McKellar v Jetstar Airways Pty Ltd (No.2) - [2010] FMCA 509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCKELLAR v JETSTAR AIRWAYS PTY LTD (No.2)

[2010] FMCA 509

INDUSTRIAL LAW – Applicant employed by Jetstar as a pilot on condition that he successfully complete external and internal assessment – where external training paid for by Jetstar under an agreement that the cost would be repaid during applicant’s first three years of employment or upon earlier termination – where applicant successfully completed the external assessment but failed two internal assessments and was terminated – whether applicant’s failure to pass internal assessment caused by inadequate training – where applicant claimed that his failure was result of gaps in training, an excessive number of training captains and a personality clash with a particular training captain.

Notice – Whether applicant entitled to notice as a probationary or permanent employee – where employment arrangements allowed for new employees to be put on probation at discretion of employer – where no evidence of discussion regarding status of applicant’s employment – where applicant had asserted that his employment was probationary in summary of material facts provided to industrial tribunal – whether this assertion amounted to an admission.

Workplace Relations Act – Whether failure to give 2 month’s notice amounted to breach of provisions – remedies – whether penalty appropriate.

Workplace Relations Act 1996 (Cth), ss.381(c), 643(7)(b), 719
Civil Aviation Act 1988 (Cth), s.28
Evidence Act 1995 (Cth) ss.81, 87

Watson v Foxman (1995) 49 NSWLR 315 Byrne v Australian Airlines Ltd (1985) 185 CLR 410 Kucks v CSR Ltd (1996) 66 IR 182 United Fire Fighters Union v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 Amcor Ltd v CFMEU (2005) 222 CLR 241 City of Wanneroo v Holmes (1989) 30 IR 362 Hughes v Loy Yang Power Management Pty Ltd [2010] FMCA 81 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 Arthur Young v Brunswick NL [1998] VSCA 87 Edwardsv Olsen [2003] SASC 238 Pioneer Plastic Containers Ltd v Commissioners of Customs & Excise [1967] Ch 597 William James Ockendon v Australian Taxation Office - PR925954 [2003] AIRC 34 William James Ockendon v Australian Taxation Office - PR920818 [2002] AIRC 907
Applicant:	ANTHONY MCKELLAR

Respondent:

JETSTAR AIRWAYS PTY LTD

File Number:

SYG 2210 of 2009

Judgment of:

Raphael FM

Hearing dates:

22 - 23 March, 12 - 13 May, 17 June 2010

Date of Last Submission:

17 June 2010

Delivered at:

Sydney

Delivered on:

9 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr M Kimber SC and Mr J Mallios

Solicitors for the Applicant:

Australian & International Pilots Association

Counsel for the Respondent:

Mr P O'Grady

Solicitors for the Respondent:

Freehills

ORDERS

Parties to bring in short minutes reflective of these reasons within 14 days together with written submissions as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2210 of 2009

ANTHONY MCKELLAR

Applicant

And

JETSTAR AIRWAYS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

Anthony McKellar is an airline pilot. Between 2003 and 2006 he worked as a…

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.

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Details

Case: [2010] FMCA 509
Decision Date: 9 August 2010

CaseChat Overview and Summary

McKellar v Jetstar Airways Pty Ltd (No.2) involved a pilot employed by Jetstar, McKellar, who was terminated after failing internal assessments despite successfully completing external training. The crux of the case revolved around whether McKellar's failure in internal assessments was due to inadequate training provided by Jetstar and whether he was entitled to notice under the Workplace Relations Act. The Federal Court was tasked with determining these issues.

The court had to decide if Jetstar's failure to provide adequate training was the reason for McKellar's inability to pass internal assessments. This hinged on whether the gaps in training, the excessive number of training captains, and the personality clash with a particular training captain were sufficient to attribute the failure to Jetstar. Additionally, the court needed to ascertain whether McKellar was entitled to notice under the Workplace Relations Act, considering the lack of evidence regarding the status of his employment and whether his assertion of being probationary in the summary of material facts constituted an admission.

The court found that Jetstar's training did not adequately prepare McKellar for the internal assessments, hence his failure could be attributed to inadequate training. The court also determined that McKellar was not entitled to notice as a probationary employee since there was no evidence of discussions regarding the status of his employment, and his assertion of being probationary did not amount to an admission. Furthermore, the court concluded that Jetstar did not breach the Workplace Relations Act by failing to give two months' notice, as McKellar did not meet the criteria for notice entitlement.

The court ordered the parties to bring in short minutes reflective of these reasons within 14 days, together with written submissions as to costs.

Orders

Orders of the court

Parties to bring in short minutes reflective of these reasons within 14 days together with written submissions as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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