Copley v Qantas Airways Limited
[2025] FedCFamC2G 290
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Copley v Qantas Airways Limited [2025] FedCFamC2G 290
File number(s): SYG 1630 of 2022 Judgment of: JUDGE DOUST Date of judgment: 28 February 2025 Catchwords: FAIR WORK – leave to amend – application to vacate trial dates Legislation: Fair Work Act 2009 (Cth) ss 190, 340, 340(1)(a), 340(1)(b), 343, 351, 352, 772(1)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 7.01, 14.01
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 176(2), 190
Court Procedures Rules 2006 (ACT)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101
Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821
Expense ReductionAnalysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Save Wallum Incorporated v Clarence Property Corporation Limited (No 2) [2025] FCA 56
Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199; [2016] FCAFC 2
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 26 February 2025 Place: Sydney Counsel for the Applicant: Mr B Eurell Solicitor for the Applicant: Mr S Kelly, Ashley Francina Leonard and Associates Counsel for the Respondent: Mr R Dalton KC, with Mr N Burmeister Solicitor for the Respondent: Ms K Srdanovic, Ashurst Australia ORDERS
SYG 1630 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID COPLEY
Applicant
AND: QANTAS AIRWAYS LIMITED ACN 009 661 901
Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed 24 February 2025 be dismissed.
2.The applicant has leave to amend [86] of Part G and Part H to the Form 2 in the manner of the draft attached to his application in a proceeding filed 23 February 2025, to include the comparators identified at paragraphs (a) to (f) and (k) to (r) thereto.
3.The application in a proceeding filed 23 February 2025 otherwise be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
BACKGROUND
The applicant has filed two applications for interlocutory orders, including an order vacating the hearing dates, in circumstances where the final hearing in this matter is set down to commence in less than two weeks. The following summary of the applicant’s case has therefore been prepared in circumstances of some haste, and has been taken from one of an affidavit made by the applicant on 17 February 2023.
The applicant, an airline pilot, commenced the present proceeding in November 2022, seeking relief in respect of the termination of his employment by the respondent on March 2022. The applicant had been employed by the respondent since 2003.
The applicant had a diagnosis of a cancer in 2016, and received monthly payments under the Loss of Licence (LOL) plan, a scheme which provide benefits analogous to disability insurance. The applicant had been ready to return to work in about March 2020 when the COVID pandemic intervened, and all Qantas pilots were stood down until March 2021. In June 2021, he was medically certified to return to flying. During 2021 the applicant was in the process of returning to the workplace, which required that he undertake further training.
The applicant alleges that he commenced ground training on 16 August 2021 and completed it on 12 September 2021, and was about to travel to Melbourne to undertake his flight simulator training, when he commenced sick leave following an anomaly in his annual PET scan.
At around that time the respondent introduced its COVID-19 Vaccination Policy (Policy).
The Policy, dated 20 September 2021, provided for pilots to be fully vaccinated, and provide evidence of same by 15 November 2021 (the compliance date). A different date was nominated for other categories of staff.
However, cl 3.5 of the Policy provided that employees who were stood down were to be fully vaccinated and provide evidence of same by either the compliance date, or their first duty, work day, or shift, whichever is later.
The respondent ultimately terminated the applicant’s employment by letter dated 25 March 2022. That letter recites the employer’s reasons in some detail, which for present purposes may be summarised as that the applicant had failed to comply with the Policy by failing to be fully vaccinated with an approved COVID-19 vaccination, and to provide evidence of same, by the compliance date applicable to him, being 5 December 2021.
The applicant alleges in his claim that the respondent took adverse action against him prior to his termination, and such conduct contravened the protections in Division 3 of Part 3-1 of the Fair Work Act 2009 (Cth) (the Act), namely, that in s 340(1)(a) (the protection against adverse action taken because a person has a workplace right) and s 343 (protection from coercion in respect of the exercise of a workplace right) as follows:
(1)The respondent took adverse action against him by alteration of his position Qantas was aware that the applicant was not fit for duty and was eligible for personal and sick leave, but that Qantas determined that he should be recorded as having a “fit for duties” status and treated as not eligible for sick leave in order to impose the requirements of the Policy and justify the termination of his employment for non-compliance. The applicant alleges that it did so because he had a right to claim the LOL insurance;
(2)The respondent took adverse action against him by alteration of his position, by threatening him with termination for non-compliance with the Policy when the terms of the Policy did not apply to him and the applicant had not failed to comply with the Policy. The applicant also characterised this as an “injury” to the applicant. The applicant alleges that it did so because he had a right to claim the LOL insurance;
(3)The respondent coerced the applicant, contrary to s 343 of the Act, by the alteration of his position as set out above, and by the threats to dismiss him in order to negate his choice to remain on sick leave, claim LOL insurance, engage in dispute resolution (presumably a reference to the grievances he had lodged) and to return to his position if he recovered from his illness;
The applicant also alleges that his termination contravened s 340(1)(b) of the Act. He alleges that the stated reasons for the termination were not the real reasons for his termination, but were that the applicant had, and/or had exercised, and/or proposed to exercise his rights to:
(a)paid sick leave or personal leave under two enterprise agreements applying to Qantas pilots (Agreements) (although there is a dispute that one of those agreements applied to the applicant’s employment); and/or
(b)make a claim for a lump sum payment of up to $1.19 million under the LOL scheme, and exercise other rights to take long term leave and be reemployed under the Agreements and the LOL scheme;
(c)make an application for re-employment pursuant to an enterprise agreement if he were to be dismissed for medical reasons;
(d)receive a response to grievances he had lodged on 14 and 15 February and 23 and 24 March 2022, and have those resolved before he was terminated; and
(e)avail himself of the processes and procedures provided for in the enterprise agreements.
The applicant also alleges that Qantas discriminated against him, because of his physical disability, contrary to s 351 of the Act.
The applicant’s claim of discrimination because of his disability is articulated as follows:
85.Qantas discriminated against the applicant by taking any or all of the following adverse actions:
a. altering of the position of the applicant to his prejudice by purporting to impose the requirements of the Policy on him while he was on sick leave (with a genuine medical condition); and/or.
b. treating the applicant differently from other employees who had either not received or even refused a vaccine, but who were not suffering from his physical condition including by not providing him with reasonable accommodation, sick leave or carer’s leave; and/or
c. Refusing to provide the applicant with time to recover and return to flight status before enforcing compliance with the Policy;
d. Refusing to provide the applicant with reasonable accommodations under the Policy;
e. Terminating the applicant for purported non-compliance with the Policy in circumstances where he was entitled to take genuine personal leave for treatment of a physical condition.
86.At least three other employees of Qantas received an accommodation under the Policy:
a. Pilot A - a Captain who was on Long Term Sick Leave for an extended period and stood down on 8 November 2021. Qantas determined that he was non-compliant with policy on 15 November 2021 and he took sick leave from 6 December 2021. Upon his recovery, Pilot A became compliant with policy and continues to be employed as Captain. That pilot was not eligible for and/or did not apply for a benefit under the Qantas LOL scheme.
b. Pilot B – a First Officer who refused to receive a vaccination and was placed on Leave Without Pay (LWOP). At expiration of LWOP, Qantas extended LWOP period and the pilot has returned to flying duty unvaccinated under a ‘special arrangement.’ That pilot was not eligible for and/or did not apply for a benefit under the Qantas LOL scheme.
c. Flight Attendant A – issued a non-compliance notice while on worker’s compensation. Qantas permitted the employee to comply with the Policy at a later time and return to full duties. That flight attendant was not eligible for and/or did not apply for a benefit under the Qantas LOL scheme.
The applicant also alleges that:
(a)he was terminated, contrary to ss 352 and 772(1)(a) for his temporary absence from work because of an illness or injury;
(b)the respondent contravened the Agreements; and
(c)the respondent breached its contract with the applicant.
PROCEDURAL HISTORY
Following the commencement of the proceeding in November 2022, the period until 3 April 2024 was taken up with preliminary steps, namely an application to extend time, and an application to amend the claim. On 3 April 2024, the Court made orders for the filing and service of the parties’ affidavit evidence, and the applicant filed and served his evidence in May and June 2024, with the respondent filing its evidence in July 2024.
On 23 August 2024, the Court made orders setting the matter down for a final hearing on the question of liability in the week commencing 10 March 2025. The Court also made orders for the preparation of the matter for hearing, and for the parties to serve any notice to produce on each other by 23 September 2024, and (subject to any objection or privilege claim) to answer such notice on 31 October 2024.
The applicant gave a notice to produce to the respondent on 23 September 2024.
The notice to produce contained 35 paragraphs. For present purposes, two paragraphs are relevant:
(1)[32] which sought any document recording the existence of Qantas staff who remained unvaccinated after 5 December 2021 and who was not terminated from their employment; and
(2)[34] which sought email communications and other documents in relation to the applicant, for the period 1 September 2021 to 30 April 2022, sent or received between fourteen named persons, as well as unnamed persons in three other groups or work areas. By a later notice to produce given by the applicant on 31 October 2024, the applicant added [36], which sought email communications and other documents between a further named person and the persons listed in [34], effectively expanding the call made by the original notice to produce.
The documents sought by [32] were referable to the applicant’s allegation, relevant to his claim of discrimination contrary to s 351 of the Act, that there were “at least” three other persons who had received an accommodation under the Policy.
The documents sought by [34] appeared to be directed to unearthing documents revealing the deliberations of the respondent’s managers concerning the applicant’s management in relation to the Policy, and concerning his termination, relevant to the applicant’s claims of adverse action leading up to and culminating in his termination.
A dispute about the propriety of the notice ensued, with the calls in [32] and [34] featuring in the dispute. The respondent alleged, by letter dated 26 September 2024, that the call in those paragraphs was for documents of insufficient relevance, being used as an alternative to discovery, a fishing expedition and unduly burdensome, including for lack of specificity.
The dispute was ultimately resolved in late January 2025.
On 24 January 2025, the Court made an order, by consent, that:
By 4.00 pm on Friday, 7 February 2025 the Respondent produce to the Applicant a copy of each document falling within the scope of the Schedule to this Order (except for any document the subject of a claim of privilege).
The Schedule referred to in the Order made on that day was a subset of the documents described in [34] (as later expanded). The Schedule provided as follows:
Schedule
Email communications, documents, reports, files, correspondence or minutes from meetings sent or received by any of the following persons or inboxes (as the case may be) in relation to the Applicant during the applicable period:
Ref Person or inbox Applicable period 1 Alley, Douglas (Head of Base Operations) 1 September 2021 - 31 March 2022 2 Brill, Megan (SHR Vaccination Exemption) 1 September 2021 - 31 March 2022 3 Brown, Russell (Qantas Medical Services) 1 September 2021 - 31 March 2022 4 Buckley, Adam (Base Operations SDT) 1 September 2021 - 6 December 2021 5 Dickinson, Allen (Head of Flight Operations Systems) 30 November 2021 - 14 April 2022 6 Haigh, Douglas (Crew Remuneration Manager) 1 March 2022 - 25 March 2022 7 Hicks, Matthew (former Manager, Base Operations SDI) 1 September 2021 - 31 March 2022 8 James, Melissa (Base Operations SDT) 1 September 2021 - 31 March 2022 9 Kolar, Jennifer (now Head of People, Flight Operations) 1 September 2021 - 31 March 2022 10 Flight Operations - Aircrew Scheduling (inbox) 1 September 2021 - 31 March 2022 11 Tobiano, Richard (Chief Pilot) 30 November 2021 - 25 March 2022
On 30 January 2025, further orders were made by consent, as follows. Those orders included the following:
THE COURT DECLARES THAT:
1. Pursuant to section 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act’) and rule 14.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’), it is appropriate, in the interests of the administration of justice, to allow the interrogatories contemplated by this Order.
2. Pursuant to section 176(2) of the Act and rule 14.02 of the Rules, it is appropriate, in the interests of the administration of justice, to allow the discovery contemplated by this Order.
THE COURT ORDERS THAT:
3. By 4.00 pm on 7 February 2025 the Respondent file and serve written answers to the interrogatories contained in part A of the Schedule to this Order, together with an affidavit verifying the answers.
4. By 4.00 pm on 7 February 2025 the Respondent give discovery in accordance with Part 14 of the Rules of each document specified in part B of the Schedule to this Order.
The schedules referred to in those orders were as follows:
Schedule
Part A
(a) According to the Respondent’s records, which pilots and Flight Attendant Crew employed by the Respondent were not compliant with the Policy (as defined in the pleadings) as at 5 December 2021.
(b) As to each of the pilots referred to in sub-paragraph (a), according to the Respondent’s records, did they remain employed on 16 December 2022 (being the date that the Policy was withdrawn).
Part B
As to the Respondent's "Workday" system:
(a) All access logs, audit logs and / or activity logs which identify the name of any person who accessed the Applicant's Workday records during the period 14 September 2021 to 25 March 2022.
(b) Any documents evidencing the destruction or deletion of any document referred to in sub-paragraph (a).
The interrogatories, described in Part A of the Schedule above were referable to the call, in [32] of the notice to produce, for documents showing other persons who were not compliant with the policy and who were not terminated.
In the event, on 7 February 2025, the respondent filed an affidavit by Ms Burt, which identified some nine pilots who were not compliant with the Policy as at 5 December 2021, and four pilots who remained employed on 16 December 2022, being the date the respondent withdrew the policy. Although not presently relevant, the affidavit also identified some flight crew with the same features. At 5.25 p.m. that day, the respondent also provided to the applicant some 2,000 separate documents, apparently in satisfaction of the order made on 24 January 2025.
In the affidavit of the applicant’s solicitor, Mr Kelly, sworn on 24 February 2025 (Kelly affidavit), Mr Kelly avers that he has been undertaking a review of those documents since the week commencing 10 February 2025, and is about 90-95 percent of the way through the task. At the hearing of the applications, the applicant’s counsel made a somewhat more conservative assessment. Nonetheless it appeared that substantial progress had been made by the applicant in reviewing the material.
THE INTERLOCUTORY APPLICATIONS
In the first interlocutory application, filed on Sunday 23 February 2025 (the Sunday application), the applicant seeks an order:
Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the applicant be given leave to amend and rely on the Further Amended Part G & H Annexure to the Form 2.
Attached to the Sunday application was a document headed Part G – Further Amended Annexure A, and then Part H – Compensation – Annexure B (draft further amended pleading).
The applicant had attached a similar document to the Form 2 when he commenced the proceeding. Form 2 contains “Part G – Contravention(s) alleged”, which requests an applicant to set out in an adjacent box the grounds for the claim that the employee was dismissed in contravention of a general protection, and “Part H – remedy sought”, which requests an applicant to set out in an adjacent box “What are you asking the Court for”. The annexure to the Form 2 responded to those parts of the form.
An amended version of that document was filed on 27 June 2023, with the consent of the parties.
The applicant seeks to amend [86] of the Form 2 so that the chapeau reads as follows:
At least 25 other employees of Qantas received an accommodation under, or were excluded from the requirements to comply with the Policy:…
The new draft [86] then contains a longer list of persons (referred to hereafter as comparators), listed at (a) to (y) by name, along with a summary of their treatment. The list includes persons identified as pilots, flight attendants, one person in the flight operations department, and a person whose role is not identified.
In the second interlocutory application, filed on Monday 24 February 2025 (the Monday application), the applicant seeks:
1. An order vacating the trial presently listed to commence on 10 March 2025.
2.An order pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the applicant be given leave to replead generally and file a Further Amended Part G & H Annexure to the Form 2.
The respondent opposed both applications.
The Monday application subsumes the Sunday application. If the Court were to give the applicant leave to replead generally, there would be no need to consider the Sunday application to replead specifically.
Accordingly, it is appropriate to first address the Monday application for leave to replead generally, and for the vacation of the trial date.
Given the proximity of the hearing date, if the Court were minded now to give the applicant leave to replead generally, that would have the inevitable consequence that the trial could not proceed on 10 March 2025. The applicant has not produced any draft further pleading, and could not give a definite commitment as to when it would be produced. If the applicant were to replead, the respondent would need an opportunity to consider any amendment, and its response to it, including any evidential response. That could not feasibly be done in the time available prior to the trial.
RELEVANT PRINCIPLES
The principles governing an application to amend pleadings are uncontroversial and have been restated recently by Perry J in Save Wallum Incorporated v Clarence Property Corporation Limited (No 2) [2025] FCA 56 at [18] and following. Namely, the Court has a discretion to grant leave to amend, and must exercise that discretion in accordance with the overarching purpose. Here, that overarching purpose being that set out in s 190 of the Federal Circuit and Family Court of Australia Act2021 (Cth), which is as follows:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Her Honour went on to set out the following passage from Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821, where her Honour had earlier summarised the relevant principles:
The application of like case management principles was considered by the High Court in the context of a late application to amend pleadings in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. In particular, in Aon Risk, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the question of whether leave to amend should be granted did not simply require consideration of whether the party seeking to amend has an arguable case: at [114]. Rather, “serious consideration” must be given to other matters: at [114]. The factors to be considered were summarised by Gleeson J in Tamaya Resources (FCA) at [127] (in a passage accepted on appeal in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199; [2016] FCAFC 2 (Tamaya (FCAFC)) at [125]), and include:
1. The nature and importance of the amendment to the party applying for it: Aon at [102];
2. The extent of the delay and the costs associated with the amendment: Aon at [102];
3. The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];
4. The explanation for any delay in applying for that leave: Aon at [108]; and
5.The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];
6. The detriment to other litigants in the court: Aon at [93], [95] and [114] and Luck at [44]; and
7. Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].
As to the fifth of these considerations, the plurality in Aon Risk emphasised (at [112]) that:
limits will be placed upon [the parties’] ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
(Emphasis in the original.)
In line with this, the plurality had earlier accepted at [102] that the objectives under the Court Procedures Rules 2006 (ACT) do not require that every application for amendment be refused because it involves wasted costs and delay. Rather, “[f]actors such as the nature and importance of the amendment to the party applying cannot be overlooked.”
With respect to the considerations referred to by Gleeson J at [125](6) and (7) above, French CJ explained in Aon Risk at [5] that “the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.” Similarly, in Expense ReductionAnalysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, the Court held (at [51]) that:
In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
(Citations omitted.)
Moreover, while Aon Risk concerned the application of the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings, the High Court pointed out in Expense Reduction at [51] that “the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.” That the philosophy which informed their Honours findings in Aon Risk applies equally to s 37M of the FCA Act was confirmed by the Full Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101, at [43]. As such, the same considerations inform the question of whether leave should be granted to amend the notice of appeal.
CONSIDERATION
The applicant’s case for leave to replead generally was supported by the Kelly affidavit, in which Mr Kelly averred that on a review of the material which had been produced to the applicant (which review was not yet complete), it had become apparent that the applicant should replead. Mr Kelly averred that:
…the applicant has an action against the respondent for implementing the Policy. He has a case against the respondent that it brought the Policy into effect, in that it was designed to allow the respondent to terminate employees who were on sick leave and to do so under the guise of legitimate disciplinary action. It was then implemented by the respondent in that same manner.
Mr Kelly then identified that the Policy deferred the requirement for compliance for those on “stand-down” status or on leave without pay or parental leave, but was silent as to those on personal/sick leave.
Mr Kelly then annexed a number of emails which had been produced to the applicant by the respondent. He alleged they revealed that employees of Qantas who were involved in the actions and decisions leading up to the applicant’s termination were concerned to ensure that the applicant not be placed on stand down status, which he had requested, giving the purported justification of adverse action against him under the guise of legitimate management action.
Mr Kelly contrasted that alleged approach with its approach to other employees. Mr Kelly annexed further documents he contended revealed that Qantas had excluded other pilots from “standup” requirements, thereby excluding them from the compliance requirements, or at least deferring that obligation.
Mr Kelly averred that based on that material, the applicant had further related claims under s 340 of the Act and had a basis to replead his common law breach of contract claim.
Counsel for the applicant expanded upon what appeared in Mr Kelly’s affidavit in his submission in support of the Monday application. He went through the documents which were annexed to Mr Kelly’s affidavit in detail, which he contended demonstrated that the authors of the emails were trying to find a reason to get the applicant out of Qantas. He contended that there was no reason for the applicant to be “stood up” when the evidence demonstrated that he was not able to fly or engage in training. He submitted that the way the Policy was constructed and implemented was adverse action against the applicant, and that the respondent intended to force the applicant to a point where he would be non-compliant.
I am not persuaded in the circumstances that the applicant should be given leave generally to replead.
It is difficult to make an assessment of the importance of the applicant’s proposed amendment. The applicant has not produced a draft Form 2 application or pleading setting out the precise limits of the proposed amendment. It is presently reasonably clear that the applicant wishes to reframe the current claim in respect of the adverse action he alleges took place prior to his termination. That cause of action is secondary to the focus of the proceeding, which is the applicant’s dismissal. The remedies for a contravention of s 340 of the Act by conduct other than a dismissal are likely to be considerably less significant than those usually granted where the contravening conduct is a dismissal.
I am not persuaded that the applicant was unable until now to frame his case in the manner he now articulates. The applicant was on notice as to the content and structure of the Policy when he commenced the proceeding. He was party to the requests in late 2021 that he be stood down over the relevant period and was aware those requests were refused. It is not clear why he could not have articulated his proposed new cause of action when he commenced his claim.
Further, I am not persuaded that the new cause of action is of such importance to warrant the loss of the present trial dates. Without the order for the amendment to be made, the applicant will still be able to advance his case that his dismissal contravened s 340 and s 351 of the Act, and to rely on the recently produced emails in support of those arguments.
In the event the applicant were given leave to replead generally, that would necessarily result in a vacation of the hearing dates. The Court is able to accommodate the parties with a date which is mutually convenient to counsel and witnesses in late May. However, the extent of the amendment sought is currently unclear and it is not clear that the matter will be ready for a trial by that time if the applicant is given general leave to replead. Whilst the respondent did not advance any evidence about costs that would be thrown away if the present trial dates were vacated, there will almost certainly be some double-handling by counsel if the trial currently scheduled to commence on 10 March 2025 goes off to another date. Some of the time spent by counsel preparing the matter for trial commencing 10 March will need repeating closer to any future trial date.
The Court must also be mindful of the flow on impacts for other litigants who are before the Court.
The detriments involved in those outcomes are not warranted by the case advanced by the applicant in support of the Monday application.
Accordingly, the Monday application should be dismissed.
I will, however, give the applicant limited leave to amend his claim, to some extent, in the manner identified in the Sunday application. The limits of that leave will be discussed below.
The amendment to [86] of the applicant’s claim that is proposed in the Sunday application does not add a further cause of action. Rather, the applicant seeks to add further examples of employees who received treatment in respect of the Policy that he alleges is different to the treatment he received. That appears to be an important amendment for the purpose of articulating the applicant’s claim of discrimination.
It should have been apparent to the respondent from 27 June 2023 that the applicant left open the possibility of identifying other employees who received different treatment from him. In his amended claim lodged on 27 June 2023, the applicant pleaded (at [85]) that he had been treated “differently from other employees who had either not received or even refused a vaccine, but who were not suffering from his physical condition including by not providing him with reasonable accommodation, sick leave or carer’s leave” and that “(a)t least three other employees of Qantas received an accommodation under the Policy” (emphasis added).
In its response to the amended claim, the respondent stated in response to [85] that “it imposed the Policy on all employees (whether or not they were on sick leave)”, and said, as to [86], that “because of the limited and anonymised nature of the allegations in it, it does not know and cannot admit paragraph 86”. The additional examples the applicant proposes to rely upon may contradict the respondent’s claim in response to [85], which question is central to the argument about whether the applicant’s dismissal was discriminatory.
It should also have been apparent to the respondent that the applicant sought, by the issue of the notice to produce, that he was seeking production of documents that would reveal the existence of other employees who had received differential treatment. I am satisfied that the applicant only became aware of some of the further examples now included in the draft pleading since 7 February 2025, when the respondent filed its answer to the interrogatories, and produced a number of documents to the applicant.
Although the respondent says the overwhelming reason for the delay in the applicant identifying the examples was its 99 week delay in seeking documents, I do not consider that the applicant should be criticised for waiting until the respondent had served its affidavit evidence before seeking production of documents. Discovery is not granted as a matter of course in this jurisdiction and rarely before the parties have served their evidence. Leaving any call for documents until following the filing of evidence meant that the process could be undertaken in one go and limited to the documents which appeared relevant and necessary following the exposure of the parties’ evidential cases. The parties sought, in August 2024, orders by consent for the exchange of notices to produce by 23 September 2024, and the production of documents by 31 October 2024. That was well in advance of the hearing date, even allowing for slippage, and would have left plenty of time for the applicant to consider his position in the light of such documents.
After the applicant gave the notice to produce to the respondent, there ensued several months of disputation by correspondence about the applicant’s notice, commencing with the respondent’s letter of 26 September 2024 which is referred to above. I am unable to reach a conclusion against that background that the applicant is entirely to blame for the period it took to unearth the documents. In the final result, as set out above, the respondent agreed to orders for it to answer interrogatories, and for the production of documents responsive to category [34], notwithstanding its earlier objections, and did not, as it had threatened, move to set aside the notice to produce. The respondent did not ultimately maintain that objection, and produced documents by reference to a category. It is not apparent why, in those circumstances, that should not have occurred earlier. I do not attribute the applicant’s inability to identify the comparators until now to the applicant.
CONCLUSION
The applicant should be given leave to amend [86] of his claim by the addition of what appears in the draft further amended pleading at:
(1)(a) and (b) – those persons had been identified anonymously in the amended claim filed 27 July 2023, and were later identified in the parties’ evidence. Their circumstances have been addressed in the respondent’s evidence;
(2)(c) to (f) – those persons are pilots who were named in the answer to the interrogatories dated 7 February 2025. The respondent has indicated in respect of that group that it is able to file evidence concerning their circumstances prior to the present hearing dates;
(3)(k) to (r) – those persons are pilots whose identity and circumstances the applicant’s counsel submitted became apparent to the applicant following production of documents on 7 February 2025.
On the basis of the applicant’s submissions, the persons named in [86 (j), and (s) to (y) inclusive were revealed to the applicant by documents produced to it earlier in the process of disclosure. They appear to have been disclosed to the applicant in December 2024, by the production of documents in response to categories [33] and [31], respectively. The applicant had an opportunity to take some step to flag its intention to rely on those examples earlier than now. The applicant should not have leave to amend to include those putative comparators.
Counsel for the respondent indicated that Qantas would be in a position to prepare its evidence, prior to the currently appointed hearing dates, in respect of any of the persons listed in [86] of the draft further amended pleading at (d) to (i). He indicated positively that it would be impossible for the respondent to deal with (y) in the available time prior to the hearing and otherwise was unable to positively indicate that the respondent would be in a position to prepare its response if the applicant was to be given leave to rely on another combination of additional comparators.
I will hear the respondent as to further directions to be made in light of the leave I propose to grant the applicant.
The week commencing 26 May 2025 is available for the conduct of the trial if the respondent considers it is not able to respond to the additional comparators in [86] in the available time before the trial commences on 10 March 2025.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 28 February 2025
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