HUMAN RIGHTS – Sex discrimination in employment – long haul flight attendant required to cease flying due to pregnancy – offered and declined ground based work at a reduced salary – refused access to accumulated sick leave – placed on unpaid maternity leave – on return to work sought more flexible working hours – no part time work available at her level – applicant sought and received a demotion to a level at which more flexible working hours were available – whether the applicant was directly discriminated against because of her pregnancy considered – whether the applicant was constructively dismissed by being forced to seek a demotion after maternity leave considered – whether the applicant was indirectly discriminated against because of her sex by being denied part time work considered.
LAW REFORM – Observations on the background to s.7A of the Sex Discrimination Act and on the desirability of legislating comprehensively in respect of family responsibilities discrimination.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Howe v Qantas Airways Ltd
Sign in free to access the full text
Details
AGLC
Howe v Qantas Airways Ltd [2004] FMCA 242
Case
[2004] FMCA 242
Decision Date
CaseChat Overview and Summary
The case of Howe v Qantas Airways Ltd was heard in the Federal Court of Australia and involved a dispute between the applicant, Ms Howe, and the respondent, Qantas Airways Ltd. Ms Howe alleged that Qantas had unlawfully discriminated against her by denying her access to her accumulated sick leave between 26 February 2001 and 15 July 2001. This denial, she claimed, contravened sections 7(1) and 14(2)(b) of the Sex Discrimination Act 1984 (Cth). The crux of the legal issues before the court was whether Qantas had indeed engaged in unlawful discrimination against Ms Howe by refusing her access to her sick leave, and if so, the appropriate remedies that should be granted to Ms Howe.
The court considered the arguments presented by both parties regarding the application and interpretation of the Sex Discrimination Act 1984 (Cth). The primary focus was on whether the respondent’s actions constituted discrimination under the Act. The court found that Qantas had indeed discriminated against Ms Howe by denying her access to her accumulated sick leave, which was a clear breach of the statutory provisions. The court further found that the discrimination was based on sex, as it was not justified under the exceptions provided by the Act.
In light of these findings, the court issued several orders. Firstly, it declared that Qantas had unlawfully discriminated against Ms Howe by refusing her access to accumulated sick leave. Secondly, Qantas was ordered to pay special damages to Ms Howe, calculated based on her salary for sick leave purposes during the specified period, minus the value of any sick leave accrued during that period. Thirdly, Qantas was required to pay general damages of $3,000 to Ms Howe. Additionally, interest on the special and general damages was to be paid at a rate of 10.5 per cent from 26 February 2001 until judgment. The court also granted the parties liberty to apply for further directions and orders in relation to the aforementioned orders.
Orders
Orders of the court
1.
The Court declares that the respondent unlawfully discriminated against the applicant by refusing her access to accumulated sick leave between 26 February 2001 and 15 July 2001, contrary to ss.7(1) and 14(2)(b) of the Sex Discrimination Act 1984 (Cth).
2.
The respondent is to pay special damages to the applicant, calculated on the basis of the applicant’s salary for sick leave purposes between 26 February 2001 and 15 July 2001, less the value in terms of the applicant’s salary of any sick leave which accrued to the applicant over that period.
3.
The respondent is to pay general damages to the applicant in the sum of $3,000.
4.
The respondent is to pay interest up to judgment in relation to orders 2 and 3 at the rate of 10.5 per cent, commencing on 26 February 2001.
5.
The parties have liberty to apply for further directions and orders in relation to the above orders.