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With a compensation order looming, lawyers for Qantas told a court it was “unreasonable” for one of the sacked ground handling staff to turn down another job within the company because he allegedly heard rumours of a “negative” culture.
In the hypothetical world where the August 2020 sackings never occurred, Qantas has argued there would have been “another window” to legally stand down the 1,700 ground handlers in late 2021 and terminate their employment by February and March 2022.
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It is because of this “counterfactual” scenario – which Justice Michael Lee allowed to be argued earlier this month – that Qantas argued the workers should not be entitled to compensation beyond those dates.
The airline was found to have illegally outsourced the staff by the Federal Court, and this was again reinforced by the High Court on appeal.
Opening this case in the Federal Court on Wednesday morning, Richard Dalton KC, counsel for Qantas, said the Delta strain led to lengthy lockdown restrictions, border closures, low flying activity domestically and international flying activity was dormant.
In the real world, Qantas “took drastic steps in 2021” to reduce its financial losses, including sacking 10,000 of its employees, retrenching thousands more, and selling its Mascot property.
“Everything was on the table at that time,” Dalton said.
“They were looking at a period of four months in which there is almost no flying domestically and internationally. They were really staring at the abyss and they had already suffered calamitous losses.”
Justice Michael Lee clarified that his submission was that “come high or hell water, by whatever means, by whatever advice, or by whatever process, Qantas was going to have a laser-like focus on saving as much money as they can, irrespective of sacking these workers?”
“Essentially, yes,” Dalton said.
Justice Lee then elaborated that, “it seems to me clearly that what Qantas was seeking to do in 2020, and what I would infer they would do in 2021, when faced with what was undoubtedly a set of very catastrophic circumstances … was to cut costs quick.”
Appearing after Dalton, another counsel for Qantas said the court should also consider the decisions three of the workers, used as test cases, made following the August 2020 decision.
One of those test cases said he turned down a job within Qantas to work in its freight division, which would have paid the same because he feared the freight jobs would also be stood down eventually and “he had heard negative things about the culture” there.
When the counsel submitted these fears were “unreasonable” and there was “no foundation” for them, Justice Lee questioned why it would be an irrational thought given the worker’s situation.
“If I was an employee working for a company and that company sacked me and I thought that the only other job [I was offered] is one that I thought would be the next to go, why would it be unreasonable that I won’t go there because it would be a short-term proposition … [and] because I don’t want to go through this horrible experience twice,” Justice Lee put to the counsel.
The counsel argued that while it may have been the test case’s state of mind at the time, it was not “reasonably held”.
“We know freight was very important at the time and freight was booming during COVID,” he added.
Moving into the income they recovered after the stand down, the counsel submitted that one of the test cases received COVID-19 payments and another received carer payments.
He said these payments should be considered “income” and taken into account when deciding how much they lost after August 2020.
