Aitken v Virgin Australia Airlines and Vandeven v Virgin Australia Airlines
[2013] FCCA 981
•8 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AITKEN v VIRGIN AUSTRALIA AIRLINES and VANDEVEN v VIRGIN AUSTRALIA AIRLINES | [2013] FCCA 981 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – Sex Discrimination Act 1984 – workplace right – rights to flexible work arrangements – discrimination in employment on the grounds of pregnancy – right to consultation before decision impacting pre-parental leave position – adverse action – compensation. INDUSTRIAL LAW – Fair Work Act 2009 – Contractual terms of employment – incorporation of employment policies into employment contract – breach of contract – damages. |
| Legislation: Evidence Act 1995 (Cth), s.98 Sex Discrimination Act 1984 (Cth), ss.7, 14 |
| Cases cited: Service Assistance Pty Ltd [2011] FCA 333 Bostik (Aust) Pty Ltd v Georgevski (1992) 36 FCR 20 Byrne v Australian Ophthalmic Supplies Pty Ltd (2008) 169 IR 236 Transport Workers Union of Australia (NSW Branch) v No Fuss Liquid Water Pty Ltd [2011] FCA 982 Treadwell v ACCO Australia Pty Ltd [1997] FCA 1440 Macquarie Dictionary (Macquarie, 3rd ed, 1997). Sappideen, Carolyn, Paul O’Grady and Geoff Warburton, Macken’s Law of Employment (Lawbook Co, 6th ed, 2008) |
| Applicant: | KIRSTY AITKEN |
| Respondent: | VIRGIN AUSTRALIA AIRLINES |
| File Number: | BRG 141 of 2011 |
| Applicant: | LEONIE VANDEVEN |
| Respondent: | VIRGIN AUSTRALIA AIRLINES |
| File Number: | BRG 144 of 2011 |
| Judgment of: | Judge Burnett |
| Hearing dates: | 5, 6, 7, 8 and 9 March 2012; 31 May 2012; 25 June and 26 June 2012. |
| Date of Last Submission: | 26 June 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 8 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms C. Hartigan |
| Solicitors for the Applicant: | Maurice Blackburn |
| Counsel for the Respondent: | Mr C. Murdoch |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
ORDERS
That the matter be adjourned for hearing of the contravention to 10.00am on 27 August 2013 in the Federal Circuit Court of Australia sitting at Brisbane.
Index
Executive Summary
Introduction
Common Background
Corporate Background of Virgin Airlines
Contractual Terms Governing the Applicants’ Employment
Basis for Action
Reverse Onus
Ms Aitken’s Claim
Ms Aitken’s Relevant Background
Contract of employment
Ms Aitken’s Duties
Adverse Action Against Ms Aitken because she Exercised a Workplace Right
First Adverse Action Event
Workplace Right – discrimination.
Second Adverse Action Event
Workplace Right – exercising parental leave: complaint or inquiry concerning return to work following parent leave: discrimination.
Third Adverse Action Event
Workplace Right – failure to provide opportunity for promotion: discrimination.
Fourth Adverse Action Event
The Workplace Right – Complaint or inquiry in respect of her employment: right to discuss decision impacting pre parental leave position.
Fifth Adverse Action Event
Workplace Right – denial of flexible working arrangements – discrimination on basis of carer responsibilities.
Sixth Adverse Action Event
Workplace right – denial of flexible work arrangements: discrimination on basis of carer responsibilities.
Seventh Adverse Action Event
Workplace right – right to discuss decisions impacting employment – right to return to pre-maternity position – discrimination.
Breach of Contract
Redundancy Policy
Damages – Ms Aitken
Ms Vandeven’s Claim
First Adverse Action Event
Workplace right – Right to make an inquiry or complaint concerning employment.
Second Adverse Action Event
Workplace Right – right to make complaint or inquiry in respect of employment.
Third Adverse Action Event
Workplace Right – complaint or inquiry concerning her employment.
Fourth Adverse Action Event
Workplace Right – Right to flexible working arrangements
Fifth Adverse Action Event
Workplace Right – right to make complaint or inquiry in relation to employment.
Sixth Adverse Action Event
Workplace Right – discrimination.
Breach of Contract – Ms Vandeven
Damages – Ms Vandeven
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 141 of 2011
| KIRSTY AITKEN |
Applicant
And
| VIRGIN AUSTRALIA AIRLINES |
Respondent
BRG 144 of 2011
| LEONIE VANDEVEN |
Applicant
And
| VIRGIN AUSTRALIA AIRLINES |
Respondent
REASONS FOR JUDGMENT
Executive Summary
The applicants claim against the respondent for relief pursuant to the Fair Work Act 2009 (Cth) (FW Act) in respect alleged adverse action taken against them because of their exercise of workplace rights provided for in the FW Act. The claim also seeks relief in respect of related contraventions alleged in respect of the Sex Discrimination Act 1984 (Cth) and for breach of contract of employment.
There were many common elements to the applicants’ claims. They were each employed in Virgin’s Public Affairs Section; they each had family responsibilities with one applicant, Ms Aitken, being on maternity leave at the material time and due to return to work and the other, Ms Vandeven, pregnant; each was rendered redundant at or about the same time as a consequence of a major restructure of Virgin, announced in June 2010; and, each complained of Virgin’s failure in terms of processes concerning redundancy action.
The applicants each alleged various workplace rights arising from their employment. Although the workplace rights alleged were broadly claimed they principally fell within categories of complaints or enquiries in respect of employment and or workplace rights founded upon statutory rights that could be demonstrated such as rights arising under the Sex Discrimination Act (Supra) and or various provisions of the FW Act providing for flexibility in employment because of pregnancy or family responsibilities. It was alleged that by reason of their exercise of workplace rights in particular their claim for entitlement to flexible employment arrangements protected by legislation they were subject to adverse action.
In substance their claims have failed because Virgin have demonstrated that where any adverse action has been evident, and it was plainly so ultimately by the applicants’ termination, such adverse action was taken solely for operational reasons related to the significant corporate restructure undertaken by it in 2010.
However that said, one contravention of the FW Act has been demonstrated by Ms Aitken in respect of a failure by Virgin to take all reasonable steps to give her information about and an opportunity to discuss the effect of a decision it made concerning her pre-parental leave position. Each of the applicants have also established Virgin breached its contract of employment with them by failing to comply with Virgin’s Redundancy Policy by failing to afford them proper consultation in respect of their proposed redundancies prior to them being terminated.
The applicants are entitled to damages in respect of breach of contract and Ms Aitken is additionally entitled to compensation in respect of the established contravention.
Introduction
Kirsty Aitken and Leonie Vandeven have made application for orders against the respondent, Virgin Australia Airlines Pty Ltd, alleging dismissal in contravention of general protection provisions of the FW Act and related relief. Although each applicant was terminated separately and under different circumstances, they commonly claim that their terminations were occasioned for reasons related to maternity leave or pregnancy. They each claim for relief including compensation and the imposition of pecuniary penalties. While each initially sought reinstatement in their initiating applications, that relief is no longer pursued.
Common Background
On 23 March 2011 it was ordered that the applications be heard together and that the evidence in one matter be the evidence in the other. The facts and circumstances surrounding the termination of each applicant differ. However, prior to termination many matters common to the applications were happening in the background.
Corporate Background of Virgin Airlines
Virgin Blue Airlines was floated and listed on the Australian Stock Exchange in 1999. It was the Australian progeny of Sir Richard Branson’s Virgin Airlines, which to that time was a British based corporation. Interests associated with Sir Richard Branson were significant shareholders in the ASX listed Virgin Airlines, which in turn was the holding company for the respondent. The inaugural Chief Executive Officer (CEO) of Virgin Airlines Australia was Richard Godfrey. He remained the CEO until approximately May 2010 when he retired from that position and was replaced by the current CEO, John Borghetti.
During the early years of Virgin Airlines Australia it developed a somewhat tenuous hold in the Australian market, assisted in part by the collapse of Ansett Airlines in 2001. The focus of the airline in its early years was at the low cost end of the market. The company has struggled, notwithstanding the oligopoly in the domestic airline market in Australia. Its share price had languished for many years prior to the 2010 management change. Throughout that period the company assumed the ethos and behaviours of other businesses associated with Sir Richard Branson, emphasising fun and frivolity as an important part of its business culture.
However the company board decided upon a differing strategy towards the latter part of its first ten years of operation. In the final years of Mr Godfrey the company sought to pursue markets beyond the leisure and low cost carrier market. In particular it sought to pursue the higher yielding corporate market.
In 2010, upon the retirement of Mr Godfrey, Mr Borghetti was appointed CEO. Mr Borghetti had been a lifetime employee of Qantas, Virgin’s principal domestic competitor. The arrival of Mr Borghetti clearly telegraphed the company’s change in strategic direction. While the company did not intend to abandon its core customer base at the low cost/low margin end of the market, it was Mr Borghetti’s intention to aggressively pursue the high yielding corporate market which was, and largely remains, with Qantas.
Prior to Mr Godfrey’s departure and the commencement of Mr Borghetti, the company had within its conventional corporate structure a Public Affairs Group headed by Ms Heather Jeffrey who as General Manager (GM) reported to him. She in turn had Ms Amanda Bolger, Manager, Public and Media Relations, reporting to her.[1] The applicants, being Ms Aitken as a Promotions and Sponsorship Specialist and Ms Vandeven as a Public Affairs Specialist, reported to Ms Bolger.
[1] The level 3 role of Manager Public and Media relations was the title afforded to the role by Ms Armstrong, the Specialist People Adviser. Ms Bolger described her title as initially Domestic PR Manager but says her role expanded to Global PR Manager. These differences in styles did not alter Ms Bolger’s position in the hierarchy.
The General Manager, Public Affairs oversaw six functional areas:
a.Corporation communications (annual results);
b.Media and public relations;
c.Sponsorship and promotion;
d.Internal communication; and
e.Corporate social responsibility (charitable and philanthropic involvements).
Ms Aitken was engaged in the promotions and sponsorship area and Ms Vandeven in the media and public relations area. The promotions and sponsorship area was one created in about 2005 on the recommendation of Ms Jeffrey and after consultation with Mr Godfrey. It required Ms Aitken to prepare potential promotion and sponsorships reports, which included commitments made historically and new commitments. Ms Vandeven was the second Public Relations Specialist and worked under the control of Ms Bolger.
Shortly after becoming CEO, Mr Borghetti terminated Ms Jeffrey’s employment, advising her that he wished to make some changes and review areas of the company including the Public Affairs Group. Plainly, Mr Borghetti did not inform her of his plans, which included the appointment of Ms Danielle Keighery as her replacement. Ms Jeffrey ceased her employment with Virgin the Thursday preceding Monday 17 May 2010, the date when Ms Keighery commenced with the company.
Ms Keighery had formerly been employed in a Virgin Group Company owned by Sir Richard Branson which controlled his investments. She had met Mr Borghetti during the course of his recruitment and had a close professional involvement with Mr Borghetti around the time of the announcement of his appointment. Initially she was offered the role of General Manager, Public Affairs, a level 4 role. Shortly after that appointment she was promoted to Group Executive, Corporate Communications, a newly created level 5 position. That is one level below the CEO, who held a level 6 position.
At the time of her appointment, Ms Keighery’s Public Affairs Group comprised four levels including the level 3 and 2 positions noted earlier as well as bottom tier level 1 positions, of which there were five.
About a week after her appointment Ms Keighery engaged Ms Melissa Thomson on a contract basis as a Media and Public Affairs Specialist. This was an additional level 2 position in the Public Affairs section. Shortly afterwards, Ms Bolger commenced maternity leave and Ms Thomson was promoted to a newly created level 3 position of Manager, Corporate and Internal Communications. Functionally it was a different position to that occupied by Ms Bolger, with the scope of duties broadened, particularly in the field of external media enquiries, which were to be centralised and more tightly controlled by Ms Thomson.
In preparing for the announcement of his appointment as Virgin’s CEO, Mr Borghetti told Ms Keighery that he intended to pursue a new direction for Virgin involving significant organisational and structural changes within the company and its associated airlines. In particular, he informed her that he intended to reposition Virgin in the airline business from a low cost start up carrier to an airline attractive to the corporate travel market and that he intended to undertake a substantial organisational restructure for Virgin and its associated airlines to ensure that each of their operating groups had functions that aligned with the new direction for Virgin, as well as providing clearer lines of responsibility and accountability.
Prior to those events, and approximately two days after commencing employment with the company, Ms Keighery attended an executive management team meeting which involved the company’s employees at the level 5, Group Executive level. During the course of the executive management team meeting, Mr Borghetti outlined to them the new direction and restructure he intended to implement. In particular, he told the executive management team that he intended to:
a.Change the direction of Virgin and its associated airlines including a shift from its position as a low cost start up carrier to a greater emphasis on the corporate travel market. This would include changing Virgin’s image from a cheap and cheerful leisure carrier to a serious professional carrier that had appeal to the corporate travel market. He also informed the team that he intended to implement a substantial organisational restructure within Virgin and its associated airlines to ensure that each operating group’s functions aligned with Virgin’s new corporate strategy as well as to reduce duplicity, provide clearer lines of responsibility and accountability and achieve a more integrated approach to its activities;
b.To integrate V Australia, one of Virgin Blue’s associated airlines, with Virgin during the 2010 restructure; and
c.To engage LEK Consultants, an aviation consultancy firm, to assist Virgin in implementing the 2010 restructure.
It appears that many executive management team meetings occurred between May and June 2010 during which the significant management attention and effort revolved around the organisational restructure. During the course of those meetings Mr Borghetti advised that the following groups would exist within the restructured organisation. They were:
a.Commercial Group;
b.Operations Group;
c.Product and Guest Services Group;
d.Chief Financial Officer Group;
e.People Group;
f.Corporate Communications Group;
g.Corporate Advisory Group; and
h.Corporate Relations Group.
He advised that each of the groups would be led by a level 5 Group Executive who would be responsible for determining the divisional structure within their own group. The groups would be designed with assistance from LEK.
Discussion between the Group Executives and Mr Borghetti included the allocation of functions between the respective groups. Relevantly for these proceedings, it was decided that the specific functions, roles and tasks that the Public Affairs department had previously performed would be redefined and reallocated. The proposal was:
a.Responsibility for all of Virgin’s commercial sponsorship work, which involved sponsorships carried out by Virgin for business purposes to generate revenue for Virgin and/or to build the brand equity value, was to be permanently allocated to the Marketing Department, which sat within the new Commercial Group. Prior to this, the Marketing Department had been responsible for most of Virgin’s commercial sponsorship work except that which, by prior arrangement with Ms Jeffrey, had previously been completed by the Public Affairs department. This allocation confirmed that the Marketing Department would retain responsibility for all of Virgin’s commercial sponsorship on a permanent basis;
b.Responsibility for prize winners, which involved bookings for people who had won free flights, was reallocated from Public Affairs to the Staff Travel Department within the People Group;
c.Responsibility for Voyeur, which is Virgin’s in-flight magazine, was reallocated from the Marketing Department to the Corporate Communications Group;
d.Responsibility for V-Licious, which is Virgin’s in-flight menu, was reallocated from the Products/Operations department to the Corporate Communications Group; and
e.Any remaining functions, tasks and responsibilities of the Public Affairs department relevant to their new focus of managing corporate business communications for the group were to remain within the new Corporate Communications Group.
Ms Keighery reviewed the roles and tasks of the Public Affairs department to determine the structure that would best align with Virgin’s new corporate strategy, taking into account the new functions, roles and tasks that would be the responsibility of the new Corporate Communications Group following the 2010 restructure. As part of that review, Ms Keighery met with members of Virgin’s People Team and the management consultants, LEK, to discuss the proposed structure of the group and what that would mean for the current members of the Public Affairs department. As Ms Keighery had arrived at Virgin as a new Executive Manager in May 2010 armed with the background knowledge of Mr Borghetti’s intentions, she had been considering these matters and their significance to the proposed restructure from the time of her arrival.[2]
[2] 8 March 2012: T 163, line 26-46; T 164, line 1-35.
Her preliminary views were augmented by discussions she had with LEK concerning not only her group but also other groups within Virgin. In her meetings with LEK, Ms Keighery discussed the effect of the changes on current members of the Public Affairs department. This process also involved Ms Belinda Armstrong, Specialist People Adviser at Virgin, with input from LEK members such as Mr Simon Barrett.
Ultimately she was responsible for deciding the final structure of the new Corporate Affairs Group but her decision on those matters was assisted by those meetings. Her decisions were also informed by information provided to her concerning specific tasks performed by the group. Concerning media management, she was assisted by an external consultant, Mark Rudder from Cosway Australia, a media agency engaged to survey members of the media in relation to their past experience with Virgin’s Public Affairs department. The results of the survey indicated to her that the Public Affairs department was not seen by the media to be communicating well. In particular, the results of that survey, which were briefed by her to the company board, showed that as a communicator Virgin was:
“ – Ranging from ‘Poor’ to ‘Worst in the country’
– ‘No interest in understanding of best practice – no backgrounding, no sense of time demands’
– ‘PR by Blackberry’
– ‘Comms team clearly did not have ear of management – didn’t know what was going on.’
– ‘Comms obstructive, rude, unpleasant, unprofessional – these are their good points!’”
In addition to receiving the results of the survey, Ms Keighery met directly with members of the media about Virgin’s Public Affairs department. Following these discussions she formed the view that Virgin’s Public Affairs department was not considered to be as professional as public affairs departments of other large organisations. Given her history of working public affairs and public relations since 1993 with organisations such as the Australian Broadcasting Corporation, Nokia Australia, Nokia International and the worldwide advertising agency Ogilvy, as well as being a Director, Corporate Affairs with Virgin Management Limited, it is fair to infer that she was able to bring a breadth of experience to her assessment of these matters. For instance, one of the matters that she was unhappy with concerned the extant protocol for media calls being taken. It provided that they would first be received by her personal assistant and followed by an email response. This process was in contrast to a better practice of the public affairs officer communicating directly with the inquiry journalist. This was quickly rectified by Ms Keighery with the introduction of a ‘1800 number’ and the establishment of a duty roster for its oversight.
Overall, Ms Keighery concluded that Virgin’s new corporate strategy would have a significant impact on the services to be provided by the Corporate Communications Group and the skills required by the employees of that group. She determined that there would be a change of focus towards business media and professional communications and a move away from the “cheap and cheerful” media message, together with the parties and events which had earlier characterised a large part of Virgin’s public affairs activities. Furthermore, she was conscious of the need for Virgin’s new corporate strategy to better align with the delivery of financial results. Indeed, her evidence on these issues demonstrated that she had a finely attuned commercial mind and was cognisant not only of the need to align the corporate communication strategy at a tactical level with the strategic objectives of the company as set by the board, but also to see that output produce a measurable return on investment.
The contrast between Ms Keighery’s evidence and that of her predecessor, Ms Jeffrey, on these matters was stark. Ms Keighery had a clear and precise vision of the necessary and measurable ‘value add’ required from the Group. In contrast, Ms Jeffrey’s approach was more organisational, focusing more on program responsibility and assessing where programs ought be managed. For instance, in her evidence Ms Jeffrey noted concerning the “Reds” and “Rabbitohs” sponsorships, that while there had been discussion on the return on investment, her view was that if they were going to invest in major sponsorships in the future they needed to consider how they were managed. The focus of her sponsorship strategy was whether the company needed a role that was totally dedicated to managing sponsorships, especially major sponsorships, rather than having sponsorships as a task within a role. Although Ms Jeffrey was never expressly invited to comment upon the commercial impact of any of the matters undertaken by the Public Affairs department, the manner of her answers in response to generic questions asked of her compared to Ms Keighery plainly illustrated the contrast in their approach to these issues.
In order to further the alignment of the new Corporate Communications Group with the demands of the new corporate strategy, Ms Keighery decided that differing responsibilities were to be placed on the new Communications Group following the 2010 restructure. She considered that the new Corporate Communications Group required a more senior staffing structure than had existed in the Public Affairs department. Additionally, it needed a team that could communicate effectively with business and the financial media and understand the financial dynamics of the business, with strong experience in dealing with the media at that level. By late 2010 she had finalised the structure of the new Corporate Communications Group to create the more senior team envisaged and focussed on Virgin’s new corporate strategy. It comprised:
a.One level 5 position – Group Executive – Corporate Communications (her position);
b.Three level 3 manager positions, being:
i)Manager Corporate Communications (held by Mr Lippiatt, previously Public Affairs Manager);
ii)Manager Corporate and Internal Communications (held by Ms Thomson, who was promoted from her contractual role as Media and Public Affairs Specialist); and
iii)Manager – Public Relations (held by Ms Bolger, although she was on maternity leave and was not temporarily replaced in the position);
c.Three level 2 Specialist Adviser positions, being:
i)Consumer Public Relations Adviser (a role that was then left unfilled in view of the uncertainty as to whether the role would be needed once the new structure of the Corporate Communications Group had been implemented); and
ii)Internal Communication and Community Adviser (held by Angela Baldwin, formerly the Internal Communication Adviser).
d.Three level 1 administration and coordinator positions, being:
i)Corporate Communications Coordinator (held by Louise Simpson, formerly the Promotions, Sponsorship and Events Co-ordinator);
ii)Executive Assistant to the Group Executive (held by Ms Lauren Blank, formerly Personal Assistant to the General Manager – a role she filled while Ms Vines was on maternity leave); and
iii)Consumer Public Relations Coordinator (a position that would not be filled immediately because of uncertainty as to whether the role would be needed once the new Corporate Communications Group had been implemented).
Upon implementation of the new structure, a significant number of the new operational positions were not filled. For instance, the level 2 position of Specialist/Adviser and the level 1 position for Consumer Public Relations Coordinator each remained unfilled. The two earlier specialist adviser positions, Public Affairs Specialist and Promotions and Sponsorship Specialist, disappeared; their functions either ceased were absorbed by other personnel. These positions had been formerly occupied by the applicants and are subject to further discussion below. The role of “Internal Communications Coordinator” was also not carried into the new structure and that position was not replaced when its former holder, Ms Jo O’Donnel, resigned from her role. The level 1 role held by Ms Jolie Mather ceased to be under the restructure and she was transferred to a different group within Virgin. Finally, the level 1 position held by Ms Jennifer Vines and subsequently assumed by Ms Lauren Blank continued, although Ms Vines was subsequently transferred to another position in Virgin.
The executive management team met with LEK on 30 June 2010 to settle the final structure of the new Virgin. Mr Borghetti gave a presentation to the executive management team at that meeting and reiterated that each Group Executive was responsible for designing their own group’s divisional structure in conjunction with LEK. The structure was formally announced that day to all staff by an email from Mr Borghetti and the implementation plan for the restructure was formally emailed to Ms Keighery at 4:51pm on 30 June 2010 by Ms Royston Lim of LEK.
It is against that broad background that Ms Aitken was informed of her redundancy and her employment was terminated on 28 June 2010. Ms Vandeven was informed of her redundancy and her employment was terminated on 30 June 2010. I will now turn to consider common legal issues.
Contractual Terms Governing the Applicants’ Employment
There was some dispute between the parties concerning the terms of the contract. However, at trial Virgin accepted that its written policies and procedures, in particular the Parental Leave Policy and Redundancy Policy, were incorporated into the contractual arrangement between the parties[3].
[3] Although the matter was not contested the policy documents do not always enjoy contractual status: see discussion in Gramotnev v Queensland University of Technology [2013] QSC 158 (19 June 2013) and Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSC 377 (24 July 2013).
Concerning the implied term of trust and confidence, Virgin initially denied that allegation on the grounds that there was no basis in law for such an imputation. However, at trial Virgin accepted that there may be implied into a contract of employment an implied obligation of good faith: Mahmud v Bank of Credit & Commerce International S.A. [1998] AC 20 (Mahmud v B.C.C.I.). The allegation of breach of that term was not pursued by the applicants in respect of their termination. They did however contend that conduct through the course of their employment, by taking the adverse action alleged in the pleadings, did constitute breaches of the implied term of trust and confidence. They particularly pointed to Virgin’s failure to return each of them to their pre-parental leave positions and grant flexible work arrangements. In Mahmud v B.C.C.I, Lord Nicholls of Birkenhead observed at [35]:
“… The trust and confidence required in the employment relationship can be undermined by an employer, or indeed an employee, in many different ways. I can see no justification for the law giving the employee a remedy if the unjustified trust destroying conduct occurs in some ways but refusing a remedy if it occurs in others. The conduct must, of course, impinge on the relationship in the sense that, looking at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all circumstances.”
For reasons which follow, given my findings of fact no breach of that implied term can be made out in either case.
It was further contended for the applicants that Virgin’s policies should be imported into their contracts by reason of the “safety net contractual entitlements,” within the meaning of that term as provided for under the FW Act.
A “safety net contractual entitlement” is defined by s.12 of the FW Act to mean:
“… An entitlement under a contract between an employee and an employer that relates to any of the subject matters described in :
a)Subsection 61(2) [which deals with the National Employment Standards]; or
b) Subsection 139(1) [which deals with modern awards].”
Section 61(2), in addressing National Employment Standards (NES), provides for minimum standards in respect of “(c) parental leave and related entitlements (division 5),” and “(i) notice of termination and redundancy pay (division 11).”
Subject to the matters discussed below there is no issue that matters addressed in Virgin’s policies could be incorporated into the governing arrangements by operation of the NES. However that matter is subject to some limitation as provided by the FW Act.
Section 139 (1) concerns modern awards which are governed by Chapter 2 Part 2-3 of the FW Act. No reference was made to any particular modern award governing the employment of the applicants. In fact, the applicants appear to have been employed pursuant to an enterprise agreement. Accordingly, no modern award would apply: s.57(1) FW Act. However, even if there were a modern award covering the applicants, the extension of Virgin’s policies to them pursuant to such a modern award is itself subject to the FW Act.
In respect of its parental leave Virgin accepts that such entitlements do constitute a safety net contractual entitlement as provided for within s.61(2)(c) FW Act. However, notwithstanding the provision for their application provided for by s.61(2)(c) FW Act, their ambit is limited by operation of Division 5 of that Part (Part 2-2) unless a broader application was provided for by the inclusion of additional arrangements as permitted by s.139(1)(b) FW Act. Here the ambit was said to extend to incorporate the matters provided for by Virgin’s Parental Leave Policy.
Parental leave and related entitlements are matters which can be provided for in general terms by s.139 except if those matters are addressed as part of the NES in Chapter 2 Part 2-2 Division 5. As those matters were expressly addressed in the NES, they could not be addressed as part of a modern award except as otherwise provided for in that Division: Chapter 2 Part 2-3; s.136(2)(b) FW Act. They are not. Accordingly, in this case the applicants’ entitlements were limited to their contractual entitlements and the maternity arrangements provided for by the NES.
Concerning redundancy entitlements, Virgin denies that the claim in respect of “redundancy entitlements” falls within the safety net contractual entitlements. It submits that the reference in s.61(2)(i) is limited to “redundancy pay.” In that sense it contends that the term ‘redundancy’ is employed in an adjectival sense and not as a noun. Virgin contends that the term “redundancy” informs the noun “pay,” which differs to the much broader term “entitlements” provided for in Virgin’s Redundancy Policy as alleged in Ms Aitken’s claim.
Given the applicants’ reliance upon the statutory provision to inform their rights in respect of this matter, I accept Virgin’s submission. The applicants are entitled to “safety net contractual entitlements” in respect of a redundancy payment only. In so far as they have alleged for “entitlements,” they have no statutory entitlement beyond the matter of redundancy pay and any “entitlements” beyond pay must be founded in contract or a modern award. They are not part of the NES.
Additionally, in my view there is no basis for a safety net contractual entitlement to redundancy benefits pursuant to s.139(1) FW Act. Irrespective of whether the applicants’ employment is governed by a modern award or otherwise, neither s.139(1) or any other provision contained within s.139 addresses redundancy entitlements. Section 139 is expressed in permissive terms. It enables parties to agree terms that may be imported into modern awards subject to the other matters addressed in Part 2-3, Division 3. Redundancy entitlements do not appear to be covered in any provision of s.139 and are material only insofar as any such term must not contravene a term of a modern award, of which in this instance there are none alleged. It follows that those provisions do not support her contention for a safety net contractual entitlement. Accordingly, in this case the applicants’ entitlements were limited to their contractual entitlements and the redundancy pay provided for by the NES. No other basis for that claim was advanced.
In summary, the applicants’ contractual entitlements comprise:
a.The written agreement dated 18 May 2006 as amended by subsequent remuneration reviews;
b.The written policies and procedures of Virgin including particularly the Parental Leave Policy and the Redundancy Policy;
c.An implied term of trust and confidence;
d.A safety net contractual entitlement in respect of parental leave; and
e.A safety net contractual entitlement in respect of redundancy pay.
Basis for Action
The applicants seek relief against Virgin for both breach of contract and for alleged contraventions of the FW Act, and the remedies available in respect of them.
To bring an action under the FW Act it is necessary to demonstrate that the employer took adverse action against the employee because of the employee’s workplace right. Specifically, s.340(1) of the FW Act provides:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.”
Relevantly s.342 of the FW Act provides that a person takes adverse action against another person, in the context of an employer against an employee, if the employer:
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
| Meaning of adverse action | ||
| Item | Column 1 Adverse action is taken by ... | Column 2 if ... |
| 1 | an employer against an employee | the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice; or (d) discriminates between the employee and other employees of the employer. |
Accordingly, each applicant must establish objectively that she had:
a.A workplace right or exercised a workplace right or proposed to exercise a workplace right for the purposes of s.341 of the FW Act; and
b.That adverse action as defined had been taken by Virgin against her: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [161]-[162]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 at [328]-[332].
Workplace Right
The term “workplace right” is defined in the FW Act. Section 341(1) provides:
“341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.”
These rights are in addition to their contractual rights. Given that the applicants also claim for compensation and the imposition of penalties for contravention of the FW Act, the precise ambit of their workplace rights requires definition.
The applicants allege, and Virgin accepts, that pursuant to the FW Act they had the following workplace rights:
a.The right to request flexible working arrangements; s.67 FW Act
b.The right to parental leave; s.67 FW Act
c.The right to be provided with information about, and the opportunity to discuss, any decision that would have significant effect on the status, pay or location of the applicants’ pre-parental leave position; s.83(1) FW Act
d.The right to make a complaint and or enquiry in relation to their employment; s.341(1)(c) FW Act
e.The right to return to their pre-parental leave position; s.84(a) FW Act
f.If the pre-parental leave position no longer exists, the right to return to an available position for which the applicants were qualified and suited, nearest in status and pay to the pre-parental leave position; s.84(b) FW Act
g.The right to an entitlement which is a safety net contractual entitlement; s.61(2) FW Act
h.The right not to be discriminated against on the basis of, inter alia, family or carer’s responsibility and pregnancy; s.351 FW Act, s.14 Sex Discrimination Act1984 (Cth) and
i.The right to the benefit of the NES; s.61(2)(c) and (i) FW Act.
Each of these rights related to a workplace law, namely the FW Act: s.12 FW Act.
Further, they contended the rights to an entitlement under the Parental Leave Policy and the Redundancy Policy were workplace rights on the basis that the terms of the policies concerned not only matters which were entitlements under the contract of employment but also safety net contractual entitlements because they related to the subject matter described in s.61(2) and or s.139 of the FW Act. These matters are, by default, safety net contractual entitlements: s.12 FW Act. Section 542 provides that, for the purposes of compliance and enforcement, a safety net contractual entitlement of a national system employee also has effect as an entitlement of the employee under the FW Act. Accordingly, the applicants’ submit that the right to enforcement of the Parental Leave Policy by the FW Act constitutes an entitlement to “the benefit of … a workplace law” and it is thereby a “workplace right,” to which they have the benefit of protection by operation of s.340 FW Act. It followed, in their submission, that they were enforceable under the FW Act: s.542 and s.543 of the FW Act.
Virgin denied that the applicants had workplace rights pursuant to its Parental Leave Policy or its Redundancy Policy where such rights extended beyond the ambit of the FW Act. It contended that those extended rights did not fall within the definition of a workplace right as provided for in s.341 and that those rights were contractual only.
I generally accept the applicants’ submission on this matter. However, the submission can only hold up if the relevant policy in each instance constitutes part of the NES. As earlier discussed, the parental leave entitlements form part of the NES: s.61(2)(c). Section 139(1)(h) provides that leave and related issues may be included in modern awards provided that they are not inconsistent with the NES. The FW Act itself is a workplace law: s.12 FW Act.
I have already dealt with this issue in part when considering contractual entitlements. In the context of this submission however more needs to be said.
Prima facie, the Parental Leave Policy does constitute a policy concerning parental leave as an entitlement. However, it should be noted that Virgin’s policy provides for greater entitlements than those in Part 2-2 Division 5 FW Act. Whether or not any issues arise by reason of that matter need not be resolved, because neither of the applicants’ complaints extend beyond matters provided for in the policy, which in turn mirror their entitlements under the FW Act.
However, a different situation arises concerning the termination benefits which concerned both applicants. The terms of Part 2-2 Division 11 differ significantly from the Virgin Redundancy Policy in one significant aspect: consultation. Division 11 of the FW Act simply provides that the employer must not terminate an employee without notice. The termination policy provides for a process of consultation. The applicants’ contend that Virgin failed to conform with the consultation process provided for in its policy.
Accordingly, the issue to be resolved is whether the expanded form of Virgin’s policy on this point incorporating “consultation” constitutes a “notice of termination and redundancy pay” matter for the purposes of s.61(2)(1) (I have earlier determined that s.139 does not apply to Virgin’s Redundancy Policy).
In my view, the terms of the policy which extend beyond the provision incorporated into to the NES do not form part of them.
I consider the terms of the FW Act to be clear. Section 61 states that Part 2-2 (which includes the various divisions) “sets minimum standards that apply to the employment of employees which cannot be displaced …” The notion of minimum standards is reinforced by the Guide to Part 2-2 contained in s.59, which itself is entirely consistent with the objects provision of the FW Act. In s.3(b) and (c) the objects provision of the FW Act provides for “a guaranteed safety net for relevant and enforceable minimum terms and condition.”
It is the term “safety net” which in my view emphasises the fact that the FW Act is principally concerned with minimum standards and affords protection only in respect of minimum conditions. Not only does this construction satisfy the objects provided for by the Act, but, for instance, it also gives meaning and purpose to s.136(2)(b). A modern award that expanded the terms governing the employment relationship beyond the core statutory meaning would be otiose if the NES had an enlarged operation. Furthermore, the term “standard” as employed in s.51 of itself suggests “an approved model” as the term is defined.[4] That model is particularly detailed in the relevant division of Part 2-2 FW Act.
[4] Macquarie Dictionary (Macquarie, 3rd ed, 1997).
The provisions in the policy for consultation take the subject of redundancy beyond the scope of Division 11. Additionally, they are not covered by a modern award because they were employed subject to an enterprise agreement: s.51(1) FW Act. In my view that term is not part of the NES and it follows that any breach of Virgin’s policy in respect of that matter, if a breach can be established, is a matter of contract but does not constitute the breach of a workplace right. Virgin’s Redundancy Policy providing for consultation does not constitute part of the NES and cannot constitute a workplace right as defined.
Adverse Action
The adverse action complained of is alleged to be either injury to each of the applicants in their employment, alteration of their position in their employment to their prejudice or, discrimination between them and other employees. Each of these are a species of adverse action under the FW Act. These concepts are constructed broadly and have been explained in cases following Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1. At page 18 Brennan C J, McHugh, Gummow, Kirby and Hayne JJ referred to injury in employment as a term which “covers injury of any compensable kind”; and referred to alteration to an employee’s position to the employee’s prejudice as:
“… a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
More recently in Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 Kenny J said that before a provision such as Item 1 of s.342(1) can apply, it must be possible to say of an employee that he or she is in a worse situation after the employer’s acts than before them, that the deterioration has been caused by those acts and the acts were intentional, in the sense that the employer intended the deterioration to occur.
It is now accepted that when determining whether there had been an injury or prejudicial alteration of the position it is necessary to identify and compare the employee’s “position” before and after the alleged adverse action and determine whether it was altered to an employee’s detriment as a result of the alleged adverse action: McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at [349].
An injury may include a reduction in an employee’s take home pay, a change in an employee’s shifts and/or hours or a diminution of the opportunity to obtain work. As Finkelstein J observed in Community and Public Sector Union v Telstra Corp Ltd (2000) 99 IR 238 at [20], “injury is concerned with an actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in his capacity as an employee …”
The applicants submitted that to “alter” the position of an employee to the employee’s prejudice has been determined to be a broader category than “injury” in employment. The authorities support that contention.
As Evatt J noted in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290 the words “or alter his position to his prejudice” were added to the Conciliation and Arbitration Act 1904 (Cth). In that case his Honour was considering the matter of injuring an employee in his employment whist he was engaged in duties associated with his industrial organisation. Addressing the issue of altering to prejudice, he observed:
“…the words were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment”
He continued at 291-292:
“… It is possible to read the word ‘position’ in a narrow way merely as referrable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word ‘position’ should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment…”
In the Employment Advocate v National Union of Workers (2000) 100 FCR 454 the Court considered the meaning of “prejudicial alteration” in the context of the freedom of association provision of the Workplace Relations Act 1996 (Cth). At [43], Einfeld J observed:
“It is apparent that as a matter of general approach, a somewhat generous interpretation of what constitutes “injury” or “prejudice” has been adopted by the courts, although it is clear too that employment is not a general condition, and the circumstances of the particular employment are critical to any finding. Prejudicial alteration is plainly wider than the notion of “injury” and includes that notion. It is a broad additional category.”
In that decision a number of single judge decisions were examined, which illustrated the very wide ambit applied to the words by courts. His Honour however noted a word of caution at [46] that, “No exhaustive catalogue of possibly injurious circumstances could or should be attempted.” It appears however that the words are afforded a very liberal and broad interpretation.
Concerning the term “prejudicial alteration,” the authorities support the contention that that term covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
In Jones v Queensland Tertiary Admission Centre Ltd (No 2) [2010] FCA 399, Collier J stated at [64]-[65]:
“The term “alters the position of the employee to the employee’s prejudice” appears to refer to an intentional act directed to an individual employee or prospective employees: BHP Iron Ore Ply Ltd v Australian Workers’ Union (2000) 97 IR 266 at 275. Further, in Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, where an email was sent within the employer organisation by management proposing alterations to the basis upon which redundancies would be offered to employees, the Full Court held that the employer had altered the position of the relevant employees to their prejudice even where there was no evidence that the email had been the subject of action. In that case the Full Court considered that circumstances which result in the employment of employees becoming less secure, in a real and substantial manner, than it had been previously, constitutes an alteration in their position to their prejudice.”
It thus appears that the concept of “prejudicial alteration” includes prejudice extending beyond legal injury to which the Court has usually applied the ‘before and after’ test.
The types of conduct that have fallen within injury in employment or alteration to one’s prejudice have included discriminatory allocation of less congenial shifts or rosters. A change to working arrangements (in the relevant case, a transfer to a different position) was found by Marshall J in Byrne v Australian Ophthalmic Supplies (2008) 169 IR 236 at [26] to be:
“… “an injury” and “an alteration” because it was part of a plan devised by [the employer] to make the [employee’s] working life so intolerable that she would have no alternative but to resign. It was nasty and egregious conduct and involved an abuse of power by [the employer] in a relationship where the employer held all the power and [the employee] was doing no more than asserting her right to correct entitlements.”
However, one caveat upon the unlimited ambit of alteration to prejudice appears to be that the alteration must be “real and substantial, rather that [in a] merely possible or hypothetical way”: Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at 187.
Finally, in respect of discrimination the FW Act does not provide any definition of that term and the term “discriminates” as it appears in s.342(1)(d) is not defined. For this form of adverse action to exist there is the requirement that the employer “discriminates between the employee and other employees of the employer.” The FW Act does not specify whether the term “discriminates” incorporates both forms of discrimination i.e. direct discrimination (less favourable or unfavourable treatment) and indirect discrimination (where, for example, an imposed requirement is not or cannot be complied with and/or disadvantages people who have a particular attribute and where the requirement is not reasonable).
However I accept that it appears that s.342(1)(d) requires a comparison of the treatment of the employee as between other employees, which is consistent with the differential treatment encapsulated by direct discrimination.
It follows that in respect of the alleged breaches it is necessary for the applicants to demonstrate that their respective positions were affected to their detriment in a real and substantial manner, and that such conduct was as a consequence of an intentional act directed toward them. Upon establishing those factors, the reverse onus of proof under s.361(1) of the FW Act arises: Board of Bendigo Regional Institute of TAFE and Further Education v Barclay and Anor (2012) 290 ALR 647.
Sex Discrimination Claim
In addition to the general protections complaints made by the applicants, each applicant also sought to characterise the circumstances of complaint as conduct in contravention of s.351 FW Act. The complaint was not particularised beyond and allegation on the part of the applicants that Virgin took adverse action because of their pregnancy and or family responsibilities.
The relevant anti-discrimination law provided for in s.351 FW Act is the Sex Discrimination Act 1984 and in particular s.7 (discrimination on the ground of pregnancy), s.7A (discrimination on the ground of family responsibilities) and s.14 (discrimination in work).
The approach of the applicants was to allege the conduct complained of by each was also in contravention of the FW Act by reason of Virgin’s conduct also being alleged to be in contravention of the Sex Discrimination Act 1984. Although formally claimed the allegations were ambit in nature and parallel to the applicants complaints made generally against Virgin.
For reasons which have been detailed below I am satisfied that the conduct complained of was undertaken by Virgin solely for operational reasons. Further, and notwithstanding the operational imperatives driving its decisions, I accept the evidence of the respondent’s principal witnesses such as Ms Keighery and Ms Armstrong that neither gender, pregnancy or family responsibilities were material features in their decision making processes. On my finding those matters were entirely incidental and irrelevant to the decisions complained of and for those reasons the complaints under s.351 FW Act and the Sex Discrimination Act 1984 fails.
Reverse Onus
Accepting that the applicants have made credible complaints, it is incumbent upon Virgin to establish that the action taken was with an intent that was other than a reason or intent that would constitute a contravention of the Act: s.361(1)(b). In that regard, Virgin bears the onus of proof and needs to establish that its subjective intent was not for a proscribed reason or purpose: Board of Bendigo Regional Institute of TAFE and Further Education v Barclay (supra). Given that the circumstances of this complaint are better able to be explained by Virgin, I consider it incumbent upon them to displace the presumption. This is consistent with the approach expressed by Moore J in Rojas v Esselte Australia Pty Ltd (No 2) (2008) 177 IR 306 at [46] – [50], followed in Jones v Queensland Tertiary Admission Centre Ltd (supra) at [10].
However, it is still necessary for the applicants to demonstrate the causal link before the onus shifts: Jones v Queensland Tertiary Admission Centre Ltd (supra) at [10].
Ms Aitken’s Claim
Ms Aitken’s Relevant Background
Contract of employment
Ms Aitken commenced employment with Virgin on 31 March 2003, initially as cabin crew. She subsequently took up the position of Public Relations and Promotions Specialist from 3 January 2005 in a temporary position, filling a maternity leave vacancy. In about 2006 the then General Manager, Public Affairs, Ms Heather Jeffrey, split her own position to engage Ms Aitken in a full-time role responsible for sponsorships. At that time sponsorships were controlled by the Public Affairs Group and not the Marketing Group.
In broad terms, sponsorships within Virgin fell into two classes. First were sponsorships which involved money. Those sponsorships were managed within the Marketing department. The second class of sponsorships involved sponsorships supported by contract arrangements, usually free or subsidised flights. These were managed within the Public Affairs Group. The Sponsorships and Promotions section was within Ms Bolger’s Public Affairs and Media Relations department.
Ms Aitken’s initial contract of employment in the position of Promotions Sponsorship Specialist within the Sponsorships and Promotions section was dated 18 May 2006. It was varied by remuneration reviews dated 1 January 2007, 1 July 2007, 1 July 2008 and 1 July 2009. In addition, Ms Aitken claimed that the contract incorporated the written policies and procedures of the respondent, particularly the parental leave and Redundancy Policies. It was also alleged that the contract incorporated an implied term that Virgin would not conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between itself and Ms Aitken. Finally, Ms Aitken alleged that the contract incorporated the safety net contractual entitlements within the meaning of that term for the purposes of the FW Act. Specifically, they were the parental leave and redundancy entitlements related to subject matters described in s.61(2) of the FW Act and/or s.139(1) of the FW Act.
It follows that for current purposes the issue to be resolved is whether or not Virgin took all reasonable steps to consult with Ms Vandeven about her proposed redundancy within a reasonable time of having made its decision.
In finding and accepting Ms Keighery’s version of events of 30 June in preference to those of Ms Vandeven, I consider that the circumstances and ambit of Ms Vandeven’s discussion with Ms Keighery on that day did not reflect a reasonable opportunity for consultation in terms provided for by authority about the effect of Virgin’s decision in respect of her redundancy. For the purposes of the allegations of breach of the Redundancy Policy, there was plainly no consultation as required and Virgin thereby breached its contract with Ms Vandeven.
Damages – Ms Vandeven
For the reasons given above I am not satisfied that Virgin contravened the FW Act as alleged by Ms Vandeven. It follows that she has no entitlement to any of the civil remedies provided for in Chapter 4 of the FW Act.
I am however satisfied that Virgin breached its contract of employment with Ms Vandeven insofar as it breached that part of its Redundancy Policy, which required it to afford proper consultation before she was made redundant.
As I observed when dealing with Ms Aitken’s claim, there was limited evidence addressing the question of what proper consultation may have permitted in the circumstances. However, for reasons I have provided earlier, I accept that no more than a week’s allowance should be made for this process.
As with Ms Aitken, it was submitted that Ms Vandeven should have been kept in employment until September or October 2010, when the entire restructure process was finalised. She too contended that there was evidence of there being a redundancy pool within the organisation and that had Ms Aitken been placed in the redundancy pool, even if she was ultimately determined to be redundant, a final decision concerning redundancy would have at least been held off until that time. It follows, her counsel contended, that by reason of Virgin’s failure to consult she was denied ongoing employment until a point in time when the organisation could properly make a redundancy decision.
As for Ms Aitken, whilst conceptually that submission for Ms Vandeven was available, the fact remains that given her limited skill set there was no other position available within the organisation for her. Although not expressly stated, it is plain that redundancy pools could only serve any useful purpose in the context of employees who had a broad range of skills which could be reallocated within the organisation. The more specific the skill set, the less likely appointment to a general pool could be justified. The only basis upon which a person such as Ms Vandeven, who possessed a specific skill set, could claim an entitlement to appointment to a general pool would be in the event that she was willing to take a lower skilled and/or lower level role within the organisation. She did not give any evidence of her willingness to assume a lower level role. In the circumstances, having regard to her skill set and the limited number of roles available in the organisation to which her skill set which was compatible, I am satisfied that there would have been no obligation to place her in a general pool in the absence of an express request to do so. There was no evidence of any such request.
There is nothing in the evidence to suggest Ms Vandeven was paid otherwise than in accordance with her statutory and contractual entitlements upon her redundancy.
It follows in my view that, by reason of Virgin’s breach of contract in failing to permit Ms Vandeven an opportunity to engage in consultation in respect of her redundancy, her notice of redundancy may have been delivered by up to a week earlier than it should have under the contractual obligations. In the circumstances I consider her contractual damages for this breach to equate with one week’s loss of pay.
I certify that the preceding three hundred and ninety-seven (397) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 8 August 2013
CORRECTIONS
Change citation from “Virgin Blue Airlines” to “Virgin Australia Airlines”.
Change name of the Respondent in each case from “Virgin Blue Airlines” to “Virgin Australia Airlines”.
Paragraph 7 delete “Virgin Blue Airlines” and replace with “Virgin Australia Airlines”.
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