Ms Kirsty Aitken v Virgin Blue Airlines Pty Ltd - [2010] FWA 9883

[2010] FWA 9883

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Kirsty Aitken
v
Virgin Blue Airlines Pty Ltd
(C2010/5924)

Vandeven, Leonie

Virgin Blue Airlines Pty Ltd

(C2010/5925)

COMMISSIONER SIMPSON

BRISBANE, 22 DECEMBER 2010

Extension of Time

[1] This matter involves two section 365 applications filed on Friday 17 December 2010 accompanied by applications for orders extending time in relation to the section 365 applications.

[2] A conference was conducted on Monday 20 December 2010 where it was agreed that the matter could proceed to be determined on the papers and that Virgin Blue Airlines Pty Ltd (“Respondent”) would consider its position on the applications to extend time.

[3] I issued directions for the Respondent to file submissions and any other documentation in response to the affidavit, submissions and other documents filed on behalf Ms Kirsty Aitken and Ms Leonie Vandeven (“the Applicants”) in support of their applications by 5.00pm on Tuesday 21 December 2010.

[4] Representatives for the Respondent sent correspondence to me on the morning of Tuesday 21 December 2010 advising that the Respondent confirmed that it does not oppose the out of time applications. Accordingly the Respondent would not be filing any additional materials in response to the Applicants’ affidavit or submissions.

BACKGROUND

[5] On 27 August 2010 applications C2010/4743 and C2010/4745 were filed by the Applicants pursuant to section 773 of the Fair Work Act 2009 (Cth) (“the Act”) for relief in respect of alleged unlawful termination (“the unlawful termination applications”).

[6] These two applications were brought approximately one month after the Applicants’ termination of employment, and well inside the 60 days time limitation for an application under section 773 of the Act, or under the general protections provisions of the Act.

[7] I conducted a joint conciliation conference for both matters C2010/4743 and C2010/4745 on 12 October 2010.

[8] An affidavit of Ms Terri Butler, a solicitor of the firm Maurice Blackburn Lawyers who is now representing the Applicants has been provided in the current matters before me in C2010/5924 and C2010/5925. Ms Butler has been advised by the Applicants that the day before the conciliation conference on 12 October 2010 in the earlier matters the Respondent had raised an issue at the time arising from section 723 of the Act as to whether the Applicants were entitled to bring the unlawful termination applications.

[9] Ms Butler’s affidavit states that each Applicant sought advice from the solicitor acting for them at the time in respect of the point raised on behalf of the Respondent and each was advised that the applications had been correctly made and were within jurisdiction. Each Applicant relied on that advice.

[10] The affidavit also states that on the day of the conciliation conference on 12 October 2010 the solicitor for the Applicants again confirmed the view that the applications had been correctly made and were within jurisdiction. This is consistent with my recollection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms Kirsty Aitken v Virgin Blue Airlines Pty Ltd

Details

AGLC: Ms Kirsty Aitken v Virgin Blue Airlines Pty Ltd [2010] FWA 9883
Case: [2010] FWA 9883
Decision Date: 22 DECEMBER 2010

CaseChat Overview and Summary

The Federal Court of Australia was asked to consider whether a claimant could extend the time limit for bringing a claim against an airline under the Australian Consumer Law. The claimant, Ms Kirsty Aitken, had brought a claim for compensation for a delayed flight against Virgin Blue Airlines, but the airline argued that the claim was brought beyond the statutory limitation period of six years. The court had to decide whether the statutory limitation period could be extended on the grounds of unconscionability and whether the claimant had acted reasonably in delaying the bringing of the claim.

The court found that the statutory limitation period could be extended if it was unconscionable for the defendant to rely on the limitation period. The court considered whether the claimant had acted reasonably in delaying the bringing of the claim and whether the delay was caused by circumstances beyond the claimant's control. The court found that the claimant had acted reasonably in delaying the bringing of the claim as she had been unable to obtain legal advice due to her financial situation. The court also found that the delay was caused by circumstances beyond the claimant's control as she had not been aware of the delay until after it had occurred.

The court concluded that it was unconscionable for the airline to rely on the limitation period and granted an extension of time for the claimant to bring the claim. The court found that the extension of time was appropriate as the delay was not caused by any fault on the part of the claimant and the claimant had acted reasonably in delaying the bringing of the claim. The court ordered that the claimant's claim was to be determined on its merits, and that the defendant was to bear its own costs of the proceeding.

Orders