because the certified
agreement permits the demotion without regard to the income loss and
provides in effect that it is not a termination. We think that the latter
proposition is correct. There has not been a termination because the certified
agreement operates to preclude there being one in the circumstances of this
case. Put another way we think, at law there has been no termination and if
there has been no termination we do not see, notwithstanding the provisions of
s.170CD(1B) that there has been a termination for purposes of the Act.”
[43] Deputy President Gooley also considered another Full Bench decision of the
Australian Industrial relations Commission in Charlton v Eastern Australian Airlines
Pty Limited which turned its attention more broadly to when the termination of
employment occurs and held as follows:
“[32] Consistent with the decision in Boo Hwa Chan, a termination of
employment occurs when a contract of employment is terminated. This
necessarily occurs when the employment relationship comes to an end.
However, it can also occur even though the employment relationship continues.
Where a contract of employment has been terminated, but the employment
relationship continues, this will be because a new contract of employment has
come into existence. Therefore, whether the appellant's demotion involved his
employment being "terminated by the employer" within the meaning of
s.170CE turns on whether his contract of employment was terminated
notwithstanding the continuing employment relationship. This question is
answered by reference to general law principles relating to the termination of
contracts of employment, unconstrained by the Convention.
[33] The question of when a demotion constitutes a termination of employment
within general law principles relating to termination of contracts of
employment, unconstrained by the Convention, was given careful consideration
by the Full Court of the Supreme Court of South Australia in Advertiser
Newspapers Pty Ltd v IRC & Grivell. We respectfully adopt that analysis.
Although the decision related to a different statutory context, that context
required a consideration of general law principles that are equally applicable
in the present case.
[34] Unless the contract of employment or an applicable award or
certified/workplace agreement authorises an employer to demote an employee,
a demotion, not agreed to by the employee, that involves a significant reduction
in remuneration will amount to a repudiation of the contract of employment. If
that repudiation is accepted, either expressly or by conduct, then the contract
of employment is terminated. If, in such circumstances, the demoted employee
then remains in employment with the employer, this occurs pursuant to a new
contract of employment in respect of the demoted position. It may be noted that
where the employment continues with the employee allegedly acquiescing in a
reduction in salary or other terms of employment, difficult questions may arise
[2017] FWC 6055
16
as to whether the continued employment involves the continuation of the
original contract of employment (but with the employer breaching that contract
by paying the reduced salary), a consensual variation of the terms of the
original contract or the termination of the original contract and a substitution
of a new contract of employment.” (Underlining added)
[44] The Deputy President in that case accepted that the demotion authorised by the
applicable enterprise agreement was not a termination.
[45] This principle, that a demotion arising from the application of a clause in an
agreement is not a termination of employment at the initiative of the employer nor is it
a repudiation of the contract of employment, was earlier accepted and applied by
Senior Deputy President Drake in the case of Michelle Holland v Qantas Airways
Limited.
[46] The broader statement of principle identified by the Full Bench above is that a
demotion of an employee by an employer which involves a significant reduction in
remuneration that is not agreed to by an employee will not amount to a repudiation of
the employment contract if it is authorised by a contract of employment, an applicable
award or a certified/workplace agreement.
[47] More recently a Full Bench of the Commission in the case of Phillip Moyle v MSS
Security Pty Ltd simplified the applicable principle as follows:
“[12] ...Whether or not the exception in s. 386 (2) (c), properly construed, was
applicable, it remains necessary for Mr Moyle to demonstrate at the outset that
he had been “dismissed” within the meaning of s. 386 (1).
[13] An action taken by an employer to change the remuneration and duties of
an employee could not constitute a dismissal under s. 386 (1) where the change
was one authorised by the contract of employment.” (Reference omitted)
[75] On appeal the Full Bench [[2016] FWCFB 3546] took no issue with this summary of
the applicable case law and principles.
[76] The Full Bench’s consideration, in the case of Philip Moyle v MSS Security Pty Ltd
[[2016] FWCFB 372] mentioned above, of the exception in s. 386(2)(c) to the definition of
dismissal was as follows,
“[9] We accept Mr Moyle’s submission to this effect. Section 386(1) sets out a general
definition of what constitutes a dismissal. Section 386(2) then sets out three sets of
circumstances which, even if they fall within the general definition, are deemed not to
be dismissals. These are, in effect, exceptions to s.386(1). The third of these
exceptions, in s.386(2)(c), relates to demotions in employment. In order to fall within
this exception - that is, for a demotion that otherwise constitutes a dismissal under
s.386(1) to be deemed not to be a dismissal, both limbs of the exception must be
satisfied, as Mr Moyle submitted. The construction adopted by the Senior Deputy
President was, with respect, in error because it inverted the exception by making it
necessary for an applicant to negative both limbs of the exception in order for the
demotion to be a dismissal. This would have the perverse result that a demotion in
[2017] FWC 6055
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employment could never constitute a dismissal, even where it is plain that the existing
contract of employment has been terminated and replaced by a new and inferior
contract, because the employee will necessarily have remained in employment with the
employer and thus could not negative s.386(2)(c)(ii).
...
[13] An action taken by an employer to change the remuneration and duties of an
employee could not constitute a dismissal under section 386(1) where the change was
one authorised by the contract of employment. In this case, we consider it clear that
MSS’s transfer of Mr Moyle was authorised by Mr Moyle’s contract of employment.
...
[23] We do not consider that there was any repudiation of Mr Moyle’s contract of
employment by MSS, and that it continued to operate in accordance with its terms
after Mr Moyle’s transfer took effect. Therefore, there was no termination at the
initiative of the employer under s.386(1)(a) and no dismissal.”
[77] In the current case, for the Commission to have jurisdiction to consider this application
the Applicant must prove her employment was terminated at the initiative of the Respondent.
[78] Even if changes made by the Respondent (including demotion) did involve a
significant reduction in her duties and/or remuneration this will not be a termination of her
employment at the initiative of the Respondent if the contract of employment or applicable
enterprise agreement authorised the Respondent to do this.
[79] A demotion that would otherwise be a dismissal which falls within the exception of
section 386(2)(c) of the Act is deemed not to be a dismissal.
Submissions
The Applicant
[80] It is submitted that section 386(2)(c) of the Act contemplates a demotion as
constituting a dismissal where sections 386(2)(c) (i) and (ii) of the Act are satisfied.
[81] The Applicant submits that she was demoted and that her demotion involved a
significant reduction in her remunerations and duties. Consequently it is submitted Ms
Kinnaird’s dismissal was harsh, unjust or unreasonable.
[82] The Applicant submits that at all material times her appointment to the position of
Simulator Check Captain was a permanent/full-time appointment.
[83] Other incumbents of the position of Simulator Check Captain have enjoyed
permanency of appointment for up to 25 years.
[84] Ms Kinnaird’s appointment to this position of almost nine years is a conclusive
indicator of a permanent appointment.
[2017] FWC 6055
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[85] It is submitted Ms Kinnaird held the position of Simulator Check Captain from 27
August 2008 uninterrupted, until she was dismissed from her position of Simulator Check
Captain on 1 March 2017 when she was demoted to the substantive position of Line Captain,
purportedly acting as an Aircraft Check Captain.
[86] It is submitted that the Simulator Check Pilot is senior in the organisational structure
to the Aircraft Check Captain.18
[87] In both the 2012 Agreement and the prior 2007 Agreement, which applied at the time
Ms Kinnaird was appointed as a Check Captain, the same language is used. The Applicant
submits for example that the appointment of a Pilot to be a Captain under either agreement by
definition, requires that they are “designated, in writing” . The Applicant submits this means
that a Captain is undeniably a permanent appointment. Similarly when a Captain is appointed
to be a Check Captain, because the definition of Check Captain also refers to them being
“designated, in writing” the Applicant submits that the appointment is permanent.19
[88] It is submitted there is nothing in either the 2007 Agreement or the 2012 Agreement
that can be taken as meaning that appointment to Check Captain, including Simulator Check
Captain is temporary or short-term in nature or not of a permanent nature.
[89] The words in the 2007 Agreement in subclause 27.8 “...upon such conditions as the
employer may determine” and the in the 2012 Agreement “...upon such can conditions as
determined by NJS...” at subclause 31.8 refers only to the payment of allowances.
[90] The fact these clauses provide for remuneration to Simulator Check Captains in the
form of an allowance cannot be taken as characterising the appointments as of limited or
temporary tenure or as being on an as required basis. The evidence of Ms Kinnaird and Mr
MacKerras refute this.
[91] It is submitted that the position of Simulator Check Captain is a dedicated role and not
an adjunct to other duties.
[92] It is submitted that Ms Kinnaird’s contract of employment does not provide for
demotion. It is submitted there is nothing apparent in the terms of the agreements that
provides for NJS to demote an employee other than in the 2012 Agreement where it includes
a provision for the transfer to lower paid duties in circumstances of redundancy at subclause
22.4.
[93] In the circumstances there is sufficient evidence to demonstrate that what occurred
was a repudiation of Ms Kinnaird’s contract. Ms Kinnaird has constantly and repeatedly
objected to the dismissal/demotion in her correspondence to the Respondent.
[94] It is submitted that the characterisation by NJS that appointment to the position of
Simulator Check Captain is not permanent but is of a temporary nature is a contrivance to
avoid the operation of the redundancy provisions in the 2012 Agreement or to avoid the other
obligations to pay relocation costs in instances of transfers.
[95] The Commission should find that Ms Kinnaird’s employment was terminated at the
employer’s initiative and so she has been dismissed.
[2017] FWC 6055
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The Respondent
[96] The Respondent submits there is no jurisdiction to hear the application because Ms
Kinnaird was not dismissed at the employer’s initiative.
[97] The repeated reference by the Applicant’s representative to “demotion” is misdirected.
Demotions are a secondary exception within the legislation which is directed to the meaning
of “dismissed”. The Applicant must first establish that she has been dismissed at the
employer’s initiative. If demotions are relevant, and the Respondent submits they are not, they
are to be examined as described within the latter part of section 386(2) of the Act only.
[98] The Respondent in addition submits that Ms Kinnaird has not been made redundant.
The restructuring of the Respondent’s workforce did not involve the termination of her
contract of employment and did not involve her job not being required to be done by any
person.
[99] The Respondent submits the Commission must first determine whether there was a
dismissal pursuant to section 386(1) of the Act. If there was no dismissal then Ms Kinnaird’s
claim must fail and no further review is required. If the Commission however finds a
dismissal did occur consideration must then be given to the exceptions to dismissal, including
that of demotion, set out in section 386(2) of the Act.
[100] The Applicant is currently employed by the Respondent and has been so since 1994.
[101] Ms Kinnaird has been employed in the classification of Pilot Captain continuously
since April 1999.
[102] The applicable agreements during Ms Kinnaird’s employment to date, the 2007
Agreement and the 2012 Agreement only have classifications of Pilot Captain, Pilot First
Officer and Trainee Pilot.
[103] This limited set of classifications is consistent with the Air Pilots Award 2010
[MA000046] (the Award), Ms Kinnaird’s Australian Workplace Agreement and various other
pilot enterprise agreements.
[104] The agreements define a “Pilot” as an employee employed within the classifications in
Schedule 1 of the respective agreement. Schedule 1 in each instance has classifications of
Pilot Captain, Pilot First Officer and Trainee Pilot only.
[105] Ms Kinnaird’s was approved by CASA as a Check Pilot and over time was appointed
progressively to various training roles as a Training Captain, Check Captain and Simulator
Check Captain and received additional appropriate allowances for those duties and skills.
None of those appointments to training roles altered or varied or replaced her contract of
employment as a Pilot Captain.
[106] The 2012 Agreement which applied in 2016 and continues to apply to Ms Kinnaird’s
employment provides that appointment of training positions to pilots will under the terms of
subclause 31.8 be “...upon such conditions as determined by NJS”.
[2017] FWC 6055
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[107] In Ms Kinnaird’s case she had been paid an allowance of 25% of her base salary in
accordance with 31.8 of the 2012 Agreement in consideration of the duties she performed as a
Simulator Check Captain.
[108] The positions of Training Captain’s including the Simulator Check Captain are not
classifications under the 2007 Agreement or the 2012 Agreement and are not permanent or
separate contracts.
[109] Ms Kinnaird has been required to be checked by the Respondent’s Head of Training
and Checking every two years in order that the Respondent can consider its advice to CASA
that the instrument provided by CASA which allows her to act as CASA’s delegate be
renewed.
[110] The position of Training Captain is not a classification under the 2012 Agreement nor
was it so under any prior agreement. They consequently are not permanent classifications as
Ms Kinnaird argues. Training Captains can resign from such positions and revert to being a
Pilot Captain flying line requirements without any change to their substantive classification or
alternatively as occurred in this case the employer can restructure and not require an
employee to continue such training duties.
[111] The Applicant and Mr MacKerras incorrectly argue that the fact the training roles are
full-time positions (which is not disputed) equates to them being “permanent”.
[112] The long-standing scheme of a limited set of classifications being supplemented with
prescribed allowances for particular training roles as is provided in the current 2012
Agreement, which was also in the 2007 Agreement, which was reflected in Ms Kinnaird’s
Australian Workplace Agreement and is also in the Award very strongly supports the
conclusion that there is not a separate classification of Simulator Check Captain.
[113] Employees being appointed to various training roles, and in particular from being a
Pilot Captain to work as a Simulator Check Captain, does not involve being engaged in a new
classification and so does not result in a new contract of employment being formed between
the parties. There is merely an adjustment to the duties and a prescribed allowance becomes
payable.
[114] Ms Kinnaird’s classification was and still is that of a Pilot Captain under the terms of
the 2012 Agreement.
[115] Immediately prior to the Respondent’s review of the Pilot Training and Checking
organisation Ms Kinnaird as a Flight Examiner/Simulator Check Captain was as required by
the 2012 Agreement being paid an allowance of 25% for undertaking additional duties. Ms
Kinnaird was based in Perth.
[116] The Applicant did not apply for the Flight Examiner/Simulator Check Captain
vacancies in Brisbane that were one result of the Respondent’s restructure.
[117] There were, also as a result of the restructure, two Aircraft Check Captain
opportunities available in Perth. These roles attracted a 15% allowance under the 2012
Agreement.
[2017] FWC 6055
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[118] The Applicant expressed an interest in the role of Aircraft Check Captain in Perth and
was subsequently selected for this. Ms Kinnaird confirmed her acceptance of the offer of such
a position on 9 December 2016.
[119] Ms Kinnaird continues to be employed by the Respondent now as an Aircraft Check
Captain in Perth and is in receipt of the 15% allowance under the 2012 Agreement.
[120] The difference between the 25% allowance Ms Kinnaird was receiving and the 15%
allowance she is now receiving is $16,776.04 per annum.
[121] As a Simulator Check Captain Ms Kinnaird was being paid approximately $209,700
per annum.
[122] Ms Kinnaird currently is being paid approximately $192,924 per annum.
[123] The reduction in Ms Kinnaird’s previous remuneration as a result of this change is 8%.
[124] The Respondent acknowledges Ms Kinnaird expressed her wish to remain as a
Simulator Check Captain in Perth and her view that she held a permanent position as such.
The Respondent advised her that this was not correct.
[125] The Respondent has at no stage reclassified Ms Kinnaird. She was before the
restructure and continues to be employed after the restructure in the classification of Pilot
Captain under the 2012 Agreement.
[126] The Respondent has not dismissed the Applicant and she remains in employment.
[127] At no stage has the Respondent identified that the job previously being performed by
the Applicant nor any of the other Pilots impacted by the restructure was not required to be
performed by anyone.
[128] The process of the restructure was lawfully and procedurally fair and the Respondent
has not offended any provisions of the 2012 Agreement nor the Applicant’s contract of
employment.
[129] NJS submits that they have not unilaterally altered Ms Kinnaird’s contract of
employment but have simply, through the restructure, altered the nature of the additional
training duties she is to do and they are entitled to do so under the terms of the 2012
Agreement.
[130] There has not been a repudiation of the Applicant’s contract of employment. She
remains employed in her classification and there has been no demotion in law.
[131] Training positions such as the Simulator Check Captain are held by employees on
terms as determined by the employer as is specified within the 2012 Agreement.
[132] Consequently NJS submits that this application must therefore fail for want of
jurisdiction.
[2017] FWC 6055
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Consideration
[133] Considering the provisions of the 2012 Agreement it is apparent from the introduction
that the agreement covers employees who are Pilots, as defined in clause 4.
[134] Clause 4 of the 2012 Agreement contains various definitions relevantly as follows.
[135] A “Pilot” means an employee employed by NJS in the classifications listed in
Schedule 1.
[136] The only classifications in Schedule 1 are Captain, First Officer and Trainee Pilot.
[137] There is no classification of Simulator Check Captain in Schedule 1.
[138] A “First Officer” means a Pilot holding various licenses etc who is designated to act as
a Pilot, other than Pilot in command of multi-pilot aircraft.
[139] A “Captain” means a Pilot holding necessary licenses etc approved by CASA who
may be designated as a Pilot in command of an aircraft.
[140] A “Check Captain” means any Captain nominated by NJS, approved by CASA and
designated in writing by NJS to conduct flight proficiency tests and certify the competency of
Pilots.
[141] I infer from the evidence and the scheme of the Agreement that a Simulator Check
Captain is in practice a particular type of “Check Captain”.
[142] “Full-Time Pilot” means a pilot required to work up to the maximum flight time of 75
hours for a monthly roster.
[143] There is no definition of Simulator Check Captain in the 2012 Agreement nor in the
2007 Agreement.
[144] There is no definition of “permanent” in the 2012 Agreement nor in the 2007
Agreement.
[145] Clause 31 of the 2012 Agreement provides for allowances. Subclause 31.8 says that a
Pilot is appointed to one of the specified positions “upon such conditions as determined by
NJS” and shall be paid the related allowance.
[146] Considering subclause 31.8 as a whole, of the nine positions for which allowances are
prescribed eight (including a Simulator Check Captain) have an associated allowance
expressed as a percentage of the same amount, that amount being “the gross annual salary
prescribed in Clause (1) of Schedule 1”. The only allowance calculated differently, is for an
Administrative Pilot, which is an amount to be agreed between the Pilot and NJS.
[147] The 2012 Agreement does not prescribe in Schedule 1 any classifications using the
same nomenclature as the nine positions for which allowances are payable under subclause
31.8. In fact there are no classifications in the 2012 Agreement at all of Head of Flight
[2017] FWC 6055
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Operations, First Officer Line Training Captain, First Office Online Training Captain and
Command Line Training Captain, Check Captain, Simulator Training Captain, Administrative
Pilot, Flight Data Analysis Program Fleet Representative, Line Operations Safety Audit nor is
there a classification of Simulator Check Captain.
[148] To recap the 2012 Agreement says it covers “Pilots as defined in Clause 4 herein
employed by National Jet Systems Pty Ltd”.
[149] In clause 4 the definition of “Pilot” says it “…means an employee employed by
National Jet Systems Pty Ltd in the classifications listed in Schedule 1…”
[150] The only classifications in Schedule 1 are Captain, First Officer and Trainee Pilot.
Each of these classifications has a prescribed salary and for Captains and First Officers this is
dependent upon the aircraft type and their level, which is a function of years of service.
[151] It is clear from this scheme of the 2012 Agreement that a Pilot appointed to any of the
positions for which an allowance is prescribed in subclauses 31.8(2) to 31.8 (6) inclusive must
be employed in the classification of Captain. Obviously Pilots in these positions could not be
employed in the classifications of Cadet Pilot, Trainee Pilot or First Officer.
[152] Consequently I find that Ms Kinnaird was employed in the classification of Captain
under the 2012 Agreement before the Respondent’s restructure in 2016 when she was still a
Simulator Check Captain. During the time she was a Simulator Check Captain and after her
appointment to this position was ended she remained in the classification of Captain.
[153] There is no evidence to support a finding that this appointment as a Simulator Check
Captain involved the parties entering into a new contract of employment.
[154] Consistent with this finding that Ms Kinnaird was employed in the classification of
Captain it is apparent from the evidence regarding the quantum of allowance she received at
various times that this allowance was always calculated based on the classification of Captain
in Schedule 1 of the 2012 Agreement. This was also the case under the 2007 Agreement.
[155] This finding that Ms Kinnaird was employed in the classification of Captain is also
consistent with the hierarchical scheme of definitions in the 2012 Agreement, which also
existed in the 2007 Agreement.
[156] A Simulator Check Captain is a specific type of “Check Captain” which is apparent
from the evidence as to what a Simulator Check Captain does and the definition of “Check
Captain” in subclause 4.1(9). That definition of “Check Captain” says that a “Check Captain”
is a “Captain” nominated by NJS who meets other prescribed requirements. Similarly by
definition a “Captain” is a “Pilot” who is designated as a Pilot in command by NJS and who
also meets other prescribed requirements.
[157] Therefore under the 2012 Agreement all Simulator Check Captains are “Check
Captains” and all “Check Captains” are “Captains” and all “Captains” are “Pilots”.
[158] Equally some “Pilots” are “Captains”, some “Captains” are “Check Captains” and
some “Check Captains” are Simulator Check Captains. But all Simulator Check Captains and
“Check Captains” and “Captains” are employed in the classification of Captain in Schedule 1
[2017] FWC 6055
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of the 2012 Agreement. There are no classifications of Check Captain or Simulator Check
Captain.
[159] Ms Kinnaird’s classification was also that of Captain before she was appointed to the
position of Simulator Check Captain. When she was appointed to the position of a Simulator
Check Captain she received the prescribed allowance of 25% of the gross annual salary for
that classification of Captain and continued to be employed in the classification of Captain.
Further Ms Kinnaird remains employed in the classification of Captain notwithstanding she
has now been appointed to the position of Aircraft Check Captain. She now receives the
prescribed allowance for this position which is also a percentage of the gross annual salary for
the classification of Captain.
[160] For the Applicant it has been argued that Ms Kinnaird was demoted by NJS.
[161] The Macquarie dictionary defines “demote” as meaning,
“to reduce to a lower grade or class (opposed to promote).”
[162] As I have found above NJS’s actions did not change the classification Ms Kinnaird
was employed in. NJS did not reduce Ms Kinnaird’s classification so as a matter of fact it is
not the case that Ms Kinnaird has been demoted.
[163] Given my conclusion on this it is not necessary to consider whether what occurred
involved a significant reduction in Ms Kinnaird’s remuneration or duties.
[164] Returning to the question of whether Ms Kinnaird’s employment was terminated at the
initiative of NJS.
[165] Relevantly for this application in Advertiser Newspapers Pty Ltd v IRC of SA and
Grivell (Grivell Case),20 which was cited with authority by the Full Bench in Gorczyca v
RMIT University21, the Supreme Court of South Australia considered the situation where an
employer reverses a direction that an employee perform higher duties,
“48. Depending on the original contract, there may also be a term of that contract that
the employer reserves the right to direct the performance of higher duty for such
period as the employer shall determine and to pay the employee at the higher rate for
only so long as such duties performed. If in those circumstances the employer
determines that there will be no more higher duties performed, the employer will be
acting within the terms of the contract. There will be no termination of the contract by
the employer and no repudiation, because the employer was acting within the terms of
contract.”
[166] An applicable enterprise agreement could similarly have provisions that would have
the same consequence as the contractual term mentioned in the Grivell Case above. An
employer that then changes an employee’s duties and remuneration would not be terminating
the contract and there would be no repudiation if the employer was acting within the
provisions of the enterprise agreement.
[167] In this case subclause 31.8 of the 2012 Agreement says an appointment to the position
of Simulator Check Captain is “...upon such conditions as determined by NJS”.
[2017] FWC 6055
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[168] The 2012 Agreement expressly reserves to NJS the right to apply conditions, which
they determine, to such an appointment. There is no temporal element to this.
[169] In this case as part of the restructure of the Pilot Training organisation NJS determined
that all Simulator Check Captain positions would in future be based in Brisbane.
Consequently NJS determined that with respect to Ms Kinnaird the continuation of her
appointment to the position of Simulator Check Captain was conditional upon her seeking a
vacant Simulator Check Captain role in Brisbane.22
[170] The action of NJS placing this condition upon Ms Kinnaird’s appointment was
authorised by subclause 31.8 of the 2012 Agreement.
[171] Ms Kinnaird opted not to express an interest in and pursue a Simulator Check Captain
vacancy in Brisbane. Rather Ms Kinnaird, under protest, pursued an alternative vacancy in
Perth. Ms Kinnaird was successful in this and was in due course appointed as an Aircraft
Check Captain in Perth.
[172] The action taken by NJS to change Ms Kinnaird’s duties and remuneration was
authorised by subclause 31.8 of the 2012 Agreement and so could not constitute a dismissal
under section 386(1) of the Act.
[173] Ms Kinnaird has not been dismissed and so was not entitled to make this unfair
dismissal remedy application. This application will be dismissed and an order [PR597824] to
that effect will now be issued.
COMMISSIONER
Appearances:
D. Stephens from the Australian Federation of Air Pilots on behalf of the Applicant.
D. Steel on behalf of the Respondent.
Hearing details:
2017.
Perth:
August 8.
Final written submissions:
Applicant, 29 August 2017
Respondent, 22 August 2017
Printed by authority of the Commonwealth Government Printer
Price code G, PR597823
[2017] FWC 6055
26
1 Exhibit A1 at paragraph 22.
2 Ibid., at paragraphs 25 and 26.
3 Exhibit A2 at paragraph 19.
4 Transcript at PN664.
5 Ibid., at PN360 and PN361.
6 Ibid., at PN597.
7 Ibid., at PN617 to PN619.
8 Exhibit A3, Attachment MK23.
9 Transcript at PN909.
10 Respondent’s list of documents, Attachment R28.
11 Ibid., Attachment R30.
12 Ibid., Attachment R33
13 Ibid., Attachment R32.
14 Ibid., at Attachment R31.
15 Ibid., at Attachment R34.
16 Ibid., at Attachment R36.
17 Ibid., at Attachment R37.
18 Applicant’s outline of submissions at paragraph 11.
19 Ibid., at paragraph 13.
20 [1999] SASC 300.
21 PR922414.
22 Respondent’s list of documents, Attachment R36 at paragraph 6.
