Guerrini v Qantas Airways Limited
[2012] QCAT 351
| CITATION: | Guerrini v Qantas Airways Limited [2012] QCAT 351 |
| PARTIES: | Lorenzo Guerrini |
| v | |
| Qantas Airways Limited ABN 16009661901 |
| APPLICATION NUMBER: | MCDO693-12 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 29 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 3 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent pay to the applicant the sum of $763.20 by 4pm 31 July 2012. |
| CATCHWORDS: | Claim for refund of airline fees – contract – terms of the contract – entitlement to refund |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Lorenzo Guerrini |
| RESPONDENT: | Byran Riley by phone |
REASONS FOR DECISION
The applicant was employed by Qantas between 1999 and either June or July of 2006. During that time he purchased a number of tickets for travel with Qantas. The respondent said that during the time of his employment he had in fact purchased 46 tickets, the majority of which he had got refunds for.
The applicant claims to be refunded for two unused airline tickets, they being number 0814479142587 to a value of $349.10 and 081447142585 also to the value of $349.10. He claims and he gave evidence on oath that Qantas Airways Limited sold him those tickets on 27 April 2006. I have been provided with those two tickets which are Exhibit 1 and 2 respectively.
He said that the tickets have not been used. He said that when he purchased the tickets he was advised over the telephone that if the tickets are not used they are fully refundable or if they are partly used then the unused parts were refundable. He was advised at that time that to make a refund claim he just needed to post back the tickets for a full refund. He says at the time he purchased the tickets no mention of a time limit was advised.
When he received the tickets they were accompanied by a refund claim form which is Exhibit 8. That claim form had no mention of any time limit which applied to any refund claims.
On 29 May 2009, the applicant contacted Qantas and spoke to a woman by the name of Jane who advised him that there was a two year time limit which applied to any refund of unused tickets. The applicant says at no time was he advised that there was a time limit to the refunds and in fact on purchase he was advised that he could get a refund at any time for unused tickets.
Exhibit 9 is a staff travel refund claim form which I am informed is more current. It now includes the following, “Effective 1 January 2012, tickets exceeding one year from issue date will not be eligible for refund.”
There has been correspondence between the applicant and Qantas, they being Exhibit 6 and 7 and an email, Exhibit 3. In Exhibit 3, Andrea Rollo, the manager of staff travel said “I am unable to provide a refund for staff travel tickets when the application for refund is made more than 2 years after the issue date of the ticket. The Qantas Staff Travel program conditions state there is a strict time limit applicable to ticket refunds. This condition has been in force since September 2003.”
The applicant points out there is some question about whether or not the applicability of the policy time is correct in that he says in various correspondence pointed out to me it was said the policy was in place in September 2003 and November 2003. In my view nothing relevant turns on that question.
The applicant swears that he has never seen the policy document upon which the Respondent relies as set out in Exhibits 12, 13, 14 and 15. He says that there is no mention of any policy in the ticket and that is accepted by Mr Riley who appeared on behalf of the respondent. The applicant says that he has never been supplied with any policy and there has never been a requirement for him to look at any policy.
[10] The respondent relies on what it says are relevant portions of the contract of employment between Qantas and the applicant. It is Exhibit 11. The date of the document is 1 February 2006. The portion of the contract on which the respondent relies appears on page 4 of 10 of that document and is headed ‘Discretionary Benefits’. It provides,
“you may be eligible for concessional travel in accordance with the Qantas policy which applies at the time of travel. Employee concessional travel is a privilege, which may be withdrawn or varied by Qantas at any time. The misuse of concessional travel by you or your beneficiaries may lead to a loss of such concessional travel, or other disciplinary action, which may include dismissal. No arrangements will be made by Qantas to accommodate you commuting to and from work. Other discretionary benefits may also apply to you. All discretionary benefits may be varied, suspended or withdrawn at any time at the discretion of Qantas.”
[11] In my view, that clause is nothing more than the provision of information. It does not impose any obligations on the employee, nor does is it impose any obligations on the employer, it simply advises the employee that he may be eligible for concessional travel in accordance with the Qantas policy. The relevant policy which allows an employee to be eligible for concessional travel is not identified.
[12] In my view, it does not mean that it was a term of the contract between the applicant and the respondent that travel was subject to the policy of Qantas concerning that travel.
[13] Page 10 of that document provides, “I agree with, and accept the terms and conditions set out in this letter and the attached position description. I acknowledge that I have read and understood the policies regarding standards and conduct and IT usage which are attached to this letter.” The applicant provided a booklet entitled “Standards and Conduct” which is Exhibit 11 and which he says was attached to the contract of employment referred to earlier. On its face it contains excerpts from the Qantas Policy Manual as at June 2005. It is said and it is not contested that that document does not contain any reference to the policy concerning staff travel.
[14] The respondent points to that part of Exhibits 12, 13, 14 and 15 (the policy document) which deals with “refunding staff tickets” and provides “all staff travel tickets will be available for refund up to a maximum of two years from date of issue after which the tickets can not be refunded: “It is the employee’s responsibility to ensure that they know and understand the staff travel policy.”
[15] At the outset, Mr Riley raised the question of whether or not there is jurisdiction to determine this matter. His submission was to the effect that this was a claim based on an employment contract rather than a claim between a consumer and a trader.
[16] The definition of consumer is:
“consumer means an individual –
(a) who buys or hires goods other than –
(i)for resale or lettering on hire; or
(ii)in a trade or business carried on by the individual; or
(iii)as a member of a business partnership; or
(b) for whom services are supplied for fee or reward other than –
(i)in a trade or business carried on by the individual; or
(ii)as a member of a business partnership; or
(c) who is or was the tenant of premises let to the individual as a dwelling other than for –
(i)assigning or subletting the premises to someone else; or
(ii)a trade or business carried on by the individual.”
[17] The definition of “trader” is as follows:
“trader –
1. a trader –
(a) means a person who in trade or commerce –
i.Carries on a business of supplying goods or providing services; or
ii.Regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and
(b) includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for –
i.assigning or subletting the dwelling to someone else; or
ii.a trade or business carried on by the tenant.
2. However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services –
(a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or
(b) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with the instructions.”
[18] The relevant parts of the definition of “Minor Civil Dispute” are as follows:
“minor civil dispute
1. Minor civil dispute means –
(b) A claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is –
i.for payment of money of a value not more than the prescribed amount; or
ii.for relief from payment of money of a value not more than the prescribed amount; or
iii.for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
iv.for return of goods of a value not more than the prescribed amount; or
v.for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or...”
[19] In my view this is a claim between a consumer and a trader. During the hearing Mr Riley agreed with that proposition.
[20] He also raised whether or not the matter has been compromised because there was a claim made in the small claims court in 2009 which he says included the present claim. He said that those claims were withdrawn. However, there was no determination made concerning this claim in the small claims court nor was there any agreement between the parties as to the disposal of that claim. In my view, the matter has not been previously dealt with and there has been no substantive hearing or finding in respect of the claims now made.
[21] Mr Riley says that it would be usual business practice for any business in the same circumstances as Qantas to put a limit on the refunds which are available. He says that the benefits that the staff have in being able to buy substantially discounted tickets is discretionary and is subject to the policy of Qantas. He is unable to show that the applicant has been provided with a copy of the policy, nor can he prove that the applicant researched the policy or found it in another way. He is not able to contradict and in fact seemed to accept that it may be the case that the applicant was told that he could apply for refund and he was not told that there was any time limit on the refund.
[22] In my view the contract was partly made up of the ticket, the provision of the refund form and the oral advice provided to the applicant that he could at any time apply for a refund.
[23] In my view there is nothing in the material which makes it a term of the contract that the refund could only be submitted and obtained within two years of the issue date.
[24] In my view it is not to the point that there is a policy in Qantas. If the policy has not been communicated to the applicant and is not a term of the contract and there is a term in the contract to the contrary, then the policy has no application.
[25] It would be a relatively easy matter for the respondent to have made it a term of the contract that any refunds were subject to a two year limit period. That was not done.
[26] In my view, the applicant is entitled to a refund and I order that the respondent pay to the applicant the sum of $698.20 together with the filing fee of $53.00 and a search fee of $12.00.
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