Marazzato, Nadia v Qantas Airways Ltd - [1997] FCA 974

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1174 of 1997

BETWEEN:	NADIA MARAZZATO APPLICANT
AND:	QANTAS AIRWAYS LIMITED RESPONDENT
JUDGE:		RYAN J
DATE OF ORDER:		19 SEPTEMBER 1997
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

That the orders made by Judicial Registrar Parkinson on 9 July 1997 be affirmed.

That the motion on notice dated 18 July 1997 be otherwise dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1174 of 1997

BETWEEN:	NADIA MARAZZATO APPLICANT
AND:	QANTAS AIRWAYS LIMITED RESPONDENT

JUDGE:	RYAN J
DATE:	19 SEPTEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an application for review of a decision of a Judicial Registrar on 9 July 1997 to order, amongst other things, the reinstatement of the applicant, Ms Marazzato, to the position of Fight Attendant in which she had been employed by the respondent (“Qantas”) immediately before the termination of her employment. The review was conducted by reference to the evidence before the Judicial Registrar as recorded in the transcript and contained in documentary exhibits and an affidavit by Susan Gabrielle Ruth Varley who has, since February 1996, been the Cabin Crew Manager - Melbourne for Qantas. That evidence was supplemented, for the purposes of the review, by affidavits, all sworn 15 August 1997, by Dermot John Moody, the Rehabilitation Co-ordinator for Qantas, by Julie Wills, a Cabin Crew Duty Manager for Qantas, who, between 1990 and 1993, had acted as Rehabilitation Case Manager for Cabin Crew and by Dr Eric Donaldson, the General Manager, Aviation Health Services for Qantas. As well, an affidavit by the applicant herself was sworn and filed on 18 August 1997. The latter affidavit was principally concerned with correspondence between solicitors for the parties and payments which Ms Marazzato claimed to be entitled to receive by way of giving effect to the Judicial Registrar’s order.

None of the deponents to the affidavits to which I have just referred was cross-examined on the hearing of the review. However, I am relieved from the need to evaluate the credit of any witness because the primary facts found by the Judicial Registrar or disclosed by the subsequent evidence are not significantly in dispute. The issues between the parties turn essentially on the inferences to be drawn from those primary facts and the application of the relevant statutory provisions to the facts, including the inferences which the Court is persuaded to draw.

The applicant commenced employment with Qantas as a Domestic Flight Attendant in April 1980. She was engaged in flying duties until October 1990 when she sustained a severe back injury in the course of a rough landing. She was incapacitated from work for more than three years. In April 1991 she was referred by Qantas to Occupational Rehabilitation Service Pty Ltd (“ORS”) which arranged successive pain management programs and, in November 1991, instituted a trial return to work under which Ms…

Grounds of appeal

[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 Marazzato, Nadia v Qantas Airways Ltd

Details

AGLC: Marazzato, Nadia v Qantas Airways Ltd [1997] FCA 974
Case: [1997] FCA 974
Decision Date: 19 SEPTEMBER 1997

CaseChat Overview and Summary

This case involved an application for review of a decision by a Judicial Registrar to order the reinstatement of Nadia Marazzato, an applicant, to the position of Flight Attendant for Qantas Airways Limited, the respondent. The applicant had been employed by the respondent as a Domestic Flight Attendant since April 1980, but sustained a severe back injury in October 1990 and was incapacitated from work for over three years. Various rehabilitation programs were undertaken by the applicant in an effort to return to work, but she ultimately could not return to flying duties. The primary issue for resolution was whether there was a valid reason for the termination of the applicant's employment within the meaning of s 170DE(1) of the Industrial Relations Act 1988. The court found that there was no valid reason for terminating the applicant's employment, as the decision was solely based on the conclusion that she was permanently incapacitated for work as a Flight Attendant, without exploring her capacity to undertake other duties outside a rehabilitation program. The court also found that the reinstatement of the applicant was not impracticable, and affirmed the orders made by the Judicial Registrar. The court's decision was based on the connection between the employer's reason or reasons and the termination of the employment in the sense of the relationship between employer and employee. The court considered the context of the employee's capacity or conduct or the operational requirements of the employer's business, and found that the termination was not a valid reason within the meaning of s 170DE(1). The court also considered the practicability of reinstating the relationship of employer and employee, rather than returning the applicant to her former duties as a Flight Attendant. The court found that the order for reinstatement did not require the respondent to maintain the applicant indefinitely in the classification of Flight Attendant, and that the presence of s 170EE(1)(a)(ii) of the Act did not detract from the general discretion to order reinstatement if the court considered it appropriate or not impracticable. The court affirmed the orders made by the Judicial Registrar and dismissed the motion on notice dated 18 July 1997.

Orders