the Applicant v Virgin Australia Airlines Pty Ltd (No 3)
Citation: [2024] FCA 227
What happened
the Applicant employees (pilots and flight attendants) brought proceedings challenging their dismissals during COVID-19 lockdowns in 2020. They alleged adverse action under the Fair Work Act and sought declarations and compensation. Virgin Australia filed interlocutory applications to strike out parts of the statement of claim for procedural deficiencies. The court found the Applicant's pleadings inadequate in several respects, particularly regarding discrimination claims.
What was decided
The Federal Court dismissed the Respondent airline's applications for costs despite the Applicant’s pleadings being found deficient and several claims being struck out. The court applied s.570 of the Fair Work Act, which restricts costs orders in employment cases. The court held that disputes over pleading adequacy are commonplace in employment litigation and that striking out parts of claims without establishing that the Applicant acted unreasonably does not justify costs orders against applicants.
What it means for employers
While employers can challenge deficient pleadings in employment cases, the Fair Work Act's costs restrictions mean that striking out deficient pleading is unlikely to result in cost recovery. Employers should focus on substantive defenses rather than relying on procedural strike-outs. The no-costs rule reflects policy protecting employees with genuine claims despite inadequate initial pleading.
What it means for employees
The Fair Work Act provides protection against costs orders even where initial pleadings are deficient. the Applicant should not be deterred from pursuing legitimate claims by the threat of costs if their pleadings require amendment. Courts recognize that employment law pleadings often develop through interlocutory process and will give robust consideration to claims.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →