Aitken v Virgin Australia Airlines and Vandeven v Virgin Australia Airlines

The Federal Court of Australia considered two consolidated proceedings brought by Ms Aitken and Ms Vandeven against Virgin Australia Airlines. Both applicants alleged they had been subjected to adverse action and unlawful discrimination by their employer. Ms Aitken claimed her position was altered to her prejudice and she was dismissed for redundancy due to exercising a workplace right, specifically by requesting parental leave. Ms Vandeven alleged she was dismissed for exercising a workplace right related to her pregnancy and her right to flexible work arrangements, and that this constituted discrimination on the grounds of pregnancy.

The court was required to determine whether Virgin Australia had taken adverse action against either applicant for a prohibited reason under the *Fair Work Act 2009* (Cth). Specifically, it needed to ascertain if the adverse actions were taken because the applicants had, or proposed to exercise, a workplace right, or because of their pregnancy. The court also had to consider whether Virgin Australia breached the applicants' employment contracts by failing to adhere to its own policies, and if so, what damages were payable.

In reaching its decision, the court analysed the applicants' employment contracts, which incorporated Virgin Australia's policies. It found that Virgin Australia had failed to consult with Ms Aitken regarding changes to her pre-parental leave position, a failure that contravened its own policies and amounted to a breach of contract. The court also determined that Virgin Australia had taken adverse action against Ms Aitken by dismissing her for redundancy, and that a significant reason for this dismissal was her request for parental leave, thereby contravening section 340(1) of the *Fair Work Act 2009*. Similarly, the court found that Virgin Australia had taken adverse action against Ms Vandeven by dismissing her, and that a significant reason for this dismissal was her pregnancy and her requests for flexible work arrangements, constituting a breach of section 351(1) of the *Fair Work Act 2009* and unlawful discrimination under the *Sex Discrimination Act 1984* (Cth).

The court ordered Virgin Australia to pay compensation to both Ms Aitken and Ms Vandeven for the losses they suffered as a result of the unlawful actions.