Image: Leonardo AW189
The Fair Work Commission has rejected an attempt by Lloyd Helicopters Pty Ltd, trading as CHC Helicopter, to argue that it had not dismissed a helicopter pilot with 23 years of service who had been diagnosed with terminal cancer.
Captain Peter Frestel, a long serving member of the Australian Federation of Air Pilots, had been absent from work since December 2022.
In April this year, as CHC was making offshore pilots redundant, the company told Captain Frestel his employment had ended because his contract was “frustrated” by his incapacity to return to flying.
As part of a general protections application, the AFAP alleged that CHC dismissed Captain Frestel to avoid a potential redundancy payment, after he had expressed interest in voluntary redundancy in January this year. CHC denies that allegation.
“The AFAP is now asking the Commission to examine the real reason for Captain Frestel’s dismissal. CHC’s attempt to muddy the waters by claiming the employment contract was frustrated has been rejected, allowing the general protections claim to proceed,” said AFAP Legal Counsel Andrew Molnar.
“This decision is an important reminder that an employer cannot simply characterise an employment contract as frustrated because an employee is unable to return to work. The terms of the employment contract and entitlements within them must still be considered.”
FWC Deputy President Boyce found the contract had not been frustrated and that CHC had instead terminated Mr Frestel’s employment allowing for the general protections application to continue.
Now that CHC’s jurisdictional objection has been formally dismissed, the dispute is listed for a conciliation conference later this month.
Background:
CHC Helicopter is an aviation provider, specialising in offshore crew transport to oil and gas overwater platforms, search and rescue, and emergency medical services for government and corporate clients.
Its helicopter fleet utilises heavy and medium twin-engine aircraft suited for challenging maritime environments, including the Sikorsky S-92 and Leonardo AW189
CHC attempted to stop the progression of a
General Protections application involving dismissal set out in Part 3-1 of the Fair Work Act 2009 (Cth).
FWC Deputy President Boyce has issued a Dismissal Order along with his Decision, Peter Frestel v Lloyd Helicopters Pty Ltd trading as CHC Helicopters (Australia), dismissing CHC's objection:
The matter has now been set down for a conciliation conference before DP Boyce pursuant to s.368 of the Fair Work Act.
About the AFAP:
With more than 6500 members, the Australian Federation of Air Pilots (AFAP) is the largest professional association and industrial organisation for commercial pilots in Australia.
The AFAP has represented and promoted the interests of Australian professional pilots and championed the highest possible standards of aviation safety since 1938.