[2021] FWC 5458

FAIR WORK COMMISSION

DECISION

Fair Work FW Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Peggie
v
Qantas Airways Limited T/A Qantas
(U2020/15461 and U2020/15799)

COMMISSIONER JOHNS

SYDNEY, 1 SEPTEMBER 2021

Application for Relief of Unfair Dismissal.

Introduction

[1] On 2 December 2020, Andrew Peggie, and on 10 December 2020, Geoffrey King (together, “the Applicants”) each made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for an unfair dismissal remedy. Both Messrs Peggie and King were dismissed from their employment with Qantas Airways Limited (Qantas/Employer/Respondent).

[2] At the time of their dismissal both Applicants were employed as long-haul pilots on Qantas’ A380 fleet. That is to say, both Applicants were international pilots. Further, it is also relevant that, at the time of their dismissal, both Applicants had attained the age of 65 years. Mr Peggie turned 65 on 19 August 2020. Mr King did so on 17 July 2020.

[3] On 10 December 2020 in respect of Mr Peggie and on 17 December 2020 in respect of Mr King, Qantas filed a response to the unfair dismissal applications. No jurisdictional objections were raised by Qantas.

[4] In respect of both applications Qantas contended that the dismissals were not unfair because the Applicants could not perform the inherent requirements of their positions as long-haul pilots. This is because the rules of the International Civil Aviation Organisation (ICAO) prohibit a pilot engaged in international flying from operating in most airspaces after a pilot attains the age of 65 years (Rule of 65).

[5] In this modern day it might be thought odd that there remain compulsory retirement ages and discrimination on the basis of age that require a person to cease employment, not because they can no longer perform their job, but because of an accident of birth. However, it is not an entirely foreign concept. Members of this Commission can only hold office until the age of 65 years. 1 My own observation is that we have lost some of our best Members at the prime of their abilities and service to the industrial relations community, when, like in the 1976 film Logan’s Run, they are must undergo something like the rite of "Carrousel". Similarly, I am sure that Messrs Peggie and King were a loss to the airline industry. There is no evidence that they lacked the skills to continue to work as pilots. Qantas conceded that Messrs Peggie and King were good and loyal employees.

[6] On 21 December 2020 the Peggie matter was allocated to me. I listed the matter for a mention/directions hearing on 24 December 2020. However, at the request of the parties I re-listed the matter in the New Year, on 13 January 2021.

Permission to be represented

[7] At the mention/directions hearing in the Peggie matter on 13 January 2021, Qantas made an application for permission to be represented by a lawyer. A determination of this issue was necessary to ensure that the manner in which any hearing is conducted is fair and just, Warrell v FWC [2013] FCA 291.

[8] In Warrell v FWC the Federal Court held that,

“A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.[at para 24]”

[9] Section 596 of the FW Actprovides as follows:

“Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[10] Having heard from the parties, on 13 January 2021 I determined that allowing the Respondent to be represented by a lawyer would enable the Peggie matter to be dealt with more efficiently, taking into account the complexity of the matter.

[11] At the hearing on 17 March 2021, I made the same decision in relation to the King matter and likewise granted Qantas permission to be represented. 2

Conference or Hearing

[12] On 13 January 2021 I also sought submissions from the parties in the Peggie matter about whether the Commission should conduct either a determinative conference (section 398) or a hearing (section 399) in relation to the matter.

[13] Taking account:

a) any differences in the circumstances; and

b) the wishes;

of the parties in the Peggie matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter, I decided to conduct a Determinative Conference. The Peggie matter was programmed for a Determinative Conference.

Joinder of the King matter

[14] On the day after the mention/direction hearing in the Peggie matter, the King matter was allocated to me. It became immediately apparent that a very similar substratum of facts occurred in both matters, namely in relation to the valid reason put forward by Qantas and that similar legal issues arose.

[15] After consulting with the parties I decided to hear the matters together. After some amendments to the timetable, the Determinative Conference in both matters was conducted on 17 March 2021.

The Determinative Conference

[16] At the Determinative Conference on 17 March 2021:

a) the Applicants represented themselves and both gave evidence on their own behalf.

b) the Respondent was represented by Mr J Forbes of counsel. Mr Forbes called two witnesses as follows:

i. Douglas Alley, Head of Base Operations, Flight Operations; and

ii. William Tidmash, Manager Operations Capability and Development.

[17] In advance of the hearing the parties filed witness statements, submissions and documents. During the hearing an additional document was tendered as an exhibit. Consequently, in coming to this decision I have had regard to the following materials:

Exhibit	Document title
1	Notice of Listing dated 28 January 2021
2	Amended Directions dated 28 January 2021
3	Forms: F2 – Unfair Dismissal Application Andrew Peggie dated 2 December 2020
3a	Termination Letter Andrew Peggie dated 31 August 2020
3b	Termination Letter Response Letter dated 7 September 2020
3c	Qantas Decision Letter dated 8 October 2020
3d	Employment Separation Certificate dated 16 November 2020
4	Forms: F2 – Unfair Dismissal Application Geoffrey King dated 10 December 2020
5	Forms: F3 Employer Response Form Andrew Peggie dated 10 December 2021
5a	Annexure A	Outcome Letter dated 8 October 2020
5b	Annexure B	Show CauseLetter dated 31 August 2020
5c	Annexure C	Applicant’s Response to Show Cause Letter dated 7 September 2020
6	Forms: F3 Employer Response Form Geoffrey King dated 17 December 2021
6a	Annexure A	Outcome Letter dated 15 October 2020
6b	Annexure B	Letter Setting Out Options Available dated 15 July 2020
6c	Annexure C	Show CauseLetter dated 28 August 2020
6d	Annexure D	Show Cause Response dated 3 September 2020
7	Form F53 Notice that a person has a paid lawyer dated 11 January 2021
8	Applicant’s Outline of Arguments Andrew Peggie no date
9	Applicant’s Statement of Evidence Andrew Peggie no date
10	Applicant’s Document List Andrew Peggie no date
10a	Show cause letter dated 31 August 2020
10b	Show cause response dated 7 September 2020
10c	Termination notification letter dated 8 October 2020
10d	Email confirming 737 flying dates dated 26 January 2021
10e	Confirmation of employment dated 8 November 2020
10f	Statement of Service dated 16 November 2020
10g	Roster of duties dated 29 August 2020
10h	Allocated roster duties of leave dated 26 August 2020
10i	Leave balances dated 9 November 2020
10j	Letter of Preference dated 19 March 2020
10j	Payslip for period ending 27-09-20 dated 24 September 2020
10k	Flying experience dated 29 August 2020
11	Applicant’s Outline of Arguments Geoffrey King no date
12	Applicant’s Statement of Evidence Geoffrey King no date
13	Applicant’s Document List Geoffrey King no date
13a	Document A	My response to the Pre -Termination letter from Qantas dated 3 September 2020
13n	Document B	Termination letter from Qantas dated 15 October 2020
13c	Document C	Letter from Qantas re. termination of my job.dated 28 August 2020
13d	Document D	Letter from a Captain giving evidence re. his transition from the International Ops. To the Domestic Ops dated 25 January 2021
13e	Document E	Letter of preference with my bid to the Short Haul Fleet dated 16 September 2020
13f	Document F	Confirmation of Employment dated 24 July 2020
13g	Document G	Stand Down Notice dated 15 August 2020
13h	Document G2	Stand Down Notice dated 20 August 2020
13i	Document H	Reference from Manager dated 24 August 2020
13j	Document I	Reference from Manager dated 12 August 2020
13k	Document J	Statement of Service with Qantas dated 11 December 2020
13l	Document K	Letter of employment dated 9 March 1984
13m	Document L	Flight record various dates
13n	Document M	Payslip dated 23 June 2019
14	Respondent’s Outline of Submission Andrew Peggie dated 26 February 2021
15	Respondent’s Outline of Submission Geoffrey King dated 26 February 2021
16	Respondent’s Witness Statement of Douglas Alley dated 26 February 2021
16a	DA-1	Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 dated 28 April 2020
16b	DA-2	Qantas Airways Limited Pilots (Short Haul) Enterprise Agreement 2020 (EBA8) dated 18 February 2020
16c	DA-3	Letter of Appointment Geoffrey King dated 9 March 1984
16d	DA-4	Letter of Appointment dated 9 March 1984
16e	DA-5	4.6 Flight Crew Age Restrictions from Flight Administration Manual dated 22 May 2019
16f	DA-6	ASX Announcement dated 5 May 2020
16g	DA-7	ASX Announcement dated 25 June 2020
16h	DA-8	ASX Announcement dated 20 August 2020
16i	DA-9	ASX Media Release dated 25 February 2021
16j	DA-10	Letter of Preference Andrew Peggie dated 20 March 2020
16k	DA-11	Show Cause Letter Andrew Peggie dated 31 August 2020
16l	DA-12	Show Cause Response Andrew Peggie dated 7 September 2020
16m	DA-13	Termination Letter Andrew Peggie dated 8 October 2020
16n	DA-14	Letter re Turning 64 Geoffrey King dated 15 July 2019
16o	DA-15	Letter of Preference Geoffrey King dated 20 March 2020
16p	DA-16	Show Cause Letter Geoffrey King dated 28 August 2020
16q	DA-17	Show Cause Response Geoffrey King dated 3 September 2020
16r	DA-18	Termination Letter Geoffrey King dated 15 October 2020
17	Respondent’s Witness Statement of William Tidmarsh dated 26 February 2021
17a	WT-1	ICAO Convention on International Civil Aviation dated 2006
17b	WT-2	ICAO International Standards and Recommended Practices dated 5 November 2020
17c	WT-3	Regulation 215 of Civil Aviation Regulations 1988 dated 1 September 2020
17d	WT-4	CASA Regulation 29/18 – Civil Aviation (Fuel Requirements) Instrument 2018 dated 22 May 1988
18	Applicant’s Submission in Reply Andrew Peggie no date
19	Applicant’s Submission in Reply Geoffrey king no date
20	Email dated 12 March 2021 from Captain Alex Scamps

Application to stay the decision

[18] At the conclusion of the Determinative Conference on 17 March 2021 I reserved my decision.

[19] On 21 April 2021 her Honour Justice Katzmann of the Federal Court of Australia delivered judgment in Summers v Qantas Airways Limited 3 (Summers Decision). Her Honour also issued an order (subject to an undertaking and certain conditions) restraining Qantas from terminating the employment of Paul Summers.

[20] Mr Summers is a long-haul pilot who, like the Applicants, had reached the age of 65. Qantas informed Mr Summers that as a long-haul pilot subject to mandatory retirement on attaining the age of 65, he was unable to carry out the inherent requirements of his position. Qantas invited Mr Summers to show cause why his employment should not be terminated.

[21] Mr Summers disputed the need for his retirement, questioned Qantas’ efforts to identify alternative roles and suggested to Qantas that he could be redeployed as a flight instructor or to a position in which his degree in political science would be of use. Mr Summers argued that in any event, he could fulfil his present role as an A330 captain by flying short-haul and domestic routes which are not subject to the mandatory retirement rule.

[22] Qantas maintained that there were no vacant short haul flying positions available to Mr Summers and were unable to identify any alternative roles that were suitable for his redeployment. Given the impact of Covid-19 on the airline industry causing uncertainty about the timing of redeployment to domestic routes Qantas decided to terminate Mr Summer’s employment.

[23] Mr Summers lodged a complaint of age discrimination with the Australian Human Rights Commission (AHRC) and applied under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) for an interim injunction to restrain Qantas from giving effect to its decision to terminate his employment until his complaint has been withdrawn or terminated.

[24] Qantas argued that Mr Summers case was analogous to the case of Qantas Airways Ltd v Christie (Christie) and had no reasonable prospect of success. However, in granting the interim injunction, Justice Katzmann found that Mr Summers had a prima facie case that he was discriminated against on the ground of age and that he was able to carry out the inherent requirements of his position. Her Honour stated:

“Unlike Mr Christie, Captain Summers was not engaged solely in international flying and since he has been employed as an A330 captain he has undertaken a significant amount of domestic flying. Unlike the aircraft flown by Mr Christie, the Qantas A330 is flown on limited international routes and the evidence adduced on this application indicates that Captain Summers is physically, mentally and legally capable of flying on the majority of routes serviced by the A330 fleet. The inherent requirements of Captain Summers’ position, according to the information posted by Qantas on the pilots’ website, includes operating to the majority of ports to which Qantas operates. On the evidence before me there is at least a prima facie case that he can meet those requirements.” 4

[25] Further, her Honour found that the inconvenience or injury that Mr Summers would be likely to suffer if the injunction were refused outweighed the injury which Qantas would suffer if an injunction were granted. Her Honour found that the balance of convenience favoured Mr Summers because:

1. The chances of a 65 year old pilot finding alternative work in the airline industry or elsewhere during the Covid-19 pandemic being likely to be poor.

2. There being a general personal importance in preserving a connection to employment especially to a reasonably long serving employee who enjoyed and valued their job and a particular value in retaining such a connection while the matter is resolved, given current economic uncertainty.

3. The detriments claimed by Qantas being overstated by the likelihood of a significant increase in domestic flights, including short haul flights, in the short to medium future. The detriments being:

a. that if the applicant were stood-up then Qantas would need to stand up additional pilots to cover for the possibility of gaps being created when Mr Summers is rostered by the system onto a flight he cannot undertake. In such cases Qantas would be paying Mr Summers but receiving no services from him in respect of flights he cannot undertake;

b. that if the applicant modified its rostering system to accommodate for Mr Summers, then in addition to the costs involved in doing so Qantas would be exposed to liability for breaching its long-haul enterprise agreement; and

c. that if an interim injunction were granted there was a real risk that other pilots of the same age would seek similar relief in which event Qantas would need to completely overhaul its bidding and rostering system.

[26] As such, her Honour found that it was appropriate to require Qantas to maintain Mr Summers’ employment, notwithstanding that it meant Mr Summers would remain stood down unless he could be redeployed to short haul flights or some other suitable position.

[27] As a condition of the grant of the interim injunction, Mr Summers offered an undertaking to the Court that within 24 hours of the making of the order he would inform the AHRC of its terms, that he would seek the expedition of the conciliation of the complaint, and that he would provide all assistance necessary to enable the AHRC to handle the complaint expeditiously.

[28] The similarities between the Summers Case and the facts in the present matter concerning Messrs Peggie and King are obvious.

[29] On 24 April 2021 Mr Peggie forwarded the Summers Decision to chambers.

[30] On 26 April 2021 my chambers wrote to the parties as follows:

“The Commission is aware of the decision.

Depending on what Qantas has to say about the matter, the Commissioner is open to receiving further submissions.

However, the Commissioner notes that the injunction granted in Summers v Qantas was subject to the occurrence of other events.

The Commissioner wonders whether an alternative might be to keep his decisions in Peggie & King reserved until the finality of the Summers v Qantas matter.

The Commissioner asks that the parties confer and advise chambers about any agreement about the further conduct of the matter.

If agreement cannot be reached:

• The Commissioner invites submissions about the how to progress the matters before him….

• The matter will be provisionally listed …”

[31] Agreement could not be reached between the parties. Consequently, it was necessary for me to hear and determine the application made by Messrs Peggie and King that I stay issuing a decision in the present matters until after the finalisation of the Summers matter. That interlocutory issue was programmed for hearing on 11 June 2021.

[32] In support of the stay application, Messrs Peggie and King submitted that:

“Relevance of the decision in Summers

1. On 21 April 2021 Justice Katzmann issued an injunction in a case brought by Captain Summers against Qantas. The injunction prevented Qantas from terminating his employment until finalisation of the matter before the AHRC, or further Order of the Court.

2. The case brought by Captain Summers is fundamentally similar to our applications. The central similarities are:

(a) Like us, Captain Summers was a long serving Qantas pilot who was terminated by reason of him turning 65 years of age.

(b) Like us, Captain Summers was aggrieved by the decision of Qantas, and wishes to challenge it.

(c) As in our case, Qantas stated reason for the termination is that, because of his age, Captain Summers will no longer be able to fulfil the inherent requirements of his job.

(d) In enforcing this reason in both our case and Captain Summers, Qantas relies totally upon the decision of the High Court in Qantas Airways Limited v. Christie, and further fails to acknowledge at all with the impact of Covid and the long term stand down /restriction on international operations that have flowed from that decision as to why termination is not appropriate at the present time.

3. In the reasons supporting the making of an injunction Justice Katzmann found that:

(a) That Captain Summers had a prima facie case that he had been the subject of unlawful age discrimination [121]. Qantas had argued that on the issue of age discrimination the decision of Christie was “indistinguishable and based on that case …Captain Summers’ case has no reasonable prospects of success”. On the other hand, Captain Summers alleged that he was the subject of both direct and indirect age discrimination, and that he was able to fulfil the inherent requirements of the position. In supporting her finding that he had an arguable case, Justice Katzmann noted that:

i. The case was not on all fours with Christie [110].

ii. 30 years had passed since Christie was decided [112].

iii. The decision of Christie was complex, and not unanimous. Justice Katzmann spent some time in the Summers judgment setting in some detail the actual findings from Christie which expressed a diverse set of reasons to reach the conclusion [78] – [90].

iv. That Captain Summers contended that there were instances where pilots over the age of 65 had worked under the Long-Haul Enterprise Agreement.

v. The rostering and work systems at Qantas had changed since Christies was decided. The significance of such changes is a matter for the trial [111].

vi. The terms of the legislation had changed (the inherent requirements had referred to “employment” and now referred to “position”) since Christie, a change likely to assist Captain Summers [79].

(b) That it was appropriate for her to require Qantas to maintain the employment, notwithstanding that would mean that he would be stood down again.

(c) We were currently part way through a pandemic in which operations that would infringe the rule of 65 are more limited.

4. Captain Summers chose to pursue his matter as an age discrimination claim. Our claims are brought as unfair dismissals. However, a termination that would be unlawful age discrimination will always be an unfair dismissal – it cannot be for a valid reason (see Selvachandran v. Peteron Plastics Pty Ltd [1995] IRCA 333 – a reason which is prejudiced cannot be a valid reason), and in any event is plainly harsh, unjust and unreasonable.

5. Significantly, the ambit of the law in relation to unfair dismissal is clearly wider than simple age discrimination – a termination may not infringe age discrimination laws but still be unfair.

6. In addition to these matters, we note the following:

(a) Since the Summers judgment, there have been announcements which would appear to indicate further delays to resumption of full international operations (these are referred to a little at [128] but there have been further developments since that time). The type of international operations that seems most likely to be delayed longest – to Europe and the United States, correspond to Rule of 65 counties and also to routes that were previously serviced by the A380 Aircraft.

(b) As with the A330 that Captain Summers currently operates on, there is no certainty as to when and what routes the A380 will do when it resumes operations, if it resumes operations at all. One of the routes previously undertaken by the A380 was between Australia and Singapore. Qantas may bring the A380 back to operate that route, which does not infringe the Rule of 65 and, if this were to occur would mean that we could fulfil the inherent requirements. Alternatively, it could operate other shorter services to Asia which may not infringe the Rule of 65. Again, if this were to occur, we could fulfil the inherent requirements. Equally possibly, Qantas may retire some or all of the A380 fleet. If this were to occur, we would likely be able to obtain a position on a primarily domestic fleet on which we could fulfil the inherent requirements.

7. During the hearing of the matter the question as to whether it was appropriate/possible to reinstate a person to be stood down was considered. We seek to be reinstated to our positions on the A380 on the basis that we will remain stood down until the A380 resumes operations, or we are able to obtain a position on a fleet where we can fulfil the inherent requirements.

8. We acknowledge that if we are still allocated to the A380 when it resumes operations on services we cannot operate and pilots are stood up, our employment should be terminated at that time. The situation facing Captain Summers was similar. While Captain Summers had not been terminated, the order made by Justice Katzmann that while Qantas should not terminate Captain Summers, he is to remain stood down unless and until he can be redeployed to short haul flights or some other suitable position [134].

9. There is a further, crucial difference between our case and Captain Summers. Our central case is that had Qantas not terminated us when it did, we would have remained stood down for the next period (during which time we could clearly fulfil the inherent, albeit occasional requirements) of our work. Our stand down would have continued until we obtained a position on the B737 aircraft, which we both say we want, and which, given our seniority, we would have been awarded if any vacancy had arisen. Alternatively, our stand down would have continued until the A380 resumed operations at which time, in the event it resumed to Rule of 65 countries, we agree that Qantas could terminate our employment. Captain Summers on the other hand says he wishes to remain on the A330 airc

Further relevance of Summers

10. In the Summers judgement, Justice Katzmann made a series of preliminary findings that we ask the Commission to consider in our matter. These include the matters set out above but also include other matters that are relevant to the finding in Christie, and as to why we should be reinstated.

11. As noted above, more than 10 paragraphs of the Summers judgment involves an examination of what the High Court held in Christie. Justice Katzmann notes that Kirby J dissented generally [13], while there was a variety of opinion from the others in finding that that it was not unlawful because Captain Christie could not fulfil the inherent requirements. Only one judge - Gummow J - found on the basis of the Rule of 60 (as it them was). The other three judges (Brennan CJ, McHugh and Gaudron JJ) focused on the inherent requirement being tied to the fact that he could not participate equally in the rostering system and could not operate to a substantial number of international destinations serviced by the B747 at the time of his dismissal. If one were to apply the logic of those three to our case, we are able to currently fulfil the inherent requirements as we can participate equally as other A380 pilots in the rostering system and can operate to all destinations currently serviced by the A380.

Why judgment in the matters presently before the Commission should be deferred until such time the dispute between Qantas and Captain Summers is finalised

12. Justice Katzmann found [125] that “in the present climate in particular the chances of a 65-year-old pilot obtaining alternative work in the airline industry or elsewhere are likely to be poor. Not unreasonably it seems to me, he expressed concern that his lack of recent flying experience would make it impossible for him to work as a pilot for another employer. “We have both discovered first hand the difficulty in obtaining appropriate, alternative employment. Neither of us have obtained work as pilot (the job we held for more than 30 years each) or harbour any hope we will if we are not reinstated. What alternate work we have found has been menial and for far diminished wages. The corollary of Justice Katzmann’s finding is that reinstatement to Qantas is our only hope of further employment in our area of expertise.

13. Justice Katzmann made further findings at [126] as to the importance of work in a meaningful life which we also reiterate from recent personal experience.

14. Justice Katzmann also found that the injunction, which is effectively the same remedy as our reinstatement, would have a limited impact on Qantas. She described the detriments as “overstated” [127].

15. Justice Katzmann has indicated that she considers that Captain Summers has an arguable case and that she anticipates that, should the matter run to final hearing, she will be required to determine if Qantas breached the Age Discrimination Act, notwithstanding the decision of the High Court in Christie.

16. This will be the first time a Court of the standing of the Federal Court has considered these issues since the 1990’s.

17. In the event she finds for Captain Summers in a final hearing, we believe that the reasoning would mean that the Commission would have to conclude that our dismissal was unfair.

18. On the other hand, there is a risk of great unfairness in the event the Commission hands down a judgment in which we lose, and then later there is a judgment by Justice Katzmann in favour of Captain Summers (or that contains findings that would favour us).

19. There is no corresponding prejudice or loss to Qantas. We are not costing Qantas any money at the moment. All the A380 pilots are currently stood down and will be for at least the next 6-12 months. Given this, Qantas are not retraining anyone into our places. Qantas will not suffer at all by a deferral of the judgment.

20. As a final point, we do not seek that the deferral of the judgment should be absolute until Summers is finalised. There is the possibility of changed events that mean the delay would be inappropriate. If, for example, there are changed circumstances that means that Qantas becomes substantially prejudiced by the delay, or that the finding in Summers is not relevant, then either Qantas or us should be able to seek to approach the Commission and ask that the deferral end and that judgement be entered. We would anticipate that the Commission would hear from the parties at that time, and then determine how to proceed.”

[33] In opposition to the stay application, Qantas submitted that,

“Summary of Qantas’ position

1. The Summers decision is of little relevance to the unfair dismissal applications which are currently awaiting decision. The facts are different, the nature of the proceedings are different and the proceedings have been brought under a different statutory regime. The decision of Katzmann J is interlocutory, there has been no determination of the merit of any legal argument or factual contest, and Her Honour’s observations regarding the High Court decision in Qantas Airways Limited v Christie [1998] HCA 18 are obiter and not binding on any other court or tribunal.

2. There is no certainty that the Summers matter will ever manifest in a substantive proceeding in the Federal Court, let alone a final judgment. At present, Captain Summers has been successful only in obtaining an interlocutory order under section 46PP of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) which preserves the status quo while he pursues a complaint in the Australian Human Rights Commission.

3. In the ordinary course, the Fair Work Commission should proceed to determine matters as expeditiously as reasonably possible based on the evidence before it and in accordance with prevailing and binding legal principle. This approach would be consistent with the requirement that the Fair Work Commission perform its functions and exercise its powers in a manner which is fair and just, and quick. The ordinary administration of justice should not be delayed on account of speculation that a decision might emerge somewhere down the track which is in some way favourable to the Applicants. The Commission should follow the ordinary course in respect of the current applications and issue its decisions when it is ready to do so.

The facts of the matters are materially different

4. At [4] of their submissions, the Applicants contend that the case brought by Captain Summers is “fundamentally similar” to their applications.

5. The factual and legal foundations of the proceedings are in fact materially different and the matters should not be treated as being on all-fours. For example:

a. Captain Summers’ substantive role was as an A330 Captain. He operated the A330 aircraft which prior to COVID predominantly serviced both the Qantas international network and, to a lesser extent, parts of the Qantas domestic network. By reason of COVID and subsequent international border closures, the A330 aircraft has predominantly (albeit temporarily) continued to service Qantas’ domestic network;

b. the Applicants on the other hand were, prior to their termination, A380 pilots who have exclusively flown on Qantas’ international network. The A380 exclusively services the Qantas international network (see the statement of William Tidmarsh dated 26 February 2021 at [25]) and the A380 fleet on which they worked has been grounded since COVID;

c. the circumstances of the Applicants remain relevantly indistinguishable from the circumstances of Captain Christie in Christie. The Applicants operated an aircraft (A380) which has and will continue to service international routes which neither of them can operate having turned 65 years of age. This is not at all dissimilar to the circumstances of Captain Christie. Captain Summers operated a different aircraft and the observations by Katzmann J regarding the application of Christie were directed at his circumstances specifically;

d. the Applicants have had their employment terminated and they have commenced unfair dismissal proceedings seeking an order for reinstatement pursuant to section 391 of the Fair Work Act 2009 (Cth). Captain Summers’ employment has not been terminated and he is presently seeking permanent injunctive relief under the AHRC Act; and

e. the fact that all three pilots are aggrieved by the decision of Qantas to terminate their employment and want to challenge that decision is not enough to make their cases fundamentally similar.

The decision of Katzmann J is interlocutory

6. Interim injunctions issued under section 46PP of the AHRC Act are purely directed to preserving the status quo or the rights of the complainant for a short period of time to allow the conciliation processes of the Australian Human Rights Commission to be performed. The only question before Katzmann J was whether an interlocutory injunction should be made for that purpose.

7. A hearing on whether an interlocutory injunction should be granted is not a hearing on the ultimate substantive merits of the case.

8. The application in Summers required the Court to engage in a balancing exercise which considered whether there was a serious question in issue and, if so, whether the balance of convenience either favoured or weighed against the injunctive relief sought by Captain Summers.

9. An application for an injunction is made on limited affidavit evidence, which is not tested under cross-examination, and it does not result in any findings of fact or determination of contested legal arguments. In American Cyanamid [1975] AC 396 Lord Diplock said at 407:

“The court no doubt the Court must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to the facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. (emphasis added)

10. Justice Katzmann’s assessment of serious question plainly did not determine the merits of Captain Summers’ case. It was a decision which involved the exercise of broad judicial discretion, not the final determination of rights or remedies. The decision is confined to the immediate parties and it carries no precedent value. This raises serious doubts about the practical relevance of any determination in Summers to the different factual circumstances confronting Mr Peggie and Mr King, particularly when Justice Katzmann held at [121] “while I am satisfied that Captain Summers has a prima facie case, I am unable to conclude that it is a strong one”.

11. As to Her Honours observations about the High Court decision in Christie, a number of points should be made.

12. First, Katzmann J made observations about the High Court decision and judgments in Christie in the context of assessing whether Captain Summers could reach the threshold of an arguable case. Her Honour observed that Captain Summers’ circumstances (A330 pilot in 2021) might be different to those of Captain Christie (B747 pilot in 1998), that there have been changes in relevant legislation and that one day there may be cause to revisit the High Court judgment. However these observations are simply obiter dicta which weighed in favour of the injunction being granted on the basis of there being an arguable case. The observations do not overrule or undermine the correctness of Christie.

13. Secondly, even if Justice Katzmann had opined that Christie was wrongly decided, Christie remains binding on the Commission until such time as it is overturned by the High Court. The Fair Work Commission remains bound to follow Christie unless the circumstances of a case before it are distinguishable. In the case of the applicants their circumstances are not distinguishable and the applicants have failed to identify any material matters which distinguish their circumstances to those of Captain Christie.

14. The Applicants also submit that the Summers judgment is relevant because it supports their claim for reinstatement. That argument is flawed. The power exercised by the Federal Court in Summers is of a different nature and purpose compared to the Commission’s powers exercised in an unfair dismissal context. Interim injunctions issued under section 46PP of the AHRC Act are purely about preserving the status quo for a short period of time to allow a matter to be conciliated. It is a narrow enquiry which is not directed to final relief and the considerations are different to those which must be considered by the Commission in relation to the remedy of reinstatement.

15. Any observations made by Justice Katzmann about the importance of work generally, Captain Summers’ prospects of ongoing employment specifically and other such matters were made in the context of the Court weighing the “balance of convenience” in determining whether to grant an interim injunction. They are not statements of legal principle or final findings of fact and they have no relevance beyond the immediate application that was before the Federal Court.

16. In any event, the Applicants have already made detailed submissions regarding the remedy of reinstatement in the substantive hearing before Commissioner Johns. The remedy of reinstatement is a discretionary one which falls to be determined by the Fair Work Commission within the context of the Fair Work Act 2009 (Cth) and anything said or done by Justice Katzmann in Summers has no practical relevance.

Submission regarding international flying

17. The Applicants’ submissions at paragraph [8] regarding changed circumstances do not assist their request for delay.

18. Following the Federal budget on 11 May 2021, Qantas announced that it would delay the resumption of its international schedule. It was previously slated to recommence in October 2021 but has now been pushed out to December 2021.

19. In essence, the Applicants contend that for as long as the A380 remains parked in the desert, they can perform the inherent requirements of their position because the aircraft is not operational. This is not a new argument and the Applicants have made it before. And it misses the point entirely. The inherent requirements of a role do not fundamentally change because of a temporary change in circumstances (see [105] of the Summers judgment). They must remain able to operate to any international port to which Qantas operates.

20. Furthermore, the Applicants’ submission in paragraph [8(b)] is entirely inconsistent with their submissions at [10] and [11] and what they maintained at the hearing on 17 March 2021. That is, they concede that once the A380 operation resumes they are unable to fulfil the inherent requirements of their role. Further, it does not matter what routes the A380 might service in the future. For the purposes of determining whether a dismissal was unfair, the assessment of whether there was a valid reason is made having regard to the facts available to the decision maker at the time of the termination.

No reasonable basis to defer the Commission’s decision

21. There may never be a final determination in Summers. The next stage is an AHRC conciliation, the purpose of which is to resolve the matter without a contested hearing. The matter is yet to be conciliated. If it resolves, then there will be no final determination. Further, if it does not resolve at conciliation, Captain Summers may or may not file proceedings in the Federal Court.

22. Even if Summers does ultimately file an application in a Federal Court, this may be some months away as he has 60 days to decide to whether to commence proceedings once he receives a termination certificate from the AHRC. Once lodged, determination of those proceedings is likely to take many more months, probably in excess of a year. Given the legal complexity of the case and the potential for argument about the application of Christie, appeals are also highly likely. Therefore, if the FWC is minded to defer determination pending a decision in Summers, it logically follows that this would also need to await any appeals.

23. There is no logical sense in King and Peggie’s proposal that the Commission should defer but that the deferral is not absolute. It has to be one or the other.

24. The other point to make is that any decision of the Federal Court in Summers on the substantive application is unlikely to assist the Commission in its deliberations (see submissions on relevance above at [8] to [24]). Further, the decision in Christie and the principles relevant to “inherent requirements” have been cited in numerous subsequent cases, at all levels of the judicial system. Contrary to the submissions of the Applicants, Captain Summers’ application does not present as the first time a superior court will consider those principles. Until definitively overturned, the Commission will continue to be bound by the High Court authority in Christie.

25. There will always be cases in the judicial system which challenge the current state of the law. It is a matter of speculation as to whether any of those cases will result in established legal principles being revisited or overruled. But the Commission should not suspend its decision-making function on account of that speculation.

26. It is not in the interests of justice for judgment to be deferred indefinitely in circumstances where the Commission has already heard the evidence and submissions of the parties. The Applicants have already been given ample opportunity to argue that Qantas’ reliance on Christie is misplaced. The Commission will be in no better place to resolve that controversy by delaying its decision for months or more.

27. The submission that delay will not prejudice Qantas or cost Qantas anything is misconceived. As a respondent in litigation, Qantas has an important legitimate interest in having legal controversies resolved. There is a public interest in the Commission resolving those controversies. A decision in the unfair dismissal matters will give all parties certainty as to their legal rights and may have a bearing on Qantas’ future corporate decision making and conduct.

Conclusion

28. In light of the submissions above, the Commission should be satisfied that:

a. the Summers judgment has limited relevance (if any at all) to the unfair dismissal applications currently before the Commission;

b. there is no utility in deferring judgment until such time the dispute between Qantas and Captain Summers has been finalised;

c. Christie remains good law, and is relevantly indistinguishable from the facts pertaining to Messrs Peggie and King, and therefore it must be followed in the present case; and

d. the Applicants’ unfair dismissal applications should be dismissed.”

[34] In reply Messrs Peggie and King submitted that:

1. Paragraphs 8 and 9 of the Qantas Submissions contends that Summers is of little relevance because the facts of the matter are fundamentally different. In our previous submissions we had submitted that the facts are fundamentally similar.

2. The primary difference Qantas identifies is that Captain Summers substantive role is an A330 captain, an aircraft that prior to Covid predominantly serviced the international network while during Covid, is predominantly servicing the domestic network. They submit that the A380 exclusively serviced the international network, but has been grounded since Covid.

3. Qantas appears to be trying to have it both ways in terms of the impact of Covid.

4. If their contention is that the impact of Covid should be ignored (ie the pre Covid position assessed) we are in a very similar position to Summers – both aircraft operate international services. If, on the other hand the impact of Covid is to be taken into account we are in a better position than Summers, vis a vis the Rule of 65. The A330 currently operates predominantly on domestic services with an anticipation that it will extend to international operations (which may infringe Rule of 65 requirements) in late 2021. The A380 will not undertake any operations that infringe the Rule of 65 (or indeed any operations at all) until late 2022 or 2023.

Interlocutory decision

5. At paragraphs 10 to 20 Qantas makes submissions on the basis that the decision of Justice Katzmann was an interlocutory one.

6. This statement is uncontroversial. Likewise their submission that an interlocutory decision is not a final one, and that the matter may never proceed to a final determination are not controversial.

7. However, the Qantas Submissions go a step further and submit that a consideration of what was said, or the possibility of a further substantive and final determination is no more than speculation.

8. This is clearly not the case.

9. There remains on foot proceedings in the Federal Court of Australia in which these issues will be considered.

10. Submissions regarding international flying.

11. Qantas misconceives the position taken by the applicant, which is not changed.

12. Putting to one side the question as to when inherent requirements should take into account changed circumstances (such as the effects of the pandemic) the question before the Fair Work Commission is distinct.

13. The Fair Work Commission would be entitled to conclude that termination on the basis of inherent requirements that may arise in the future, in circumstances where we are able to fulfill the current actual requirements is harsh, unjust and unreasonable.

14. In this respect Qantas appears confused again seeks to have it both ways in respect of the argument. It says on the one hand the Commission should not take into account current events, but then on the other hand say that the Commission should assess whether there is a valid reason at the time of the termination.

15. At the time of the termination Qantas was aware that there would be no duty we were unable to perform for at least 18 months. It was also aware at that time there was a reasonable likelihood that we would be able to obtain another position that we could perform. It was also aware, contrary to the submissions now made by Qantas that there was a reasonable likelihood that when the A380 returned it may primarily do operations (such as between Australia and Singapore) via travel bubbles that we could perform.

Application of Christie & International Flying

16. At paragraphs 15-17, and then at 21-24 Qantas make various submissions as to Christie and “international flying”.

17. In respect of Christie, Qantas again asserts that our circumstances are “relevantly indistinguishable” from Christie.

18. This submission, which has been made on several occasions before, appears to proceed on the basis that Christie is judicial authorisation for Qantas’ future acts rather than an authoritative statement of legal principles in respect of inherent requirements and the Age Discrimination Act.

19. In Christie, a majority of the Judges focused on an ability to participate in the rostering process (as it then existed) as the relevant inherent requirement. Two Judges that did not focus on this issue, Justice Gummow (who focused on the terms of the contract), and Justice Kirby (who in dissent would have found for Captain Christie). The Court did not make some broad finding around Qantas’s entitlement to terminate pilots on reaching a certain age.

20. if the matter is not proceeding by a strict application of Christie, then there should be a focus on whether we could participate in the roster process now (and for the reasonable future). The answer to this is uncontroversial – we will be able to participate equally with all of the other A380 pilots in all rosters until at least late 2022.

Deferral of the Commission’s decision

21. At paragraphs 25 to 31 Qantas contends there is no reasonable basis to defer the Commission’s decision. Qantas seems to rely upon three arguments:

a. The obligations of the Commission pursuant to s.577;

b. The public interest;

c. Prejudice to Qantas.

22. Qantas also takes issue with our proposal that the decision be deferred pending resolution of Summers or further decision of the Commission.

23. Section 577 provides:

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

24. Qantas reads this obligation to focus on the word quick, to the near exclusion of fair, just or the other elements. It would be unfair and unjust for the Commission to determine our case on the basis of factors that were the subject of judicial interpretation in a case that has already been commenced and remains on foot.

25. The decision of Summers means that there is a risk of an injustice should the Federal Court decide that at the time of our termination, such termination was contrary to the Age Discrimination Act.

26. Qantas refers to the public interest as requiring that legal matters be resolved. While this is true, the public interest is also to minimise the risk of discordant decisions.

27. Qantas does not identify any prejudice it will suffer, but rather says that it should be entitled to have legal controversies to which it is a party resolved as quickly as possible, and that the decision may impact upon its future decisions. The last submission is made without any reference to potential or likely events and is pure speculation.

28. Finally, Qantas says “There is no logical sense in King and Peggie’s proposal the Commission should defer, but the deferral is not absolute. It has to be one or the other.”

29. There is no foundation for the contention that it has to be “one or the other”. Orders of Courts and tribunals of stays, adjournments or injunctions are routinely made as lasting until a point in time or event, or alternatively further Order of the Court of the Tribunal. Indeed, that is the Order made by Katzmann J in Summers.

30. Our proposal is that the Commission should defer the matter until Summers is determined (be it by settlement, by a decision of Captain Summers not to proceed, or by ultimate resolution by the Court) or by further Order of the Commission.

31. We anticipate that such further Order of the Commission may arise in a variety of circumstances including if Qantas could identify actual prejudice or changed circumstances (such as if the A380 fleet restarting operations such that we could not participate in the rostering process), or if Qantas were to advertise vacancies on the B737 (a position which it is uncontroversial we could fill).”

[35] On 11 June 2021 I advised the parties that I was not prepared to stay the issuing a decision in the present matters until after the finalisation of the Summers matter. I indicated that my reasons for not staying the issuing of a decision would be contained in the substantive decision.

Reasons for not staying my decision

[36] The primary reason why I decided not to stay the issuing of this decision was because the timing of a potential outcome in the Summers matter was too speculative and uncertain.

[37] Relevantly, section 577 of the FW Act requires the Commission to,

“… perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities…”

[38] Presently, there is no substantive proceeding before a federal court. There may never be depending on what happens during the process before the AHRC. Deferring deciding these matters involving Messrs Peggie and King until there is an outcome (if any) in proceedings that may never be commenced goes against the quick performance of the Commission’s functions.

[39] The Applicants contended that “it would be unfair and unjust for the Commission to determine [their] case on the basis of factors that were the subject of judicial interpretation in a case that has already been commenced and remains on foot”. That contention misunderstands the litigation process involving Captain Summers. The current interlocutory proceedings in the Federal Court of Australia will not, as a matter of process, result in a reconsideration of Christie.

[40] I accept that existing authority (such as that in Christie) may one day be overruled, qualified or further explained. However, there is no substantive case on foot in a federal court that might, in time, lead to a change in the existing authority. Further, if Christie remains any guide to Qantas’ attitude to litigation, any future proceedings would likely be the subject of appeals – thus requiring me to continue to stay issuing a decision in these matters for possibly years to come. That would be an unacceptable delay.

[41] Fairness also imports a notion that justice will be done in a timely fashion. “Justice delayed is justice denied.” 5 Noting that Captain Summers may never file a substantive proceeding in a federal court, any decision that might address the authority in Christie is too speculative.

[42] Additionally, while the case involving Captain Summers is very similar to the facts concerning Messrs Peggie and King, there is an important factual difference. The evidence before Justice Katzmann was that “Captain Summers was not engaged solely in international flying and … has undertaken a significant amount of domestic flying.” The same cannot be said about Messrs Peggie and King. The evidence of Captain Summers was that, as a captain of an A330 aircraft, he was able to participate effectively in the Qantas roster system. Messrs Peggie and King could not likewise do so – even if they were reinstated tomorrow.

[43] I reject the argument that, because international pilots are stood-down and, consequently, no one is being rostered, it means that Messrs Peggie and King can comply with the non-rostering of international pilots. As exclusive international pilots, the facts relevant to Messrs Peggie and King are more akin to those in Christie than in the interlocutory matter involving Captain Summers. The inherent requirement (the Rule of 65) still applies to them, even if no one is currently flying. I say more about this below.

[44] The Summers Decision is only interlocutory in nature. It was decided having regard to whether there was an arguable case and where the balance of convenience fell. It was decided on different principles to those that I am required to apply in the matters before me under the FW Act.

[45] Finally, both Applicants seek reinstatement as the remedy. Reinstatement cases should be heard and determined expeditiously. If reinstatement is to be ordered then it should occur as soon as possible after the dismissal so as to give the best chance of the employment relationship being restored. Delaying the handing down of a decision in these matters until the final conclusion of the Summers matter would undermine the ability to award the primary remedy.

[46] For the above reasons I was not satisfied that there was any legitimate basis for delaying the issuing of this decision.

Background

[47] The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:

a) The Applicants’ employment commenced on:

i. 16 March 1984 in respect of Mr King, pursuant to a letter of appointment dated 9 March 1984.

ii. 6 July 1984 in respect of Mr Peggie, pursuant to a letter of appointment dated 4 June 1984.

b) The Applicant’s letters of appointment referred to:

i. being required “to perform duties as required by the Company from time to time including … to undertake such duties in any part of the world.” 6

ii. “your conditions of employment are set out in the International Airline Pilots’ Agreement 1992 as varied from time to time. 7

iii. “your initial retirement date is the first day of July following your 55^th birthday, but you may elect to extend your employment on a year by year basis beyond that date to your 58^th birthday….”

c) Up until around September 1992 Qantas was an international airline. Around that time it merged with Australian Airlines (a nationally owned domestic airline). 8

d) The Applicants’ careers with Qantas progressed as follows: 9

Position	Mr King	Mr Peggie
Pilot-Under-Initial-Training	16 March 1984	6 July 1984
Second Officer B747	August 1984	December 1984
First Officer B747	June 1986	March 1988
First Officer B767	n/a	October 1993
Captain B747	October 1990	n/a
Captain B747-400	September 1999	September 1996
First Officer A380	n/a	June 2010
Captain A380	October 2009	n/a

e) All of the positions held by the Applicants during their respective employment with Qantas were as long-haul pilots.

f) At the time of the cessation of their employment the Applicants’ employment was covered by the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (LHEA).

g) In the lead up to his 65^th birthday:

i. On 22 February 2020, Mr King advised Qantas that he wanted to transfer to a position as a First Officer in short-haul operations (i.e. to become a domestic pilot). 10 He had previously done so on 16 September 2019.

ii. On 19 March 2020, Mr Peggie advised Qantas that he wanted to transfer to a position as a First Officer in short-haul operations (i.e. to become a domestic pilot). 11

h) On 13 March 2020 Mr Peggie flew his last flight with Qants.

i) On 21 March 2020 both of the Applicants were stood-down because of the COVID-19 pandemic. They remained stood-down until the cessation of their employment. Until their employment was terminated Messrs Peggie and King were in receipt of JobKeeper payments.

j) On:

i. 17 July 2020 Mr King turned 65.

ii. 19 August 2020 Mr Peggie turned 65.

k) On:

i. 28 August 2020, Mr King received a letter to ‘show cause’ why his employment should not be terminated. 12

ii. 31 August 2020, Mr Peggie received a letter to ‘show cause’ why his employment should not be terminated. 13

l) The show cause letters received by each of the Applicants were in similar terms and stated that:

i. Upon turning 65 years of age each of the Applicants were unable to perform the inherent requirements of his position on the A380 fleet due to the ICAO restrictions;

ii. Although each of them had indicated a preference to transfer to short haul, his request could not be accommodated because there were no pilot vacancies available (at the time or in the reasonably foreseeable future) due to the significant reduction in demand in domestic flying caused by the COVID-19 pandemic;

iii. Qantas was unable to identify any alternative roles into which either Applicant could be redeployed. Given the volatility of the COVID-19 pandemic there were no opportunities or vacancies within Qantas at the time and it was unlikely for one to have arisen in the foreseeable future;

iv. In all the circumstances, Qantas was left no choice but to terminate his employment on the basis that he could not perform the inherent requirements of his role as a long haul pilot; and

v. Qantas wished to provide each of the Applicants with an opportunity to provide a response to the proposed termination.

m) On:

i. 3 September 2020 Mr King responded to the show cause letter. 14 Mr King asserted that:

A. it would be premature to terminate his employment as there was currently no flying on the A380 fleet (so it could not be said that he could not fulfil the inherent requirements of his role), and he was otherwise likely to be awarded a vacancy in short haul once domestic flying resumes. He requested to remain on leave without pay until such time; and

B. Mr Alley had made a number of representations to him in a conversation on 10 July 2020 about him remaining in employment with Qantas until such time there was a vacancy in short haul. 15

ii. 7 September 2020 Mr Peggie responded to the show cause letter. 16 In short, Mr Peggie maintained the position that it would be premature to terminate his employment on two main grounds being that:

C. there was currently no flying on the A380 fleet and so it could not be said that he could not fulfil the inherent requirements of his role; and

D. he otherwise was likely to be awarded a vacancy in short haul once domestic flying resumes and that he should remain stood down until such time.

n) Mr Alley considered the responses from the Applicants to the show cause letters.

o) On:

i. 8 October 2020 Mr Alley advised Mr Peggie that his employment would be terminated with effect on 12 November 2020. Correspondence to that effect was provided to Mr Peggie. 17

iii. 15 October 2020 Mr Alley advised Mr King that his employment would be terminated with effect on 19 November 2020. Correspondence to that effect was provided to Mr King. 18

p) On:

i. 12 November 2020 Mr Peggie’s employment ended.

ii. 2 December 2020 Mr King’s employment ended.

q) On:

i. 2 December 2020 Mr Peggie made an application for unfair dismissal.

ii. 10 December 2020 Mr King made an application for unfair dismissal.

r) At the time of their dismissal,

i. Mr King had earned approximately $40,000 in the previous 12 months, but his evidence was that, in the FY18/19 tax year he earned $483,286; and

ii. Mr Peggie had earned $237,411 in the previous 12 months, but that his ordinary hourly rate was $228.28 per hour.

[48] I think fairly I can also take judicial-like notice of the impact of COVID-19 on Qantas. The Applicants and Qantas have led evidence about it and made submissions. Only last week it was reported 19 that,

“Qantas has posted a $2.35bn annual loss, taking the airline’s total losses for the last two years to an eye-watering $5bn.

The grim result was attributed to a $16bn loss in revenue, due to the lack of international flying for the full 12-months and extensive disruption to domestic travel.

Throughout the 2021 financial year, a total of 330 days were affected by domestic travel restrictions, with devastating results for the airline group.

Qantas and Jetstar have now shed 9400 jobs – or a third of the workforce, and more than 8000 employees remain stood down as they wait for domestic and international borders to reopen.

On that front, Qantas was hopeful of resuming commercial international flights in December, to a limited network including Singapore, the US, Japan, the UK, Canada and Fiji.”

[49] The Applicants submit they were unfairly dismissed. They both seek an Order that they be reinstated. The position that they seek to be reinstated to is that of long-haul pilot. That is a position that, if they are reinstated to it, would see them being stood-down because of the COVID pandemic. The Applicants conceded that, “if we are still allocated to the A380 when it resumes operations on services we cannot operate and pilots are stood up, our employment should be terminated at that time.” In that sense their cases differ from that in Christie because neither Applicant seeks to remain a long-haul pilot.

[50] In seeking an Order that they be reinstated (to positions that, if they become operational, the Applicants concede they should be dismissed from) the Applicants hope to be employed long enough for them to undertake training in and transfer to short-haul operations. That is a common career path for international pilots once they reach the age of 65 years.

[51] For the following reasons I am not satisfied that the Applicants were unfairly dismissed. Even if I am wrong about that conclusion, I am not satisfied that reinstatement into positions to which the Applicants would be stood-down is an appropriate remedy.

Protection from Unfair Dismissal

[52] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[53] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[54] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicants had completed the minimum employment period, and were covered by an enterprise agreement, namely the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020. Consequently, the Commission, as presently constituted, is satisfied the Applicants were protected from unfair dismissal.

[55] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[56] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Were the Applicants dismissed?

[57] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act.

[58] In these matters Qantas did not contend that the Applicants were not dismissed. It conceded that Mr Peggie was dismissed on 12 November 2020 and Mr King was dismissed on 2 December 2020. Consequently, I find that the Applicants were dismissed from their respective employment with the Respondent within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[59] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). Qanats is not a small business. Consequently, compliance with the Code is not relevant in the present matter.

Was the dismissal a genuine redundancy?

[60] The Respondent did not submit I should dismiss the application because the dismissal was a case of genuine redundancy. Genuine redundancy is not relevant in the present matter.

Harsh, unjust or unreasonable

[61] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[62] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

[63] I am under a duty to consider each of these criteria in reaching my conclusion. 20 I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[64] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 21 The reasons should be “sound, defensible and well founded”22 and should not be “capricious, fanciful, spiteful or prejudiced.”23

[65] There is no suggestion that the dismissal of the Applicants was associated with their conduct. They both have an exemplary employment record.

[66] The sole reason for their dismissal from employment was that they had both reached the age of 65 years and Qantas determined that, consequently, they could not perform the inherent requirements of their position as long-haul pilots.

The Christie and Qantas Airways Ltd Litigation

[67] Qantas relies upon the decision in Qantas Airways Ltd v Christie to establish that section 18(4) of the ADA operates in these matters i.e. the inherent requirements exemption.

[68] Accordingly, as her Honour Justice Katzmann held in the Summers Decision “it is useful to see what was actually decided in Christie.” Her Honour’s very useful analysis was as follows:

79 Christie concerned a Qantas pilot who was dismissed after 30 years’ service because he had reached the age of 60. Mr Christie sued Qantas in the Industrial Relations Court of Australia claiming that the termination of his employment was in breach of s 170DF(1)(f) of the Industrial Relations Act 1988 (Cth) (IR Act) which provided that an employer must not terminate an employee’s employment by reason of age. By s 170DF(2), however, a matter referred to in para (1)(f) was not prevented from being a reason for terminating employment “if the reason [was] based on the inherent requirements of the particular position”. In the present case, both parties considered that s 170DF(2) of the IR Act was relevantly indistinguishable from s 18(4) of the Age Discrimination Act, despite the reference in the latter subsection to “the particular employment” rather than “the particular position”. This approach is questionable. In X v The Commonwealth (1990) 200 CLR 177 at [150] Kirby J remarked that the word “employment” is “somewhat broader”.

80 Mr Christie had been employed as a pilot of B747-400 aircraft that were used for flying international routes. As was the position with Captain Summers, his letter of appointment and the relevant industrial agreements stipulated that he would be required to perform duties as required by Qantas in any part of the world where Qantas may from time to time be operating.

81 Under the terms of an agreement between the Australian Federation of Airline Pilots (later the Australian International Pilots’ Association) and Qantas, the retirement date for pilots was set at 55. Pilots were able to extend their employment but not beyond the age of 60. At this time the Convention prohibited State parties from allowing a pilot who had attained that age to act as a pilot in command of an international air service and gave State parties the power to refuse entry to aircraft piloted by such a person. This was known as the Rule of 60 and it was the law in most of the countries on the routes flown by Qantas. Indonesia, Fiji and New Zealand were the only exceptions.

82 At first instance in the Industrial Relations Court, Wilcox CJ held that the rostering and bidding system employed by Qantas and the effect of the laws which had been enacted in most countries on Qantas routes to prevent pilots over the age of 60 from entering their airspace meant that it was an inherent requirement of Mr Christie’s position that he had not attained the age of 60. Accordingly, his Honour dismissed the application. On appeal, the Full Court of the Industrial Relations Court, by a majority, set aside his Honour’s order, holding that age was not an inherent requirement of the particular position.

83 By a majority, Kirby J dissenting, the High Court allowed the appeal, holding that there had been no breach of s 170DF(1)(f).

84 It was apparently uncontroversial that the particular position occupied by Mr Christie at the time of his termination was that of a captain of B747-400 aircraft flying international routes. Kirby J said at [164] that there was no doubt that the requirements of that particular position included the requirement that he be able to fly that aircraft anywhere in the Qantas network. Gummow J at [114] defined it more narrowly, however, as “the particular bundle of contractual rights and obligations, supplemented … by the operation of statute”.

85 The Court was of the unanimous view that an inherent requirement is one which is essential, intrinsic, or indispensable to the position: Christie at [1] (Brennan CJ), [34] (Gaudron J), [74], [86] (McHugh J), [114] (Gummow J) and [164] (Kirby J). Each member of the Court except for Gaudron and Kirby JJ held that the termination of Mr Christie’s employment because he had reached the age of 60 was lawful because he was unable to fulfil the inherent requirements of his particular position but their views differed as to the reason he was unable to do so. Brennan CJ at [3] considered that it was because he was unable to participate effectively and equitably in the bidding system, McHugh J at [86] because he was unable to fly to a reasonable number of the airline’s overseas destinations, and Gummow J at [117] because availability for international service was an inherent requirement of the position according to his contract.

86 Gaudron J remarked at [36] that a practical way of determining whether a requirement is inherent is to ask whether the position would be essentially the same if the requirement were removed. In that case, therefore, the question was “whether the position would be essentially the same if it involved flying B747-400 aircraft only on those routes which remain available by reason of the enforcement of the Rule of 60”. Her Honour held at [38] that, notwithstanding the limited destinations to which he could now fly, his position would be essentially the same as that he had previously occupied if he were able to comply with the Qantas roster system. Her Honour did not answer the question, however. Her Honour’s view, which was not shared by the other members of the bench, was that the question could only be answered if the matter were remitted to the Full Court to answer the question whether Wilcox CJ had erred in holding that Mr Christie would need to use a large proportion of short flights that would otherwise be used to make up the hours of other captains flying the same aircraft.

87 Brennan CJ agreed with Gaudron J except in relation to the critical factual question. His Honour held at [2]–[3] that the ability to participate effectively in the bidding process on an equal footing with other Qantas international pilots of similar seniority was an inherent requirement of Mr Christie’s position. Later, at [5] his Honour said:

The question is not whether Mr Christie would need to use a large proportion of short flights to make up his hours but whether he would necessarily make up his hours by excluding from his bids flights to or over those countries which apply the Rule of 60. As Mr Christie would be constrained to exclude flights to or over some countries from his bids, he could not participate equally with other pilots of similar seniority in the bidding system. His exclusion from flights to and from some destinations would require other pilots to be selected for duty on those flights more frequently than if Mr Christie had been available for that duty. Even if, the Rule of 60 apart, Mr Christie's seniority would have allowed him to exclude those flights from his bids which filled the required number of flying hours, that hypothetical exclusion would have been made in exercise of his rights as an equal participant in the bidding system. There would have been a continuing possibility of bidding successfully for the flights from which he is now compulsorily excluded. But his inability to bid and to be selected for some flights skews the equitable operation of the system.

88 For this reason, his Honour said that it was unnecessary to pursue the “large proportion of short flights” issue and a remittal to the Full Court was unwarranted.

89 McHugh J held at [42]–[43] that the age of an employee can be an inherent requirement of the particular position within the meaning of s 170DF(2) and at [86] that it was an inherent requirement of Mr Christie’s position as a Qantas captain of international B747-400 routes that he have the physical, mental and legal capacity to fly B747-400 flights to any part of the world. His Honour went on to say at [86]–[87]:

It is true that a contractual requirement does not necessarily equate to an “inherent” requirement. However, it was essential that, at the very least, a pilot in Mr Christie’s position should be able to operate a sufficient number of flights to meet the requirements of his employment with Qantas as an international pilot. It is probably the case, having regard to the terms of the employment contract, that the Captain of a Qantas B747-400 flying internationally should be able to fly to every Qantas destination. It is unnecessary, however, to decide that point in this case.

ii. “The hypothetical cost to Qantas of allowing Mr King to remain employed while either being stood down or taking accrued leave for one year is approximately $50,400 in respect of accrued annual leave and long service leave based on the top pay rate for an A380 Captain. The value of the 21 days of personal leave is more difficult to quantify because this will depend on whether it is taken and if so, when. However, assuming that such leave is taken as a continuous block of long term sick leave, the value of the leave would be approximately $30,440.” 44

This factor weighs against finding the dismissals were harsh, unjust or unreasonable.

d) Not dismissing the Applicants would have enabled Qantas to delay the pay out of significant entitlements – in respect of Mr King, $262,859.97 and in respect of Mr Peggie, $158,065.90. Cash reserves could have been preserved.

However, it is not for the Commission to tell an employer how to manage its balance sheet. The Commission does not stand in the shoes of the employer.

The fact that Qantas could have made a different financial decision does not mean that the one they made was not sound and defensible.

This is a neutral consideration.

e) Leave without pay would not have resulted in Qantas incurring additional leave accruals. Section 22 of the FW Act provides that service is not counted during any period of unpaid leave or unpaid authorised absence.

Qantas did not have answer to why it could not grant the Applicants’ leave without pay.

This factor weighs in favour of finding that the dismissals were harsh.

f) The fact that the Applicants have, because of the COVID pandemic, been treated differently to other long-haul pilots in the past who successfully transferred to short-haul.

The evidence is that, all things being equal, in a normal world, the Applicants would likely have transferred to short-haul operations. Likely their respective bids to transfer would have been successful.

The differential treatment is as a result of the impact of the COVID-19 pandemic on Qantas and the delay/backlog it has caused to its B747 training.

This is not the fault of Qantas. The differential treatment is a neutral consideration.

g) The COVID pandemic is a once in a lifetime event and it could be argued that it was a time when Qantas could have decided to make additional concessions for the Applicants so that they could stay employed for a longer period awaiting transfer to being short-haul pilots.

Qantas has maintained that it would not be appropriate or reasonable to allow the Applicants to remain stood-down in a role which they were no longer able to perform for the sole purpose of waiting for a vacancy in short-haul to arise.

It seems that the basis for the contention that it “would not be appropriate or reasonable…” was the speculative nature of any future vacancies in short-haul and the likely long period of time until any vacancies might potentially arise.

Of course, all of that speculation is a direct result of the impact of the COVID-19 pandemic on the airline industry.

In these unprecedented economic times many efforts have been made to maintain connections between employees and employers. One such example is the JobKeeper scheme. Qantas was a beneficiary of JobKeeper.

The decision of Qantas not to allow a special measure for the Applicants in response to a once in lifetime event, weighs in favour of finding that the dismissals was harsh.

h) Whether there were reasonable alternatives to dismissal (e.g. maintain the employment relationship so that the Applicants could wait out a period of time to transfer to short-haul).

Mr Alley gave the following evidence about the transfer process for long-haul pilots in the lead up to their 65^th birthday.

26. In order to manage the employment of those pilots approaching the age of 65, Qantas will issue long haul pilots with an "age 64" letter (Age 64 Letter). This letter notifies the long haul pilot of the fact that in a year's time they will be unable to fulfil the inherent requirements of their position, at which point their employment will be terminated given the restrictions imposed by the ICAO convention preventing them from flying to a majority of international airspaces. The letter presents the pilot with two options:

a). the first is to nominate to retire from their employment with Qantas upon turning 65 years of age; or

b). the second is to indicate a preference to bid for a transfer to a position of a pilot on an aircraft in short haul operations. Domestic operations in Australia are unaffected by the age restrictions imposed by the ICAO Convention as the ICAO Convention has not been adopted as local law.

27. While a pilot may indicate a preference to bid for a transfer to short haul, the transfer is not guaranteed and there is no automatic right. A transfer is predicated upon there being an available "vacancy" in short haul operations and the particular pilot having the requisite seniority to successfully bid for that vacancy.

28. The SHEA requires the company to advertise any vacancies in short haul operations and sets out the mechanism by which these vacancies are to be filled. In broad terms, vacancies are filled on the basis of seniority and through a pilots "specific bid" for that vacancy by way of a pilot's "Letter of Preference". A pilot bidding for a vacancy may include a "self-restriction" on that vacancy which means the pilot can nominate when the bid for a vacancy will become effective. For example, where a long haul pilot wants to transfer into short haul upon turning 65, the pilot will bid for the vacancy at some time in the preceding 12 months, but in order to maximise their time on their existing long haul fleet, the pilots can include a self-restriction on that bid such that it becomes effective around the time the pilot turns 65.

29. Qantas will periodically determine how many vacancies it will advertise by reference to the short haul "planning divisor". The planning divisor refers to the specific hours projected to be allocated to pilots of a specific category and base at the end of the pattern planning/ roster build process. Flight operations uses a planning divisor in short haul of around 68 hours per 28 day bid period (which is about 3 hours less than the optimum hours for each bid period specified at RM18 of the SHEA). This is to say having regard to the total number of hours to be flown in the 28 day period, and allowing for sufficient reserve coverage and the taking of leave, pilots actively flying in the bid period should on average be rostered to around 68 hours of flight time. Accordingly, Qantas ordinarily advertises sufficient vacancies to keep pilots numbers in each category at a level which will allow for the annual forecasted planning divisor to sit at around 68 hours per bid period. Qantas does not externally advertise short haul vacancies, rather all short haul vacancies are filled from within the ranks of existing long haul and short haul pilots on the basis of seniority.

30. Prior to the COVID-19 pandemic and due to demand, short haul pilots were typically flying around 73 hours per bid period. This was hard up against what is known as the "maximum planning divisor" of about 75 hours set out at RM18 to the SHEA. Where the "maximum planning divisor" is breached it means that the pilot establishment numbers are too low, and Qantas is required to meet with the Australian and International Pilots Association (AIPA) to " discuss the reasons, timeframe, ramifications and possible effects on establishment (see RM18 of SHEA).

31. For completeness I note that the SHEA contains "minimum guarantee hours" of 53 hours and 24 minutes per 28 day bid period. These are the minimum hours for which a short haul pilot is to be paid in a bid period regardless of how little flying may be rostered. During my employment with Qantas and prior to the COVID-19 pandemic, I am not aware of the rostered hours ever falling at or below the minimum guarantee hours.

32. Prior to the COVID-19 pandemic, any long haul pilot approaching the age of 65 and wanting to transfer to short haul was usually able to secure a vacancy given the capacity of flying available in short haul. The natural attrition amongst short haul pilots (either by way of short haul pilots leaving Qantas or transferring to long haul) has always meant that there have been sufficient advertised vacancies in short haul to more than accommodate the small subset of our senior long haul pilots who want to transfer rather than retire at the age of 65. To the best of my knowledge, and during my employment with Qantas, I am not aware of a situation where a vacancy in short haul was created for the specific purpose of allowing a 65 year old long haul pilot to transfer from long haul to short haul.

33. Historically, most long haul pilots upon turning 65 choose to retire rather than transfer to short haul. Over my time as Head of Base Operations, I would estimate that at least 85% of our long haul pilots retire on or before turning 65. The option of transferring to short haul to end one's career is not attractive to most long haul pilots. There will be a range of reasons for this but in my view the most significant are the much lower pay rates in short haul, short haul flying is considered more high paced and dynamic in nature than long haul flying, and because the endorsement training to become a short haul pilot is extensive (approximately between 14 and 20 weeks) and requires a significant amount of personal study.

34. The COVID-19 pandemic has significantly reduced the number of available hours in short haul operations, and has led to an unavailability of vacancies in short haul.

The evidence of Mr Alley was that, in relation to the likelihood of a transfer to a domestic position:

“47. In relation to the preliminary view reached by Qantas [that the Applicants’ indicated a preference to transfer to short haul, could not be accommodated because there were no pilot vacancies available (at the time or in the reasonably foreseeable future) due to the significant reduction in demand in domestic flying caused by the COVID-19 pandemic], I make the following observation about the state of available vacancies in short haul. There were approximately 78 pilots who had been awarded vacancies in short haul in April 2019 for the 2019/2020 training year but were yet to commence or complete their training course. Qantas did not anticipate any training on the B737 fleet (the aircraft used to service short haul flying) to commence prior to 30 June 2021 and that it was possible that the 78 vacancies already awarded might be deferred until the training year commencing 1 July 2021 (which is subject to agreement with AIPA in circumstances where the training course had yet to commence). This meant that the earliest any training could commence for any future vacancies was unlikely to take place until at least May/June 2022.”

What was apparent from Mr Alley’s evidence was that, in ordinary circumstances, the Applicants would most likely have continued in employment as short-haul pilots, having elected to do so in the lead to their 65th birthdays. However, these are not ordinary times.

It may not be (as the Applicants sort to characterise it) a “right” that they had to transfer to short-haul (and certainly not a “workplace right” as that is defined in s.341 of the FW Act), but they certainly had a legitimate expectation that, under normal circumstances, they would have been successful in their bids to transfer.

However, the evidence is that there were a number of long-haul pilots awarded vacancies in short-haul in April 2019 that, by the time of the hearing before me, still had not undertaken training – it having been delayed.

The back-log in training is relevant. It means that when the Applicants might be successful in their bids to transfer to short-haul, is uncertain.

Even if the delayed courses are cancelled and future bids favour the Applicants because of their seniority, I could not, with any certainty, be satisfied when the Applicant’s would transfer to short-haul operations.

If Qantas commences flying to countries with high vaccination rates (such as Singapore, the UK, US, Japan and Canada) from mid-December 2021, then, likely training in B747s will open up in early 2022. That would be that an entire year would have passed since the dismissals.

Even that timeline is speculative. It is based on factors beyond Qantas’ control.

Consequently, it would require maintaining an employment relationship (for the purpose of facilitating a future possibly training opportunity) for an indefinite period.

This factor (the uncertainty about when the Applicants might transfer to short-haul) weighs against finding the dismissals were harsh, unjust or unreasonable.

[116] The Applicants contend that they ought to have remained employed on leave without pay during this period of COVID disruption in order to allow them time to transfer to short-haul (domestic) pilot positions. They contend that, in circumstances where they were being stood-down, they were not required to fly internationally. They contend that, had they continued in employment on leave without pay, they would be a in a position to be transferred into a domestic pilot role in due course. They further contend that continuing their employment without pay would not be an impost on Qantas.

[117] However, to put them back into the position they would have been on 12 November 2020 (Mr Peggie) and 2 December 2020 (Mr King) such that they are reinstated to a position where they are on leave without pay would require them to repay the significant moneys already paid to them. To allow them to retain those monies would be akin to treating them as being on paid leave during that time. Paid leave would require Qantas to accrue additional leave for the Applicants in circumstances were Qantas is seeking to, not unreasonably, reduce costs. It was Mr King’s submission that he should not be required to repay moneys paid to him. The complexity associated with “unscrambling the egg” weighs against finding that the dismissals were harsh.

[118] Mr Alley gave the following evidence about why, in all the circumstances, Qantas decided to terminate the employment of the Applicants.

51. To have allowed Mr Peggie to remain in employment (stood down or otherwise) would have been unreasonable having regard to the following additional factors:

a). even though at the time of termination there were no vacancies and we considered it was unlikely for any vacancies to arise in short haul for the foreseeable future, the volatility surrounding the COVID-19 pandemic has continued to create uncertainties. For example, the border closures arising from the Northern Beaches outbreak in December 2020 and January 2021 reduced Qantas' domestic network to 48% of pre COVID-19 capacity (as opposed to previous forecasts of 76% by this point). This translated to approximately only 55% of short haul pilots being stood up. Further, short haul pilots who have been stood up are flying significantly less hours at around the minimum guarantee of hours than pre-COVID-19 averages of 65 to 70 hours. At the time of signing this statement there remains no vacancies in short haul. It is possible that vacancies may arise sooner than anticipated (as compared to the circumstances in October/November 2020) given the vaccine rollout in February 2021, but it remains unclear as to when these vacancies will arise in the future. Further, there currently remains a backlog in training for short haul as described in paragraph 47 above, and there is currently no plan to advertise any short haul vacancies as part of the annual April bulk allocation for the 2021/2022 training year;

b). while there might be no immediate cash cost to Qantas to allow Mr Peggie to remain stood down until such time a vacancy arose, Mr Peggie would continue to accrue annual leave, long service leave and personal leave during this period of time. Hypothetically, if Mr Peggie remained stood down for one year he would accrue 42 days of annual leave, 9 days of long service leave and 21 days of personal leave. This would be approximately $33,260 in respect of annual leave and long service leave based on the top pay rate for an A380 First Officer. The value of the 21 days of personal leave is more difficult to quantify because this will depend on whether it is taken and if so, when. However, assuming that such leave is taken as a continuous block of long term sick leave, the value of the leave would be approximately $20,100. This is a significant cost to Qantas in circumstances where Qantas continues to be hamstrung by the COVID-19 pandemic as described in paragraphs 37 and 39 above. Although Mr Peggie's entitlement to this leave did not form part of the reasons for termination, the potential cost to accrue the leave is relevant tb the reasonableness of continuing to employ Mr Peggie in circumstances where he could no longer perform the inherent requirements of his role; and

c). I caused an analysis to be undertaken to determine the financial cost to Qantas to train age 65 long haul pilots who successfully bid for a vacancy in short haul, and to understand the historical rate of 65 aged pilots passing or failing the training and their length of the service once they pass their training. Over the last ten years, Qantas' records show that it has awarded about 33 vacancies in short haul to 65 aged pilots. Of the 33 long haul pilots, 10 (30%) did not pass the training (as compared to a passing rate of 99% for pilots not in the 65 age bracket). I understand that the average tenure for a short haul pilot who passed their training and transitioned shortly after their 65th birthday is about 2.5 years. In relation to the financial cost, the short haul training program would cost Qantas approximately (based on the payment of wages for the duration of the program) $105,000 and $70,000 for a A380 Captain and A380 First Officer respectively. Having regard to the fairly high failure rate (as compared to other cohorts), the reasonably short tenure, and the investment cost to Qantas which all need to be understood in the context of the COVID-19 pandemic and the impact this has had on the business (see paragraphs 37 and 39 above), it was not unreasonable for Qantas to have decided to terminate Mr Peggie's employment rather than to allow him to remain employed indefinitely (in a position which he could no longer perform) until such time a vacancy arose in short haul (which remains uncertain).

….

60. For the same reasons set out above in paragraph 51, it would have been unreasonable to allow Mr King to have remained employed (stood down or otherwise) with Qantas. The hypothetical cost to Qantas of allowing Mr King to remain employed while either being stood down or taking accrued leave for one year is approximately $50,400 in respect of accrued annual leave and long service leave based on the top pay rate for an A380 Captain. The value of the 21 days of personal leave is more difficult to quantify because this will depend on whether it is taken and if so, when. However, assuming that such leave is taken as a continuous block of long term sick leave, the value of the leave would be approximately $30,440.

[119] As explained above, the possible answer to the concern about continuing to accrue leave balances is to have allowed the Applicants to be on leave without pay. Qantas could have then avoided paying out more than $420,000 as between the Applicants.

[120] However, there is no answer to the uncertainty about when vacancies in short haul might arise and the volatility surrounding the COVID-19 pandemic (there have been further lockdowns since this case was heard) and the uncertainties that it continues to create.

Conclusion

[121] The FW Act requires an assessment to be made about whether a termination is harsh, unjust or unreasonable, and therefore, unfair. As has often been explained that a dismissal may be:

a) unjust because the employee was not guilty of the misconduct on which the employer acted,

b) unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and or

c) be harsh in its consequences for the personal and economic situation of the employee

[122] Whether the dismissal of each of the Applicants was harsh is most relevantly the question before me.

[123] In the present matter it would have been possible for Qantas to keep the Applicants stood-down or employed on leave without pay during a time when they had both passed their 65^th birthdays and were not required to fly. This may have allowed the Applicants a further opportunity to transfer to domestic pilot duties. To do so would have cost Qantas little in comparison to the reduction of livelihood (significant noting how much pilots earn) suffered by the Applicants.

[124] However, the fact that Qantas did not do that does not render the dismissals unfair.

[125] Faced with the massive losses that it has incurred as a result of the COVID-19 pandemic Qantas is entitled to count every penny and seek to reduce future costs and liabilities on its balance sheet. It owes that duty to its shareholders. That is why its decision not to continue with the stand-down was not unreasonable.

[126] In so far as Qantas could have continued employment (on a leave without pay basis), leaving Messrs Peggie and King in the departure lounge awaiting a move to short-haul, it may have been a considerate thing to do in these “unprecedented times” for the benefit of good and loyal employees.

[127] Having regard to the exceptional service of Messrs Peggie and King it would have been nice if Qantas had continued to warehouse them until they found positions in the domestic network. However, the fact that Qantas decided differently also does not render the dismissals unfair. Qantas was entitled to have regard to the entirely uncertain future about when training might open up that would facilitate a transfer of Messrs Peggie and King to the domestic network.For these reasons, having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied the dismissal of the Applicants was harsh, unjust or unreasonable. Accordingly, I find the Applicants’ dismissals were not unfair.

[128] Finally, even if I had found that the dismissals were unfair, I would not have reinstated the Applicants. It would be a case of requiring Qantas to continue employment with no appointed date for the resumption of actual service. Reinstatement is “meant to be real and practical, not illusory and theoretical.” 45

[129] The reinstatement would require Qantas and the Applicants to agree that they be on leave without pay in order to relieve Qantas of the obligation to continue to accrue leave for the Applicants. I cannot order the parties to reach such an agreement as a part of a reinstatement order. Orders for reinstatement cannot be conditional on other events. 46

Disposition

[130] The Commission, as presently constituted, is satisfied that the Applicants were protected from unfair dismissal, but that the dismissals were not unfair. Consequently, their applications for an unfair dismissal remedy must be dismissed.

[131] Orders to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr Peggie for himself.
Mr King for himself.
Mr Jonathan Forbes of counsel (as his Honour then was) for Qantas, instructed by Mr James Banh, solicitor, Herbert Smith Freehills.

Hearing Details:

17 March 2021 and 11 June 2021.

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009, s. 629.

2 Transcript PN 49-52.

3 [2021] FCA 391.

4 Ibid at [110].

5 William Ewart Gladstone, 17 March 1868.

6 See attachments DA-3 and DA-4 to the Statement of Douglas Peter Alley, Exhibit 16.

7 At the time of the cessation of their employment the Applicants’ employment was covered by the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020.

8 Statement of Douglas Peter Alley, Exhibit 16, paragraph 7.

9 Statement of Douglas Peter Alley, Exhibit 16, paragraphs 15 and 19.

10 See attachments DA-15 to the Statement of Douglas Peter Alley, Exhibit 16.

11 See attachments DA-10 to the Statement of Douglas Peter Alley, Exhibit 16.

12 See attachments DA-16 to the Statement of Douglas Peter Alley, Exhibit 16.

13 See attachments DA-11 to the Statement of Douglas Peter Alley, Exhibit 16.

14 See attachments DA-17 to the Statement of Douglas Peter Alley, Exhibit 16.

15 Mr Alley denies making the representations. However, nothing turns on the factual contest.

16 See attachments DA-12 to the Statement of Douglas Peter Alley, Exhibit 16.

17 See attachments DA-13 to the Statement of Douglas Peter Alley, Exhibit 16.

18 See attachments DA-18 to the Statement of Douglas Peter Alley, Exhibit 16.

19 Sayer v Melsteel[2011] FWAFB 7498.

21 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

22 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

23 Id.

24 Anna Chapman, Case Note “Qantas Airways Ltd v Christie”, Melbourne University Law Review, Volume 22, 743 at 749.

25 Section 18, Age Discrimination Act 2004.

26 Section 18(2)(c), Age Discrimination Act 2004.

27 Section 14, Age Discrimination Act 2004.

28 Section 15, Age Discrimination Act 2004.

29 Section 18(4), Age Discrimination Act 2004.

30 Christie v Qantas Airways Limited [1996] IRCA 276, (1996) 138 ALR 19, 39.

31 152 ALR 365, 414.

32 (1996) 70 FCR 76 at 88.

33 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

34 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

35 Previsic v Australian Quarantine Inspection Services Print Q3730.

36 (2000) 98 IR 137.

37 Ibid at 151.

38 RMIT v Asher (2010) 194 IR 1, 14-15.

39 Like submissions were made in respect of Mr King albeit with different figures.

40 A copy of the ASX announcement was "Attachment DA-7" to Mr Alley’s Statement.

41 A copy of the ASX announcement was "Attachment DA-8" to Mr Alley’s Statement.

42 A copy of the ASX announcement "Attachment DA-9" to Mr Alley’s Statement.

43 Statement of Douglas Peter Alley, Exhibit 16, paragraph 51.b.

44 Statement of Douglas Peter Alley, Exhibit 16, paragraph 60.

45 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539, [33].

46 Sportsmed v Cartisano[2015] FWCFB 1523 and Toll Holdings v Johnpulle[2016] FWCFB 108.

Mr Andrew Peggie v Qantas Airways Limited T/A Qantas

[2021] FWC 5458

1 SEPTEMBER 2021

DECISION