In an important ruling, the full Federal Court has rejected a Qantas challenge to a Federal Magistrates Court finding that it coerced and took adverse action against an aircraft engineer who complained about being underpaid while on an overseas posting.
The full court – Justices Tony North, Peter Gray and Anthony Besanko – found that Federal Magistrate Kenneth Raphael was correct in his findings and rejected the airline's contention that it was denied procedural fairness (see Related Article).
Federal Magistrate Kenneth Raphael found the employee, a licensed aircraft engineer and ALAEA member, was subjected to adverse action after returning to his home base of Brisbane from a six-week posting at Japan's Narita International Airport.
The engineer made a claim for time off in lieu and payment for additional hours worked while at Narita. After the claim was rejected by Qantas, the engineer sought to trigger the dispute resolution clause of the relevant enterprise agreement.
A day later Qantas suspended all postings of Brisbane-based engineers.
The ALAEA took action in response to the suspension and a subsequent heated phone call between the engineer and Qantas manager, Peter Cawthorne, in which the manager allegedly said that future postings would only be granted to engineers who didn't make claims.
The full court found that Federal Magistrate Raphael was correct in his findings and that Qantas had not been denied procedural fairness during, or as a result of correspondence after, the case.
Maurice Blackburn principal Giri Sivaraman, who acted for the ALAEA and the employee, said the full court decision was significant because it made it clear that "altering a person's position to their prejudice is a broad concept".
"The decision confirms that even though there were no fixed future overseas postings, the decision by Qantas which meant there were no possible postings at all was still a detriment for him".
Sivaraman said the decision also recognised that "a senior manager in a phone conversation tried to intimidate the employee and make him withdraw a legitimate complaint".
In its appeal, Qantas argued that its month-long suspension of overseas postings for Brisbane-based aircraft engineers in March/April 2010 could not be seen as a detriment to the employee because he was not due to be eligible to be considered for another overseas posting until later that year or early in 2011.
However, as was accepted by FM Raphael and the full court, Qantas initially suspended all postings for an indeterminate period and, as such, withdrew the possibility of future postings from the employee.
"The complaint was made over the imposition of a suspension for an unlimited period. [Qantas] cannot recast the allegation into a form which, by its formulation, removes the prejudicial effect of the action," the full bench ruled.
The company also argued that Federal Magistrate Raphael should not have accepted the evidence of the employee that the suspension had been related to his complaint that he had not received all his wages and time off in lieu entitlements while posted to Narita.
The full court said Qantas bore the onus "of proving that it did not suspend the overseas posting for a reason which included the reason that [the engineer] had made the claims for payment or invoked the dispute resolution procedure."
It said that Qantas made "no attempts" during the appeal hearing to demonstrate that Federal Magistrate Raphael's conclusion was erroneous, "glaringly improbable or contrary to compelling inferences".
The full bench said that Qantas also sought to overturn the finding that Cawthorne had tried to coerce the employee to withdraw his claim in the heated phone call.
Qantas argued that Federal Magistrate Raphael was wrong in reformulating the engineer's claim in regard to the alleged coercion and then not allowing Qantas to respond adequately.
However, the full bench made no finding that Qantas had been denied any procedural fairness.
"The federal magistrate accepted [the engineer's] version of the substance of the conversation but not the description which the respondent had used for it.
"The rejection of the description did not prevent the federal magistrate relying on the substance of the conversation as the basis of the claim under s 343.
"Again, [Qantas and its manager's] argument should not be accepted."