Howe v Qantas Airways Ltd

Case [2004] FMCA 242


FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOWE v QANTAS AIRWAYS LIMITED [2004] FMCA 242

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.

Anti-Discrimination Act 1977 (NSW), s.113
Disability Discrimination Act 1992 (Cth), s.5
Equal Opportunity Act 1984 (Vic), s.39
Evidence Act 1995 (Cth), s.144
Family Law Act 1975 (Cth), s.60B
Human Rights Commission Act 1993 (NZ), s.38
Human Rights and Equal Opportunity Legislation Amendment Act (No 2) 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PO, 46PV
Industrial Relations Act 1988 (Cth), s.170EA
Industrial Relations Act 1991 (NSW), s.246
Industrial Relations Act 1996 (NSW), s.70
Occupational Health and Safety Act 2000 (NSW)
Public Transport Act (Vic), s.31
Sex Discrimination Amendment Act 1995 (Cth)
Sex Discrimination Act 1984 (Cth), ss.3, 5, 7, 7A, 7B, 7C, 14, 18, 22, 40
Trade Practices Act 1974 (Cth), s.87
Workplace Relations Act 1966 (Cth), s.111A

Advertiser Newspapers Pty Ltd v IRC of SA & Anor [1999] SASC 300
Alexander v Home Office [1998] 1 WLR 968
Allison v Bega Valley Council (1995) 63 IR 687
APESMA v Skilled Engineering Pty Limited 54 IR 236
Aqua Max Pty Ltd v M T Associates Pty Ltd (unreported, Supreme Court of Victoria, 19 June 1998 per Gillard J)
Australian Iron and Steel v Banovic (1989) 168 CLR 165
Australian Medical Council v HREOC (1995) 68 FCR 46
Australian Medical Council v Wilson (1996) 68 FCR 46
Australian Securities Commission v D B Management Pty Ltd (2000) 199 CLR 321
AWU v Rail Services Australia [Print S3359]
Barghouthi v Transfield (2002) 122 FCR 19
Blaikie v South Australian Superannuation Board (1995) 65 SASR 85
Bogle v Metropolitan Health Service Board (2000) EOC 93-069
Bonella & Ors v Wollongong City Council [2001] NSWADT 194
Boo Hwa Chan v Christmas Island Administration [Print S1443]
Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 99
Bradley v Commonwealth (1973) 128 CLR 557
Briggs v North Eastern Education and Library Board [1990] IRLR 181
Brown v Classification Review Board (1998) 154 ALR 67
Brook v London Borough of Haringey [1992] IRLR
Burton v Honan (1952) 86 CLR 169
Byrne and Frew…

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.